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BAIL
INTRODUCTION

Bail is an important application as it enables the accused to be released

from prison with conditions attached if bail is allowed.

An application for bail can be made pending the trial of the matter or when
an appeal on the decision is pending.

MEANING OF BAIL AND BOND

1) Bail - release by police or court of person held in c ustody to his

bailors who give sufficient sureties for his appearance in the
trial or appeal, i.e a delivery or bailment of a person to sureties
upon their giving security.

2) Bond – the document used when bail is granted and an instrument or

deed which binds the surety/bailor who executes it.

TYPES OF OFFENCES

W hether or not bail will be allowed would depend on the type of offence
with which the accused is charged.

The Issue of bail will depend on the type of offence, where Offences are
grouped under 3 types which are as follows: -

a) bailable offences - Section 387 of the Criminal Procedure Code

b) non-bailable offences - Section 388 of CPC
c) unbailable offences - Section 41B Dangerous Drugs Act 1952,
- Regulation 9 of Essential (Security Cases)
Regulations 1975
- Section 12 Firearms (Increased Penalties)
Act 1971.

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MEANING OF “NOT BAILABLE ”

 The term “not bailable” in the 1 s t Schedule to Criminal Procedure

Code and has been explained by W an Yahya J in the case of Loy
Chin Hei [1982], where not bailable is “non-bailable” as in s.388
CPC and not “unbailable”.

 To determine whether an offence in other laws not in the Penal

Code is bailable or not -bailable, the last paragraph in 1 s t Schedule
to CPC provides that if punishment is as follows:-

a) death or imprisonment for 7 years or upwards-offence is not

bailable .
b) imprisonment for 3 years upwards but less than 3 years -offence
is bailable;
c) imprisonment for less than 3 years -offence is bailable;
d) with fine only-offence is bailable.

BAIL PENDING TRI AL

BAILABLE OFFENCES – SECTION 387 CPC

It is provided in the First Schedule of the CPC

 A person ma y be released on bail under s.387 CPC, as follow s: -

W hen a person accused of a bailable offence is arrested or detained

without warrant by a police officer or appears or is brought before a
court and is prepared to give bail, that person shall be released on
bail by –

a. any police officer in charge of a police station; or

b. by any police officer not under the rank of Corporal; or
c. by that Court.

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 The police officer or the court, if he thinks fit, may release the
accused person on his executing a bond without sureties for his
appearance.

 “shall be released on bail ” in s.387 means that it is mandatory to

release the accused as I the case of Mohd Jalil b Abdullah v PP
[1996] 5 MLJ 564

 An accused who appears (i.e. not arrested and brought) before a

court is also entitled to bail as of right under s.387 CPC: Michael
Raymond Taylor [1989] 2 MLJ 212.

 The Supreme Court in the case of PP v Dato Mat [1991] 2 MLJ 186 ,
stated that s 387 CPC sets out the right of the Accused or arrested
person to bail in a bailable offence. Further, the Court cannot
impose any conditions in the bail except stating the amount of bail
and number of sureties and such bail shall be granted to the
accused as of right.

 W hether remand order under s.117 supercedes right of bail under

s.387 is clear from the case of Maja Anak Kus v PP [1985] 1 MLJ
311 – s.117 supercedes s.387 i.e. remand order overrides grant of
bail for a bailable offence. In this case the Accused was charged
for voluntarily causing hurt by weapon s under Section 324 Penal
Code, which is bailable offence. He was brought before the Court
for further remand under s 117 CPC. Bail was refused by
Magistrate. On appeal to the High Court and the Court held s117
CPC superceded S 387 as further remand was for further
investigations.

NON-BAILABLE OFFENCES s.388 CPC

 Grant of bail for non -bailable offences- s.388(1), where a person

arrested for a non-bailable off ence may be released on bail by the
police or the court, but he shall not be released if there appears
reasonable grounds to believe that he is guilty of an offence or
Imprisonment for life provided that the Court may direct that any
person under the age of 16 years or any woman or any sick or infirm
person accused of such an offence be released on bail.

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 Sub-section (1) provides for 3 types of non -bailable offences:

a. Non-bailable offences (eg. ra pe, robbery) including offence

punishable with death or life (eg. murder, manslaughter) and
there are no reasonable grounds to believe he is guilty of those
offences punishable with death or life but there are suffici ent
grounds for further inquiry. The Accused may be released by the
Police of Court.

b. Non-bailable offences punishable with death or life (eg. murder,

manslaughter) and that are reasonable grounds to believe that
the Accused is guilty – The Accused shall not be released - i.e.
police or Court and there is no discretion. It does not mean
offence is unbailable or that bail is not allowed.

c. Non -bailable offences including of fences punishable with death or

life but Accused is under 16 years, or any woman, or sick or
infirm- Court may direct the Accused to be released on bail ,
proviso to s.388(1) CPC.

 s.388(1) CPC provides that bail may be granted by the police or the
court, Police bail , where a person is arrested and the Police mat
grant bail pending investigation or trial as in the case of Kwan Hung
Cheong (FC).

 Court bail, where the Court may grant bail pending investigations
and trial.

PP v Balw ant Singh [2003] 4 MLJ 427 (HC) – (Augustine Paul J)- Held
where proviso to s 388 invoked in granting bail, court is not concerned as
to whether there are reasonable grounds to believe whether the Accused is
or is not guilty of the offence.

HC Judge has unfettered discretion to grant bail in non bailable offences,

so only HC has the discretion to grant bail and not the subordinate court
where the offence is punishable by death or life imprisonment.

The Court has discretion to impose reasona ble conditions in the bail
granted (PPv Dato Mat [1991] 2 MLJ 186) .

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FACTORS TO GRANT BAIL FOR NON BAILABLE OFFENCES TYPE (a)

PP v Wee Swee Siang [1948] MLJ 114 – the High Court held that the
primary consideration is to ensure that the Accused will attend the trial.
The Court will consider the following factors in determining whether bail is
to be granted: -

 Reasonable grounds to believe that the Accused is guilty;

 Nature and gravity of offence;
 Severity of punishmen t;
 Danger of the Accused absconding if bail is granted ;
 Character means and standing of the Accused;
 Danger of repetition or continuance of offence;
 Danger of tampering of witnesses;
 Opportunity for the p reparation of Accused ’s defence; and
 Length of detention between the date of the charge and the date of the
trial.

 The primary consideration in granting bail is to ensure the

presence of the accused at the trial. The Court would consider
whether the refusal to grant bail would prejudice the Accused in
the preparation of the defence.

Dato’ Seri Anwar Ibrahim [1988] 4 AMR 3861 (Augustine Paul J) –

Court will consider the following additional factors;

 Health of the Accused;

 Detention under ISA;
 Social status of A ccused.
Bail was not granted to the Accused.

Manickam [1982] – Court stated that as the Accused was to be presumed

innocent until proven guilty; bail should be granted unless there are
reasons for not doing so. Also the bail sum is not meant to be punitive but
to ensure Accused attends trial.

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Dato’ Mat Shah [1991] 2 MLJ 125, the Courts should lean in favour of
granting bail unless there are strong grounds to refuse.

AMOUNT OF BOND AND CONDITIONS ON GRANTING BAIL –

s 389 CPC

Section 389 CPC – Amount of bail bond in respect of the bail shall be
fixed with regard to the case as being sufficient to secure attendance of
the Accused but shall not be excessive .

Manickam [1982] 1 MLJ 227 – If Accused cannot execute an excessive

bail bond it may defeat the purpose of granting of bail which is to secure
the attendance of the Accused at the trial.

Zulkiflee b Hj Hassan [1987] 2 MLJ 527 – the High Court reduced the
bail of RM1 million and said that the amount for the bond should not be
punitive as the purpose of bail is for the Accused to attend trial.

Dato’ Mat Shah [1991] – Court may impose conditions in granting bail for
non-bailable offences – e.g surrender passport, report to police.

In Soo Shiok Liong v PP [1993] 2 MLJ 381 , bail was reduced from RM1
million to RM600,000 . Factors that are considered in setting the amount of
bail bond: -

(a) quantum higher in non -bailable offences and punishment.

(b) excessive quantum in non-bailable offence.
(c) Accused presumed innocent.
(d) Likelihood of applicant abscoding if bail quantum set to low.

GRANTING OF BAIL FOR NON -BAILABLE OFFENCES UNDER TYPE

(b) & (c)

PP v Latchemy [1967] – Accused was a mother of 10 children and breast

feeding. She was charged for murder. Bail not granted as the reas ons
given were not “exceptional and special reasons”.

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[Note- However bail could have been granted under proviso to s388(1)]

Shanmugam [1971] 1 MLJ 283 – in a rape case bail was not granted on
the ground that the Accused and complaint were in love and intended to
get married as it was not an exceptional and special reason.

Che Su Bt Daud [1978] – Accused was a mother of 6 children and breast -

feeding. She was charged with her husband under s39B DDA 1952 for
drug trafficking. Bail was granted because she was not charge d alone and
was not charged for murder.

Balwant Singh [2003] – (Augustine Paul J) – on a charge for murder, bail

was granted to the Accused under proviso to s388(1) CPC on the ground
that he was 80 years old and of ill health.

REVOCATION OF BAIL

REVOCATION OF BAIL FOR BAILABLE OFFENCES

 CPC does not provide for revocation of bail for bailable offences.

Wong Kim Woon [1999] – W ahab Patail J held that in respect of bailable
offence, if a fundamental bail term is breached the Court has inherent
power to revoke bail provided the Accused is given an opportunity to be
heard as to why bail should not be revoked.

 In revocation of bail for bailable offences. The factors in Wee Sw ee

Siang are not considered

 Revocation of bail for non -bailable offence:

s388(5) CPC – any court may at any stage of any proceeding revoke bail
– Accused may be arrested and detained.

 “Any court” means any sub ordinate court or High Court.

Phang Yong Fook [1988] 1 MLJ 267 – on the application of the

prosecution, the sub ordinate court revoked bail on grounds that the
Accused was harassing and tampering with witnesses. On appeal by the
Accused, the revocation of bail set aside on following grounds: -

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 the factors in W ee Swee Siang cannot be applied in revocation;

 the power to cancel bail was not exercised with care as there was
no evidence to support the application for revocation of bail that had
been granted.

UNBAILABLE OFFENCES

 Unbailable offences means the court has n o discretion to grant bail.

Types of unbailable offences

 Offences under Firearms (Increased Penalties) Act 1971 (“F IP A

1971”):
 Offences under s12 FIP A 1971 are unbailable
 Offences under s41B(1) D angerous Drug Act 1 952 “DDA”):
 Offences under Regulation 9 of the Essential (Security Cases)
Regulation 1975

Regulation 9 of the Essential (Security Cases) Regulations 1975,

provides that bail shall not be granted in a security cases (charged under
S57 to 62 ISA or certified by the A.G to be a security case unde r
Regulation 2). However, bail may be granted if offence not punishable
with death or life imprisonment.

Section 12 Firearms (Increased Penalties) Act 1971 , provides that all

offences under this Act are unbailable.

Offences under Section 41B( 1) DDA 1952

 They are unbailable where the punishment is : -

a. death
b. imprisonment more than 5 years to life: and
c. imprisonment for 5 years or less and PP certifies in writing that it
is in public interest to grant bail unbailable
 Unbailable offences under s41B(1) as to the weight of dangerous
drugs
 are given in the table below:

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W eight of Charge Punishment Bail

Heroin/Morphine
1. s.37(da) – presumption s.39B DD A Death s.41B(1)(a)
of drug tracking – 15gm 1952 applies –
or more (250 gm or more offence is
cannabis unbailable

2. 5gm or more (50 gm or s.39 A(2) Imprisonment s.41B(1)(b)

more cannabis) not less than applies –
5 years up to offence is
life and shall unbailable
be
punishable
with
whipping of
not less than
10 strokes
3. Between 2 gm and less s.39 A(1) Imprisonment s.41(1)(c)
than 5gm (between 20 gm not less than applies:
and less than 50 gm 2 years up to a) if PP
cannabis) 5 years and certifies than
shall be unbailable
punishable b) if PP does
with not certif y
whipping of than non-
not less than bailable -
3 strokes but s.388 CPC
not more applies
than 9
strokes
4. Less than 2 gm s.12 (3) Fine not s.41B(1)(c)
exceeding applies:
RM100,000 a) if PP
or certifies –
imprisonment unbailable
not b) if PP does
exceeding 5 not certify –
years or both non-bailable–
s.388 CPC
applies

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UNBAILABLE OFFENCES

Chew Siew Luan [1982] (FC) – s.41B DDA supersedes s.388 CPC

W hether charge may be based on gross or net weight to determine if

offence is unbailable: -

i. Ho Huan Chong [1980] 2 MLJ 289 (HC) – Accused was charged with
possession of 7.4 gms (gross weight) of heroin under s12(2) DDA
punishable under s39A DDA with imprisonment of not more than 14
years. This offence was unbailable under s41(B)(1)(b) DDA and bail
was refused. The High Court held it was wrong for the prosecution to
state the gross weight of the drug as it had not been determined by the
chemist. If weight has been less than 5 gms, than the offence would
be unbailable only if the PP certifies it under s41(B)(1)(c) DDA but did
not certify. Bail was granted as weight was 4.22 gms.

ii. PP v Chew Siew Luan [1982] 2 ML J 119 – the Accused was a

pregnant woman charged with drug trafficking, which is an unbailable
offence. Issue was whether she could invoke s388(1) of CPC.
Sessions Court and High Court granted bail. The Federal Court held
Section 41B DDA superceded s388 CPC and hence unbailable. It
means that general law must give way to specific law.

iii. C.f. Leong Siew Hoong [1988] 1 MLJ 396 (HC) – Accused was
charged under s.39B based on the gross wt – Held prosecution can
decide what charge .

iv. Loy Chin Hei [1982] 1 MLJ 31 (HC) – charged under s.6B(1)(a) DDA –
unbailable under s.41B(1)(a) DDA.

v. Yap Sooi Kim [1989] and Leong Ying Ming [1993] 1 MLJ 177 – the
accused person were charged under s.39 A(2) DDA – following
s.41B(1)(b), the offence was unbailable .

vi. Illamaran [1992] 1 MLJ 692 (HC) – A was charged under s.39B of
DDA based on gross weight – unbailable under s.41B(1)(a) DDA – a
mere prospect of lesser w eight does not entitle the Accused for bail as
this offences was unbailable. [Note: Illamaran w as overruled by CA
in PP v Marw an bin Ismail [2008] , which held that magistrate must
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transmit the case to HC after reading the charge and cannot

remand the accused pen ding chemist record or consent of PP ].

BAIL PENDING APPEALS AND RETRIALS

BAIL PENDING APPEAL AGAINST CONVICTION BY ACCUSED

 Discretionary power of appellate courts to grant bail pending

appeals against convictions:
i. Section 311 CPC – The trial or appellate court has discretion
to grant bail pending appeal even though “bail” does not
appear in this section
ii. Section 57 Courts of Judicature Act 1964 – CA may order
bail pending appeal against conviction
iii. Section 89 Courts of Judicature Act – FC may order bail
pending appeal against conviction
iv. Ganesan [1983] – court has discretion to grant bail pending
appeal against conviction – factors in Re Kwan W ah Yi are to
be considered by a court

FACTORS IN GRANTING BAIL PENDING APPEAL AGAINST

CONVICTION

In R v Tan Tee [1948] MLJ 153, held that the Court allow bail to
the Accused who is appealing against conviction unless there
are other reasons otherwise.

Re Kw an Wah Yip [1954] MLJ 146 – bail pending appeal against

conviction should not be granted unless there are special reasons. 6
reasons to be considered by the court in granting bail are: -

 Gravity of offence
 Length of imprisonment and length for hearing of appeal
 Difficult pints of law

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 Accused is 1 s t offender
 Repetition of offence if released
 Attendance of Accused at hearing of appeal

Can bail be granted in appeal against sentence :-

Yusof bin Mohamed [1955] – A pleaded guilty to a charge and was

sentenced. A appealed against his sentence and applied for bail. Help,
application for bail was dismissed.

Can Sentences Be Sta yed Pending Appeal :-

(a) Sentences of fine are never stayed: Sin Yung Chung [1984 -49]
– fine must first be paid before bail can be considered.

(b) Sentence of prison sentence – Ganesan v PP [1983] 2 MLJ 369 ,

the High Court granted stay of execution.

(c) Sentence of whipping – Ment & Ors v PP [1994] 1 MLJ 201 -

under s311 of CPC , the sentence of whipping was stayed
automatically.

BAIL PENDING APPEAL AGAINST ACQUITTAL BY

PROSECUTION

 Discretionary power of appellate courts to grant bail pending

appeals against acquittal:
i Section 315 CPC – W hen the prosecution appeals against the
acquittal, A must be arrested and brought before the Judge (HC)
who has discretion to grant bail
ii. Section 56 A CJ A 1964 – Court of Appeal may grant bail pending
appeal against acquittal
iii Section 88 CJA – Federal Court may grant bail pending appeal
against acquittal

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Merit & Ors [1994] –in granting bail pending appeal against acquittal the
court will consider the following factors: -

i. Grant of bail is the rule, committal is an exception – there

must be special circumstances for not granting; -
ii. Quantum of bail – should be realistic;
iii. Submission of appeal by prosecution against acquittal is not
special circumstances

BAIL PENDING RETRIAL

 If an appellate court orders a retrial, bail pending retrial may be

granted: Tan Boon Hock [1979]

APPEALS OR APPLICATION AGAINST BAIL DECISIONS

APPE AL UNDER S ection 394 CPC

1. Section 394 CPC – any person aggrieved by an order or refusal of

any inferior court may appeal to the High Court .

2. “any person aggrieved” - means the prosecution or the accused

and not the bailor/surety.

3. Prosecution must appeal under s394 to cancel bail

4. Procedure:-

i. File notice of appeal

ii. W ait for court’s grounds of decision
iii. Then file petition of appeal

5. This procedure takes a long time and not used by the accused

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APPLICATION TO HIGH COURT UNDER SECTIO 389 CPC

1. 2 n d Limb of s.389 – where there is an appeal on conviction or not, a

High Court Judge may direct that bail be: -

i. Granted; or
ii. Reduced or varied

2. Procedure - is by motion supported by affidavit. This procedure is

usually used as it is faster.

3. W ho can apply: -

i. Prosecution – to vary (increase) the amount of bail bond;

ii. Accused – to grant bail or to reduce the amount of bail bond

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DIFFERENCES BETWEEN S.394 AND S.389

Topic s.394 s.389
1. Statutory Any person aggrieved by HC Judge may
Provisions order of sub court may direct that bail be
appeal to the High Court. granted; or reduced
or increased
2. Power of HC HC may cancel bail; grant HC may grant,
bail ; vary bail reduce or increase
bail
i.e. cannot cancel
bail
3. Procedure i. File notice of appeal; i. By motion
wait for grounds of supported by
decision; then file affidavit – may
petition of appeal be made
ii. It takes time: Sulaiman immediately
b Kadir (1976) when sub
court refuses
to grant bail –
faster
Sulaiman b
Kadir [1976]
4. W ho can i. Prosecution must i. Prosecution
appeal / apply appeal under s.394 to may apply
cancel bail increase bail
ii. Accused may also ii. Accused
appeal – but it takes a usually
long time applies to
grant or
reduce bail
iii. Dato’ Mat
Shah [1991]
under s.389 –
HC has
jurisdiction to
review
conditions of
bail set by sub
courts

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BAIL/ SURETIES AND FORFEITURE OF BONDS

BAILORS/SURETIES

1. Section 390 CPC – Release on bail bond

i. Before A is released on bail or on his own bond, A shall

execute a bond for such sum of money as the police officer
or court may think sufficient .

ii. If A is released on bail by one or more sureties – the

sureties are responsible to ensure A attends trial at time
and place mentioned in bond .

2. Section 403 CPC – Deposit of money to execute bond – may be

required by the Court

3. Mohan [2002] 1 MLJ 438 (HC) Augustine Paul J – held

i. Accused is entitled to apply to HC to reduce bail

ii. Under s.394 and s.389 CPC, only the accused and not the
surety can appeal to HC to vary quantum of bail fixed by
sub court
The proper course for the bailor would be to apply to be
discharged from the bond by virtue of s.393 CPC. A fresh
application may then be made for a reduced bail sum .

iii. In addition to the execution of a bail and the surety may be

required to deposit securities as s.390(1) CPC refers to
release of person on bail by one or more sufficient
securities.

4. Cf. Lee Eng Hoe [2003] 6 MLJ 747 – HC (Low Hop Bin J) held
that the bailor has the locus standi to apply to reduce the bail sun
under s.389 which does not impose any limitations or restrictions
as to the party who may apply

5. Section 391(1) CPC – once the bond is executed, A shall be

released

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6. Duty of sureties – Sureties must ensure that A attends trial but

need not be present at every sitting of the trial : Chang Khee
Chien [1980] .

7. Section 392 CPC – insufficient sureties:

i. If thorough mistake, fraud or otherwise, insufficient sureties

have been accepted – court may issue warrant of arrest for
A and be brought before it. A may be required to find
sufficient sureties failing which the court may commit him to
prison.

8. Application to discharge bail bond

i. Section 393 CPC : Sureties may apply to have bond

discharged-

 Surety may at any time apply to a magistrate (M) to

discharge bond
 M shall then issue a warrant of arret for A to be
brought before Court
 M shall direct bond be discharged – then shall call
upon A to find other sufficient sureties – if not A may
be committed into custody
 In urgent cases, if A is absconding, surety may arrest
A and bring him before court the next day

FORFEITURE OF BONDS – S.404 CPC

 W henever it is proved that bond for appearance is taken and such

bond has been forfeited, the court shall record ground of such proof
and may call sureties to show cause why bond should not be
forfeited.

 If sufficient cause is not shown and penalty is not paid the court
may issue a warrant for attachment and sale of property of sureties

 If such penalty is not paid the sureties may be imprisoned in a civil,

prison for a mx. 6 months

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Khor Hong Guan [1950] MLJ 85 – the sureties were not informed of the
transfer of the case to sessions Court – A did not appear in court – order
of forfeiture of bond was set -aside.

Ahmad b Khasiran [1951] MLJ 108 – the sureties explained that the
hearing dates were not mentioned in bond. However the facts were tha t a
notice of hearing was issued to sureties. Court held no sufficient cause
shown – forfeiture order was affirmed.

Ramlee [1969] 1 MLJ 42 – A who failed to turn up at the trial – sureties

showed that they took various steps to ensure a ttendance of A – court
held that sufficient cause was shown.

Valliamai [1960] 9 MLJ 280 – surety had difficulties in getting A to attend

trial and wanted to withdraw as surety – tried several times to be
discharged but was not given the opportunity by the trial judge – Court
held surety had shown sufficient cause .

Chou Tai Chuan & Anor [198 8]

1 s t A: 1 s t surety was not told of the hearing date – this was sufficient
cause shown; 2 n d surety was told of hearing date and took steps to inform
A but court held that the steps taken were insufficient cause – bond of 2 n d
surety was forfeited.
2 n d A: two sureties were not informed of the hearing date – sufficient
cause.

Re Ling Yew Huat & Anor [1990] 2 MLJ 124:

1 s t surety: took steps to locate A and to remind him – sufficient cause
shown
2 n d bailor: did not delegate his duty to another person when he went
outstation – no suffienct cause shown – court forfeitured his share of bail
sum

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