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Question 5

Under Section 388 of the CPC, for non-bailable offence, the grant of bail is at the
discretion of court. Non-bailable offences are serious offences where bail is a
privilege and only the courts can grant it. On being arrested and taken into custody for
a serious or non-bailable crime, a person cannot ask to be released on bail as a matter
of right. In the case of a non-bailable offence the police cannot release anyone on bail
and so the arrested person has to make an application for bail before a magistrate or
court. In the case of Dato’ Seri Anwar Ibrahim, the court held that in non-bailable
offence cases, bail is at the discretion of the court depending on circumstances and
facts of each case. The discretion to grant bail is unfettered.

Generally, bail may be granted at the discretion of the court. As for offences
punishable with death or imprisonment for life, there is condition. Section 388 of the
CPC provides 3 types of non-bailable offences. Under section 388(1) of the CPC, for
Type A, if there are reasonable grounds to believe that the accused is guilty of the
offence, then accused shall not be released on bail. For type B, if accused is under the
age of 16 or any woman or sick or infirm, then the court may direct such person be
released on bail. Next, for type C under section 388(2) of the CPC, if there are no
reasonable grounds to believe that the accused is guilty of the offence but sufficient
grounds for further inquiry, then accused may be released on bail.

For type A, bail will not be granted if the accused is guilty of the offence but type
B and C will be the exceptions for this matter. In the case of Manickam, the court held
that for type 2, it is still discretionary. The accused must put forward exceptional and
very special reasons. In the case of PP v Dato Balwant Singh, the accused was
charged for murder. The accused applied for bail as he was 80 years old and provided
medical certificate to show that he was of ill health. The court granted bail under
proviso to section 388 of the CPC.

In the case of PP v Latchemy, the female accused was charged with murder and
wish to release on bail on the ground that she was a mother of 10 children and was
breast feeding. The court revoked the grant of bail as the reason did not amount to
exceptional and special reasons. The fact she is a woman with 10 children is not
enough. In order for the court to grant the bail, there must have exceptional and
special reasons.

In the case of Shanmugam v PP, the accused was charged with rape. He appealed
to the court against trial judge’s refusal to grant bail. It was held that the reason that
accused and victim were in love and intended to get married did not amount to
exceptional and special reasons.

For type 3, the accused still have to put forward exceptional and very special
reasons. In the case of PP v Wee Swee Siang, the court observed 9 factors to be
considered before granting bail:

1. Whether there is reasonable ground to believe that accused is guilty of the


offence

2. Nature & gravity of offence

3. Severity & degree of punishment that might follow

4. Danger of accused absconding

5. Accused’s character

6. Danger of offence being continued/repeated

7. Danger of witnesses being tampered

8. Opportunity of accused to prepare his defence

9. Long period of detention.

In the case of PP v Dato Seri Anwar Ibrahim, the detention of accused under ISA.
The court refused to grant the bail after considering the health condition of accused
and danger of accused absconding. It was held that the bail on medical ground should
not be granted unless the court is satisfied that the illness is such that it would not be
properly treated while accused is under detention. The onus is on the accused to show,
on balance of probabilities that granting of bail would not prejudice the interest of
justice.

In the case of Manickam v PP, the bail should not be refused lightly as the
presumption of innocence leans in favour of accused. Bail is not meant to be punitive
but only to ensure that the accused attends the trial in court.

Question 6

Prosecution

Question To Be Determined

Issue 1: Whether a fresh bail may be granted by court to Natsu?

Submission

1. Natsu was granted a bail for his charge under section 353 of the Penal
Code. But, the case was adjourned several times mainly on the grounds
that Natsu was absent. Warrant of arrest was issued against Natsu and he
surrendered to the court. Natsu explained that he was ill and fell asleep on
taking some medicine and produced a medical certificate in support. Natsu
was then granted a fresh bail by the court.

1.1 Section 2 of CPC provided 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.

1.2 According to the 5th column of the 1st schedule of the CPC, section
353 of the Penal Code is a bailable offence.
1.3 In the case of Wong Kim Woon [1999] HC, the court held that where a
fundamental bail term has been breached, the court may revoke bail
provided that the accused is first given an opportunity to be heard as to
why the bail granted should not be revoked. Therefore, when accused
has breached the bail term, the bail would be revoked unless the court
is satisfied with the accused’s explanation.

1.4 In the case of Talab Haji Husin v Madhukar Purshottam [1958] AIR
376, this case states that the omission to make such a provision is, as
according to Shri Parushottam, not the result of inadvertence but, is to
deliberate and if that is so, it would not be legitimate or reasonable to
clothe the High Courts with the absolute power to cancel the bails in
such cases under section 561A.

1.5 According to Mohd Jalil v PP [1996] 5 MLJ 564, it was held that upon
revocation of bail, accused should be granted a new bail with sufficient
sureties. Only if accused fail to execute it, then the court is empowered
to commit them to custody. However bad the applicants’ record may be,
they are still entitled to bail as of right. Hence, for bailable offence,
when the bail has been revoked, the court must grant a new bail as it is
the right of accused.

1.6 Therefore, based on the authorities cited above, we hereby submit that
the case was adjourned several times mainly on the grounds that
Natsu was absent. Furthermore, the explanation and the medical
report were only given by Natsu after the issuance of warrant of arrest,
so, the court may revoke the bail provided that Natsu had breached the
bail term. Hence, the court may grant a new bail when the previous bail
has been revoked.
Question To Be Determined

Issue 2: Whether Judge can impose conditions to Natsu’s bail?

Submission

2. Natsu had been granted a fresh bail with additional conditions that the amount
of bail was increased from the original RM1,000 to RM1,500 with one surety
and he was also ordered to surrender his international passport to the court.

2.1 Section 387(1) of CPC provided when any person other than a person
accused of a non-bailable offence is arrested or detained without
warrant by a police officer or appears 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 give bail, that person shall
be released on bail by police in charge of police station or by any police
not under the rank of corporal or by that court.

2.2 In the case of Mohd Jalil v PP [1996] 5 MLJ 564, it was held that upon
revocation of bail, accused should be granted a new bail with sufficient
sureties. Only if accused fail to execute it, then the court is empowered
to commit them to custody. However bad the applicants’ record may be,
they are still entitled to bail as of right. Hence, for bailable offence,
when the bail has been revoked, the court must grant a new bail as it is
the right of accused.

2.3 According to Yusof bin Mohamed v PP (1995) 3 MLJ 66, the court in
their judgment held that the accused should be released on bail as of
right.
2.4 Based on the case of Maja Anak Kus v PP [1985] 1 MLJ 311, the
issue in this case is whether remand order under section 117 of the
CPC overrides the right of bail under section 387 of the CPC? It was
held that section 117 of the CPC supersedes section 387 of the CPC.
When an accused is brought before a magistrate for further remand
under section 117 of the CPC, he is not entitled to bail as of right
though it is a bailable offence.

2.5 Therefore, based on the authorities cited above, we hereby submit that
the court may granted a new bail to Natsu as how bad the applicants’
record may be, they are still entitled to bail as of right. For bailable
offence, when the bail has been revoked, the court must grant a new
bail as it is the right of accused. Therefore, the court may granted a
fresh bail to Natsu with the imposing of additional conditions.

Closing Submission

We submit that the court may revoke Natsu’s bail provided that Natsu had
breached the bail term. Hence, the court may grant a new bail when the
previous bail has been revoked. The court may also increase the amount of
Natsu’s bail from the original RM1,000 to RM1,500 with one surety and
ordered him to surrender his international passport to the court. A fresh bail
may be granted with additional conditions to Natsu.

Defence Counsel

Question To be Determined

Issue 1: Whether fresh bail should be given by the Court to Natsu?

Submission
1. Natsu was charged for S. 353 of the Penal Code and was granted bail.
However, he was unable to appear during trial due to the medication he
was taking for his illness. Although a warrant of arrest was issued against
him, he had voluntarily surrendered to the court to offer his explanation as
to why he had failed to appear during trial. Natsu was then given a fresh
bail.

1.1 S. 387 of the CPC provides that a person that was arrested for a
bailable offence has a right to obtain bail. According to the 5th column
of the 1st schedule of the CPC, S. 353 of the Penal Code is a bailable
offence and Natsu is entitled as a right, to obtain bail.

1.1 In the case of Mohd Jalil bin Abdullah v Public Prosecutor [1996] 5 MLJ
564, Nik Hashim JC held that the magistrate in the trial stage of the
case had gone against the principles found in Hamid’s Criminal
Procedure when he refused to grant the accused the right to bail. Nik
Hashim JC held that even when the past records of the accused’s
attendance to court was bad, they were still entitled to a bail as a
matter of their right and it would be illegal to deny them their rights to
new bail.

1.2 In the case of Wong Kim Woon v Public Prosecutor [1999] 5 MLJ 114,
Abdul Wahab J held that although the CPC is silent as to whether it is
mandatory for fresh bail to be granted upon breach of the terms of the
previous bail, it is still an accepted principle that bail may be granted at
any stage of the proceeding. It was held that the court is not obligated
to grant a fresh bail but the discretion still lies within them to grant or
not.
1.3 It was also stated in this case that where there is a breach of a
fundamental term of the bail, the consequence was that the bail be
either revoked or cancelled. However, the bail will not be revoked if the
court is satisfied on the explanation provided as to why there was a
failure to appear in court.

1.4 Therefore, based on Mohd Jalil bin Abdullah v PP, the court has
jurisdiction to grant Natsu fresh bail although he had failed to appear in
court several times. The courts have held that the failure to provide
fresh bail amounted to an illegality. It has also been mentioned in
Wong Kim Woon v PP that the failure to adhere to the terms of the old
bail does not automatically revoke the old bail for Natsu. Since Natsu
has a right under the CPC to obtain bail, he will still be able to enjoy
bail if the court is satisfied with his explanation.

Question To Be Determined

Issue 2: Whether bail can be granted to Natsu with additional conditions?

Submission

2. Natsu had been granted a fresh bail with additional conditions that he was
to surrender his passport and the bail amount was increased from
RM1,000 to RM1,500 with one surety.

2.1 According to S. 390 of the CPC, the person to be released on bail


should execute a bond containing the amount of bail, the sureties and
the condition that the accused have to appear in court at the time and
place mentioned in the bond.
2.2 In the case of Public Prosecutor v Dato’ Mat [1991] 2 MLJ 186, Wan
Yahya J held that where in cases of bailable offence, there can be no
conditions imposed on the granting of the bail. Therefore when the
accused falls under the provisions of s. 387 of the CPC, conditions
may not be included in a bail bong issued.

2.2 Therefore, since Natsu is being charged with a bailable offence


pursuant to S. 387 of the CPC, the bail granted to him should not be
accompanied with conditions imposed except the amount of bail, the
number of sureties and the condition of appearance at the time and
place specified. There was no mention of the need to surrender
Natsu’s passport and the need to increase the amount of bail.

CLOSING SUBMISSION

It is therefore submitted that Natsu is still entitled to obtain fresh bail from the
court since it has been held to be illegal to deny fresh bail. It is also submitted
that since Natsu had committed a bailable offence, bail should be granted
without imposing any additional conditions.