Abdul Malik Ishak J in the case of Yusof bin Mohamed v PP [1995] 3 MLJ 66 stated as follows :
“Bail, in simple language, means security taken from a person to appear on a fixed date before a 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. It is well and good that an accused person be put on bail pending his hearing of his appeal. But under our CPC, bail is not to be granted automatically in almost every cases. Society has to be protected from the hazards of the misadventures of one who has been alleged to have committed a crime…….”The type of offence that an accused person has been charged with determines whether bail may be granted to that person. There are 3 categories of offences:
Bailable offences provided under s.387 of the Criminal Procedure Code (CPC;
Non-bailable offences provided under s.388 of the CPC; and
Unbailable offences under the Dangerous Drugs Act 1952, Firearms (Increased Penalties) Act 1971 and Security Offences (Special Measures) Act 2012.
In this article, we will focus mainly on Non-bailable offences.
As per Section 2 of the CPC and the last paragraph of the First Schedule to the CPC provides that if the punishment to an offence is more than three years or punishable with death, then the offence is not bailable. However, one should bear in mind that if a specific provision in any written law provides bail, then that particular law will supersede the CPC according to the maxim of generalibus specialia non derogant.
Non-Bailable Offences
Section 388 of the CPC provides that a person arrested for a non-bailable offence may be released on bail by an Officer in Charge of a Police District (OCPD) or the Court, however, a person shall not be released if there appears to be reasonable grounds to believe that a person is guilty of an offence which carries the punishment of death or imprisonment for life.
There are 3 types of non-bailable offences which are highlighted under s.388 of the CPC.
Type (1) – if an accused is charged with a non-bailable offence (punishable with/without death/life imprisonment), but there appears to be no reasonable grounds to believe the accused is guilty, the accused may be released on bail by the OCPD or the Court.
Type (2) – if an accused is charged for a non-bailable offence that is (punishable with death/life imprisonment), and there are reasonable grounds to believe that the accused is guilty, the accused shall not be released on bail.
Type (3) – if an accused is charged for a non-bailable offence, but the accused is under 16 years of age, a woman or any sick or infirm person, that person may be released on bail as per the proviso of s.388 of the CPC.
Factors to grant Bail for Non-Bailable Offences for Type (1)
In the case of Wee Swee Siang v PP [1948] 14 MLJ 114, the Court considered 9 factors before deciding to grant bail:-
Whether there was reasonable ground for believing the accused is guilty of the offence;
The nature and gravity of the offence;
The severity and degree of punishment;
The danger of the accused absconding;
The accused’s character, means and standing;
The danger of the offence being repeated;
The danger of any witnesses being tampered;
Opportunity for the accused to prepare its defence;
The period of detention.
There are several cases such as Manickam & Ors v PP [1982] 1 MLJ 227, Dato’ Mat Shah v PP [1991] 2 MLJ 125 and PP v Chien Guan Chai & Anor[2020] 10 CLJ 703, which state that an accused is presumed innocent until found guilty. Therefore, an accused person should ordinarily be granted bail. Conversely, bail should not be refused unless there are strong reasons for doing so.
Cases on granting Bail for Offences Type (2) & Type (3)
In the case of PP v Dato’ Balwant Singh [2002] 4 MLJ 427, (Augustine Paul J) – the accused was charged with murder under s.302 of the Penal Code which carries a death sentence. The accused was granted bail under the provisio to s.388 of the CPC in the sum of RM 500,000 with two sureties and several conditions which include the surrender of his firearm, its license along with his passport.
The reason being, the accused was 80 years old and was able to provide a medical certificate to show his state of illness.
In the case of Sulaiman Bin Kadir v PP [1975] 1 LNS 171, (Harun J) – the accused was charged for rape under s.376 of the Penal Code in the Special Sessions Court at Kuala Lumpur. He appealed after his application for bail was refused.
Harun J held that :-
“Turning now to the merits of the application the exceptional and very special reasons given are that :
The applicant has a good defence to the charge;
The applicant is a resident of Kuantan in Pahang and will have great difficulty in preparing his defence, particularly to trace witnesses in that State, if he is kept in custody in a prison in Kuala Lumpur; and
The applicant has been in custody since 20 August 1975 and would have been in custody for approximately six months before the trial.
In the instant case, had it been triable by me, I would exercise my discretion to grant bail pending trial………. I would therefore allow this application on exceptional and special reasons………….”Conclusion
In a nutshell, bail can and should ordinarily be granted for non-bailable offences depending on the facts and circumstances of the case. Whereas, a non-bailable offence does not automatically deny the possibility of bail for an accused person.
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