Sunday 23 November 2014

07:32 - 1 comment

Bail



BAIL (read closely with Baljit Singh book)
-            Also called as pre trial matter because can be done before trial itself
-            In order to have commencement you need to have a charge and sometime a charge must come with consent (/sanction/authorization). Commencement when charge is read and explained but the trial may be sometime after that. Charge is there after the last day of remand and cannot go beyond 14 days unless the PCA applies (prevention of crime act)
-            While waiting for the trial, the bail comes in or he enters back into remand, even though there was commencement but trial date is sometimes after commencement = still pre-trial and the important matter in the gap is bail
-            In a private prosecution there is an initiation s.128 -136 here applies

A.      Definition
-            Bail is “a delivery or bailment of a person to his sureties upon their giving of sufficient security for his appearance, he being supposed to continue in their friendly custody instead of going to gaol (custody = remand)”
-            A bond is an instrument binding the person who executes it. The bond may bind the person to be of good behaviour under s.173A CPC to appear in court on a particular date set for trial under s.294 CPC.
-            Bail is to deliver A to B, but bond is example a bond for good behaviour and A has a bond and B has the bail.
-            The bail binds the bailer and the bond binds the person under bond.
-            It is an important principle that bail is not punitive because he is only an OKT and deemed innocent until proven otherwise so cannot impose bail of murder example, it is only for the purpose of securing attendance of OKT.

1.        Moh Ting King v PP [1995] 3 MLJ 461

2.        Mohd Jalil v PP [1996] 5 MLJ 564
-            The purpose of the bail is to secure attendance of accused person at a certain date and place in order to answer the charge
-            Not intended to be punitive and excessive



3.        Yusof bin Mohamed v PP (1995) 3 MLJ 66
-            Bail in simple language means security taken from a person to appear on a fixed date before 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 the hearing of his appeal


-            When there is a trial or an appeal pending against the accused the prosecutor or the court may offer bail to A pending the trial or the appeal
-            Whether or not bail will be allowed would depend on the type of offence with which A is charged
-            For purpose of provisions of bail “such court” means the trial court and under s.2(1) CPC it means MC, C, HC where the court exercise the original criminal jurisdiction
-            However judge under s.289 CPC refer to HC judge. Why? (amount of bond – see section)

3 TYPES OFFENCES IN RELATION TO BAIL
i.          S.387(1) CPC – A is entitled to bail as of right, where it is mandatory. Police has first right to put him in remand of investigation of 14 days the most, at that time when he was OKT there not entitled to bail because it overrides the right to bail under s.387. So for example corruption cases where accused comes to court on that day because he has been given a police bond, the charge read against him and explained to him, he understood and he plead not guilty and claims trial. If it is a bailable offence entitled to claim.

4.        Mohd Jalil v PP [1996] 5 MLJ 564
-            Word “shall be released on bail” = mandatory
5.        Michael Raymond 
-            Though no arrest but when appellant appeared before court he was entitled to bail
6.        Kwan Hung v Inspector Yusof Haji     Unders s.387 no conditions can be imposed
7.        PP v Dato Mat

-       First schedule of CPC for offences other than PC punishable for less than 3 years or with fine only are bailable. If there is a failure to attend when there is a bail, can the court revoke the bail in a bailable offence? The court says, granting bail is one thing and revoking is another. SO now revoked can still grant another cause it is a bailable offence? To be granted must be given opportunity to explain not that he is absent simply revoked. Warrant of arrest can be issued but bail is still there, when WOA brings him to court now he appears to court to explain and the court must listen to his explanation.

8.        Maja ak Kus
-            Remand order u/s 117 CPC supersedes s.387 CPC

9.        Wong Kim Woon
-            Breach & revocation of bail but allowed to be head first

10.    Wee Swee Siang
-            Refusal to grant bail

11.    Phang Yong Fook
-            Wrong to order remand after bail revoked

NON BAILABLE
-            Court has discretion to grant bail
12.    Loy Chin Hei
-            Non Bailable means not bailabel under s.2(1) CPC

13.    Mat Zain
-            Court or OCPD has discretion to grant bail in non bailable cases depending on circumstances & facts of each case

Bailable offence = a entitled as of right, mandatory and don’t impose condition on the accused and the other thing is that bail cannot be punitive and excessive, to secure attendance and not to punish OKT. Even if there is a bailable offence and no compliance of the bail especially when A don’t turn up on the next date, the court can issue warrant of arrest but court cannot revoke bail there and then but allow A to explain because it is AS OF RIGHT.
Next is where non bailable offence where it is of discretion of court to grant bail, the DPP will either offer or otherwise to the A. If he offers, he will state an amount and the defence party will try to reduce the amount. But there can be situation where PP doesn’t intend to offer bail to A and defence need to fight for bail for A.

Non bailable offence under S.388
Type A:           Release on bail as no reasonable grounds A is guilty but sufficient grounds for further enquiry
Type B:           reasonable grounds of guilt – no bail, but not unbailable or bail not allowed
Type C:           A under 16 or a women, sick/infirm may be released on bail even though reasonable grounds of guilt

14.    Dato Balwant Singh (read on the facts of accused)
-            80 year with MC, here suffering number of medical situation, in the end bail was granted.
15.    Dato Mat Shah
-            Only high court has unfettered discretion to grant bail in death & life imprisonment cases
-            When there is discretion to grant bail, there is discretion to impose conditions referring to Dato Mat case above (but) see condition above.
-            Court will grant bail unless strong grounds bail should be refused
-            GR: grant bail unless strong grounds to refuse, passport released by HC objected by PP but SC held court has such power while exercising its discretion and inherent jurisdiction under s.389 CPC.

16.    Wee Swee Siang
-            Good example on discretion to grant bail for Type A and there are 9 fators to be considered under 388
-            Whether reasonable grounds that A is guilty
-            Nature an gravity of offence
-            Severity and degree of punishment
-            Danger of A absconding
-            A character, means and standing
-            danger of offence contd/repeated
-            Danger of witnesses tampered with
-            Opportunity for A to prepare his defence
-            Long period of defendant/custody between date of charge and date of trial

Bail needs to be exercised judicially (meaning by law)
17.    PP v DSAI
-            Bail rejected here

These are cases in relation to the facts (read recent cases with reference to the older cases)

18.    Manickam & Ors
-            Bail should be not refused as presumption of innocence favours accused & not punitive but to ensure attendance in court

Unbailable offence
-            No bail is allowed
-            Offence under Reg.9 ESCAR s12(1) FIPA, s.41B DDA

19.    Chiew Siew Luan
-            S.41B DDA supersedes

BAIL PENDING APPEAL
-          So here it is a post trial matter, can be both.

Bail Pending Appeal Against Conviction 
3 distinct authorities to grant bail pending appeal
1.        S.311 CPC: appeal does not operate automatic as stay of execution only for whipping execution stayed discretion with trial court. Appellate court to grant stay & bail. Trial court, subordinate court and HC may grant bail pending appeal against conviction. S.311 CPC should be distinguished from a 3115 which deal with the grant bail pending appeal against acquittal by the HC
2.        S.57 CJA: COA can order stay and bail
3.        S.89 CJ: FC can order bail

Bail don’t act as stay of conviction imprisonment not stayed but whipping stayed. (read on bail pending appeal) Bail is different from stay. Wait for sentence first before appealing, so now when sentence has been passed, appeal within 14 days for the convicted person to allow lawyer to file an appeal à then bail comes in à then ask for stay of proceedings (of the sentence). The effect (person is out if bail or stayed granted) is the same but principles are different governing both of these. Stay here means stay of sentence and it can be a fine and it can be RM1 million example so you ask for stay hence no need to pay that sum first.

Acquittal à then an appeal à warrant of arrest (when there is, he is no longer a free man he is OKT à to be free man applies for bail


If there is no warrant of arrest? Free man but appeal can still be there. 

1 comments:

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