Bail

DEFINITION

 Traditionally, bail is some form of property which is

deposited or pledged to a court in order to persuade it to release a suspect from custody, on the understanding that the suspect will return for trial or forfeit the bail

 In most cases bail money will be returned at the end of the trial, if all court appearances are made. Whether the suspect is found guilty or not generally has no impact on the return of bail.

 Bail can always be legally denied for an offence which the

governing legislature has determined to be unbailable.  Under the current law of England and Wales, bail simply

 Under current law, an accused has the right to bail unless there is sufficient reason not to grant it.

 Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, pay an amount into court or have someone act as surety.

 Release on bail is sometimes referred to as police bail, where the release was by the police rather than by a court.

 The alternative to being granted bail is being remanded

TYPES OF OFFENCES

NON-BAILABLE BAILABLE

BAILABLE

NON-BAILABLE UNBAILABLE

<3 years

jail/fine only

> 3 years ↗

death

Specific

provisions in

statutes, s 388

Prerogative of

BAILABLE OFFENCES

 an offence shown as bailable in the First Schedule to the CPC or which is made bailable by any other law for the time being in force.[1]

Columm 5 of the First Schedule to the CPC prescribes

the Penal Code offences which are bailable or

otherwise.

For offences against laws other than the Penal Code,

the first schedule provides that any such offence

punishable with imprisonment for less than 3 years

or with fine only shall be bailable.

 Bailable offences are offences where the accused person is entitled to be released on bail as of right.

 Mohd Jalil bin Abdullah v PP[1996]5MLJ564

Although records for the applicants were might be bad, they were entitled to bail as a matter of right as the offence in question was bailable.

Wong Kim Woon v PP

[1999]5 MLJ 114

“the words ‘shall be released on bail’, given their literal and natural meaning, mean that bail must be offered. This has been so held in R Lim Kwan Seng. In Mohd Jalil, Nik

Hashim JC held that bail is mandatory under s 387. I respectfully agree with these views.”

A person who is entitled to bail under s 387 is one who

is:



(a) accused of a non-bailable offence; and



_{(b) arrested or detained without warrant; or}



_{(c) appears or is brought before a court and}



(d) is prepared to give bail.

‘Appears’

 is used in relation to the issue of summons whereas the expression ‘is brought before a court’ is used in relation to the issue of a warrant.

Michael Raymond Taylor v PP

[1989] 3 MLJ 212

Appellant was served with a summons requiring him to attend court to answer charges under the Singapore

Companies Act. On the return date of the summons when he appeared before the Magistrate, the proceedings were adjourned and the appellant was released on bail of



The appellant appealed against the magistrate’s order

requiring him to furnish bail. His main argument was

that the magistrate had no power to make such an

order. He argued that since he had appeared in court

in obedience to the summons, he did not come

within the category of persons set out in s 351 of the

Singapore’s CPC (in pari material with s 387).



He further contended that only after he had failed to

appear in court could the magistrate issue a warrant

for his arrest and endorse on the warrant a direction

requiring the furnishing of bail. The appeal was

dismissed on the ground that ‘appear’ does include

situation of appearing in compliance to a summons

previously served whereas the latter phrase ‘is

brought before a court’ refers to the issue of a

The following cases upheld Michael

Raymond Taylor:

 Madjai Sanusi v PP [2000] 5 CLJ 1

 PP lwn Roseli Abdul Rahman [2009] 8 CLJ 803

Counsel for the accused argued that the bail imposed by the Magistrate ought to be revoked because accused

appeared in answer to 2 traffic offences. The argument was rejected and further, The Magistrate’s action in imposing bail was held to be justified as the accused acted

NON-BAILABLE OFFENCE

 Non-bailable offences are those offences clearly

categorized in the First Schedule to be ‘not bailable’ and also other than those made bailable in the First Schedule or any other written law being in force.

 For offences under the Penal Code the First Schedule provides that where the offence is punishable with death or imprisonment for seven years or upwards, or for three years and upwards but less than seven years, the offence is not bailable.

 The general rule is that where an offence is non-bailable, the presiding judge has a discretion whether or not to grant bail based on certain factors.

Under s 388, there are four types of non-bailable

offences namely:

 a) Non-bailable Offences other than those punishable with death or

life imprisonment;

 b) Offences punishable with death or imprisonment for life where

there are no reasonable grounds for believing that the offender is guilty of the offence;

 c) Offences punishable with death or imprisonment for life where

there appears reasonable grounds for believing that the offender is guilty of the offence;

d) Offences punishable with death or imprisonment for life where there appears reasonable grounds for believing that the offender is guilty

 For categories (a) and (b), discretion is given to the court

to grant bail. In exercising its discretion, the court is to

consider the gravity of the offence and exercise its discretion judiciously.



_{In granting or refusing bail, the courts}

generally take into consideration the

following factors: (Mallal’s Criminal

Procedure Code)

(1) nature and gravity of the offence charged;

(2) nature of the evidence in support of the charge;

(3) whether there was reasonable ground for believing the accused guilty of the offence;

(4) severity and degree of punishment which conviction might entail;

(5) the guarantee that the accused, if released on bail, will not either abscond or obstruct the prosecution in any way;

(6) the danger of the offence being continued or repeated;

(7) the danger of the witnesses being tampered with;

(8) whether the accused, if released on bail, is likely

to tamper with prosecution evidence;

(9) whether the accused is likely to get up false

evidence in support of the defence;

(10)the opportunity of the accused to prepare the

defence;

(11) the character, means and standing of the accused;

(12) the long period of detention of the accused and probability of further period of delay.

Cases on (a)

 In PP v Wee Swee Siang in refusing the accused’s application for bail cited with approval nine of the above 12 factors. These factors are not exhaustive and factors such as age, sex and the state of health of the accused are relevant factors to be considered.

Che Su binti Daud v. PP, [1978] MLJ 162

 It is the net result of all the considerations for and

against the accused which will ultimately decide the matter.



In Dato’ Seri Anwar Ibrahim v PP the High Court judge

in refusing bail and referring to Wee Swee Siang said

that ‘any allegation that the accused is tampering or

attempting to tamper with evidence would be a

cogent ground for refusing bail.’



_{On appeal, it was further held that mere allegation of}

tampering by the prosecution is insufficient; some

material on record is required to give indication of

In passing, Lordship Lamin stated:

“Tremendous noise caused by shouts is heard every

day of the trial, particularly at the time when the

court adjourns for the day and the appellant is

making his exit from this building. This has become

public knowledge. I consider such noise to constitute

a breach of the peace. I can well imagine the kind of

situation that can prevail if the appellant is free to

move about when the trial is not in session; the

but to deploy extra manpower more than what you can see around the court building since the commencement of the trial, of course at the expense of the public fund in order to maintain peace and order. To my mind, this sort of situation must be treated as another factor to be considered by any court as a ground for refusing bail.”

Cases on (c):

 In Regina v Ooi Ah Kow [1952] MLJ 95 Spenser-Wilkinson J held that the learned magistrate had no power to release the accused on bail as there were reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life.



The phrase ‘offence punishable with death or life

imprisonment’ must be given a disjunctive

interpretation. In Re KS Menon

the court observed that ‘to read as if it referred only to offences punishable with the alternatives of death or penal servitude for life, would lead to absurd conclusion that a man charged with an offence punishable with death only will be in a better position as regards obtaining bail than if he were charged with an offence punishable with death or penal servitude for life.’

However, a point to note that although this provision is mandatory, the court has no discretion to grant bail in

cases where there are reasonable grounds to believe that the accused of such crime. If there are no reasonable

In any case, the court has to bear in mind the proviso.

In practice however, the courts have been reluctant to grant bail to these group of persons and instead were seem

PP v Latchemy



Respondent a woman charged with murder and

punishable only with death.



Magistrate granted bail and PP appealed.



Appellate judge acknowledged the discretion but

stressed that it should be exercised sparingly and

judiciously depending on the reasons of each

 The criterion which the Magistrate should allow bail is only those cases where he is convinced that the reasons put forward by the applicant are said to be exceptional and very special reasons.

In the present case, the grounds upon which the Magistrate relied upon were:

 Accused is a mother of ten children and,

 The appellate judge held that those reasons fall short of being exceptional and very special reasons and therefore should have been refused by the Magistrate.

Che Su binti Daud v PP

 A woman was accused jointly with her husband and

brother for trafficking in dangerous drugs punishable with the alternatives of death or life imprisonment under the then s39B DDA.



Accused had only 6 children and youngest of whom

was still breast-feeding.



Judge held that the fact that she was jointly charged

and that the offence of drug-trafficking appeared to

be less serious than murder seemed to

distinguishable from Latchemy’s case and therefore

entitled Che Su to bail.

 Respectfully, the decision had been erroneously decided on the aforestated reasons and also the fact that s41B which makes it mandatory for refusal of bail for anyone charged with committing offence under s39B.

Leow Nyiok Chin v PP [1999]

1MLJ437

 58 year-old woman charged with murder of her husband.  Again, although judge rightly held that the applicant

comes squarely within the purview of the proviso to s 388, bail was denied as the grounds relied upon did not constitute exceptional and special reasons.

 In this case, the defence counsel attempted to rely on the facts that further detention can drive her to permanent insanity unless she receives the medical treatment and family support. Court weighed this in comparison with the gravity of the offence committed and decided in favour of the latter.

 In contrast to the inability of the prosecution to show

reasonable grounds, learned counsel submits that even at this stage of the proceedings, there are reasons to believe that the accused may never be convicted of the offence charged.



Such reasons are afforded first, by the cautioned

statement made by the accused to the effect that she

had no inclination of what happened on the night of

the incident, and second, by a medical report on the

state of mind of the accused, issued by Hospital

Bahagia on 30 October 1998 which negates any

grounds, if they exist, for believing the accused is



The accused is therefore clearly eligible to bail under

the main provisions of

s. 388(i) CPC

without even

having to rely upon the proviso thereto which

specifically states that the Court may grant bail to any

person who is under 16 years or a woman, or is ill or

infirm. Learned counsel has also set out suggested

conditions upon which bail should be granted.

Grounds relied on by defence counsel:

(a) accused is a woman and so eligible for

bail under the proviso to

s. 388(i) CPC;

(b) accused has been a law abiding person

with no previous record or trouble with

the law;

(d) due to her medical condition she needs psychiatric

and/or medical attention failing which she could

become permanently ill;

(e) she is unlikely to reoffend and is no threat to

society;

(f) she is incapable of intimidating any prosecution

witness or interfering with prosecution evidence;

(g) she requires the constant care and emotional

support of her family to help her recovery, failing

which she will become permanently insane;

(h) the character and standing of the accused should be

considered;

(i) she needs to consult her solicitors to prepare her

defence and to remain emotionally stable and needs

DPP opposed on 2 main grounds:

(a) murder is an offence punishable with death and under s. 388(i) CPC, the court shall not grant bail in non-bailable offences punishable by death where it appears there are reasonable grounds for believing the accused is guilty of such offence. This is such a case.

(b) even if the proviso to s. 388(i) CPC applies, no special and exceptional grounds have been shown why the accused should be granted bail.

Ground (a):

In support of the above, the learned DPP points out

that at this stage of the proceedings, there is no

requirement for the prosecution to produce evidence

to prove the guilt of the accused beyond reasonable

doubt. All the prosecution needs to show is that

there appears (bold mine) reasonable grounds to

believe the accused is guilty of murder.



Such requirement is sufficiently established by the

facts revealed in the charge preferred against the

accused and from the consent of the Public

Prosecutor to the institution of these proceedings. It

can be gathered from these documents that prima

facie, there appears reasonable grounds for believing

Ground (b):

 It is the learned DPP's submission that the matters stated in the medical report do not afford special and exceptional

grounds. It is not any sickness that would entitle an accused person to bail. The sickness must involve a risk to life.

 In support the learned DPP refers to Sohoni's The Code of

Criminal Procedure 1973, 2nd Edn. p. 4554. The learned DPP

points out that it is stated in the medical report that the

Judge held:



that the accused's application for bail falls for

consideration under the proviso to

s. 388(i) CPC.

Therefore, whether or not the accused is to be

granted bail will depend on whether this is a proper

case for the court to exercise its discretion in favour

of the accused.

DPP, cited Sohoni, on matters for consideration in

granting/refusing bail

(1) whether there is or is not reasonable ground

for believing the accused is guilty of the

offence;

(2) the nature and gravity of the offence;

(3) severity and degree of the punishment

prescribed

;

(5) the character, means and standing of

the accused;

(6) the danger of the offence being

repeated or continued;

(7) the danger of witnesses being

tampered with;

(9) the long period of detention and

probability of a delay for a further period;

(10) the larger interest of the public.

Matters not in controversy:

The accused is 58 years old, has a previous

good record and is of good standing in

society. There is no suggestion that if

granted bail the accused will tamper with

evidence or intimidate prosecution

The state of health of the accused.

Learned counsel has tendered in court a medical report

from Hospital Bahagia, dated 30 October 1998 and

put forward three grounds based on medical reasons

in support of bail, namely, (i) due to her medical

condition (she is still on medication) the accused

needs to obtain psychiatric and/or medical

observation which will be made easier if she is on

bail;

(ii) accused needs help of the kind that will cure

her mental disease and arrest it before it

progresses further into something permanent

and (iii) accused requires constant care and

emotional support to speed up her recovery,

and this can be provided by her family, failing

which, accused would be driven to insanity



To prepare for her defence, the accused needs

to be in a place which provides mental,

physical and emotional stability. These

constitute grounds

(d), (g)

and

(i)

of her

application.

Judge found no merit in the submission on

medical grounds!



..”From what was stated above, I cannot find in

the medical report material to suggest, as

learned counsel has, that the accused is in

danger of being driven to permanent insanity

unless she receives the emotional support and

care that the family will provide.

...There is also nothing in the report to suggest that the treatment which the accused needs cannot be obtained while in detention or that she will be deprived of such

treatment or attention while in custody. The report states that the accused is now under treatment….

…With regard to the submission that the psychiatric and/or

medical observation which the accused needs will be made easier if she is on bail, I cannot regard convenience as a

matter the court will give any weight to in an application for bail. I do take into account the recommendation in the report

that the accused be placed in an environment to provide her mental, physical and emotional stability but in considering whether to give effect to such recommendation I must bear in mind the nature of the illness afflicting the accused.

…. The report states that the accused suffers from major

depression with psychotic features, symptoms of which include hallucinations, delusions and suicidal tendencies.

On a weighing of these factors, the larger public interest outweighs that of the accused's and militates against the grant of bail.

…For the same reason I entertain doubts on the submission that

the accused is unlikely to reoffend and is in no way a threat to society (ground (e)). Similarly, whilst it is submitted that it is unlikely that the accused will jump bail (ground (c)), the report points to the suicidal tendency brought about by her illness which I feel I cannot ignore since it is of immediate relevance when considering whether the accused will appear for her trial if allowed bail. The revelation of such a tendency, when taken into account leans against the grant of bail.

 In addition to the above considerations, I also take into account the gravity of the offence with which the accused is charged - that of murder, the seriousness of which is

As pointed out in the case of PP v. Latchemy [1967] 2 MLJ 79, in cases where the offence is punishable with death, the court's

discretion should be exercised sparingly and judiciously and

bail should only be granted where the reasons put forward for

its grant are said to be exceptional and very special reasons.

For the reasons already given, I have not found the medical condition of the accused as affording her any exceptional or special reasons for bail. Neither do any of the other grounds relied upon by the accused.

LEOW NYOK CHIN (NO 2) V. PP

 Appeal to the High Court on refusal on Magistrate to exercise discretion to consider bail during the stages of her confinement.

(a) pending the arrival of the consent of the Deputy Public Prosecutor; and/ or

(b) pending the transmission of the case to the High Court; and/or

(c) pending further investigation under s. 388(ii) CPC; and/or (d) pending the trial, if any, before any such court;

(e) alternatively, the accused be remanded at the security ward of the Hospital Bahagia, Tanjung Rambutan, Perak Darul



The issues became irrelevant as the same judge had

considered the propriety of granting bail in the earlier

case (No 1) – which was refused.



Judge had 2 options – either to remit case back to

Magistrate (irrelevant as case remitted to High Court)

and if not possible, hear application for bail himself

which he did.

 But Judge stressed that a magistrate's court does have power to consider granting bail to those persons

mentioned in the proviso to s. 388(i) CPC notwithstanding that the offence they are charged with carries the death sentence or life imprisonment.

 Whether or not bail is actually granted is a matter which a magistrate must decide on the merits disclosed in each particular case and in accordance with settled legal

principles upon which a judicial discretion is exercised (PP

Balwant Singh v PP

 The accused, an advocate and solicitor, was charged with the offence of murder for allegedly shooting one, Gobalakrishnan, resulting in death at Jalan Maaruf, Bangsar in Brickfields. He claimed trial and his lawyer then applied for bail in pursuant to s 388 of the CPC. The main premise upon which the

application was made is the proviso to s 388, under the terms ‘sick or infirm’ and supported with extensive medical evidence of the accused’s condition.

 The defence contended that the medical condition of the accused brings the case within the proviso to s. 388(1), particularly upon quoting Saikia J in Khagendra Nath

Bayan and Anor v State of Assam[1]: [1] [1982] Cri LJ 2109 at 2112.

“The proviso to Section 437(1) (our section 388(1)) speaks of ‘any sick or infirm person.’ ‘Infirm’ according to the Concise Oxford Dictionary means ‘physically weak, specially through age’.

According to Webster’s New Twentieth Century Dictionary, ‘infirm’ means weak, not strong; not firm or sound physically; feeble. Infirmity is naturally concomitant with old age. When the learned Magistrate used the expression ‘too old’ it could not, therefore, be said that the case did not fall under the

Defence counsel tendered extensive medical report made by GP, who had been taking care of applicant since 1967

The report enumerates the serious diseases and ailments that the accused is afflicted with, among others, serious heart ailments with a history of two by-pass operations coupled with hypertension and diabetes, thus making him easily susceptible to heart attack. He also has diabetic neuropathy resulting in reduced sensation in his feet and an inability to feel normal pain in the feet, a condition which is unsafe as it may lead to ulcers in the feet which may in turn result in gangrene and amputation. Additionally he has developed pyelonephritis which can progress to severe kidney failure.

In short, the medical report reveals that the accused

is a fragile person with various medical ailments

This is also a necessary inquiry to be made to facilitate

the exercise of the discretion in the granting of bail.

The determination of the existence of reasonable

grounds can be done with ease if the deposition

recorded at a preliminary inquiry, as in the past, is

before the court. In the absence of such a record

judge considered it necessary to first determine the

nature of material that must be made available to the

Che Su Bt Daud v PP[1978]2 MLJ 162:

“But apart from stating that the fact that the

accused/applicant has been charged showing that

there was sufficient evidence against her, the learned

Deputy Public Prosecutor was reluctant or unable to

inform the court of the nature of the evidence in

support of the charge and considered that it was not

right for the prosecution to disclose any evidence to

the court at that stage…..

Che Su Bt Daud v PP[1978]2 MLJ 162:

“I realised that at an early stage it was not possible

to have evidence from the prosecution to establish

the guilt of the accused beyond reasonable doubt.

(See Keshu Vasudeo Kortikar v. EmperorAIR [1933]

Bom 492). But since an application for bail had

been made at an early stage the prosecution

should satisfy the court that it would be able to

produce good prima facieevidence in support of

Govinda Pillai J in State v Velappan

Kochunny[1952]Cri LJ 1087

When an application for bail is made in the initial stage of the case, the Magistrate may expect the prosecution to satisfy him that there is a genuine case, and that it will be able to produce

'prima facie'evidence in support of the charge, but he cannot

expect at that stage to have evidence establishing the guilt of the accused beyond reasonable doubt vide Keshav Vasudeo v

EmperorAIR [1933] Bom 492. As pointed out in Emperor v.

Muhammad Panah36 Cri LJ 811 (Sind) the section speaks only

 Thus the court is not required to go into the details of the evidence at this stage (see Fazal Nawaz Jung and Anor v.

State of HyderabadAIR [1952] Hyd 30). The court must

therefore decide the existence of the reasonable grounds on the materials before it and not what may be unfolded later.

Accordingly, the judge said….



“I advised the prosecution that something in the

nature of an opening address may suffice. This must,

of course, refer to the evidence to be adduced in

support of the assertions made in the statement. This

will be sufficient for the court to ascertain whether

the prosecution will be able to produce prima facie

evidence in support of the charge. ….

…As the section speaks only of the existence of reasonable

grounds and not evidence there is no requirement to analyse the evidence that is to be tendered. The court

must apply its mind to the materials made available. This process will preclude a detailed examination of the

Judge went on…

“There can be no dispute that the charge faced by the

accused is a very grave one. This, however, must be

balanced against the failure by the prosecution to

show that there are reasonable grounds for believing

that the accused committed the offence that he has

been charged with. This is the result of the press

statement by the police to the effect that the act of

the accused is justified. This favours the grant of bail “

It has also been held that where an accused could properly raise the plea of self-defence to a charge of murder it is a factor to be considered in granting him bail (see R v. Stewart[1946] 3 WWR 160). The gravity of the charge therefore does not weigh heavily against the accused. No argument was advanced by the prosecution to at least indicate that the accused would abscond or tamper with witnesses if released on bail. As I

This is because the very object of granting bail is to

ensure that the accused will attend at the trial and

that, while on bail, he will not interfere with the

administration of justice by tampering with witnesses.

While the prosecution did not address these issues

the defence ensured that such infractions will not

occur. I find no reason to disagree as even the police

did not consider it necessary to arrest the accused

The standing of the accused and his age also militate

against the prospect of him absconding. I was therefore unable to hold that the accused would abscond or tamper with witnesses if released on bail. The medical report

tendered by the defence shows that the accused who is aged 81 is in very poor health and needs to be monitored regularly.

Though medical facilities are available in the prison it

may be preferable for the accused to be in a place

where he can have access to immediate medical

treatment. It cannot be said that the accused would

repeat the offence if released on bail. The social

status of a person, as in the case of the accused, also

assumes relevance along with the other

It may not be in the public interest to grant bail to a

person facing a murder charge. However, where the

other factors favour an accused the requirements of

public interest can be satisfied by imposing suitable

conditions in granting bail. It is settled law that a

court may impose conditions in granting bail (see

PP

v. Dato' Mat

[1991] 2 MLJ 186,

PP v. Abdul Rahim bin

Hj Ahmad & Ors

[1988] 3 MLJ 272).

The exceptional circumstances of this case compelled me to conclude that the accused ought to be enlarged on bail subject to the imposition of certain conditions. I pause to add that the granting of bail in an offence of murder is not unprecedented. (quoted Indian and Australian cases)

It was thus ordered that the accused be enlarged on bail in the sum of RM500,000 with two sureties with security to be furnished, subject to acceptance of the following

conditions:

(i) The accused is to surrender his firearm and the

licence relating thereto to the police immediately

;

(ii) All passports to be surrendered to the court;

(iii) The accused is to report to the police once in two

weeks;

(iv) The accused is to remain indoors from the hours of

6pm to 8am;

(v) The accused is not to be present at any open public

place or attend any public functions save for religious

and family activities;

(vi) The accused is not to leave Kuala Lumpur and Petaling Jaya without leave of court;

(vii) The accused is to cease his legal practice within a period of one week from 8 August 2002.

14-year-old boy case:



This is the case of boy, alleged to have stabbed an

11-year-old girl and consequently causing her death.

Initially, the boy was denied bail and for the first four

months of his arrest he was detained at Kajang

Prison, albeit with psychiatric sessions been carried

out and adequately isolated from the adult offenders.



Ideally, due to his age he should be dealt with under

the procedures laid down by the Child Act 2001 but

because the offence is one punishable with death, it

was remitted to the High Court. Fortunately for him

the case of Dato’ Balwant Singh took place and using

that as a precedent, his lawyer argued that the boy

too falls within the proviso so ought to be granted

bail to which they subsequently succeeded.

QUESTIONS :(raised in Kwan Hung Cheong v

Inspektor Yusof Hj Othman & Ors

[2009] 3 CLJ 496

(1) Is it lawful for the police to issue a police bail bond against the suspect who has been released by an order of the court

AFTER remand under section 117 of the CPC?

(2) Is it lawful for the police bail bond to impose a condition that the suspect has to appear and report to the Police at a police station on a fixed date and which condition is then extended for an indefinite period for so long as the case against the suspect is still under police investigations?

Question 1: issuance of police bail

bond AFTER release under s117

No therefore UNLAWFUL:

S28 or s 29 cannot be read on its own – giving the power to release suspect with condition

S388 : not applicable as records show that he (PO) applied for the release of the accused and Mr Lai on the police bail pending completion of police investigation

Question 2: lawfulness of the police bail bond to impose

a condition that the suspect has to appear and report to

the Police

No therefore UNLAWFUL:

The requisite form that the plaintiffs had to sign provided that they undertook to appear BEFORE THE MAGISTRATE:S COURT and not at the police station therefore it is contrary to such order.

Amount of Bail – s 389

“The amount of every bond executed under this

Chapter shall be fixed with due regard to the

circumstances of the case as being sufficient to

secure the attendance of the person arrested, but

shall not be excessive: and a Judge may, in any case,

whether there be an appeal on conviction or not,

direct that any person admitted to bail or that the

bail required by a police officer or Court be reduced

 The section permits only the High Court judge to direct bail to be reduced or increased whether there be any appeal on conviction or not (in India, the High Court or the Court of Session may direct that the bail required by a police officer or a magistrate be reduced)

Sufficiency of bail

“The amount of bail should not be excessive but be reasonable in

the circumstances of the case as being sufficient to secure the attendance of the person arrested or charged with an offence. An excessive bail bond may defeat the granting of bail as the accused may find difficulty in getting a bailor acceptable to the court. The reason arises from the principle & the basis of our criminal law that the accused is presumed to be innocent until proven guilty.” Re Manickam & Ors



An excessive bail has the effect of punishing the

accused even before he is found guilty



_{In fixing the amount of bail the court has to consider}

circumstances of each particular case , for eg.,

co-operation with police or accused had benefitted from

the fruits of his crime

Low Chit Bah v PP

[1986] 1 MLJ 297

 Singapore High Court refused to reduce a bail of $1

million in two sureties since there was every likelihood that the applicant would abscond from Singapore to evade trial if bail was reduced

Various factors to consider in setting the quantum of

bail

(Vincent J in Soo Shiok Liong v Pendakwa Raya [1993]2MLJ381): 1.

Nature & gravity of offence & severity & degree of

punishment which conviction might entail;

2.

Quantum should be higher in non-bailable

offences;

3.

An excessive quantum may defeat the grating of

bai;

5.

whether there is a likelihood of the applicant

absconding if the quantum set too low;

6.

Bail is not intended to be punitive but only to

secure attendance so amount to be fixed with due

regard to circumstances;

7.

His surrender of his international passport should

go to reduce the quantum of bail;

8.

The fact that accused had presented himself at the

police station & had co-operated with the police

should also go to abate the quantum;

9.

Quantum should not be set so prohibitively high as

to have the effect of incarcerating the accused

before he is convicted;

Bond to be executed – s 390

(1)Before any person is released on bail, or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail by one or more sufficient sureties, conditioned that such person shall attend at the time & place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

(2) If the case so requires the bond shall also bind the person

released on bail to appear when called upon at the High Court or other court to answer the charge.

 Section 390 lays down the nature and contents of the bail bonds to be executed by the accused and sureties, before a person is released on bail.



In practice, defence counsel would alert a close

relative with some means to stand by as his

surety/bailor.



Sureties are to deposit some security, be it in a form

of a fixed deposit receipt, savings passbook or even

land title together with valuation report, of value

equivalent to the bail sum in addition to the

Can cash bail be imposed?

 No by reading s 403 and 390 together.

 When a person is required to to execute a bond with or without sureties, the person may be permitted to deposit money – in lieu of executing a bond. Both sections read

together does not permit cash bail to be imposed. (Lau

Person to be released – s 391



S 391(1) provides that upon the execution of the bail

bond, the person for whose appearance it has been

executed shall be released



When the court orders the release of an accused

under this section, it has no right or power to put any

restrictions on his movements, since the intention is

that the surety should have the control over the

When warrant of arrest may be issued – s 392

 Applies to cases where there are insufficient sureties due to mistake, fraud or otherwise.

 The section only allows the court to increase the amount of bail where after further inquiry, the case turns out to be a more serious one than earlier imagined.

Conditional Bail

 No express provision in CPC providing for conditions to be included in any bail.

 The court may, however, impose reasonable conditions in addition to stating the amount of bail.

Zulkiflee Hj Hassan v PP

[1987]2MLJ527

 High Court reduced the initial sum from RM1million in 2 sureties to RM200,000 in 2 sureties together with the impounding of both his international & restricted

passports.

Lim Kiap Khee v PP[1988]1MLJ198

 High Court held that Sessions Court had no power to impound the accused’s passport as the order was not made as one of the conditions of bail.

Fine distinction was drawn between:

 Impounding of passport (which is not permitted)

 Requiring the accused to surrender his passport as one of the conditions for being admitted to bail  permitted

PP v Dato’ Mat

[1991]2MLJ186

 In discerning the power of the Court in granting or

refusing bail under s 388, the High Court relied on Indian authorities which seem to favour the view that when

such discretion is given, that discretion in itself implies a discretion to grant bail subject to certain conditions.

 Supreme Court recognised the fact that a condition in the bail bond is merely a complimentary security which

reduces a large amount of bail which the court would otherwise require.

“…The practice to do so had gained judicial recognition in the

courts in both India M’sia on the rationale that such condition would provide an adjunctive or supplemental security towards ensuring the attendance of the arrested person at his

subsequent trial. No person can be admitted to bail under s 388 or 389 purely on his undertaking to abide by some

conditions alone without binding himself to forfeit a certain sum in the event of his default, but a person may be released on bail without any condition attached to it…

Such condition..is not the principal but only a

complementary security to be applied concomitantly with the amount prescribed in the bail bond. Such condition in the bail bond would have a persuasive effect of reducing a larger amount of bail which would have been otherwise required by the court.

To put it another way- a court may require a certain large amount to be deposited in respect of a non-bailable

offence but would be willing to reduce it to a lesser sum on the undertaking of the detained person to surrender his passport.”

Discharge of Surety – s 393

 Situation may change and surety(s) may not wish to continue as acting as one

 Section 393 provides:”….may at any time apply to a

Magistrate to discharge the bond either wholly or in part or so far as relates to the applicants.”

Valliamai v PP[1962]MLJ280



Mother-in-law stood surety to son-in-law



Subsequently decided to discharge & came to court &

met the registrar for the purpose of being relieved

from the bond.



Registrar advised to apply when case came up for

hearing on Dec 20 1961. She was present but case

postponed to the next day. On that day proceedings

were concluded with the despatch that she was

 Subsequently accused absconded and the learned

President, dissatisfied with explanation given, ordered the full sum of RM2000 to be forfeited.

On appeal (Ong J):



There was an oversight by both President & registrar

of s 393(i) of the CPC.



Registrar is ex-officio a gazetted 2

nd

_{Class Magistrate}



Appellant had appeared twice – 18/19 and again 20

th

Dec – her application could have been attended to

then and there by the President and if not there, by

the Registrar.



Accordingly, in allowing for such oversight, registrar

should then have taken time to make a note of the

application & left it on top of the file so that the

President would take notice when the case came up

on 20 and 21 Dec.



Sufficient cause been shown, order of forfeiture was

set aside and the sum forfeited to be returned.

Application and/or appeal against bail

decisions or successive applications

 s 394 confers right to

appeal to the High Court for any person aggrieved by any order or refusal by any inferior court

 s 389 allows such person to proceed instead by way of an application to the High Court via notice of motion supported by an affidavit.

Contrast between these 2 was commented (Sulaiman bin Kadir v

PP[1976]2MLJ37)



Appeal requires notice to be made to the subordinate

court who can then state its reasons for refusal

before petition of appeal can be filed and eventually

heard.



_{Application by notice of motion supported by}

affidavit can be made immediately upon refusal

Which is preferable & proper?

 Obviously s 389 for the following reasons:

1. Person should not be kept longer in custody than necessary.

2. Absolute discretionary power to High court to vary bail from time of arrest up to conviction:

 It may grant when bail is refused;  May reduce if amount is excessive;  May increase if insufficient;

Section 394 intended to deal with……

 Matters not provided for under s 389, for e,g., if a person has been admitted to bail contrary to section 388(i) of the CPC

Re-application for bail?



Possible, to the same court that rejected the bail and

if there is a change in circumstances, bail may be

granted.

PP v Abdul Rahim bin Hj Ahmad [1988]3 MLJ 272

Where there is no material change in circumstances, subsequent application(s) may be unsuccessful.

Michael Lee v PP [1999]1MLJ171- 2 applications rejected by Sessions Court, 3rd _{also unsuccessful before the HC. At 4}th _{application, judge conceded that}