Criminal Procedure

1. CRIMINAL PROCEDURE II
T3V
TUTORIAL 3 QUESTION 5
Presented by: Navneetaa Keerbananthan
1171100536

2. QUESTION
It is a rule of law that the court trying an accused who is charged for
committing a criminal offence which carries the punishment of death or life
imprisonment, not to allow bail if there are reasonable grounds to believe
that the said accused committed the offence charged. However this rule is
subject to various exceptions.
Discuss with reference to the CPC provisions and decided case authorities.

3. What is Bail ?
A bailment of the accused to his sureties, upon them giving
sufficient security for his appearance in court when required
to do so. Instead of going to prison, the accused will
continue to be in their friendly custody pending trial.
Purpose of Bail
To secure the appearance of an accused on a certain day at
a certain place to answer the charge against him.

4. Unbailable
Non-
Bailable
Bailable
Types of offences

5. Relevant Provisions
S.2 CPC
5th Column First
Schedule CPC
Indicates whether the offence
committed is bailable or not.
“Bailable offence” means an
offence shown as bailable in the
First Schedule or which is made
bailable by any other law for the
time being in force and “non-
bailable” means any other
offence.

6. Non-Bailable Offence
“(1) When any person accused of any non- bailable offence is arrested or detained
without warrant by a police officer or appears or is brought before a Court, he may be
released on bail by the officer in charge of the police district or by that Court, but he
shall not be so released if there appears reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life:
Provided that the Court may direct that any person under the age of sixteen years or
any woman or any sick or infirm person accused of such an offence be released on bail.
S. 388 CPC

7. Non-Bailable Offence (cont.)
Unlike bailable cases, the accused charged with such offences does not have the right
to be on bail. Bail is allowed subject to the discretion of the court.
S. 388 CPC

8. PP v Dato’ Balwant Singh (No. 1) [2002]
o Accused charged for murder.
o Applied for bail as accused was 80 years old and got medical evidence to show ill
health.
o Bail granted with conditions:
-Surrender firearms, license and passport.
-Report to the police once in two weeks.
-To remain indoors from the hours of 6pm-8am.
-Not to be present at any open public place or attend any public functions except for
religious and family activities.
-Not to leave Kuala Lumpur and Petaling Jaya without the leave of court.

9. Dato’ Mat Shah v Pendakwa Raya
Only Higher Courts have discretion to grant bail when
the offence is punishable with death or life
imprisonment.
General Rule: Court will lean in favour of granting bail
unless there are strong grounds that bail should be
refused.

10. Factors in considering whether to
grant bail for non-bailable offence
Fact: the female accused was charged with murder
and released on bail of RM2k on the ground that she
was a mother of 10 children and was breast feeding.
Held: HC revoked the grant of bail as the reason did
not amount to ‘exceptional & special reasons.’
Application: in order for the court to grant the bail
under s. 388(1)/proviso to s.388(1), there must be
‘exceptional & special reasons’.
PP v Latchemy

11. Leow Nyuk Chin V PP
-Female accused was charged with murder.
-Accused counsel relied on the accused being a
woman and therefore eligible for bail.
-Counsel tendered a medical report on the
psychiatric and medical condition in which she will
need a place that will provide a mental, physical
and emotional stability.
-HC judge referred to Latchemy and found that
medical condition did not add up to exceptional
and special reasons for bail.

12. PP v Dato Seri Anwar Ibrahim
Fact: detention of accused under ISA. The court
refused to grant the bail after considering the social
status of accused, health of accused, the danger of the
accused absconding, and the danger of witnesses
being tampered with.
Held:
oBail 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.
oThe onus is on the accused to show, on
balance of probabilities that granting of bail would
not prejudice the interest of justice.

13. Conditions that can be Imposed
Duty to report at police
station.
Surrender of accused’s
travel documents to the
court.
Restriction on movement
of accused
To surrender firearm and license to the
police; to remain indoors for a stipulated
time; not to be present at any open public
places or attend any public functions save
for religious and family activities; not to
leave town without leave of court.

14. Jimmy Seah Thian Heng & Ors v
Public Prosecutor [2019]
A combined consideration of the applicant’s advanced age
and his medical ailments, have rendered him someone falling
in the category of a ‘sick and infirm person’.
oCourt allowed application for bail on the following terms:
(a)bail is set at the sum of RM20,000 in two sureties;
(b)the applicant is to surrender his international passport to
the court; and
(c)the applicant is to report himself to the nearest police
station to his place of usual residence once in two weeks.

15. CONCLUSION
Bail can be granted with conditions for non-bailable offences in
exceptional circumstances where the accused is under the age of
sixteen years or is a woman or a sick or infirm even if there are
reasonable grounds to believe that the accused committed the
offence charged. However, these exceptions are not absolute
despite provided in proviso to S. 388(1) of CPC, as there are
additionally other factors that will be considered such as special
and exceptional reasons that may negate the granting of the
bail.

16. THE END
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