Chapter 11 Bail

CHAPTER 11 BAIL Bailable v non-bailable offences (S 2 CPC)  Bailable offence is offence shown as bailable in Sch 1 or which is made bailable by any other law and non bailable offence means any other offence  Not bailable in Sch 1 means non-bailable as in s 388 and not "unbailable" (Loy Chin Hei)  Offences against laws other than Penal code: Last para Sch 1- if punishment>3 yrs --> non bailable  If a specific provision in any written law provides on bail, it supersedes CPC (Chew Siew Luan) BAIL PENDING TRIAL A) Bailable Offences: s 387 CPC  Right of bail: "shall be realeased on bail" means as of right, ie: mandatory (Mohd Jalil bin Abdullah)  Whether remand order under s 117 overrides right of bail under s 387  Maja anak Kus (HC): s 117 CPC supercedes s 383 and that the Magistrate was correct to refuse fail and to order the accused to be remanded under s 117 for police investigation. B) Non-bailable Offences: s 388  General rule: Ct or the OCPD has discretion to grant bail for non-bailable offences depending on facts and circumstances of case (highlighted in Mat Zain)  Proviso that the Ct may direct persons under 16, women or infirm persons be released on bail: the ct is not concerned as to whether there are reasonable grounds to believe whether the accused is or is not guilty of the offence (Dato Balwant Singh)  Whether remand order under s 117 overrides right of bail under s 388 Kwan Hung Cheong (2011): s 388 made no provision that the power of a police officer to release an accused under s 388(1) was only exercisable before the accused was produced before a magistrate under s 117.  "such court" means trial court under s 2(1) (Magistrates, Sessions or High Court). However, s 388 must be read with s 389. "Judge" in s 389 refers to a High Court judge (Sulaiman bin Kadir). Therefore, only the High Court has discretion to grant bail to non-bailable offences.

Factors which court may consider whether accused may be released on bail for nonbailable offences  Wee Swee Siang case - 9 factors: a) Whether there are reasonable grounds to believe the accused is guilty b) Nature and gravity of offence c) Severity and degree of punishement that might follow d) Danger of accused absconding if granted bail

e) Accused's character, means and standing f) Danger of offence being continued or repeated if bail is granted g) Danger of witness tampering h) Opportunity of the accused to prepare his defence; and i) Long period of detention between charge date and trial date.  Dato Seri Anwar Ibrahim- Augustine Paul considered facts in Wee Swee Siang + also the following: a) Detention of accused under ISA b) Accused's social status c) Accused's health d) Danger of accused absconding e) Witness tampering  Manickam: bail should not be refused lightly as the presumption of innocence is in the accused's favour on the question of bail. Bail is not meant to be punitive but to ensure the accused attends trial in court Cases  Latchemy: female accused for murder-released on bail of RM2,000 because she was a mother of 10 + was breastfeeding. High Court revoked bail and held that reason did not amount to "exceptional and special reasons" Note: High Court need not consider exceptional and special reasons as the proviso to s 388(1) provides that a woman may be considered for bail.  Shanmugam: rape - High Court: upheld TJ's refusal to grant bail as the reason that the accused + the complainant were in love + intention to marry did not amount to exceptional and special reasons  Che Su bt Daud: female- drug trafficking- High Court: agreed with Latchemy that her reasons were not exceptional and special. But bail was granted because she was not charged alone and was not charged for murder which is punishable by death. Comment: WRONG - forgot to consider s 39B DDA  Balwant Singh: ct granted bail to accused under proviso to s 388 because he was 80 + of ill health. C) Bond amount: s 389  S 389:shall be sufficient with due regard to the circs of the case in order to secure the attendance of the accused but shall not be excessive  Manickam: excessive bail bond may defeat the granting of bail as accused may not be able to furnish bail D) Court may impose conditions in granting bail since ct has discretion in granting bail (Dato Mat Shah) E) Revocation of bail i) Revocation of bail for bailable offence:  CCP doesn't provide such power  Wong Kim Woon: where a fundamental bail term has been breached, the ct may revoke bail provided that the accused is given an opportunity to be heard as to why

the bail granted should not be revoked. ii) Revocation of bail for non bailable offence:  S 388(5)  Phang Yong Fook: bail revoked on grounds that accused was harassing and tampering with witnesses. High Court (on appeal, set aside revocation): a) mere statement or allegation of witness tampering without any evidence and without being proved beyond reasonable doubt cannot be the ground for bail to be cancelled. There must be evidence, oral or documentary or affidavit to support the application for revocation b) Factors in Wee Swee Siang not applicable in revocation c) Power to revoke must be exercised with care. F. Unbailable Offences  S 12 FIPA provides that all offences under the Act are unbailable  S 41(B) DDA provides that the following are unbailable:  Where it is punishable with death;  Where it is punishable with imprisonment for more than 5 yrs up to life;  Punishable with imprisonment for 5 years or less and the PP certifies in writing that it is unbailable.

 Ho Huan Chong: drug possession- Held: wrong for prosecution to state gross weight of drugs as it had no been determined by chemist  Leong Siew Hoong: charged with drug trafficking and gross weight of heroin was stated. Accused relied on Ho Huan Chong. Held: disagreed and pointed out that the offence of drug trafficking and drug possession are different. PP has discretion to decide which charge which then determines the question of bail. It is not the amount of drugs but the offence the accused was charged with.  Illamaran: charged under s 39B DDAfor trafficking 261 gm cannabis- relied on Ho Huan Chong. Held: s 41(1)(a) DDA operates as accused was charged under s 39B and hence it is unbailable. The mere prospect of a lesser weight does nt entitle the accused bail and the prosecution is under no duty to prove actual weight of the drug at the charging stage.  Chew Siew Luan: accused pregnant charged with drug trafficking which is an unbailable offence: Federal court: s41B DDA is a specific legislation and thus supercedes s 388 BAIL PENDING APPEAL

A) Bail Pending Appeal Against Conviction by accused  Ss 57 + 89 CJA: the Court of Appeal/ Federal Court may order bail pending appeal against conviction  S 311 CPC: the Trial Court may grant bail pending appeal against conviction. However, under s 315, only the High Court may grant bail pending appeal against acquittal.  Re Kwan Wah Yip: bail should not be granted unless there are special reasons 6F: i. gravity of offence ii. Length of prison term and length of time for the appeal to be heard iii. Whether difficult points of law are involved iv. Whether accused is the 1st offender v. Possibility of being involved again in similar or other offences whilst released vi. Whether the security imposed will ensure his attendance before the appellate court  Dato Seri Anwar Ibrahim a) Presumption of innocence no longer a factor b) Factors differ fr that of pretrial bail c) Attendance in court is only a minor consideration d) Time lapse b4 the appeal can be determine in relation to the length of sentence imposed is a relevant factor. e) Crucial for applicant to show the presence of exceptional circs for the ct to conclude that justice can only be done if bail is granted f) Where reliance is placed on proposed grounds of appeal, they must be prima facie very strong g) That public confidence in the admin of justice requires that judgment should be enforced, hence a person convicted of a serious offence, particularly a repeat offender, should be denied bail h) making bail readily available after conviction will encourage many unmeritorious appeals  Tan Choon Ein: granted bail because accused is of ill health- wrong- not a special circumstance- apply principles in Anwar- serious offence, repeat offender  Whether sentences are stayed on appeal:  Sin Yong Chang: where sentence is only a fine, it must be paid. If it is paid then the accused may be called upon to furnish bail pending his appeal against conviction  Sharma Kumari: the grant of a stay of execution should be applied for in the first instance in the court that passed the sentence, and if refused, an application may be made before the court to which an appeal is made. B) Bail pending appeal against acquittal by Prosecution  Ss 56A + 88 CJA: the Court of Appeal/ Federal Court may order bail pending appeal against acquittal  S 315 CCP: if prosecution files appeal against acquittal, then appellate ct may issue a warrant of arrest. Once the acquited accused has been arrested and brought before the appellate court will decide whether to grant bail.

 Ment: a) S 315 shows parliament's intention that the grant of bail is the rule and committal to prison without bail is an exception b) Discretion in favour of prosecution is exercised sparingly and only if there are special circs c) Bail amount must be realistic d) The mere fact that prosecution has submitted an appeal does not itself constitute special circs e) It is desirable to order an early hearing of appeal. APPEALS AGAINST BAIL DECISIONS Appeals may be made under: 1) S 394 CPC by petition by prosecution to cancel bail (Sulaiman)  file notice of appeal --> wait for ct's grounds of decisions--> file petition of appeal 2) S 389 CPC by motion usually by the accused to grant or vary bail  By way of motion supported by affidavit (Sulaiman)  Low Chit Bah: bail of $1m in 2 sureties not excessive as the case involved $3.9m, accused previously travelled on forged passport; and flight risk. BAILORS  s 390 Bond to be executed  S 391 Person to be released  S 392 when warrant of arrest may be issued against person bailed  S 393 Sureties may apply to hv bond discharged  Mohan: A bailor does not hv locus standi under s 394 to reduce bond  Lee Eng Hoe: proposed bailor has locus standi under s 389 for an amount of bail being reduced. FORFEITURE OF BONDS  S 403 Deposit instead of bond  S 404 Procedure on forfeiture of bond  Show cause procedure: s 404(1) Khor Ewe Suan: a) Prosecution must first prove that the bailors (sureties) executed the bail bond. The bail bond must be produced and proved by calling the registrar, magistrate or president who granted bail. b) Then the sureties must be given the opportunity to cross-examine all witnesses. The sureties should also be allowed to give evidence and call witnesses to explain why ct should not forfeit bail sum  Forfeiture of bonds to be paid in full and not by instalments (Ramlee)  When is sufficient cause shown  Ahmad bin Khasiran: hearing dates not mentioned in bond but notice of hearing issued- no sufficient cause  Ramlee: surety showed sufficient cause as he had taken steps to ensure attendance of the accused

 Valliamai: surety attended ct several times to get herself discharged as surety but was not given the opportunity. Sufficient cause.  Yap Kin Kok: going overseas not sufficient cause