The double standard in criminal law and what can be done

The treatment of Nurul Hidayah Ahmad Zahid leading up to her being charged is in sharp contrast with that of other offenders suspected of having breached the movement control order (MCO).

She was never at any point during the whole process arrested, handcuffed or hauled off to the police station and kept in a cramped cell overnight with other prisoners waiting to be brought before a magistrate. She was instead politely requested to present herself at the station to give a statement. Even then, such a request only came after she challenged Malaysians on the internet to make a police report following the burst of outrage and disappointment on social media over what appeared to be a blatant disregard for the MCO on her part.

Regardless of what I might personally feel about Nurul Hidayah and the statements she made leading up to her plea of guilt, I’m not suggesting that she should have been handcuffed or thrown into a jail cell. The reason why I refuse to adopt such a position is because it would be akin to suggesting that those who have committed minor breaches of the MCO should be treated that way when, in fact, such measures are often unnecessary.

Rather than punching upwards at these politicians or relatives of politicians who received preferential treatment, perhaps we should take a moment to consider whether we should elevate those at the bottom to the same level of treatment that Nurul Hidayah received throughout the entire process.

Instead of focusing our criticism on her RM800 fine, perhaps we should ask why a 30-day sentence of imprisonment was initially meted out against B Lisa Christina, a single mother with barely enough money to settle the RM1,000 fine, or why a seven-day sentence of imprisonment was given to a 22-year old student who naively thought it would be a good idea to give a birthday cake to her boyfriend. While it was foolish of her to contravene the regulations, the student was still a first-time offender who meant no harm.

I would caution against assuming that there was a conspiracy or intention of giving preferential treatment to Nurul Hidayah when there are various other factors that need to be considered, such as the fact that most of these cases were handled by different magistrates and different police officers. Not only that, there have been more than 20,000 arrests since the start of the MCO and the cases reported by the media tend to be those that are outliers, meaning cases which have excessive sentences.

Without the appropriate data set such as the other sentences meted out by the particular magistrate that handled Nurul Hidayah’s case, it would be difficult to say for certain if she received preferential treatment simply because of her status as a politician’s daughter.

What we can say for certain, however, is that there have been huge discrepancies in sentencing across the board due to the wide sentence range available for breach of the MCO, from a fine not exceeding RM1,000 to a maximum six months’ imprisonment or both. This has created a situation where people who have pleaded guilty for similar minor breaches of the MCO receive sentences that vary greatly from each other.

Instead of pointing fingers at some imaginary authority figure and blaming that figure for the perceived double standard that exists in the criminal justice system, maybe we could take a different approach by first recognising that the double standard is a systematic problem caused by a lack of proper guidelines or training.

A majority of sentencing by magistrates is based solely on the recommendations made by the deputy public prosecutor and the mitigation done by the defence. It is often a result of a completely non-transparent introspection exercise performed on the spot by the magistrate to reach a sentence that he or she feels is justified. In cases where the accused pleads guilty upon being charged, the magistrate rarely elaborates on the reasoning behind the sentence given. This is a big problem because different magistrates have different expectations of what an appropriate sentence is, especially in cases where the sentence range can be quite wide. As a result, the sentences received by two different individuals before two different magistrate’s courts could vary greatly from one another despite both individuals having similar backgrounds and cases with a similar factual matrix.

Rather than just relying on the recommendations of the deputy public prosecutor or the arbitrary “sentencing trends” compiled by defence lawyers, a proper set of sentencing guidelines for different offences prepared by a sentencing council is needed to help standardise sentencing across the board. This is something that can be done – other countries such as the UK have already laid the necessary precedent for its implementation.

While some may argue that a good defence lawyer should be able to sway the opinion of the magistrate in the client’s favour, I would say that relying solely on the skill of a lawyer is a gamble. There would be instances where the skill of a lawyer, no matter how great, would make little difference to the opinion of a particular magistrate.

By having proper sentencing guidelines, we could avoid situations where accused persons without legal representation receive disproportionate sentences because they do not know how to perform mitigation. Sentencing guidelines such as those created by the UK for a wide variety of offences should also list out the relevant bands according to the seriousness of the offence and provide a table of aggravating and mitigating factors to be taken into consideration. These tables would also list out the necessary factual scenarios that would fall either under the category of an aggravating factor or mitigating factor.

Another point to note on sentencing is that deputy public prosecutors should be more thoughtful about the specific circumstances of each victim and not just quote the infamous line that I often hear in court: “Saya memohon hukuman yang setimpalnya” (I request for the most severe form of punishment). Deputy public prosecutors should be more mindful about making such pleadings to the magistrate. While I understand that deputy public prosecutors at the lower courts may be desensitised and burnt out by the sheer number of cases that require sentencing per day, this is no excuse to simply request for the maximum sentence or a heavy sentence without good reason.

The preparation of pre-sentence reports by experts in cases with the likelihood of a custodial sentence can also be further examined. The pre-sentence report, which details the background of the accused, his previous convictions and the appropriate sentence to be meted out, would certainly be helpful in ensuring some form of accountability when it comes to sentencing.

Trust is an important commodity needed to ensure the continued operation of the criminal justice system. It is important for us to ensure that the public’s faith in the system is upheld. Yes, we may argue for a change of mindset among magistrates and police officers, but those aspects are difficult to measure and even harder to control. Rather than being stuck in a constant loop of talking about change but not seeing any, we need to offer more practical solutions to tackle this perceived double standard that perpetuates the criminal justice system.

I also urge criminal practitioners to come forth and have the necessary discussions about the problems that exists within the criminal justice system and how we can resolve it. We owe a duty to the public as practitioners with specialised knowledge and experience about the field to voice out on issues that the public might not necessarily be aware about.

The purpose of sentencing in general also needs to be thought out and we need to ask ourselves whether retribution or deterrence are the only valid purposes of sentencing, or if there are other purposes that are more beneficial and in line with our modern narrative such as rehabilitation and restorative justice.

Goh Cia Yee is a criminal lawyer.