Introduction

 [1]           A guilty plea is not a shortcut to leniency. It must be entered with full understanding and strategic consideration. While it can reduce sentencing, the court always carefully weigh the context, severity, and timing. Knowing the legal landscape and the precedents is crucial before uttering that pivotal word “guilty”!

 

Legal Effect of a Guilty Plea

 Sentence will be passed by the court

 [2]           If the accused pleads guilty to the charge, whether as originally framed or as amended, the plea shall be recorded. The accused may then be convicted on that plea, and the Court shall pass sentence according to law[1].

[3]           Although there is no provision in the Criminal Procedure Code (“CPC”) for a plea in mitigation, it is nevertheless common practice to allow such a plea before the court imposes sentence[2]. A guilty plea is one of the mitigating factors that the court may consider when determining the appropriate sentence.

 

No appeal on conviction except on sentencing

 [4]           Under Section 305 of the CPC, a guilty plea waives the right to appeal against conviction, except on the legality or extent of the sentence.

[5]           Section 305 of the CPC provides that: –

 

“When an accused person has pleaded guilty and been convicted by a Magistrate on that plea, there shall be no appeal except as to the extent or legality of the sentence.”

 

[6]           The Court of Appeal affirmed that once convicted on a guilty plea, the accused cannot challenge the conviction itself[3].

[7]           While a guilty plea generally prevents the accused from challenging the conviction, there are exceptions where the plea itself may be considered invalid.

 

When a Guilty Plea May Be Invalid

[8]           A plea to a charge that discloses no offence is not a valid plea[4].

[9]           If the plea was entered due to a misunderstanding of the law or without proper safeguards under Section 173(b) CPC[5] it may be set aside. The court must ensure the accused understands the nature and consequences of the plea[6].

[10]        A Plea of Guilty before the Court that has no local jurisdiction or legal jurisdiction[7].

[11]        A Plea of Guilty that is without consent or was induced by anything other than what is provided by law. An example is a plea of guilty upon a promise of monetary benefits. Such is a conditional plea[8].

[12]        Any other conditions that raised a reasonable doubt as to its voluntariness or unconditional or unequivocal nature that may invite the intervention of the Court that is exercising the appellate jurisdiction and power[9].

 

Guidelines for recording a conviction following a guilty plea

[13]        The Court of Appeal in the case of Teh Geok Chin v Pendakwa Raya[10] has outline the guidelines that trial courts should follow before convicting an accused person who intends to plead guilty: –

 

(i)	Before reading the charge to the accused, the court must verify that the charge is valid and correctly framed, in accordance with the rules outlined in Chapter XVIII of the Criminal Procedure Code;
(ii)	The court must then ensure that the offence specified in the charge corresponds with an offence recognised and created by law under which the accused is charged. A guilty plea to an offence not recognised by law does not constitute a valid plea;
(iii)	The court must also determine whether it has the jurisdiction to try the offence charged against the accused;
(iv)	The charge must be read out and clearly explained to the accused in a language that the accused understands, including the essential elements of the offence charged. The charge shall be read to the accused by a duly certified court interpreter or by an interpreter sworn before the court in respect of a language other than the commonly used languages of this country;
(v)	Where there is more than one charge against the accused, each charge must be read out, explained separately, and recorded independently;
(vi)	Where there are multiple accused persons charged, the charge must be read out and explained to each accused individually, and recorded separately;
(vii)	The court must record that the charge has been read out and explained to the accused, and it must also state the language used in reading and explaining the charge;
(viii)	The court must ensure that the accused fully understands the charge, including all the essential elements of the offence. The consequences of a plea of guilty must be explained, particularly the nature and range of the punishment that may be imposed, including where the charge carries a mandatory sentence or the death penalty.
(ix)	After the charge has been read out and explained to the accused, he must be asked whether he pleads guilty to the charge or chooses to claim trial. The plea must be taken personally from the accused, not from any other person, even if he is represented by counsel, to ensure that the plea is made voluntarily by the accused;
(x)	The accused must also be permitted to enter his plea in a language with which he is conversant, and such plea shall be conveyed to the court by a duly certified court interpreter or by an interpreter sworn before the court regarding a language other than the commonly used languages of this country;
(xi)	The same procedure must be followed for each charge where the accused faces more than one. Additionally, when the accused is charged with multiple offences, it must be explained to him that a separate sentence will be imposed for each charge and that, if imprisonment is imposed, the sentences may run either consecutively or concurrently, depending on the circumstances.
(xii)	Where the accused pleads guilty to the charge, the court must record the plea in full. When there is more than one charge against the accused, the plea for each charge must be recorded separately. If more than one accused person is charged, the guilty plea of each accused must likewise be recorded separately;
(xiii)	The court must be satisfied that the accused understands the nature and consequences of the plea and that the guilty plea is made voluntarily, without any coercion, threat, promise, or misunderstanding. The accused should be informed of the following three matters:
	(a)	First, the accused must be informed that if he pleads guilty, no trial will be conducted. In other words, no witnesses will be called, and a sentence may be imposed solely based on a guilty plea;
	(b)	Secondly, the accused must be informed that he may face the maximum penalty permitted for the offence, which could include the death penalty, imprisonment, a fine, or whipping, if such punishments apply to the offence; and
	(c)	Thirdly, the accused must be informed that if he pleads guilty, he can only appeal against the sentence and not against the conviction.
(xiv)	The prosecution must tender the facts of the case and the exhibits, and the accused must be allowed to state whether he admits and accepts the facts and exhibits without any dispute;
(xv)	It is more prudent for the court to record a conviction only after hearing the accused’s plea in mitigation, as there may be circumstances in which, during mitigation, the accused states matters that indicate that the plea of guilty was not made fully, unreservedly, unconditionally, and unequivocally;
(xvii)	Where there is any doubt, whether regarding the accused’s understanding, his physical or mental condition, or his acceptance of the facts and exhibits, the court must reject the plea of guilty and order the case to proceed to trial;
(xvi)	The accused may withdraw his guilty plea before sentence is passed, as the court will no longer have jurisdiction (functus officio) to alter its decision after the sentence has been imposed.

 

Guilty Plea as Mitigation

[14]        The position in law is that the accused should be given credit or discount for pleading guilty[11].

[15]        The extent of reduction on account of a plea of guilty would be between 1/4 or 1/3 of what otherwise would have been the sentence[12].

[16]        However, this is not a strict rule as the court may, in the exercise of its discretion, refuse to grant any discount in an appropriate case[13].

[17]        It is important for defence counsel to invoke section 172G of the CPC if the accused pleaded guilty at any time before the commencement of his trial[14].

[18]        Section 172G of the CPC reads as follows: –

 

Subparagraph 172D(1)(c)(ii) to be applicable to accused who pleads guilty
172G.	Where an accused pleads guilty at any time before the commencement of his trial, the Court shall sentence the accused in accordance with subparagraph 172D(1)(c)(ii).

 

[19]        Section 172D(1)(c)(ii) of the CPC reads as follows: –

 

(1)	Where a satisfactory disposition of the case has been agreed upon by the accused and the Public Prosecutor under section 172C, the Court shall, in accordance with law, dispose of the case in the following manner:
	(c)	where the satisfactory disposition is in relation to a plea bargaining of the sentence, find the accused guilty on the charge and—
		(ii)	subject to subsections (2) and (3), sentence the accused to not more than half of the maximum punishment of imprisonment provided under the law for the offence for which the accused has been convicted.
(2)	Where there is a minimum term of imprisonment provided under the law for the offence, no accused shall be sentenced to a lesser term of imprisonment than that of the minimum term.
(3)	Subparagraph (1)(c)(ii) shall not apply where—
	(a)	in the case of a serious offence, the accused has a previous conviction for a related or same offence; or
	(b)	where the offence for which the accused is charged with falls within the following:
		(i)	an offence for which the punishment provided under the law is fine only;
		(ii)	an offence for which the punishment provided under the law is imprisonment for a term of not less than thirty years but not exceeding forty years;
		(iii)	any sexual related offence;
		(iv)	any offence committed against a child who is below twelve years of age; or
		(v)	any other offence as may be specified by the Public Prosecutor by order published in the Gazette.

 

When a Guilty Plea Has Little or No Mitigating Effect

[20]        When an accused pleads guilty to an offence under Section 39A(1) of the Dangerous Drugs Act 1952, the court is bound by statutory minimum sentencing provisions. In such cases, even a guilty plea cannot reduce the sentence below the statutory minimum of two years’ imprisonment and three strokes of the cane[15]. However, the court might impose a bond of good behaviour for this offence[16].

[21]        The severity of the offence committed may outweigh the mitigating effect of a guilty plea. For example, the accused had pleaded guilty to a charge of trafficking in dangerous drugs where the accused had been caught red-handed in the processing of a large quantity of heroin[17].

[22]        Where public interest demands a deterrent sentence in the circumstances of a particular case. For example, the accused had raped a 14-year-old girl who later gave birth to a baby and pleaded of guilty to a charge of rape under s 376 of the Penal Code[18].

[23]        The existence of previous convictions. For example, the accused was charged with theft under Section 379 of the Penal Code and the accused had a total of 11 previous convictions[19].

[24]        When effectively no defence to the charge is available to the accused. For example, the concealment of the drug in his travelling bag which was professionally done and that there would be no effective defence to the charge had the accused not pleaded guilty[20].

[25]        If a plea of guilty is made too late in the trial it may also cease to have mitigating effect. For example, the accused only pleaded guilty after twelve (12) days of trial and upon the amendment of the charge after considerable time had been wasted and inconvenience caused to the witnesses who had already testified[21].

[26]        The fact that the accused was apprehended red-handed immediately after committing the offence. For example, the accused was charged under section 509 of the Penal Code. The accused was apprehended by the police officer when victim came out of the toilet. Upon checking the accused’s mobile phone, it was revealed that there was a video recording of a duration of 10 seconds of the act of the victim pouring tap water in the squatting toilet bowl[22].

 

What if the accused pleaded guilty to the alternative charge?

[27]        It is significant to note that the prosecution tendering of the alternative charge, the main charge was not abandoned but was still proceeded with until the close of the prosecution case[23].

[28]        If the accused pleads guilty to an alternative charge, rather than to an amended charge tendered by the Public Prosecutor, the prosecution retains the right to revert to the original charge. This safeguard ensures that, should the accused later appeal and the plea of guilt be deemed qualified or not properly entered in accordance with the law, the Public Prosecutor may still proceed on the original charge[24].

[29]        However, when an accused pleads guilty to an alternative charge and the prosecution withdraws the main charge; the effect of that withdrawal depends on the legal provisions under the CPC and the court’s order at the time of withdrawal.

[30]        If the prosecution withdraws the main charge under section 254 of the CPC, the default position is that the discharge is “not amounting to an acquittal” (DNAA), unless the court specifically orders an acquittal (DAA).

[31]        Therefore, it is important for the defence counsel to ensure that the that the prosecution withdraw a charge in compliance with section 171 of the CPC[25]. Withdrawal under section 171 of the CPC means acquittal.

[32]        Section 171 of the CPC reads: –

 

Withdrawal of remaining charges on conviction on one of several charges

171.	(1)	When more charges than one are made against the same person and when a conviction has been had on one or more of them, the officer conducting the prosecution may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into or trial of the charge or charges.
	(2)	Such withdrawal or stay shall have the effect of an acquittal on such charge or charges, unless the conviction is set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into or trial of the charge or charges so withdrawn or not proceeded with.

 

[33]        For example, in Public Prosecutor v Syed Feisal Bin Yahya[26], the accused was charged with two counts of trafficking in dangerous drugs under section 39B(1)(a) of the Dangerous Drugs Act 1952, in two separate cases. The prosecution subsequently tendered an alternative charge in the second case, to which the accused pleaded guilty. The prosecution then presented the facts of the case along with the relevant exhibits, all of which were admitted by the accused as true. Accordingly, the accused was found guilty and convicted on the alternative charge. At that juncture, the prosecution applied to the Court to withdraw the first case. The High Court acquitted and discharged the accused of that charge pursuant to section 171 of the Criminal Procedure Code (CPC) for the first case. The Court further rejected the prosecution’s application to “take into consideration” the offence from the first case under section 171A of the CPC when passing sentence.

 

Conclusion

[34]        If you are considering pleading guilty, it’s also important to know that Malaysia’s Criminal Procedure Code provides for plea bargaining under Section 172C of the CPC. This allows the accused, with legal representation, to negotiate with the prosecution for a reduced charge or lighter sentence in exchange for a guilty plea.

 

Postscript

[35]        Where there is a departure from the general rule the reasons for not treating the guilty plea as a mitigating factor must be reflected in the grounds of judgment[27].

[36]        A Plea of Guilty that is as a result of Plea Bargaining pursuant to section 172C is a plea without conditions and is not a conditional plea[28].

[37]        Where a co-accused who pleads guilty is required by the prosecution as his witness, the case and the sentencing process is disposed of immediately. This is to avoid the danger that if sentencing is postponed then the co-accused may weight his evidence towards the prosecution in the hope of getting a lighter sentence[29].

 

[1] Section 173(b) of the Criminal Procedure Code (“CPC”)

[2] LETITIA BOSMAN v. PP & OTHER APPEALS [2020] 8 CLJ 147, FC at paragraph 124

[3] See Munawar Ahmad Anees v Public Prosecutor [2009] 2 CLJ 42, FC at paragraph 25; Khokin Miah v Pendakwa Raya [2025] CLJU 233, COA at paragraph 13 & 14; Masni bin Yusoff v Public Prosecutor [2019] CLJU 1984, COA at paragraph 11 & 12; Samsudin Md Suppian v PP [2025] 2 CLJ 919, COA at paragraph 18;

[4] See Sau Soo Kim v PP [1975] 2 MLJ 134 FC and Lo Kim Peng & ors v PP [1979] 1 MLJ 249

[5] Section 173(b) of the CPC reads “If the accused pleads guilty to the charge, whether as originally framed or as amended, the plea shall be recorded and he may be convicted on it and the Court shall pass sentence according to law, provided that before a plea of guilty is recorded the Court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit, without qualification, the offence alleged against him.”

[6] Heng Kim Khoon v PP [1972] 1 MLJ 30; Teh Geok Chin v Pendakwa Raya J-05(SH)-526-11/2023, COA at paragraph 22

[7] Taufik Goh bin Abdullah v Public Prosecutor [2021] MLJU 2709, HC at paragraph 22

[8] Heng Kim Khoon v PP [1972] 1 MLJ 30

[9] Heng Kim Khoon v PP [1972] 1 MLJ 30

[10] Teh Geok Chin v Pendakwa Raya J-05(SH)-526-11/2023, COA at paragraph 32

[11] See Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134; Public Prosecutor v Sulaiman bin Ahmad [1993] 1 MLJ 74; Public Prosecutor v Ravindran & Ors [1993] 1 MLJ 45

[12] Mohd Abdullah Ang Swee Kang v PP [1988] 1 MLJ 167, SC

[13] See Zaidon Shariff v Public Prosecutor [1996] 4 CLJ 441; Public Prosecutor v Leo Say & Ors [1985] 2 CLJ 155

[14] Mohd Ali bin Zulkifly lwn Pendakwa Raya [2025] MLJU 2096, HC at paragraph 20

[15] Section 289 of the CPC “No sentence of whipping shall be executed by instalments, and none of the following persons shall be punishable with whipping: (a) females; (b) males sentenced to death; (c) males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under section 376, 377C, 377CA or 377E of the Penal Code.

[16] Public Prosecutor v Muhammad Shah Putera bin Dang Wera [2024] MLJU 2165, Magistrate Court

[17] Public Prosecutor v Oo Leng Swee & Ors [1981] 1 MLJ 247; [1981] 1 LNS 109, FC

[18] Public Prosecutor v Mohd Musa Bin Ahmad [2013] 8 MLJ 466, HC

[19] Public Prosecutor v Govindnan a/l Chinden Nair [1998] 2 MLJ 181; [1998] 2 CLJ 370, HC

[20] Public Prosecutor v Low Kak Wai [1988] 3 MLJ 123; [1988] 2 CLJ 105; [1988] 2 CLJ (Rep) 268, HC

[21] Public Prosecutor v Dato’ Nallakaruppan Solaimalai [1999] MLJU 74; [1999] 2 CLJ 596, HC

[22] Mohd Fairuz bin Ahmad v Public Prosecutor [2021] MLJU 2453, HC

[23] Fam Meng Siong & Anor v Public Prosecutor [2012] 5 MLJ 464, COA at paragraph 50

[24] Pendakwa Raya v Mohammad Salam dan satu lagi kes [2025] MLJU 4344, HC at paragraph 11

[25] Bala Murugan A/L Manarsamay dan lain-lain v Pendakwa Raya [2024] MLJU 978 ; [2024] 11 MLJ 720, HC at paragraph 44

[26] Public Prosecutor v Syed Feisal Bin Yahya [2007] 8 MLJ 294, HC

[27] Tan Lay Chen v Public Prosecutor [2001] 1 MLJ 135; [2000] 4 CLJ 492, HC

[28] Taufik Goh bin Abdullah v Public Prosecutor [2021] MLJU 2709, HC at paragraph 22

[29] Yap See Teck v. PP [1983] 1 CLJ 97; [1983] CLJ (Rep) 953