Tutorial 8 - Bail PDF

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tutorial answers for topic on bail...

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TUTORIAL 8 BAIL

1. Describe the following:(i)

Bail?

The release of a person from custody of the detaining authorities upon security being given for this future appearance – in court or for police investigations. Definition: 

S.2(1): “bailable offence” according to First Schedule or which is made bailable by any other law. Usually bailable offences is punishable with less than 3 years imprisonment or with fine only

(ii)

Bond?

An instrument whereby a person binds himself to do or not to do certain things (S.77: to keep peace or be of good behaviour). The instruments bind the person who executes it. See S.173A, S.294. Bond not necessarily for court appearance but police investigation too.

2. Briefly describe the differences between offences that are bailable, non-bailable and unbailable. [1] Bailable Offence General Rule Statutory Provisions

Cases

If the offence is bailable and the accused is prepared to furnish bail, then the police or court must grant bail. The arrested person is entitled to bail as of right.  S.2(1): “bailable offence” according to First Schedule or which is made bailable by any other law. Usually bailable offences is punishable with less than 3 years imprisonment or with fine only  S.387(1): When any person other than person accused of non-bailable offence shall be released on bail  S.387(2): Where police or court thinks fit, may instead of taking bail, discharge him on his executing a bond without sureties  Mohd Jalil v PP - The words ‘shall be released on bail’ in S.387 of CPC is mandatory which means as of right. Applicant is entitled to bail as a matter of right even though his records are bad.  Wong Kim Woon v PP - The correct practice in bailable offences is to offer bail, and if there is evidence that the accused 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 bail arises for consideration.  Bashiruddin v Regina - However bad a character an accused may possess he is undoubtedly entitled to be proceeded against according to the law and not to be deprived of his liberty except in due court of law.

[2] Non-bailable Offence General Rule Statutory Provisions

Cases

S.388(1) Where an offence is non-bailable, the court has discretion whether or not to grant bail.  S.2(1) – “non-bailable offence” see First Schedule of any other written laws  S.388(1): Reasonable grounds to believe that person guilty of non-bailable offences punishable by death or life imprisonment  S.388(1) proviso: Any person under 16, woman, sick or inform person – court has discretion to grant bail  S.388(2) If there are no reasonable grounds for believing that the accused has committed the non-bailable offence (but there are sufficient grounds for further inquiry into the guilt) – court has discretion to grant bail Step 1: Is the non-bailable offence punishable by death of life imprisonment? Step 2: If it is no, there are a few factors to be considered when the court exercise its discretion  Dato Mat Shah v PP - As a GR, the court will lean in favour of granting bail unless there are strong grounds that bail should be refused. Bail should not be refused lightly as the presumption of innocence leans in favour of accused in a question of bail.  PP v Wee Swee Siang - court held that the primary consideration is to ensure the presence of the accused to stand his trial, and bail should not be refused lightly. A man is innocent until found guilty and failing strong grounds he should be granted bail. Court into consdierations the following factors: o Whether there was or was not reasonable ground for believing the accused guilty of the offence. o The nature and gravity of the offence charged. o The severity and degree of punishment that might follow o The danger of the accused absconding if released on bail. o His character, means and standing. o The danger of the offence being continued or repeated. o The danger of the witnesses being tampered with. o Opportunity to the accused to prepare the defence. o The long period of detention of the accused and probability of further period of delay.

if non-bailable offence: - punished with life imprisonment or death penalty  if THERE IS reasonable grounds to believe guilty:o General Rule  no bail o woman  bail can be given o below 16 years old  bail can be given o sick person  bail can be given  if THERE IS NO reasonable grounds to believe guilty:o but there’s sufficient ground for further inquiry  bail PP v Dato Seri Anwar Ibrahim (HC) [MEDICAL CONDITION] 1 1 facts considered: accused an ISA detainee, social status of the accused, health of the accused, danger of the accused absconding, danger of winteses being tampered with

  

DSAI detained under ISA. The factors laid down in Wee Swee Siang was considered. The court considered in details, the social status and health of the accused, the danger of absconding, danger of witness tampering, opportunity for accused to prepare defence. BAIL REFUSED. Not satisfied that the accused will not get appropriate medical treatment while in detention 2. Sufficient steps had been taken to ensure that the accused had the necessary opportunity to defend himself. There is merit in prosecution’s submission that witnesses may be tampered if accused is release. Although he court do not think that the accused will abcond if release, the court took into account the nature and gravity of offence which in this case, the nature of offence will affect the wider interests of the community at large. The social standing of the accused did not operate in his favour as other grounds advanced by him has no merits.

Leow Nyiok Chin v PP [MEDICAL CONDITION]  58 year old woman charged with murder.  Bail refused on the ground that accused has been receiving medical treatment in prison and medical report show that there is no possibility of her being driven to insanity if bail refused. Conversely, if she is released, she may be a threat to the society due to her hallucinations and depression. Che Su Binti Daud v PP  Accused charged for drug trafficking – offence punishable with death and life imprisonment. The accused was a mother of 6 children and her 4-month-old baby had to be with her in prison as she was still breastfeeding the child.  Held: The judge has absolute discretion in granting bail, should not (save for execptional and special reasons) grant if there appears reasonable grounds for believing that the accused had been guilty of an offence punishable with death or life imprisonment.  *court agreed that an accused having to breastfeed a child was not an exceptional or very special reason for granting bail but the accused was not charged alone (jointly charge with husband and brother) and the offence she was changed with was punishable by death AND life imprisonment instead of death only (like murder).  (After considering the 12 factors from Mallal) Accused should be release on bail. Among the key consideration was that her trial is not be heard for another 3 months, the prosecution conceded that there was no guarantee that the case would definitely be proceeded with then. Balwant Singh v PP  Accused was a 81 years old lawyer, charged with murder, was suffering from several serious diseases. Prosecution argued that there for medical facilities in the prison.  Held: BAIL GRANTED.  On the facts, the graveness of the charge faced by the accused had to be balanced against the failure by the prosecution to show that there were reasonable grounds for believing that the accused committed murder. Prosecution failed to indicate that the accused would abscond or tamper with witnesses if released on bail. The standing of the accused and his age also militated against the prospect of him absconding.  Though it may not be in the public interest to grant bail to a person facing a murder charge, where other factors favour an accused, the requirements of public interest can be satisfied by imposing suitable conditions in granting bail such as surrender firearm, passport, required accused to report to police station once every fortnight. 2 Bail on medical grounds should not be granted by the court unless it is satisfied that the illness is such as would not be properly treated while the accused is under detention. Where proper treatment is available in the place of detention, bail cannot be granted in respect of the illness.

[3] Unbailable Offence General Rule

Statutory Provisions

Cases

An unbailable offence differs from a ‘non-bailable offence’ in which bail is absolutely unavailable for an ‘unbailable offence’ whereas the court has a discretion to grant bail for a ‘non-bailable offence’.  NO unbailable offences under Penal Code, found in other statutes.  S12 of the Firearms (Increased Penalties) Act 1971 provides that all offences under the Act are unbailable.  S41B(1) of the DDA provides that the offences are unbailable where they are3 o a) punishable with death or o b) where they are punishable with imprisonment for more than 5 years up to life or o c) where they are punishable with imprisonment of 5 years or less and the PP certifies in writing that it is not in the public interest to grant bail to the accused person.  PP v Chew Siew Luan - Accused was a pregnant woman charged for drug trafficking which is unbailable under S.41B(1) of DDA. Held: Under generalibus specialia derogant, a cardinal rule of interpretation, S.41B of DDA supercedes S.388. Offence unbailable, not entitled to bail.

3. Is an accused entitled to bail even if his record for bail is bad? Yes. The arrested person is entitled to bail as of right. The general rule is that if the offence is bailable and the accused is prepared to furnish bail, then the police or court must grant bail. Mohd Jalil & Anor v PP  The words ‘shall be released on bail’ in S.387 of CPC is mandatory which means as of right. Hence, in this case, as the offence in question was bailable offence, the applicant is entitled to bail as a matter of right even though his records were bad. Bashiruddin v Regina  However bad a character an accused may possess he is undoubtedly entitled to be proceeded against according to the law and not to be deprived of his liberty except in due court of law. Hence, where an accused is rightly entitled to be on bail, his bail cannot be cancelled except in due course of law. Wong Kim Woon v PP  The words ‘shall be released on bail’, given their literal and natural meaning, means bail must be offered. The correct practice in bailable offences is to offer bail, and if there is evidence that the accused 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 bail arises for consideration.

4. Is an accused entitled to bail when he is detained under section 117? No. A remand order under s 117 overrides right of bail under s 387. Maja Anak Kus v PP 3 S41B(2) further provides that this section shall apply notwithstanding any other written law to the contrary.

 

Accused charged under a bailable offence and the magistrate granted further remand under S.117. The accused applied for bail but was refused. Held: S.117 supercedes S.387. He is not entitled to bail when under remand even though the offence in question renders a bail as of right.

5. Can the police issue a police bail when a person is released from a remand order?

6. Explain the scope of section 388. s 388 – when person accused on non-bailable offence may released on bail. (ref to ans for non-bailable offence) s 388(5) – revocation of bail  S.388 (5) provides for court’s power to revoke bail for non-bailable offences Wong Kim Woon v PP  If there is evidence that the accused 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 bail arises for consideration. Specific statutory power to cancel or revoke bail is not necessary in such circumstances. Phang Yong Fook v PP  The consideration for cancellation and revocation of bail is different from the consideration of granting bail. Wee Swee Siang only limited to the latter.  In this case bail was revoked on the ground that the accused was harassing and tampering witnesses, though the court note that power to cancel bail must be exercised with care. Mere statement of allegation of tampering insufficient. There must be evidence, oral, documentary or affidavit in support.

7. What amount to ‘reasonable grounds’ in section 388?

(ref to ans for non-bailable offence for the cases)

8. What are the factors which may be taken into consideration by the court in exercising its discretion in granting bail? PP v Wee Swee Siang - court held that the primary consideration is to ensure the presence of the accused to stand his trial, and bail should not be refused lightly. A man is innocent until found guilty and failing strong grounds he should be granted bail. Court into consdierations the following factors: a. Whether there was or was not reasonable ground for believing the accused guilty of the offence. b. The nature and gravity of the offence charged.

c. d. e. f. g. h. i.

The severity and degree of punishment that might follow The danger of the accused absconding if released on bail. His character, means and standing. The danger of the offence being continued or repeated. The danger of the witnesses being tampered with. Opportunity to the accused to prepare the defence. The long period of detention of the accused and probability of further period of delay.

(add other cases mentioned in Q2) 9. Can the court impose additional conditions when granting bail? Yes. There are no express provision in CPC which allows conditions to be included in any bail. However, in cases involving non-bailable offence [only non-bailable], the court may impose reasonable conditions in addition to stating the amount of bail when bail is granted. PP v Dato’ Mat  Held: When discretion is given to the court to refuse or grant bail, that discretion in itself implies a discretion to grant bail subject to certain conditions. Thus, conditions can be included in a bail bond issued pursuant to S388 but not to S387 as the latter section gives no discretion to the court to withhold bail when the person arrested is prepared to provide such bail. Zulkiflee Hj Hassan v PP  Held: High Court reduced the initial sum from RM1million and 2 sureties to RM200,000 and 2 sureties together with the condition of impounding both his international & restricted passports. Balwant Singh v PP  Conditions in granting bail - surrender firearm, passport, required accused to report to police station once every fortnight.

10. Can an accused apply for bail again after his first application was rejected? Yes, possible if there is a change in circumstances/ facts/ information received. PP v Abdul Rahim  Facts: three applicants were arrested and charged with the offence of rape. They applied for bail twice but their applications were refused. During their third application for bail, counsel for the applicants pleaded that there had been a change of circumstances since the two unsuccessful applications were heard in that there was now available to the court a medical report showing that the complainant may not have been raped at all.  Held: allowed the bail application with two conditions imposed in that the applicants should report once in the morning and once in the evening to the nearest police station and that they are not allowed to approach near the premises where the complainant lives.

11. Can a bail initially granted to an accused be revoked? What are the factors to be taken into consideration in revoking a bail? 1st question – whether a bail initially granted to an accused be revoked?

s 388(5) – revocation of bail  S.388 (5) provides for court’s power to revoke bail for non-bailable offences

2nd question – what are the factors to be taken into consideration in revoking a bail? Wong Kim Woon v PP  If there is evidence that the accused 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 bail arises for consideration. Specific statutory power to cancel or revoke bail is not necessary in such circumstances. Phang Yong Fook v PP  The consideration for cancellation and revocation of bail is different from the consideration of granting bail. Wee Swee Siang only limited to the granting of bail.  In this case bail was revoked on the ground that the accused was harassing and tampering witnesses, though the court note that power to cancel bail must be exercised with care. Mere statement of allegation of tampering insufficient. There must be evidence, oral, documentary or affidavit in support.

12. Leonard, aged 50 years old is a successful businessman and aspires to be a politician. He has many friends in business, both locally and internationally. His sons are both professionals and renowned in their respective professions. Leonard was with his friends at a coffee shop in Corus Hotel, Kuala Lumpur when a police officer, Superintendent Ali arrested him. Police had found ten transparent packets containing pink coloured powder in one of the drawers in his room in the hotel. His son, Max sees you and inquires whether his father can be released on bail or not. How will you advise Max? Leonard and his friends will most probably be charged under DDA. S41B(1) of the DDA provides that the offences are unbailable where they are4 o a) punishable with death or o b) where they are punishable with imprisonment for more than 5 years up to life or o c) where they are punishable with imprisonment of 5 years or less and the PP certifies in writing that it is not in the public interest to grant bail to the accused person. 10 transparent packets  macam banyak je Possession is governed under section 6 or section 12(2) DDA depending on the type of drug. The legal concept of “possession” requires three main ingredients to be proven - Custody, control, and knowledge. These three ingredients form both the act and the mental element (the intention or knowledge of wrongdoing) necessary to find someone guilty for possession of drugs.

4 S41B(2) further provides that this section shall apply notwithstanding any other written law to the contrary.

Section 39A(1) and 39A(2) of the DDA lists down increased penalties for drug possession if the drugs exceed a certain weight. For example: If you were found guilty of possessing between 2-5 grams of Heroin, Section 39A(1) states that the court will have to sentence you to prison for 2-5 years and 3-9 strokes of the cane. On the other hand, being guilty of possessing more than 5 grams of Heroin will land you with imprisonment from 5 years to life and a minimum of 10 strokes of the cane under Section 39A(2). In other words, if you're charged for drug possession under section 39A(2) or for trafficking, the court cannot exercise its discretion to release you on bail but to hold you in remand until the conclusion of the trial.

conclusion: can’t get bail

13. Salmah, a female aged 30 years old and three months pregnant, is charged with the offence of having in her possession firearms without lawful authority. Salmah wants to know whether she can be granted bail pending her trial. Advise Salmah. Would your answer be any different if Salmah was charged instead for the offence of murder under the Penal Code? Possession of firearms without lawful authority  firearms act  firearms (increased penalties) act - S12 of the Firearms (Increased Penalties) Act 1971 provides that all offences under the Act are unbailable.  POTA  Penal Code depends on which law Salmah is charged under. Murder – s 302 of Penal Code  according to schedule 1, column 5, non-bailable.  court still has discretion to grant...