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1. BAIL

2. WHAT IS BAIL?
• Chapter XXXVIII temporary release of a person who has been arrested/ detained pending
completion of investigation, inquiry or trial.
• CPC provides 2 modes of temporary release:
- A bond executed by the arrested person himself without sureties
- On bail, with sureties.
• Both modes will involve the imposition of the condition that the arrested person must appear
before the police for investigation of further investigation or before the court for trial or mention
of his case. [s. 387 and 388 CPC].
• Where he is released on his own bond, he must execute a bond for a sufficient amount.
• Where he is released on bail, one or more of the sureties must execute a bond for such
sufficient amount. [s. 390 CPC]

3. BAILABLE OFFENCES
• A person arrested for a bailable offence has a right to be released on bail. (Mohd Jalil bin
Abdullah & Anor v Public Prosecutor [1996] 5 MLJ at page 567)
• However, the arrested person must be prepared to give bail before he can have that right
to be released on bail. [s. 387(1) CPC].
• Subsection 2(1) of the CPC defines “bailable offence” to mean an offence shown as
bailable in the First Schedule (Column 5) to that Code or which is made bailable by any
other law for the time being in force.

4. NON-BAILABLE OFFENCES
• A person arrested for a non-bailable offence does not have a right to be released on bail.
He “may” be released on bail or bond. [s. 388 CPC]
• Subsection 2(1) of the CPC defines "non-bailable offence" to mean an offence other than
a bailable offence.
• In non-bailable cases, bail is at the discretion of the court. The court has a duty to
exercise its discretion to consider the gravity of the offence. (See Public Prosecutor v Mat
Zain [1948-1949] MLJ Supp 142)

5. • In Mallal’s Criminal Procedure (4th Ed) at page 551 the following factors are listed for
consideration in deciding whether bail should be granted or otherwise. They are:
• The above list is not exhaustive.
• The discretion of the court to grant bail in non-bailable cases is subject to the provisions in
subsection 388(1) of the CPC which state that the court cannot release a person on bail if
“there appears reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life”.
• However, the proviso to subsection 388(1) allows the court the discretion to grant bail for
offences punishable with death or life imprisonment where the accused person is under
the age of sixteen years or is a woman or is a sick or infirmed person.
NON-BAILABLE OFFENCES

6. BREACH OF BAIL BOND
• If the person accused fails to attend court, he is in breach of the bail bond.
• A warrant of his arrest may be issued upon the application by the prosecution.
• A Notice to Show Cause must be issued to his sureties both returnable on a certain date
allowing time for service.
• On the returnable date, the accused person and his sureties must be given the
opportunity to explain the breach. The sureties or bailors have to give satisfactory
explanation as to why the accused failed to attend court. (Khor Ewe Suan v Public
Prosecutor [1964] MLJ 220).
• There must be reasonable steps taken on the part of the sureties to ensure the accused
person’s attendance. It is not enough for the sureties to inform the accused person of the
date of hearing. There must be conscious effort to remind him frequently. (See Yap Yin
Kok v PP [1988] 1 MLJ 238) If the court is not satisfied with the explanation, the amount in
the bond may be forfeited in cases where it had been deposited. In cases where, where
the amount is pledged, the court may enforce payment.

7. REVOCATION OF BAIL
• The Court may cause any person who has been released on bail to be arrested and
commit him to custody at any subsequent stage of the proceedings [s.388(5) CPC].
• This provision is necessary to cater for circumstances such as where the person released
on bail attempts to intimidate witnesses, or shows a tendency to commit further offences.
• In considering the cancellation of bail, the power must be exercised with care and
circumspection in appropriate cases.
• Even when there is evidence in support of an application to cancel the bail granted to an
accused person, the court should not allow the application without giving the accused
person an opportunity to be heard first. (Phang Yong Fook v Public Prosecutor [1988]

8. AMOUNT OF BOND
• The amount of a bond under Chapter XXXVIII of the CPC must be sufficient to secure the
attendance of the person arrested, with due regard being given to the circumstances of
the case. It must not be excessive. [s. 389 CPC].
• If the amount is set very high it may have the unfortunate effect of punishing the person
arrested even before he is found guilty of the charges against him. [Soo Shiok Liong v
Public Prosecutor [1993]
• As a matter of procedural prudence, the accused person and his sureties must be present
in person before the amount of the bond is fixed and the sureties must be informed about
the possibility of the forfeiture of the bond if the accused person fails to appear in court at
the time and place mentioned in the bond as and when directed. [s. 390(1) CPC]
• The accused person may apply to the High Court for the amount of his bond to be
reduced. Conversely, the prosecution may also apply to have the amount of bond
increased. [s. 389 CPC]

9. DISCHARGE OF SURETIES
• All or any one of the sureties for a bond for the attendance and a person of a person released
on bail may at any time apply to a Magistrate for the bond to be discharged. The application
may be made before a Magistrate. [s. 393(1) CPC]
• This provision anticipates the incident where the sureties find that they are no longer able to
ensure the accused person’s attendance in court.
• When such an application for discharge is made, the Magistrate shall issue a warrant for the
arrest of the accused person. The warrant shall direct that the accused person be brought
before the Magistrate. The accused person may also surrender voluntarily. [s. 393(2) CPC]
• The surety himself may arrest the accused person for whose attendance in court the former is
a surety and bring him immediately before the Magistrate. [s. 393(4) CPC]
• When the accused person appears before the Magistrate, the Magistrate shall direct that the
bond be discharged either wholly or only in respect of the sureties who made the application
for discharge.
• The Magistrate must then call upon the accused person to find other sufficient sureties. If he
fails to do so, he may be committed to custody. [s. 393(3) CPC]

10. BAIL UPON EXPIRY OF REMAND
• Pursuant to s. 117 CPC, the Magistrate may either grant or refuse the application by the
police for the remand of suspects. Where a remand was granted, they may apply for
extension of remand. However, it is noted that, not all investigation could be completed
within the remand period.
• It was not uncommon to find prosecuting officers making applications before the
Magistrates for the suspect(s) to be released on police bail upon the expiry of the remand
period pending the completion of police investigation.

11. POLICE BAIL
• The Magistrates however, do not have power to grant bail under s.117 of the CPC.
• The recent Federal Court decision in Inspector Yusof Hj Othman & Ors v. Kwan
• Hung Cheong [2011] 8 CLJ 1 (FC), Raus Sharif FCJ at page 18 held inter alia that:
• “…it is the Magistrate’s Court that has the power to grant bail and not a Magistrate while exercising his power under s. 117 of the
CPC. As stated earlier, s. 117 of the CPC makes no mention of a Magistrate having power to grant bail. Further there is no
requirement for a police officer at the expiry of the remand period to bring back the accused before the Magistrate for his release.
But, in the present case, for reasons best known to the police, the plaintiff as well as Mr Lai at the expiry of the three days
detention was brought by the prosecuting officer before a Magistrate’s Court. The prosecuting officer’s application before the
Magistrate’s Court was not for further detention under s. 117 but for an order that the plaintiff and Mr Lai be released on police
bail pending completion of police investigation. It is rather unfortunate in this case that the Magistrate did not record whether the
application by the prosecuting officer for the plaintiff and Mr Lai be released on police bail bond was granted or not.”
• It was also held in the above case, that whilst it was not denied that the police have the power to impose bail under s. 388 (1)
CPC, but where the Magistrate’s Court refused the Application, the police could no longer issue the police bail. Neither could
police bail be issued after the suspect was released by the Magistrate’s Court

12. PLEA BARGAIN

13. WHAT IS PLEA BARGAIN?
• The accused pleading guilty to a lesser offence or to only one or some of
the counts of a multi-count indictment in return for a lighter sentence than
that possible for the graver charge.
• The new chapter XVIIIA contains seven new sections, namely Section
172A, 172B, 172C, 172D, 172E, 172F and 172G. Section 172C of CPC
provides comprehensive provision laying down procedure for plea bargain.
• It must be noted that the purpose of applying plea bargain is either for
bargaining in respect of the sentence or the charge, thus, the accused or
the advocate cannot apply for both. Furthermore, the accused or the
advocate shall not apply for plea bargain if the purpose is to drop the
charge(s). It must be noted that it is the prerogative of the Prosecutor to
proceed or drop any charges against the accused.

14. APPLICATION FOR PLEA BARGAIN
• The application of plea bargain can be made at any time after the charge(s) had
been read to the accused.
• There are two modes in applying for plea bargain.
(a) The first mode of application is by referring to Section 172C(1) of CPC.
the process of plea bargain starts when the accused makes an application to the
Court in which the offence is to be tried. The application shall be made in Form 28A
of the Second Schedule and shall contain a brief description of the offence that the
accused is charged with, a declaration by the accused stating that the application is
voluntarily made by him after understanding the nature and extent of the
punishment provided by the law for the offence, and the accused must state his
intention for bargaining in respect of the sentence or the charge.

15. (b) The second mode of application is by referring to Section
172A(4)(f) of CPC. This section states that the prosecution and
the advocate representing the accused, during pre-trial
conference, may discuss any possibility for plea bargain and
reaching any possible agreement.
Proper application for plea bargaining must be submitted to the
Court and with the consent of the accused. During the case
management, the prosecution and the advocate must submit to
the Court any agreement for plea bargaining.

16. HEARING OF PLEA BARGAIN
• Upon receiving an application for plea bargain under Form 28A
of the Second Schedule, the Court shall issue a notice in writing
to the Public Prosecutor, the advocate representing the accused
and the accused to appear before the Court on a date fixed for
the hearing of the application. The notice must state the date
when the Court received the application for plea bargaining and
date when the Court would hear the plea bargain.
• However, if the application for plea bargain is made under
Section 172A(4)(f) of CPC, there is no requirement for the Court
to issue a notice.

17. HEARING OF PLEA BARGAIN
• On the date fixed for the hearing of the application for plea bargain or
upon submission of any agreement made during case management, the
Court shall call and examine the accused in camera. If the accused is
unrepresented, the examination must be done in the absence of the Public
Prosecutor and if the accused is represented, the examination must be
done in the presence of the advocate and the Public Prosecutor.
• The purpose of this examination is to determine whether the accused
made the application voluntarily. For this purpose, the Court must satisfy
that the application had not been made as a result of something said or
done by any person. It is necessary to show that the application had not
been made in consequence of something said or done which would
amount to a threat, either express or implied threat or promise to the
accused. In other words, the application made by the accused must be free
from any threat, promise, inducement or oppression.

18. SATISFACTORY DISPOSITION
• Section 172C(9) of CPC states that it is the duty of the Court to ensure that
during the discussion for any possible agreement, the agreement is
completed voluntarily by the parties participating in the plea bargain
process.
• The parties to the process are, the Public Prosecutor, Court and the
advocate representing the accused and the accused himself.
• Where a satisfactory disposition had been agreed upon, under section
172C(7) of CPC, the satisfactory disposition must be in writing and signed
by the accused, his advocate if the accused is represented, and the Public
Prosecutor.
• The Court shall satisfy that the accused made the agreement voluntarily by
examining the accused before giving effect to the satisfactory disposition.
The Court shall record his finding on the voluntariness of all the parties
and the notes shall be part of the notes of proceedings.

19. SATISFACTORY DISPOSITION
• When the Court is satisfied with all the requirements under
Section 172D(1), (2) and (3) of CPC are complied with, under
Section 172C(7) of CPC, the Court shall give effect to the
satisfactory disposition as agreed upon by the accused and the
Public Prosecutor. Therefore, the Court is bound to give effect
to the satisfactory disposition agreed upon by the accused and
the Prosecutor, provided that the entire requirement under
Section 172D of CPC is followed.

20. FINALITY
• Section 172E of CPC provides that the judgment of the Court
under Section 172D of CPC shall not be appealable except to
the extent and legality of the sentence.
• The prosecutor or the accused may appeal against any order of
the Court if the order is not as per the agreement or if the
judgment made is against any provision provided under the law.

21. THANK YOU