Criminal — Frequently asked questions

What should I do if I am arrested?

Stay calm and ask to contact a lawyer. Under section 28A of the Criminal Procedure Code you may consult a lawyer, and you should not sign any statement, cautioned or otherwise, that you do not understand or have not had advice on. If possible, let your family know where you are being held so they can arrange help.

How does bail work in a Malaysian criminal case?

Bail is governed mainly by sections 387 and 388 of the Criminal Procedure Code. For bailable offences listed in the First Schedule, bail is a matter of right. For non-bailable offences, the court has discretion and considers the seriousness of the offence, the strength of the case, the risk of absconding or interfering with witnesses, previous record and ties to the community.

Is the death penalty still mandatory for drug trafficking?

No. The Abolition of Mandatory Death Penalty Act 2023 made the death sentence discretionary for drug trafficking under section 39B of the Dangerous Drugs Act 1952. The trial court can now impose either death or life imprisonment with whipping. Act 847 also allows prisoners previously under a mandatory death or life sentence to apply to the Federal Court for re-sentencing.

What is the difference between drug possession and trafficking?

Possession means having control over the drug. Trafficking means dealing with it, such as transporting or supplying it. Quantity is the key trigger: above the thresholds in section 37(da) of the Dangerous Drugs Act 1952, possession alone raises a presumption of trafficking. The accused can rebut it by proving, on the balance of probabilities, that the drugs were not for trafficking.

How do I appeal a criminal conviction?

A Notice of Appeal must be filed within 14 days of the conviction or sentence under section 307(1) of the Criminal Procedure Code, and the deadline is strict. Convictions in the Magistrates' Court and Sessions Court are appealed to the High Court. High Court convictions go to the Court of Appeal, and a further appeal to the Federal Court needs leave on a point of law.

When will a confession or statement be excluded?

A statement obtained by inducement, threat or oppression, or in breach of the safeguards in sections 112 and 113 of the Criminal Procedure Code, will be excluded to protect a fair trial. This is one reason to take legal advice before giving a statement, including in MACC investigations, where statements given without advice can become the foundation of the prosecution case.

Can I refuse a breath test, and will I lose my licence?

Refusing a breath test is itself an offence under section 45 of the Road Transport Act 1987, with similar penalty exposure, so cooperating is generally advised; defence points are argued at trial, not at the roadside. On conviction, disqualification from driving is mandatory under section 45A, with a minimum of two years for a first offence and longer for repeat offences or where death or injury results.

I am Singaporean. Can a Malaysian lawyer represent me in a Johor Bahru court?

Yes, and only Malaysian-qualified advocates and solicitors may appear before Malaysian courts. Your Singapore counsel can liaise with us, but the conduct of your defence in a Malaysian court must be handled by Malaysian counsel. We regularly appear in the Johor Bahru courts.