Friday, April 30, 2021

Compounds on SOP violation - An Offer - not a sentence? Choice to refuse offer of compound

Right to refuse offer to Compound - Compound is not a FINE. It is simply an offer made by authorities, which can refuse. Where is the LIST of those who accepted compound offers - this needs to be disclosed.

How much money has the government made through compounds - and how has these monies been spent in combating Covid-19? Are some being arrested and others not? Questions...questions that government must disclose.

The law provides the OFFENCE and the punishment if Convicted - Only the courts after a FAIR TRIAL will determine whether one is GUILTY or not - then comes the sentencing, where the courts will consider the Aggravating Factors and the Mitigating Factors before one is given a JUST sentence.

For certain crimes, the relevant law enforcement bodies can OFFER the suspect a COMPOUND - where the suspect can CHOOSE to accept or not. If the suspect accept the offer and pay the compound sum, then this will be the end of it - the suspect will not be charged and/or tried in court.  Compounds are usually offered to minor offences ...and now it is being offered for breaches of 'SOPs' during this Covid-19 pandemic. In Malaysia, it is also offered for some traffic offences..

WHEN the suspect accepts the Compound OFFER - then the law enforcement bodies/Prosecutor do not have to work on proving the guilt BEYOND REASONABLE doubt in court anymore...

WHY do people accept the Compound Offer? Well many(innocent and/or guilty) accept offers of compound simply because they want to avoid court cases or simply the other hassles of ongoing investigations. So, many innocent persons simply elect to accept compound offer ... Remember, in accepting compound offers, one is inadvertently admitting guilt ...

Rejecting Compound Offer for breach of SOP offences is a RIGHT - if you reject the compound offer, then the Prosecution will have to charge you in court, and before doing that they will consider whether they do really have sufficient evidence... 

And even if charged in court, there is the option to plead guilty before trial starts, and if you do so, the courts generally cut a third of the sentence to the said offence. Then, when it comes to sentencing, the courts will consider all relevant factors - including how poor you are, etc - the court will be more fair and just than the relevant  authorities when they make an offer to compound.

Even if one does not plead guilty, then in trial, the prosecution must proof beyond reasonable doubt whether you are guilty or not - and this is not an easy task. Do not worry if you are poor, because legal aid provides lawyers for the deserving in such criminal trials.

When one rejects a COMPOUND offer, the authorities may come back with a new lower offer...

REMEMBER if you are going to fight it - refuse compound offer - exercise your right of 'SILENCE' - do not assist the authorities get the evidence that they can use against you. In Malaysia, the enforcement authorities is not allowed to use violence, threats, etc get anyone to answer questions or confess. 

COMPOUNDS - well, the law may provide the maximum sum, and it still is based on the relevant enforcement officers (and now the prosecution) to fix the compound sum - the choice is yours at the end of the day. But when compound offered is just TOO HIGH is a problem for the low income earners or those who have lost jobs/income...

Whether an offence can be compounded or not depends on the existing law - the law must specifically provide for offers of compound, and sometimes the law also provide for maximum(or minimum) compounds that will be offered - if there is NO such provision of COMPOUND in the said law - then compound cannot be offered, accepted and paid.

 25  Compounding of offences

The Director General or any public officer authorized for this purpose by him in writing may compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit.

As of 11/3/2021, by virtue of an Emergency Ordinance, this section was amended and came into force, to now read:-

25. Compounding of offences

The Director General or any authorized officer authorized for this purpose by the Director General in writing may, with the consent in writing of the Public Prosecutor, at any time before a charge is being instituted, compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as a compoundable offence by making a written offer to the person reasonably suspected of having committed the offence to compound the offence upon payment to the Director General—

(a) in the case of a person who is an individual, a sum of money not exceeding ten thousand ringgit; or

(b) in the case of a body corporate, a sum of money not exceeding fifty thousand ringgit.”.

Before this, the power to compound offences existed in  PREVENTION AND CONTROL OF INFECTIOUS DISEASES (COMPOUNDING OF OFFENCES) REGULATIONS 1993, but that did not include new offences that came into being by virtue of new regulations.  

Vide the PREVENTION AND CONTROL OF INFECTIOUS DISEASES (COMPOUNDING OF OFFENCES) (AMENDMENT) REGULATIONS 2020, which came into force in  on 30/3/2020 - the schedule of compoundable offences was added to include 'All offences under the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 [P.U. (A) 91/2020].

BUT then, this  Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, this regulation itself did not specifically state the new specific offences created were compoundable - hence, the legal question arises whether a simple new listing of the 2020 Regulations in another Regulations dealing with compounding was sufficient - should not the said Regulations that created 'new offences' also specifically state whether any(or all) of these 'new offences' created by the any new Regulations are compoundable.

NOW, if before 11/3/2021, you paid COMPOUND - it may be 'ILLEGAL' - because then the law that applied required the REGULATIONS itself to say - '...which has been prescribed by regulations as compoundable...'

After 11/3/2021,  things may have changed but has it now? 


No comments: