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BAIL

3 types
1. investigations take time – instead of charging him, police will release on bail pending decision whether to
charge – bail pending charge
2. charged in court but not yet sentenced or convicted – bail pending trial – court bail
3. bail pending appeal

- Chapter XXXV Criminal Procedure Code


o Section 351 CPC (bailable offences)
o Section 352 CPC (non-bailable offences
o Section 353 CPC (amount of bond)

Purpose
- To secure attendance
- Not intended to be punitive
- S.353 CPC – “The amount of every bond executed under this Chapter shall be fixed with due regard to the
circumstances of the case as being sufficient to secure the attendance of the person arrested.”
- See Soo Shiok Liong v Pendakwa Raya [1993] 2 MLJ 381: -
o Judge must decide having due regard to the circumstances of the case that the amount imposed
would not be excessive but be sufficient to secure the attendance of the applicant

Zulkifflee bin H J Hassan v. PP 1987


Facts:
In this application the accused sought for an order of Court that the bail set for him in the sum of m1,000,000 by
the President of the Sessions Court to be reduced to a lesser sum. The accused was charged with an offence under
s 409 of the Penal Code involving a sum of $6.7m. He claimed trial to the charges and the President allowed him
bail in the said sum and two sureties and his passport was also impounded. The question before the Court was
whether bail of $1m and two sureties was adequate or too excessive in the light of the circumstances of the case.
Holdings:
Held:
(1).the requirements as to bail are merely to secure the attendance of the accused at the trial. The purpose of bail
is to secure his appearance on a certain date to answer the charge against him. Bail is not intended to be punitive
and excessive bail ought not to be required.
(2).in the instant case, the bail of $1m had the effect of punishing the applicant before he was proved guilty of the
changes against him.
(3).in the circumstances of the case the bail of $1m and two sureties should be reduced to a sum of $200,000 and
two sureties.

Sureties
- Sureties may surrender the accused to the Court before the date assigned and free themselves from further
responsibility: s.358 CPC

Sureties may apply to have bond discharged.


358. —(1) When any person is required to execute a bond with sureties, any person who has entered into such a
bond as surety may at any time apply to a court to discharge the bond either wholly or so far as relates to the
applicant.
Subsequent procedure.
(2) On such application being made the court may issue a warrant of arrest directing that the person on whose
behalf the bond was entered into shall be brought before it.
(3) On the appearance of such person pursuant to the warrant or on his voluntary appearance the court shall direct
the bond to be discharged either wholly or so far as relates to the applicant and shall call on that person to find
other sufficient sureties and, if he fails to do so, may commit him to custody.
(4) A surety may at any time arrest the person on whose behalf the bond was entered into and forthwith bring him
before a court which shall thereupon discharge that surety’s bond and shall call upon that person to find other
sufficient sureties and, if he fails to do so, shall commit him to custody. A magistrate is empowered to dispense
with sureties if he is of opinion that it will not defeat the ends of justice
Bailable or Non-Bailable?
- S.2 CPC - definition of “bailable offence”:
o “an offence shown as bailable in Schedule A or which is made bailable by any other law for the
time being in force, and ‘non-bailable offence’ means any other offence”
- Schedule A CPC, 5th column
o Penal Code offences
o Offences against Laws other than the Penal Code
- Punishable with imprisonment for less than 3 years – bailable (unless statute states otherwise)

Bailable Offences
- S.351 (1) CPC:
o When any person other than a person accused of a non-bailable offence
o is arrested or detained without warrant by a police officer or appears or is brought before a court
o and is prepared at any time while in the custody of the officer or at any stage of the proceedings
before the court to give bail,
o that person shall be released on bail by any police officer in such cases as are specified by
orders issued by the Commissioner of Police or by that court.
- (2) The police officer or the court, if he or it thinks fit, may, instead of taking bail from that person,
discharge him on his executing a bond without sureties for his appearance as hereinafter provided.
-
- => Bail is as of right, not as a favour – no discretion to refuse bail
- If the accused is able to and prepared to give bail, he must be released(Lim Kwang Seng)
- Bailable offence one that is listed in Schedule A of the CPC

- BUT EXCEPTION:
o High Court’s inherent power under equivalent of our s. 4 CPC.
 Talab Haji Hussain v Madhukar Purshottam Mondkhar AIR 1958 SC 376 – cancellation
of bail in bailable offence because harassed witnesses while on bail
o For Sub Cts
 Bachchu Lal v State AIR 1951 All 836 – sub court tried to preserve such pwier to
themselves (but not decided in sg) – shld have though
• Michael Raymond Taylor
o no express requirement that arrest is a precondition for bail in bailable offences
o Magistrate has power to set bail for a person who appears in obedience to a summons.
• Wong Kim Woon
o Court can revoke or vary the bail granted on the ground that the bail was breached
o Court can also refuse fresh bail for a bailable offence if there had been a breach of prior bail for the
same offence
o Entitled to bail only when first arrested in connection to bailable offence and So if accused
breaches his bail or cause it to be forfeited, he will no longer be entitled to bail as of right.

Non-Bailable Offences
- For non-bailable offences, bail is at the discretion of the court, except for capital or life
imprisonment cases.
- Bail generally allowed
- S.352(1) CPC:
o When any person accused of any non-bailable offence is arrested or detained without a warrant
by a police officer or appears or is brought before a court,
o he may be released on bail by any police officer not below the rank of sergeant or by that court,
o but he shall not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life
o Provided that the court may direct that any person under the age of 16 years or any woman or
any sick or infirm person accused of such an offence be released on bail.

- An accused is presumed to be innocent until proved to be guilty. As a presumably innocent person, he is


entitled to freedom and every opportunity to look after his own case should be offered to him
- If accused enjoys freedom, he will be in a much better position to look after his case and to properly defend
himself than if he were in custody: R v. Hutchinson

- Exceptions: where there are reasonable grounds for believing that he has been guilty of an offence
punishable with death or life imprisonment
o test set out in R v. Ooi Ah Kow (1952) and Sulaiman bin Kadir (1976), is “reasonable grounds for
believing”

R v. Ooi Ah Kow
Facts:
The accused in this case was charged with attempted murder under s 307 of the Penal Code and with voluntarily
causing hurt in the course of committing robbery or attempting to commit robbery under s 394 of the Penal Code.
The Magistrate allowed the accused on bail. The question is whether the learned Magistrate was right in so
allowing bail.
Holdings:
(1) 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 penal servitude for life; (2) that
although under s 417 of the Criminal Procedure Code the High Court has an absolute discretion to grant bail in
any case, it ought not to do so in cases punishable with death or in cases punishable with penal servitude for life
except for exceptional and very special reasons.

Sulaiman bin Kadir


Facts:
The applicant was arrested on 20 August 1975, and charged with rape under s 376 of the Penal Code in the
Special Sessions Court at Kuala Lumpur. The trial had been fixed for 13 and 14 February 1976. On 7 November
1975, the applicant applied for bail pending trial but the learned President of the Special Sessions Court refused it
under s 388(i) of the Criminal Procedure Code. The applicant asked the High Court to exercise its discretion to
grant bail on exceptional and very special reasons. The learned Deputy Public Prosecutor contended that the
application should have been brought by Notice of Appeal under s 394 and not, as it was done, under s 389.
Holdings:
(1).the learned President was correct in refusing bail; a subordinate court had no power to grant bail if there were
reasonable grounds for believing that an accused person had been guilty of an offence punishable with death or
life imprisonment;
(2).if a person should not be kept in custody for a moment longer than was necessary, than the speedy procedure
of s 389 of the Criminal Procedure Code rather than that of an appeal was obviously indicated;
(3).as this application arose out of a refusal to grant bail, the provisions of s 389 applied;
(4).in this case as there were exceptional and special reasons, the court could exercise its discretion and grant
bail.

- what is reasonable ground for belief?  Sunny Ang (Ang Sunny v PP [1965 – 1968 SLR 67):
• so long as the man is charged in court, and the police officer is prepared to testify that he has grounds to
believe that he is guilty of an offence, that is sufficient for the court to refuse bail under s. 352
- hence, in cases of murder or culpable homicide not amounting to murder, you will never find an accused
charged with such offences being offered bail, principally because,
a) firstly, such offences are non-bailable;
b) secondly, such offences are extremely grave;
c) and thirdly, there is the testimony of a police officer to the effect that there are reasonable grounds to
believe that the accused is guilty of the offence
- although for rape, there have been instances of the accused being granted bail, but are extremely rare
- in all other cases, court will generally grant bail unless there is objection to such grant by the prosecution,
supported by sufficient grounds
- different kinds of bail:
1. easiest is cash bail where the person deposits a sum of money as security
2. alternatively, there is the personal bond where having been charged with an offence, you enter into a
bond that you will attend as directed or otherwise you will forfeit the sum of money stipulated in the
bond
- the bailor must be a person with some roots in Singapore and he must be a person of some substance
- bail is decided not only in the courts, but also be the police officers
- common one is at the police station, occurs where the arrested person is not ready to be charged in court and
he is released on bail pending investigations
- if the person arrested is unable to furnish bail at the police station, the police must release or produce him in
court within 48 hours
- then it is up to the court to consider the question of bail
- sureties of bailors are at liberty at any time to inform the court that they do not wish to stand bail for the
accused
- the magistrate will issue a warrant of arrest for the accused person so that he can be produced in court
- only upon the accused being physically produced in court, will the bailor be released from his bond

- usually when person is charged in court, that is sufficient to constitute reasonable grounds
- alternative position taken in PP v. Dato’ Balwant Singh by Malaysian courts

Facts:
The accused - an 81-year old advocate and solicitor - was charged with the offence of murder. He claimed trial
and applied to be released on bail. The defence contended that the medical condition of the accused brought the
case within the proviso to s 388(1) of the Criminal Procedure Code (`the CPC`). In support of its argument, the
defence tendered a medical report on the accused which, inter alia, stated that the accused suffered from several
serious diseases. The defence also produced a newspaper report of a statement issued by the police. The
statement was to the effect that police investigations showed that there was justification in the killing of the
accused. Whilst the prosecution did not challenge the medical report, it submitted that there were medical
facilities in the prison to treat the accused. The prosecution also argued that the fact that the accused had been
charged and the prosecution was instituted with the consent of the public prosecutor indicated there were
reasonable grounds for believing the accused was guilty as charged.
Holdings:
Held , ordering the accused to be enlarged on bail in the sum of RM500,000 with two sureties with security to be
furnished and subject to conditions:
(1).Section 388 of the CPC deals with the question of bail in cases of non-bailable offences. The phrase `appears
or is brought before a Court` in s 388(1) restricts the applicability of s 388(1) to the first production of the
accused in court pursuant to a summons or warrant. The phrases `at any stage of the ... trial` and `further inquiry`
in s 388(2) however refer to a trial that has already commenced with some evidence having been adduced. In the
instant case, the applicable provision would be s 388(1), the accused having just been produced in court pursuant
to a warrant (see p 435A-B).
(2).The general principle underlying s 388(1) is that bail may be granted at the discretion of the court in non-
bailable offences. A qualification is made in cases of offences punishable with death or life imprisonment
whereby bail shall not be granted if there appear reasonable grounds for believing that the accused is guilty of
such offences. Where there are no reasonable grounds, bail may still be granted in such cases at the discretion of
the court. The restriction that has been imposed does not apply to the instances enumerated in the proviso to s
388(1) with the result that bail may be granted at the discretion of the court. Where an application for bail is
made in a case punishable with, inter alia, death the court must first determine whether the proviso is applicable.
If the proviso is applicable, the resultant matter is whether the court should grant bail in the exercise of its
discretion (see p 435D-F).
(3).The medical report on the accused - not challenged by the prosecution - revealed that the accused was
exposed to various complications arising from various medical disabilities. His various medical ailments
weighed with his advanced age rendered him weak, feeble and physically not sound. In the circumstances the
accused was a sick and infirm person within the meaning of the proviso to s 388(1). He was therefore not
affected by the restriction on s 388(1) and entitled to be enlarged on bail at the discretion of the court. The
prosecution`s submission on the availability of medical facilities in the prison was not a relevant factor in making
a determination on the accused`s health (see p 437D-F).
(4).In determining of the existence of reasonable grounds for purposes of s 388(1), the court is not required to go
into the details of the evidence. The court must decide the existence of reasonable grounds on the materials
before it and not on what may unfold later. Thus, objections as to the admissibility of evidence would be
premature at this stage. What is required is the satisfaction of the court of the existence of evidence to support the
charge that has been preferred (see pp 438E, H, 439B).
(5).The court is required to analyse and apply its mind to the evidence that is available. In the instant case, the
mere fact that the accused had been charged as contended by the public prosecutor was insufficient to show the
existence of reasonable grounds. The further argument advanced by the prosecution that the fact that the
prosecution was instituted with the consent of the public prosecutor must be construed as an indication of the
existence of reasonable grounds could not also be sustained. The granting of bail is a judicial act. It is the court
that must decide whether there are reasonable grounds for believing that the accused has been guilty of an
offence punishable with death (or life imprisonment) for which purpose it is necessary to have the facts to base
an opinion. A mere reliance by the court on the consent to prosecute will result in the court subjecting itself to the
will of the public prosecutor without applying its own mind (see p 439B-D).
(6).The facts as narrated by the public prosecutor were capable of showing the existence of reasonable grounds
for believing that the accused was guilty of the offence he had been charged with. However, the newspaper report
of the police statement stating that the accused was justified in firing the shot, had to be read with the facts
adduced by the prosecution to ascertain the existence of reasonable grounds. The statement reflected the view of
the police - the agency that investigated the incident, and as the finding of justification would result in there
being no offence at all, it would have the effect of negating the existence of reasonable grounds. In the absence of
any contradiction, verification or explanation the press statement had to be accepted and would lead the court to
hold that the prosecution had failed to show the existence of reasonable grounds (see pp 441A-D, 442A-B).
(7).The factors to be considered in a bail application are not exhaustive. The health of the accused is a factor that
can be considered. The seriousness of the offence cannot be the dominant consideration. The fact that there are
no reasonable grounds for believing that an accused is guilty of the offence charged with will certainly be in his
favour. On the facts, the graveness of the charge faced by the accused had to be balanced against the failure by
the prosecution to show that there were reasonable grounds for believing that the accused committed the offence
he was charged with. The prosecution failed to indicate that the accused would abscond or tamper with witnesses
if released on bail. The standing of the accused and his age also militated against the prospect of him absconding.
The court was thus unable to hold that the accused would abscond or tamper with witnesses if released on bail
(see pp 442D-H, 443A-C, E).
(8).Though it may not be in the public interest to grant bail to a person facing a murder charge, where other
factors favour an accused, the requirements of public interest can be satisfied by imposing suitable conditions in
granting bail. The exceptional circumstances of this case compelled the court to conclude that the accused ought
to be enlarged on bail subject to the imposition of certain conditions. The accused was thus enlarged on bail in
the sum of RM500,000 with two sureties with security to be furnished and also subject to seven conditions (see
pp 443F-H, 444A-C).

- BUT HC has unfettered discretion to grant bail in all cases: S354 CPC (?)
High Court’s powers to vary bail.
354. —(1) The High Court may, in any case whether there is an appeal on conviction or not, direct that any
person shall be admitted to bail or that the bail required by a police officer or Magistrate’s Court or
District Court shall be reduced or increased.
(2) The High Court may at any stage of any proceeding under this Code cause any person who has been released
under this section to be arrested and may commit him to custody.

- S Selvamslylvester v. PP, Kan J affirmed that prohibition in s.352 CPC extends to both High Courts’ and
Subordinate Courts’ power to extend bail
o Bail in bailable offences ought to be granted as of right and that in such cases, ‘bail has to be
offered’
o Justice Kan: ‘reasonable grounds .. .cannot be listed exhaustively, there must be some material
for finding of the existence of reasonable grounds to be based upon …, which if assumed to be true
would point towards a person’s guilt’
o Kan J explained that the effect of s.354 CPC, which had been construed in the past as giving the
High Court an unfettered discretion to grant bail, merely allowed the accused person at any time
after he has been arrested to apply to the High Court for bail to be granted. It did not override the
express prohibition in s.352 CPC against the grant of bail where the offence involves life
imprisonment or the death penalty
o In Selvamsylvester, copies of accused person’s incriminatory statements were supplied to defence
counsel. This constituted the “reasonable grounds” required by s.352 CPC
- Factors to be considered in granting/refusing bail
o Gravity of offence – PP v Mat Zain 1948-9 – in non bailable cases bail is at discretion of court
and in exg discretion court must consider gravity of crime
 In non-bailable cases, bail is at the discretion of the Court, and in exercising its
discretion, the Court must consider the gravity of the crime: Public Prosecutor v. Mat
Zain
• In this case the accused was charged with robbery. It appeared he had been
previously charged with the offence, but the charge had been withdrawn and he
had been discharged not amounting to an acquittal.
• In the course of his judgment Callow J dealt with various unsatisfactory features
of the trial and inter alia ruled:
• (1) when a charge is withdrawn and the accused discharged, the discharge
should amount to an acquittal unless good cause is otherwise shown. An
accused person is entitled to trial and determination; only in exceptional
circumstances should the charge be permitted to remain indefinitely held against
him;
• (2) in non-bailable cases,. bail is at the discretion of the Court and in exercising
it discretion the Court must consider the gravity of the crime;
• (3) a committing Magistrate should enquire from the accused person on
committal as to whether he requires a copy of the depositions so that he may
have early opportunity to prepare his defence;
• (4) it is essential that there should be a proper proof of exhibits from the time of
acquirement. The chain must be complete from first possession to the Court;
• (5) even in cases where the defence of alibi has not been disclosed, the Police
should make inquiries as to the whereabouts of the accused at about the time of
the alleged offence.
 Keep in mind that the ends of justice normally dictates that bail be granted
o Severity of punishment that might follow - the more dangerous, the more likely of re-offence/
absconding
o Accused’s ties to Singapore (family, assets); his character, means and standing
o Danger of absconding
o Danger of offence being continued/repeated
o Nature of evidence in support of the charge
o Danger of witnesses/evidence being tampered with
o Where refusing bail would prejudice preparation of defence
o Capital or life imprisonment cases
 “… shall not be so released if there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life.”
o “Reasonable grounds”
 Mere fact that he faces a charge carrying such a punishment – sufficient?
 See above
 S Selvamsylvester v PP [2005] 4 SLR 409; [2005] SGHC 158
• Mere fact of charge is insufficient
• applicant tried unsuccessfully to obtain bail 7 charges – carnal intercourse with
boy and molest of boy accused sought bail, charged with offence punishable
with life imprisonment – qn as to whether entitled to bail
• s352 – shall not be so released if reasonable grds tt guilty of offence punishable
with death…
• reasonable grds:? – mere fact that faces such charge sufficient?
 Cf R v Chan Choon Weng [1956] MLJ 81
• Justice kan held that must be some material which if assumed to be true, would
point to towards the person’s guilt
o Admissions/confessions
o Medical/scientific evidence (DNA, fingerprints)
o Eye witness evidence
o Circumstantial evidence
• defence did not dispute that there were confessions – court held that sufficient
material to presume the offence
• so held that wld not allow accused to go on bail
• justice kan went on to consider – if had discretion to grant bail, wld he have
granted – he held that wld nt have granted because grds raised by accused insuff
for him to ex discretion in his favour
• read case!
o Bail not to be withheld as punishment cos requirement of bail to secure the attendance of accused
at trial – R v Rose
o If by reason of delays in investigation of case by police, inordinate delay is caused, might become
exception or special reason for court to grant bail even in series case R v Ooi Ah Kow
- Lau kung seng v PP – court is bound to take into consideration the above factors when deciding whether to
grant bail and failure to do so wld render refusal of bail subj to challenge

Quantum of Bail Bond


- Factors for consideration in setting quantum (Soo Shiok Liong)
o Nature & gravity of offence; severity & degree of punishment
o Quantum should be higher in non-bailable offences
o Excessive quantum may defeat the granting of bail as the accused may find difficulty in getting a
bailor acceptable to the court;
o bail intended to secure attendance and not to be punitive
o Not prohibitively high to have effect of incarcerating the accused before he is convicted
o Basis of criminal law is that person is innocent until proven guilty
o Likelihood of absconding if bail quantum too low
o Whether passport surrendered - the surrender of the accused’s international passport should
go to reducing the quantum of bail
o Whether accused presented himself at police station and cooperated with police
o the fact that the applicant had presented himself at the police station and had co-operated with the
police should also go to abating the quantum of bail;
o the quantum of bail should not be set so prohibitively high as to have the effect of
incarcerating the accused before he is convicted of the crime;
o => the application of the court’s mind in considering the above factors ought to be reflected in the
judge’s records. (soo)
o Here, the court was of the view that the bail of RM1m had the unfortunate effect of punishing the
applicant before he was proven guilty of the charges against him.

Terminology – note bail amount and number of sureties


- $50,000 With One Surety – one person must come up with entire amount
- $50,000 With Two Sureties / In Two Sureties = $50K x 2 OR $50K ÷ 2 ? -
- Case law vs court terminology – case law:
o case law - 50000 divided by 2
o court terminology – yes – five in two can be the same as 10000 in one (judge made order based on
counsel’s submissions)
- rule depends on context! There is no rule – listen carefully to contexts of order
Imposition of Conditions

Justification?
- Court has power to impose fair and reasonable conditions to secure attendance.

- PP v Dato’ Mat [1991] 2 MLJ 186


o Permissible to impose fair and reasonable conditions when granting bail in non-bailable offences
o What about bailable offences? – conditions also inherent
o Facts: The respondent had been charged for criminal breach of trust and had been offered bail in
the sum of $400,000 in two sureties and on condition he surrenders his international passport to the
court.
o Held: It is not illegal to impose fair and reasonable conditions and in particular the condition
requiring the accused to surrender his passport, apropos to the securing of the accused’s subsequent
attendance in court. In the present case in view of the order made for the transfer of the case from
the sessions courts to the High Court, the learned judge of the High Court was acting well within
his jurisdiction to review the condition of bail as if the same was made by him.
o In any event, in the absence of any express provision in the Criminal Procedure Code to the
contrary, a judge of the High Court may by virtue of Section 4 of the Code exercise his revisionary
powers under the Courts of Judicature Act 1964.
- Comments:
o Indian authorities seem to favour the view that when discretion is given to the court to refuse or
grant bail, that discretion in itself implies discretion to grant bail subject to certain conditions.

- But, according to Indian authorities, when there is no discretion to refuse bail, the question of imposing
conditions does not arise - Rex v Genda Singh & Ors AIR 1950 All 525.
o Thus conditions can be included in a bail bond issued pursuant to s 388 but not to s 387 as the
latter section gives no discretion to the officer or court to withhold bail when the person arrested is
prepared to provide such bail.
o Similarly in Hazari Lal Gupta v Rameshwar Prasad & Anor AIR 1972 SC 484 it was held that
the High Court while granting bail can lay down a condition restricting the accused person’s
departure from India by requiring him to surrender his passport.
o Several earlier Indian authorities had expressed the same view on this matter. In Varadaraja
Mavalliar (1957) 1 Mad LJ (Crim) 717 the Madras High Court reviewing the case law on this
subject held that in non-bailable offences, the court could impose restriction in suitable cases.
o In Re Kota Appalakonda AIR 1942 Mal 749 the court in holding that condition made under
Section 496 of the Indian Criminal Procedure Code to be invalid made the following observation
on the scope of Section 497: With regard to non-bailable offences, I can see no objection to
imposing conditions of this kind; for the magistrate has an option to grant bail or to refuse bail
and he has also the power under s 497(5) of the Criminal Procedure Code of causing persons so
released to be arrested and committed to custody, which subsection he would apply in case the
condition was not fulfilled.

- Court has no discretion? Does court has same power to impose conditions?
- Local position (bailable/non-bailable) court has imposed condition for passport to be surrendered.
o Because of Talab Haji Hussain v Madhukar Durshattan Momdkhan (1998) All India Report 106 =
in bailable offence, there is no problem for court to impose condition => not settled in SG.

Mandatory conditions
- S.355(1) CPC: Bond to be executed by person/bail executed by his sureties: person is released on
condition that he will attend at designated time and place (eg, police station or court) – bonds usually
monetary bonds
Bond to be executed.
355. —(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 that person and,
when he is released on bail, by one or more sufficient sureties conditioned that that person shall attend at
the time and 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.
- accused cannot put up own money for bail, must be somebody else

The Law and Practice Relating to Bail Bond Sureties1

- In Singapore bail is rarely granted without sureties. Many accused persons have to spend time in remand
awaiting their trial not because they were denied bail but because they cannot find suitable sureties.

• Suitability of a Bailor
• The granting of bail is a judicial act. The Court granting bail has to be personally satisfied that the
sureties produced are fit, proper, reliable and solvent. A reliable surety is one who can ensure the
attendance of the accused, failing which he is good for the sum of the bond. Other than that, there
are no general restrictions on the types of persons that can stand as sureties.

• Relatives
• There are no restriction on relative standing as sureties. They are very highly desirable.

• Foreigner
• The CPC does not disqualify a foreigner from standing bail. If the proposed surety is a non-
Singaporean, the Court has to be satisfied that the surety has sufficient funds/ property in
Singapore for the bond to be enforced.

• Age
• Minors may not stand as sureties. For our purposes, the age of majority can be taken as 21. Persons
under 21 cannot stand as sureties.

• Government Servants
• Neither the CPC or common law precludes government servants from standing as sureties. This
means that government servants are competent to stand as sureties. This applies to police officers
and members of the Armed Forces.

• Lawyers
• There is nothing in the LAW in Singapore that prevents lawyers from standing as sureties for their
clients, but as a matter of practice it should not be encouraged. Many lawyers in Singapore, when
they do decide to stand bail for their client, take a cash advance from him and place it in their
firm’s client account.

• Accused Persons
• He will not be allowed to stand as surety.

• Bankrupt
• All undischarged bankrupt cannot stand as sureties.

• Bailor
• The fact that a person is already standing bail once does not preclude him from acting as surety in
another case, whether it is for the same accused person or for a difference one. The surety must
show that he is good for both bonds.

• Ways of Standing Surety


• The CPC provides for sureties standing bail in 2 sections: Section 355 and Section 359

1
This section is not covered in the lecture. It is a brief summary from pg. 169 – 180 of the Criminal
Procedure Manual (provided by the Board of Legal Education)
Bond to be executed.
355. —(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 that person and, when he is
released on bail, by one or more sufficient sureties conditioned that that person shall attend at the time and 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. Forms 3 and 60.
(2) If the case so requires, the bond shall also bind the person so released to appear when called upon at the High
Court or other court to answer the charge.
(3) It shall be a further condition of the bond that as long as it remains in force the person so released shall not,
without the permission of the police officer or the court, as the case may be, proceed beyond the limits of
Singapore.
(4) Such permission, if granted, shall be evidenced by an endorsement on the bond specifying the period of time
and the place to which the permission extends.
(5) No such permission shall be granted except on the personal application of the person so released in the
presence of his surety or sureties, if any.

Cash deposit instead of sureties.


359. When any person may be required by any court or officer to execute a bond with one or more sureties, the
court or officer may, except in the case of a bond for good behaviour, permit him to enter into his own bond and
in addition to deposit a sum of money to such amount as the court or officer thinks fit instead of providing a
surety or sureties.

• The underlying object of this section appears to be to enable prisoners who cannot find sureties to be bailed
on their finding cash. An application must be made to the court granting the bail to permit to provide a cash
deposit in lieu of sureties. The Court may vary the amount and is not entitled to demand a deposit of cash
rather than a recognizance.
• There are several advantages to this practice:-
• Sureties do not have their worth verified by the police. This enables the accused to be released on
bail sooner.
• Less work for both police and court staff.
• It also makes execution easier if the bail is ever estreated, as the money deposited is simply
forfeited. The bail amount is effectively secured.

• Affidavit of surety
• Affidavit
- There are no provisions in the CPC requiring a surety to swear an affidavit as to his
means. But it is an established procedure in the Sub Courts that:-
• where the bail sum is less than $1,000, the surety need not swear am affidavit.
• where the sum is greater than $1,000 but less than $5,000, the surety is required
to depose an affidavit as to his worth but no verification of the property used as
proof of worth is required.
• where the sum is greater than $5,000, and the property used as proof of worth is
other than cash or a fixed deposit receipt or a savings account book or title
deeds, the bail bond cannot be executed until verification of the worth of the
assets has been carried out by the Investigating Officer in charge of the case.
• Verification
- There is no legal requirement for such verification but the police are just assisting the
Court to satisfy itself that the surety is fit, proper, reliable and solvent.

• What can / cannot be used as sureties


• Deposit of bank documents
- The deposit of bank documents (such as pass books, fixed deposit, receipts and fixed
deposit certificates) by sureties is one of the most popular way or providing bail. There
are certain guidelines that the Court follows with respect to bank documents. Lawyers
should bear them in mind when advising clients as obtaining sureties.
• Other popular items that sureties regularly seek to rely on are as follows:-
- Motor Vehicles
• This can be relied on as indication of financial worth of surety. The log book
should be produced to the Court as proof of ownership.
- Household items
• This include furniture and electrical equipment. The Court is not concerned with
their purchase price but the price they will get when auctioned by the bailiff.
One will be able to get a good deal at these auctions as some of the prices can
be cheaper than at the Great Singapore Sale.2
- Share Certificate
• The Court is often reluctant to accept them as there will be difficulty in
valuation. Even shares of SIA for e.g. But Court still has discretion.
- Houses, Flats, Land etc
• The CPC does not provide for execution against immovable property. If
immovable property is ever relied on, the title deeds etc. should be retained by
the Court. However, enforcement action cannot be taken against HDB and
HUDC flats. Because of this, they will only be accepted in very exceptional
circumstances.
- Jewellery, Antiques, etc
• Can but might have some problems with valuation. The fact that such property
can be easily disposed of is only relevant when there are doubts about the
sureties’ reliability and where there is a real risk of him and the accused
absconding.
- Company Property
• No director or shareholder can use his company property as security. The surety
is assuming a liability personal to himself.
- Partnership Property
• Partnership property actually belongs to the partners. It therefore can be used to
indicate the financial worth of the proposed surety.

- S.355(3) CPC: the person so released shall not leave Singapore without prior permission
355. -- (3) It shall be a further condition of the bond that as long as it remains in force the person so
released shall not, without the permission of the police officer or the court, as the case may be, proceed
beyond the limits of Singapore.

- Surrender of passports – midway pt stimes


o Not provided for in CPC
o Local practice for both bailable and non bailable offences
o Passports surrendered in bailable and nonbailable cases
- whether this practice arises due to court impounding th passport or as cond of bail – see Lim Kiap Kee v PP
1998 1 MLJ 198 as opposed to PP v Dato’ Mar 1991 2 MLJ 186. see s67, 355(3) CPC
o Lim Kiap Kee v PP [1988] 1 MLJ 198: The issue of bail pending appeal arises after an accused
person has been convicted of an offence against which he wishes to appeal. There is however no
right to bail
Power of court to impound document or other thing produced.
67. Any court may, if it thinks fit, impound any document or other thing produced before it under this Code.

Police Bail vs Court Bail


- court issuing warrant of arrest may in its discretion direct by endorsement in the warrant that the person
arrested be released if he executes a bond with sufficient sureties for his attendance before the court at the
appointed time: s. 47 CPC

Court may direct by endorsement on warrant security to be taken.


47. —(1) Any court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on
the warrant that, if that person executes a bond with sufficient sureties for his attendance before the court at the

2
This comment is solely of the author’s. It is not recommended that the reader use this for examination
purposes.
next sitting of the court following the day of arrest and thereafter until otherwise directed by the court, the officer
to whom the warrant is directed shall take such security and shall release that person from custody.
(2) The endorsement shall state —
(a) the number of sureties; and
(b) the amount in which they and the person for whose arrest the warrant is issued shall be respectively bound.
(3) Whenever security is taken under this section the officer to whom the warrant is directed shall, when so
required, forward the bond to the court.

Bail in the process of investigations


- Arrest without warrant
o S.36 CPC: Person arrested to be brought to Magistrate’s Court within 48 hours of arrest
o May be remanded, or granted Court bail
o If investigations are not complete, the police can release the accused on Police Bail instead of
producing him in court and seeking custody/remand under s. 198 CPC
Person arrested not to be detained more than 48 hours.
36. —(1) No police officer shall detain in custody a person arrested without a warrant for a longer
period than under all the circumstances of the case is reasonable.
(2) Such period shall not exceed 48 hours exclusive of the time necessary for the journey from the
place of arrest to the Magistrate’s Court.
- Arrest with warrant
o S.50 CPC: Person arrested to be brought before Court without unnecessary delay
Person arrested to be brought before court without delay.
50. The police officer or other person executing a warrant of arrest shall, subject to section 47 as to
security, without unnecessary delay bring the person arrested before the court before which he is
required by law to produce that person.
o May be remanded, or granted Court Bail

Bail Pending Appeal

o Section 251 CPC:


Stay of execution pending appeal.
251. No appeal shall operate as a stay of execution, but the courts below and the High Court may stay
execution on any judgment, order, conviction or sentence pending appeal on such terms as to security for the
payment of any money or the performance or non-performance of any act or the suffering of any punishment
ordered by or in the judgment, order, conviction or sentence as to the court seem reasonable.

- Already conviction – found guilty


o Courts more reluctant to grant bail than otherwise when first applying for bail before conviction
- But bail is granted where sentence imposed is short term sentence
- If magis convicts and sentences to 3 mths imprisonment, unfair to refuse bail because by time grds of
decision written, record of appeal and petition, many mths passed
o Might have client serving sentence alrayd and appeal court setting aside sentence with order of
acquittal – unnec punishment in tt case
o Yeo Eng Siang v PP 2005 SGHC 47
 The appeal process
 48 On 26 November 2004, the appellant was sentenced to seven months’
imprisonment. His sentence was ordered to take effect from his date of remand,
9 September 2004. The appellant lodged the Notice of Appeal on 3 December 2004.
According to the prison authorities, the appellant’s earliest date of release was 29 January
2005. There was no evidence in the records that the appellant had made any application
for bail pending appeal. On 4 January 2005, a signed copy each of the Record of
Proceedings and the Grounds of Decision was served on the appellant. The Petition of
Appeal was then lodged on 13 January 2005, and the appeal was fixed for hearing on
1 February 2005. As a result, this appeal was rendered academic, as the appellant had
already served his sentence by the time this appeal was heard by me.
 49 I found this situation regrettable, to say the least. Although the records showed that
the procedure for filing criminal appeals was complied with, I believe that such a
situation calls for reforms to the criminal justice system so as to provide for such special
circumstances. I believe that, where possible, the courts should try to prevent such
situations from occurring.
- Similar principles for lengthy sentence but at least chance of appeal court merely reducing sentence by time
appeal comes up for hearing

- S.248 CPC: District Court or Magistrate’s Court may grant bail to a person who has filed a notice of
appeal
- Discretionary; “special reasons” needed before bail will be granted; for factors to be considered
o see Re Kwan Wah Yip [1954] 1 MLJ 146, Ralph v PP [1972] 1 MLJ 242 – “special reasons”
needed before bail will be granted; mere fact of notice of appeal given is not sufficient reason
o Re Kwan Wah Yip [1954] 1 MLJ 146.1
 A stay of execution should not be granted unless there are special reasons for doing so
and the mere fact that a notice of appeal has been given is not sufficient.
 => special reasons does not mean more than tt there must be reasons beyond mere
intention to appeal or advice and belief tt there are gd grds of appeal
 Gravity or otherwise of the offence
 Length of term of imprisonment compared with length of time it’s likely to take
for the appeal to be heard – if term of say 1 mth but appeal in 6 wks, then if make
him serve his time then more time than nec – so court likely to grant bail pending
appeal – emphasized in both casdes
 Whether there are difficult points of law involved
 Whether appellant is a first offender or has previous convictions
 The possibility of his becoming again involved in similar or other offences whilst at
liberty
 Whether the security imposed will ensure the attendance of the appellant before the
appellate court.
o Lim Teck Leng Roland v PP 2001 4 SLR 61 – decision must be supported by gd reasons and
burden is on accused to onvince court of his reasons – see above
o Ralph v PP
 Impt factor is the length of the potential imprisonment the accused would face compared
with the time it takes for the appeal to be heard
 Bail will normally be granted where the length of imprisonment is short since it will
render the results of a successful appeal academic if the accused has already served his
sentence by the time the appeal is heard.
- In practice, bail amount is normally increased after conviction – general rule of thumb – will ask for
double, and for defence to ask for lower bail

High Court’s Power to Vary Bail


- Section 354 CPC:
354. —(1) The High Court may, in any case whether there is an appeal on conviction or not, direct that
any person shall be admitted to bail or that the bail required by a police officer or Magistrate’s Court or
District Court shall be reduced or increased.
(2) The High Court may at any stage of any proceeding under this Code cause any person who has been
released under this section to be arrested and may commit him to custody.
• But should be used v carefully in cases punishable with death or life imprisonment
• Re KS Menon

- What is an order made on a bail application?


o “[A]n order on a bail application is nothing more than an interlocutory and tentative
expression of the conclusion as to whether a person should be set at large pending trial, or
disposal of his appeal, and nothing more.”
o Mohamed Razip v PP [1988] 1 MLJ 84
o Not a judgment or sentence; not an order of finality (eg, of conviction or acquittal) – a
nonappealable order
- Thus, there is no appeal from a refusal of bail - Therefore the CA cannot hear an ‘appeal’ from an order
of bail
o Section 241 CPC: Cases in which appeal lies.
241. No appeal shall lie from a judgment, sentence or order of a criminal court except as provided
for by this Code or by any other law for the time being in force.
- What to do?
o If trial court refuses bail pending appeal
o Apply by Notice of Motion to the High Court for bail under s.354 CPC or to Court of Appeal
under s. 51(2) SCJA

Appeal not to operate as stay of execution


51. —(1) Except in the cases mentioned in subsection (4), no appeal shall operate as a stay of execution.
(2) The trial court or the Court of Appeal may stay execution on any judgment, order, conviction or sentence
pending appeal on such terms as to security for the payment of any money or the performance or non-
performance of any act or the suffering of any punishment ordered by or in such judgment, order, conviction or
sentence as to the court may seem reasonable.
(3) If the appellant is ultimately sentenced to imprisonment, the time during which the execution of the sentence
was stayed shall be excluded in computing the term of his sentence unless the Court of Appeal otherwise orders.
(4) In the case of a conviction involving sentence of death or corporal punishment —
(a) the sentence shall not in any case be executed until after the expiration of the time within which notice of
appeal may be given under section 45, or any extension of time which may be permitted under section 50; and
(b) if notice is so given, the sentence shall not be executed until after the determination of the appeal.

- Once an application for bail has been rejected, a second or subsequent application is possible, but not
likely to be granted unless:
o Material change in circumstances
o New facts have since come to light (Mohamed Razip)
- see newspaper article April 26 2003: “allowance just $600 but priest has condo and $1m cash”
o Joachim kang hock chai – HC – man of substantial assets – therefore court shld not reduce bail fr 2
million set. Kang accused of 14 counts of embezzling 4.33 million fr catholic church; counsel
asked for 250000 bail argung that his children had served church for almost 30 yrs and al money
and assets were traceable and intact. Also said that kang unlikely to abscond. But DPP said Kang
was a flight risk adding that preist had refused to allow auth to get his bank records fr Malaysia.
Justice woo bih li halved kang’s bail to 1 million but ordered that he report weekly to commercial
affairs department (CAD)
- Dato’ Seri Anwar bin Ibrahim v PP [1999] 1 MLJ 321
o Facts: The appellant was charged with non-bailable offences, the trial of which in the High Court
is at present continuing. The High Court judge, in exercising his discretion, refused the appellant’s
application for bail under Section 388(i) of the CPC. The appellant appealed. The issue before the
court was whether the matter of bail is appealable to the Court of Appeal, taking into consideration
the definition of `decision` in Section 3 of the Courts of Judicature Act 1964 after the amendment
in 1998. Further, the court had to consider whether it was justifiable for it to interfere with the
discretion exercised by the judge below.
o Held: It was not the intention of Parliament that any decision of the High Court on any matter
would be appealable to the Court of Appeal. The matter of bail may very well be extraneous to the
issues to be determined in the main case. What are appealable, as intended by the current
definition of the word ‘decision’ in Section 3 of the Act, are those decisions of the High Court
that have the effect of finally disposing of the rights of the parties. The very nature of bail
possesses no element of finality. It is a mechanism for temporary relief from confinement. An
appeal on the matter of bail was incompetent to be laid before this court and therefore, should be
rightly dismissed.

Bail & Backdating of Sentences


- Every imprisonment sentence takes effect from day it was passed, unless court otherwise directs - s.223
CPC
o Can backdate sentence (discretionary) – by sentencing court

- Power to backdate - Section 223 CPC


Date of commencement of sentence.
223. Subject to the provisions of this Code and of the Supreme Court of Judicature Act, every sentence of
imprisonment to which section 221 or 222 apply shall take effect from the date on which it was passed,
unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs.

- General rule:
o If accused was released on bail, his sentence will not be backdated to take into account any
periods during which he was in remand. Only can backdate if had been in remand all along
o rarely done in HC but common practice in subcourts

- => take note when ur client first put in remand because this is date when court will backdate the
sentence
o Tang Kin Seng v PP [1997] 1 SLR 46 (para 115-119)– suggested that when period of bail
irrelevant for backdating of sentences, court generally wld not backdate it to include period where
accused out on bail
o Facts: The appellant was charged with using criminal force on an Indonesian maid, intending to
outrage her modesty by hugging her and kissing her on the cheeks. The offence was alleged to
have been committed in the lift of a block of flats.
o Held: Amongst others;
o As a general rule, the period in which a convicted person had been out on bail should not be taken
into account in backdating a sentence under Section 223 of the Criminal Procedure Code.

- In Cheong Seok Leng v PP [1988] SLR 565 Chan Sek Keong J had to consider whether any allowance
ought to be made for a period of detention in a drug rehabilitation centre when considering the
commencement of a sentence under Section 223.
o It was held that it should not, because such a centre is not gazetted as a prison. This case also
suggests that periods in which a convicted person has been out on bail is, as a general rule,
irrelevant for the purpose of Section 223.

- It is added that a primary consideration is the adequacy or harshness of the sentence.


o This is demonstrated in PP v Tan Kim Chok [1969] 1 MLJ 211 and Pang Po & Anor v PP [1962]
MLJ 294. The discretion given to the court under Section 223 does allow the court, to a certain
extent, to achieve the effect of giving the convicted person either an enhanced sentence or a
discount, or so it appears from the two cases.

- Nevertheless, there is a dearth of authority on this point. In the absence of more detailed argument, the
question whether under no circumstances should a sentence be backdated unless the convicted person had
been remanded in prison is best left open for another day.

- Mani Nedumaran & Anor v PP [1998] 1 SLR 411;[1997] SGHC 349)


o Facts: The appellants were originally charged with gang robbery. At that date of pleading guilty,
the appellants had already been remanded in prison for four months. The district judge convicted
them upon their plea of guilt and imposed the maximum sentence of one month’s imprisonment
prescribed. He refused to backdate the sentences to the date when the appellants were first taken
into remand. Both appellants appealed against sentence.
o Held: Section 223 of the Criminal Procedure Code permitted a sentencing court the discretion to
backdate a custodial sentence, thereby achieving in effect a discount in an accused’s sentence.
Conversely the court might, by refusing to backdate a custodial sentence, impose what amounted
in effect to an enhanced sentence. It was only fair that a court took into consideration any period
spent in remand by an accused when contemplating the exercise of its discretion to backdate.
o This did not mean that a custodial sentence had to invariably be backdated to the date when an
accused was taken into remand. There were other considerations which were relevant to a court’s
decision to backdate the sentence: these included the seriousness of the offence committed and the
corresponding demands of public policy as well as the quantum of maximum punishment
prescribed for the offence.
o In the present case, bearing in mind the circumstances of appellants` offence and also the length of
the maximum custodial sentence prescribed for the offence, the court agreed that the appellants`
sentences should have been backdated to the date when they were first remanded. However, the
court decided against ordering any backdating because such an order would have served no real
purpose, in view of the period already spent in remand by the appellants.

- Chua Chuan Heng Allan v PP 2003 SGHC 105 (check case) – general factors on whether court will
backdate a sentence
o The court’s power to backdate a custodial sentence is always discretionary
 8 The general rule of sentencing is that every custodial sentence takes effect from the
date on which it is passed. This is expressly provided for in s 223 of theCPC
 Thus, the court’s power to backdate a custodial sentence is purely discretionary: Sinniah
Pillay v PP [1992] 1 SLR 225. The backdating of a custodial sentence is an exception to
the general rule of sentencing and is never available as of right.
o The court is not obliged to exercise its discretion to backdate
 9 It is settled law that the court is not obliged to backdate a sentence of imprisonment
in any case. In Mani Nedumaran v PP [1998] 1 SLR 411 at 414 to 415, the court stated:
[I]t is only fair that a court take into consideration any period spent in remand by an
accused when contemplating the exercise of its discretion to backdate … The above does
not mean that a custodial sentence must invariably be backdated to the date when an
accused was taken into remand.
 Thus, where the court knows that an offender has previously spent time in remand, it
should take such a period into account, when it is deciding whether to backdate a
custodial sentence. However, this does not oblige the court to backdate a custodial
sentence in every case where an offender has already spent time in remand.
 10 The fact that an offender has spent time in remand does not necessarily increase the
likelihood that his sentence will be backdated. This is evidenced by the case of PP v
Wong Siu Fai [2002] 3 SLR 276, where the offender pleaded guilty to having committed
carnal intercourse against the order of nature on a five-year-old boy. In that case, the
court refused to backdate the offender’s custodial sentence because it was of the opinion
(at 280) that “the five months’ imprisonment already served should be part of the
punishment given the circumstances of [the] case”.
 11 The sentencing judge is not obliged to launch into an inquiry to find out whether an
offender has previously spent any time in remand. The law does not require the court to
actively ferret out such information. It is the offender who seeks to rely on the fact that
time was previously spent in remand – the onus of bringing such a fact to the court’s
attention must rest on him. It is pertinent that s 103(1) of the Evidence Act (Cap 97)
states: 103. — (1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must prove that those facts
exist.
o Factors which the court takes into account when deciding whether to backdate a custodial
sentence
 12 The court will take a variety of factors into account when deciding whether to
exercise its discretion to backdate. In the cases of Mani Nedumaran v PP and Sinniah
Pillay v PP, the court provided a list of relevant factors to be considered in this context.
This list included the seriousness of the offence committed, the corresponding
demands of public policy and the quantum of the maximum punishment prescribed
for the offence.
 13 However, the above list is not meant to be exhaustive. After all, the power to
backdate is properly left to the discretion of thesentencing judge, based on the
circumstances of every case.

Forfeiture of Bail Bond


- W/A issued if person does not appear - s.360 CPC
Arrest on breach of bond for appearance.
360. When any person who is bound by any bond taken under this Code to appear before a court does not so
appear, the court may issue a warrant directing that that person shall be arrested and produced before it.

- Bailor to show cause why bond should not be forfeited - s.361(1) CPC
Procedure on forfeiture of bond.
361. —(1) Whenever it is proved to the satisfaction of a court that any bond taken under this Code has been
forfeited, the court shall record the grounds of such proof and may summon before it any person
bound by the bond and call upon him to pay the penalty thereof or to show cause why it should not be
paid.
Forms 62 to 71.
(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the penalty
by issuing a warrant for the attachment and sale of the property belonging to that person.
(3) If the penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall
be liable, by order of the court which issued the warrant, to imprisonment for a term which may extend to 6
months.
(4) The court may, in its discretion, remit any portion of the penalty mentioned and enforce payment in part
only.
(5) Nothing in this section shall be deemed to prevent the penalty or any portion thereof of any bond under
this Code being recovered under the Government Proceedings Act.

The Show Cause


- when proved to satisfy to court that bond forfeited, court may summon ay person boud by bond and call on
him to pay penalty or show cause why it shld not be paid – Villiamai v PP 1962
• in Valliamai v. PP, the High Court in considering the Malaysian equivalent of s.361(1) CPC held: “
upon sufficient cause shown, forfeiture may be waived altogether, s.361(4) CPC further states in
specific terms that the Court has a discretion to remit any portion of the penalty mentioned and
enforce payment in part only. Careful consideration therefore, ought to be given by Magistrates to
the question in 2 stages; first, has sufficient cause been shown against forfeiture; secondly, if not,
are the circumstances such that the whole sum of the penalty ought to be enforced”

- burden on bailor
o re ling yew huat 1990 – burden of satisfy court of relief against full penalty or tt full sum shld not
be forfeited lies with surety
- seriousness of standing bail for another
- conduct of the bailor is relevant
- See Loh Kim Chiang v PP [1992] 2 SLR 233
o Emphasis on the culpability of the bailor in the failure to secure the attendance of the accused
o Consideration of efforts taken to secure the attendance by the bailor
- in Ramlee v. PP, the Magistrate estreated S1,000 out of the bond of $2,000 because he felt the bailors’
explanation were not satisfactory
o on appeal to High Court, it was held, inter alia that the “learned Magistrate should have concerned
himself whether there was sufficient cause shown and not whether the explanation was satisfactory
or unsatisfactory. He should have gone a step further (which he did not do) to decide whether in
view of the unsatisfactory explanation, he considered that the appellants had not shown sufficient
cause”. The order of the Magistrate was accordingly quashed.
o Adoption by Karthigesu J of the principles propounded in R v Uxbridge Justices ex parte
Heward Mills [1983] 1 All ER 530:
- (1) When a defendant for whose attendance a person has stood surety fails to appear,
the full recognizance should be forfeited, unless it appears fair and just that a lesser sum
should be forfeited or none at all.
- (2) The burden of satisfying the court that the full sum should not be forfeited
rests on the surety and is a heavy one. It is for him to lay before the court the
evidence of want of culpability and of means on which he relies.
- (3) Where a surety is unrepresented the court should assist him by explaining these
principles in ordinary language, and giving him the opportunity to call evidence and
advance argument in relation to them.
- “The court must consider the extent to which the surety was at fault.”
- “The court’s discretion under s 361(4) … was most important as it gave the court the
opportunity to weight the bailor’s culpability to act fairly and justly in determining
whether the full amount of the bail should be forfeited or a lesser sum or none at all.”
- PP v Kam Weng Nam
o bailor took no steps at all to ensure the accused’s attendance
o full amount of bail forfeited
- PP v Pang Tye Man
o bailor took the trouble to be present in the court punctually when the accused’s case was mentioned
o intended to remind the a to attend court
- Doanne Neville
- Stood bail for $400,000 – monies from wife & friends
- Accused convicted on 10 charges of cheating – out on bail pending appeal. White collar crime.
Further offences stood down during trial. 2 bail bonds – 1 for his appeal, 1 for his 2 stood down own
charges
- Surety :-
a) contacted accused 2 weeks before hearing,
b) accused disappeared 2 days later,
c) surety lodged a police report
- No cause shown as to why sum should not be forfeited
- Full sum forfeited

- S.361(4): Court has discretion to remit part of the penalty


- PP v Ram Ghanshamdas Mahtani & Anor [2003] 1 SLR 517
o Accused convicted of illegal employment
o Bail pending appeal put up by accused’s wife and brother-inlaw; accused absconded after
obtaining leave to travel outside jurisdiction
o CJ affirmed prima facie position that the bail amount will be forfeited in full
o Case not exceptional for court to modify prima facie position and exercise discretion to remit
whole or part of bail
o Bailors completely failed to show they exercised due diligence to ensure accused would return;
knew he was abroad but relied on faith that he would return - must secure attendance
o Bailors did not expend every effort to search for accused when he failed to return; merely
making a police report was insufficient

- Orders made under s.361 are appealable: s.362 (362. All orders made under section 361 by any
Magistrate’s Court or District Court shall be appealable.)
- See PP v Mahadi bin Mohamed Daud [2000] 1 SLR 30; [1999] SGHC 278
o Facts: The respondent was the surety for a Saudi Arabian national (the `accused`) who was
charged in the district court for outraging the modesty of a stewardess on board an SIA flight. The
cash bail furnished was $15,000. Whilst on bail, the accused left Singapore and failed to return to
attend court. At the show cause proceedings, the respondent informed the district court that he had
sent a facsimile to the accused in Saudi Arabia on the day before he was due to return to Singapore,
reminding him to attend court. The respondent also revealed that the money for the $15,000 cash
bail was provided by the accused.
o The district judge ordered the forfeiture of $10,000 out of the entire $15,000. The remaining
$5,000 was remitted to the respondent. The Public Prosecutor appealed against the order of the
district judge on the ground that the respondent had not shown sufficient cause why the entire bail
of $15,000 should not be forfeited and the district judge had erred in not forfeiting the entire sum
of $15,000.
o PP has locus standi to appeal against an order made under s. 361
o Since the whole purpose of bail was to ensure the attendance of accused persons in criminal
proceedings, the Public Prosecutor should be considered a party to proceedings involving
issues of bail. Thus, the Public Prosecutor had the locus standi to appeal against an order on
the forfeiture of a bail bond under Section 247 and 362 of the CPC.
o Funds for bail were provided by accused person (and not by bailor) – entire amount should have
been forfeited since to remit the amount to bailor would be allowing him to profit from accused’s
failure to attend court
o Held: allowing the appeal,
- “Show cause proceedings constitute a continuation of the original criminal
proceeding, and the Public Prosecutor is a party to proceedings involving bail.”
- “Mahadi did not show sufficient cause why the full amount should not be forfeited
as he had not done enough to secure the
- attendance of the accused … it would be wrong to remit any part of the bail bond to
him as (a) it would allow him to profit from the accused’s failure to attend court,
and (b) the judge had failed to adequately consider the fact that the accused had
provided the bail bond with the intention of not returning for his hearing.”
o The forfeiture of $10,000 and the remittance of the remaining $5,000 to the respondent would have
resulted in the respondent receiving $5,000, which clearly did not belong to him. Moreover, to
remit the $5,000 would have allowed the respondent to profit from the failure of the accused to
attend court when this resulted from his own failure to ensure the attendance of the accused. It also
appeared that the accused had conveniently bought himself a passage out of our criminal
jurisdiction by putting up the $15,000 through the respondent, when he had probably intended all
along never to return
o The district judge had failed to give adequate consideration to the source of the funds for the cash
bail. Having had the benefit of the knowledge that the $15,000 cash bail was provided by the
accused himself, it was clearly wrong to remit any part of the $15,000 upon his failure to attend
court.
o In the circumstances, the respondent had not shown sufficient cause why the whole amount of
$15,000 should not have been forfeited. Besides sending a cursory facsimile message one day
before the accused was required to return to Singapore, there was no evidence that the
respondent had taken any other steps to contact the accused. Moreover, given the fact that the
cash bail had been provided by the accused himself, there would have been no real incentive
for the respondent to ensure the accused’s attendance in court.