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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

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