(1) Bail Pending Appeals BAIL AND APPEALS There are two types of appeal i.e.

appeal against an S. 75 Contracts Act provides that when a person enters acquittal and appeals against a conviction or sentence. into a bail bond, he shall be liable upon breach of the (i) Appeals Against Acquittal conditions of the bond, to pay the whole sum mentioned With regards to appeals against acquittal, s. 315 CPC allows HC to release a person pending hearing of the therein. appeal against acquittal. s. 56A CJA allows bail to be ordered pending appeal to s. 404 CPC provides for the forfeiture of bonds. Whenever the bond is for appearance before a court, COA. and it is proved to the satisfaction of the court that such s. 88 CJA allows bail to be ordered pending appeal to bond has been forfeited, the court shall record the FC. grounds of such proof and may call upon any person bound by such bond to pay the penalty or to show Initially the courts are of the view that bail pending cause why it should bot be paid. This forfeitureappeal should be allowed except if there is grave reason. But later in the case of : procedure relevant to a;; bonds provided in CPC. Re Kwan Wah Yip [1954] MLJ 146 the court hold that bail should not be allowed unless there are special reasons for doing Khor Ewe Suan [1964] MLJ 220 FORFEITURE OF BONDS
so such as: The court lay down the guideline on the procedure u/s. 404 (1): gravity of the offence (a) The court first to take evidence about the bond and the (a) length of time which is likely to take for the appeal to be sureties .This evidence may be given by specific witnesses (b) heard i.e. magistrate, SC judge or registrar who granted bail. whether there are difficult point of law (b) The sureties will be given opportunity to cross examine (c) (d) whether OKT is a first OKT or has previous conviction those witnesses. possibility to commit similar other offence If this procedure is not allowed then the court may set aside the (e) (f) whether the security imposed will ensure the attendance of forfeiture. the appellant before the appeal court.

PROVISIONS IN SPECIFIC STATUTES (1) Dangerous Drugs Act 1952 S. 41b DDA states that bail shall not be granted to(3) Essential (Security Cases)Reg 1975 (2) Bail Against Bail Decisions (i) S. 394 provides that any person aggrieved by an OKT charged with an offence under this Act: Reg 9 reads that Bail shall not be granted to an where the offence is punishable with deathOKT in a security case, but it may be allowed any order of refusal of any inferior court made (a) or under the chapter of Bail may appeal to the HC, where the offence is not punishable with death where the offence is punishable with or life imprisonment if the OKT satisfies the court which may confirm, vary or reverse the order of (b) imprisonment for more that 5 years or such inferior court. that he should be granted bail. where the offence is punishable for five (ii) The procedure of appeal such as filling of notice (c) years or less and PP certifies in writing that of appeal, the wait for the court`s grounds of It means that all offences punishable with death it is not in the public interest to grant bail to or imprisonment for life cannot be allowed bail decisions shows the process u/s. 394 is a long the OKT. process. For this s. 389 provide a speedier process whereas for other offences, if the OJKT (2) the provision in sub section (1) shall have effect succeeds in satisfying the court that he should i.e. only notice of motion is required. notwithstanding any other written law or any rule of (iii) this section seems only applicable to order be granted bail he may be allowed bail. made by inferior courts. For refusals by police law to the contrary. The second category is non bailable offence and officers, application for revision u/s. 389 can be factors mentioned in Wee Swee Siang may be From the above section it is clear that the situation made in which that HC court may direct that the relevant. bail required by a police officer be reduce or in (a) and (b) are unbailable. Situation (c) may be increased or that any person be admitted to bail. bailable, non-bailable or unbailable. It depends on(4) Juvenile Courts Act 1947 (iv) when an application for bail is rejected by athe certificate issued by PP.Once this certificate iss. 6 provides for bail of juveniles arrested: lower court, the applicant may appeal under s. 394issued, it becomes unbailable. If not it becomse(1) when any other person arrest a juvenile, he or he may apply to HC u./s. 389. He may after bailable or non-bailable depend on the maximumis under the same duty as the police officer rejection by a lower court subsequently apply again punishment provided by the statute. making the arrest to take or send the juvenile to to the same court and provided that there areLay Chin Hei [1982] 1 MLJ 31 a judge of Sessions Court or a magistrate who significant changes in the circumstances may beThe OKT was charged u/s. 6B (1) (a) DDA i.e. maximum shall inquire into the case and: punishment is life imprisonment. His application for bail was granted bail this time. unless the charge is one of murder or rejected by the sessions court and HC.Wan Yahya J refered(a) Abd. Rahim b Hj Ahmad & Ors other grave crime or to s. 41B and held that the section contains not only express the bail application was rejected twice but was granted on provisions which make the offence absolutely unbailable but (b) unless it is necessary in the interest of the the 3rd occasion. also expresses in unequivocal language the intention of the person arrested to remove him from Mohamed Razip [1988] 1 MLJ 84 legislature to restrict the judicial discretion as contained in association with any undesirable person COA of Spore held that when hearing a second or CPC and other judge made laws. The provision of the or subsequent application, that there should be a material specific law prevail the provision of general law. (c) unless the Judge or magistrate has change of circumstances or that new facts have since come For the first time court used the word unbailable . reason to believe that the release of that to light , before such application will e granted. person would defeat the ends of justice Chew Siew Luan [1982]2 MLJ 119 (v) Under s. 35 CJA the HC has generalFC had to decide whether a pregnant woman charged for shall releas the person on a bond, with or w/out supervisory and revisionary powers over thetraficking in drugs could and should be granted bail. The surety, to secure attendance of that person u[on proceeding in lower court. It may at any stage of offence is unbailable and it was not possible to allow bail. the hearing of the charge .. the proceeding, if it thinks desirable in the interest Subsection(2) of s. 41B further excludes the application of Provided that of justice, may call for the record and givesCPC provision as such s. 388(1) does not applies. (i) provisio for petty offence direction to the subordinate court as justice mayIlamaran [1992] l MLJ 672 (ii) .police can release a person require. Section 4CJA provides that the inherent OKT was charged for trafficking drugs and was arrested on bail or otherwise in grated bail by magistrate pending hearing of the power or jurisdiction of HC still apply over and accordance with CPC. charge. DPP appealed to revised the order made above those mentioned in CPC. (2) s. 117 applicable to arrest made under JCA. (vi) Whether an order or refusal of the HC may be by the magistrate. OKT argued that since theOther grave crime was not defined by JCA. appealable to COA. Decisions in s. 3 CJA was weight of the drug had not been ascertained, theBhagwat Parshad v IGP Punjab AIR [970 ] it def as including judgement, sentence and order charge was not properly explained to him and s. was held that the word grave indicates or implies but does not include any ruling made in the course 39B(4) had not been complied with. HC allows the seriousness, importance ,weight etc. of a trial or hearing of any cause or matter which application by DPP and the order of magistrate for Therefore it is submitted that trafficking drugs does not finally dispose of the rights of the parties. bail was set aside becox s. 41B overide s. 388 will falls under this other grave crime. Whether s. 41B DDA supercede s.6 JCA: Whether bail application is considered as final CPC. In any case for the offence of trafficking in order or judgement. (2) Firearms (Increased Penalties)Act 1971 dangerous drugs, which is a capital offence, it Dato Seri Anwar Ibrahim v PP [1999] 1 MLj 321 s. 12 reads that has been submitted that it falls under the It was held by COA that the order of the HC in (1) Bail shall not be granted to an accused category of grave crime and t/fore the bond refusing to admit the appellant to bail was not charged with an offence under this Act should not be allowed. For the offences of appealabe to COA. (2) The provision of subsection (1) shall applies possession under s. 39A (2) DDA the maximum notwithstanding any other written law or any of imprisonment for life, this will falls under s. rule of law to the contrary. 6(1)(c) 0r even (b) JCA which prevent the offender being released on bail. If none of these Therefore all offences under this Act is unbailable. 3 para apply, a bond may be executed under subsection 1 or a police bail is allowed under CPC according to subsection (ii) of the proviso to s. 6 (1) JCA.

[1972] 1 MLJ 242 s. 404 (2) provides that if sufficient cause is not shown Ralph The applicant forwarded 3 reasons in an affidavit: (a) the length of and the penalty is not paid, the court may proceed tothe term of imprisonment in comparison to the length of time which recover the same by issuing warrant for the attachment was likely to elapse before the appeal was heard (b) this was his first conviction (c) he was of good character. and sale of the property belonging to such person.
The court dismissed the application since the grounds failed to the court. The correct approach is that taken in Re Kwan s. 404(4) If penalty is not paid and cannot be recovered impress Wah Yip. by such attachment, and sale, the person so bound shall be liable for imprisonment up to 6 months. Sin Yung Chung [1948-49] MLJ

s.405 The above order are appealable to the HC. Ramlee & Anor [1969] 1 MLJ 49

Bail pending appeal is only relevant where the sentence imposed is imprisonment and not fine. In this case since the sentence was fine and it was already been paid, no question of bail arose.

Ment & Ors [1994] 1 MLJ 201

There were 2 bailors who had their RM 2000 bail forfieted . They The HC considered the long period usually taken for the disposal of appealed .The learned judge was satisfied that the appellants had the appeal thereby causing hardship to the defendant or okt and taken all steps to ensure the presence of the OKT in court. suggested the following points before HC exercises its jurisdiction u/s. 315: Sufficient cause was shown and the order to forfeit was quashed . (1) by s. 315, the intention of the legislature is that the grant of On the issue whether the magistrate who had ordered forfeiture bail is the rule and committal to prison w/out bail is an may order payment to be made in installments. It was held that exception. payment by installment cannot be allowed. The procedure u/s. (2) The discretion in favour of PO is exercised only sparingly 404(2) recovery by issuing a warrant for attachment and sale of the and upon being satisfied that there are special bailor`s property must be followed. circumstances to move the court Khor Hong Guan [1950] MLJ 85 (3) The quantum of bail set should be realistic and should not Both the appellants had stood surety for te OKT to appear before a meant to deprive the liberty of the person magistrates court. OKT had appeared several times until the case (4) The mere fact of an admission of appeal to HC from the was transferred to the Sessions court where the Okt was absent. decision of magistrate`s court does not itself constitute Appellants submitted that their duty was to ensure the OKT to special circumstances. appear in the magistrate court and not sesions court. The court held (5) It is desirable to order an early hearing. that they have not contravened the condition of their bonds and that therefore the forfeiture should be set aside.

(ii) Appeal Against Conviction or Sentence

s. 311 of the CPC does allow the suspension of the execution of imprisonment. Pending hearing of an appeal by COA and the FC, sections 57 and 89 CJA are relevant. S. 325(1) makes section 311 and s. 315 applicable for revisions by the HC i.e. bail may be allowed. Nordin b.Johan amd Abd. Aziz b Abdullah (unreported)
The FC held that an appeal is a continuation of a trial. Therefore , if pending trial it is impossible to allow bail. It remains impossible to allow it at the appeal stage too.(Refer).

BOND TO BE EXECUTED AMOUNT OF BOND s. 390 (1) provides 2 situations: (a) when a person is released on bail where s. 389 contains two distinct limbs: a bond for such sum of money as the(a) the first limb indicates that the amount of every police officer or court, thinks sufficient bond executed shall be fixed with due regard to ,shall be executed by such person. the circumstances of the case as being sufficient (b) When a person is released on his own to secure the attendance of the OKT, but shall not bond, a similar bond shall be executed by be excessive. him but w/out any sureties. (b) The second limb indicates that a judge may, in Although the section does not provides for any case, whether there be an appeal on imposition of any conditions for the bail, but in conviction or not, direct that any person be practice some conditions are added e.g. admitted to bail required by a police officer or impounding the OKT`s passport. court be reduced or increased. This is called the implied power . H/ever the conditions attached to the bail areThe second limb allows the judge of the High Court to only complimentary and concomitant to the grantgrant bail whether there be an appeal on conviction or of bail. not. This will includes (i) fresh application for bail and s. 390(2) states that when the case requires the (ii) applications after failed attempts at lower bond shall also bind the person released on bail courts or police officer to appear when called upon at HC or other court (iii) it may increase or reduce the bail to answer the charge. (iv) it cannot cancelled a bail granted by police officer or lower court Lim Kiap Khee v PP [1988]1 MLJ 198 An applicant may resort to s. 389 by filling a notice of The issue of impounding the OKT``s passport arose in this motion in the HC. This mode is faster and has case. After considering the Indian and English authorities, advantage compared to s. 394 (Appeal). the court was satisfied that the court may, in addition to stating the amount of bail and the number of sureties, In non-bailable offence punishable with death or impose and additional condition requiring the OKT to imprisonment for life and there appears reasonable surrender his passport. If such condition is mentioned,grounds for believing that the offender is guilty of the the okt be he a citizen or foreigner has to comply with that offence, even the HC has no discretion except if the condition if he wishes to be released. Since in this case offender is a woman, sick or infirm or youthful offender. the impounding the passport was not specifically mentioned to be a condition of the bail, therefore the order H/ever HC can grant bail under s. 389 if the be exceptional and special reasons. is invalid. Re K.S. Menon [1946] MLJ 49 PP v Abd Rahim b. Hj Ahmad & Ors [1988]3 believing that the OKT has been guilty of an offence punishable with MLJ 272 (Brunei Case) death or with imprisonment for life subject to proof of exceptional
It was held that the HC can grant bail if there appear r/grounds for

THE DUTY OF BAILOR Ramlah Bte Selamat & Satu lagi v Pandawa Raya [ 1995] 2 MLJ 385
The OKTs were charged under Child Protection Act 1991 .The magistrate granted bail at RM25 000 with one surety for each of the 2 OKT. They sought to have the amount of the bail reduced by filling a (1) If a person is released on bail, motion under the second limb of s. 389 on the gr that the amount was excessive and had the effect of appearance in the specified court on specified time. punishment. Since the maximum fine is RM10,00 id 5 years the HC reduced the bail to RM7,500 .

his surety has to ensure his the specified date and at the

Moh Ting King v PP [1995] 3 MLJ 461

(2) Although the OKT should attend court untill otherwise directed ,

The OKT was charged for rape. He had applied for bail was rejected by the session court. PO submitted his sureties need not be present in court at every sitting. that the OKT was facing another rape charged which was fixed for hearing a few days thereafter and there is a danger OKT might intimidate the complainant. The HC agreed with the lower court decision and disallow the bail . In addition it was held that the application for bail was not supported by affidavit Chang Kee Chien & Anor [1980] 1 MLJ 183 and no proof that OKT would be hampered in the preparation of his defense whilst under remand and The 2 sureties had attend court on several occasions when there were postponements. They finally did not attend and the2 OKT were ordered to be the trial is fixed earlier. remanded. It was held that there is no undertaking in the prescribed bond that the bailors or sureties are bound to attend the court themselves personally or to Yusof b Mohamed v PP [1995] 3 MLJ 66 produce the OKT in court on each day of the hearing. The 2 OKT were ordered Bail may be applied under the second limb of s. 389 pending an appeal to the HC against sentence to be released . imposed by the lower court. In this case OKT was charged with 4 charges in which he pleaded guilty. Three charges u/s. 397 PC and on u/s. 400 PC. Pending appeal the applied for bail pending stay of execution .His reason was that he has to collect his debts ,but was refused by the session court. The (3) s. 390 (2) states that if the case so requires the bond shall also HC also dismissed the application in the ground that considering his previous conviction and the present bind the OKT on bail to appear when called upon at the HC or other case, if bail granted he is incline to commit the same offence again. The fact that he wants to collect his court to answer the charge. This includes: debts by itself would expose him to commit offence in the near future. (a) where a judge orders a retrial at theend of the appeal

Low Chit Bah v PP [1986]1 MLJ 297

The OKT was charged fo 41 counts of abatement of conspiracy to cheat. The fixed $1 million with 2 sureties. OKT applied to reduce the bail to $$500,00. U/s. 389 first limb. H/ever the court allow the application becox of the doubtful character of the OKT , who had forged Filipino passport and has a vlid (c) passport of Chin, likelihood he would abscond the seriousness of the charge and finally the amount involve was $$3.9 million.

(b)

Soo Shiok Liong v Pend. Raya[1993] 2 MLJ 381

where previously OKT had been committed to stand trial at HC at the end of a PE where previously the jury was discharged at any stage of a trial by jury and the OKT was required to be tried by another jury (note no more trial by jury in M`sia).

Three OKTs applied for bail three times. In the first two and very special reasons. occasion bail denied. H./ver in the third occasion, the court granted bail becox there was reasonable gr to believe that the complaint was not raped. H/ever the court Shanmugam v PP [1971] 1 MLJ 283 added two conditions on the bail i.e. the 3 OKT must repot Mohamed Azmi J. agreed with the above case and held that once in the morning and once in evening to the nearestpunishable with death and imprisonment for life should be read police station and secondly they should not approach the disjunctively. His Lordship also said that a session court president or a magistrate has no power to grant bail u/s. 388(1) in a case house where the complainant lives. involving a non-bailable offence if there appear to be reasonable grounds for believing that the OKT has been guilty of an offence Lau Kung Seng & Ors v PP [1997] 5 MLJ 323 punishable with death or imprisonment for life. The OKT must show There were 4 Okts charged u/s. 7(1) Corrosives &exceptional and special reasons before HC can exercise its Explosive Substance & Dangerous Weapons Act. The discretion u/s. 389. What is exceptional and special reason Magistrate granted bail for the 3 OKTs with in addition depends on the circumstances of each case. In this case the OKT order them to deposit certain amount of case. For the 4 thwanted to marry the girl but the ultimate intention was to have the OKT no bail was granted becox he has previous rape charge against him withdrawn was held to be insufficient to conviction. The OKTs applied for revision. IT was held that constitute exceptional and special reason for granting bail in considering whether or not to grant bail, the court shall consider the nature of offence, penalty provided, likelihood of absconding, interfere the witnesses or Sulaiman b. Kadir v PP [1976] 2 MLJ 37 investigation. But non of this reason were considered. In this case the OKT was charged for rape.Durin this period the Previous conviction cannot become a gr for not granting a offence of rape could only be tried by HC becox the penalty was life bail particularly the PO has not even offer any reasons imprisonment. Special session courts could try the case but there were only two such special courts at that time. Thus, if OKT was that the OKT is likely to abscond. charged for rape in a State which has a special sessions court, the OKT could not be granted bail. But if there were no special sessions court in that State, the OKT could be granted bail. This situation was considered as exceptional and special reason by the court.

The High court laid down the following principles and factors to be considered in setting the quantum of (4) In practice the bailor sometimes has been required to deposit bail bond: (1) It is wrong to fix the quantum of bail based solely on the value of the subject matter. But must with the court some security eg bank savings deposit books, land grants etc .This is to ensure that the bailor will be able to pay in consider the nature and gravity of the offence its degree of the punishment. case the bond is not complied with. (2) In cases of non bailable offence the quantum must be higher (3) An excessive quantum will defeat the granting of bail as OKT could not get a bailor Although the bond itself does not stipulate that the actual deposit of (4) The principle of criminal law is that a person is innocent until proven guilty security as a condition for bail, but the bailor promise that the OKT (5) If the quantum is too low , whether OKT will abscond shall attend court at specified time, place and date, failure of which (6) Th purpose of bail is the make sure OKT attend at the trial he holds himself bound to forfeit to the government the specified (7) The surrender of international passport should enable a reduction in the quantum of bail (8) That the OKT had presented himself to the police and co-orporative with them should lead to an sum in the bond. abatement of the quantum of bail (9) High bail has the effect of punishing OKT before he was found guilty Mohd Jalil b Abdullah [1996]5 MLJ 564 (10) Application of the court`s mind in considering the above factors should be reflected in the HC judge released the 2 OKT on a cash bail of RM5000 each with one surety. judge`s record.

Zulkifflee b Hj Hassan v PP [1987]2 MLJ 527

Lau Kung Seng & Ors [1997]5 MLJ 323

The court concluded that s. 403 read together with s. 390 does not permit cash The OKT was charged u/s. 409 for 7 charges involving RM6.7 million. The sessions court granted bail bail to be imposed. RM1 million. H/ever the HC held that the quantum was too high and is like punishing OKT before he The court was of the view that the imposition of cash bail otherwise than provided was founded guilty. The purpose of bail is to secure him to appear to hear the charge.Since OKT was u/s. 403 was held to be illegal. Each of the OKT was released on bail of RM5000 co-operative with the police , there was no evidence that OKT had benefitted from the RM6.7 million with 2 sureties in accordance with s/390 CPC. and moreover the abetor was released on bail $200,000, the judge reduce the bail to RM200,000 with 2 (4) s. 392 provides that where there are insufficient sureties e.g. sureties.

Dato Mat v PP [1991] 2 MLJ 186

due to mistake, fraud or otherwise at the time they were accepted

Manickam & Ors v PP [1982] l MLJ 227

The offence was gang robbery under s. 395 which carries a penalty of not exceeding 20 years. The issue was whether 20 years imprisonment is equivalent imprisonment for life. The court was of the view that although s. 57 PC and s. 3 of the Criminal Justice Ord. Provide that imprisonment for life shall be reckoned or deemed to be imprisonment for twenty years, but the court states that we cannot logically conclude or construed that if a person is punished with imprisonment for a term which may extend to 20 years , he is punished with imprisonment for life. The PC should be construed strictly, rather than liberally. The court granted bail in the sum of RM4000 with one surety. (This is a prudent decision)

Okt was charged for CBT and was offered bail and on condition he surrender his international passport. or subsequently they refuse to carry on as sureties. In such a The Respondent later applied to HC for an order for the release of his international passport to enable situation the court may issue WT directing the OKT be brought him to make a business trip to Indonesia. The judge varied the conditions imposed and ordered the before it and may order him to find a sufficient sureties. international passport to be returned to the OKT for a specific period. DPP appealed. The Supreme If he fails then he will be committed to prison. court in determining whether the HC has power to vary the conditions under s. 389 or s. 394. After observing s. 388(5) empowers the court which granted the bail the power to cancel it, it was held that the power to admit, refuse or cancel bail must necessarily imply the power to vary and alter the same. (5) s. 393(1) states that sureties at any time, apply to magistrate Since in the present case, the case was transferred to HC for trial, the judge was acting within his to discharge the bond either wholly or so far as relates to the jurisdiction to review the condition of bail as if the same was made by him. applicants. Neither s. 389 nor s. 394 mention either variation or alteration of bail conditions. The court therefore had to rely on the practice judicially recognized. The HC has the power to intervene and alter a lower court`s decision order when exercising its reversionary power u/s. 4 CPC and u/s. 35 CJA. The appeal was Valliammar [1962]MLJ 280 The surety had expressed her desire to the registrar of the sessions court of dismissed. being relieved of her bond but was advised t do so during the next hearing. Unfortunately during the date mentioned, the case was postponed and she could Powers On Appeal not make her application. Then OKT and the surety did not appear in the next s. 394 any person aggrieved by any order or refusal of any inferior court about bail hearing date and WT was issued and the bond was forfeited. She appealed. The court referred to s. 393(1) and held that when the surety saw the registrar , he may appeal to High Court. should act promptly due to this, the forfeiture was set aside.

(6) when ever a bailor or surety makes an application to be relived of his or her bond, the magistrate must issue a WT directing the 1. This section is different from s. 389 because under this section, the High Court has OKT to be brought before him and furnish a new surety. (7) s. 393(4) the surety or bailor may at any time arrest the OKT for power to confirm, vary or reverse the order of the lower court. whose attendance and appearance he is a surety and produce him 2. Unlike s. 389, s. 394 enable the HC to reverse the bail which was given by lower before a magistrate immediately. Then the magistrate shall discharge such surety`s bond and call OKT to find new surety. court. Distinction of s. 389 and s.394: 3. s. 394 only applies to bail granted by lower court and does not applies to bail granted by police officer. As such s. 389 applies to the later

Yanasengam v PP [1978] 1 MLJ 269

In this case the OKT was charged u/s. 395 PC. H/ever the court has an opposite view compared to the above case.

BAIL
INTRODUCTION Bail means a delivery of a person to his sureties , upon their giving sufficient security for his appearance; he being supposed to continue in their friendly custody , instead of going to goal. A Bond is an instrument binding the person who executes it. It may bind to be of good behavior or to appear in court on a particular date set for trial. a. b. c. Bailable Offence is offence which can be bailed Non Balaible Offence Although generally it is not bailable but the court has discretion to grant bail .Unbailable offence offences which the court can`t grant bail. It is not mentioned in CPC. The cases which falls under this category are as provided under , FIPA, DDA, Kidnapping Act and ESCAR. CPC PROVISIONS NON BAILABLE OFFENCE BAILABLE OFFENCES CPC provides a general law on bail. Column 5 of First Schedule prescribes the offences which can either be bailed or not. s. 387 When person may be relased on bail Section 387 provides provisions for bailable offences. Bailable offences are offences where the OKT can be released on bail as of right. Although the court shall release OKT on bail but if he could not furnish sureties , the court will not release him on bail. Bcox s. 387 (1) states: is prepared at any time.. to give bail Mohd Jalil b. Abdullah & Anor v PP [1996] 5 MLJ 564.
HC felt that bail is a matter of right of the PKT even his record for bail might be bad.

s. 388 When person accused of non-bailable offence may be released on bail. The word may in this section shows that it is at the discretion of the OCPD or the Court to give bail. Unlike s. 387 where the word shall is used. Section 388 (1) refers to the following offences: (a) non-bailable offences, including those punishable with death or imprisonment for life where there appears no reasonable grounds for believing that the offender is guilty of the offence; Under such circumstances, discretion is given to court to grant bail. AND (b) non-bailable offences punishable with death or imprisonment for life where there appears reasonable grounds for believing that the offender is guilty of the offence.- No discretion is given but the proviso in s. 388(1) says 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. The word such an offence will refer to all non bailable offences. The word court , refers to Magistrate, Session and High Court. Even it appears that there is reasonable grounds for believing that the offender is guilty of the offence, the HC still has no power to grant bail u/s. 388(1) unless the offender is a woman, sick, or infirm or youthful offender. H/ever it may grant bail by applying the wide power given u/s. 389 ,subject to the condition that there be exceptional and special reasons. Refer next page on s. 389. Reg v Ooi Ah Kow [1952] MLJ 95
Wilkinson J held that a magistrate has no power to release the OKT on bail becoz unless there had been at least reasonable grounds of suspicion that the OKT had been guilty of such offences he would presumable not have been remanded in custody on the previous occasion. The court infact presumed that once a person was remanded under custody and the he was charged for an offence punishable with death or imprisonment for life there is reasonable suspicion that he is guilty of the offence. MK commented, in custody may shows suspicion but may not constitute reasonable grounds

FACTORS TO BE CONSIDER FOR GRANTING BAIL Mallal `s Criminal Procedure Code note 12 factors: (1) whether there is or is not reasonable grounds for believing Okt is guilty of the offence (2) nature and gravity of the offence. (3) Nature of evidence in support of the charge (4) The severity and degree of punishment for the offence (5) The guarantee the if released he will not abscond or obstruct the PO (6) Danger of the offence being repeated (7) Danger of witnesses being tampered with (8) Whether OKT if release will tamper PO`s case. (9) Whether OKT will set up false evidence (10) The opportunity for OKT to prepare his case (11) Character, means and standing of OKT (12) Long period of detention of KOT and probability of further delay. Wee Swee Siang v PP [1948] MLJ 114
The court laid down 9 similar factors as above for consideration b4 bail granted or refused.

Court is def u/s. 2 as HC, SC and Magistrate Court of any class. Besides the court, KPB or police officer not below Copral may released OKT on bail. s. 387(2) allows the court or police officer to discharge the accused on his (OKT) personal bond for his own appearance in court. No need for him to provide sureties. This is only for petty cases. Maja anak Kus v PP [1985] 1 MLJ 311
The OKT argued that since the case on him is a bailable one, he is entitle for bail. The police had successfully applied for the extension of his detention u/s. 117. HC held that although OKT has right for bail, but this right is subject to the power given to a magistrate u/s. 117 to detain a suspect pending completion of police investigation.

Che Su Bt. Daud v PP [1978] 2 MLJ 162

Gunn Chit Tuan J noted that the list is not exhausted but added that It is the net result of all the consideration for and against the OKT which must ultimately decide the matter.

Chong Siew Choong v PP [1996] 5 MLJ 65.

OKT with 2 others were charged for murder . OKT was 17 years old and a student. Court refused to grant bail. Defence argue that placing OKT in the prison will caused him to influenced by hardcore criminals. It was held that The court therefore must strike a balance to ensure that non-bailable prisoner who have had their freedom curtailed for the good of society should not linger for too long a time in prison awaiting trials. If these non-bailable prisoners are not found guilty later on after undergoing trials, it would surely be a waste of public funds to incarcerate them. Early trials would ensure justice be meted out to non-bailable prisoners and, conseq reduce over congested prisons throughout the country.

Dato Sri Anwar Ibrahim v PP [1998] 4 MLJ 481

The court refers to Wee Swee Siang and held that the court was satisfied that the likelihood of witnesses being tampered with was a cogent for the OKT not to be released on bail.

Sulaiman b Kadir v PP [1976] 2 MLJ

Harun J : magistrate possess unfettered power to grant bail in all cases including cases not triable by them, except offences punishable with death or life imprisonment where only a judge may grant bail.

Michael Raymond Taylor v PP [1989] 2 CLJ 539

This is a Spore case. This case is applicable in M`sia both for bailable and non bailable offences. The appellant was charged for two charges under the Companies Act. The Magistrate released him on bail in one surety pending trial. In this case the issue of whether the phrase is arrested or detained without warrant by a police officer or appear or is brought before a court The Magistrate was correct in construing it disjunctively i.e. each limb must be read disjunctively.

King Empr. V Abhairaj Kunwar AIR [1940] Oudh 8, 40 Cr. LJ 841

In a murder case, where there are prima facie grounds for believing that the OKT has committed the offence, which is punishable with death or with imprisonment for lige, the OKT should not be release on bail.

Since the law empowered Session court to try offences punishable with life imprisonment and to impose such sentence so SC has power to grant bail following Harun J view . Death and imprisonment for life should be read disjunctively. Nga San Htwa v King Emp. I.L.R. (Rangoon) 276 - it washeld that it must
be read disjunctively.

However, allegation of tampering must be supported by some material which shows possibility of tampering. s. 388(5) allows a person released on bail to be arrested and committed to custody at any stage of any proceeding under CPC. Phang Yong Fook v PP [1988] 1 MLJ 267
The OKT was charged with CBT and was allowed bailed of RM1 million with 4 sureties. Bail was executed . At the commencement of trial DPP applied to SessionCourt to revoke the bailbecox, OKT is tanpering PO`s witnesses and it was already difficult to get witnesses to come to court. SC granted the DPP`s application. On appeal, the issue was whether the order of revoking the applicant`s bail was valid. DPP relied on Wee Swee Siang. But it was held that , Wee`s case only provide the factors to be consider when a court was granting or refusing bail and but not relevant to the revocation of bail. The court then referred to Indian case and held that bail cannot be cancelled unless there is some form of evidence in support of the application for the cancellation and not a mere vague allegation. IT must be in the form of oral evidence or documentary evidence of even affidavit to support. The power to revoke must be exercised with care and circumspection and the court must give the OKT an opportunity to be heard first before allowing the application.

Sebastian v PP [1968] 2 MLJ 214

The OKT was subpoenaed to attend court but he did not appear in court on the date fixed. WT was issued with further order that bail was not to be allowed. On hearing of the WT, the accused surrendered himself but was told to go home. Chang Ming Tat J: the proper procedure where a man surrenders himself to a wt would be to put him on bond for his appearance on the date and then release him.

RE K.S. Menon [1946] MLJ 49 The court agreed with the above view. s. 388(2) provides for the event where the police officer or court finds no reasonable grounds for believing that the OKT has committed a nonbailable offence(includes that punishable with death or life imprisonment) , but there are sufficient grounds for further inquiry into his guilt. Pending inquiry for offence, the OKT shall be released on bail or at the discretion of court or OCPD , be released on a personal bond without sureties. s. 388(4) After the conclusion of the trial and before judgement is delivered ,if the court is of the opinion that the OKT is not guilty of the non bailable offence, it shall release the OKT, if he is in custody, on a personal bond for his appearance to hear the judgement.