Chapter 10 - Bail Flashcards

Question 1

Q

BAIL

Overview

Answer

A

1) General principles on bail
2) Bail pending trial
3) Bail pending appeal
4) Quantum & conditions of bail
5) Execution of bail
6) Bailors
7) Appeal against bail decisions
8) Bail under Child Act

Question 2

Q

GENERAL PRINCIPLES ON BAIL

Overview

Answer

A

1) Meaning of bail
2) Purpose of bail
3) Whether decision for bail is appealable
4) Types of bail

Question 3

Q

GENERAL PRINCIPLES ON BAIL

Meaning of bail

Answer

A

Yusof bin Mohamed v PP:

Bail means security taken from a person to appear on a fixed date before a court;
To set free a person who is under arrest, detention or some kind of restraint.

Question 4

Q

GENERAL PRINCIPLES ON BAIL

Purpose of bail

Answer

A

Mohamad Jalil bin Abdullah & Anor v PP:

To secure an attendance of the accused person, at a certain day and place to answer the charge against him.
Bail should not be withheld as punishment.

Question 5

Q

GENERAL PRINCIPLES ON BAIL

Whether bail decision is appealable

Answer

A

1) Appeal - PP v DSAI:
- the matter of “bail” is made pending the trial, and extraneous or irrelevant to the issues to be determined in the main case, therefore is not appealable in Court of Appeal as it does not finally dispose of the rights of the parties with regards to the main issue.
2) New application - Michael Lee v PP:
- There can be new application for bail (instead of appealing against refusal to grant bail), provided that the consideration of the court on the reapplication should touch on a material change of circumstances & not the circumstances which were considered in the previous application.
3) Application via revision:

S.323;
S.325.

4) Appeal via notice of motion:

To CA: r.72 RCA;
To FC: r.102 RFC.

Question 6

Q

GENERAL PRINCIPLES ON BAIL

Types of bail

Answer

A

1) Bail pending trial - bail granted pending disposal of the case.
2) Bail pending appeal - bail granted pending disposal of appeal or known as stay of execution.

Question 7

Q

BAIL PENDING TRIAL

Overview

Answer

A

1) Classification of offences
2) Bail for bailable offence
3) Bail for non-bailable offence
4) Bail for unbailable offence
5) Bail under SOSMA

Question 8

Q

BAIL PENDING TRIAL

Classification of offences

Answer

A

1) Bailable offence:
- S.2(1) + First Schedule
2) Non-bailable offence:
- S.2(1) + First Schedule
3) Unbailable offence:

S.12 FIPA
S.41B DDA

Question 9

Q

BAIL FOR BAILABLE OFFENCES

Overview

Answer

A

1) The law & scope
2) Whether bail is mandatory
3) Qualifications for bail entitlement
4) Bail & remand
5) Additional conditions
6) Address for service
7) Revocation of bail for bailable offence

Question 10

Q

BAIL FOR BAILABLE OFFENCES

The law & scope

Answer

A

1) The law:
- S.387
2) Scope:

-

Question 11

Q

BAIL FOR BAILABLE OFFENCES

Whether bail is mandatory

Answer

A

1) Trite - Mohd Jalil bin Abdullah v PP:

“shall be release” on bail is mandatory.
entitled to bail as a matter of right NOT A FAVOUR.
no question of any discretion in granting bail.

2) Recent - Chew Xing Jie v PP (HC, 2020):

the term ‘shall be released on bail in section 387 (1) of the CPC is mandatory.
By virtue of this provision a person accused of a bailable offence is entitled to bail as of right.

Question 12

Q

BAIL FOR BAILABLE OFFENCES

Qualifications of entitlement of bail

Answer

A

Wong Kim Woon v PP:

must be prepared to post bail or furnish the requisite sureties or securities.
remand provision under S.117 must not be invoked;
wherever terms of bail are breached, there is power to revoke or cancel the bail originally granted.

Question 13

Q

BAIL FOR BAILABLE OFFENCES

Bail & remand

Answer

A

1) The law:

Bail: S.387
Remand: S.117

2) Which one will prevail - Maja Anak Kus v PP:

If S.117 is invoked & the Magistrate ordered a further detention, S.117 will prevail over S.387.
i.e. no bail while the suspect is in remand.

Question 14

Q

BAIL FOR BAILABLE OFFENCES

Additional bail conditions

Answer

A

1) trite - PP v Dato’ Mat:
- No additional conditions may be imposed when the accused is released on a bail for charge for bailable offences.
2) recent application - Chew Xing Jie v PP (HC, 2020):

Where an accused is entitled to bail as of right (as is in this case) there is no discretion to refused bail and the question of imposing conditions does not arise.
therefore, the conditions imposed by the learned Magistrate, specifically the surrender of the applicant’s passport and reporting at the nearest police station is annulled (dibatalkan ).
the passport of applicant shall be returned and that the applicant is not required to report at the nearest police station.
The amount of bail RM 3000 with one (1) Malaysian surety to remain.

Question 15

Q

BAIL FOR BAILABLE OFFENCES

Address for service

Question 16

Q

BAIL FOR BAILABLE OFFENCES

Revocation of bail for bailable offence

Answer

A

1) Fresh bail must be granted - Mohd Jalil bin Abdullah v PP

Upon revocation of the bail, he should have granted a new bail with sufficient sureties as he deemed fit.
Only if they fail to execute it, then the court is empowered to commit them to custody.
However bad the record of the accused may be, they are still entitled to bail as a matter of right, and magistrate cannot refuse bail and commit them to custody.
The Magistrate is wrong for not granting a new or fresh bail with increased quantum or more onerous conditions as he deemed fit when he revoked the previous bail.

2) Revoke the bail & no fresh bail shall be granted - Wong Kim Woon v PP:

The fact the accused had breached the bail order is prima facie a valid reason for cancellation or revocation, unless he has a good explanation.
Thus, the accused MUST be given an opportunity to be heard & explained of his breach.
There is no obligation that the court MUST extend the bail which has previously been breached - it all depends on facts & circumstances.
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.
It cannot be said there is an exercise of an inherent jurisdiction.
There is no contravention of s. 387 of the CPC for the revocation since bail has been granted, and a cancellation or revocation is simply a consequence of a breach of its terms.
Specific statutory power to cancel or revoke bail in such circumstances is unnecessary.

Question 17

Q

BAIL FOR NON-BAILABLE OFFENCE

Overview

Answer

A

1) The law, scope & etc
2) Exercise of discretion
3) Type 1 accused - no reasonable ground
4) Type 2 accused - there is reasonable ground to believe
5) Type 3 accused - there is reasonable ground but he is either child / woman / sick.

Question 18

Q

BAIL FOR NON-BAILABLE OFFENCE

The law, scope & etc

Answer

A

1) The law:
- S.388
2) Scope - Inspector Yusof Haji Othman v Kwan Hung Cheong:

It is lawful for the police to issue a police bail under S.388 against the accused person who had been released by a magistrate after detention under S.117.
S.388 assists the police & empowers the police to release the accused person on police bail;
This is so while the investigation is still in progress.

3) Address for service:
- S.436
4) EMD Requirement:

S.388A;
S.390A;
S.390B;
S.390C;

Question 19

Q

BAIL FOR NON-BAILABLE OFFENCE

Exercise of discretion

Answer

A

1) General - exercise of discretion - P v Latchemy:

the court’s discretion must be exercised sparingly and judiciously.
bail should only be granted where the reasons put forward for its grant are exceptional and very special reasons.

2) Scope - PP v Dato’ Balwant Singh (No. 1):

bail may be granted at the discretion of court for non-bailable offences.
bail shall not be granted for offences with death or life imprisonment if there appears reasonable grounds to believe that the accused is guilty of such offences.
even if there are reasonable grounds, bail can be granted at the discretion of the court.
Where an application for bail is made in case punishable with death or life imprisonment:
(1) Court must first determine if the proviso is applicable.
(2) Where the proviso applies, the accused is not entitled to bail as of right but only at the discretion of court as this is a case of non-bailable offences.
(3) The resultant matter is whether the court should exercise its discretion and grant bail.

Question 20

Q

TYPE 1 ACCUSED - NO REASONABLE ACCUSED

Overview

Answer

A

1) The law & scope
2) Factors for consideration
3) Additional considerations
4) Appellate interference

Question 21

Q

TYPE 1 ACCUSED - NO REASONABLE ACCUSED

The law & scope

Answer

A

1) The law:

S.388(1)
S.388(2)

2) Scope - Wee Swee Siang v PP:

The primary consideration for bail is to ensure the presence of the accused to stand his trial, and bail should not be refused lightly.
In the event that there is no strong grounds to believe that he is guilty, he should be granted bail.

Question 22

Q

TYPE 1 ACCUSED - NO REASONABLE ACCUSED

Factors for consideration

Answer

A

1) Wee Swee Siang v PP:

Whether there was or was not reasonable ground for believing the accused guilty of the offence, i.e. could have supplied some information by affidavit.
The nature and gravity of the offence charged.
The severity and degree of punishment that might follow.
The danger of the accused absconding if released on bail.
His character, means and standing (i.e. whether the accused is violent).
The danger of the offence being continued or repeated.
The danger of the witnesses being tampered with.

2) PP v DSAI:

mere allegations that the accused, if release, will intimidate the witness is insufficient reason to refuse bail.
some material of evidence must be put in support to substantiate the allegation. .

Question 23

Q

TYPE 1 ACCUSED - NO REASONABLE ACCUSED

Additional considerations

Answer

A

Che Sue bte Daud v PP:

The opportunity for the accused to prepare for defence;
The character, means and standing of the accused;
The long period of detention of the accused and probability of further period of delay.

Question 24

Q

TYPE 1 ACCUSED - NO REASONABLE ACCUSED

Appellate interference

Answer

A

Wee Swee Siang v PP:

High Court will not lightly interfere with the exercise of discretion vested in the lower Court.
Where the Sessions Judge refused bail after taking into consideration all the circumstances of the case, the High Court will not interfere with his order.

Question 25

Q

TYPE 2 ACCUSED - THERE IS REASONABLE GROUND

Overview

Answer

A

1) The law & scope

2) Discretion to grant bail

Question 26

Q

TYPE 2 ACCUSED - THERE IS REASONABLE GROUND

The law & scope

Answer

A

1) the law:
- S.388(1)
2) scope:

There is a reasonable ground to believe that he is guilty of the offence he is charged with, including the one punishable with death or life imprisonment.
There is no discretion to grant bail, except with special circumstances.

Question 27

Q

TYPE 2 ACCUSED - THERE IS REASONABLE GROUND

Discretion to grant bail

Answer

A

1) Re K S Menon:

High Court can grant bail if there appear reasonable grounds for believing that the Accused has been guilty of an offence punishable with death or with imprisonment for life SUBJECT to proof of exceptional and very special reasons.
OTF, there are no exceptional or very special reasons which would justify the exercise of discretion to grant bail.

2) Regina v Ooi Ah Kow:

GR: Magistrate had no power to release an 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.
GR: To refuse bail, there must be reasonable grounds for believing the guilt of persons charged with such offences first.
Exception: To grant bail, Court must look at very special reasons or exceptional circumstances.
i.e. in cases punishable with death and in cases punishable with penal servitude for life the High Court ought not to grant bail, except for exceptional and very special reasons.
OTF, there is no such exceptional or special reasons in the present case.

Question 28

Q

TYPE 3 ACCUSED - THERE IS REASONABLE GROUND BUT CHILD/WOMAN/SICK

Overview

Answer

A

1) The law & scope
2) Below 16 years old
3) Woman
4) Sick and/or infirm

Question 29

Q

TYPE 3 ACCUSED - THERE IS REASONABLE GROUND BUT CHILD/WOMAN/SICK

The law & scope

Answer

A

1) the law:
- Proviso to S.388(1)
2) scope:

There is a reasonable ground to believe that he is guilty of the offence he is charged with, including the one punishable with death or life imprisonment, BUT s/he is either:
child below 16 y/o
woman
sick and/or infirm

Question 30

Q

TYPE 3 ACCUSED - THERE IS REASONABLE GROUND BUT CHILD/WOMAN/SICK

Below 16 years old

Answer

A

KWK (A Child) v PP:

The accused was 13 years old.
HC allowed the application for bail subject to various conditions, including parents giving undertaking to supervise the accused.

Question 31

Q

TYPE 3 ACCUSED - THERE IS REASONABLE GROUND BUT CHILD/WOMAN/SICK

Woman

Answer

A

1) PP v Latchumy:

The accused was charged for murder under S.302 PC.
court must have looked for ‘exceptional and special’ reasons in considering whether or not to grant bail.
OTF, it is held that mother of 10 children and breastfeeding fall far short of being exceptional and very special reasons.
bail refused.

2) cf. Che Su bt Daud v PP (pre-amendment of 41B):

charged together with her husband and brother for trafficking dangerous drugs, i.e 39B DDA.
the court referred to considerations set by Wee Swee Siang and looked for exceptional and very special reasons in addition to invoking the proviso.
the fact that she is charged with her husband and her brother & the drugs charged appear to be less serious than murder in Latchumy afford the grounds for granting bail.
the trial was also unlikely to be heard for another 3 months; also affording the ground to grant bail.

3) cf. PP v Leong Yin Min (post-amendment of 41B):

the judge in Che Su did not make any reference to S.41B that expressly stated that offence punishable with death / life imprisonment under DDA is unbailable offence, thus bail ought not to be granted.
Ref. applicability of S.41B - to specific offences under DDA - PP v Ajim Otoh:
Based on the principle of generalibus specilia derogant the provision of s. 41B of the DDA prevails over the provision of s. 388(1) of the Criminal Procedure Code (CPC).

Question 32

Q

TYPE 3 ACCUSED - THERE IS REASONABLE GROUND BUT CHILD/WOMAN/SICK

Woman - recent departure

Answer

A

Samirah Muzaffar v PP (FC):

HC has erred in dismissing her bail application as HC should have considered that she gave her full cooperation to the police during the investigation.
The possibility of the accused tampering with potential witnesses was a vague assertion.
Bail granted upon conditions;
Court ordered the accused to surrender her passport pending the disposal of her case and told her to report to a police station once every two weeks.
She is also required to remain indoors between 6pm and 8am every day, and cannot leave Kuala Lumpur or Petaling Jaya without the court’s permission.

Question 33

Q

TYPE 3 ACCUSED - THERE IS REASONABLE GROUND BUT CHILD/WOMAN/SICK

Sick and/or infirm

Answer

A

PP v Dato’ Balwant Singh (No. 1):

When the sick accused is faced with grave charge, it must be balanced against whenever there is the failure of the prosecution to show that there are reasonable grounds for believing that the accused committed the offence he is charged with.
Medical report showing the accused in a very poor health and needs regular monitoring is preferable in circumstances for the accused to be in place where he can have access to immediate medical treatment.
The social status of the accused also assumes relevant along with the other circumstances of the case.
Where some other factors favour an accused, the requirement of protecting public interest can be satisfied by imposing onerous but suitable conditions for granting bail.

Question 34

Q

BAIL FOR UNBAILABLE OFFENCE

Overview

Answer

A

1) S.12 FIPA 1971
2) S.41B DDA 1952
3) S.13 SOSMA

Question 35

Q

BAIL FOR UNBAILABLE OFFENCE

S.12 FIPA 1971

Answer

A

1) The law - S.12 FIPA:
- No bail to be granted in respect of offences under this Act
(1) Bail shall not be granted to an accused person charged with an offence under this Act.
(2) Subsection (1) shall apply notwithstanding any other written law or any rule of law to the contrary.
2) Application - Chow Lin Choy v. PP (HC, 2010):

Notwithstanding the clearly worded prohibition, which is even fortified by the non-obstante clause in s. 12(2) in that Act, the High Court held that the courts still had the discretion to grant bail, which it did in that case on grounds of the medical condition of the accused.
“Walau apa pun peruntukan yang terdapat sama ada di bawah Akta Dadah Berbahaya mahupun di bawah Akta Senjata Api tersebut pada hemat saya apa yang lebih penting kesemuanya yang ada tidak boleh mengatasi Perlembagaan Persekutuan oleh kerana ianya adalah undang-undang tertinggi negara. Perkara yang menarik perhatian saya adalah terhadap perkara 5 dan perkara 8 yang berkaitan dengan keadilan sejagat dan kesamarataan….”

Question 36

Q

BAIL FOR UNBAILABLE OFFENCE

S.41B DDA

Answer

A

1) the law & scope
2) effect of S.41B
3) whether S.41B is mandatory
4) recent application
5) position pending chemist report

Question 37

Q

BAIL UNDER S.41B

The law & scope

Answer

A

1) The law:
- S.41B
2) Scope:
- Bail shall not be granted to an accused person charged with an offence under this Act:
* Where the offence is punishable with death; or
* Where the offence is punishable with imprisonment for more than five years; or
* Where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.

Question 38

Q

BAIL UNDER S.41B

Effect of S.41B

Answer

A

1) Loy Chin Hei v PP:
- certain offences under DDA are absolutely unbailable.
2) PP v Ajim Otoh:
- Based on the principle of generalibus specilia derogant the provision of s. 41B of the DDA prevails over the provision of s. 388(1) of the Criminal Procedure Code (CPC).

Question 39

Q

BAIL UNDER S.41B

Whether S.41B is mandatory

Answer

A

PP v Ilamaran, PP v Yap Sooi Kim, PP v Chew Siew Luan:

The provision of s. 41B of the DDA is mandatory therefore where the offence is punishable under s. 39A(2)(r) of the DDA, it is unbailable;
i.e. The court has no discretion to grant bail unlike a non-bailable offence which s. 388(1) CPC is applicable.

Question 40

Q

BAIL UNDER S.41B

Position pending chemist report - non-bailable

Answer

A

1) Ho Huan Chong & Ors v PP:

S.41B cannot be invoked pending chemist report because the relevant conditions are not fulfilled;
i.e. the exact weight of heroin is not ascertained therefore punishment cannot be ascertained.
Bail can be granted at the discretion in such a situation subject to considerations under S.388.

Question 41

Q

BAIL UNDER S.41B

Position pending chemist report - unbailable

Answer

A

1) General - PP v Illamaran:

S.41B makes the offence unbailable at the moment charge is based on the gross weight pending chemist report; and
will be unbailable at a later stage if the accused is proved to have committed specified under S.41B.

2) Charge for trafficking - Leong Siew Hoong v PP:

accused has been charged with 39B; trafficking of dangerous drugs.
S.2 DDA defines trafficking to mean “doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act”
therefore, regardless of weight, the punishment for trafficking is still death and the case fall within S.41B and bail ought not to be granted.
The offence is unbailable despite chemist report is still pending as the weight does not matter when the accused is charged for trafficking.

Question 42

Q

BAIL UNDER S.13 SOSMA

Overview

Answer

A

1) The law & scope
2) Explanation of S.13
3) Whether S.13 is unconstitutional
4) Whether all offences under SOSMA is unbailable
5) EMD requirement under SOSMA

Question 43

Q

BAIL UNDER S.13 SOSMA

The law & scope

Answer

A

1) The law:
- S.13
2) Scope:
- prohibits bail to be granted to any person who is charged with any security offence.
3) Whether S.13 is non-bailable or unbailable - Raman A/L Shanmugam v PP:
- S.13 SOSMA juga bukan peruntukan yang sememangnya tidak boleh dijamin (unbailable offence).
- kesalahan-kesalahan keselamatan adalah kesalahan yang terjumlah sebagai kesalahan tidak boleh jamin (non-bailable offence) dan mahkamah masih mempunyai budi bicara membenarkan tertuduh dilepaskan atas jaminan jika syarat-syarat bawah sub-s. (2) dipenuhi.

Question 44

Q

BAIL UNDER S.13 SOSMA

Explanation of S.13

Answer

A

Raman a/l Shunmugham v PP

Seksyen 13 SOSMA sama seperti s. 388 KTJ;
yang membezakan kedua-duanya cuma kekecualian terhadap pemakaian peruntukan itu diberi kepada tiga kategori orang yang sama bawah proviso s. 388(1) KTJ.
Bawah SOSMA, kekecualian tersebut didapati dalam s. 13(2) iaitu:
A person below 18;
A woman; or
A sick or an infirm person.
Sebelum mahkamah membenarkan pemohon diberi jaminan, TPR boleh mengkehendaki agar orang itu dipasang dengan peranti pengawasan elektronik.
Oleh itu, jaminan masih boleh diberi kepada tertuduh yang dituduh dengan kesalahan keselamatan jika syarat-syarat yang diperuntukkan bawah sub-s. (2) dipenuhi.

Question 45

Q

BAIL UNDER S.13 SOSMA

Whether S.13 is unconstitutional - unconstitutional

Answer

A

Saminathan Ganesan v PP - Justice Nazlan:

S.13 SOSMA ultra vires art. 121(1) of the FC as it takes away the judicial power of granting or refusing bail to an accused who is charged with a security offence under Chapter VIA of the PC;
It is tantamount to a violation of the doctrine of the separation of powers.
the power to grant bail, being a judicial power, could not be prohibited as it runs contrary to art. 121(1) of the FC.

Question 46

Q

BAIL UNDER S.13 SOSMA

Whether S.13 is unconstitutional - constitutional

Answer

A

Suresh Kumar Velayuthan v PP - Justice Collin:

SOSMA is enacted pursuant to Art. 149 which stipulates that the passing of any law is valid notwithstanding that it is inconsistent with any of the provisions of arts. 5, 9, 10 or 13 which relate to certain fundamental liberties, the provisions of SOSMA are therefore valid.
Reading the provisions of the FC in a harmoniously, S.13 are valid and are not ultra vires art. 121(1) of the FC.
S.13 of SOSMA passed the ultimate test of proportionality and did not offend the principle of equality enshrined in art. 8 of the FC and was consequently not ultra vires art. 8 of the FC.

Question 47

Q

BAIL UNDER S.13 SOSMA

Whether all offences under SOSMA is unbailable

Answer

A

Raman a/l Shunmugham v PP (CA, 2019):

Hanya kesalahan-kesalahan yang tersenarai di bawah Bab VIA Kanun Keseksaan, iaitu kesalahan-kesalahan yang melibatkan pengganas dan keganasan, yang dihalang sama sekali untuk diberi jaminan (‘unbailable offences’).
Kesalahan-kesalahan keselamatan lain seperti kesalahan menjadi ahli kumpulan jenayah terancang di bawah s. 130V(1) Kanun Keseksaan adalah kesalahan ‘non-bailable’, dan oleh itu, mahkamah masih mempunyai budi bicara untuk melepas tertuduh dengan jaminan bagi kesalahan tersebut, dengan bersyarat jika perlu.
e.g. S.13(2) - persons may be granted bail:
Below 18 years old.
A woman.
Sick or infirm.

Question 48

Q

BAIL UNDER S.13 SOSMA

EMD requirement under SOSMA

Answer

A

1) The law:
- Proviso to S.13(2) SOSMA
2) Whether EMD is mandatory - PP v Chien Guan Chai & Anor (HC, 2020):

The attachment of an electronic monitoring device (EMD) on an accused charged with a security offence and who has been granted bail pending his trial is a matter of the court’s discretion and not mandatory;
both s. 388A of the Criminal Procedure Code and s. 13 of SOSMA do not make the attachment compulsory, even when an application there for is made by the Public Prosecutor.
OTF, the sole reason given by the Public Prosecutor that it will secure the attendance of the accused in court, is not sufficiently founded as the court sees no issue or predicament with the presence of the respondent in court, even after he is being released on bail;
Therefore, there is no necessity for any additional term such as the attachment of an EMD to be added to the earlier bail conditions as so imposed by the court.

Question 49

Q

BAIL UNDER S.13 SOSMA

Example of application

CA, 2019

Answer

A

Raman a/l Shunmugham v PP:

pemohon telah mengemukakan laporan perubatan yang menunjukkan perlbagai penyakit;
Malah pemohon telah ke mahkamah dengan berkerusi roda.
Berdasarkan laporan perubatan dan pemerhatian mahkamah, tiada keraguan bahawa pemohon seorang yang sakit dan cacat.
Tiada keterangan yang dikemukakan oleh pihak pendakwaan yang dapat menunjukkan pemohon berisiko melarikan diri dan akan mengganggu saksi-saksi jika dibebaskan atas jaminan.
Permohonan pemohon, untuk jaminan sementara menunggu perbicaraan, dibenarkan dengan syarat:
(i) jumlah RM25,000 dengan dua orang penjamin tempatan;
(ii) semua dokumen perjalanan diserahkan ke mahkamah untuk simpanan;
(iii) melapor diri ke balai polis berhampiran dengan tempat kediaman sekurang-kurangnya sekali dalam satu bulan; dan
(iv) peranti pengesanan elektronik dipasang pada kaki pemohon (as provided in proviso S.13).

Question 50

Q

BAIL PENDING APPEAL

Overview

Answer

A

1) Appeal against conviction and/or sentence

2) Appeal against acquittal

Question 51

Q

BAIL PENDING APPEAL AGAINST CONVICTION

Overview

Answer

A

1) The law & scope
2) Test to grant bail pending appeal
3) Meaning & scope of special circumstances
4) Other factors to be considered
5) Factors to be considered - example - pleading guilty
6) Recent application

Question 52

Q

BAIL PENDING APPEAL AGAINST CONVICTION

The law & scope

Answer

A

1) The law:

S.311 CPC
S.57 CJA

2) Scope - PP v Najib Razak:

General rule:

No appeal shall operate as a stay of execution,

Exception:

The court may exercise its discretion to grant a stay of execution in accordance with well-established judicial principles and be based on the facts and circumstances of each individual case.

Question 53

Q

BAIL PENDING APPEAL AGAINST CONVICTION

Test to grant bail pending appeal

Answer

A

1) DSAI v Pendakwa Raya:
- It is crucial for an applicant to show the presence of exceptional circumstances which would drive the court to conclude that justice can only be done if bail is granted.
2) PP v Najib Razak (HC, 2020):

Special or exceptional circumstances must be shown to exist before the discretion can be exercised in favour of a convicted applicant.
Art. 8 of the Federal Constitution on the principle that everyone is equal before the law should also be applied strictly.

Question 54

Q

BAIL PENDING APPEAL AGAINST CONVICTION

Meaning & scope of special circumstances

Answer

A

KWK (A Child) v PP, per Augustine Paul JCA:

the gravity or otherwise of the offence;
the length of the term of imprisonment; in comparison with the length of time which is likely to take for the appeal to be heard;
whether there are difficult points of law involved;
whether the accused is a first offender or has previous convictions;
whether the accused would become involved again in another offence whilst at liberty;
whether the security imposed will ensure the attendance of the appellant before the Appellate Court.
This list is not exhaustive.

NOTE:

It is the cumulative effect of all the factors that matters.

Question 55

Q

BAIL PENDING APPEAL AGAINST CONVICTION

Other factors to be considered

Answer

A

1) Re Kwan Wah Yip & Anor:
- Factors to be considered to justify the grant of bail pending appeal:
(1) gravity or otherwise of the offence convicted.
(2) the length of term imprisonment as compared to time taken for the appeal to be heard.
(3) whether there are difficult points of law.
(4) whether the accused is a first offender or has previous convictions.
(5) possibility of being involved in the same offences.
(6) whether the security imposed will ensure the attendance of the accused.
2) DSAI v Pendakwa Raya:

Factors to consider:

Presumption of innocence is no longer a factor to consider;
Factors to consider differ from that of pre-conviction application for bail;
Attendance in court is only a minor consideration;
Prospect of success on appeal;
Whether the offender is a repeated offender;
Whether the offence convicted is a serious offence;
It is crucial for an applicant to show the presence of exceptional circumstances which would drive the court to conclude that justice can only be done if bail is granted.

Question 56

Q

BAIL PENDING APPEAL AGAINST CONVICTION

Factors to be considered - example - pleading guilty

Answer

A

1) Goh Beow Yam v Reg:
- court took into account of the fact that the accused had pleaded guilty to refuse him bail.
2) Yusof bin Mohamed v PP:
- He had pleaded guilty in the court below and previous convictions of similar offences as grounds to refuse bail.

Question 57

Q

BAIL PENDING APPEAL AGAINST CONVICTION

Recent application

HC, 2020

Answer

A

PP v Najib Razak:

Ref. to KWK v PP & DSAI v Pendakwa Raya.
OTF of the case, the judge find that the accused and the facts of the instant case have successfully established the presence of special circumstances, for the following reasons.

1) There are novel points of law involved, which have never been judicially considered before.
2) The accused is a first offender and has no previous convictions.
3) It appears unlikely that the accused would become involved again in another offence whilst at liberty as he is also presently answering criminal charges in two High Courts.

Question 58

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

Overview

Answer

A

1) The law & scope
2) Test to refuse bail
3) Exercise of discretion
4) Factors to be considered
5) Procedures to commit the accused to custody
6) Whether it is unconstitutional
7) EMD requirement

Question 59

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

The law & scope

Answer

A

1) the law:

S.315;
S.56A CJA;
S.88 CJA;

2) Scope of S.315 - Ment & Ors v PP:

S.315 is meant not for the protection of the accused but to ensure that the accused against whom an appeal has been filed would not abscond during the pendency of the appeal.
Under S.315, granting a bail is the general rule and committal to prison without bail is an exception.
Quantum of bail should be realistic and not have the effect of depriving an acquitted person of his liberty.

Question 60

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

Test to refuse bail & commit the acquitted accused to prison

Answer

A

Ment & Ors v PP:

Discretion in favour of prosecution must only be exercised sparingly;
There must be special circumstances to move the court to exercise discretion in favour of the prosecution;
i.e. refuse bail & commit to prison.
The mere fact that an appeal is lodged does not by itself constitute special circumstances.
It is desirable to order an early hearing of the appeal if discretion to commit the accused to prison is exercised.

Question 61

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

Exercise of discretion

Answer

A

Bird Dominic Jude v PP:

(1) The order made must be objectively fair and proportionate;
(2) The discretion should never be exercised arbitrarily;
(3) The discretionary power should be sparingly invoked;
(4) The nature and seriousness of the offence;
(5) The accused person has been proven not guilty and has been acquitted; there is a presumption of innocence in favour of the accused person;
(6) It is in the interest of the public and the State to preserve the integrity of the prosecution’s appeal;
(7) The absence or non-attendance of the accused person at the hearing of the prosecution’s appeal will render the appeal nugatory;
(8) The length of time which is likely to take for the appeal to be heard;
(9) If bail is admitted, whether the security and conditions imposed will ensure the attendance of the accused person;
(10) The probability of the accused person absconding, if released on bail;
(11) A balance has to be struck between the right to individual liberty and the interest of the public and State; and
(12) Where the issue relates to the safety and security of the State much weight will be given to the application of the Public Prosecutor.

Question 62

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

Factors to consider

Answer

A

Bird Dominic Jude v PP:

For a capital offence like drug trafficking, it would be undesirable for the acquitted person to remain at large pending disposal of appeal lodge against him.

Factors for consideration:

A strong likelihood of success in the appeal proper.
Merits of the appeal by the P is not a relevant matter for consideration.
The application for bail must not be frivolous or vexatious;
There must be substance in the grounds of application;
There must be an arguable case to preserve the integrity of the appeal.

Question 63

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

Procedures to commit the accused to custody

Answer

A

Bird Dominic Jude v PP:

Application to remand pending appeal must come before the court order granting a warrant of arrest.
Filing of the notice of appeal by the applicant is a fundamental & a condition precedent;
If there is no notice of appeal, the application for warrant of arrest cannot be entertained.

Question 64

Q

BAIL PENDING APPEAL AGAINST ACQUITTAL

Whether it is unconstitutional

Answer

A

Bird Dominic Jude v PP:

S.56A does not in any way contravenes Art. 8 since it applies equally to everybody whether citizen or not.

Answer 64

A

S.445:

EMD may be required on acquittal.

Answer 65

A

1) The law & scope
2) When additional condition may be imposed
3) Additional condition on bailable offence
4) Additional condition on non-bailable offence
5) Modifying conditions of bail
6) Example of additional conditions

Answer 66

A

1) The law:
- S.389
2) Scope:

sufficient to secure attendance;
shall not be excessive.

Answer 67

A

1) PP v DSAI:

Only when the court is entitled to grant bail;
Conditions attached to bail are complementary and concomitant to the grant of bail.

2) PP v Dato’ Mat:

it was not illegal (i.e. legal) for courts to impose fair and reasonable conditions which are appropriate to secure the accused’s subsequent attendance in court.
discretion to refuse or grant bail implies a discretion to grant bail subject to certain conditions.

Answer 68

A

1) PP v Dato’ Mat:
- No conditions shall be imposed on bailable offences.
2) Upon breach of condition of first bail - Mohd Jalil bin Abdullah v PP
- Upon revocation of bail, the Magistrate may grant a new or fresh bail with increased quantum or more onerous conditions as he deemed fit when he revoked the previous bail.

Answer 69

A

1) Soo Shiok Liong v PP:

Bail was not intended to be punitive and so prohibitively high as to incarcerate the accused before he is convicted.
Therefore, if other conditions have been attached to the bail conditions, quantum of bail should be reduced.
e.g. surrendered passport, quantum should be reduced.

2) PP v Dato’ Balwant Singh:
- Various conditions are imposed on top of bail bond and it is justified since the accused is charged for capital offence but was granted bail for exceptional circumstances (i.e. sick).
3) PP v Zulkiflee Hj Hassan:
- The court finds the accused is flight-risk, therefore order him to surrender his passport.

Answer 70

A

Modifying conditions - PP v Dato’ Mat Shah:

Court held that it had the jurisdiction to modify conditions of bail under S.389 even though that section did not state so.
All aspects connected with bail, including the amount & conditions for bail, are covered by S.389.

Answer 71

A

1) Surrendering passport - meaning of surrender - Lim Kiap Kee v PP:
- The court can only require the accused person to surrender his passport & may not impound the accused’s passport;

Impound:

To seize or secure by legal right; to take legal or formal possession;
To be held in custody of the law.
A document is impounded when it is ordered or compelled by the court to be kept in the custody of its officer & the court makes the order under the authority of the law.

2) Surrendering passport - whether unconstitutional - Government of Malaysia v Loh Wai Kong:

Art. 5(1) does not confer on a citizen of a fundamental right to a passport;
Govt has the right to issue or not to issue, to delay or withdraw a passport, for instance if criminal charges are pending against the accused.
The exercise of discretion is subject to a review by court of law.

Answer 72

A

1) The law & scope
2) Form of securities & procedures
3) Inability to produce sureties
4) Additional cash bail for security

Answer 73

A

1) The law:
- S.390
2) Scope - PP v Parkash Kaur a/p Sadhu Singh:

S.390 allows for the furnishing of a personal bond by the accused person;
S.390 also allows a bond by one or more sufficient sureties;
It DOES NOT authorise the court or police to demand a cash security.

3) Meaning & scope of bail bond - Mohan v PP:
- A three-party contract which involves state, accused and surety and under which surety guarantees state that accused will appear at subsequent proceedings.
4) Meaning & scope of cash bail bond - Mohan v PP:

A sum of money, in the amount designated in an order fixing bail, posted by a defendant or by another person on his behalf (surety) with a court or other authorised public officer;
upon conditions that such money will be forfeited if the defendant does not comply with the directions of a court requiring his attendance at the criminal action or proceeding involved and does not otherwise render himself amenable to the orders and processes of the court.

3) Unsecured bail bond - Mohan v PP:
- A bail bond for which the defendant is fully liable upon failure to appear in court when ordered to do so or upon breach of a material condition of release, but which is not secured by any deposit of or lien upon property.

Answer 74

A

1) Form of securities:

Fixed deposit account or saving account;
Land title.

2) Procedure:

To post a bail, the bailor needs to open a bank account.
The court counter will give them an instruction sheet on how to post a bail, as well as a document they need to hand over to the bank officer.
The bailor will go to the respective bank and open an account to deposit the bail money.
Then, most likely, a bank book will be issued.

Answer 75

A

S.403:

The court has a discretion to allow the accused to deposit payment in cash if he offers it where he is unable to produce sureties;
The imposition of a cash bail, otherwise than under the condition stipulated under S.403 (i.e. when surety can be produced or etc) is illegal.

Answer 76

A

1) The law:
- S.403: When a person is required to execute a bond with or without sureties, the person may be permitted to deposit money.
1) Legal - Mohan v PP:

‘unsecured bail bond’ that is not secured by any deposit of in lien upon property suggests that it can be secured under S.403.
it permits the deposit of a sum of money in lieu of the execution of the bond.
it meant to provide an easier route to a person who is unable to arrange for execution of a bond.
therefore, it is lawful for a court to require security to be furnished by a bailor when executing a bail bond, under S.403.

2) Illegal - Lau Kung Seng & Ors v PP:

Sections 390 and 391 should be read together with S.403.
This deposit is in lieu of executing a bond & S.403 read with S.390 does not permit cash bail to be imposed.
In this present case the imposition of cash bail otherwise than under the condition stipulated in S.403 of the CPC (i.e. when the accused is able to produce sureties) is held to be illegal.

Answer 77

A

1) Duty of bailors
2) Discharge of sureties
3) Forfeiture of bail bonds

Answer 78

A

PP v Datuk Harun bin Hj Idris:

Being a bailor is a responsibility that should not be taken lightly.
Main responsibility of a bailor is he needs to ensure attendance of the accused on the fixed date.

Answer 79

A

1) The law & procedures overall
2) Application to Registrar
3) Duty of Magistrate upon application to discharge

Answer 80

A

1) The law:
- S.393
2) Procedures - overview:

(1) Apply to Magistrate
(2) Magistrate issue warrant of arrest directing the person so released be brought before him.
(3) On the appearance of the Accused, Magistrate shall direct the bond to be discharged; the Accused may be asked to find sufficient sureties or commit him to custody if he is unable to do so.

Answer 81

A

1) When can be made - Royaya bte Abdullah v PP:

This application for a discharge may be made at any time & for whatever reason or for no reason at all;
Lack of reasons is immaterial.

2) To whom can be made - Valliamai v PP:

It was held that the Registrar of the Sessions Court is ex-officio a Gazetted Second Class magistrate.
Application can be made to Registrar.

Answer 82

A

1) Royaya bte Abdullah & Anor v PP:
- Under s. (393(iv)), where the surety arrests with a view to causing a discharge, the court shall discharge without more; - and that must mean that no reasons will be asked by the court.

2) Re Anorjit Shivaji:

Where a surety applies to discharge, there is no such thing as hearing at the application on merits;
The presentation & the application imposes Magistrate a duty to issue a warrant of arrest for the accused.

Answer 83

A

1) The law & scope
2) Procedure at show cause
3) Time for assessment of breach
4) Examples of successful show cause
5) Examples of fail show cause

Answer 84

A

1) The law:
- S.404
2) Scope:
- When the accused failed to attend the court & before the bail sum is forfeited, the bailor will be called to show cause.

Answer 85

A

1) Khor Ewe Suan v PP:

evidence should be taken on oath and recorded by Magistrate in the usual way.
evidence should produce the actual bail bond and state that the bailors were the persons who had entered into the bond.
the bailors should have been given the opportunity to cross-examine the witness who produced the bail bond.
the bailors should have been given opportunity to show cause why their recognizance should not be forfeited.
the bailors should be invited to the witness box and state their case, or call any further evidence if required.

2) Non-compliance with procedures & failure to take evidence on oath - Khor Ewe Suan v PP:

Amounts to a failure to jurisdiction;
Case will be remitted back to the trial court & Magistrate will be ordered to take evidence on oath.

3) What amounts to sufficient cause - Royaya bt Abdullah v PP:

Ref. Ramlee v PP:
- What is sufficient cause has not been defined.
- i.e. it depends on circumstances.
- Sufficient cause is not the same thing as a satisfactory explanation;
- the question should be whether there is sufficient cause shown, not whether the explanation given by the sureties or
bailors is a satisfactory one.

Ref. R v Waltham Forest Justices:
- In assessing whether sufficient cause has been shown, the court begins with the premises that the obligations of a surety are very serious and not meant to be undertaken lightly.

Ref. R v Knighstbridge Crown Court:

Accordingly, the burden of proof in show cause is very heavy.
Only in the most exceptional cases will the court be prepared to modify the prima facie rule which is that the amount for which the person concerned has stood surety will be forfeited in full.
OTF, it is held:

i) there cannot be sufficient cause if the surety never took the trouble to g ensure that the accused would appear on the date stipulated in court. ii) the surety at the least must have been diligent in undertaking his obligations & must have made diligent attempts to remind the accused of the date of appearance and seek an assurance from
him that he would be appearing.

Answer 86

A

Royaya bte Abdullah & Anor v PP (HC, 2005):

The breach of the bond must be viewed on a material date, the date being 5 September 2001 when the bailors knew that they had to be present in court, and still had the responsibility of securing or at least attempting to secure the attendance of the accused.
However, it was noted that prior to 25 July 2001, the bailors had made attempts to remind the accused of his attendance.
The delay had also been caused by the various interlocutory applications for revision and hearings of preliminary objections that gave the accused an even greater opportunity to abscond.
Therefore, it was proper to ask whether sufficient reason had been shown and to consider what was a fair amount to be forfeited.
On these grounds, the amount of RM5,000 that had been forfeited was set aside and substituted with an amount of RM2,500. The 1st appellant was, thus, refunded the amount of RM2,500.

Answer 87

A

1) Sureties had not been informed of transfer - Khor Hong Guan v Rex:

there was no breach of the bail conditions and the forfeiture order was set aside.
sureties had not been informed of the transfer of said cases to the Sessions court where the accused had failed to turn up.

2) Sufficient proof to show effort - Ramlee & Anor v PP:

sufficient cause had been shown in light of the steps taken by surety to ensure the attendance of the accused.
NOTE: It was also held that Magistrate had NO POWER to order that the payment of forfeited bail sum by instalments unlike in the case of fines, i.e S.283(i)(b)(2).

3) Sufficient attempts to ensure attendance - Balakrishnan v PP:

CA found that there were sufficient attempts by the sureties to secure the attendance of the accused.
Layperson cannot be expected to be more successful than police in tracing the accused.

Answer 88

A

1) Insufficient effort - Shou Tai Chuan & Anor v PP:

failed to take sufficient steps to ensure that the accused would not abscond.
the least he could do is to ask them how he could get in touch with them, but he did not do so.

2) Dato’ Haji Harun Idris v PP:

The bailor failed to show cause;
Court emphasised that bailor should realise that standing bail for someone is a real responsibility and not to be taken lightly.

Answer 89

A

1) General principles
2) Application under S.389
3) Appeal under S.394
4) Application for revision under S.323 & 325
5) Application via notice of motion

Answer 90

A

1) Which court

2) Difference between S.389 & 394

Answer 91

A

1) Trite - PP v DSAI:

General rule:

Cannot appeal to FC & CA since it is not a decision within S.3 CJA.
However, it essentially depends on where the decisions are made at the first instance.

High Court:

Not appealable to CA, but ‘upon refusal, can be reapplied to the same court’ if there is material change in circumstances.

Subordinate court:

may appeal to HC under S.405, i.e. S.405 is a general provision for appeal against orders made by subordinate courts.
On appeal under S.405, HC has the power to:
Reduce the amount of bail - per Royaya Abdullah & Anor v PP;
Hear appeal against order of forfeiture under S.404 - per Khor Ewe Suan v PP.

2) Same court or higher court - PP v Dato’ Mat:
- An accused person can either go before the same court or apply to a higher court for reconsideration or variation of his bail.
3) PP v Samirah Muzaffar:
- Application to hear bail applications in CA & FC is filed via notice of motion.

Answer 92

A

Sulaiman bin Kadir v PP:

1) S.394:

appeal under 394 take a longer time to be heard;
there has to be a notice of appeal and subordinate court will have to state reasons for refusal before petition of appeal can be filed.

2) S.389:

application via notice of motion + affidavit can be heard immediately after the refusal; speed being the essence.
S.389 also allows absolute discretionary power to High Court to:
grant when was refused.
increase or reduce.
NOT revoke the grant of bail from the time of arrest until conviction.

Answer 93

A

1) The law & scope
2) What can be appealed
3) Power of interference
4) Who can apply
5) Possible outcome

Answer 94

A

1) The law:
- S.389
2) Scope - Sulaiman bin Kadir v PP:

application via notice of motion + affidavit can be heard immediately after the refusal; speed being the essence.
S.389 also allows absolute discretionary power to High Court to:
grant when was refused.
increase or reduce.
NOT revoke the grant of bail from the time of arrest until conviction.

Answer 95

A

quantum of bail;

- refusal of bail.

Answer 96

A

PP v Wee Swee Siang:
High Court will not lightly interfere with the exercise of discretion vested in the lower Court.
Where the Sessions Judge refused bail after taking into consideration all the circumstances of the case, the High Court will not likely to interfere with his order.

Answer 97

A

Lee Eng Hoe v Pendakwa Raya:

Parliament enacting S.389 did not imposed any limitation as to the party who may file the application.
A proposed bailor is liable for the attendance of the accused;
this shows that the bailor he has a locus standi to appeal against a bail decision under this section.
Thus, bailor, accused & PP may apply under S.389.

Answer 98

A

S.389;

amount may be increased or reduced;
bail may be granted where it has been refused.

Answer 99

A

1) The law & scope
2) What can be appealed
3) Principles of interference
4) Who can appeal
5) Possible outcome

Answer 100

A

1) The law:
- S.394
2) Scope - Sulaiman bin Kadir v PP:

appeal under 394 take a longer time to be heard;
there has to be a notice of appeal and subordinate court will have to state reasons for refusal before petition of appeal can be filed.

Answer 101

A

quantum of bail;

- the refusal of bail.

Answer 102

A

PP v Wee Swee Siang:

High Court will not lightly interfere with the exercise of discretion vested in the lower Court.
Where the Sessions Judge refused bail after taking into consideration all the circumstances of the case, the High Court will not interfere with his order.

Answer 103

A

Mohan v PP:

A bailor or surety is not a person affected by an order or refusal of an inferior court to grant bail;
Therefore, a bailor is NOT a person aggrieved within the meaning of the section.
Thus, only accused or PP may appeal under S.394.

Answer 104

A

S.394:

confirm, vary or reverse.

Answer 105

A

1) The law & scope

2) Revision in suo moto

Answer 106

A

1) S.323:
- HC power to call for records of sub-courts.
2) S.325:
- powers of judge on revision.

Answer 107

A

PP v Kamal Hisham Jaafar (HC & CA, 2016):

Sessions Court granted bail on the accused despite objections by the prosecutions on danger of the accused absconding.
HC, on its own motion & exercise of its revisionary power under 323 & 325, called for the record of proceedings of the SC for the purpose of satisfying himself of the correctness of the decision to grant bail;
In revoking the bail & ordering the accused to be remanded, HC found that SC had not alluded to the factors laid down in Wee Swee Siang v PP, i.e. the likelihood that the accused absconding.

Answer 108

A

1) To Court of Appeal

2) To Federal Court

Answer 109

A

r.72 RCA:

Every application to discharge or vary an order made by a single Judge shall be made by separate Notice of Motion of such order.
A application to discharge or vary any order of a Judge refusing any extension of time or refusing bail such application shall be made in Form 10 in the First Schedule and shall for all the purposes of these Rules be deemed to be a Notice of Motion.

Answer 110

A

r.102 RFC:

Every application to discharge or vary an order made by a single Judge shall be made by separate Notice of Motion filed within 10 days of such order.
In the case of an application to discharge or vary an order of a Judge refusing any extension of time or refusing bail such application shall be made in Form 12 in the First Schedule to these Rules and shall for all the purposes of these Rules be deemed to be a Notice of Motion.

Answer 111

A

PP v Samirah Muzaffar:

Application to hear bail applications in CA & FC is filed via notice of motion.
Federal Court five-man bench led by Justice Tan Sri Azahar Mohamed allowed Samirah’s application to be released on bail pending the murder trial.
The court also imposed several conditions on her including surrendering her passport to the court and reporting to the police station fortnightly.
She must also remain indoors from 6pm to 8am and she is also prevented from going to public places and attending public functions except on family and religious matters.
Samirah must also not leave Kuala Lumpur or Petaling Jaya without the leave of the court

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Chapter 10 - Bail Flashcards

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