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LECTURE 1: BAIL
contents
i. Definition of bail .............................................................................................................................................1
ii. Whether or not bail can be granted depends on type of offences .............................2
iii. Underlying concept.......................................................................................................................................2
iv. Who may give bail or bond to release a person? ....................................................................3
v. Factors that would be taken into consideration in exercising discretion to grant bail 9
vi. Quantum or amount of bail – s. 389.................................................................................................9
viii. Application for bail .....................................................................................................................................11
ix. Variation of bail ............................................................................................................................................13
x. Revocation of bail –s. 388(5)................................................................................................................14
xi. Forfeiture of bond.......................................................................................................................................15
I. DEFINITION OF BAIL
A. NOTES:
1. The idea of bail is to secure attendance, kita lepaskan someone dengan
jaminan sth, kalau that person x dtg lepas tu boleh disaman lepas tu
B. AUTORITI:
Blackstone’s
Commentaries
delivery or bailment of a person to his sureties (bailors), upon their giving of
sufficient security for his or her appearance.
Yusof Bin
Mohamed v
PP [1995]
 Bail means security taken from a person to appear on a fixed date before a
court.
 Bail is to set free a person who is under arrest, detention or is under some

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kind of restraint by taking security for his appearance.
C. GENERAL LAW PASAL BAIL : S. 387-394 OF CPC
II. WHETHER OR NOT BAIL CAN BE GRANTED DEPENDS ON TYPE OF
OFFENCES
A. 3 CLUSTER OF OFFENCES KNOWN UNDER THE LAW
Bailable  bail is as of right- A person cannot be refused of bail- s 387 of the CPC.
 Untuk jenayah yang tidak termasuk dalam penal code refer 1st
schedule last page ,
column 4.
Non-
bailable
 bail is at discretion of the court- s 388 of the CPC
 contoh kes razak baginda-minta bail tapi x dpt
Unbailable  Cannot has bail at all. When certain laws exclude the discretion of a court to grant
bail.
 For example:
o S. 41B DDA 1952
o S. 12 of Firearms (Increased Penalties Act 1971 (FIPA)
o S.57 of Dangerous Drugs (Forfeiture of Property) Act 1988.
III. UNDERLYING CONCEPT
A person arrested /charged in a court may be released based on
the provisions in the CPC through:
Bail
a delivery or bailment of a person to his sureties
(bailors), upon their giving of sufficient security for his
or her appearance; or
Personal bond
an instrument binding the person who
executes it to be on good behavior and to
appear in court.

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notes:
 Duit yang deposit to mahkamah tu as bond akan dapat balik lepas habis kes, ada keadaan
duit tu boleh disita bila orang yang dijamin tu x dtg court
 Form 3 – form bond, under s. 390
 Personal bond tu macam janji mulut yang OKT akan dating masa bicara nanti
IV. WHO MAY GIVE BAIL OR BOND TO RELEASE A PERSON?
A. BY POLICE PENDING INVESTIGATION
1. Concept: Normally, police would issue bail or bond during or pending
investigation process and the person has yet to be charged in court.
2. commonly known as “Police Bail”.
3. lain type of offences, lain provision govern for “police bail”
Section Content
387 1. Jenis kesalahan apa yang polis bagi jaminan (subsek 1) – bailable offences
2. Polis yang ada pangkat apa boleh bagi jaminan ni? (subsek 1)
a. officer in charge of a police Station or
b. any police officer not under the rank of corporal
3. Apa opsyen yang polis ada bila nak bagi jaminan? (subsek 2)
a. jaminan polis atau
b. personal bond without penjamin (good behavior)
388 Kalau kesalahan non- bailable offences pon boleh je sbnrnya berikan bail, tapi pangkat
polis yang beri jaminan tu lebih tinggi :
“A police officer in charge of the police district (OCPD)”
who
By Police Pending Investigation JAMINAN POLIS
By Court Pending Trial JAMINAN MAHKAMAH

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Note:
 bawah s. 390, polis sebenarnya ada kuasa nak impose bayaran masa beri jaminan pada OKT
tapi in practice this power usually exercised by the court je, sbb duit tu akan dimassukan
dalam akaun mahkamah, polis x da akaun tho.
 Once satu jaminan tu dikenakan syarat untuk okt bayar, it is called as “BAIL BOND”
4. When OKT/ arrestee entitled to police bail? (depends police dah apply
remand ke tak)
a) an arrestee is entitled to bail or bond upon if he or she is not produced
before a Magistrate within 24 hours as stipulated in
(1) by art 5(4) and
(2) s 28 of the CPC.
(3) If the police do not apply for a remand under s 117 CPC
b) S. 29 Release of person arrested
No person who has been arrested by a police officer shall be released except on his own bond
(personel bond) or on bail or under the order in writing of a Magistrate or of a police officer not
below the rank of Inspector.
OKT ditangkap
dah habis 24 jam + polis x bawak depan
majistret + polis x apply remand
OKT berhak utk dilepaskan
(s. 29)
dah habis 24 jam-polis minta
remand from majistret
OKT dalam tempoh reman - so x de hak
minta jaminan -
(Maja Anak Kus v PP[1985])

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c) Notes: dalam tempoh reman, OKT mmg x leh buat apa2 termasuklah
nak apply habeas corpus
5. Walaupun sbnrnya polis boleh je bagi bail pending trial tapi in practice gini je,
selagi masih dalam proses siasatan (bicara belum start), polis yang akan bagi
jaminan, once dah start trial, biasanya mahkamah je yang akan bagi bail pending trial
– refer bawah.
B. BY COURT PENDING TRIAL
1. Although s 387 and s 388 also give power to a Court to give bail or bond
during investigation, in practice, issuance of bail or bond by a Court only take place
when an accused person is charged in Court.
2. lain type of offences, lain provision govern for “court bail”
a) 387 – bailable
b) 388- non bailable (subject to discretion of the court)
3. Issue pasal bail pending trial ni hanya akan timbul bila?
a) bila OKT x mengaku bersalah dan minta dibicarakan tapi mahkamah
akan tangguh dulu prosiding dan bagi date baru untuk bicara, so sementara
nak tunggu hari bicara tu, okt akan minta dibebaskan dengan jaminan (bail
pending trial).1
b) IOW, kalau dah OKT plead guilty, buat apa nak minta jaminan,
hukuman akan dijatuhkan, tiada trial.
1
In english, ayat dr munzil : Bail pending trial simply means an accused is released on bail after he has been formally
charged in court and the court has fixed a date of trial (hearing) of the case (charge) against him. Thus pending the
date of trial, the accused is released on bail, as otherwise he has to be remanded in custody at the prison pending his
trial.

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4. s. 388 provide guideline how the court should exercise its discretionary
power to grant bail:
a) flow nak baca s. 388 macam ni,
subsek content Ada x DP2
?
1st limb of
subsek 1
Those who are charged with NBO3
which are not punishable with
death or life imprisonment
yes
2nd
limb of
subsek 1
Those who are charged for offences punishable with death or
imprisonment for life(unbailable offences)
no
Proviso
subsek 1
 Those who are charged for offences punishable with death or
imprisonment for life (unbailable offences)
 there are reasonable grounds for believing that the accused is
guilty of the offence but he is either
1. under the age of 16 years, or
2. a woman, or
3. a sick or
yes
2
Discretionary power
3
NON BAILABLE OFFENCES
If an accused is released on bail pending trial, (2
SITUATIONS)
OKT may have to obtain sureties/bailor to
secure his attendance in court when required(at
the date (s) of hearing/trial)
court may impose other
conditions including number of
sureties - s. 390 (1)
OKT may be released on a personal
bond (without sureties) pending trial
it is a bond executed by the accused himself as a
promise/guarantee that he will appear in court as and when
required by it. See s.387(2), 388(2), 390(1) CPC.
offences tu
punishable with
death/ LI x?
yes ada DP, so boleh release
no
x de DP, so x leh release
kalau jatuh under 4 categories tu - ada
DP, so boleh release walaupun ada
reasonable grounds

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4. infirm person
Subsek 2  Those who are charged with NBO
 However, there are no reasonable grounds to believe that the
accused is guilty for such offence BUT
 there are sufficient grounds for further inquiry into his guilt
yes
b) kes yang further explain how the court can exercise its DP
Under which
part
Case
Woman PP v
Latchemy
[1967]
Facts The accused,
 a woman
 a mother of 10 children and
 the youngest of them is still under breastfeed
was charged with murder used this proviso to apply for bail.
Held the application fall far short of being exceptional and very
special reasons and the application was refused.
Che Su bte
Daud v PP
[1978]
Facts  OKT was a mother of a six children including a 4
months breastfeeding baby.
 She was charged for trafficking in dangerous drugs
Held Granted bail
Critisism criticized by the subsequent case of Loy Chin Hei v PP[1982]
because the Court in Che Su failed to consider the provision
of s 41B of the DDA which make the offence of trafficking as
“Unbailable Offence”.
Tarikh che sue mohon bail, undg2 ni dah digazetkan so court
x de pon DP tu ab initio.

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Woman
& sick
Leow
Nyok Chin
v PP[1999]
Facts OKT, a woman aged 58 years was charged for murdering her
husband.
Among her arguments in applying for bail were that she is a
woman and had medical condition needing
psychiatric/medical attention.
Held application was dismissed because it was decided that the
sickness must involve a risk to life.
Sick &
infirm
PP v Dato’
Balwant
Singh (No
1) [2002]
Facts OKT was charged for murder.
He was above 80 years of age and had various medical
conditions such as heart disease, high blood pressure and
diabetes.
Held granted bail based on the proviso to s 388(1) on the ground
that he was sick and infirm person.

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V. FACTORS THAT WOULD BE TAKEN INTO CONSIDERATION IN
EXERCISING DISCRETION TO GRANT BAIL
A. BASED ON MALLAL’S CPC & PP V WEE SWEE SIANG (1948)
1. The following list of factors is not exhaustive:
1. nature and gravity of the offence charged;
2. nature of the evidence in support of the charge;
3. Whether there is or is not reasonable grounds for believing the accused is guilty of the
offence;
4. severity and degree of punishment which conviction might entail;
5. The guarantee that the accused, if released on bail, will not either abscond or obstruct the
prosecution in any way;
6. danger of the offence being continued or repeated;
7. danger of the witnesses being tampered with;
8. Whether the accused if released on bail, is likely to tamper with the prosecution evidence;
2. Since x exhaustive, court boleh je consider other factors when exercising
discretion whether or not to grant bail to an accused charged with a non-bailable
offence
VI. QUANTUM OR AMOUNT OF BAIL – S. 389
A. KONSEP:
1. When a court decides to grant bail, it must after that decides on the amount
of bail bond.
B. PRINCIPLE IN DETERMINING AMOUNT OF BAIL
No. Principles Authorities

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1 the amount must be sufficient to sufficient to secure the
attendance of the person arrested, but shall not be excessive
s. 389 CPC
Manickam & Ors v PP
[1982]
2 factors for consideration by the court are inter alia, the
nature and gravity of the offence and the severity and
degree of punishment which conviction might entail.
Soo Shiok Liong v PP
[1993]
3 It is wrong to fix the quantum of bail solely on the basis of
the value of the subject matter of the charge.
4 quantum should be higher in the case of NBO Mmg xde dlm notes sir
5 quantum of bail should not be set so prohibitively high as to
have the effect of incarcerating the accused even before he
is convicted of the offence
Zulkifflee bin Hj Hassan v
PP [1987]
VII. CONDITION OF BAIL
A. CAN A COURT IMPOSE CONDITIONS TO THE BAIL?
1. S. 387 to 389 of CPC do not have any specific provision for the imposition of
conditions. CPC is silent!
2. However in PP v Dato’ Mat [1991], Supreme Court held that
a) it was not illegal to impose conditions to the bail which are
appropriate to secure accused’s subsequent attendance in court.
b) The Court arrived at this conclusion after looking and following into the
practice in Indian cases.
3. Conditions cannot be imposed for bailable offences because cases like Dato’
Mat and alike discussed about power to impose conditions in respect of NBO.

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B. OBJECTIVE OF CONDITIONS
1. a supplemental security towards ensuring the attendance of the accused at his
trial.
2. When the court stipulates conditions, OKT shall comply with it. If he does not
do so he faces the risk of being remanded in custody pending trial.
C. EXAMPLES OF CONDITIONS THAT MAY BE IMPOSED
No. conditions cases
1 Surrender of accused’s travel documents to the court PP v Dato’ Mat
2 Duty to report at police station.
3 Restriction on movement of accused;
e.g. not to approach the complainant’s place of abode.
PP v Abdul Rahim B.
Hj Ahmad [1988]
4  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.
PP v Dato’ Balwant
Singh (No 1) [2002]
VIII. APPLICATION FOR BAIL
A. IN WHAT FORM?
1. no mandatory requirement for the application for bail in written form
2. Court can still consider oral application PP v DSAI[1998]
3. If it is made in writing, it must be by filing the Notice of Motion and supported
by affidavit.

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B. WHAT IF THE BAIL APPLICATION IS REJECTED DURING THE FIRST APPLICATION?
1. By nature order to grant or not to grant bail made by the court is interlocutory
and tentative.
2. 3 options!
1st
:
Successive applications
made by the accused to
the same court under s
388
 The applicant/OKT has only to show sufficient and cogent reasons
like material change in circumstances since the last order made by
the court or new facts have come to light which the court ought to
know.
 Example: PP v Abdul Rahim bin Hj Ahmad &Ors [1988] : where
new fact in the form of medical report showed that the
complainant may not have been raped. Bail was allowed with two
conditions.
2nd
:
Apply to a High Court
Judge
 Provided in 2nd limb of s 389 of the CPC.
 Fresh application may be made to the High Court if attempt made
at the lower court failed.
 The process involved in s.389 is simple and speedy as it is only
necessary for the applicant to file a Notice of Motion/Application
supported by an affidavit to the High Court. (Sulaiman bin Kadir
v PP [1976])
 It is quicker, speedier and suits the subject matter of bail which by
its nature is urgent.
3rd
:
Appeal to the High Court
pursuant to s 394 of the
CPC
 The process of appeal is cumbersome as it entails filing of a Notice
of Appeal, to wait for the grounds of decision of the lower court
judge, filing of a petition of appeal premised on the grounds
furnished and to wait for a hearing date of appeal by high court.
 The entire process is slow and it will defeat the urgent nature of
the subject matter which is bail.
3. In a situation where an accused has not been

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granted bail, he may have to be remanded in custody
pending an appeal pursuant to section 394 CPC.
 If a bail is refused by the High Court, there is no right to appeal to
the COA because no provision in the CPC and in the Court of
Judicature Act 1964 for that purpose- DSAI v PP [1999]
IX. VARIATION OF BAIL
A. MEANING OF VARIATION
1. mahakamh ada kuasa untuk meminda perintah jaminan yang telah diputuskan
oleh mahkamah rendah
2. S. 389 confers unfettered powers of the High Court which include to vary the
terms of bail. Look at the last sentence “…be reduced or increased”.
B. CASES:
PP v
Zulkiflee
b.Hassan
[1990]
Supreme Court held that the High Court had jurisdiction to entertain the application
under s 389 regarding the amount of bond executed under Chapter XXXVIII of the said
Code.
PP v
Dato’
Mat
[1991]
Facts  The respondent had been charged for criminal breach of trust and had
been offered bail in the sum of $400,000 in two sureties and on condition
he surrenders his international passport to the court.
 The respondent applied for an order for the release of his international
passport to enable him to make a business trip to Indonesia.
 The learned judge of the High Court varied the condition imposed and
ordered the international passport to be returned to the respondent for a
specific period.
 The Prosecution appealed.
Held
(Supreme
 Section 388(5) of CPC empowers the court which granted the bail the
power to cancel it.

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Court)  The power to admit, refuse or cancel bail must necessarily imply the
power to vary or alter the same.
 In the present case in view of the order made for its transfer from the
sessions court to the High Court, the learned judge was acting well within
his jurisdiction to review the condition of bail as if the same was made by
him.
X. REVOCATION OF BAIL –S. 388(5)
A. POWER TO REVOKE - DATO’ MAT’S CASE
1. s 388(5) gives power to the court to revoke or cancel a bail if there is an
infringement of the terms of bail.
2. Even if a person charged with a bailable offence (where bail is granted as of
right) can be revoked if the accused has breached a fundamental term of the bail.
B. RIGHT TO BE HEARD OF OKT
1. Wong Kim Woon v PP [1999] - before revoking the bail, an accused should be
given the right to be heard so that can get explanation from him or her as to why it
cannot be cancelled
C. RIGHT OF THE BAILOR/ SURITIES – S. 393
1. Section393(3) states that on the appearance of the accused either in pursuant
to a warrant of arrest or voluntary surrender, the court shall direct the bond to be
discharged either wholly or so far as it relates to the applicants.
2. The Court then shall call the accused to find other sureties and if he fails to do
so, may commit him to custody

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3. Sureties boleh mohon untuk x nak jadi penjamin sbb maybe tertuduh susah
nak control, so mahakamh akan minta tertuduh lantik penjamin yang lain, kalau
gagal, tertuduh masuk lokap.
D. A BAIL MAY BE REVOKED ON THE APPLICATION BY THE PROSECUTION
1. Phang Yong Fook v PP [1988] : DPP applied the bail to be revoked on the
ground that the accused has harassed and tempering with witnesses
XI. FORFEITURE OF BOND
A. CONCEPT:
1. When an accused is released on bail or personal bond, he has to ensure
appearance at the specified court on the required date and time.
2. If he is released on bail his surety or sureties has to ensure his appearance in
court. If the accused failed to appear or if the terms or conditions of a bond is
breached the court may forfeit the sum of money deposited for the bond.
B. PROCEDURE TO FORFEIT:S. 404(1)
The court has first to
take evidence on the
bond and the
sureties mentioned.
This testimony may be given by
specific witnesses, usually the
Sessions Judge, Magistrate or
Registrar who granted the bail.
The sureties will then be
given an opportunity to
cross-examine those
witnesses.

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1. If sufficient cause is not shown and the penalty is not paid, the court may
proceed to recover the same by issuing a warrant for attachment and sale of
property belonging to that person. (s 402(2) of the CPC)
2. section 404(5): where the court has discretion to remit any portion of the
penalty and enforce payment in part only.
3. If the procedure is not complied with the court on appeal may set aside the
forfeiture. See also Valliamai v Public Prosecutor [1962] MLJ 280 on the procedure for
the forfeiture.
4. All forfeiture orders are appealable to the High Court pursuant to s 405 of
CPC.