TATACARA JENAYAH II

UK4043

DR. MUHAMAD HELMI BIN MD. SAID, FUU UKM

 PART B
¡ S.388 of CPC
¡ (1) When any person accused of any non-bailable of fence is
arrested or detained without warrant by a police of ficer or
appears or is brought before a Court, he may be released on
bail by the of ficer in charge of the Police District or by that
Court, but he shall not be so released if there appears
reasonable grounds for believing that he has been guilty of an
of fence punishable with death or imprisonment for life:
Provided that the Court may direct that any person under the
age of sixteen years or any woman or any sick or infirm person
accused of such an of fence be released on bail.
Provided that the Court may direct
that any person under the age of
sixteen years or any woman or any
sick or infirm person accused of
such an offence be released on
bail.
 CONT…
¡ (2) If it appears to such officer or Court at any
stage of the investigation, inquiry or trial, as the
case may be, that there are no reasonable
grounds for believing that the accused has
committed a non-bailable offence, but there are
sufficient grounds for further inquiry into his
guilt, the accused shall, pending such inquiry, be
released on bail, or, at the discretion of that
officer or Court, on the execution by him of a
bond without sureties for his appearance as
hereinafter provided.
 CONT..

¡Non Bailable or knowingly as not

bailable refers to discreation of the court
to decide whether an accused person
should or should not be released on bail.
¡It is lawful for the police to issue police
bail under the CPC, s.388(1) against the
accused person who had been released
by a magistrate after detention under
the CPC s.117.
WHETHER THE ACCUSED CAN BE RELEASED
WHILE THE INVESTIGATION STILL IN
PROGRESS

¡Inspector Yusof Hj Othman V.

Kwan Hun Cheong(2011) 6 AMR
289
“ S.388 of CPC assists the police
to release the accused person on
police bail while the investigation
still in progress”
 BAIL IS DISCRETIONARY AND IS
JUDICIAL ACT
¡Where a person is accused of a non
bailable offence, the accused is not
entitled to be released on bail as of
right
¡Case: Lim Kiap Khee V. PP(1988)1
MLJ 198
¡Case: PP V. Mat Zain(1948) MLJ
Supp 142
¡ The granting of bail is a judicial act and it is the duty of the
court to decide whether there are reasonable grounds for
believing that the accused has been guilty of an offence
punishable with death
¡ Case: PP V. Dato Balwant Singh(2002) 3 AMR 3731
¡ Case: Moh Ting King V PP (1995) 3 MLJ 461 HC
¡ Case: DSAI V. PP(1948) 4 MLJ 481
WHETHER BAIL UNDER S.388
MUST BE MADE IN WRITING?
¡Case: PP V. DSAI (1998) 4 MLJ
481
¡Case: Babu Singh V. State of
UP (1978) CRlj 657
 FACTORS INFLUENCING DECISION TO
GRANT OR REFUSE BAIL

¡Case: Wee Swee Siang v.

PP(1948) MLJ 114
¡TheJudge in this case had
referred Mallal Digest and the
factors were as follows:
 CONT..

¡In Che Su Bt Daud V. PP(1978) 2

MLJ 162;
-The court cited with approval the
decision of Wee Swee Siang and
went on to add another three
factors for deciding whether or not
to grant the accused bail.
These Factors are;
 WHETHER THE COURT CAN DENY THE
BAIL DUE TO PREVIOUS CONVICTION

¡Case: Lau Kung Seng V PP(1997)

5 MLJ 323
 WHAT IS THE EFFECT OF FRUSTRATING
AND EMBARRASSING THE CRIMINAL
PROCEEDING

¡The court may decline to grant

bail in a non-bailable offence
where it would have the effect of
frustrating or embarassing the
criminal proceedings taken
against the accused.
¡Case: Shanmugam V PP(1971)1
MLJ 283
THE ISSUE OF INTIMIDATION OF WITNESS

¡Case: Moh Ting King v.

PP(1995)3 MLJ 461
 SOCIAL STATUS OF ACCUSED

¡Case:Shaikh Karim v Emperor( AIR 1926

Nag 279)
¡State V Mehboub Ali Khan( AIR 1956
BOM 548)
¡However in these two cases below:
¡Case: Juglekor V Emperor(ILR 54 ALL
115)
¡Case:Raja Narendralal Khan V
Emperor(ILR 36 Cal 166)
WHETHER FOREIGNER CHARGED WITH
NBO CAN BE BAILED?

¡Case: Lambert Kroger V

Enforcement
Directorate(2000) DLT 62
¡Case: Mohammed Kunju V
State of Karnataka AIR 2000
SC 6
 DANGER OF ABSCONDING

¡It is an important factor to be

considered in relation to the granting
of bail
¡Case: Gurbaksh Singh V State of
Punjab( AIR 1980 SC 1632)
¡Case: PP V Kamal Hisham bin
Jaafar( 2016) 1 AMR 302
OFFENCES PUNISHABLE WITH DEATH OR
LIFE IMPRISONMENT

¡Under CPC it does not define the

meaning of life imprisonment, however
under s.3 of criminal justice Act 1953, it
defines as;
“where any person is treated as having
been sentenced or is hereafter sentenced
to imprisonment for life, such sentence
shall be deemed for all purposes to be a
sentence of imprisonment for 30 years ”
¡ In the case of offences punishable with death and
life imprisonment whereby bail will no be granted if
there appears to be reasonable grounds for believing
that the accused is guilty of the offence.
¡ For example, if the accused person is charged for a
murder under section 302 of PC, the accused can be
released on bail where the accused can show
exceptional circumstances.
¡ Case: PP V Latchemy(1967) 2 MLJ 79
¡ Case: Leow Nyok Chin V PP(1999) 1 MLJ 437
¡ Case:Harun B Mat Saad V PP(2014) AMEJ 0692
¡ In contrast with the case of PP V. Balwant Singh(No
1) 2002 3 AMR 3731
WHERE THE ACCUSED IS UNDER THE AGE OF
16, A WOMAN OR ANY SICK OR INFIRM
PERSON
¡ The proviso of the cpc under s.388 provides
where the accused is charged with NBO and the
accused is woman, under age of 16 or sick or
infirm person, the court may admit the accused
to bail.
¡ Meaning to say that a person cannot be admitted
to bail merely because they are a woman, a
person who is under the age of 16 years or sick
or infirm person
¡ Case: Kok Wah Kuan V PP(unreported case-N0
44-29-2002)
¡ Case: PP v Latchemy(1967) 2 MLJ 79
 WHETHER THE COURT CAN IMPOSE
CONDITIONS WHERE GRANTING BAIL
¡Case: PP V DSAI(1998) 4 MLJ 481
¡Case: Re Sandarama( AIR) 1965 AP 444
¡Case: PP V Dato Mat Shah(1991) 2 MLJ
125
¡Case: Lim Kiap Khee V PP(1987) CLJ
(Rep) 717
¡Case: PP V. Abd Rahim Hj Ahmad(1998)
3 MLJ 272
WHETHER THE APPLICATION OF BAIL CAN
BE RENEWED

¡Case: Michael Lee@ Weng Ong

Lee V. PP(1999) 1 MLJ 171
 BURDENED ON THE ACCUSED OR NOT?

¡Case: Hussey V the State(1992)

LRC Crim. 62
 SECTION 388(4) OF THE CPC

¡Unlike Subsection(2), this provision only

applies after the conclusion of the trial
and before the judgment is delivered
¡The court may release him by the
accused executing a bond with or without
sureties for his appearance for the
delivery of judgment
 SECTION 388(5) OF THE CPC

¡The court has power under this

subsection to commit to custody any
person has been previously released
on bail in respect of NBO
¡Case: PP v Dato Mat (1991) 2 MLJ
186 SC
¡Case:Phang Yong Fook v PP(1987)
CLJ 826
 UNBAILABLE OFFENCE

¡Unbailable offence, refers to offences for

which an accused person cannot be released
on bail as of right and court have no
discreation to grant bail to the accused
¡Eg: SOSMA 2012- Section 13(1)- bail should
not be granted to a person who has been
charged under the SOSMA

¡However proviso S.13(2) SOSMA- under 18 yrs

old, women. Sick or infirm person
 BAIL IN RELATING WITH DDA

¡S. 41B(1) a-c

¡S.39B(2)
¡S. 41B(2)
¡Case: PP V Leong Ying Ming(1993) 1
AMR 399
¡Case: PP V Chiew Siew Lan
¡Case: Leong siew hong V PP(1988) 1
MLJ 396
¡ Where the offence is punishable with imprisonment
for more than 5 years in drug case, DDA under
S.41(1) (b) bars bail from being granted
¡ Case: Loy Chin Hei V. PP(1982) 1 MLJ 31
¡ Case: PP V. Leong Yang Ming(1993) 1 MLJ 177 SC

¡ Where the offence is punishable with imprisonment

for 5 years or less, bail may be still be denied where
PP certifies in writing that it is not in the public
interest to grant bail to the accused- S.41B(1) (c)
¡Eg FIPA 1971
¡Section 12 of FIPA 1971-where a
person has been charged with an
offence under FIPA 1971, bail
shall not be granted
 AMOUNT OF BOND

¡ 389 .
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, but shall not be excessive;
and a Judge may, in any case, whether there
be an appeal on conviction or not, direct that
any person be admitted to bail or that the bail
required by a police officer or Court be
reduced or increased
 QUANTUM OF BAIL

¡After granting bail, usually the court will set

the amount or quantum of bail
¡The provision in the CPC does not indicate
how the quantum of bail should be fixed.
¡Case: Soo Shiok Liong V PP(1993) 2 MLJ 381
¡ :Manickam&ors V PP(1982)1MLJ 227
¡ :Low Chit Bah V PP(1986) 1 MLJ 297
¡ Ramiah Bt Selamat V PP(1995) 2 MLJ
385
 WHETHER ANY PERSON CAN APPLY TO
REDUCE THE SUM(BAIL)?

¡Case: Lee Eng Hoe V PP(2003) 6

AMR 644
 ISSUE OF APPLICATION MADE TO THE
HIGH COURT

¡Sulaiman Bin Kadir(1976) 2 MLJ

37
¡DSAI V PP(1999) 1 CLJ 537
POWERS TO MODIFY THE TERMS OF BAIL

¡Case: Dato Mat Shah V PP(1991)

2 MLJ 125
 BOND TO BE EXECUTED
¡ 390. (1) Before any person is released on bail, or released on
his own bond, a bond for such sum of money as the police
of ficer 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 person shall
attend at the time and place mentioned in the bond, and shall
continue so to attend until otherwise directed by the police
of ficer or Court, as the case may be.

¡ (2) If the case so requires the bond shall also bind the person
released on bail to appear when called upon at the High Court
or other Court to answer the charge.

Case: PP V Parkash Kaur a/p Sadhu Singh (1995) 1 AMR 482

 PERSON TO BE RELEASED

¡ 391. (1) As soon as the bond has been executed the

person for whose appearance it has been executed
shall be released and when he is in prison the Court
admitting him to bail shall issue an order of release
to the officer in charge of the prison, and that
officer, on receipt of the order, shall release him.

¡ (2) Nothing in this section, section 387 or 388 shall

be deemed to require the release of any person
liable to be detained for some matter other than that
in respect of which the bond was executed.
 WHEN WARRANT OF ARREST MAY BE
ISSUED AGAINST PERSON BAILED

¡392. If, through mistake, fraud or

otherwise, insufficient sureties have
been accepted, or if they afterwards
become insufficient, the Court admitting
him to bail may issue a warrant of arrest
directing that the person released on
bail be brought before it, and may order
him to find sufficient sureties, and on his
failing so to do may commit him to
prison.
 SURETIES MAY APPLY TO HAVE BOND
DISCHARGED
¡ 393. (1) All or any sureties for the attendance and
appearance of a person released on bail may at any time
apply to a Magistrate to discharge the bond either wholly or
so far as relates to the applicants.
¡ (2) On such application being made the Magistrate shall issue
his warrant of arrest directing that the person so released be
brought before him.
¡ (3) On the appearance of the person pursuant to the warrant,
or on his voluntary surrender, the Magistrate shall direct the
bond to be discharged, either wholly or so far as relates to the
applicants and shall call upon 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 for whose
attendance and appearance he is a surety and immediately
bring him before a Magistrate, who shall then discharge that
surety’s bond and shall call on that person to find other
sufficient surety, and if he fails to do so shall commit him to
custody . CASE: Re Anant Shivaji(1970) Bom LR 1285
 WHEN DISCHARGED S.393(3)

¡Case: Fatehchand Wadhumal V

Emperor(AIR) 1940 Sind 136
 APPEAL

¡394. Any person aggrieved by any order

or refusal of any inferior Court made
under this Chapter may appeal to the
High Court, which may confirm, vary or
reverse the order of the inferior Court.
¡-who is person aggrieved?
¡Case:Mohan VPP(2002)2 AMR 1372
¡Case: Lee Eng Hoe V PP(2003) 6 AMR
644
 WHEN APPEAL IS ALLOWED?

¡Case: Madjai Sanusi V PP (2000)

5 CLJ
¡THANK YOU