FACULTY OF LAW (FOL)

TUTORIAL 3 – Week 4

Tutorial 3 (Bail)

QUESTION 1

Natsu was charged for an offence of using criminal force to deter a public servant from
discharging his duty under s.353 of the Penal Code. He was first charged on 8 November 2015
before the Magistrate’s court and bail was allowed at RM1,000 and hearing was fixed on 2 March
2016. Since then the case was adjourned several times mainly on the grounds that Natsu was
absent. Warrant of arrest was issued against Natsu and on 7 May 2016, he surrendered to the court.
Natsu explained that he was ill and fell asleep on taking some medicine and produced a medical
certificate in support.

Natsu’s bail was increased from the original RM1,000 to RM1,500 with one surety and ordered
him to surrender his international passport to the court. The case was finally fixed for hearing on 25
June 2016.
Advise Natsu

In answering a bail question, always identify the following:

1. Offence – S 353 PC
2. Punishment
3. Which 3 classfication does it fall under (Bail, Non-bailable, Unbailable)

Introduction
Natsu was charged for an offence using criminal force to deter a public servant from discharging his
duty under S 353 of Penal Code. Under 1 st Schedule 5th Column, this offence falls under a bailable
offence. However, since Natsu had breach the terms of the bail, we will need to identify the
possible issue below.

Issues:
1. Whether the DPP can revoke Natsu’s bail set?
2. Whether the DPP can submit to increase the bond?
3. Whether conditions can be imposed on a bailable type of offence?

1st issue
Whether DPP can revoke Natsu’s bail set?
Bailable Offences
 Section 2(1) of the CPC – Bailable Offences are offences shown as Bailable in Column 5
of the First Schedule to the CPC or which are made bailable by any other law for the time
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 being in force:.
 S 387(1) CPC – Bailable Offences are offences where the accused person shall be released
on bail as of right.
 R v Lim Kwang Seng & Ors
 In this case, the court held that if a person is charged with a bailable offence, the court shall
allow the bail as of right, and the court shall not refuse the bail.
 Mohd Jalil bin Abdulla & Anor v PP
 The word “shall” used in S387 of CPC is mandatory which means it was the right for the
accused to be granted with bail.
 Wong Kim Woon v PP
 Even though bail is mandatory under S387 (1) of CPC (as of right), but the continuation of
the bail must be based on the continued compliance of the term, and it must be
withdrawn when breached. Moreover, the accused was not entitle to apply for a fresh bail
after the bail was revoked, as it could not be the intention of the parliament to have done so.
Application: Natsu is entitled to bail as of right.

Revocation of Bail
Whether the DPP can revoke Natsu’s bail since he had breached the terms of the Bail.
CPC is silent for bailable offence.
 Persuant to S 388(5) CPC, a person released on bail may be arrested and committed to
custody at any stage of the proceeding.
 Phang Yong Fook v PP, it was held that a bail of a bailable offence could be revoked if the
accused had harrased or tempered with the witness.
 Wong Kim Woon v PP, even though bail is mandatory under S387 (1) of CPC (as of right),
but the continuation of the bail must be based on the continued compliance of the term, and
it must be withdrawn when breached. Also, the accused shall be given with an oppurtunity
to be heard as why the bail should not be revoked. However, fresh bail can be considered.
Application: Natsu is advised that since he had breached his terms, the court had the inherent power
to revoke Natsu’s bail provided the accused is given an oppurtunity to be heard as to why bail sould
not be revoked. Natsu will need to provide cogent reasons upon not attending court several times.
Just purely a medical certificate may not be a total valid reason as seen in Wong Kim Woon’s case.
If Natsu is able to satisfy the court, the court may not revoke his bail.

Whether DPP can submit to increase the bond.

Whether DPP can issue a warrant to arrest.
Whether conditions can be imposed on bailable offence.
Zulkifflee bin Hj Hassan v PP: Purpose of Bail is to secure the attendance of the accused to
answer the charge against him. It is not intended to be punitive and excessive bail ought not to be
required.
Phang Yong Fook v PP: Court had the power to issue a warrnt of arrest against the applicants if
they were absent during the hearing.
Mohd Jalil bin Abdullah v PP: The court shall not have the power to order the applicant to be
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remanded after the revocation of the bail. After such revocation of the previous bail, the court
should grant a new bail with sufficient sureties as he deemed fit. Only when the applicant failed to
execute the new bail, the court had the power to commit them into custody.
Application: Natsu is advice to personally apologies to the court for his absence and to prepare
cogent reason in order to avoid his bail being revoked. Furthermore, the increase of bond is
acceptable in coparison with PP v Mohd Jalil’s case. Finally no condition should be imposed for
bailable type of offence.

QUESTION 2

In PP v Dato’ Balwant Singh [2002] 4 MLJ 427, the accused was granted bail even though he was
charged with the offence of murder under s.302 of the Penal Code. Murder is a non-bailable offence
and punishable with death.

Explain the reason(s) for the above decision.

PP v Dato Balwant Singh
The accused was charged with murder under S302 of PC. But the court had accepted his
application for bail, by considering his age of 80 years old, and the medical report revealing
several medical disabilities faced by him. Thus, his condition was falling under the proviso
of S388(1) of CPC in granting bail.

QUESTION 3

KOTA KINABALU: The police will not extend the remand of seven students who were detained in
connection with a rape case in Tawau, which will allow them to sit for the Sjil Pelajaran Malaysia
(SPM) examinations.

The seven boys, all aged 17, were arrested up on Friday (Nov 15) after a report was received about
the rape of a Form Two student.

"The victim has been sent to the district hospital to undergo a medical check-up.
"Since the case have been solved and all suspects apprehended, the police will not extend their
three-day remand.
"They will be allowed police bail to enable them to sit for the SPM examinations which ends on
Nov 28," said Tawau district police chief Assistant Commissioner Peter Umbuas on Sunday (Nov
17).

He said the police are collecting evidence before proceeding with charges in court.
The victim, a 14-year-old girl from the same school, was found crying at around 11am on Friday
(Nov 15) by a teacher.
She claimed two boys had raped her while another four forced her to perform oral sex on them.
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Another suspect was watching while the incident happened at a switch room in the school.
The teacher alerted the victim's mother, who then filed a police report at 3.30pm on the same day.
The case is being investigated under Section 375B and 377A/377B/s377CA of the Penal Code for
gang rape and carnal intercourse against the order of nature.

NOT Bailable mean

Read more at https://www.thestar.com.my/news/nation/2019/11/17/seven-tawau-teens-accused-of-
rape-allowed-bail-to-sit-for-spm#PczbQzOW2VskPCsP.99

With reference to Statutory Provision and decided cases, discuss the issue(s) in this question.

Issue: Whether the police is allowed to release the minor suspects on police bail for non-bailable
offence.
Law: The suspects

Mohd Azran bin Rahmat v Mazlan bin Aliman

QUESTION 4

KUALA LUMPUR: Two more individuals who were arrested under the Security Offences (Special
Measures) Act 2012 (Sosma) over alleged links to the Liberation Tigers of Tamil Eelam (LTTE)
militant group were charged yesterday.

Melaka local authority councillor V. Suresh Kumar, 43, and B. Subramaniam, 57, were each
charged with giving support to LTTE through social media under the usernames of Rocketsuresh
Dap and UsSubra Subramaniam respectively.

Both nodded to show they understood the charges, which were read in Malay and Tamil by court
interpreters before Sessions Court judge Azura Alwi.

Suresh Kumar and Subramaniam were charged under Section 130J (1)(a) of the Penal Code, which
carries an imprisonment for life, or for a jail term not exceeding 30 years, or with fine; and shall
also be liable to forfeiture of any property used or intended to be used in connection with the
offence, upon conviction.

According to the charge sheet, Subramaniam and Suresh Kumar was allegedly found to have
committed the offence at the office of the investigation officer of the Counter-Terrorism Division
(E8) at the Bukit Aman police headquarters on Oct 7 and 11,2019, respectively.

Following the charging of the two, all 12 individuals arrested over alleged links with the militant
group recently have been brought to the courts in five states.
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Meanwhile, the other 10 individuals, including Melaka’s Gadek assemblyman G. Saminathan and
Seremban Jaya assemblyman P. Gunasekaran, were slapped with additional charges related to
alleged links to LTTE in front of three different judges at the Sessions Court.

Gunasekaran, 60, was charged with supporting LTTE through his social media account under the
name of Dap Guna Palaisamy.

He was charged under Section 131J (1)(a) of the Penal Code, which carries an imprisonment for
life, or for a jail term not exceeding 30 years, or with fine; and shall also be liable to forfeiture of
any property used or intended to be used in connection with the offence, upon conviction.

Scrap metal dealer A. Kalaimughilan, 28, meanwhile was charged with distributing LTTE-linked
materials at a hall in Wisma Tun Sambanthan between 8pm to 11.30pm on March 17,2014.

Kalaimughilan was charged under Section 130JB (1)(b) which carries a maximum jail term of
seven years or fine, and the items should be forfeited, upon conviction.

In another court before Sessions Court judge Azman Ahmad, five men were also separately charged
for supporting LTTE through their social media accounts.

S. Thanagaraj, 26, S. Arivainthan, 27, M. Pumugan, 29, S. Chandru, 38, and R. Sundram, 52, all
said that they understood the charge, which was framed under Section 130J (1)(a) of the Penal
Code.

According to the charge sheets, Thanagaraj, Arivainthan, Pumugan, Chandru, and Sundram had
allegedly given support to LTTE using the accounts under the name Tamilrasan Sivam, Ariventhan
Subramaniam, Pumugan Tamilan, Chandru Suparmaniam, and Elilan Elilan respectively.

They were said to have been found to have committed the offence between Jan 11 and Oct 11,2019
at the Counter-Terrorism Division (E8) office in Bukit Aman.

Earlier in the day, Saminathan, 34, V. Balamurugan, 37, S.Teeran, 38, and Kalaimughilan were
each charged with supporting LTTE through their social media account under the names of Gsami
Nanthan Siva, Balamurugan Veerasamy, Tammil Kannamah, and Kalai Mugilan respectively.

The charges, framed under Section 130J (1)(a) of the Penal Code, were read before Sessions Court
judge Rozina Ayob.
They were alleged to have committed the offence between Oct 8 and Oct 9,2019 at the office of the
investigation officer of the Counter-Terrorism Division (E8) at the Bukit Aman police headquarters.

Despatch rider Teeran was also charged under Section 130JB(1)(a) of the same law with possession
of LTTE-linked items at the carpark of Mandarin Pacific Hotel, Jalan Sultan here on Oct 10,2019.
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Meanwhile, Kalaimughilan was also slapped with one count of giving support to LTTE on
YouTube, framed under Section 130J (1)(a) of the Penal Code, an offence which he allegedly
committed on June 2,2014. He was also charged under the same section for allegedly giving
support to LTTE on March 17,2015 at Wisma Tun Sambanthan here.

Deputy Public Prosecutor Muhamad Iskandar Ahmad and Aslinda Ahad did not offer bail for all
charges, as all were detained under Sosma.

Lawyer and Bukit Gelugor MP Ramkarpal Singh, who was representing several of the individuals
including Seremban Jaya and Gadek assemblymen, argued that the provision under Sosma was
unconstitutional and that the accused should be released under bail.

With reference to Statutory Provision and decided cases, discuss the issues in this question.

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