BAIL

DEFINITION
o The law on bail - Chap 38. (S.387 -394)

Bail:
“Bail in simple language, means security taken from a person
to appear on a fixed date before court. The meaning of the word
“bail” as ordinarily and commonly understood is to set free a
person who is under arrest, detention or is under some kind of
restraint by taking security for his appearance. Abdul Malik
Ishak J -Yusof bin Mohamed [1995] HC

“A delivery or bailment of a person to his sureties upon their

giving of sufficient security for his appearance, he being
supposed to continue in their friendly custody instead of going
to gaol [prison].” – Blackstone’s Commentaries Book IV Ch
22 at p 296.
• Purpose of bail - to secure the appearance of A in C.
• Person released on bail is granted temporary freedom and
an opportunity to facilitate the preparation of his defense.

Yusof bin Mohamed

“But under CPC, bail is not to be granted automatically in
almost every case. Society has to be protected from the
hazards of the misadventures of one who has been alleged to
have committed a crime. The PP approaches the criminal C
with a prayer to detain the criminal in an attempt to allay the
fears of society. As against this reasonable request of the PP
as the guardian of society, there is the accepted principle of
criminal jurisprudence that a man is presumed to be innocent
until he is found to be guilty. It is, I think, in an attempt to
resolve this conflict of principles that the law of bails has
emerged.”
Bond: A written undertaking (promise) by the surety to
perform in the event of a specified breach. The surety will
executes a bail bond before A being released on bail.

Surety (Bailor): Person who gives security for appearance of

the A. He will be liable to pay a specified sum of money if A
fails to appear in C.

Security: Money deposited with C. It will be forfeited if A

absconds.

Bail is a security (cash/pledge of property) furnished by

a surety who executes a bail bond to ensure the attendance
of A.
 Bail

Surety/Bailor

Bond
 Bail

Pending
Pending Pending
Trial
Investigation Appeal
& Re-Trial

S.387 & S.388 S.387 & S.388 S.311 & S.315

1. BAIL PENDING INVESTIGATION
 Police shall release on bail A whom has been
arrested/detained (s.387 and s.388). This is sometimes
referred to as “police bail”.

 An arrestee must be released on bail/bond/under order of

M/Police officer (Inspector and above). (S.29)

 However, this right to bail is subject to the power of the M to

remand A in custody pending completion of police
investigation pursuant to s.117. Maja anak Kus [1985] HC

 A shall be released on bail pending inquiry, if there are no

reasonable grounds for believing that he has committed a
non-bailable offence, but there are sufficient grounds for
further inquiry into his guilt. S.388(2)
2. BAIL PENDING TRIAL
 C shall release on bail A whom appears or produced before
it. (s.387 & s.388)

 A is released on bail after he has been formally charged in C

and pending the date of trial, otherwise he has to be
remanded in custody at the prison.

 If appellate court orders re-trial, bail pending re-trial may be

ordered.
Tan Boon Hock [1979] FC
3. BAIL PENDING APPEAL 9

a. Bail pending appeal vs. conviction/sentence

1. S.311: Sub C & HC
2. S.57 CJA: HC & COA
3. S.89 CJA: FC

 Appeal does not operate automatically as a stay of

execution. However, the trial C/appellate C has a discretion
to stay execution on conviction/sentence (of imprisonment)
pending appeal. Consequently, C may also grant bail
pending such appeal .

 S.311 deals only with the stay of execution of sentence not

appeal vs acquittal. Ment [1994] HC
 Where the only punishment inflicted is a fine and the fine is
paid, an appellant ought not to be called upon to furnish
bail pending appeal. Sin Yong Chang [1948-49]HC
 10

Ganesan [1983] HC
Bail is at discretion of C. The consideration which should
guide the subordinate courts in granting or refusing bail
pending appeal in cases where a term of imprisonment has
been imposed are as follows:--

(i) gravity or otherwise of the offence;

(ii) the length of the term of imprisonment in comparison with
the length of time which is likely to take for the appeal to be
heard;
(iii) whether there are difficult points of law involved;
(iv) whether A is a first offender or has previous conviction;
(v) whether A would become involved again in another offence
whilst at liberty; and
(vi) whether the security imposed will ensure the attendance
of the appellant before the appellate court.
 11

b. Bail pending appeal vs. Acquittal

1. S.315
2. S.56A CJA for COA.
3. S.88 CJA for FC.

 If P files appeal against acquittal, appellate C may commit

A to custody or grant bail on application of P.
 12

Ment [1994] HC
The HC in exercising its jurisdiction under s.315 has to bear in
mind the following:

(a) The provisions of s.315 also exhibit an intention of the

legislature that the grant of bail is the rule and committal to prison
without bail is an exception.
(b) The discretion in favour of the P is exercised only sparingly and
upon being satisfied that there are special circumstances to move
the C.
(c) The quantum of bail set should be realistic and should not be
such as to have the effect of depriving the person, who stands
acquitted of the charge, of his liberty.
(d) The mere fact of an admission of appeal to the HC from the
decision of the M's court does not by itself constitute special
circumstances.
(e) It is desirable to also order an early hearing of the appeal itself
should the court's discretion under this section be exercised.
 13

 Whether or not bail will be allowed would depend on the

type of offence with which A is charged.

Type of Offences

Non-bailable
Bailable offences
offences Unbailable offences
(S.387)
(S.388)
BAILABLE 14

 S.2(1): Bailable offence is an offence shown as bailable in

the First Schedule of CPC or which is made bailable by
any other law for time being in force.

Bailable

Offences under Offences other than

the Penal Code the Penal Code

1st Schedule, Specific

5th Column statute

1st Schedule, 5th

Column,
Last paragraph
 15

 Offences other than PC

(i) Refer to the specific statute

Chew Siew Luan [1982] FC - DDA

If a specific provision in any written law provides for bail, then
by way of maxim “generalibus specialia non derogant”, it
supersedes that in CPC.

(ii) If the specific statute is silent, refer to the last paragraph

in the First Schedule, column 5 of CPC –

“Bailable” if punishment < 3 years imprisonment OR with

fine only
 S.387: Bailable offences

“Appears or is brought before a court”

 Appears – personal appearance and in relation to the issue of

summons under s.136.

 Brought before a court – A in custody after remand or in

relation to the issue of a warrant (arrest)

 Even if A attended C voluntarily in obedience of summons, C

has power to order bail as he fell under category ‘appears’
before a C. Michael Raymond Taylor [1989]

 A should be released on bail as of right. Yusof bin Mohamed

 The only discretion which C/police has is to determine the

bail amount and to decide whether to release A on a personal
bond.
 Provided/on conditions:
(i) prepare/capable to give bail
(ii) not under remand - right to bail is subject to the power of M
to make an order under s.117 for further remand.
Maja anak Kus

 Conditions cannot be included in a bail bond issued pursuant

to s.387 as it gives no discretion to C to withhold bail when
the person arrested is prepared to provide such bail.
Dato’ Mat [1991] SC

 There is no question of any discretion in granting bail. The

provisions are imperative and C is bound to comply it. The
term 'shall be released on bail' under s.387(1) is mandatory.
Mohd Jalil b. Abdullah [1996] HC
 18

 S.387 makes it mandatory to offer bail. To refuse to offer bail

on the ground that the accused will put a fair trial into
jeopardy is contrary to s 387 where bail is mandatory. The
correct practice in bailable offences is to offer bail. Only if
there is evidence that A is interfering with witnesses or is
conducting himself such as would put a fair trial into
jeopardy, then the question of revoking or cancellation of the
bail arises for consideration. Wong Kim Woon [1999]HC

 Issue: If A has breached the earlier bail, is he entitled to a

fresh bail as of right?
Mohd Jalil b. Abdullah (Yes)
Wong Kim Woon (No)
The right lapse on failure to comply with the conditions and
the C may refuse bail when he reappears.
Talab Haji Husin v Madhukar Purshottam AIR1958 SC
NON-BAILABLE 19

Non-Bailable

Offences Offences other

under the than the Penal
Penal Code Code

1st Schedule,
Specific statute
5th Column

1st Schedule, 5th

Column,
Last paragraph
“Non-Bailable”: Punishment > 3
years imprisonment OR death Loy Chin Hei [1982] HC
 20
S.388 :

 The term 'non-bailable' is not equivalent to the term

'unbailable'

 In non-bailable offence cases, bail is at the discretion of C

(or OCPD) depending on circumstances & facts of each case.
The discretion to grant bail is unfettered (absolute).
Dato’ Seri Anwar Ibrahim [1998] COA

 The grant, refusal or cancellation of bail is a judicial act and

has to be performed with judicial care after giving serious
consideration to the interests of all the parties concerned.
Yusof bin Mohamed [1995] HC

 General rule: Bail may be granted at the discretion of C. As

for offences punishable with death/imprisonment for life,
there is condition.
 Chan Cheng Sim [1993] HC
21
Non-bailable offences
punishable with
death/imprisonment for life

(a)there appears no (b) there appears (c) there appears

reasonable grounds reasonable grounds reasonable grounds
for believing that the for believing that the for believing that the
offender is guilty of offender is guilty of offender is guilty of
the offence the offence the offence
(Type 1) (Type 2) (Type 3)

May b release on
bail (discretion) No bail But, A is either
a youthful
offender/
a woman/
Dato’ Balwant Singh [2002]
a sick or infirm
person;
Abdul Razak Baginda
May b release on
bail
 Dato’ Balwant Singh [2002] HC
 If there appears reasonable grounds for believing that he
has been guilty of an offence punishable with death or
imprisonment for life –bail “shall not” be granted.
 If there appears NO reasonable grounds for believing that
he has been guilty of an offence punishable with death or
imprisonment for life – bail “may be” granted.
 The restriction does not apply to the instances enumerated
in the proviso (below 16, woman, sick/infirm- “may be”).
The court must first determine whether the proviso is
applicable.
 However, in the following cases:

(i) For type 2, still discretionary. A must put forward

exceptional and very special reasons. Manickam [1982] HC;
Che Su bte Daud [1978] HC

(iii) For type 3, A still have to put forward exceptional and very
special reasons.
Latchemy [1967] HC - The fact she is a woman with 10
children is not enough.
Liew Nyok Chin [1999] – C did not find anything in the
medical report to suggest that A was in danger of being driven
into permanent insanity.
 Factors for consideration in granting/refusing bail:

Wee Swee Siang [1948] HC

(1) whether there was or was not reasonable ground for
believing A guilty of the offence;
(2) the nature and gravity of the offence charged;
(3) the severity and degree of punishment that might follow;
(4) the danger of A absconding if released on bail;
(5) his character, means and standing;
(6) the danger of the offence being continued or repeated;
(7) the danger of the witnesses being tampered with;
(8) opportunity to A to prepare the defence;
(9) the long period of detention of A and probability of further
period of delay.
Yusof bin Mohamed
(i) the nature of the offence and its seriousness;
(ii) the character of the evidence on which the prosecution case
rests;
(iii) reasonable possibility of the presence of A at the trial;
(iv) reasonable apprehension of witnesses being tampered with if A
is released on bail;
(v) the larger interest of the public and the country as a whole; and
(vi) various other considerations which may arise in the case such
as the propensity, the tendency or the likelihood of A participating
in the commission of further offences, or his proximate likely
attitude, conduct or tendency towards matters, persons or things
around him, or in connection with or in relation to the case at
hand.
It must not be forgotten that the considerations as listed above are
not meant to be exhaustive. Indeed the considerations may be
extended from time to time, developing as it were the law of bails.
 A just and equitable approach should be adopted rather
than brutal one. Chong Siew Choong [1996]

 Dato’ Seri Anwar Ibrahim [1998]

Bail was refused because A if released might tamper with the
evidence…The tremendous noice caused by shouts is heard
everyday of the trial particularly when the court adjourns for
the day and the appellant is making his exit from this
building. Such noises constitute a breach of the peace. This
sort of situation must be treated as another factor to be
considered by any court as a ground for refusing bail.

 C may impose conditions in granting bail under s.388. (E.g.

the number of sureties required, A to surrender his travel
docs to C) Dato’ Mat
UNBAILABLE OFFENCES 27

 No definition and provision in CPC. Can be found in specific

statutes only.
Examples :
S.41B Dangerous Drugs Act 1952 (DDA).
Loy Chin Hei [1982] HC; Chew Siew Luan [1982] FC

S.12 Firearms (Increased Penalties) Act 1971 (FIPA).

S.27 Dangerous Drugs (Forfeiture of Property) Act 1988
(DDA – FOP).
Reg.9 Essential (Special Cases) Regulations 1975
(ESCAR);

 Bail ‘Shall not” be granted = Mandatory no bail i.e. bail

cannot be granted at all in any situation.
 28
APPEAL AGAINST BAIL DECISIONS
 If A application for bail was rejected, he may re-apply to the
same C. Sulaiman bin Kadir [1976]; Michael Lee @ Weng
Onn Lee [1999]

(i) S.389 (2nd limb)

 If request for bail was rejected, A may apply for bail under
s.389 directly to HC. (‘judge’ here refer to HC judge).

 May also apply for reduction or increased of bail.

 This power exercisable at the discretion of C. HC also has

wide jurisdiction to review conditions of bail set by Sub C.
Dato’ Mat Shah [1991] HC
 29

 Procedure is by motion supported by affidavit. This method

is faster than appeal under s.394. Sulaiman bin Kadir
[1976] HC

 The HC’s order refusing bail not appealable.

Dato’ Seri Anwar Ibrahim [1999] COA

 A may re-apply to HC provided there was material change in

circumstances and not circumstances considered in earlier
application. Michael Lee @ Weng Onn Lee [1999]

(ii) S.394

 Power of HC to reverse, confirm or vary bail.

 Procedure is by filing Notice of Appeal & Petition of Appeal
to HC. This procedure is time consuming.
 30
Principle of Bail

 Bail is not intended to be punitive but only to secure

attendance of A. Thus, excessive amount of bail ought not to
be required. (S.389 -1st Limb)
Zulkifflee bin Hj Hassan [1987] HC; Moh Ting King
[1995] HC

 In considering the amount of bail, C has to take into

consideration the circumstances of each particular case.
Zulkifflee bin Hj Hassan [1987] HC
 31

Soo Shiok Liong [1993] HC

10 factors for consideration in setting the amount of bail
were:

(a) the nature and severity of the offence and the severity and
degree of punishment which conviction might entail;
(b) the quantum should be higher in the case of non-bailable
offences;
(c) an excessive quantum may defeat the granting of bail as A
may find difficulty in getting a bailor acceptable to the court;
(d) A is presumed to be innocent until proven guilty;
(e) whether there is a likelihood of the applicant absconding if
the bail quantum is set too low;
(f) bail is not intended to be punitive but only to secure the
attendance of the accused;
 32

(g) the surrender of A's international passport should go to

reducing the quantum of bail;
(h) the fact that the applicant had presented himself at the
police station and had co-operated with the police should
also go to abating the quantum of bail;
(i) the quantum of bail should not be set so prohibitively high
as to have the effect of incarcerating A before he is convicted
of the crime; and
(j) the application of the court's mind in considering the
above factors ought to be reflected in the judge's records.
 33
BOND
 A must execute a bond for such sum of money as the police
officer/C thinks sufficient before he is released on bail.
(S.390)

 Once the bond has been executed, A shall be released. If A

is in prison, C shall issue an order of release to the officer in
charge of the prison. (S.391)

 Court/officer may permit A to deposit a sum of money to

such amount as C may fix, instead of executing the bond
(S.403). Lau Kung Seng
 34
SURETY
 A may be released on bail by one or more sureties.

 Proposed bailor has locus standi to apply under s.389 for

amount of bail to be reduced. Lee Eng Hoe

 A who is released on bail must attend court, but the sureties

need not be present in court at every sitting. However
sureties must make sure that A attends court.
Chang Kee Chien [1980] HC

 S.393: Surety can at any time apply to discharge himself

- C will issue Warrant of Arrest to bring A to C – s.393(2)
- Court will discharge surety & A must find further sureties –
s.393(3)
 35

 A bailor’s duty is to secure the attendance of the bailee at

the time and palce stated in the bail bond.
REVOCATION OF BAIL
Non-Bailable Offences:

 S.388(5): Any court at any time can revoke & commit to custody
any person under bail.

Phang Yong Fook [1988]

It is not in dispute that the learned Sessions judge has the
power to commit a person, who has been released on bail in
respect of a non-bailable offence, to custody under
s.388(5)…The considerations for cancellation of bail are
different from those for granting bail. Power to take back A has
to be exercised with care and circumspection in appropriate
cases when, by a preponderance of probabilities, it is clear
that A is interfering with the cause of justice by tampering
with witnesses. .... (there must be evidence in support and A
must be given opportunity to be heard)
Bailable Offences: Specific statutory power to revoke bail is
unnecessary.

 May revoke if fundamental bail term has been breached provided A

is first given an opportunity to be heard.

Wong Kim Woon [1999]HC

“Where bail is mandatory and is offered once under s.387 (1), the
continuation of the bail must be based upon the continued
compliance of its terms and the withdrawal of it when it is
breached…The proper course in the event of such a breach of an
order for bail is to issue a warrant of arrest. When arrested and
brought before the court, he must be given an opportunity to be
heard as to why the bail granted to him should not be cancelled or
revoked. The fact he had breached the bail order is prima facie a
valid reason for cancellation or revocation, unless he has a good
explanation
 Talab Haji Husin v Madhukar Purshottam AIR1958 SC
 The procedure for revocation of bail is discussed in the case of
Wong Kim Woon :
Application for revocation must be supported with reasons.
The reasons has to be with merits, for A to be remanded pending
trial; e.g. harassing and tampering with witnesses.
The allegations against A must be supported by oral or
documentary evidence. This will be contained in the affidavit in
support of application for revocation of bail by P.
Ultimately the court must allow A an opportunity to be heard
before bail is revoked; the principle of natural justice which is
audi alteram partum.
FORFEITURE OF BOND
 When A is released on bail pending trial, he or his surety(s)
has to ensure appearance at the specified C on the required
date and time. (S.390).

 If A is absent on the required date and time, C 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; or call him to pay the penalty. (S.404 (1))

 If sufficient cause is not shown and the penalty is not paid,

C may proceed to recover the same by issuing a warrant for
attachment and sale of property belonging to the bailor.

 If still cannot recover by attachment and sale, the bailor

shall be liable to imprisonment up to 6 months.
 40

 Khor Ewe Suan (1964)

 Valliamai (1962)

 If the procedure is not complied with the court on appeal may set
aside the forfeiture.
 Ahmad b Khasiran;
 Dato’ Hj Harun b Hj Idris;
 Chou Tai Chuan;
 Re: Ling Yew Huat;
 Royaya Abdullah;
 Muthamah Kaliappen;

 Chow Fook Loy; Ramlee – forfeiture of bond to be paid in full.