Bail

Bail
 A bailment of the accused to his sureties, upon their giving sufficient security
for his appearance in court when required to do so
Bond
 An instrument binding the person who executes it. It binds the person to be of
good behavior or to appear in court for a particular date

S.2 – Bailable offences means an offence shown as bailable in the 1 st schedule or

which is made bailable by any other law for the time being in force and ‘non-bailable
offence’ means any other offence

R v Rose, Moh Ting King v PP

 Bail is not punitive in nature and should not be withheld as a punishment as
the requirements of bail is merely to secure attendance of the prisoner at the
trial
Mohamed v PP
 Bail means security taken from a person to appear on a fixed date before a
court
 It is commonly understood to set free a person who is under arrest, detention
or under some kind of restraint by taking security for his appearance

Types of bail for different offences

 Bailable offences – S.387 (Bail as of right)
 Non-bailable offences – S.388 (Discretion of court)
 Unbailable offences – S.41B DDA, S.12 FIPA (Court no discretion)

Loy Chin Hei v PP

 The term ‘not bailable’ in 1st schedule means non-bailable
PP v Chew Siew Luan
  If a specific provision in any written law provides for bail then it supersedes
CPC
Bailable Offences - S.387

Mohd Jalil bin Abdullah & Anor v PP

 If the offence is bailable and the accused is prepared to furnish bail the police
officer or court must grant bail
 ‘Shall be released on bail’ in S.387 is mandatory
Michael Raymond Taylor v PP
 Appellant summoned and appeared in court for bailable offence
 Bail granted
 Prosecution objected since appellant not an accused so he was not arrested or
detained
 Held: When appellant appeared before the court he was entitled to be
granted bail under S.387
PP v Dato’ Mat
 No specific provision on whether can impose conditions or not
 Referring to Indian CPC, for non-bailable offences court can impose conditions
since got discretion
 No discretion for bailable offences so cannot impose conditions
Maja Anak Kus v PP
 Accused charged under bailable offence
 Brought before Magistrate and remand order granted
 Accused applied for bail but refused
 High Court held S.117 supersedes S.387
 Thus not entitled for bail when under remand

Revocation Of Bail
 CPC is silent on court’s power on revocation of bail for bailable offences
 S.388(5) gives court power to revoke bail on non-bailable offences

Mohd Jalil bin Abdullah & Anor v PP

  Upon revocation of bail, the learned Magistrate should have granted a new
bail with sufficient sureties
 Only if they fail to execute it then the court can commit them to custody
(remand)
PP v Wong Kim Woon v PP
 When a fundamental bail term has been breached he court may revoke bail
provided that the accused is first given opportunity to be heard as to why the
bail should not be revoked
 Even though bail is of right under S.387 it could not been the intention of the
Parliament that every breach of mandatory term under this section should be
given a new bail

Non-Bailable Offences – S.388

S.388 provides 3 types of non-bailable offences
1. There are no reasonable grounds to believe that the accused is guilty of the
offence but got sufficient grounds for further inquiry. Can be released on bail
2. Got reasonable grounds to believe that accused is guilty. Accused ‘shall not be
released’
3. Accused is under 16 years old or any woman or any sick or infirm people.
Court may give bail even though got grounds to believe that the accused is
guilty

PP v Dato’ Balwant Singh

 Accused charged for murder
 Applied for bail as accused was 80 years old and got medical evidence to show
ill health
 Bail granted
 Surrendered firearms, license and passport
 Self-defence is a factor to be considered in granting bail
Dato’ Mat Shah v Pendakwa Raya
 High Court has unfettered discretion to grant bail in all non-bailable offences
Inspector Yusof Haji Othman v Kwan Hung Cheong
  It is lawful for the police to issue a police bail under S.388(1) against the
accused who has been released after remand for that person to appear and
report at the police station on a fixed date
 The condition can be extended as long as the person is still under investigation
PP v Dato’ Mat
 Conditions can be imposed on non-bailable offences like surrendering
passport

Factors to consider under Type 1 of S.388

PP v Wee Swee Siang
 Factors to consider before granting bail:
o Nature and gravity of offence
o Danger of accused absconding
o Accused’s character, means and standing
o Severity and degree of punishment that might follow
o Danger of witnesses being tampered
o Opportunity for accused to prepare for his defence
o Danger of offence being continued or repeated
PP v DSAI
 Bail on medical grounds should not be granted unless it is satisfied that the
illness is such as would not be properly treated while the accused is under
detention
Manickam & Ors v PP
 Bail should not be refused lightly as the presumption of innocence leans in the
favour of the accused

Type 2 & 3 of S.388

PP v Latchemy
 Female accused of murder and released on bail on ground that she was a
mother of 10 children and was breastfeeding
 High Court revoke the bail as the reason did not amount to exceptional and
special reasons
Leow Nyuk Chin v PP
  Female accused of murder
 Medical report showed the psychiatric and medical condition in which she will
need a place that provides mental, physical and emotional stability
 High Court held not amounting to exceptional and special circumstances
Shanmugam v PP
 Charged with rape
 The reason that the accused and the complainant were in love and intended
to get married did not amount to exceptional and special reasons

Amount Of Bond
Manickam & Ors v PP
 Excessive bail bond may defeat the granting of bail as the accused may not be
able to furnish bail
Zulkiflee bin Hj Hassan v PP
 Criminal breach of trust
 Bail 1M
 After that reduced to RM200k as bail under S.389 should not be punitive
Soo Shiok Liong v PP
 Factors to be considered in setting the amount of bail:
o Nature and severity of the offence and punishment
o Quantum should be high for non-bailable offences
o Excessive quantum may defeat the purpose of bail
o Accused is presumed innocent until proven guilty
o Likelihood of applicant absconding if bail is set too low
o Surrendering of passport should reduce the quantum of bail
o If the applicant co-operated with the police then quantum should be
reduced

Revocation Of Bail Granted Under S.388

S.388(5) – Allows the court to revoke any bail granted for non-bailable offences by
causing any person who has been so released to be arrested and may commit him to
custody
Phang Yong Fook v PP
  Criminal breach of trust
 Bail granted but subsequently revoked on grounds that accused was harassing
and tampering with witnesses
 By referring to Indian authorities mere statement of tampering is not enough
 Must be supported by evidence, oral or documentary or affidavit to support
the revocation of bail

Unbailable Offences
 S.12 FAIP
 S.41B DDA

Ho Huan Chong & Ors v PP

 Charged with possession of 7.4 grammes of heroin which is punishable with
imprisonment not more than 14 years but not less than 3 years
 High Court held it was wrong for the prosecution to state the gross weight as
it had not been determined by the chemist
 If less than 5 grammes then it would only be unbailable if the PP certified it
under S.41B(1)(c)
Loy Chin Hei v PP
 CPC provisions must give primacy to the mandatory language in S.41B which is
unbailable
PP v Chew Siew Luan
 Woman charged with drug trafficking which was unbailable
 Issue was whether she can invoke proviso in S.388
 FC held DDA supersedes CPC hence it is unbailable
 General law must give away to specific law
Yap Sooi Kim v PP
 Accused charged for possession of drugs punishable for not less than 5 years
imprisonment
 Counsel argued that he may be sentenced for 5 years so not within S.41B
 High Court disagreed and held that what is important is what the court could
impose which are the powers of punishment
2019 High Court case Judge Mohd Nazlan Ghazali (LTTE)–
 SOSMA provision (Section 13) that barred the courts from considering bail to
be unconstitutional, as it effectively allowed the executive to usurp the
powers of judiciary this violating the separation of powers among the
different branches of the government
 Accused will be allowed to apply for bail despite the provisions

Bail Pending Appeal Against Conviction

Section 89 CJA
 FC may order bail pending appeal against conviction
Section 57 CJA
 COA may order bail pending appeal against conviction
Section 311 CPC
 Appeal does not operate as an automatic stay of execution except for
sentence of whipping
 Trial court, subordinate court and High Court may grant bail pending appeal
against conviction
Section 315
 Only High Court may grant bail pending appeal against acquittal

R v Tan Tee
 Court should allow bail to accused who was appealing against conviction
unless there were good reasons for not doing so
Re Kwan Wah Yip
 Bail should not be granted unless there are special reasons
 Factors to consider:
o Gravity of offence
o Length of term of imprisonment and length of time for the appeal to be
heard
o Whether difficult point of laws are involved
o Whether the accused is a first offender
 o Possibility of the accused being involved again in similar offence whilst
being released
o Whether the security imposed will ensure attendance of the accused
Ganesan v PP
 Granting of bail is at the discretion of the subordinate court which has to
consider the factors set out in Kwan Wah Yip

Iah Sin Seng v PP

 Non-bailable offence
 Applicant applied for bail pending appeal
 Applicant had a clean record being a first offender and was released on bail
DSAI v PP (and Another Appeal)
 Guidelines in exercising the discretion when considering an application for bail
pending appeal:
o Presumption of innocence no longer a factor
o Factors differs from pre-conviction application for bail
o Attendance in court is only minor consideration
o Time lapse before the appeal can be determined in relation to the
length of sentence imposed
o Crucial for applicant to show the presence of exceptional circumstances
which will drive the court to conclude that justice can only be done if
bail is granted
o Public confidence in the administration of justice requires that
judgment should be enforced, hence a person convicted of a serious
offence, particularly repeated offender should be denied bail
PP v Tan Choon Ein
 Learned counsel advanced health problems of the accused’s father but no
medical report was tendered to support the statement
 Trial judge who granted bail had erred in granting bail on the solitary
humanitarian ground of the accused’s father being critically ill as personal
problem does not constitute special circumstances to justify stay
 What the trial magistrate ought to have done is to consider the seriousness of
the offence and that the accused is a habitual criminal
Whether sentences are stayed on appeal
Sin Yong Chang v PP
 Accused was fined and he appealed to High Court for stay of execution for the
payment
 High Court held that where the sentence is only fine it must be paid
 If it is paid then the accused may be called upon to furnish bail pending his
appeal against conviction

Ganesan v PP
 Accused appealed to High Court for a stay of execution of a prison sentence
pending hearing of his appeal
 Application granted
Ment & Ors v PP
 High Court held that in S.311 the sentence of whipping shall be stayed
automatically whenever there is an appeal pending
 For other sentences, the subordinate court or the High Court has discretion to
stay execution pending appeal

Bail Pending Appeal Against Acquittal

Section 56A CJA
 COA may grant bail pending appeal against acquittal
Section 88 CJA
 FC may grant bail pending appeal against acquittal
Section 315 CPC
 If prosecution files an appeal against acquittal then the appellate High Court
may issue warrant of arrest
*Once accused arrested and brought before the appellant court, the court will decide
whether to grant bail or not
Ment & Ors v PP
 Factors to be considered for grant of bail when there is an appeal against
acquittal under S.315:
 o Grant of bail is basic rule and committal to prison without bail is an
exception
o The discretion in favour of prosecution is exercised sparingly and only if
there are special circumstances
o Quantum of bail should be realistic
o Mere fact that prosecution has submitted an appeal to the High Court
does not itself constitute special circumstances

Appeals Against Bail Decisions

 Can be made by both the accused or the prosecution
Section 394
 Any person aggrieved by any order or refusal of any inferior court may appeal
to the High Court
 High Court may confirm, vary or reverse the order
 Applicant must file the notice of appeal and wait for the court’s grounds of
decision
 It must be followed by filing the petition of appeal
 This procedure is time consuming

Section 389
 Second limb:
o A judge in any case whether there is an appeal on conviction or not,
may direct that any person be admitted to bail, or the bail required by a
police officer or by the court be reduced or increased
o Made by way of motion supported by affidavit
o Quicker mode which accused usually appeals against bail decisions

Differences Between S.389 & S.394

Sulaiman Bin Kadir v PP
 Under S.394 the matter of bail is brought before the High Court by way of
notice of appeal and petition of appeal which take longer time
 Under S.389 the application is made to the High Court by way of motion
supported by affidavit
  Application may be made immediately after refusal to grant bail without
giving notice of appeal to the subordinate court
 Application may be heard by the High Court on the same day or very soon

*Under S.389, High Court may only grant bail if bail has been refused and if bail has
been granted it may increase or reduce the amount but cannot cancel the bail
*Under S.394, High Court may cancel bail, confirm and vary bail

Zulkiflee bin Hassan v PP

 High Court has wide jurisdiction to review the conditions of bail set by the
subordinate courts
Dato’ Mat Shah v Pendakwa Raya
 Applicant applied to the High Court for conditions of bail by the Sessions Court
to be modified and to allow the applicant’s passport to be returned to him
 Application allowed
 High Court has jurisdiction to modify conditions of bail even though that
section does not clearly state so

The Bailors
Chang Khee Chien & Anor v PP
 Sureties need not be present in court at every sitting but they must make sure
that the accused attends court
Lau Kung Seng & Ors v PP
 Imposition of cash bail other than under the condition stipulated in S.403 is
illegal
 A magistrate is not bound to accept cash but may permit an accused person to
deposit a sum of money in lieu of executing a personal bond and giving surety
of some persons
Section 393
 A surety may at any time apply to a Magistrate to discharge the bond either
wholly or partly
 The Magistrate will then issue a warrant for the arrest of the accused to be
brought before the court
  The surety will be discharged from his obligations while accused must find
further sureties failing which the court may commit him into custody
Mohan v PP
 A bailor is not a person affected by an order for bail and is therefore not a
person aggrieved within the meaning of the section
 So a bailor was not entitled in law to seek a variation of the amount of bail in
which he had executed a bond

Lee Eng Hoe v PP

 Proposed bailor has the locus standi to apply under S.389 for the amount of
bail being reduced

Forfeiture Of Bond
Section 403
 Court may require the accused or his sureties to deposit a sum of money to
execute a bond
Section 404
 Whenever a bond for appearance is taken and such bond is forfeited the court
shall record the grounds of such proof and may call upon the sureties to show
cause why the bond should not be forfeited

*If sufficient cause is not shown and the penalty is not paid, the court may issue a
warrant for the attachment and sale of the property belonging to the sureties
*If such penalty is not paid, the sureties may be liable to imprisonment in a civil
prison

Ramlee v PP
 Surety shown sufficient cause as he had taken various steps to ensure
attendance of the accused
 Relieved from having to forfeit the bail sum
Aone & Ors v PP
  Bond forfeited because the surety failed to produce the fishing vessel which is
part of the conditions of bail bond
PP v Chou Tai Chuan & Anor
 First surety not informed of the hearing dates hence not responsible
Re Ling Yew Huat & Anor
 1st bailor took steps to locate the accused and reminded him to attend court
so penalty returned to him
 2nd bailor said he was outstation, ordered to pay penalty as he had not shown
sufficient cause