PROCEDURE GUIDES

by Ahmad Kamar, Sessions Judge, Melaka

BAIL

Bail is a form of an agreement between the bailor and the court. The agreement is called a Bail Bond. Wordings of a bond. It has conditions. Bail bonds are executed to take out a person in custody in a criminal case. A criminal case can be either a Summons case or an arrest case. The following are examples of summons case offences:

(a) most traffic offences, except dangerous driving,

(b) failing to submit Incometax forms

The following are examples of arrest case offences.

(a) stealing or snatch theft section 379 Penal code

(b) stealing motorvehicle or motor accessory - 379(second limb) Penal Code

(d) stealing from employer (pilfering) - 381 Penal Code

(e) assaulting with a weapon causing bleeding injury - 326 Penal Code

(f) entering the country without valid travel documents

BAILABLE AND NON BAILABEL OFFENCES.

After arrest during Investigation and before being charged stage Criminal Procedure Code schedule 3 applies. According that schedule, the word bailable means whether the person to be charged can be relased on police bail. After being charged unless prohibited by law, ALL cases are bailable. It is only the amount and conditions can be varied according to the merits of the case by the Court. Cases forbidden by law to allow bail is those punishable by death or life.

The bail provision is to safeguard Constitutional right of a person to his freedom.

The words ‘shall be released on bail’ in s 387(1) of the CPC, given their literal and natural meaning, mean that bail must be offered. To refuse to offer bail on the ground that the accused will put a fair trial into jeopardy is contrary to s 387 where bail is mandatory. …. When the bail term has been breached and a warrant of arrest issued, the appellant, when he is brought before the court, must be given an opportunity to be heard first as to why the bail granted to him should not be revoked or cancelled. The fact he had breached the bail order is prima facie a valid reason for cancellation or revocation, unless he has a good explanation. … Where bail is mandatory is offered once under s 387(1) of the CPC, the continuation of the bail must be based upon the continued compliance of its terms and the withdrawal of it when it is breached - Wong Kim Woon v Public Prosecutor [1999] 5 MLJ 114.

Persons not having proper identity, unable to convince can be detained and handed over to Immigration for investigation. 35 sectin. 1 month.

QUANTUM OF BAIL

Amount of bail in all cases should be nominal, that is according to the prevailing amount in the district. It should not be exessive or prohibitive so much so as to tantamount to deny bail. It should be just enough to ensure attendance of the accused in court on such conditions as necessary.

HOW TO BAIL OUT A PERSON IN CUSTODY

A proposed bailor can approach the court clerk or the interpreter or the court police, find out whether bail has been stated and offer to bail the person out.

Usually a security deposit in the form of a bank book is required. Some bail sums are so much that people offer to deposit their land titles. The title if it has other names than the proposed bailor has to submit written permission from other for the title to be deposited.

The interpreter will write down the bailors particulars and fill up a blue form. He will explain the contents. The blue form looks like this

PROCEDURE GUIDES

QUALIFICATIONS OF A BAILOR

Ideally, the bailor should not be a government servant unless bailee is next of kin and there are no one else to come forward to bail him out. Why can’t a government servant be a bailor? In case of a breach and the bail sum can not be levied by distress, the bailor may be jailed. That is why.

He must be Malaysian citizen. Permanent residents may return to their land of origin.

He must be18 years or above, because only then he has legal capacity to sign the bail bond which is a contract.

A bailor undertakes to produce the accused as and when required to do so by the court for the case. The bailor himself need not be present each time the case comes up so long as the accused turns up. See Case Chang Khee Chien & Anor V Public Prosecutor. [1980] 1 MLJ 183.

APPLICATION BY BAILOR TO BE DISCHARGED

If a bailor finds that the accused he bailed out does not obey him or can not be controlled and is afraid that can no longer fulfil his duty to ensure the accused’s appearance in court can make a civilian arrest of the accused using ropes and surrender the accused to the court during office hours and discharge himself. He will get back his security deposit.

The account in the bank will be frozen by the court until the case is over.

If the accused is arrested for some other offence while out on bail, the bailor can provide particulars where he is being detained and after the prosecution verifies it can consent to the discharge of the bailor and return of the deposit.

The bailor can, after showing the court that the accused has attended the court without fail so many times, can apply to reduce the bail, borrow the book and withdraw money.

He can also apply for bail without deposit. Bail is a discretionary matter.

EXTRA CONDITIONS IN BONDS

The Court on its own or by application by the prosecution can impose extra conditions.

Some bail conditions set by court stipulate that the accused surrenders the passport to prevent him from leaving the country.

There was one case where the accused was required to report to the local police station once a month to ensure that he is still around.

BREACH OF THE BAIL BOND

Failure by accused to attend can land the bailor in trouble. A notice to show cause is issued, (sample notice to show cause) and the bailor either forfeits the bail money or shows cause. During show cause proceedings the bailor will be put into the witness box, and he has to show that he has done everything to make the accused come but for his endeavours may be part of the bail money may be estreated. The money will be credited into government revenue (consolidated fund), If the bailor did not bring the money, he may be relased and an order will be sent to the bank to send the money from the account to the court. Sample order. A bank officer can be in contempt and jailed if he disobeys the order, unless he comes up with an explaination. The receipt will be posted to the bailor. A sample cheque and a receipt.

The court can, if due to fraud finds that there is insufficient money issue warrant of arrest against an accused on bail, and remand him until sufficiencent money is deposited.

Vehicle titles registration cards are no longer accepted as bail deposits. Cashe may be accepted and temporary receipt given for a day if an accused is charged in court after bank closing hours. The accused must be produced the next day and deposit in the form of bank book can be then arranged.

If an accused is fined, and case is over. The book can be returned immediatel to the who withdraws the money and pays the fine

professional bailors.

PROCEDURE GUIDES

LIFE OF A BAILOR

Dont become a bailor unless you are sure you can manage. It carries with a great responsiblity to ensure the attendance of accused without fail until the case is over.

There are courts where professional bailor loiter. The accused is bailed out temporarily by these "loan sharks” for a fee acting as instant bailors until he is able to find his own bailor.

Government servants are discouraged to become bailors, for they are entering into a contract without their employer's permission. It can lead them to become financially distressed. But the courts use their discretion and allow them to become if the bailee is their close kins.

DEATH OF A BAILOR

When a bailor dies the bail bond is nullified. The bail security will be frozen against the administrators of the estate of the bailor. The court upon learning this can order the accused to furnish fresh bail by a living bailor and unfreeze and return the earlier security to the deceased’s estate.

BANKRUPTCY OF A BAILOR

If a bankruptcy case is initiated against a bailor his security remains intact. The insolvency department can not attach or acquire the security deposit because technically it is claimed by the court pending the disposal of the case for which it was deposited. If the case is over then the bailor may have to surrender the deposit to the Insolvency department. The deposit can be forefeited for breach even if the bailor has been declared bankrupt.

NOTICE TO SHOW CAUSE TO BAILOR

If the accused fails to turn up in court and no acceptable excuse is given, the bail bond is said to have been breached. The court can order the issue of a Notice to the bailor to show cause why the deposit ought not to be forfeited. The notice looks like this.

When the bailor attends the court, the interpreter will read the contents of the Notice to him. He will be asked whether he wants to pay up or show cause. If he wants to pay up and has money he will pay and the book returned to him with a release letter for the bank. If he has no money except that in the book, a police man will escort him to the bank with a release letter to withdraw the money and after he pays he will be discharged.

If he wants to show cause, he will be put in the witness box, shown the bail bond he signed, and asked why he did not fulfill his duty . If he can come with some excuse like the efforts he put in to ensure the presence of the accused, may be the court will only forfeit half or quarter of the money.

ESTREATMENT OF BAIL MONEY

The notice says that on the day if the bailor does not show up, or succesfully show cause, the money he deposited will be forfeited. Whole or part of the money may be forfeited. Forfeiture of money from the account of the bailor is done by sending a Court Order to the bank. The order requires the bank to deduct the money from the account of the bailor and sent to the Court Registrar who will then credit it into the Revenue account. The resit is issued in the name of the bailor and given or posted to him. The order is served by the court bailif on a responsible officer of the bank like the Public Relations Officer or the manager of the bank. The order contains a clause that if the officer does not comply with the order without excuse he will be in contempt of court.

OTHER BONDS AND SAMPLES.

Sample proceedings of an application for reduced bail.

Sample application to borrow passport.

Bond for good behaviour. Sample.

Application to authorities for release of seized goods. (No applicable to apply to release goods for which duties have not been paid, or contraband goods, or goods whose possession is illegal).

Bond to produce exhibit 413 CPC, a sample.

Bond pending realization of fine. 283 CPC. When this bond is breached a Warrant of Committal is issued with warrant of arrest. The accused is arrested and is taken straitght to jail. This practice is discouraged by Chief Registrar's circular because once fine is pronounced it becomes money owing to the Government. Giving time to pay makes people owe the Government. If they fail in their instalment it becomes bad debt. It also upsets the accounting and budgetting system.

Bond to give evidence if called to give evidence in High Court. Now this has become obsolete since the abolishing of trial by jury.

Application for Bail pending appeal. Prerequsites. Fine must be paid. Accused must be sent to prison. Copy of bond to be attached with Record of Appeal. Notice of appeal filed and shown.

The lawyer who filed Notice of Appeal can not discharge himself by letter to the registry without leave of high court.

BAIL IN DRUG DEPENDANT CASES.

See Drug Dependant Applications