Criminal Procedures / Plead Guilty/Plea Bargain
Plead Guilty / Plea Bargain
If the accused indicates to the court that he wishes to plead guilty, a court date will be fixed for him to do so. Prior to indicating that he would be pleading guilty, the accused and/or his lawyers may write to the AGC (known as a letter of representations) with one or more of the following requests (this list is non-exhaustive):
For certain charges to be withdrawn (because the elements of the offence are not made out);
For certain charges to be reduced from a more serious charge to a less serious one;
For the Prosecution to only proceed on a smaller number of charges, and apply to have the remaining charges taken into consideration for the purposes of sentencing; or
For the Prosecution not to object to the Defence’s position on sentence.
The Prosecution may extend to an accused person a plea offer. This would usually involve either a reduction of some or all the charges against the accused, or to proceed on a smaller number of charges instead. For example, if an accused person faces five charges under s 380 of the Penal Code (i.e. theft in dwelling), the Prosecution may extend an offer to either (i) reduce some or all of the charges to theft simpliciter under s 379 of the Penal Code, and/or (ii) proceed on two of the charges only, and apply to have the three remaining charges taken into consideration for the purposes of sentencing if the accused pleads guilty.
The type and number of charges the Prosecution proceeds upon is significant as these affect the sentences that may be imposed for the offences. For example, certain offences carry mandatory imprisonment terms, while others may carry mandatory caning. Having these charges reduced to a less serious one may help an accused person avoid these mandatory minimum sentences. Also, if the Prosecution proceeds on only two charges, the sentences for these two charges may be ordered to run concurrently (i.e. the accused would practically speaking serve the longer of the two sentences). However, if three or more charges are proceeded upon, and imprisonment terms are imposed for the three charges, two of those imprisonment terms must be ordered to run consecutively. It is therefore important to secure as favourable a plea offer as possible before pleading guilty to the charges.
Pleading Guilty
A plead guilty mention is the court hearing where an accused would plead guilty before a judge. This hearing is governed by ss 227 and 228 of the Criminal Procedure Code. Prior to the mention, a court officer would read all the charges to an accused person in a language of his choice, and explain the prescribed punishments involved (i.e. what the minimum (if any) and maximum sentences are).
At the mention itself, the Prosecution would state its position on the charges (the nature and number of charges proceeded upon) if the accused pleaded guilty to the charges. Thereafter, the Court would ask the accused whether (i) he understands the nature and consequences of his plea and the punishment prescribed for the offence, and (ii) intends to plead guilty to the charges without qualification. If the accused responds “no” to any of these questions, the court cannot record his guilty plea.
After the accused confirms that he intends to plead guilty, and that he understands the nature and consequences of the plea, the Prosecutor would read out the Statement of Facts to the Court. The Statement of Facts would contain the facts related to the case, and forms the factual basis that the court would sentence the accused on.
The accused must agree to the statement of facts without qualification. If portions of the Statement of Facts are disputed, the court would consider the nature of the dispute before determining if the accused’s guilty plea had to be set aside. If the disputed portion is material to the elements of the offence (i.e. the accused disputes committing key elements of the offence), the court must reject his guilty plea, and fix the matter for further PTCs.
If the disputed portion is not material to the elements of the offence but is instead material to the factors relevant to sentencing, the court may still record his guilty plea. However, before sentencing the accused, the court would then have to convene a further hearing known as a Newton Hearing.
Newton Hearing
The Newton Hearing is a type of hearing where the Prosecution would have to prove the facts disputed in the Statement of Facts. Similar to a trial, the Prosecution has to prove these facts beyond a reasonable doubt. The Prosecution would seek to do this by calling witnesses and adducing evidence (documentary or otherwise). The Defence would be given the opportunity to cross-examine these witnesses. The Defence would then be allowed to call their own witnesses to challenge the Prosecution’s evidence. The Defence’s witnesses will also be subject to cross-examination by the Prosecution. The judge would then make a ruling on whether the Prosecution has proven the disputed fact beyond a reasonable doubt.
A Newton Hearing may also be convened if the Defence makes an assertion during sentencing that the Prosecution disputes. In this case, the Defence (as the party asserting the truthfulness of that fact) would have to prove that fact on a balance of probabilities. The process would be similar, save that the Defence would adduce its evidence first, followed by the Prosecution.
After the facts in the Statement of Facts are agreed to without qualification, the court would find the accused guilty of the charges proceeded upon, and would convict the accused accordingly. The remaining charges would then be read to the accused, and he would be asked whether he consents to have those charges taken into consideration for the purposes of sentencing.
The Prosecutor would then read out the accused’s criminal record (known as “antecedents”), and the accused would have to confirm that these antecedents are accurate. An accused person’s antecedents are relevant to sentencing because the court may impose a higher sentence in situations where the accused had committed similar or related offences before.
The court would then hear submissions on sentence and the accused’s plea in mitigation. The Prosecution would state its position on what the appropriate sentence should be, and why. The Prosecution would rely on established sentencing principles and case precedents (i.e. similar cases that had been decided in the past) to reach its position. The Defence would then raise the various mitigating factors in its plea in mitigation, as well as state its position on sentence. The court would then make a decision on what the appropriate sentence should be, and sentence the accused accordingly. The court may, at times, decide that it needs more time to reach a decision regarding the sentence, and adjourn the hearing to a further date for the court to issue its judgment.
After the accused is sentenced, the court would then hear any further applications that may arise post-sentencing. Applications that may be made by the Prosecution include applications for compensation orders or for the forfeiture/return of seized items. Applications that may be made by the Defence includes applications to defer the sentence imposed to a later date for the accused to settle his personal affairs before serving a sentence of imprisonment.
If either party intends to appeal against the sentence imposed by the judge, they may make an application for a stay of execution of the sentence. This means that the accused would remain on bail pending the hearing of his appeal, and would only serve his sentence after the appeal is disposed with.