BAIL

BAIL1DEFINITIONTraditionally, bail is some form of property which is deposited or pledged to a court in order to persuade it to release a suspect from custody, on the understanding that the suspect will return for trial or forfeit the bail ("skipping bail" is also illegal).

2In most cases bail money will be returned at the end of the trial, if all court appearances are made. Whether the suspect is found guilty or not generally has no impact on the return of bail.

3Bail can always be legally denied for an offence which the governing legislature has determined to be unbailable.Under the current law of England and Wales, bail simply refers to the release of the accused before trial.

4Under current law, an accused has the right to bail unless there is sufficient reason not to grant it. Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, pay an amount into court or have someone act as surety.

5Release on bail is sometimes referred to as police bail, where the release was by the police rather than by a court. The alternative to being granted bail is being remanded into custody (also called being held on remand).

6TYPES OF OFFENCES7BAILABLE NON-BAILABLEUNBAILABLE 3 years deathSpecific provisions in statutes, s 388 Prerogative of accusedDiscretion of court Absolutely unbailable8BAILABLE OFFENCES an offence shown as bailable in the First Schedule to the CPC or which is made bailable by any other law for the time being in force.[1]

[1] CPC, s 2(1).

9Columm 5 of the First Schedule to the CPC prescribes the Penal Code offences which are bailable or otherwise. For offences against laws other than the Penal Code, the first schedule provides that any such offence punishable with imprisonment for less than 3 years or with fine only shall be bailable.

10Bailable offences are offences where the accused person is entitled to be released on bail as of right. Mohd Jalil bin Abdullah v PP[1996]5MLJ564Although records for the applicants were might be bad, they were entitled to bail as a matter of right as the offence in question was bailable.

11Wong Kim Woon v PP[1999]5 MLJ 114the words shall be released on bail, given their literal and natural meaning, mean that bail must be offered. This has been so held in R Lim Kwan Seng. In Mohd Jalil, Nik Hashim JC held that bail is mandatory under s 387. I respectfully agree with these views.12A person who is entitled to bail under s 387 is one who is:(a) accused of a non-bailable offence; and(b) arrested or detained without warrant; or(c) appears or is brought before a court and(d) is prepared to give bail.

13Appearsis used in relation to the issue of summons whereas the expression is brought before a court is used in relation to the issue of a warrant. 14

Michael Raymond Taylor v PP [1989] 3 MLJ 212 Appellant was served with a summons requiring him to attend court to answer charges under the Singapore Companies Act. On the return date of the summons when he appeared before the Magistrate, the proceedings were adjourned and the appellant was released on bail of $150,000 with one surety. 15The appellant appealed against the magistrates order requiring him to furnish bail. His main argument was that the magistrate had no power to make such an order. He argued that since he had appeared in court in obedience to the summons, he did not come within the category of persons set out in s 351 of the Singapores CPC (in pari material with s 387). 16He further contended that only after he had failed to appear in court could the magistrate issue a warrant for his arrest and endorse on the warrant a direction requiring the furnishing of bail. The appeal was dismissed on the ground that appear does include situation of appearing in compliance to a summons previously served whereas the latter phrase is brought before a court refers to the issue of a warrant.

17The following cases upheld Michael Raymond Taylor:Madjai Sanusi v PP [2000] 5 CLJ 1PP lwn Roseli Abdul Rahman [2009] 8 CLJ 803Counsel for the accused argued that the bail imposed by the Magistrate ought to be revoked because accused appeared in answer to 2 traffic offences. The argument was rejected and further, The Magistrates action in imposing bail was held to be justified as the accused acted rebelliously against the police and the bail is necessary to ensure attendance in court later.

18NON-BAILABLE OFFENCE Non-bailable offences are those offences clearly categorized in the First Schedule to be not bailable and also other than those made bailable in the First Schedule or any other written law being in force. 19For offences under the Penal Code the First Schedule provides that where the offence is punishable with death or imprisonment for seven years or upwards, or for three years and upwards but less than seven years, the offence is not bailable.

20The general rule is that where an offence is non-bailable, the presiding judge has a discretion whether or not to grant bail based on certain factors.

21

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

a) Non-bailable Offences other than those punishable with death or life imprisonment;b) Offences punishable with death or imprisonment for life where there are no reasonable grounds for believing that the offender is guilty of the offence;c) Offences punishable with death or imprisonment for life where there appears reasonable grounds for believing that the offender is guilty of the offence;d)Offences punishable with death or imprisonment for life where there appears reasonable grounds for believing that the offender is guilty of the offence but the offender is either below 16 years of age, or a woman or a sick or infirm person. 22For categories (a) and (b), discretion is given to the court to grant bail. In exercising its discretion, the court is to consider the gravity of the offence and exercise its discretion judiciously.

23In granting or refusing bail, the courts generally take into consideration the following factors: (Mallals Criminal Procedure Code)

24(1) nature and gravity of the offence charged;(2) nature of the evidence in support of the charge;(3) whether there was reasonable ground for believing the accused guilty of the offence;

25(4) severity and degree of punishment which conviction might entail;(5) the guarantee that the accused, if released on bail, will not either abscond or obstruct the prosecution in any way;(6) the danger of the offence being continued or repeated;

26(7) the danger of the witnesses being tampered with;(8) whether the accused, if released on bail, is likely to tamper with prosecution evidence;(9) whether the accused is likely to get up false evidence in support of the defence;(10)the opportunity of the accused to prepare the defence;

27(11) the character, means and standing of the accused;(12) the long period of detention of the accused and probability of further period of delay.

28

Cases on (a)

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

29Che Su binti Daud v. PP, [1978] MLJ 162 It is the net result of all the considerations for and against the accused which will ultimately decide the matter. 30In Dato Seri Anwar Ibrahim v PP the High Court judge in refusing bail and referring to Wee Swee Siang said that any allegation that the accused is tampering or attempting to tamper with evidence would be a cogent ground for refusing bail.On appeal, it was further held that mere allegation of tampering by the prosecution is insufficient; some material on record is required to give indication of such possibility of tampering. 31In passing, Lordship Lamin stated:

Tremendous noise caused by shouts is heard every day of the trial, particularly at the time when the court adjourns for the day and the appellant is making his exit from this building. This has become public knowledge. I consider such noise to constitute a breach of the peace. I can well imagine the kind of situation that can prevail if the appellant is free to move about when the trial is not in session; the police will have no option 32but to deploy extra manpower more than what you can see around the court building since the commencement of the trial, of course at the expense of the public fund in order to maintain peace and order. To my mind, this sort of situation must be treated as another factor to be considered by any court as a ground for refusing bail.

33Cases on (c):In Regina v Ooi Ah Kow [1952] MLJ 95 Spenser-Wilkinson J held that the learned magistrate had no power to release the accused on bail as there were reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life.

34The phrase offence punishable with death or life imprisonment must be given a disjunctive interpretation. In Re KS Menon the court observed that to read as if it referred only to offences punishable with the alternatives of death or penal servitude for life, would lead to absurd conclusion that a man charged with an offence punishable with death only will be in a better position as regards obtaining bail than if he were charged with an offence punishable with death or penal servitude for life. 35However, a point to note that although this provision is mandatory, the court has no discretion to grant bail in cases where there are reasonable grounds to believe that the accused of such crime. If there are no reasonable grounds to believe so, the discretion is thus exercisable. 36In any case, the court has to bear in mind the proviso. In practice however, the courts have been reluctant to grant bail to these group of persons and instead were seem inclined to look for exceptional and special reasons.

37

PP v Latchemy

Respondent a woman charged with murder and punishable only with death.Magistrate granted bail and PP appealed. Appellate judge acknowledged the discretion but stressed that it should be exercised sparingly and judiciously depending on the reasons of each particular case. 38The criterion which the Magistrate should allow bail is only those cases where he is convinced that the reasons put forward by the applicant are said to be exceptional and very special reasons.39In the present case, the grounds upon which the Magistrate relied upon were:Accused is a mother of ten children and,the youngest of them is still under breast feed.40The appellate judge held that those reasons fall short of being exceptional and very special reasons and therefore should have been refused by the Magistrate.41Che Su binti Daud v PPA woman was accused jointly with her husband and brother for trafficking in dangerous drugs punishable with the alternatives of death or life imprisonment under the then s39B DDA. 42Accused had only 6 children and youngest of whom was still breast-feeding.Judge held that the fact that she was jointly charged and that the offence of drug-trafficking appeared to be less serious than murder seemed to distinguishable from Latchemys case and therefore entitled Che Su to bail.43Respectfully, the decision had been erroneously decided on the aforestated reasons and also the fact that s41B which makes it mandatory for refusal of bail for anyone charged with committing offence under s39B.Re Chew Siew Lun44Leow Nyiok Chin v PP [1999]1MLJ43758 year-old woman charged with murder of her husband.Again, although judge rightly held that the applicant comes squarely within the purview of the proviso to s 388, bail was denied as the grounds relied upon did not constitute exceptional and special reasons.45In this case, the defence counsel attempted to rely on the facts that further detention can drive her to permanent insanity unless she receives the medical treatment and family support. Court weighed this in comparison with the gravity of the offence committed and decided in favour of the latter.46In contrast to the inability of the prosecution to show reasonable grounds, learned counsel submits that even at this stage of the proceedings, there are reasons to believe that the accused may never be convicted of the offence charged. 47Such reasons are afforded first, by the cautioned statement made by the accused to the effect that she had no inclination of what happened on the night of the incident, and second, by a medical report on the state of mind of the accused, issued by Hospital Bahagia on 30 October 1998 which negates any grounds, if they exist, for believing the accused is guilty of the offence charged. 48The accused is therefore clearly eligible to bail under the main provisions of s. 388(i) CPC without even having to rely upon the proviso thereto which specifically states that the Court may grant bail to any person who is under 16 years or a woman, or is ill or infirm. Learned counsel has also set out suggested conditions upon which bail should be granted. 49Grounds relied on by defence counsel:(a) accused is a woman and so eligible for bail under the proviso to s. 388(i) CPC;(b) accused has been a law abiding person with no previous record or trouble with the law; (c) accused is unlikely to jump bail because of her strong family ties in Malaysia; 50(d) due to her medical condition she needs psychiatric and/or medical attention failing which she could become permanently ill; (e) she is unlikely to reoffend and is no threat to society; (f) she is incapable of intimidating any prosecution witness or interfering with prosecution evidence; 51(g) she requires the constant care and emotional support of her family to help her recovery, failing which she will become permanently insane; (h) the character and standing of the accused should be considered; (i) she needs to consult her solicitors to prepare her defence and to remain emotionally stable and needs to be in a place which provides mental, physical and emotional stability. 52DPP opposed on 2 main grounds:(a) murder is an offence punishable with death and under s. 388(i) CPC, the court shall not grant bail in non-bailable offences punishable by death where it appears there are reasonable grounds for believing the accused is guilty of such offence. This is such a case. 53(b) even if the proviso to s. 388(i) CPC applies, no special and exceptional grounds have been shown why the accused should be granted bail. 54Ground (a):In support of the above, the learned DPP points out that at this stage of the proceedings, there is no requirement for the prosecution to produce evidence to prove the guilt of the accused beyond reasonable doubt. All the prosecution needs to show is that there appears (bold mine) reasonable grounds to believe the accused is guilty of murder. 55Such requirement is sufficiently established by the facts revealed in the charge preferred against the accused and from the consent of the Public Prosecutor to the institution of these proceedings. It can be gathered from these documents that prima facie, there appears reasonable grounds for believing the accused is guilty of murder; 56Ground (b):It is the learned DPP's submission that the matters stated in the medical report do not afford special and exceptional grounds. It is not any sickness that would entitle an accused person to bail. The sickness must involve a risk to life. In support the learned DPP refers to Sohoni's The Code of Criminal Procedure 1973, 2nd Edn. p. 4554. The learned DPP points out that it is stated in the medical report that the accused is now receiving treatment and that she is fit to plead. 57Judge held:that the accused's application for bail falls for consideration under the proviso to s. 388(i) CPC. Therefore, whether or not the accused is to be granted bail will depend on whether this is a proper case for the court to exercise its discretion in favour of the accused. That discretion is a judicial one to be exercised according to correct principles and considerations. 58DPP, cited Sohoni, on matters for consideration in granting/refusing bail(1) whether there is or is not reasonable ground for believing the accused is guilty of the offence; (2) the nature and gravity of the offence; (3) severity and degree of the punishment prescribed;(4) the chances of the accused absconding, if released on bail; 59(5) the character, means and standing of the accused; (6) the danger of the offence being repeated or continued; (7) the danger of witnesses being tampered with; (8) opportunity of the accused to prepare for her defence; 60(9) the long period of detention and probability of a delay for a further period; (10) the larger interest of the public. 61Matters not in controversy: The accused is 58 years old, has a previous good record and is of good standing in society. There is no suggestion that if granted bail the accused will tamper with evidence or intimidate prosecution witnesses. Accordingly, these matters which form grounds (a), (b), (f) and (h) of her application weigh in her favour. 62The state of health of the accused. Learned counsel has tendered in court a medical report from Hospital Bahagia, dated 30 October 1998 and put forward three grounds based on medical reasons in support of bail, namely, (i) due to her medical condition (she is still on medication) the accused needs to obtain psychiatric and/or medical observation which will be made easier if she is on bail; 63(ii) accused needs help of the kind that will cure her mental disease and arrest it before it progresses further into something permanent and (iii) accused requires constant care and emotional support to speed up her recovery, and this can be provided by her family, failing which, accused would be driven to insanity and unfit to plead. 64To prepare for her defence, the accused needs to be in a place which provides mental, physical and emotional stability. These constitute grounds (d), (g) and (i) of her application. 65Judge found no merit in the submission on medical grounds!..From what was stated above, I cannot find in the medical report material to suggest, as learned counsel has, that the accused is in danger of being driven to permanent insanity unless she receives the emotional support and care that the family will provide. 66.....There is also nothing in the report to suggest that the treatment which the accused needs cannot be obtained while in detention or that she will be deprived of such treatment or attention while in custody. The report states that the accused is now under treatment. 67With regard to the submission that the psychiatric and/or medical observation which the accused needs will be made easier if she is on bail, I cannot regard convenience as a matter the court will give any weight to in an application for bail. I do take into account the recommendation in the report that the accused be placed in an environment to provide her mental, physical and emotional stability but in considering whether to give effect to such recommendation I must bear in mind the nature of the illness afflicting the accused. 68. The report states that the accused suffers from major depression with psychotic features, symptoms of which include hallucinations, delusions and suicidal tendencies. On a weighing of these factors, the larger public interest outweighs that of the accused's and militates against the grant of bail. 69For the same reason I entertain doubts on the submission that the accused is unlikely to reoffend and is in no way a threat to society (ground (e)). Similarly, whilst it is submitted that it is unlikely that the accused will jump bail (ground (c)), the report points to the suicidal tendency brought about by her illness which I feel I cannot ignore since it is of immediate relevance when considering whether the accused will appear for her trial if allowed bail. The revelation of such a tendency, when taken into account leans against the grant of bail. 70In addition to the above considerations, I also take into account the gravity of the offence with which the accused is charged - that of murder, the seriousness of which is reflected in the punishment for such offence - death. 71As pointed out in the case of PP v. Latchemy [1967] 2 MLJ 79, in cases where the offence is punishable with death, the court's discretion should be exercised sparingly and judiciously and bail should only be granted where the reasons put forward for its grant are said to be exceptional and very special reasons. For the reasons already given, I have not found the medical condition of the accused as affording her any exceptional or special reasons for bail. Neither do any of the other grounds relied upon by the accused. 72LEOW NYOK CHIN (NO 2) V. PP Appeal to the High Court on refusal on Magistrate to exercise discretion to consider bail during the stages of her confinement.73(a) pending the arrival of the consent of the Deputy Public Prosecutor; and/ or (b) pending the transmission of the case to the High Court; and/or (c) pending further investigation under s. 388(ii) CPC; and/or (d) pending the trial, if any, before any such court; (e) alternatively, the accused be remanded at the security ward of the Hospital Bahagia, Tanjung Rambutan, Perak Darul Ridzuan. 74The issues became irrelevant as the same judge had considered the propriety of granting bail in the earlier case (No 1) which was refused.Judge had 2 options either to remit case back to Magistrate (irrelevant as case remitted to High Court) and if not possible, hear application for bail himself which he did.75But Judge stressed that a magistrate's court does have power to consider granting bail to those persons mentioned in the proviso to s. 388(i) CPC notwithstanding that the offence they are charged with carries the death sentence or life imprisonment. 76Whether or not bail is actually granted is a matter which a magistrate must decide on the merits disclosed in each particular case and in accordance with settled legal principles upon which a judicial discretion is exercised (PP v. Wee Swee Siang [1948] MLJ 114). 77Balwant Singh v PPThe accused, an advocate and solicitor, was charged with the offence of murder for allegedly shooting one, Gobalakrishnan, resulting in death at Jalan Maaruf, Bangsar in Brickfields. He claimed trial and his lawyer then applied for bail in pursuant to s 388 of the CPC. The main premise upon which the application was made is the proviso to s 388, under the terms sick or infirm and supported with extensive medical evidence of the accuseds condition. 78The defence contended that the medical condition of the accused brings the case within the proviso to s. 388(1), particularly upon quoting Saikia J in Khagendra Nath Bayan and Anor v State of Assam[1]:

[1] [1982] Cri LJ 2109 at 2112.79The proviso to Section 437(1) (our section 388(1)) speaks of any sick or infirm person. Infirm according to the Concise Oxford Dictionary means physically weak, specially through age. According to Websters New Twentieth Century Dictionary, infirm means weak, not strong; not firm or sound physically; feeble. Infirmity is naturally concomitant with old age. When the learned Magistrate used the expression too old it could not, therefore, be said that the case did not fall under the proviso. The sickness envisaged is such as results in infirmity of the person.80Defence counsel tendered extensive medical report made by GP, who had been taking care of applicant since 1967The report enumerates the serious diseases and ailments that the accused is afflicted with, among others, serious heart ailments with a history of two by-pass operations coupled with hypertension and diabetes, thus making him easily susceptible to heart attack. He also has diabetic neuropathy resulting in reduced sensation in his feet and an inability to feel normal pain in the feet, a condition which is unsafe as it may lead to ulcers in the feet which may in turn result in gangrene and amputation. Additionally he has developed pyelonephritis which can progress to severe kidney failure. In short, the medical report reveals that the accused is a fragile person with various medical ailments weighed with his advanced age.81This is also a necessary inquiry to be made to facilitate the exercise of the discretion in the granting of bail. The determination of the existence of reasonable grounds can be done with ease if the deposition recorded at a preliminary inquiry, as in the past, is before the court. In the absence of such a record judge considered it necessary to first determine the nature of material that must be made available to the court in order to make a decision.

82Che Su Bt Daud v PP[1978]2 MLJ 162:But apart from stating that the fact that the accused/applicant has been charged showing that there was sufficient evidence against her, the learned Deputy Public Prosecutor was reluctant or unable to inform the court of the nature of the evidence in support of the charge and considered that it was not right for the prosecution to disclose any evidence to the court at that stage..

83Che Su Bt Daud v PP[1978]2 MLJ 162:I realised that at an early stage it was not possible to have evidence from the prosecution to establish the guilt of the accused beyond reasonable doubt. (See Keshu Vasudeo Kortikar v. EmperorAIR [1933] Bom 492). But since an application for bail had been made at an early stage the prosecution should satisfy the court that it would be able to produce good prima facieevidence in support of the charge.

84Govinda Pillai J in State v Velappan Kochunny[1952]Cri LJ 1087When an application for bail is made in the initial stage of the case, the Magistrate may expect the prosecution to satisfy him that there is a genuine case, and that it will be able to produce 'prima facie'evidence in support of the charge, but he cannot expect at that stage to have evidence establishing the guilt of the accused beyond reasonable doubt vide Keshav Vasudeo v EmperorAIR [1933] Bom 492. As pointed out in Emperor v. Muhammad Panah36 Cri LJ 811 (Sind) the section speaks only of reasonable grounds and not evidence.

85Thus the court is not required to go into the details of the evidence at this stage (see Fazal Nawaz Jung and Anor v. State of HyderabadAIR [1952] Hyd 30). The court must therefore decide the existence of the reasonable grounds on the materials before it and not what may be unfolded later.

86Accordingly, the judge said.I advised the prosecution that something in the nature of an opening address may suffice. This must, of course, refer to the evidence to be adduced in support of the assertions made in the statement. This will be sufficient for the court to ascertain whether the prosecution will be able to produce prima facie evidence in support of the charge. .87As the section speaks only of the existence of reasonable grounds and not evidence there is no requirement to analyse the evidence that is to be tendered. The court must apply its mind to the materials made available. This process will preclude a detailed examination of the evidence to avoid any form of prejudice to either party.

88Judge went onThere can be no dispute that the charge faced by the accused is a very grave one. This, however, must be balanced against the failure by the prosecution to show that there are reasonable grounds for believing that the accused committed the offence that he has been charged with. This is the result of the press statement by the police to the effect that the act of the accused is justified. This favours the grant of bail

89It has also been held that where an accused could properly raise the plea of self-defence to a charge of murder it is a factor to be considered in granting him bail (see R v. Stewart[1946] 3 WWR 160). The gravity of the charge therefore does not weigh heavily against the accused. No argument was advanced by the prosecution to at least indicate that the accused would abscond or tamper with witnesses if released on bail. As I noted earlier these are matters of paramount consideration. 90This is because the very object of granting bail is to ensure that the accused will attend at the trial and that, while on bail, he will not interfere with the administration of justice by tampering with witnesses. While the prosecution did not address these issues the defence ensured that such infractions will not occur. I find no reason to disagree as even the police did not consider it necessary to arrest the accused after the incident.

91The 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. 92Though 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

93It may not be in the public interest to grant bail to a person facing a murder charge. However, where the other factors favour an accused the requirements of public interest can be satisfied by imposing suitable conditions in granting bail. It is settled law that a court may impose conditions in granting bail (see PP v. Dato' Mat[1991] 2 MLJ 186, PP v. Abdul Rahim bin Hj Ahmad & Ors[1988] 3 MLJ 272).

94The exceptional circumstances of this case compelled me to conclude that the accused ought to be enlarged on bail subject to the imposition of certain conditions. I pause to add that the granting of bail in an offence of murder is not unprecedented. (quoted Indian and Australian cases)

95It was thus ordered that the accused be enlarged on bail in the sum of RM500,000 with two sureties with security to be furnished, subject to acceptance of the following conditions:(i) The accused is to surrender his firearm and the licence relating thereto to the police immediately;

96(ii) All passports to be surrendered to the court;(iii) The accused is to report to the police once in two weeks;(iv) The accused is to remain indoors from the hours of 6pm to 8am;(v) The accused is not to be present at any open public place or attend any public functions save for religious and family activities;

97(vi) The accused is not to leave Kuala Lumpur and Petaling Jaya without leave of court;(vii) The accused is to cease his legal practice within a period of one week from 8 August 2002.

9814-year-old boy case:This is the case of boy, alleged to have stabbed an 11-year-old girl and consequently causing her death. Initially, the boy was denied bail and for the first four months of his arrest he was detained at Kajang Prison, albeit with psychiatric sessions been carried out and adequately isolated from the adult offenders. 99Ideally, due to his age he should be dealt with under the procedures laid down by the Child Act 2001 but because the offence is one punishable with death, it was remitted to the High Court. Fortunately for him the case of Dato Balwant Singh took place and using that as a precedent, his lawyer argued that the boy too falls within the proviso so ought to be granted bail to which they subsequently succeeded.

100QUESTIONS :(raised in Kwan Hung Cheong v Inspektor Yusof Hj Othman & Ors [2009] 3 CLJ 496Is it lawful for the police to issue a police bail bond against the suspect who has been released by an order of the court AFTER remand under section 117 of the CPC?Is it lawful for the police bail bond to impose a condition that the suspect has to appear and report to the Police at a police station on a fixed date and which condition is then extended for an indefinite period for so long as the case against the suspect is still under police investigations?If either or both the above is/are unlawful, did it then amount to deprivation of the suspects personal liberty in breach of Art 5(1) of the FC giving rise to remedy/relief?101Question 1: issuance of police bail bond AFTER release under s117No therefore UNLAWFUL:S28 or s 29 cannot be read on its own giving the power to release suspect with conditionS388 : not applicable as records show that he (PO) applied for the release of the accused and Mr Lai on the police bail pending completion of police investigationMagistrate did not impose any condition upon the release of the plaintiffs thus it was unlawful for the police to do so.102Question 2: lawfulness of the police bail bond to impose a condition that the suspect has to appear and report to the Police No therefore UNLAWFUL:The requisite form that the plaintiffs had to sign provided that they undertook to appear BEFORE THE MAGISTRATE:S COURT and not at the police station therefore it is contrary to such order.

103Question 3: did it then amount to deprivation of the suspects personal liberty YES! And therefore they were entitled to damages!104Amount of Bail s 389The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested, but shall not be excessive: and a Judge may, in any case, whether there be an appeal on conviction or not, direct that any person admitted to bail or that the bail required by a police officer or Court be reduced or increased. 105The section permits only the High Court judge to direct bail to be reduced or increased whether there be any appeal on conviction or not (in India, the High Court or the Court of Session may direct that the bail required by a police officer or a magistrate be reduced)106Sufficiency of bailThe amount of bail should not be excessive but be reasonable in the circumstances of the case as being sufficient to secure the attendance of the person arrested or charged with an offence. An excessive bail bond may defeat the granting of bail as the accused may find difficulty in getting a bailor acceptable to the court. The reason arises from the principle & the basis of our criminal law that the accused is presumed to be innocent until proven guilty. Re Manickam & Ors107An excessive bail has the effect of punishing the accused even before he is found guiltyIn fixing the amount of bail the court has to consider circumstances of each particular case , for eg., co-operation with police or accused had benefitted from the fruits of his crime

[Zulkiflee bin Hj Hassan v PP [1987] 2 MLJ 527]108Low Chit Bah v PP [1986] 1 MLJ 297Singapore High Court refused to reduce a bail of $1 million in two sureties since there was every likelihood that the applicant would abscond from Singapore to evade trial if bail was reduced109Various factors to consider in setting the quantum of bail (Vincent J in Soo Shiok Liong v Pendakwa Raya [1993]2MLJ381):Nature & gravity of offence & severity & degree of punishment which conviction might entail;Quantum should be higher in non-bailable offences;An excessive quantum may defeat the grating of bai;Principle & basis of criminal law accused presumed innocent until proven guilty;

110whether there is a likelihood of the applicant absconding if the quantum set too low;Bail is not intended to be punitive but only to secure attendance so amount to be fixed with due regard to circumstances;His surrender of his international passport should go to reduce the quantum of bail;

111The fact that accused had presented himself at the police station & had co-operated with the police should also go to abate the quantum;Quantum should not be set so prohibitively high as to have the effect of incarcerating the accused before he is convicted;Application of the courts mind in considering the above factors ought to be reflected in the judges records.112Bond to be executed s 390(1)Before any person is released on bail, or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail by one or more sufficient sureties, conditioned that such person shall attend at the time & place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.(2) If the case so requires the bond shall also bind the person released on bail to appear when called upon at the High Court or other court to answer the charge.

113Section 390 lays down the nature and contents of the bail bonds to be executed by the accused and sureties, before a person is released on bail.The provisions are imperative and must be strictly fulfilled114In practice, defence counsel would alert a close relative with some means to stand by as his surety/bailor.Sureties are to deposit some security, be it in a form of a fixed deposit receipt, savings passbook or even land title together with valuation report, of value equivalent to the bail sum in addition to the execution of the bailbond itself115Can cash bail be imposed?No by reading s 403 and 390 together.When a person is required to to execute a bond with or without sureties, the person may be permitted to deposit money in lieu of executing a bond. Both sections read together does not permit cash bail to be imposed. (Lau Kun Seng v PP[1997]5 MLJ323)116Person to be released s 391S 391(1) provides that upon the execution of the bail bond, the person for whose appearance it has been executed shall be releasedWhen the court orders the release of an accused under this section, it has no right or power to put any restrictions on his movements, since the intention is that the surety should have the control over the movements of the accused freedom of movement is not absolute!117When warrant of arrest may be issued s 392Applies to cases where there are insufficient sureties due to mistake, fraud or otherwise.The section only allows the court to increase the amount of bail where after further inquiry, the case turns out to be a more serious one than earlier imagined.118Conditional BailNo express provision in CPC providing for conditions to be included in any bail.The court may, however, impose reasonable conditions in addition to stating the amount of bail.119Zulkiflee Hj Hassan v PP[1987]2MLJ527High Court reduced the initial sum from RM1million in 2 sureties to RM200,000 in 2 sureties together with the impounding of both his international & restricted passports.Initial sum was held to be punitive in nature120Lim Kiap Khee v PP[1988]1MLJ198High Court held that Sessions Court had no power to impound the accuseds passport as the order was not made as one of the conditions of bail. 121Fine distinction was drawn between:Impounding of passport (which is not permitted)Requiring the accused to surrender his passport as one of the conditions for being admitted to bail permitted122PP v Dato Mat [1991]2MLJ186In discerning the power of the Court in granting or refusing bail under s 388, the High Court relied on Indian authorities which seem to favour the view that when such discretion is given, that discretion in itself implies a discretion to grant bail subject to certain conditions. 123Supreme Court recognised the fact that a condition in the bail bond is merely a complimentary security which reduces a large amount of bail which the court would otherwise require.124The practice to do so had gained judicial recognition in the courts in both India Msia on the rationale that such condition would provide an adjunctive or supplemental security towards ensuring the attendance of the arrested person at his subsequent trial. No person can be admitted to bail under s 388 or 389 purely on his undertaking to abide by some conditions alone without binding himself to forfeit a certain sum in the event of his default, but a person may be released on bail without any condition attached to it

125Such condition..is not the principal but only a complementary security to be applied concomitantly with the amount prescribed in the bail bond. Such condition in the bail bond would have a persuasive effect of reducing a larger amount of bail which would have been otherwise required by the court. 126To put it another way- a court may require a certain large amount to be deposited in respect of a non-bailable offence but would be willing to reduce it to a lesser sum on the undertaking of the detained person to surrender his passport.127Discharge of Surety s 393Situation may change and surety(s) may not wish to continue as acting as oneSection 393 provides:.may at any time apply to a Magistrate to discharge the bond either wholly or in part or so far as relates to the applicants.128Valliamai v PP[1962]MLJ280Mother-in-law stood surety to son-in-lawSubsequently decided to discharge & came to court & met the registrar for the purpose of being relieved from the bond.Registrar advised to apply when case came up for hearing on Dec 20 1961. She was present but case postponed to the next day. On that day proceedings were concluded with the despatch that she was unable to make her application to the President

129Subsequently accused absconded and the learned President, dissatisfied with explanation given, ordered the full sum of RM2000 to be forfeited.She appealed.130On appeal (Ong J):There was an oversight by both President & registrar of s 393(i) of the CPC.Registrar is ex-officio a gazetted 2nd Class MagistrateAppellant had appeared twice 18/19 and again 20th Dec her application could have been attended to then and there by the President and if not there, by the Registrar.131Accordingly, in allowing for such oversight, registrar should then have taken time to make a note of the application & left it on top of the file so that the President would take notice when the case came up on 20 and 21 Dec.Sufficient cause been shown, order of forfeiture was set aside and the sum forfeited to be returned.132Application and/or appeal against bail decisions or successive applicationss 394 confers right to appeal to the High Court for any person aggrieved by any order or refusal by any inferior courts 389 allows such person to proceed instead by way of an application to the High Court via notice of motion supported by an affidavit.

133Contrast between these 2 was commented (Sulaiman bin Kadir v PP[1976]2MLJ37)Appeal requires notice to be made to the subordinate court who can then state its reasons for refusal before petition of appeal can be filed and eventually heard.Application by notice of motion supported by affidavit can be made immediately upon refusal without notice to subordinate court but notice to the PP on the same day or very soon after!134Which is preferable & proper?Obviously s 389 for the following reasons:Person should not be kept longer in custody than necessary.Absolute discretionary power to High court to vary bail from time of arrest up to conviction:135It may grant when bail is refused;May reduce if amount is excessive;May increase if insufficient; May not order custody if bail has been granted.

136Section 394 intended to deal withMatters not provided for under s 389, for e,g., if a person has been admitted to bail contrary to section 388(i) of the CPCNote: Dato Seri Anwar Ibrahim [1999]137Re-application for bail?Possible, to the same court that rejected the bail and if there is a change in circumstances, bail may be granted. PP v Abdul Rahim bin Hj Ahmad [1988]3 MLJ 272Where there is no material change in circumstances, subsequent application(s) may be unsuccessful.Michael Lee v PP [1999]1MLJ171- 2 applications rejected by Sessions Court, 3rd also unsuccessful before the HC. At 4th application, judge conceded that renewed application in HC is possible provided there is material change in the circumstances

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