LECTURE 1: BAIL

I. DEFINITION OF BAIL
- Some form of property which is deposited or pledged to a court in order to
persuade it to release suspect from custody, on the understanding that the suspect
will return for trial or forfeit the bail.
- In most cases, bail securities will be returned at the end of the trial, if all court
appearances are made
- release of the accused before trial (to secure attendance, if tak datang, blh saman
balik)
Blackstone’s Delivery or bailment of a person to his sureties
commentaries (bailors), upon their giving of sufficient security for his
or her appearance
Yusof Bin Mohamed Bail means security taken from a person to appear on a
v. PP fixed date before court. Bail is to set free a person who
is under arrest, detention or is under some kind of
restrain by taking security for his appearance.

II. INTRODUCTION
- The power to grant bail under the CPC (S. 387, 388 and 29) is given both to
police and court.
- Bail maybe granted pending the trial or pending the conviction or outcome of
the trial
Bailable - S.387
- Bail is as of right (a person cannot be refused of a bail)
- Definition in Section 2 of the CPC [Offence shown as bailable
in the First Schedule to the CPC, Column 5 + 3 years and fine
only OR made bailable by any other law for the time being.
-A person who is entitled to bail under s.387 is one who is:
i. Accused of a non-bailable offence; and
ii. Arrested or detained without warrant by a police officer;
or
iii. Appears or is brought before a court; and
 iv. Is prepared to give bail

Non-bailable -s. 388

- The accused has no right to bail but the presiding judge has a
discretion whether or not to grant bail depending on the
circumstances and facts of each case.
- Offences clearly categorized in the First Schedule as non-
bailable and also other than those made bailable in the First
Schedule or in any other written law.
Non- bailable offence under S388 refers to three types of
non-bailable offences namely:
1. Offences punishable with death or imprisonment for
life where there are no reasonable grounds for
believing that the offender is guilty of the offence.
2. Offences punishable with death or imprisonment for
life where there appear reasonable grounds for
believing that the offender is guilty of the offence.
3. Offences punishable with death or imprisonment for
life where there appear reasonable grounds for
believing that the offender is guilty of the offence,
but the offender is either below the age of 16, or a
woman or a sick or infirm person.

- It is lawful for the police to issue police bail under the

CPC, s.388(1) against the accused person who had been
released by a magistrate after detention under the CPC
s.117.
- CPC does not define the meaning of life imprisonment, but
s.3 of criminal justice Act 1953 defines as 30 years
imprisonment
Unbailable - Unbailable offence refers to offences for which an accused
person cannot be released on bail as of right and court have no
discretion to grant bail to accused.
-Specific provisions in statutes "unbailable". Absolutely
 unbailable.
- it excludes the discretion of a court to grant bail. (s. 41B DDA
1952, s. 12 Firearms (Increased Penalties) Act 1971, s. 57
Dangerous Drug (Forfeiture of Property) Act 1988.
Loi Chin Hei v. PP – HC interpreted S.41B of DDA 1952 to
be an unbailable offence. [PP v. Leong Ying Ming, PP v.
Chiew Lan, Leong Siew Hong v. PP]
Eg. SOSMA 2012 – S.13(1) Bail should not be granted to a
person who has been charged under SOSMA.
However, s.13(2) SOSMA – under 18 yrs old, women, sick or
infirm
Eg. FIPA 1971, S.12- where a person has been charged with an
offence under FIPA 1971, bail shall not be granted

III. PURPOSE OF BAIL

- Mohd Jalil Bin Abdullah & Anor v Public Prosecutor [1996] 5 MLJ 564: The
purpose of bail is to secure the attendance of an accused person at a certain day
and place to answer the charge against him. It is not intended to be punitive and
excessive bail ought not to be required: Zulkifflee bin Hj Hassan v PP [1987] 2
MLJ 527
- Bail is not a means of punishing the accused, nor a suggestion of revenue to the
government. If the accused fails to appear, the bailor becomes the absolute
debtor of the state for the amount of bond.

IV. BAILABLE OFFENCE (shall be released on bail)

(1) Mohd Jalil bin Abdullah v PP
Although records for the applicant were bad, still entitled to bail as a matter of right as
the offence in question was a bailable offence.

(2) Sebastian v Public Prosecutor [1968] 2 MLJ 214

Bailable offence under section 174 of the Penal Code a non-bailable one. Not being a
law-making authority, the learned magistrate had of course no right whatsoever to
deprive a subject of his constitutional right to liberty and to be tried according to the
law. Suffice it to say that I am assured that the learned magistrate is now aware of his
error. I am also assured that the learned magistrate is also aware that the correct and
proper procedure where a man surrenders himself to a warrant of arrest would be to
put him on a bond for his appearance on the due date and then release him

(3) Maja Anak Kus v Public Prosecutor [1985] 1 MLJ 311

it seems clear that after a person is arrested without warrant, the police, in the absence
of a special order of a magistrate, are not authorised to detain the person arrested in
custody beyond 24 hours. If the police are unable to complete investigation within
that period, and, as here, the offence concerned is a bailable offence, the person
arrested must be given bail, if he is prepared to furnish bail (section 387(i)), if the
provisions of section 117 are not invoked. On the other hand, if the police, after 24
hours of the arrest, resort to the special provisions of section 117, the magistrate
before whom the person arrested is brought may, if deemed appropriate, authorise
detention for a term not exceeding 15 days (section 117(ii), after complying with
section 117(iii)).

(4) Wong Kim Woon v PP

The word "shall be released on bail" given their literal and natural meaning mean that
bail must be offered to the accused. Bail is mandatory under Section 387.

Appear or is brought before a court / Arrest is not a pre-condition to bail

(5) Michael Raymond Taylor v PP
The expression of the word "appears" used in relation to the issue of a summons
whereas the expression "is brought before a court" is used in relation to the issue of a
warrant. Appearing before a court in obedience to a process of the court constitutes a
form of restraint since his liberties are no longer unfettered. A person who 'appears'
before a court in obedience to a summons surrenders himself to the custody of the
court.
The appellant was served with a summons requiring him to attend court to answer
charges under 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 $150k in one surety. The appellant appealed against the mag's order
requiring him to furnish bail. The appellant 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. Judicial interpretation of "appears"
also include appears in answer to a summons. Appeal dismissed.
There is no express requirement that an arrest is a precondition for bail in bailable
offences. No reliance can be placed on the dicta of Indian cases that assume such a
requirement, especially since those cases dealt with a provision which is not found in
our CPC. If it was intended that s 351 should apply to bailable offences where arrest
had been effected prior to a person's court appearance, then the legislature would not
have employed the disjunctive word 'or'.

Whether conditions can be imposed?

Public Prosecutor v Dato' Mat
Both sections do not have any specific provision for the imposition of conditions.
However, Indian authorities seem to favour the view that when discretion is given to the
court to refuse or grant bail, that discretion in itself implies a discretion to grant bail
subject to certain conditions. But, when there is no discretion to refuse bail, the question
of imposing conditions does not arise — Rex v Genda Singh & Ors AIR 1950 All 525.
Thus, conditions can be included in a bail bond issued pursuant to s 388 but not to s 387
as the latter section gives no discretion to the officer or court to withhold bail when the
person arrested is prepared to provide such bail.

SURETIES
- Refers to bailors
- The duty of a bailor is a serious responsibility in that he has a legal obligation to
ensure that the accused who has been released should attend the court on the date
fixed for hearing or mention
- However, there is no legal obligation on the part of the bailor to attend court on
every hearing date or on a mention date.
- CHANG KHEE CHIEN v PUBLIC PROSECUTOR [1980] 1 MLJ 183
When the case was mentioned again the court granted a final adjournment at the
request of the prosecution. The two sureties who had signed the bail bond for the
attendance of the two accused were not present in court and because of their
 absence the learned Magistrate would not release the two accused and ordered
them to be remanded.
Held: it is not necessary for any person who stands as a surety for the attendance
and appearance of an accused released on bail to be personally present himself
in court on each and every occasion that the accused has to attend court under
the terms of the bail bond to answer the charge which is preferred against him.

Whether The Court Granting Bail could Revoke Bail

- Wong Kim Voon v. PP
The appellant was charged with four counts for offences under s. 420 of the
Penal Code. He was granted bail but failed to attend court on various dates fixed
for hearing, submitting medical certificates instead. The Sessions Court
eventually ordered the revocation of bail and it was against this that the
appellant appealed. The CPC does not provide for the cancellation or revocation
of bail. The primary objective of bail is to ensure attendance. Where there has
been a breach of the terms of the bail, there cannot be any other consequence
consistent with due administration of justice than that bail be ended, whether by
revocation or cancellation. A revocation was bad in law.

Whether Foreigners should be released on bail for bailable offence

- Yes, according to Art. 8(1) FC, provided an accused has a local bailor

Whether it is lawful for the police to release a suspect on police bail under s. 388 of the
CPC after the said suspect has been released from the remand order by a magistrate
under s. 117 of the same Code. / whether accused can be released while the investigation
still in progress?
Inspector Yusof Hj Othman & Ors v Kwan Hung Cheong [2011] MLJU 1557
- s. 117 of the CPC is a specific provision relating to a detention of an accused person by a
Magistrate for the purpose of police investigation. The section makes no mention of the
Magistrate having the power to grant bail. Section 117 of the CPC operates
independently of s. 388 of the CPC. In essence, s. 117 and s. 388 of the CPC deal with
two separate situations. As stated earlier, s. 117 of the CPC deals with detention of an
 accused person after arrest while s. 388 of the CPC deals with the release of an accused
person after arrest.
- It is to be noted that the Magistrate’s power under s. 117 of the CPC is either to detain
the accused person or to refuse the detention. The question that comes to mind is what
happens if the Magistrate refuses to grant the detention or to further extend the detention
of an accused person. Obviously, under such circumstances, the police has no choice but
to release the accused person. But, it is my respectful view that the release of the accused
person under s. 117 of the CPC cannot be equated as an order to acquit and discharge the
accused person from the criminal accusation.
- It usually occurs that investigation could not be completed within the detention
period granted by the Magistrate under s. 117 of the CPC. Section 388 of the CPC is
there to assist the police. It empowers the police to release the accused person on
police bail, while the investigation is still in progress.

V. NON-BAILABLE OFFENCE
Bail is discretionary and is judicial act
- Where a person is accused of non-bailable offence, the accused is not entitled to
be released on bail as of right.
- Lim Kiap Khee v Public Prosecutor [1988] 1 MLJ 198
since the applicant was charged with a non-bailable offence, bail is at the
discretion of the court and in exercising its discretion the court must consider the
gravity of the offence; in non-bailable offences, the court has an absolute
discretion under section 388 of the Criminal Procedure Code whether to allow
bail or to refuse bail except in cases punishable with death or imprisonment for
life. In granting bail, the court may, in addition to stating the amount of bail and
the number of sureties, impose reasonable conditions, including a condition
requiring the accused person to surrender his passport. When the court lays down
the conditions for bail, it is left to the accused whether to comply with it or not.
If, for example, he does not want to surrender his passport then he opts to remain
in custody; if the court decides that one of the conditions of bail is to require the
accused to surrender his passport, it is immaterial whether the accused is a
citizen of this country or a foreigner or whether he is holding a Malaysian
passport or a passport issued by a foreign government;
- The granting of bail is a judicial act and it is the duty of the court to decide
whether there are reasonable grounds for believing that the accused has been
guilty of an offence punishable with death.
- Public Prosecutor v Dato' Balwant Singh (NO 1) [2002] 4 MLJ 427
- In determining of the existence of reasonable grounds for purposes of s 388(1),
the court is not required to go into the details of the evidence. The court must
decide the existence of reasonable grounds on the materials before it and not on
what may unfold later. What is required is the satisfaction of the court of the
existence of evidence to support the charge that has been preferred. The court is
required to analyse and apply its mind to the evidence that is available. The
granting of bail is a judicial act. It is the court that must decide whether there are
reasonable grounds for believing that the accused has been guilty of an offence
punishable with death (or life imprisonment) for which purpose it is necessary to
have the facts to base an opinion.
- Moh Ting King v Public Prosecutor [1995] 3 MLJ 461
- It is well settled that the High Court will not lightly interfere with the lower
court's exercise of discretion and where the sessions court judge had refused bail
after considering all the circumstances of the case, the High Court will not
interfere unless it can be shown that the exercise of the discretion was erroneous.
It was apparent that the refusal to grant bail stemmed from the accused being
charged for another offence of rape during his release on bail pending the trial.
The refusal of the sessions court to grant bail was justifiable in the
circumstances. There was a likelihood the accused would intimidate the
complainant and that itself was a cogent ground for refusing bail.

Whether Bail under s. 388 must be made in writing?

- Public Prosecutor v Dato' Seri Anwar Bin Ibrahim [1998] 4 MLJ 481
There is no mandatory requirement in s 388 of the Criminal Procedure Code
(FMS Cap 6) ('the CPC') that an application for bail must be made in writing.
The court can consider the prayer for bail even if made by the accused or his
counsel orally

Factors Influencing Decision to Grant or Refuse Bail

1. PP v. Wee Swee Siang, there are nine factors that the Court laid down to be
considered before granting of a bail;
(a) Whether there are reasonable grounds to believe the accused is guilty of the
offence
(b) Nature and gravity of the offence
(c) Severity and degree of punishment that might follow
(d) Danger of the accused absconding if he is granted bail
(e) Accused's character, means and standing
(f) Danger of the offence being continued or repeated if bail is granted
(g) Danger of witness being tampered with
(h) Opportunity of the accused to prepare for his defence
(i) Long period of detention or custody between the date of charge and date of
trial.

The High Court also observed that the primary consideration - to ensure the
presence of the accused at the trial. In addition, it is the Court's discretion to
grant bail or to refuse it after considering the circumstances of the case. If it is
not shown that refusal to grant bail would prejudice the accused in preparation of
his defence, bail can be properly refused.

2. Che Su Binti Daud v Public Prosecutor [1978] 2 MLJ 162

The court cited with approval the decision of Wee Swee Siang and went on
to add another three factors for deciding whether or not to grant the accused
bail. These points do not appear to form an exhaustive list and there may be
many other points too. The legislature has, for instance, by the proviso to
section 388(i) of the Criminal Procedure Code made extreme youth or sex or
state of health of the accused matters for consideration in the exercise of the
court's discretion. 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 Keshav Vasudeo Kortikar v Emperor AIR 1933 Bom
492. But since the application for bail has been made at an early stage the
prosecution should satisfy the court that it would be able to produce good
prima facie evidence in support of the charge.
 whether the Court can deny the bail due to previous conviction?
Lau Kung Seng & ORS v Public Prosecutor [1997] 5 MLJ 323
the third applicant was refused bail because of his previous conviction and the
court below believed that granting him bail would run a risk of him absconding.
There was nothing on record to substantiate or support this belief. To refuse bail
on the ground that an accused person had a previous conviction is not justifiable
particularly when the prosecution does not even offer any reasons that there was
a likelihood the accused might abscond. However bad a character an accused
may possess, he is undoubtedly entitled to be proceeded against according to law
and not to be deprived of his liberty except in due course of law. Hence, where
an accused is rightly entitled to be on bail, his bail cannot be cancelled except in
due course of the law

Granting a bail – effect of frustrating and embarrassing the criminal

proceeding
- The Court may decline to grant bail in a non-bailable offence where it would
have the effect of frustrating or embarrassing the criminal proceedings taken
against the accused.
- Shanmugam v Public Prosecutor [1971] 1 MLJ 283
The principal ground of the application for bail was that the accused and the girl
with whom the offence was alleged to have been committed wanted to get
married.
Held: in this case the object of the application for bail was in effect to get the
rape charge against the accused withdrawn, that is to frustrate or embarrass the
criminal proceedings which were being taken against the accused.

The issue of Intimidation of witness

- Moh Ting King v Public Prosecutor [1995] 3 MLJ 461
- It is well settled that the High Court will not lightly interfere with the lower
court's exercise of discretion and where the sessions court judge had refused bail
after considering all the circumstances of the case, the High Court will not
interfere unless it can be shown that the exercise of the discretion was erroneous.
 It was apparent that the refusal to grant bail stemmed from the accused being
charged for another offence of rape during his release on bail pending the trial.
The refusal of the sessions court to grant bail was justifiable in the
circumstances. There was a likelihood the accused would intimidate the
complainant and that itself was a cogent ground for refusing bail.

Social Status of Accused

1. Social status per se is not a sufficient ground for granting bail
**Shaik Karim v. Emperor
**State v. Mehboub Ali Khan
2. Court may assume behaviour along with the circumstances to consider
in granting the bail
**Juglekor v. Emperor
**Raja Narendralal Khan v. Emperor

Whether Foreigner charged with non-bailable offence can be bailed?

- Mohammed Kunju V State of Karnataka
While dealing with the legality or otherwise of the said legal proceeding against
sureties, an observation was made by Hon'ble Supreme Court that while granting
bail to the accused foreign national, the Court could have imposed the condition
to surrender his passport as a measure to prevent him to escape out of India. Thus
the Indian Courts while granting bail to a foreign national firmly believes in
imposing certain conditions like surrender of passport, bail bonds, attendance
before consulate or the investigating officer, etc in order to prevent misuse of the
provision as there may be chances of the accused absconding after getting bail.

- Lambert Kroger v Enforcement Directorate

while allowing the bail application of the foreign national made an observation
that "Admittedly the petitioner 's passport is with the respondent and ordinarily
the petitioner cannot leave the country without the passport. Though the
possibility of fleeing from trial may be more in the case of foreign national. It
cannot be said that an accused cannot be granted bail merely because he is a
foreign national. There is no law which authorizes or permits discrimination
 between a foreign national and an Indian national in the matter of granting bail
what is permissible is that, considering the facts and circumstances of each case,
the Court can impose different conditions to ensure that the accused will be
available for facing trial."

Danger of Absconding
- Gurbaksh Singh V State of Punjab
The counsel contended that the appellants were men of substance and held high
positions in the Punjab Ministry and were unlikely to abscond or avoid facing the
trial. Thus, they must be granted bail. The Court was of the view that on
releasing a person on anticipatory bail, his passport, deed for title of property or
any other such documents must be seized in order to prevent him from
absconding or avoiding the trial. Freezing of bank accounts should be made
optional and restricted to the cases where the punishment is death penalty or life
imprisonment.

- PP v. Kamal Hisham Ja’afar [2016] 1 CLJ 303

it was argued by the learned deputy that the onus and burden of proof to show
that the accused has special circumstance to be granted bail especially on the
factor of non-absconding, lies totally on the accused. If the accused cannot prove
this on a balance of probabilities, the court must not grant him bail. This is to be
distinguished from bailable cases where the accused has prima facie rights to be
bailed, unless the prosecution is able to show that he is a flight risk. The learned
deputy raised that the respondent has been avoiding jurisdiction of Malaysia by
refusing to cooperate in respect of the complaints made to the police on the
offences relating to the charges preferred against him. The respondent was a
permanent resident in Dubai and there is a likelihood he might be out of
jurisdiction of Malaysia. Besides, there is no extradition treaty between Malaysia
and United Arab Emirates to Malaysia to enable the respondent to be extradited
from United Arab Emirates to Malaysia to face criminal charges. the court
appraised the fact that the endorsement in the respondent’s passport which shows
that there is inconsistence in his averment that he was not trying to evade and
abscond from the jurisdiction. The Court also found that respondent’s allegation
 that if he had come back to Malaysia, his life would be in danger was without any
basis. The Court is also appraised of the fact that there is no extradition treaty
between Malaysia and United Arab Emirates if respondent is found to be residing
there, he is being a permanent resident thereat. the Court then exercised its
discretionary power and revoked the bail granted to the respondent by the learned
Session Court Judges and ordered that the respondent to be remanded.

Offence punishable with death and life imprisonment shall not be granted
bail?
- However, there is exception where if the accused person is charged for a murder,
the accused still can be released on bail if the accused can show exceptional
circumstances.
- PP v Latchemy
The respondent was a woman charged with the offence of murder under Section
302 of the Penal Code, an offence punishable with death. The respondent was
nevertheless granted bail in the Magistrate's court and against this order of bail,
the public prosecutor appealed. In allowing the appeal and cancelling bail, High
Court held that "the criterion by which a magistrate should allow bail in cases of
this type, in my view, is only in those cases where he is convinced that the
reasons put forward by the applicant are said to be exceptional and special
reasons. In the present case, the only grounds on which this application for bail
was granted by the magistrate's court appear to be that the accused is a mother
of ten children and youngest of them is still under breast-feed." The reasons
put forward in this application fall far short of being exceptional and very
special reasons, therefore application should have been refused.
- Leow Nyiok Chin v PP
In this case, the accused was 58 years old woman charged with murder of her
husband. The accused's counsel relied on the accused being a woman and
therefore eligible for bail. In addition, the counsel tendered medical report on the
psychiatric and medical condition in which she will need a place that will
provide mental, physical and emotional stability. The High Court judge referred
to the case of Latchemy and found that the medical condition did not add up to
exceptional and special reasons for bail.
- Regina v Ooi Ah Kow
The phrase 'death or imprisonment for life' should be read disjunctively. In
offences falling under this category where there appear grounds for believing
that the offender is guilty of the crime, the courts have no power to grant bail
under Section 388(1). The High Court may nevertheless grant bail in such a
situation where there exists exceptional and special reasons by virtue of Section
389 of the CPC.
- The law is clear that the High Court in its absolute discretion may under sections
388 and 389 of the Criminal Procedure Code grant bail to an accused person
pending trial after his application for bail has been refused by the lower courts,
even if an offence with which the accused is charged is punishable with death or
imprisonment for life. The judgments of Harun J. in Sulaiman bin Kadir v.
Public Prosecutor, and Gunn Chit Tuan J. in Che Su binti Daud v Public
Prosecutor [1978] 2 MLJ 162 are in point.
- Manickam & ORS v Public Prosecutor [1982] 1 MLJ 227
- In cases where there appear reasonable grounds for believing that the accused
has been guilty of an offence punishable with death or imprisonment for life,
because of the seriousness of the offence charged, no bail should be granted,
unless the accused satisfies the High Court that there are exceptional and special
grounds justifying the granting of bail.In such an event, the burden is on the
accused. In other cases of lesser charges, bail should, in my opinion, normally be
granted as a matter of course, unless the prosecution can satisfy the court that in
the interest of justice bail should not be granted.
- But there is a contrast
- PP v Dato' Balwant Singh
The accused an 81-year old advocate and solicitor was charged with the offence
of murder. He claimed trial and applied to be released on bail. The defence
contended that the medical condition of the accused brought the case within
the proviso to s 388(1) of the CPC. In support of its argument, the defence
tendered a medical report on the accused which stated that the accused suffered
from several serious diseases. The prosecution argued that the accused had been
charged and the prosecution was instituted with the consent of the public
 prosecutor indicated there were reasonable grounds for believing the accused
was guilty as charged.
Held: 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
circumstances of the case. 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. 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. The accused be enlarged on
bail in the sum of RM500,000 with two sureties with security to be furnished
with certain conditions.

*****Any person who is sick or infirm may be released on bail by virtue of the
proviso to Section 388(1). However, the sickness must be one which poses a risk
or danger to the accused person. In Khagendra Nath Bayan v State of Assam,
the phrase "infirm" includes a person who is very old. (adopted in Balwant
Singh)

Where the accused is under the age of 16, a woman or any sick or infirm
person
- PP v. Latchemy
- Kok Wah Kuan v. PP (unreported case-no 44-29-2002)

Whether the court can impose conditions when granting bail

- Public Prosecutor v Dato' Seri Anwar Bin Ibrahim [1998] 4 MLJ 481
- Such condition therefore, to our mind, 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. The amount of money in the bail bond and not the condition forms
the prerequisite to the release of an arrested person on bail.
- Public Prosecutor v Dato' Mat [1991] 2 MLJ 186
- conditions can be included in a bail bond issued pursuant to s 388 but not to s
387 as the latter section gives no discretion to the officer or court to withold bail
when the person arrested is prepared to provide such bail. In Varadaraja
Mavalliar (1957) 1 Mad LJ (Crim) 717, the Madras High Court reviewing the
case law on this subject held that in non-bailable offences, the court can impose
restriction in suitable cases. In Re Kota Appalakonda AIR 1942 Mal 749 the
court in holding that condition made under s 496 of the Indian Criminal
Procedure Code to be invalid made the following observation on the scope of s
497: With regard to non-bailable offences, I can see no objection to imposing
conditions of this kind; for the magistrate has an option to grant bail or to refuse
bail and he has also the power under s 497(5) of the Criminal Procedure Code of
causing persons so released to be arrested and committed to custody, which
subsection he would apply in case the condition was not fulfilled.
The provisions of s 496, s 497 and s 498 of the former Indian Criminal Procedure
Code correspond with s 387, s 388 and s 389 respectively of our Criminal
Procedure Code and for the same reasons as expressed in the aforementioned
case, we would agree that analogous fair and reasonable conditions apropos to
the securing of the accused's subsequent attendence in court are not illegal and
therefore imposable by our courts. In fact, although no ruling was made in the
Federal Court's decision in Government of Malaysia & Ors v Loh Wai Kong
[1979] 2 MLJ 33 and the Supreme Court's decision in PP v Zulkifflee bin Hassan
[1990] 2 MLJ 215 the facts in both cases clearly indicate[1991] 2 MLJ 186 at
188 that the condition for the surrender of passport was not disapproved of by the
court. Having decided on the legality to impose the condition and in particular
the condition requiring the accused to surrender his passport, we next proceed to
consider the question whether the subordinate and the High Court has the power
 to alter or remove it. Section 388(5) of the Criminal Procedure Code empowers
the court which granted the bail the power to cancel it. The power to admit,
refuse or cancel bail must necessarily imply the power to vary or alter the same.
In the present case in view of the order made for its transfer from the sessions
court to the High Court, the learned judge was acting well within his jurisdiction
to review the condition of bail as if the same was made by him.
- Lim Kiap Khee v Public Prosecutor [1988] 1 MLJ 198
- whether under section 388, the court has the power to impose conditions when
granting bail. There appears to be no decision by the courts in this country on
this point. It is useful to look at the decisions of the courts in India since section
388 is almost identical with section 497 of the Indian Criminal Procedure Code
of 1890. In India, under section 497, the court could impose conditions other
than the fixing of bail for[1988] 1 MLJ 198 at 200 the attendance of the accused.
In Rex v Genda Singh & Others AIR 1950 All 525, Raghubar Dayal J. said:
"Conditions were imposed in orders granting bail in certain cases of non-bailable
offences … Under section 497 Criminal Procedure Code, which provides for bail
in non-bailable cases, it is discretionary for the court to grant bail. In certain
circumstances mentioned in subsection (1) bail is not to be granted and in certain
circumstances mentioned in subsection (1) bail has to be granted by the court.
When discretion is given to the court to refuse bail or to grant it, that discretion
itself implies a discretion to grant bail subject to certain conditions …"
The conditions imposed by the court, must, however, be reasonable. In Re
Saradamma and Others AIR 1965 AP 444, it was held that an order imposing a
condition that the accused should confine their movements to the municipal
limits of the town as long as the case was pending and report themselves twice a
day to the police station was not illegal. In that case, Venkatesam J., at p. 446,
said:
"Thus in the case of non-bailable offences … a discretion is conferred on the
court whether to enlarge or not to enlarge the accused on bail. When the court is
thus conferred a discretion and in the exercise of that discretion it considers
necessary to impose certain conditions, can it be said that those conditions are
illegal? … Having regard to this well-established line of authority I hold that in
the case of non-bailable offences, a court may impose conditions other than the
 fixing of the bail for the attendance of the accused, and such a condition is not
illegal."
It is clear from the authorities cited above, in non-bailable offences, the court has
the absolute discretion under section 388 whether to allow bail or to refuse bail
except in cases punishable with death or imprisonment for life. In granting bail,
the court may, in addition to stating the amount of bail and the number of
sureties, impose an additional condition requiring the accused person to
surrender his passport. If he complies with these conditions, then he is released
on bail. If he fails to comply with any of these conditions, then he is kept in
remand until his trial. When the court lays down the conditions for bail, it is left
to the accused whether to comply with the conditions or not. The choice is
entirely his. If he does not want to surrender his passport, then he opts to remain
in custody.
- Understandably, the complainant is concerned that she shall not be harassed by
these applicants or indeed anybody else. Rape has a traumatic effect on the
victim and the court must be careful to ensure that, between the date of an
alleged offence of rape and the date of the hearing, the victim is offered a fair
and proper degree of protection, but in my judgment that cannot be such a degree
of protection as warrants the incarceration for months (unless there is other good
cause) of persons who may, for all the court knows, be innocent of the offence.
- Public Prosecutor v Abdul Rahim Bin Hj Ahmad [1988] 3 MLJ 272
- In these circumstances, I propose to grant bail upon conditions. I will impose as a
condition of the grant of bail that these three applicants should each of them
report once in the morning and once in the evening to the nearest police station
on the understanding that that police station is not more than 1ࡩ miles away
from the place where each of them lives. I also propose to make it a condition of
granting bail that they do not approach near the premises where the complainant
lives. I want it to be quite clear that they are to keep well away from the
complainant. Subject to those conditions, I propose to allow this application, and
I will discuss further details with counsel.

Whether the application of bail can be renewed

- Michael Lee@ Weng Ong Lee V. PP
 Can, but subject to the court and circumstances of court

- s.388(5): the court has power to commit to custody any person has
previously released on bail
- Phang Yong Fook v Public Prosecutor [1988] 1 MLJ 267
- Whether the order revoking the applicant's bail was a valid order. It is not in
dispute that the learned Sessions judge has the power to commit a person, who
has been released on bail in respect of a non-bailable offence, to custody. bail of
an accused person cannot be cancelled unless there is some form of evidence in
support of the application for the cancellation. The Indian Court has decided that
mere vague allegations would not be sufficient for the purpose of cancelling a
bail. In the present case, the learned Deputy only made vague allegations of
harassment, tampering and intimidation in support of his application to revoke
the bail in the court below. There was no oral or documentary evidences or even
an affidavit to support the allegations. The considerations for cancellation of bail
are different from those for granting bail. Power to take back accused has to be
exercised with care and circumspection in appropriate cases when, by a
preponderance of probabilities, it is clear that the accused is interfering with the
cause of justice by tampering with witnesses. Even when evidence is adduced in
support of an application to cancel the bail granted to an accused person, the
court should not allow the application without giving the accused person an
opportunity to be heard first

VI. QUANTUM OF BAIL

- After granting bail, the court usually will set the amount or quantum of bail
- The provision of CPC does not indicate how the quantum of bail should be fixed
- Soo Shiok Liong v Pendakwa Raya [1993] 2 MLJ 381
- No grounds or consideration appeared from the learned judge's records to justify
the amount RM1m that he fixed for bail. He gave no indication that in setting the
quantum of bail he had applied his mind to the primary consideration in deciding
this issue, being the securing of the attendance of the applicant. He had thus
failed to show that he had exercised his discretion judicially. he RM1m set by the
learned judge would appear to be an arbitrary figure and contrary to the
requirements under the provisions of s 389 of the Code. 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 be
admitted to bail or that the bail required by a police officer or Court be reduced
or increased. The factors for consideration in setting the quantum of bail bond
are as follows:
(1) The nature and gravity of the offence and the severity and degree of
punishment which conviction might entail. This is only one of the relevant, but
not overriding, factors to be considered. It is thus decidedly wrong to fix the
quantum of bail bond solely on the basis of such quantum being in proportion to
the value of the subject matter of the charge, in as much as such reckoning would
eclipse the overriding concern that bail bond should not be excessive but only be
sufficient to secure the attendance of the accused.
(2) The quantum should be higher in the case of non-bailable offences.
(3) An excessive quantum may defeat the granting of bail as the accused may
find difficulty in getting a bailor acceptable to the court.
(4) The principle and basis of our criminal law is that the accused is presumed to
be innocent until proven guilty.
(5) Whether there is a likelihood of the applicant absconding if the bail quantum
is set too low. See Low Chit Bah v PP 9.
(6) Bail is not intended to be punitive but only to secure the attendance of the
accused at the trial; therefore the amount of the bond must be fixed with due
regard to the circumstances and must not be excessive. See R v Rose 8. The
amount of bail may vary according to the circumstances even on similar value of
the subject matter of the charge.
(7) His surrender of his international passport should go to reduce the quantum
of bail. See PP v Dato' Mat @ Mat Shah bin Safuan @ Ahmad2.
(8) The fact that the accused had presented himself at the police station and had
co-operated with the police should also go to abate the quantum of bail.
(9) The quantum of bail should not be set so prohibitively high as to have the
effect of incarcerating the accused before he is convicted of the crime. See
Zulkifflee bin Haji Hassan v PP 7.
 (10) Application of the court's mind in considering the above factors ought to be
reflected in the judge's records.
- Manickam & ORS v Public Prosecutor [1982] 1 MLJ 227
- The amount of every bail bond 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 and basis of our
criminal law that the accused is presumed to be innocent until proven guilty.
- Low Chit Bah v Public Prosecutor [1986] 1 MLJ 297
- This was an application for reduction of bail fixed at $1,000,000 in two sureties.
The applicant had 41 charges for abetment of conspiracy to cheat, offences
punishable under sections 420 and 109 of the Penal Code. The sum involved
amounted to $3,933,533.20. It was submitted for the applicant that the bail be
reduced to $500,000 in two sureties on the ground that there was difficulty in
obtaining instructions from the applicant whilst he was in custody. The
application was opposed. It was revealed that the applicant, a Singapore citizen,
had travelled on a forged Philippines passport and he also had a valid passport
issued by the Republic of China.
Held: on the facts before the court the overriding consideration was that there
was every likelihood that the applicant would abscond from Singapore to evade
trial if bail was reduced. On this ground only, his application must be refused;
having regard to the serious charges and the amounts involved, the bail of
$1,000,000 in two sureties was not excessive.
- A married couple ('the accused') was charged in the magistrates' court with the
offence of jointly abusing a child with the intention of causing her physical
injury. The offence was punishable under s 26(1) of the Child Protection Act
1991, and carried the maximun fine of RM10,000 and/or five years
imprisonment. The accused pleaded not guilty, and the magistrate fixed the bail
at RM25,000 with one surety for each accused, pending the hearing of the case.
The accused applied to the High Court for a reduction of the bail sum, on the
grounds that: (i) the bail sum was so excessive that the accused could not afford
to pay, and as a result, the effect was as if no bail was allowed; (ii) there was no
 proof to show that the accused would escape; and (iii) their detention due to the
excessive bail sum was contrary to the principle that a person is innocent until
proven guilty. On the other hand, the deputy public prosecutor argued that the
bail sum should be upheld as this case had attracted a lot of public anger and
frustration and the abused child had died.
- Held, allowing the application:
- Ramlah Bte Selamat & Satu Yang Lain Lwn Pendakwa Raya [1995] 2 MLJ
385
- A married couple ('the accused') was charged in the magistrates' court with the
offence of jointly abusing a child with the intention of causing her physical
injury. The offence was punishable under s 26(1) of the Child Protection Act
1991, and carried the maximun fine of RM10,000 and/or five years
imprisonment. The accused pleaded not guilty, and the magistrate fixed the bail
at RM25,000 with one surety for each accused, pending the hearing of the case.
The accused applied to the High Court for a reduction of the bail sum, on the
grounds that: (i) the bail sum was so excessive that the accused could not afford
to pay, and as a result, the effect was as if no bail was allowed; (ii) there was no
proof to show that the accused would escape; and (iii) their detention due to the
excessive bail sum was contrary to the principle that a person is innocent until
proven guilty. On the other hand, the deputy public prosecutor argued that the
bail sum should be upheld as this case had attracted a lot of public anger and
frustration and the abused child had died.
(1)Pursuant to s 389 of the Criminal Procedure Code (FMS Cap 6) ('the CPC'),
the purpose of imposing a bond on the accused is to ensure that he attends court
on the hearing date. Upon an examination of the whole of Chapter XXXVIII of
the CPC which concerns bail, it can be seen that the approach taken is based on
the principle that a man is innocent until proven guilty. Following the same
principle, s 389 of the CPC also states that the bail sum fixed by the court shall
not be too excessive. Hence, [1995] 2 MLJ 385 at 387 the court in this case had
to examine whether or not the bail sum imposed was so excessive that it had
become a form of punishment on the accused. Section 389 of the CPC gives a
wide discretion to the court to determine the bail sum by considering special
circumstances and personal factors of the accused, ie their family income and the
 presence of a baby in their family who needed their care. Although this case had
stirred up the anger and frustration of society, the court could not take that
sentiment into consideration, and it had to uphold justice based on legal
principles. In this case, the court concluded that the bail sum imposed was
excessive and had become a form of punishment to the accused. The court could
not see the basis for setting a bail sum which was 21ú2 times more than the
maximum fine imposable. Thus, the court reduced the bail sum to RM7,500 with
one surety for each of the accused and ordered that the Malaysian Immigration
Department not to approve any form of travel passes to the accused.]

Whether any person can apply to reduce the sum of bail?

- his was a notice of motion by the proposed bailor ('the applicant'), under s. 389
of the Criminal Procedure Code ('the Code'), for an order that the bail amount of
RM200,000 imposed by the Sessions Court on the accused be reduced to
RM100,000 on the ground that the amount imposed was prohibitively high and
excessive. An interesting, important and novel question of law was raised in the
preliminary objection by the prosecution ie, that a proposed bailor has no locus
standi to make the instant application which, in the view of the prosecution, must
perforce be made by the accused himself and not by any other person.
- Held: s. 394 confers upon any person aggrieved by an order or refusal of any
inferior court to appeal to the High Court. It is plain and obvious to me that s.
394 refers expressly and specifically to an appeal, in which case, the statutory
right to appeal is confined to a person aggrieved by an order or refusal of an
inferior court to grant bail. In the context of s. 394 only, I am in entire agreement
with the view of Augustine Paul J (now JCA) that "A bailor is not a person
affected by an order for bail and therefore not a person aggrieved within the
meaning of that section". Section 389, on the other hand, contains two limbs viz.
first, the amount of a bail bond and, secondly, the power of a judge to direct that
any person be admitted to bail, or to reduce or increase the amount of bail. In my
view, Parliament in enacting s. 389 has never imposed any limitation or
restriction as to the party who may file an application such as the instant
application. The fact is that Parliament has left the category of applicants open,
in which case, our High Courts exercising the jurisdiction thereunder are able to
 decide on the issue of locus standi, I would therefore construe the express
provisions of the second limb of s. 389 as including and not limiting or
restricting the applicant, a proposed bailor, as one of the categories of applicants
having the necessary locus standi to file the instant application.

Issue of application made to High Court

- Sulaiman Binkadir v Public Prosecutor [1976] 2 MLJ 37
- the applicant applied for bail pending trial but the learned President of the
Special Sessions Court refused it under section 388(i) of the Criminal Procedure
Code. The applicant asked the High Court to exercise its discretion to grant bail
on exceptional and very special reasons. The learned Deputy Public Prosecutor
contended that the application should have been brought by Notice of Appeal
under section 394 and not, as it was done, under section 389. The Court held that
the learned President was correct in refusing bail; a subordinate court had no
power to grant bail if there were reasonable grounds for believing that an
accused person had been guilty of an offence punishable with death or life
imprisonment; if a person should not be kept in custody for a moment longer
than was necessary, than the speedy procedure of section 389 of the Criminal
Procedure Code rather than that of an appeal was obviously indicated; as this
application arose out of a refusal to grant bail, the provisions of section 389
applied;

Power to modify the terms of bail

- Dato Mat Shah v. PP

Sulaiman Kadir v. PP [1976] 2 MLJ 37.

There does not appear to be any authority as to which is the proper course to take
in such cases. In my view, if a person should not be kept in custody for a
moment longer than is necessary then the speedy procedure of section 389is
obviously indicated. But there are other compelling reasons why section 389is
the appropriate procedure. That section gives the High Court absolute
discretionary powers to vary bail from time of arrest right up to the time of
conviction. It may grant bail when bail has been refused. It may reduce the
amount of bail if the amount is excessive. It may increase the amount of bail if
the amount is insufficient. But it may not order custody if bail has been granted.
The appeal provisions of section 394 of the Criminal Procedure Code, on the
other hand, are intended to deal with matters not provided for under section 389
of the Criminal Procedure Code, for instance, if an accused person had been
admitted to bail by a Subordinate Court contrary to section 388(i) of the Criminal
Procedure Code. As this application arises out of a refusal to grant bail, the
provisions of section 389 apply and I accordingly hold that it is properly before
this court.