Criminal Procedure II – Recent amendment and trend in litigation

Pre-Charge Pre-Trial (Our focus)

FIR Arrest Remand 1 Remand 2 Cognizance Trial Decision Sentencing

- There had been various amendments on our Criminal Procedure Code (CPC) since 2008 up to
2012 via Criminal Procedure Amendment Act
- The amendments and inclusions given effect on the following sections such as ss. 172A, 172B,
172C, 173(m)(ii), 183A, 402A, 402B, 402C, 407A and 426 CPC.
- The amendments are brought in on the basis such as to resolve backlog of cases, to speed trials,
to improvise the process and procedures of criminal cases and to promote swift justice, as justice
delayed amounts to justice denied
- These amendments are believed to have taken place in line with former CJ Tun Zaki Tun Azmi’s
(2008-2011) implementation of practice directions in resolving the issue of backlog of cases in
our Malaysia courts, where it was targeted that cases registered shall be disposed within one year
time

Pre-Trial Conference (PTC)

- A PTC, as the word ‘conference’ itself suggests that it is a meeting between parties (defence
and prosecution) having common interest (trial) in a matter
- As such PTC involves only the defence and the prosecution, court is not involved
- Practice Direction No. 2 (2012), Para (A)(2) provides that as court is not involve in PTC,
court is to be informed with the dates for PTC so as to make arrangement for case
management process in sooner time if there is any
- S. 172A(1) CPC provides that an accused person who is charged with an offence and claims
for trial shall participate in a PTC with the prosecution, being represented by his counsel
before case management commences
- S. 172A(2) CPC provides that a PTC shall take place within 30 days from the date the
accused person is charged before court or at any reasonable time before commencement of
case management by the court (not on remand day don’t mess up)
- S. 172A(3) CPC provides that the mode and manner as well as the venue for PTC may be
conducted as agreed upon by the defence counsel and prosecution
- It can be seen that PTC is a platform which allows defence and prosecution to discuss and/or
negotiate on issues and the merits of the case in dispute.
- Such discussion and/or negotiation is done in a more relaxed or less formal manner as the
parties are allowed to decide on how and where they are to discuss and/or negotiate and it is
to be done without the interference by the judiciary
- At the end of a PTC, the matters agreed upon by the parties shall be reduced to writing and
signed by the accused, his counsel and the prosecution
- S. 172A(4) CPC provides for the matters which may be discussed by defence counsel and
prosecution during a PTC:
(a) Identifying factual and legal issues
- Parties herein discuss and come into agreement on available factual and legal issues
(Eg. Based on the facts, violation of s. 299 or s. 300 Penal Code)
(b) Narrowing issues of contention
- Parties herein discuss and narrow down to only the important issues to be dispute.
- This is to ensure a smooth and speedy trial
(c) Clarifying each party’s position
- Parties herein discuss and/or bargain based on each other’s witness and strength and come to
an agreement
(Eg. Defence ask prosecution for less severe charge or drop charge if accused willing to
become prosecution witness or otherwise (prosecution make offer))
(d) Ensuring compliance of s. 51A CPC
- S. 51A(1) CPC provides that before the commencement of trial prosecution shall deliver to
the accused the following documents:-
o Copy of FIR made under s. 107
o Copy of any document which would be tendered as part of the evidence for
prosecution
o Written statement of facts in favour of defence of accused signed under the hands of
Public Prosecutor or the prosecution officer
- This is to ensure that accused had been supplied necessary documents and information as per
s. 51A before commencement of trial in order to avoid a trial by ambush (suddenly
 prosecution pop out with unknown document) and at the same time guaranteeing ‘equality of
arms’ (both side has enough armour for war)
(e) Discussion on nature of case for prosecution and defence, including any defence of alibi
that accused may rely on
- Here if the defence of alibi is relied by accused, the prosecution must be put to notice (in
writing) so as to allow the Investigating Officer (IO) to investigate and verify the alibi put
forward to ensure its legitimacy. If it is true, the charge against the accused may be
withdrawn and there will not be a trial
- If the alibi is not accepted to be true by IO and prosecution, then defence may provide a
notice of alibi later during case management as per s. 402A CPC
(f) Discussion any plea bargaining and reaching any possible agreement on it
- Here there can be discussion either on charge or sentence bargaining and if necessary,
accused is to proceed formally with an application for plea bargaining pursuant to s. 172C
CPC. If not, accused may proceed by way of an official letter to the prosecution on the plea
bargaining discussed. (rep letter)
- It must be noted here that in regards to sentence bargaining, prosecution not within its power
to offer lower sentence as this is the powers of court. Prosecution can only offer to mitigate
for lower sentence or not to pursue for higher sentence
(g) Any other matters as may be agreed upon by defence counsel and prosecution which may
lead to the expeditious disposal of the case
- Discussion herein may include any other matters which may be agreed upon with the sole
aim of disposing the criminal case swiftly in court
- S. 172A(5) CPC provides that all matters agreed upon by the parties in a PTC shall be
reduced to writing and signed by the accused, his counsel and the prosecution
- PP v Robert Yee [2015] MLJU 1010, court was in agreed with the book Janab’s Key to
Criminal Procedure (3rd Edition 2014), whereby under s. 172A there is no requirement for
accused to be present during PTC. But somehow the discussion and matters agreed during
PTC must later be signed and agreed by accused. In this case, the prosecution evoke matters
other than those agreed in PTC. Court rejected the matter and added that prosecution is bound
by the PTC agreement
- In Naveen Raj Naidu a/l Gunasegaran v PP [2015] 3 CLJ 1082, court held that matters in
ss. 172A and 172B CPC must be complied with strictly. Agreements made herein must be
strictly consented by accused person (voluntarily)
Case Management

- S. 172B CPC basically suggest that case management shall commence after a PTC
- Case management process herein involves the defence, prosecution and the court, where at
the stage the court is to deal with the admissibility of exhibits for trial purpose proposed by
the parties
- However, this section does not stop the court to provide directions for certain partial case
management at the moment the accused person was charged. For instance, court may fix a
hearing date for trial or to appoint a counsel for the accused person if he is not represented
(usually YBGK lawyers will be called)
- This is to ensure a fair and expeditious trial (eg. accused person not deprived of his right for
legal representation under Art. 5)
- In practice, case management is being held in chambers (DC+DPP+Judge)
- S. 172B(1) CPC provides that court shall commence case management process within 60
days from the day the accused person was charged before court and claimed for trial. Court
herein includes Magistrate, Sessions and High Court.
- S. 172B(2) CPC provides that court shall:
i) Take into consideration all matters that have been considered and agreed to by the
accused and prosecution during PTC. In case a plea bargaining had been agreed, the
court shall decide on the voluntariness of accused
ii) Discuss with the parties about the things that should be discussed in PTC in case there
was no PTC held and accused was not represented
iii) Assist unrepresented accused to appoint his defence counsel
iv) Determine the duration of trial
v) Fix a date for commencement of trial, subject to (3)
vi) Admit any exhibits subject to the consent of defence and prosecution
vii) Provide any directions for the purpose of achieving a fair and expeditious trial
- In Melinda Stevenson v PP [2020] 6 CLJ 34, court of appeal held that s. 172B(2)(vi) CPC
provides explicitly that any exhibit which is to be admitted before trial must first have the
consent of the accused and his advocate. In addition, rules under the CPC must also be
strictly adhered to. In this case, the learned Judicial Commissioner allowed a procedure not
under the CPC and hence, court of appeal herein had to set aside the high court’s conviction
- In Alma Nudo Atenza v PP [2017] 1 LNS 979, court explained that “consent” provided
under s. 172B(2)(vi) it not necessary be reduced into writing as there was no explicit
 requirement to do so under the CPC. In this case, the defence counsel did not object to the
DPP’s use of the chemist’s disputed witness statement, hence it was treated that he has given
consent impliedly
- S. 172B(3) CPC provides that in case there is a need for subsequent case management, it
shall be held not less than two weeks before the commencement of trial
- S. 172B(4) CPC provides that trial shall commence not later than 90 days from the date of
the accused being charged
- S. 172B(5) CPC provides that in case of failure of commencement of case management or
trial within the stipulated period as per (1) and (4), it shall not be a ground to
(a) Render charge against accused person to be defective or invalid
(b) To be taken into consideration as a ground for appeal, review or revision
- In practice, the process from charge to trial usually takes up to 12 months due to the existence
of s. 172B(5)
- S. 172B(6) CPC provides that all matters agreed upon which had been reduced into writing
and signed by the accused, his counsel and the prosecution under s. 172A (5) will be
admissible as evidence at the trial. Evidence Act 1950 herein will not operate as a bar to the
admissibility
- This is due to the reason that a PTC had been held, so both parties had already come to
consensus by signing the agreement in s. 172A(5) where there should not be any issue of
non-consensual or deprive of justice towards the accused person
- Also, if we look at s. 172A(4)(d) above, all documents necessary to be supplied to be accused
has been ensured during PTC.
- Hence there is no need for the interference of Evidence Act 1950
- In Naveen Raj Naidu a/l Gunasegaran v PP [2015] 3 CLJ 1082, court held that matters in
ss. 172A and 172B CPC must be complied with strictly. Agreements made herein must be
strictly consented by accused person (voluntarily)

Plea Bargaining

- Black’s Law Dictionary: Plea bargaining is a process that takes place between the accused
person and prosecution in a criminal case where the parties come to a mutually satisfied
disposition of case subject to the court’s approval. Usually, accused person will plead guilty
to a lesser offence or only to one out of the few offences charged against him in return for a
lighter sentence
- Mahendra Singh Adil in ‘Plea Bargaining, Concept and Precept’: Plea bargain refers to an
agreement between the accused person and the prosecution in a criminal case in which the
parties agreed upon in settling the case against accused person. The accused person herein
agrees to plead guilty or no contest in return for some concession from the prosecution. Such
concession may include reducing the original charge(s) or to dismiss the charge(s) against
accused person or to limit the punishment a court can impose on the accused person.
Generally, plea bargain permits the parties to come to an agreement on the outcome and
settle the pending charge
- Hence we can say that plea bargain is a pre-trial settlement between the accused and
prosecution when accused person plead guilty
- In effect, it is deal where the prosecution offers incentives for the accused to plead guilty
(eg. DPP: come and become prosecution witness in the dark side with me and I shall suggest
to the court to impose lesser sentence on you)
- Plea bargain has two types:-
a) Charge bargain - an offer by the prosecution to reduce or withdraw some of the charges
brought against the accused in exchange for a guilty plea
b) Sentence bargain - an offer by the prosecution to recommend a specific sentence or
refrain from making any recommendation for a more severe sentence in exchange for a
guilty plea (note: prosecution can only suggest to reduce or STFU not to suggest higher
sentence, the final decision is still up to court)
- In Zainon Shariff v PP [1996] 4 CLJ 441 *, it was held that plea bargain has been practised
in Malaysia in an implicit manner in which if the accused person pleads guilty at earlier
stage, court will consider it as mitigating factor before passing sentence
- Even before the incorporation of plea bargaining into our legal system via Criminal
Procedure Amendment Act 2010, our courts have already impliedly adopting it. In the case of
PP v Hisla Sulai [2008] 10 CLJ 381, YA Hamid Sultan given his view whereby our courts
shall entertain plea bargaining as subject to the guidelines in R v Turner in order for criminal
matters to be disposed of in an expeditious manner and in such the appellate courts will not
be unnecessarily burdened with appeals
- In R v Turner [1970] 2 QB 321 *, it is important for the court to look into whether the
accused person, having considered his counsel’s advice truly has the freedom of choice in
accepting or declining the plea bargaining (there must be voluntariness on part of accused)
Pre – Amendment (before 2010)
- Before amendment, there was no s. 172C CPC, hence our courts only relied on s. 5 CPC in
recognising plea bargaining
- S. 5 CPC provides that in pertaining to criminal matters in which this Code does not have
provide for (silent) the laws of England relating to criminal matters for the time being in force
is to be applied, save in accordance that it does not conflict with this Code or to be made as
auxiliary(supplementary) provision
- Also, during that time courts were not involve in plea bargaining process and the power of
sentencing solely depends on the opinion of the court, to be precise the presiding judge
- In New Tuck Shen v PP [1982] 1 MLJ 27, it was held that the courts are not bound by the
private bargaining between prosecution and defence as the right to impose punishment is
absolutely within the province of the court
- In Chua Qwee Teck v PP [1991] 4 CLJ Rep 755, it can be seen that our courts will only
determine the voluntariness of accused person in plea bargaining after conviction and when
an appeal is filed. In this appeal the accused person argued that his plea of guilty was not
voluntary as he was told by his counsel that he would only be liable to fine if he pleads guilty
but in fact he was sentence to imprisonment by the trial court
- In Kartiselvam s/o Vengatan [2011] 4 MLJ 212, in this case the prosecution appealed due to
the inadequate sentence imposed by court against the accused person. The accused person
contended that he was told by his counsel to plead guilty in return for a lesser charge.
However, there was no evidence showing that there was plea bargaining prior to this and
there was no record showing that the lower court had participated in the plea bargaining to.
Court herein decided to increase the sentence as a result of the error made by the trial court
- Example can also be seen in Singapore Cases before Plea Bargaining was incorporated into
their criminal legal system. In Fu Foo Tong v PP [1995] 1 SLR 448, it was held that a plea
of guilt is not to be taken as an automatic ground in consideration of sentence reduction. A
plea of guilt has no mitigating value, especially when the evidence overwhelmingly supports
a conviction
Post – Amendment (After 2010)
- With the amendment, plea bargaining has been introduced in to the CPC by S.172C
- In the light of such amendment, courts have departed from the former landmark case of New
Tuck Shen’s and now relies on the court of appeal case of Manimanaran a/l Manickam’s.
- In PP v Manimaran a/l Manickam [2011] 6 MLJ 534 **, court laid down few principles in
pertaining to plea bargaining in lieu of the amendment.
a) Request for plea bargain must come from none other than the accused person himself
 b) If the request is made by a representing counsel, the said counsel must obtain a written
and signed authority from his client (accused person) stating that the accused person was
the one intended to request for the plea bargain
c) If the request is made to the court, the court must forward it to the prosecution
d) Accused person must be made known that he should not plead guilty unless he is really
guilty of the offence charged against him
e) The prosecution must promptly react to the request and the plea bargaining agreement
must state the minimum and maximum sentence acceptable to them
f) Such plea bargaining agreement must be placed before the court so that the court will
impose a sentence within the acceptable range
g) If the court disagrees with the sentence proposed, then the court must inform the parties
and later recommend a more adequate sentence in its view. If none of the parties have
come into an agreement, the next step is to proceed to trial.
h) The whole process of plea bargaining must be recorded and carried out transparently
and the notes will form part of the notes of proceeding later
- In PP v Yap Sooi Leng [2016] 3 MLJ 46 *, here the prosecution appeal against the sentence
imposed by the trial court against the accused person in which it was deem to be inadequate.
Prosecution on this appeal argued that the offence committed was a heavy one and the trial
court had taken the unnecessary consideration of the alleged plea bargain, which does not
exist in imposing sentence against accused person. Court of Appeal herein held that since
there wasn’t any record on the plea bargain, hence such alleged plea bargain does not even
exist in law and shall not have any effect at all . It was an irrelevant factor that had been taken
into consideration by the learned trial judge. Court herein allow appeal and increase the
sentence from 9 years to 15 years of imprisonment
- S. 172C(1) CPC provides that an accused person charged with an offence and wishes to
claim trial may apply for plea bargaining before the court in which the offence is to be tried
- S. 172C(2) CPC provides that application for plea bargaining is to be made in Form 28A,
Second Schedule
- S. 172C(2) CPC provides that application for plea bargain in Form 28A shall contain
(a) the brief description of the offence in which the accused person is charged with
(b) a declaration by the accused person himself stating that the present application is made
voluntarily and he duly understands the nature and the extend of punishment provided by
laws in pertaining to the offence he was charged with
 (c) information as to whether the present plea bargain is in respect of the sentence or the
charge in pertaining to the offence accused person is charged with
- s. 172C(3) CPC provides that upon receiving application in (1), the court shall issue a written
notice to the prosecution and notice to appear before court to accused person on a fix date to
hear the application
- Such written notice to prosecution is to be given by adhering to Practice Direction No. 2
(2012), Para (C)(5) which provides that the sample for such written notice to be as per
Attachment B of the Practice Direction
- s. 172C(4) CPC provides that on the hearing date as per (3), Court shall examine the accused
in camera (close court) as to whether the accused person has made the application
voluntarily whereby:-
(a) if the accused person is not represented by counsel, in the absence of public prosecutor
(b) if the accused person is represented by counsel, in the present of the counsel and public
prosecutor
- s. 172C(5) CPC provides that once voluntariness is determined by Court, the accused and the
public prosecutor shall then proceed to mutually agree on a satisfactory disposition of the
case
- s. 172C(6) CPC provides that if the court is dissatisfied on the issue of voluntariness of
accused person, it shall then dismiss the application and the case shall then proceed before
another court subject to the provisions of this Code
- s. 172C(7) CPC provides that when a satisfactory disposition of the case has been agreed
upon by the accused person and the public prosecutor, such disposition shall be put into
writing and signed by accused person, his advocate if he is represented, and the public
prosecutor. In such Court shall effect such satisfactory disposition as agreed upon by accused
person and public prosecutor
- Form for disposition of case under s. 172(C) by virtue of Practice Direction No. 2 (2012),
Para (C)(6) is to be referred to in Attachment C
- s. 172C(8) CPC provides that in the case where there is no satisfactory disposition that has
been agreed upon by accused person and the public prosecutor, the Court shall keep a record
of it and the case shall proceed before another Court subject to the provisions of this Code
- s. 172C(9) CPC provides it is the duty of the court to ensure voluntariness of accused
person and public prosecutor throughout the process of plea bargaining which leads a
satisfactory disposition of case in (5)
 - In PP v Yap Sooi Leng [2016] 3 MLJ 467 *, court emphasized that the main importance in s.
172 is that court must satisfy that the application for plea bargain was made under the
accused person’s own voluntariness and it is also the duty of the court to ensure that the
whole process is to be done willingly and voluntarily by parties involved

Disposal of case

- s. 172D(1) CPC provides that when the accused person and public prosecutor has come into
an agreement in pertaining to a satisfactory disposition of case under s.172C, the court shall s
dispose the case in the following manner:
(a) make any order under s. 426
(b) rule the accused person guilty on the charge agreed upon in the plea bargain and sentence
him accordingly if the plea bargain was on the charge
(c) (i) if the plea bargain was on the sentence, rule the accused person guilty on the charge
and deal with him in accordance to s. 293 or s. 294
(ii) sentence the accused person not more than half of the maximum years of
imprisonment provided for the offence in which accused person was charged, save in
accordance to (2) and (3)
- S. 426(1) CPC provides for court to order for payment of cost of prosecution and
compensation in which
(a) payable by the convicted accused person as agreed by public prosecutor
(b) (i) prosecution against the convicted accused person involves evidence obtained via
request made under Mutual Assistance in Criminal Matters Act 2002 (eg. request
assistance from foreign authorities to obtain evidence) or
(ii) the accused has obtained pecuniary gain (eg. CBT cases)
- S. 293(1) CPC provides for manners in disposing case involving youth offenders (see statute
it’s too long)
- S. 294(1) CPC provides for manners in disposing case involving first offenders (see statute
it’s too long)
- s. 172D(2) CPC provides that if there is a minimum term of imprisonment provided for the
offence charged against the accused person, he shall not be sentenced to a lesser term of
imprisonment than that of the minimum term *
- s. 172D(3) CPC provides that (1)(c)(ii) is not applicable in the circumstances where:
 (a) the offence in issue is a serious offence and the accused person has a previous conviction
for such offence or other related offence
(b) the offence in issue falls under any of the following:
(i)an offence which is only liable to fine per se under the law
(ii)an offence in which its punishment is imprisonment for natural life
(iii)a sexual related offence
(iv)an offence committed against children below the age of twelve
(v)an offence as may be specified by the public prosecutor or by order published in the
gazette
- s. 172D(4) CPC provides that ‘serious offence’ in (3)(a) means an offence where the
maximum term of imprisonment is not less than 10 years and includes any attempt or
abetment to commit such offence
- s. 172E CPC provides that conviction of the court under s. 172D is not appealable except on
the extent and legality of the sentence (because already plead guilty maaa)

Criminal Procedure II - Bail (Jamin)

- Bail refers to a bailment of the accused person to his sureties by him giving sufficient security
for his appearance before court when required. Instead of going to prison/lock up, the accused
will continue to be in their friendly custody pending trial/investigation
- Oxford Dictionary of Law: Bail is the release by police or courts of a person held in legal
custody while waiting for trial or appealing against a criminal conviction
- In R v Rose (1891), court held that bail is to be given as of right as it is merely a
requirement to secure the attendance of accused person at the trial and shall not be
withheld as a form of punishment
- In Yusof bin Mohamed v PP [1995] 3 MLJ 66, court held that bail in a layman language
means a form of security taken from the accused person to appear before court on a fixed
date. It is also to be understand as to set a person under arrest or detention free by taking
security for his appearance
- Laws governing bail are found in ss. 387-394 CPC
- Generally there are three categories of offences under the law when it comes to bail, known
as Bailable, Non-bailable and Unbailable offence
- s.2 CPC provides that bailable offence are those shown to be bailable in First Schedule,
Fifth Column whereas non-bailable refers to other (those shown to be non-bailable)
 - Bailable Offence: Less serious in nature, to be granted as of right (s. 387)
- Non-bailable: More serious in nature, to be granted upon court’s discretion (s. 388)
- Unbailable: Very serious, cannot be bail regardless of any reason (s. 41B DDA 152, s. 12
FIPA 1971, S. 27 DDAFOP 1988)
- In Loy Chin Hey v PP [1982] 1 MLJ 31, court distinguished that ‘not bailable’ in First
Schedule, Fifth Column refers to non-bailable in s. 388 and is not to be confused with
unbailable
- Bond – an instrument binding the person who executes it. It may bind the person to be of
good behaviour or to appear in court on a particular date
- Bail Bond – binds the person (surety/bailor) who executes it to ensure the accused appears
before court to answer the charge preferred against him

Types of Bail

Bail pending investigation ( aka police bail)

- An arrested person is entitled to right to be bail upon arrest if he is not produced before the
Magistrate within 24 hours as stipulated in A. 5(4) FC and also s. 28 CPC
- A. 5(4) Federal Constitution provides that when an arrested person is not being released, he
shall within 24 hours or without unnecessary delay be produced before a Magistrate and shall
not be further detained without Magistrate’s authority
- S. 28(1) CPC provides that a person arrested without warrant shall without unnecessary delay
to be produced before a Magistrate subject to the provisions of bail
- S. 29 CPC provides for the right to bail whereby an arrested person shall be released with his
own bond or on bail or by virtue of a Magistrate’s written order or a police officer ranked
Inspector and above
- S. 387(1) CPC provides that when any person accused of bailable offence is arrested or
detained without warrant by a police officer or is brought before a Court and is prepared at
any time while in the custody of that officer or at any stage of the proceedings before the
Court to give bail, he shall be released on bail by any police officer in charge of a police
station (OCS) or by any police officer not under the rank of Corporal or by the Court
(Note: Only Constable and Lance Corporal cannot give bail, OCS usually ranked sergeant
and above up to Assistant Superintendent, depending on size of balai)
- In Mohd Jalil bin Abdullah v PP [1996] 5 MLJ 564, it was held that ‘shall be released on
bail’ in s. 387(1) is mandatory, which simply means as of right
- S. 387(2) CPC provides that if the police officer or the Court thinks fit and proper may
discharged the person in (1) on him executing a bond without sureties for his appearance as
hereinafter provided instead of taking bail from him
- S. 388(1) CPC provides that when any person accused of any non-bailable offence is arrested
or detained without warrant by a police officer or is brought before Court, he may be
released on bail by the officer in charge of the police district (OCPD) or by that Court. But
he shall not be released if there are reasonable grounds for believing that he has been guilty
of an offence punishable with death or life imprisonment. Save in accordance that Court
may order that any person under the age of 16 years old or any woman or any sick or infirm
person accused of such an offence be released on bail (Note: OCPD usually ranked
Superintendent or Assistant Commissioner depending on size of district)
- S. 388(2) CPC provides that the police officer is also allowed to exercise his discretion to
release an accused person who had committed a non-bailable offence on bail at any stage of
investigation with a condition that the accused person executes a bond (personal bond)
without sureties to secure his attendance when required. This is save in accordance to the
condition 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 by
the Court, thus pending such inquiry the accused shall be released on bail pending
investigation.
- S. 388(3) CPC provides that the police officer ordering for release in (1) and (2) shall record
in writing his reasons for releasing the accused on bail pending investigation
- In Manja anak Kus v PP [1985] 1 MLJ 311, here the accused person was arrested for an
offence of voluntarily causing hurt by using dangerous weapon under s. 324 Penal Code,
which is a bailable offence. The learned Magistrate made an order for remand for 14 days
under s. 117 CPC. The appellant then appealed. It was held that the right to bail pending
investigation is subject to the power and discretion of the Magistrate to remand the accused
person in custody pending completion of police investigation pursuant to s. 117. It was
further held that s.117 CPC supersedes s.387 CPC and that the Magistrate was right to
refuse bail and to order that the accused be remanded under s.117 for police investigation.
The arrested person in such cannot challenge on the basis that it is a bailable offence.
(in line with wordings of Art. 5(4))
Bail pending trial
- Bail pending trial means an accused is released on bail after he has been formally charged
before court and the court has fixed a date of trial of the charge against him. While waiting
 for the date of trial the accused person is released on bail, or otherwise he has to be remanded
in custody at the prison (if remand order was made by court)
- Provisions of ss. 387(1), 387(2), 388(1), 388(2) and 388(3) CPC and also cases in bail
pending investigation are applicable here as well

Purpose of Bail

1. To secure the appearance of an accused on a certain day at a certain place to answer the
charge against him
2. The bail bond is not intended to be punitive (punishment in nature). Likewise, excessive bail
bond is not required
- S. 389 CPC provides that the amount of bond executed shall be sufficient with due regard
to the circumstances of the case in order to secure the attendance of the accused but shall
not be excessive. In addition, a judge may also make order to direct any person to be admitted
to bail and order for variation of amount of bond
3. An accused released on bail is to be granted temporary freedom and an opportunity to
facilitate the preparation of his defence

Principle of Bail

- Generally, it relates to the principle that an accused is presumed innocent until proven guilty
- It is also an exception in cases where there are reasonable grounds for believing that the
accused has been guilty of an offence punishable with death or imprisonment for life (eg. to
hold in custody for offence punishable with death or imprisonment for life, giving bail is an
exception to such case)
Bailable offence
- S. 387(1) CPC provides that when any person accused of bailable offence is arrested or
detained without warrant by a police officer or is brought before a Court and is prepared at
any time while in the custody of that officer or at any stage of the proceedings before the
Court to give bail, he shall be released on bail by any police officer in charge of a police
station (OCS) or by any police officer not under the rank of Corporal or by the Court
- Here the accused person shall be released on bail as of right
- In Mohd Jalil bin Abdullah v PP [1996] 5 MLJ 564, it was held that ‘shall be released on
bail’ in s. 387(1) is mandatory, which simply means as of right
- S. 387(2) CPC provides that if the police officer or the Court thinks fit and proper may
discharged the person in (1) on him executing a bond without sureties for his appearance as
hereinafter provided instead of taking bail from him
- Since this is a right of an accused person, no further conditions can be imposed on him
- In PP v Dato Mat [1991] 2 MLJ 186 *, court held that s. 387 provides for the right of an
accused person to be release on bail but is silent as to court’s discretion to refuse bail here.
By looking at Indian cases such as Rex v Genda Singh, it suggests that when there is no
discretion to refuse bail, the question of imposing conditions also does not arise. Differing
from s. 388 where conditions can be imposed in bail bond, there is no discretion given under
s. 387 to police or court to not grant bail if the accused person is ready to provide such bail
- In Chew Xing Jie v PP [2020] MLJU 377, accused person a Singaporean, was charged under
s. 15 DDA 1952 which is bailable offence. He pleaded guilty and was granted bail by learned
Magistrate with amount of RM 3,000 bail with one Malaysian surety and two conditions that
he must surrender his passport and report to nearest police station weekly. On this application
to High Court to review the imposition of conditions, court ruled that the term ‘shall be
released in bail’ means mandatory. Since this he is to be releases as of right there is shall be
no question of imposing extra conditions. Court herein annul the conditions of surrendering
passport and to report at nearest police station weekly but the bail amount of RM 3,000 and
one surety remains
- In Wong Kim Woon v PP [1999] 5 MLJ 114 *, in this case the accused person was granted
bail under s. 387 but failed to attend various hearings before court to the extent that a warrant
of arrest was issued against him. He then produced medical certificates to justify his absence
but was rejected by the Sessions Court without giving him any opportunity to explain and
revoked his bail. On appeal, High Court held that such revocation of bail was bad in law as he
was not given an opportunity to be heard and ordered the Sessions Court to conduct a hearing
against accused person on why his bail should not be revoked
- However, s. 117 overrides s. 387 CPC as per Manja anak Kus v PP (see above)
Non-bailable offence
- Differing from bailable offences, an accused person charged with non-bailable offences does
not have the right to be on bail. Bail is only allowed subject to the discretion of the court
- S. 388(1) CPC provides that when any person accused of any non-bailable offence is arrested
or detained without warrant by a police officer or is brought before Court, he may be
released on bail by the officer in charge of the police district (OCPD) or by that Court. But
he shall not be released if there are reasonable grounds for believing that he has been guilty
 of an offence punishable with death or life imprisonment. Save in accordance that Court may
order that any person under the age of 16 years old or any woman or any sick or infirm
person accused of such an offence be released on bail
- Under s. 388, there are three circumstances distinguished:-
a) There are no reasonable grounds to believe that accused is guilty of the offence but there
are sufficient grounds for further inquiry (eg. he might not be involve, but may have
witness it) – accused may be released on bail by OCPD or court ( s. 388(2) )
b) There are reasonable grounds to believe that accused is guilty of the offence – accused
shall not be release (no discretion)
c) Accused is under age of 16 or a woman or a sick/infirm person – court may allow release
on bail
- In Dato Mat Shah v PP [1991] 2 MLJ 125, it was held that a high court judge has unfettered
(absolute) discretion to grant bail in non-bailable offences. Hence, subordinate courts have no
discretion to grant bail when an offence is punishable with death or life imprisonment. Only
High Court does
- In Inspector Yusof Haji Othman v Kwan Hung Cheong [2011] 8 CLJ 1, it was held that
police may also issue bail under s. 388(1) even if the accused person has been released by
Magistrate after a detention for remand under s. 117. Police may also issue such bail with
imposition of conditions which may be extend from time to time, provided that the case is
still under police investigation
(eg. charge for s. 302, remand finish already, enough evidence to charge, by right should be
in police custody, but police may grant bail)
- S. 388(2) CPC provides that the police officer is also allowed to exercise his discretion to
release an accused person who had committed a non-bailable offence on bail at any stage of
investigation with a condition that the accused person executes a bond (personal bond)
without sureties to secure his attendance when required. This is save in accordance to the
condition 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 by the
Court, thus pending such inquiry the accused shall be released on bail pending investigation.
- S. 388(3) CPC provides that the police officer ordering for release in (1) and (2) shall record
in writing his reasons for releasing the accused on bail pending investigation
- In KWK (A Child) v PP [2003] 4 CLJ 51 *, here the accused person is a minor of 16 years
old who was found guilty of murder under s.302 Penal Code and was ordered to be detained
at the pleasure of YDPA. The accused person applied for a stay of execution and was refused
 by the High Court. In the instance appeal, court dismissed the appeal on the ground that the
offence committed was a very serious one, whereby reference was made to John Bishop’s
Criminal Procedure (2nd Edition), providing that the more severe the offence is the weaker
the presumption in favour of bail and vice versa
- In Che Su bte Daud v PP [1978] 2 MLJ 162, in this case, the co-accused was jointly charged
with her husband for drug trafficking. Court allowed her application for bail on the grounds
that she was a mother of six children including a 4 month old breastfeeding infant
- In Leow Nyok Chin v PP [1999]1 MLJ 437, the accused person was charged under s. 302
Penal Code. She applied for bail on the reason that she needs to undergo medical observation
so that her mental disease will not be worsen. She also applied that she need to out as she
requires constant moral support from her family members and that she need to be in the
mentally stable condition to prepare for the defence. Her application was rejected and court
held that her medical report does not shows that her condition will be worsen if she lacked
support from family members and that her sickness is obviously not one that would involve
the risk of life. Court in its discretion to grant bail must also consider gravity of the offence
and the severity of the punishment.
- In PP v Dato’ Balwant Singh (No. 1) [2002] 4 MLJ 427, the accused person, a 81 year old
advocate and solicitor was charged under s. 302 Penal Code. He made an application for bail
by virtue of s. 388(1) and tendered together with his medical report which provides that he is
suffering from several diseases. Court allowed application for bail as the medical report
tendered was strongly relied on, where first, the medical report showed that he was indeed
suffering from various disease showing that the is weak and feeble and secondly, the medical
report was also not rejected by prosecution

Factors that shall be taken into consideration

- Given that in non-bailable offences, bail is at discretion of the court, so when exercising its
discretion to grant or not to grant bail, it may also consider various other factors.
- The courts generally take into consideration inter alia the following factors (either one or
combination of more than one) from Malal’s Criminal Procedure Code:
1. The nature and gravity of the offence charged;
2. The nature of the evidence in support of the charge;
3. Whether there is or is not reasonable grounds for believing the accused is guilty of the
offence;
4. The severity and degree of punishment which conviction might entail;
 5. The guarantee that the accused, if released on bail, will not either abscond or obstruct the
prosecution in any way;
6. The danger of the offence being continued or repeated;
7. The danger of the witnesses being tampered with;
8. Whether the accused if released on bail, is likely to tamper with the prosecution evidence;
9. Whether the accused is likely to get up false evidence in support of the defense;
10. The opportunity of the accused to prepare the defense;
11. The character, means and standing of the accused;
12. The long period of detention of the accused and probability of further period of delay
- Cases laws and other authorities were referred to in pertaining these considering factors
- In PP v Wee Swee Siang (1948) MLJ 114 **, court listed down few factors (similar ones in
Malal’s CPC) to consider in granting bail or not:-
1. Whether there are reasonable grounds to believe the accused is guilty of the offence
2. Nature and gravity of the offence
3. Severity and degree of punishment that might follow
4. Danger of the accused absconding if he is granted bail
5. Accused’s character, means and standing
6. Danger of the offence being continued or repeated if bail is granted
7. Danger of witnesses being tampered with if accused is released on bail
8. Opportunity of the accused to prepare for his defence
9. Long period of detention/ custody between date of charge and date of trial.
Court in this case also added that the utmost consideration is to ensure that accused person
must be present before court when required
- Hence it can be concluded that the factors which are to be take into consideration by our
courts in granting bail or is not closed or restricted

Objections to Bail

- Bail may be opposed on the ground that the accused is suspected of being involved in other
similar offences which are still under investigation
- However this is not a ground which is reasonable to be considered by the courts and has been
rejected.
- This is simply because an accused is always presumed to be innocent until proven guilty
- In Manickam v PP [1948] MLJ 114 ***, it was held that application for bail should not be
simply refused as the benefit of presumption of innocence leans toward the accused person
 - In Dato Seri Anwar Ibrahim v PP [1998] 4 AMR 3816, court held that bail should not be
granted to the accused in the event of there is a danger of witnesses being tampered
- In State v Mehboob Ali Khan AIR (1956) *, court held that a person’s status in the society
shall not be a point sufficient in consideration to grant bail
- See also the list in Mala’s Criminal Procedure Code and PP v Wee Swee Siang

Conditions that may be imposed if bail granted

- In PP v Dato Mat [1991] 2 MLJ 186, court held that s. 387 provides for the right of an
accused person to be release on bail but is silent as to court’s discretion to refuse bail here.
By looking at Indian cases such as Rex v Genda Singh, it suggests that when there is no
discretion to refuse bail, the question of imposing conditions also does not arise. Differing
from s. 388 where conditions can be imposed in bail bond, there is no discretion given under
s. 387 to police or court to not grant bail if the accused person is ready to provide such bail.
In this case the accused person was charged under s. 409 Penal Code. Court grant his bail and
later varied imposed conditions on his bail where he is allowed to get back his passport for
the purpose of his business trip to Indonesia in which he must returned back his passport to
the court once he is back from the said trip. Prosecution appealed and was dismissed by court
- So it is agreeable that when there is discretion to grant or not to grant bail, it comes with the
discretion to impose conditions on the bail granted
- The conditions imposed must also be of reasonable conditions
- In Hazari Lal Gupta v Rameshwar Prasad AIR 1972 SC 484, accused person was a director
of a company Indian company in England and resides in England who came to do business in
India. He was charged under s. 406 Indian Penal Code. It was held that it is right for the High
Court to compel accused person to surrender his passport to restrict him from leaving India
was reasonable as a condition imposed in granting of his bail
- In PP v Wee Swee Siang (1948) MLJ 114 **, court held that the utmost importance in
whether to grant the bail or not is to ensure that accused person must be present before
court when required
- Examples of conditions which may be imposed:-
1. Surrender of accused’s travel documents to the court
- See both Dato Mat v PP and Hazari Lal Gupta v Rameshwar Prasad, both also charged for
CBT, but Dato Mat can get his passport and Hazari didn’t. As mentioned in PP v Wee Swee
Siang, the important thing is that accused’s attendance before court. So we can infer that
Hazari is a foreigner so if his passport is given back to him, he will fly to UK and not come
 back anymore. As for Dato Mat, he is Malaysian citizen and a public servant, he has family
here and his everything here and it is always easier to extradict him back if he runs away
2. Duty to report at police station
- In PP v Abdul Rahim bin Hj Ahmad [1988] 3 MLJ 272, the two conditions of the grant of
bail are imposed in that the applicants should report once in the morning and once in the
evening to the nearest police station and that they do not approach near the premises where
the complainant lives
3. Restriction on movement of accused (e.g. not to approach the complainant’s place of
abode)
- In PP v Abdul Rahim bin Hj Ahmad [1988] 3 MLJ 272, the two conditions of the grant of
bail are imposed in that the applicants should report once in the morning and once in the
evening to the nearest police station and that they do not approach near the premises where
the complainant lives
4. To surrender firearm and license to the police; to remain indoors for a stipulated time; not
to be present at any open public places or attend any public functions save for religious
and family activities; not to leave town without leave of court
- In Dato Balwant Singh v PP (No. 1) [2002] 4 MLJ 427, the accused person, a 81 year old
advocate and solicitor was charged under s. 302 Penal Code. He made an application for bail
by virtue of s. 388(1) and tendered together with his medical report which provides that he is
suffering from several diseases. Court allowed application for bail with enlarged sum of RM
500,000 as the medical report tendered was strongly relied on, where first, the medical report
showed that he was indeed suffering from various disease showing that the is weak and
feeble and secondly, the medical report was also not rejected by prosecution. Few of the
conditions imposed are such as:-
(i) to surrender his firearm and the licence relating thereto to the police immediately;
(ii) all passports to be surrendered to the court;
(iii) the accused is to report to the police once in two weeks;
(iv) the accused is to remain indoors from the hours of 6pm-8am;
(v) the accused is not to be present at any open public place or attend any public functions
save for religious and family activities;
(vi) the accused is not allowed to leave Kuala Lumpur and Petaling Jaya without leave of
court;
(vii) the accused is to cease his legal practice within a period of one week
 - When the court stipulates conditions, the accused shall comply with it. If he does not do so,
he faces the risk of being remanded in custody pending trial.
- Such conditions provide a supplemental security towards ensuring the attendance of the
accused at his trial.
- The conditions imposed have also a persuasive effect of reducing a larger amount of bond
which would have been otherwise required by the court
- In PP v Dato Mat [1991] 2 MLJ 186 **, it was held that s. 389 is a supplement to s.388
where the former provides that that the amount of bond executed shall be sufficient with due
regard to the circumstances of the case in order to secure the attendance of the accused but
shall not be excessive. So by imposing conditions in to the bail has a persuasive effect of
reducing larger amount of bond which would have been otherwise required by court. This is
also consider as a form of supplementary security in securing accused person’s attendance
before court
(Note: As the top priority is to ensure his attendance, its either the conditions are strict or
bond amount high, if conditions are strict, bond amount can be lower)

Application for bail

- Naturally, order to grant or not to grant bail made by the court is interlocutory and tentative
(not conclusive, upon discretion of court based on facts)
- Thus there can be successive applications made by the accused to the same court as the order
made in the first instance may not be conclusive
- In Dato Seri Anwar Ibrahim v PP [1999]1 MLJ 321, ** accused person was charged for a
non-bailable offence and his application for bail was rejected by the High Court, hence he
appealed herein before Court of Appeal. The issue before such appeal is that whether matter
relating to bail is appealable to the Court of Appeal. Court in dismissing the appeal held that
by looking into the wordings of ss. 3 and 5 CJA 1964, the word ‘decision’ excludes any
extraneous ruling on issues in concern with the main case and bail obviously does not fall
under ‘decision’ as it is not the issue in the main case. Furthermore, the nature of a bail is that
it has no finality, it is given upon court’s discretion, it can be granted and revoked later .
Upon refusal, it can also be reapplied
(Note: means if HC refuse bail, cannot appeal up to COA, but can make fresh application to
HC again)
- Fresh application may also be made to the High Court if attempt made at the lower court
failed
- In PP v Chew Siew Luan [1982] 2 MLJ 119, the accused person was a pregnant woman
charged with drug trafficking which is an unbailable offence. Court held that by virtue of
principle generalibus specialia non derogant, s.41B DDA supercedes s.388 CPC and hence it
is unbailable
- In PP v Dato’ Mat [1991] 2 MLJ 186, the respondent had been charged for criminal breach
of trust before Sessions Court and had been offered bail in the sum of RM 400,000 in two
sureties and on condition he surrenders his international passport to the court after variation.
Dissatisfied with the order, learned DPP appealed before High Court and later up the
Supreme Court. In was held that 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
- In PP v Zulkiflee bin Hassan [1990] 2 MLJ 215 **, accused person was charged several
offences of criminal breach of trust and was sentenced to a total of six and a half years
imprisonment. He applied for a stay of execution of his sentence pending appeal. Sessions
Court allowed him bail for the sum of RM 200,000 with two sureties and as a condition to the
bail, ordered him to surrender both his international and restricted passports to the court. He
then applied for the release of his international passport. The application was dismissed by
the Sessions Court and he then applied to the High Court for the release of the passport by
way of a notice of motion under s.389 CPC . The learned judge of the High Court allowed
the application for the release of the international passport. The learned DPP then appealed
on the ground that the learned High Court judge in this case only had jurisdiction to consider
an appeal under s .394 CPC and not an application under s.389 CPC. It was held that the
High Court had jurisdiction to entertain the application under s.389 CPC regarding the
amount of bond executed (eg situation kenaf fk by Hafiz)
- In Michael Lee v PP [1999]1 MLJ 171 *, on the obiter dictum by KC Vohrah J, one can
make application for bail to the High Court in the event of an unsuccessful attempt at the
subordinate court, in which no requirement of appeal is needed here against the refusal of
subordinate court to grant bail
Resorts if bail was refused by subordinate courts
1. Re-apply to the same court after first attempt failed
- The only requirement by the applicant/accused is to show to the court that there has to be an
alteration or variation of the bail order made. Such alteration or variation can be on the
refusal of bail by the court or conditions of bail set by the court
 (sort of like bargain with the court to get the bail order by offering alteration or variation, eg.
just now I ask bail judge don’t give, now I offer a larger bail amount and give my passport,
please let me be out on bail because of I have many business to handle)
- The applicant/accused has only to show sufficient and cogent reasons like material change
in circumstances since the last order made by the court or new facts have come to light which
the court ought to know (Eg 1. court allowed bail but passport must be surrendered, but
suddenly applicant need to attend a very important business meeting oversea; Eg. 2 in a rape
case, suddenly there is new evidence showing that victim might have consented to the
intercourse with accused )
2. By virtue of s. 389 CPC for fresh application for bail or second application after a failed
attempt to High Court **
- S. 389 CPC provides that the amount of bond executed shall be sufficient with due regard to
the circumstances of the case in order to secure the attendance of the accused but shall not be
excessive. In addition, a judge may also make order to direct any person to be admitted to
bail and order for variation of amount of bond
- The process involved in s. 389 is simple and fast as it is only necessary for the applicant to
file a Notice of Motion/Application supported by an affidavit to the High Court
- It is speedier and suits the subject matter of bail (fresh application or variation) which by its
nature is urgent (see PP v Zulkiflee bin Hassan above)
3. By appeal to the High Court pursuant to s. 394 CPC
- S. 394 CPC provides that a person being dissatisfied with any order made by inferior court
pertaining to bail may appeal to the High Court, whereby it may confirm, vary or reverse the
order made by the inferior court
- The process of appeal takes very long time requires filing of a Notice of Appeal, to wait for
the grounds of decision of the lower court judge, filing of a petition of appeal premised on the
grounds furnished and to wait for a hearing date of appeal by High Court
- The entire process is slow and it will defeat the urgent nature of the subject matter which is
bail. In a situation where an accused has not been granted bail, he may have to be remanded
in custody pending an appeal pursuant to s. 394 CPC
- So by looking at ss. 389 and 394 CPC, obviously we will opt for s. 389 because it is faster.
But this section cannot be simply evoked. It is only permissible to use s. 389 only when there
are reasonable grounds in which bail shall be allowed
- In Sulaiman bin Kadir v PP [1976] 2 MLJ 37, accused person was charged under s. 376
Penal Code. He applied to the High Court by virtue of s. 389 to exercise its discretion to grant
 bail on exceptional and very special reasons. The learned DPP contended that the application
should have been brought by Notice of Appeal under s. 394 instead of s. 389. Court herein
held that the learned President of Sessions Court was indeed right in refusing bail if he sees
that there reasonable grounds pointing towards accused person to be guilty. But when a
person had been held in custody longer than what is necessary, s.389 comes into the picture.
In present case, there was a refusal by the Sessions Court, this also allows s. 389 to be
applicable and furthermore, there were exceptional and special reasons, hence the court may
exercise its discretion and grant bail. Bail granted
(Note: only apply s. 389 when you are super confident and that HC judge will allow bail, or
else apply s. 394 for appeal, if no proper grounds, you apply s. 389 go until HC might kena
attack by DPP saying that s. 394 is to be use. Logic: appeal take longer time, police can hold
u longer)
Amount of Bond
- S. 389 CPC provides that the amount of bond executed shall be sufficient with due regard to
the circumstances of the case in order to secure the attendance of the accused but shall not be
excessive. In addition, a judge may also make order to direct any person to be admitted to
bail and order for variation of amount of bond
- In Manickam v PP [1982] 1 MLJ 227, court held that an excessive bail bond may defeat the
purpose granting of bail as the accused may not be able to furnish bail
- In a Singaporean case of Low Chit Bah v PP [1986] 1 MLJ 297, defence counsel submitted
that the bail is to be reduced to $500,000 in two sureties on the ground that there was
difficulty in obtaining instructions from the applicant while he was in custody. The
application was opposed by learned DPP. It was revealed that the applicant, being a
Singapore citizen had travelled on a forged Philippines passport and he also had a valid
passport issued by the Republic of China. It was held that on the facts before court the
consideration was that there was likelihood that the applicant would abscond from Singapore
to evade trial if bail was reduced. On this ground only, his application must already be
refused. In addition, having regard to the serious charges and the amounts involved, the bail
of $1,000,000 in two sureties was not excessive
- In PP v Zulkiflee bin Hassan [1990] 2 MLJ 215 *, the applicant was charged for CBT and
the Sessions Court allowed bail of RM 1million with 2 sureties and his passport was
impounded. High Court later reduced the bail to RM200,000 and held that the purpose of bail
is to secure the attendance of the accused to answer charges against him as provided under
s.389 and should not be punitive
 - In Soo Shiok Liong v PP [1993] 2 MLJ 381 ***, court in held that bail amount imposed
shall not be excessive as long as it is sufficient to secure the attendance of applicant. Court
also laid down few factors to be considered in setting the amount of bail bond:-
1. The nature and gravity of the offence and the severity and degree of punishment which
conviction might entail. It is therefore wrong to fix the quantum of bail solely on the basis
of the value of the subject matter of the charge;
2. The quantum should be higher in the case of non-bailable offences;
3. An excessive quantum may defeat the granting of bail as the accused may find difficulty
in getting a bailor acceptable to the court;
4. The principle and basis of our criminal law that the accused is presumed to be innocent
until proven guilty;
5. Whether there is likelihood of the applicant absconding if the bail quantum is set too low;
6. Bail is intended only to secure the attendance of the accused at the trial. The amount of
bail may vary according to the circumstances even on similar value of the subject matter
of the charge;
7. The surrender of the international passport should go to reduce the quantum of bail;
8. That the accused had presented himself at the police station and had co-operated with the
police should to abate the quantum of bail;
9. The quantum of bail should not be set so prohibitively high as to have the effect of
incarcerating the accused even before he is convicted of the offence;
10. Application of the court’s mind in considering the above factors ought to be reflected in
the judge’s records
- Hafiz Q: if court grant bail bond amount, you agree then you got out of court, suddenly you
realised can get lower amount, what to do? Either appeal via s. 394 (slow) or variation of bail
amount via s. 389(faster) to the High Court

Revocation of Bail

Revocation for bailable offence

- CPC is silent as to court’s power on revocation of bail for bailable offences as s. 388(5) only
gives the court power to revoke bail for non-bailable offence (see Manja ak Kus, s. 117 can
supersede 387)
- S. 388(5) CPC provides that court may at any stage of proceeding under this Code to order
for arrest and commission to custody against any person released under this section
 - However, even if a person charged with a bailable offence (where bail is granted as of right)
it somehow can be revoked if the accused has breached a fundamental term of the bail
- In Phang Yong Fook v PP [1988] 1 MLJ 267, accused person was charged under s. 409 PC
and was granted bail by Sessions Court but later revoked on the grounds that he had been
harassing and tampering with witness. Accused person herein appealed before the High Court
under s. 389 CPC. It was held that mere statement of allegation on accused conduct without
any evidence to prove beyond reasonable doubt cannot be the ground for the bail to be
revoked. There must be evidence, oral or affidavit document on the part of prosecution in
applying to have the bail revoked. The power of court to revoke bail must be exercised with
care, in which there wasn’t any in this case. Appeal allowed, revocation of bail set aside.
- It is to be noted that the factors in PP v Wee Swee Siang (see above) is not applicable in
revocation of bail, as it merely deals with whether to grant bail or not
- In Wong Kim Woon v PP [1999] 5 MLJ 114, in this case the accused person was granted
bail under s. 387 but failed to attend various hearings before court to the extent that a warrant
of arrest was issued against him. He then produced medical certificates to justify his absence
but was rejected by the Sessions Court without giving him any opportunity to explain and
revoked his bail. On appeal, High Court held that such revocation of bail was bad in law as he
was not given an opportunity to be heard and ordered the Sessions Court to conduct a hearing
against accused person on why his bail should not be revoked. Court added that where bail is
mandatory and is offered under s. 387 (1) CPC, the continuation of the bail must be based
upon the continued compliance of its terms and the withdrawal of it when it is breached
- Hence, if prosecution apply to revoke bail, court must first provide an opportunity for
accused person to be heard on why bail against him should not be revoked. This is in line
with the natural justice principle of audi alteram partem
Revocation for non-bailable offence
- S. 388(5) CPC provides that court may at any stage of proceeding under this Code to order
for arrest and commission to custody against any person released under this section
- Can use back the two cases in bailable offence to argue if defence counsel, or straight use s.
388(5) if DPP, as it is ab initio a non-bailable offence, to grant bail is court’s discretion. Since
there is discretion to grant, there is discretion to impose conditions and revoke (see PP v Dato
Mat above)

Forfeiture of Bond
- When an accused is released on bail or personal bond, he has to ensure appearance at the
specified court on the required date and time.
- If he is released on bail his surety or sureties has to ensure his appearance in court.
- S. 390(1) CPC provides that before any person is released on bail or on his own bond, a bond
for such sum of money as the police officer or Court, thinks sufficient shall be executed by
that person. Also, when he is released on bail by one or more sufficient sureties, the condition
here is that person shall attend at the time and place mentioned in the bond and shall continue
so to attend until otherwise as directed by the police officer or Court
- S. 393 CPC provides that sureties for the attendance and appearance of a person released on
bail may apply to a Magistrate to discharge the bond either wholly or so far as relates to the
applicants at any time
- Hence, if the accused person who is released on bail or bond pending trial is absent in court
on the required date and time, the court will issue a warrant of arrest against him followed by
a Notice to Show Cause to the surety/bailor as to why the bond should not be forfeited
- S. 404(1) CPC provides that whenever the bond is for appearance before a court such bond
has been forfeited, the court shall record the grounds of such proof and may call upon any
person bound by such bond (sureties) to pay the penalty or to show cause why it should not
be paid
- The court has first to take evidence on the bond and the sureties mentioned
- This testimony may be given by specific witnesses, usually the Sessions Judge, Magistrate or
Registrar who granted the bail
- The sureties will also then be given an opportunity to cross-examine those witnesses
- In Khor Ewe Suan v PP [1964] MLJ 220, court provided the guidelines for show cause
procedure under s. 404(1). At the very first instance, the prosecution must first prove that the
bailors (sureties) executed the bail bond. The bail bond must also be produced and proved by
calling the registrar, magistrate, or president who granted the bail. Then the sureties must be
given the opportunity to cross-examine all witnesses. The sureties should also be allowed to
give evidence and call witnesses to explain why the court should not forfeit the bail sum.
- S. 404(2) CPC provides that in case there show cause produced is not sufficient and/or
penalty is not paid, court may issue a warrant for the attachment and sale of property
belonging to the sureties
- S. 404(4) CPC provides that in case the penalty is not paid and cannot be recovered by such
attachment and sale, the sureties shall be liable to imprisonment in civil prison which may
extend to six months
- S. 404(5) CPC provides that court has discretion to remit(cancel) any portion of the penalty
and enforce payment in part only
- S. 405 CPC provides that orders for forfeiture made under s. 404 shall be appealable to the
High Court
- Appeal grounds may include procedural incompliance and so on with the court on appeal,
may set aside the forfeiture
- In R v Chow Fook Loy (1951), it was held that once order for forfeiture was made, it is a debt
due to the government in which must be paid in full and not by instalment. Court does not
have power to order for the payment to be made by instalment
- In Valiammai v PP [1969] MLJ 280, in this case, the surety had been attending court several
times with the intention to discharge herself as surety but was not given any opportunity to do
so. Sometime later, the accused person absconded and surety was called to show cause. Court
held that cause had been shown and hence ordered the forfeited bail amount to be returned to
her
- In PP v Chou Tai Chuan [1988] 1 MLJ 511, court held that as the first surety was not
informed of the hearing dates, he was not responsible. As for the second surety, he was
informed on the hearing date. He herein claimed that he had taken all necessary steps to
inform accused person to attend hearing before court. Due to insufficient show cause, second
surety was forfeited of his RM 5, 000 bail amount
- In Rohaya Abdullah v PP [2005] CLJ 398, here the Sessions Court forfeited RM 5,000 out
of RM 10,000 of bail amount due to the accused’s absence before court for hearing and held
that bailors had the burden of assuring accused’s attendance and such responsibility should
not be shifted to the court. On appeal, court held that there was sufficient show cause on the
proofs such as the delays very due to various applications for injunctions as well as
objections, which sufficient time in between for accused person to abscond. Court set aside
the forfeiture of RM 5,000 and to be substituted with RM 2, 500