6 Bail

BAIL

3 types1 investigations take time ndash instead of charging him police will release on bail pending decision whether to

charge ndash bail pending charge2 charged in court but not yet sentenced or convicted ndash bail pending trial ndash court bail3 bail pending appeal

- Chapter XXXV Criminal Procedure Codeo 1048708 Section 351 CPC (bailable offences)o 1048708 Section 352 CPC (non-bailable offenceso 1048708 Section 353 CPC (amount of bond)

Purpose- To secure attendance- Not intended to be punitive- S353 CPC ndash ldquoThe amount of every bond executed under this Chapter shall be fixed with due regard to the

circumstances of the case as being sufficient to secure the attendance of the person arrestedrdquo- 1048708 See Soo Shiok Liong v Pendakwa Raya [1993] 2 MLJ 381 -

o 1048708 Judge must decide having due regard to the circumstances of the case that the amount imposed would not be excessive but be sufficient to secure the attendance of the applicant

Zulkifflee bin H J Hassan v PP 1987 Facts In this application the accused sought for an order of Court that the bail set for him in the sum of m1000000 by the President of the Sessions Court to be reduced to a lesser sum The accused was charged with an offence under s 409 of the Penal Code involving a sum of $67m He claimed trial to the charges and the President allowed him bail in the said sum and two sureties and his passport was also impounded The question before the Court was whether bail of $1m and two sureties was adequate or too excessive in the light of the circumstances of the caseHoldings Held(1)the requirements as to bail are merely to secure the attendance of the accused at the trial The purpose of bail is to secure his appearance on a certain date to answer the charge against him Bail is not intended to be punitive and excessive bail ought not to be required(2)in the instant case the bail of $1m had the effect of punishing the applicant before he was proved guilty of the changes against him(3)in the circumstances of the case the bail of $1m and two sureties should be reduced to a sum of $200000 and two sureties

Sureties - Sureties may surrender the accused to the Court before the date assigned and free themselves from further

responsibility s358 CPC

Sureties may apply to have bond discharged358 mdash(1) When any person is required to execute a bond with sureties any person who has entered into such a bond as surety may at any time apply to a court to discharge the bond either wholly or so far as relates to the applicant Subsequent procedure(2) On such application being made the court may issue a warrant of arrest directing that the person on whose behalf the bond was entered into shall be brought before it (3) On the appearance of such person pursuant to the warrant or on his voluntary appearance the court shall direct the bond to be discharged either wholly or so far as relates to the applicant and shall call on that person to find other sufficient sureties and if he fails to do so may commit him to custody (4) A surety may at any time arrest the person on whose behalf the bond was entered into and forthwith bring him before a court which shall thereupon discharge that suretyrsquos bond and shall call upon that person to find other sufficient sureties and if he fails to do so shall commit him to custody A magistrate is empowered to dispense with sureties if he is of opinion that it will not defeat the ends of justice

Bailable or Non-Bailable- 1048708 S2 CPC - definition of ldquobailable offencerdquo

o ldquoan offence shown as bailable in Schedule A or which is made bailable by any other law for the time being in force and lsquonon-bailable offencersquo means any other offencerdquo

- 1048708 Schedule A CPC 5th columno 1048708 Penal Code offenceso 1048708 Offences against Laws other than the Penal Code

- 1048708 Punishable with imprisonment for less than 3 years ndash bailable (unless statute states otherwise)

Bailable Offences - 1048708 S351 (1) CPC

o 1048708 When any person other than a person accused of a non-bailable offenceo 1048708 is arrested or detained without warrant by a police officer or appears or is brought before a courto 1048708 and is prepared at any time while in the custody of the officer or at any stage of the proceedings

before the court to give bailo 1048708 that person shall be released on bail by any police officer in such cases as are specified by

orders issued by the Commissioner of Police or by that court- (2) The police officer or the court if he or it thinks fit may instead of taking bail from that person

discharge him on his executing a bond without sureties for his appearance as hereinafter provided -- =gt 1048708 Bail is as of right not as a favour ndash no discretion to refuse bail - If the accused is able to and prepared to give bail he must be released(Lim Kwang Seng)- Bailable offence one that is listed in Schedule A of the CPC

- 1048708 BUT EXCEPTIONo High Courtrsquos inherent power under equivalent of our s 4 CPC

Talab Haji Hussain v Madhukar Purshottam Mondkhar AIR 1958 SC 376 ndash cancellation of bail in bailable offence because harassed witnesses while on bail

o For Sub Cts Bachchu Lal v State AIR 1951 All 836 ndash sub court tried to preserve such pwier to

themselves (but not decided in sg) ndash shld have though Michael Raymond Taylor

o no express requirement that arrest is a precondition for bail in bailable offenceso Magistrate has power to set bail for a person who appears in obedience to a summons

Wong Kim Woono Court can revoke or vary the bail granted on the ground that the bail was breachedo Court can also refuse fresh bail for a bailable offence if there had been a breach of prior bail for the

same offenceo Entitled to bail only when first arrested in connection to bailable offence and So if accused

breaches his bail or cause it to be forfeited he will no longer be entitled to bail as of right

Non-Bailable Offences - 1048708 For non-bailable offences bail is at the discretion of the court except for capital or life

imprisonment cases- Bail generally allowed- 1048708 S352(1) CPC

o 1048708 When any person accused of any non-bailable offence is arrested or detained without a warrant by a police officer or appears or is brought before a court

o 1048708 he may be released on bail by any police officer not below the rank of sergeant or by that courto 1048708 but he shall not be so released if there appear reasonable grounds for believing that he has

been guilty of an offence punishable with death or imprisonment for lifeo 1048708 Provided that the court may direct that any person under the age of 16 years or any woman or

any sick or infirm person accused of such an offence be released on bail

- An accused is presumed to be innocent until proved to be guilty As a presumably innocent person he is entitled to freedom and every opportunity to look after his own case should be offered to him

- If accused enjoys freedom he will be in a much better position to look after his case and to properly defend himself than if he were in custody R v Hutchinson

- Exceptions where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment

o test set out in R v Ooi Ah Kow (1952) and Sulaiman bin Kadir (1976) is ldquoreasonable grounds for believingrdquo

R v Ooi Ah KowFacts The accused in this case was charged with attempted murder under s 307 of the Penal Code and with voluntarily causing hurt in the course of committing robbery or attempting to commit robbery under s 394 of the Penal Code The Magistrate allowed the accused on bail The question is whether the learned Magistrate was right in so allowing bailHoldings (1) that the learned Magistrate had no power to release the accused on bail as there were reasonable grounds for believing that the accused had been guilty of an offence punishable with death or penal servitude for life (2) that although under s 417 of the Criminal Procedure Code the High Court has an absolute discretion to grant bail in any case it ought not to do so in cases punishable with death or in cases punishable with penal servitude for life except for exceptional and very special reasons

Sulaiman bin KadirFacts The applicant was arrested on 20 August 1975 and charged with rape under s 376 of the Penal Code in the Special Sessions Court at Kuala Lumpur The trial had been fixed for 13 and 14 February 1976 On 7 November 1975 the applicant applied for bail pending trial but the learned President of the Special Sessions Court refused it under s 388(i) of the Criminal Procedure Code The applicant asked the High Court to exercise its discretion to grant bail on exceptional and very special reasons The learned Deputy Public Prosecutor contended that the application should have been brought by Notice of Appeal under s 394 and not as it was done under s 389Holdings (1)the learned President was correct in refusing bail a subordinate court had no power to grant bail if there were reasonable grounds for believing that an accused person had been guilty of an offence punishable with death or life imprisonment(2)if a person should not be kept in custody for a moment longer than was necessary than the speedy procedure of s 389 of the Criminal Procedure Code rather than that of an appeal was obviously indicated(3)as this application arose out of a refusal to grant bail the provisions of s 389 applied(4)in this case as there were exceptional and special reasons the court could exercise its discretion and grant bail

- what is reasonable ground for belief Sunny Ang (Ang Sunny v PP [1965 ndash 1968 SLR 67) so long as the man is charged in court and the police officer is prepared to testify that he has grounds to

believe that he is guilty of an offence that is sufficient for the court to refuse bail under s 352- hence in cases of murder or culpable homicide not amounting to murder you will never find an accused

charged with such offences being offered bail principally because a) firstly such offences are non-bailableb) secondly such offences are extremely gravec) and thirdly there is the testimony of a police officer to the effect that there are reasonable grounds to

believe that the accused is guilty of the offence - although for rape there have been instances of the accused being granted bail but are extremely rare- in all other cases court will generally grant bail unless there is objection to such grant by the prosecution

supported by sufficient grounds- different kinds of bail

1 easiest is cash bail where the person deposits a sum of money as security2 alternatively there is the personal bond where having been charged with an offence you enter into a

bond that you will attend as directed or otherwise you will forfeit the sum of money stipulated in the bond

- the bailor must be a person with some roots in Singapore and he must be a person of some substance- bail is decided not only in the courts but also be the police officers

- common one is at the police station occurs where the arrested person is not ready to be charged in court and he is released on bail pending investigations

- if the person arrested is unable to furnish bail at the police station the police must release or produce him in court within 48 hours

- then it is up to the court to consider the question of bail- sureties of bailors are at liberty at any time to inform the court that they do not wish to stand bail for the

accused- the magistrate will issue a warrant of arrest for the accused person so that he can be produced in court- only upon the accused being physically produced in court will the bailor be released from his bond

- usually when person is charged in court that is sufficient to constitute reasonable grounds- alternative position taken in PP v Datorsquo Balwant Singh by Malaysian courts

Facts The accused - an 81-year old advocate and solicitor - was charged with the offence of murder He claimed trial and applied to be released on bail The defence contended that the medical condition of the accused brought the case within the proviso to s 388(1) of the Criminal Procedure Code (`the CPC`) In support of its argument the defence tendered a medical report on the accused which inter alia stated that the accused suffered from several serious diseases The defence also produced a newspaper report of a statement issued by the police The statement was to the effect that police investigations showed that there was justification in the killing of the accused Whilst the prosecution did not challenge the medical report it submitted that there were medical facilities in the prison to treat the accused The prosecution also argued that the fact that the accused had been charged and the prosecution was instituted with the consent of the public prosecutor indicated there were reasonable grounds for believing the accused was guilty as chargedHoldings Held ordering the accused to be enlarged on bail in the sum of RM500000 with two sureties with security to be furnished and subject to conditions(1)Section 388 of the CPC deals with the question of bail in cases of non-bailable offences The phrase àppears or is brought before a Court` in s 388(1) restricts the applicability of s 388(1) to the first production of the accused in court pursuant to a summons or warrant The phrases àt any stage of the trial` and `further inquiry` in s 388(2) however refer to a trial that has already commenced with some evidence having been adduced In the instant case the applicable provision would be s 388(1) the accused having just been produced in court pursuant to a warrant (see p 435A-B)(2)The general principle underlying s 388(1) is that bail may be granted at the discretion of the court in non-bailable offences A qualification is made in cases of offences punishable with death or life imprisonment whereby bail shall not be granted if there appear reasonable grounds for believing that the accused is guilty of such offences Where there are no reasonable grounds bail may still be granted in such cases at the discretion of the court The restriction that has been imposed does not apply to the instances enumerated in the proviso to s 388(1) with the result that bail may be granted at the discretion of the court Where an application for bail is made in a case punishable with inter alia death the court must first determine whether the proviso is applicable If the proviso is applicable the resultant matter is whether the court should grant bail in the exercise of its discretion (see p 435D-F)(3)The medical report on the accused - not challenged by the prosecution - revealed that the accused was exposed to various complications arising from various medical disabilities His various medical ailments weighed with his advanced age rendered him weak feeble and physically not sound In the circumstances the accused was a sick and infirm person within the meaning of the proviso to s 388(1) He was therefore not affected by the restriction on s 388(1) and entitled to be enlarged on bail at the discretion of the court The prosecution`s submission on the availability of medical facilities in the prison was not a relevant factor in making a determination on the accused`s health (see p 437D-F)(4)In determining of the existence of reasonable grounds for purposes of s 388(1) the court is not required to go into the details of the evidence The court must decide the existence of reasonable grounds on the materials before it and not on what may unfold later Thus objections as to the admissibility of evidence would be premature at this stage What is required is the satisfaction of the court of the existence of evidence to support the charge that has been preferred (see pp 438E H 439B)(5)The court is required to analyse and apply its mind to the evidence that is available In the instant case the mere fact that the accused had been charged as contended by the public prosecutor was insufficient to show the existence of reasonable grounds The further argument advanced by the prosecution that the fact that the prosecution was instituted with the consent of the public prosecutor must be construed as an indication of the existence of reasonable grounds could not also be sustained The granting of bail is a judicial act It is the court

that must decide whether there are reasonable grounds for believing that the accused has been guilty of an offence punishable with death (or life imprisonment) for which purpose it is necessary to have the facts to base an opinion A mere reliance by the court on the consent to prosecute will result in the court subjecting itself to the will of the public prosecutor without applying its own mind (see p 439B-D)(6)The facts as narrated by the public prosecutor were capable of showing the existence of reasonable grounds for believing that the accused was guilty of the offence he had been charged with However the newspaper report of the police statement stating that the accused was justified in firing the shot had to be read with the facts adduced by the prosecution to ascertain the existence of reasonable grounds The statement reflected the view of the police - the agency that investigated the incident and as the finding of justification would result in there being no offence at all it would have the effect of negating the existence of reasonable grounds In the absence of any contradiction verification or explanation the press statement had to be accepted and would lead the court to hold that the prosecution had failed to show the existence of reasonable grounds (see pp 441A-D 442A-B)(7)The factors to be considered in a bail application are not exhaustive The health of the accused is a factor that can be considered The seriousness of the offence cannot be the dominant consideration The fact that there are no reasonable grounds for believing that an accused is guilty of the offence charged with will certainly be in his favour On the facts the graveness of the charge faced by the accused had to be balanced against the failure by the prosecution to show that there were reasonable grounds for believing that the accused committed the offence he was charged with The prosecution failed to indicate that the accused would abscond or tamper with witnesses if released on bail The standing of the accused and his age also militated against the prospect of him absconding The court was thus unable to hold that the accused would abscond or tamper with witnesses if released on bail (see pp 442D-H 443A-C E)(8)Though it may not be in the public interest to grant bail to a person facing a murder charge where other factors favour an accused the requirements of public interest can be satisfied by imposing suitable conditions in granting bail The exceptional circumstances of this case compelled the court to conclude that the accused ought to be enlarged on bail subject to the imposition of certain conditions The accused was thus enlarged on bail in the sum of RM500000 with two sureties with security to be furnished and also subject to seven conditions (see pp 443F-H 444A-C)

- BUT HC has unfettered discretion to grant bail in all cases S354 CPC ()High Courtrsquos powers to vary bail354 mdash(1) The High Court may in any case whether there is an appeal on conviction or not direct that any person shall be admitted to bail or that the bail required by a police officer or Magistratersquos Court or District Court shall be reduced or increased (2) The High Court may at any stage of any proceeding under this Code cause any person who has been released under this section to be arrested and may commit him to custody

- S Selvamslylvester v PP Kan J affirmed that prohibition in s352 CPC extends to both High Courtsrsquo and Subordinate Courtsrsquo power to extend bail

o 1048708 Bail in bailable offences ought to be granted as of right and that in such cases lsquobail has to be offeredrsquo

o 1048708 Justice Kan lsquoreasonable grounds cannot be listed exhaustively there must be some material for finding of the existence of reasonable grounds to be based upon hellip which if assumed to be true would point towards a personrsquos guiltrsquo

o Kan J explained that the effect of s354 CPC which had been construed in the past as giving the High Court an unfettered discretion to grant bail merely allowed the accused person at any time after he has been arrested to apply to the High Court for bail to be granted It did not override the express prohibition in s352 CPC against the grant of bail where the offence involves life imprisonment or the death penalty

o In Selvamsylvester copies of accused personrsquos incriminatory statements were supplied to defence counsel This constituted the ldquoreasonable groundsrdquo required by s352 CPC

- 1048708 Factors to be considered in grantingrefusing bailo 1048708 Gravity of offence ndash PP v Mat Zain 1948-9 ndash in non bailable cases bail is at discretion of court

and in exg discretion court must consider gravity of crime In non-bailable cases bail is at the discretion of the Court and in exercising its

discretion the Court must consider the gravity of the crime Public Prosecutor v Mat Zain

In this case the accused was charged with robbery It appeared he had been previously charged with the offence but the charge had been withdrawn and he had been discharged not amounting to an acquittal

In the course of his judgment Callow J dealt with various unsatisfactory features of the trial and inter alia ruled

(1) when a charge is withdrawn and the accused discharged the discharge should amount to an acquittal unless good cause is otherwise shown An accused person is entitled to trial and determination only in exceptional circumstances should the charge be permitted to remain indefinitely held against him

(2) in non-bailable cases bail is at the discretion of the Court and in exercising it discretion the Court must consider the gravity of the crime

(3) a committing Magistrate should enquire from the accused person on committal as to whether he requires a copy of the depositions so that he may have early opportunity to prepare his defence

(4) it is essential that there should be a proper proof of exhibits from the time of acquirement The chain must be complete from first possession to the Court

(5) even in cases where the defence of alibi has not been disclosed the Police should make inquiries as to the whereabouts of the accused at about the time of the alleged offence

Keep in mind that the ends of justice normally dictates that bail be granted o 1048708 Severity of punishment that might follow - the more dangerous the more likely of re-offence

abscondingo 1048708 Accusedrsquos ties to Singapore (family assets) his character means and standingo 1048708 Danger of abscondingo 1048708 Danger of offence being continuedrepeatedo Nature of evidence in support of the chargeo 1048708 Danger of witnessesevidence being tampered witho 1048708 Where refusing bail would prejudice preparation of defenceo 1048708 Capital or life imprisonment cases

1048708 ldquohellip shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for liferdquo

o 1048708 ldquoReasonable groundsrdquo 1048708 Mere fact that he faces a charge carrying such a punishment ndash sufficient See above S Selvamsylvester v PP [2005] 4 SLR 409 [2005] SGHC 158

1048708 Mere fact of charge is insufficient applicant tried unsuccessfully to obtain bail 7 charges ndash carnal intercourse with

boy and molest of boy accused sought bail charged with offence punishable with life imprisonment ndash qn as to whether entitled to bail

s352 ndash shall not be so released if reasonable grds tt guilty of offence punishable with deathhellip

reasonable grds ndash mere fact that faces such charge sufficient Cf R v Chan Choon Weng [1956] MLJ 81

Justice kan held that must be some material which if assumed to be true would point to towards the personrsquos guilt

o 1048708 Admissionsconfessionso 1048708 Medicalscientific evidence (DNA fingerprints)o 1048708 Eye witness evidenceo 1048708 Circumstantial evidence

defence did not dispute that there were confessions ndash court held that sufficient material to presume the offence

so held that wld not allow accused to go on bail justice kan went on to consider ndash if had discretion to grant bail wld he have

granted ndash he held that wld nt have granted because grds raised by accused insuff for him to ex discretion in his favour

read case

o Bail not to be withheld as punishment cos requirement of bail to secure the attendance of accused at trial ndash R v Rose

o If by reason of delays in investigation of case by police inordinate delay is caused might become exception or special reason for court to grant bail even in series case R v Ooi Ah Kow

- Lau kung seng v PP ndash court is bound to take into consideration the above factors when deciding whether to grant bail and failure to do so wld render refusal of bail subj to challenge

Quantum of Bail Bond- 1048708 Factors for consideration in setting quantum (Soo Shiok Liong)

o 1048708 Nature amp gravity of offence severity amp degree of punishmento 1048708 Quantum should be higher in non-bailable offenceso 1048708 Excessive quantum may defeat the granting of bail as the accused may find difficulty in getting a

bailor acceptable to the court o bail intended to secure attendance and not to be punitiveo 1048708 Not prohibitively high to have effect of incarcerating the accused before he is convictedo 1048708 Basis of criminal law is that person is innocent until proven guiltyo 1048708 Likelihood of absconding if bail quantum too lowo 1048708 Whether passport surrendered - the surrender of the accusedrsquos international passport should

go to reducing the quantum of bailo 1048708 Whether accused presented himself at police station and cooperated with policeo the fact that the applicant had presented himself at the police station and had co-operated with the

police should also go to abating the quantum of bailo the quantum of bail should not be set so prohibitively high as to have the effect of

incarcerating the accused before he is convicted of the crimeo =gt the application of the courtrsquos mind in considering the above factors ought to be reflected in the

judgersquos records (soo)o Here the court was of the view that the bail of RM1m had the unfortunate effect of punishing the

applicant before he was proven guilty of the charges against him

Terminology ndash note bail amount and number of sureties- 1048708 $50000 With One Surety ndash one person must come up with entire amount- 1048708 $50000 With Two Sureties In Two Sureties = $50K x 2 OR $50K divide 2 - - 1048708 Case law vs court terminology ndash case law

o case law - 50000 divided by 2o court terminology ndash yes ndash five in two can be the same as 10000 in one (judge made order based on

counselrsquos submissions)- rule depends on context There is no rule ndash listen carefully to contexts of order

Imposition of Conditions

Justification- Court has power to impose fair and reasonable conditions to secure attendance

- 1048708 PP v Datorsquo Mat [1991] 2 MLJ 186 o 1048708 Permissible to impose fair and reasonable conditions when granting bail in non-bailable offenceso What about bailable offences ndash conditions also inherento Facts The respondent had been charged for criminal breach of trust and had been offered bail in

the sum of $400000 in two sureties and on condition he surrenders his international passport to the court

o Held It is not illegal to impose fair and reasonable conditions and in particular the condition requiring the accused to surrender his passport apropos to the securing of the accusedrsquos subsequent attendance in court In the present case in view of the order made for the transfer of the case from the sessions courts to the High Court the learned judge of the High Court was acting well within his jurisdiction to review the condition of bail as if the same was made by him

o In any event in the absence of any express provision in the Criminal Procedure Code to the contrary a judge of the High Court may by virtue of Section 4 of the Code exercise his revisionary powers under the Courts of Judicature Act 1964

- Comments o Indian authorities seem to favour the view that when discretion is given to the court to refuse or

grant bail that discretion in itself implies discretion to grant bail subject to certain conditions

- But according to Indian authorities when there is no discretion to refuse bail the question of imposing conditions does not arise - Rex v Genda Singh amp Ors AIR 1950 All 525

o Thus conditions can be included in a bail bond issued pursuant to s 388 but not to s 387 as the latter section gives no discretion to the officer or court to withhold bail when the person arrested is prepared to provide such bail

o Similarly in Hazari Lal Gupta v Rameshwar Prasad amp Anor AIR 1972 SC 484 it was held that the High Court while granting bail can lay down a condition restricting the accused personrsquos departure from India by requiring him to surrender his passport

o Several earlier Indian authorities had expressed the same view on this matter In Varadaraja Mavalliar (1957) 1 Mad LJ (Crim) 717 the Madras High Court reviewing the case law on this subject held that in non-bailable offences the court could impose restriction in suitable cases

o In Re Kota Appalakonda AIR 1942 Mal 749 the court in holding that condition made under Section 496 of the Indian Criminal Procedure Code to be invalid made the following observation on the scope of Section 497 With regard to non-bailable offences I can see no objection to imposing conditions of this kind for the magistrate has an option to grant bail or to refuse bail and he has also the power under s 497(5) of the Criminal Procedure Code of causing persons so released to be arrested and committed to custody which subsection he would apply in case the condition was not fulfilled

- Court has no discretion Does court has same power to impose conditions - Local position (bailablenon-bailable) court has imposed condition for passport to be surrendered

o Because of Talab Haji Hussain v Madhukar Durshattan Momdkhan (1998) All India Report 106 = in bailable offence there is no problem for court to impose condition =gt not settled in SG

Mandatory conditions- 1048708 S355(1) CPC Bond to be executed by personbail executed by his sureties person is released on

condition that he will attend at designated time and place (eg police station or court) ndash bonds usually monetary bondsBond to be executed355 mdash(1) Before any person is released on bail or released on his own bond a bond for such sum of money as the police officer or court as the case may be thinks sufficient shall be executed by that person and when he is released on bail by one or more sufficient sureties conditioned that that person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the police officer or court as the case may be

- accused cannot put up own money for bail must be somebody else

The Law and Practice Relating to Bail Bond Sureties1

- In Singapore bail is rarely granted without sureties Many accused persons have to spend time in remand awaiting their trial not because they were denied bail but because they cannot find suitable sureties

Suitability of a Bailor The granting of bail is a judicial act The Court granting bail has to be personally satisfied that the

sureties produced are fit proper reliable and solvent A reliable surety is one who can ensure the attendance of the accused failing which he is good for the sum of the bond Other than that there are no general restrictions on the types of persons that can stand as sureties

Relatives There are no restriction on relative standing as sureties They are very highly desirable

Foreigner

1 This section is not covered in the lecture It is a brief summary from pg 169 ndash 180 of the Criminal Procedure Manual (provided by the Board of Legal Education)

The CPC does not disqualify a foreigner from standing bail If the proposed surety is a non-Singaporean the Court has to be satisfied that the surety has sufficient funds property in Singapore for the bond to be enforced

Age Minors may not stand as sureties For our purposes the age of majority can be taken as 21 Persons

under 21 cannot stand as sureties

Government Servants Neither the CPC or common law precludes government servants from standing as sureties This

means that government servants are competent to stand as sureties This applies to police officers and members of the Armed Forces

Lawyers There is nothing in the LAW in Singapore that prevents lawyers from standing as sureties for their

clients but as a matter of practice it should not be encouraged Many lawyers in Singapore when they do decide to stand bail for their client take a cash advance from him and place it in their firmrsquos client account

Accused Persons He will not be allowed to stand as surety

Bankrupt All undischarged bankrupt cannot stand as sureties

Bailor The fact that a person is already standing bail once does not preclude him from acting as surety in

another case whether it is for the same accused person or for a difference one The surety must show that he is good for both bonds

Ways of Standing Surety The CPC provides for sureties standing bail in 2 sections Section 355 and Section 359

Bond to be executed355 mdash(1) Before any person is released on bail or released on his own bond a bond for such sum of money as the police officer or court as the case may be thinks sufficient shall be executed by that person and when he is released on bail by one or more sufficient sureties conditioned that that person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the police officer or court as the case may be Forms 3 and 60(2) If the case so requires the bond shall also bind the person so released to appear when called upon at the High Court or other court to answer the charge (3) It shall be a further condition of the bond that as long as it remains in force the person so released shall not without the permission of the police officer or the court as the case may be proceed beyond the limits of Singapore (4) Such permission if granted shall be evidenced by an endorsement on the bond specifying the period of time and the place to which the permission extends (5) No such permission shall be granted except on the personal application of the person so released in the presence of his surety or sureties if any

Cash deposit instead of sureties359 When any person may be required by any court or officer to execute a bond with one or more sureties the court or officer may except in the case of a bond for good behaviour permit him to enter into his own bond and in addition to deposit a sum of money to such amount as the court or officer thinks fit instead of providing a surety or sureties

The underlying object of this section appears to be to enable prisoners who cannot find sureties to be bailed on their finding cash An application must be made to the court granting the bail to permit to provide a cash deposit in lieu of sureties The Court may vary the amount and is not entitled to demand a deposit of cash rather than a recognizance

There are several advantages to this practice- Sureties do not have their worth verified by the police This enables the accused to be released on

bail sooner Less work for both police and court staff It also makes execution easier if the bail is ever estreated as the money deposited is simply

forfeited The bail amount is effectively secured

Affidavit of surety Affidavit

- There are no provisions in the CPC requiring a surety to swear an affidavit as to his means But it is an established procedure in the Sub Courts that-

where the bail sum is less than $1000 the surety need not swear am affidavit where the sum is greater than $1000 but less than $5000 the surety is required

to depose an affidavit as to his worth but no verification of the property used as proof of worth is required

where the sum is greater than $5000 and the property used as proof of worth is other than cash or a fixed deposit receipt or a savings account book or title deeds the bail bond cannot be executed until verification of the worth of the assets has been carried out by the Investigating Officer in charge of the case

Verification- There is no legal requirement for such verification but the police are just assisting the

Court to satisfy itself that the surety is fit proper reliable and solvent

What can cannot be used as sureties Deposit of bank documents

- The deposit of bank documents (such as pass books fixed deposit receipts and fixed deposit certificates) by sureties is one of the most popular way or providing bail There are certain guidelines that the Court follows with respect to bank documents Lawyers should bear them in mind when advising clients as obtaining sureties

Other popular items that sureties regularly seek to rely on are as follows-- Motor Vehicles

This can be relied on as indication of financial worth of surety The log book should be produced to the Court as proof of ownership

- Household items This include furniture and electrical equipment The Court is not concerned

with their purchase price but the price they will get when auctioned by the bailiff One will be able to get a good deal at these auctions as some of the prices can be cheaper than at the Great Singapore Sale2

- Share Certificate The Court is often reluctant to accept them as there will be difficulty in

valuation Even shares of SIA for eg But Court still has discretion- Houses Flats Land etc

The CPC does not provide for execution against immovable property If immovable property is ever relied on the title deeds etc should be retained by the Court However enforcement action cannot be taken against HDB and HUDC flats Because of this they will only be accepted in very exceptional circumstances

- Jewellery Antiques etc Can but might have some problems with valuation The fact that such property

can be easily disposed of is only relevant when there are doubts about the suretiesrsquo reliability and where there is a real risk of him and the accused absconding

- Company Property No director or shareholder can use his company property as security The surety

is assuming a liability personal to himself- Partnership Property

2 This comment is solely of the authorrsquos It is not recommended that the reader use this for examination purposes

Partnership property actually belongs to the partners It therefore can be used to indicate the financial worth of the proposed surety

- 1048708 S355(3) CPC the person so released shall not leave Singapore without prior permission 355 -- (3) It shall be a further condition of the bond that as long as it remains in force the person so released shall not without the permission of the police officer or the court as the case may be proceed beyond the limits of Singapore

- 1048708 Surrender of passports ndash midway pt stimeso 1048708 Not provided for in CPCo 1048708 Local practice for both bailable and non bailable offenceso 1048708 Passports surrendered in bailable and nonbailable cases

- whether this practice arises due to court impounding th passport or as cond of bail ndash see Lim Kiap Kee v PP 1998 1 MLJ 198 as opposed to PP v Datorsquo Mar 1991 2 MLJ 186 see s67 355(3) CPC

o Lim Kiap Kee v PP [1988] 1 MLJ 198 The issue of bail pending appeal arises after an accused person has been convicted of an offence against which he wishes to appeal There is however no right to bail

Power of court to impound document or other thing produced67 Any court may if it thinks fit impound any document or other thing produced before it under this Code

Police Bail vs Court Bail- court issuing warrant of arrest may in its discretion direct by endorsement in the warrant that the person

arrested be released if he executes a bond with sufficient sureties for his attendance before the court at the appointed time s 47 CPC

Court may direct by endorsement on warrant security to be taken47 mdash(1) Any court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that if that person executes a bond with sufficient sureties for his attendance before the court at the next sitting of the court following the day of arrest and thereafter until otherwise directed by the court the officer to whom the warrant is directed shall take such security and shall release that person from custody (2) The endorsement shall state mdash (a) the number of sureties and (b) the amount in which they and the person for whose arrest the warrant is issued shall be respectively bound (3) Whenever security is taken under this section the officer to whom the warrant is directed shall when so required forward the bond to the court

Bail in the process of investigations- Arrest without warrant

o 1048708 S36 CPC Person arrested to be brought to Magistratersquos Court within 48 hours of arresto 1048708 May be remanded or granted Court bailo 1048708 If investigations are not complete the police can release the accused on Police Bail instead of

producing him in court and seeking custodyremand under s 198 CPCPerson arrested not to be detained more than 48 hours36 mdash(1) No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable (2) Such period shall not exceed 48 hours exclusive of the time necessary for the journey from the place of arrest to the Magistratersquos Court

- Arrest with warranto 1048708 S50 CPC Person arrested to be brought before Court without unnecessary delayPerson arrested to be brought before court without delay50 The police officer or other person executing a warrant of arrest shall subject to section 47 as to security without unnecessary delay bring the person arrested before the court before which he is required by law to produce that person o 1048708 May be remanded or granted Court Bail

Bail Pending Appeal

o Section 251 CPC

Stay of execution pending appeal251 No appeal shall operate as a stay of execution but the courts below and the High Court may stay execution on any judgment order conviction or sentence pending appeal on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment order conviction or sentence as to the court seem reasonable

- Already conviction ndash found guiltyo Courts more reluctant to grant bail than otherwise when first applying for bail before conviction

- But bail is granted where sentence imposed is short term sentence- If magis convicts and sentences to 3 mths imprisonment unfair to refuse bail because by time grds of

decision written record of appeal and petition many mths passedo Might have client serving sentence alrayd and appeal court setting aside sentence with order of

acquittal ndash unnec punishment in tt caseo Yeo Eng Siang v PP 2005 SGHC 47

The appeal process 48 On 26 November 2004 the appellant was sentenced to seven monthsrsquo

imprisonment His sentence was ordered to take effect from his date of remand 9 September 2004 The appellant lodged the Notice of Appeal on 3 December 2004 According to the prison authorities the appellantrsquos earliest date of release was 29 January 2005 There was no evidence in the records that the appellant had made any application for bail pending appeal On 4 January 2005 a signed copy each of the Record of Proceedings and the Grounds of Decision was served on the appellant The Petition of Appeal was then lodged on 13 January 2005 and the appeal was fixed for hearing on 1 February 2005 As a result this appeal was rendered academic as the appellant had already served his sentence by the time this appeal was heard by me

49 I found this situation regrettable to say the least Although the records showed that the procedure for filing criminal appeals was complied with I believe that such a situation calls for reforms to the criminal justice system so as to provide for such special circumstances I believe that where possible the courts should try to prevent such situations from occurring

- Similar principles for lengthy sentence but at least chance of appeal court merely reducing sentence by time appeal comes up for hearing

- 1048708 S248 CPC District Court or Magistratersquos Court may grant bail to a person who has filed a notice of appeal

- 1048708 Discretionary ldquospecial reasonsrdquo needed before bail will be granted for factors to be considered o 1048708 see Re Kwan Wah Yip [1954] 1 MLJ 146 Ralph v PP [1972] 1 MLJ 242 ndash ldquospecial reasonsrdquo

needed before bail will be granted mere fact of notice of appeal given is not sufficient reasono Re Kwan Wah Yip [1954] 1 MLJ 1461

A stay of execution should not be granted unless there are special reasons for doing so and the mere fact that a notice of appeal has been given is not sufficient

=gt special reasons does not mean more than tt there must be reasons beyond mere intention to appeal or advice and belief tt there are gd grds of appeal

1048708 Gravity or otherwise of the offence 1048708 Length of term of imprisonment compared with length of time itrsquos likely to take

for the appeal to be heard ndash if term of say 1 mth but appeal in 6 wks then if make him serve his time then more time than nec ndash so court likely to grant bail pending appeal ndash emphasized in both casdes

1048708 Whether there are difficult points of law involved 1048708 Whether appellant is a first offender or has previous convictions 1048708 The possibility of his becoming again involved in similar or other offences whilst at

liberty Whether the security imposed will ensure the attendance of the appellant before the

appellate courto Lim Teck Leng Roland v PP 2001 4 SLR 61 ndash decision must be supported by gd reasons and

burden is on accused to onvince court of his reasons ndash see aboveo Ralph v PP

Impt factor is the length of the potential imprisonment the accused would face compared with the time it takes for the appeal to be heard

Bail will normally be granted where the length of imprisonment is short since it will render the results of a successful appeal academic if the accused has already served his sentence by the time the appeal is heard

- 1048708 In practice bail amount is normally increased after conviction ndash general rule of thumb ndash will ask for double and for defence to ask for lower bail

High Courtrsquos Power to Vary Bail - Section 354 CPC

354 mdash(1) The High Court may in any case whether there is an appeal on conviction or not direct that any person shall be admitted to bail or that the bail required by a police officer or Magistratersquos Court or District Court shall be reduced or increased (2) The High Court may at any stage of any proceeding under this Code cause any person who has been released under this section to be arrested and may commit him to custody

But should be used v carefully in cases punishable with death or life imprisonment Re KS Menon

- 1048708 What is an order made on a bail applicationo 1048708 ldquo[A]n order on a bail application is nothing more than an interlocutory and tentative

expression of the conclusion as to whether a person should be set at large pending trial or disposal of his appeal and nothing morerdquo

o 1048708 Mohamed Razip v PP [1988] 1 MLJ 84o 1048708 Not a judgment or sentence not an order of finality (eg of conviction or acquittal) ndash a

nonappealable order - 1048708 Thus there is no appeal from a refusal of bail - Therefore the CA cannot hear an lsquoappealrsquo from an

order of bailo Section 241 CPC Cases in which appeal lies

241 No appeal shall lie from a judgment sentence or order of a criminal court except as provided for by this Code or by any other law for the time being in force

- 1048708 What to do o 1048708 If trial court refuses bail pending appeal o 1048708 Apply by Notice of Motion to the High Court for bail under s354 CPC or to Court of Appeal

under s 51(2) SCJA

Appeal not to operate as stay of execution51 mdash(1) Except in the cases mentioned in subsection (4) no appeal shall operate as a stay of execution (2) The trial court or the Court of Appeal may stay execution on any judgment order conviction or sentence pending appeal on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in such judgment order conviction or sentence as to the court may seem reasonable (3) If the appellant is ultimately sentenced to imprisonment the time during which the execution of the sentence was stayed shall be excluded in computing the term of his sentence unless the Court of Appeal otherwise orders (4) In the case of a conviction involving sentence of death or corporal punishment mdash (a) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal may be given under section 45 or any extension of time which may be permitted under section 50 and (b) if notice is so given the sentence shall not be executed until after the determination of the appeal

- 1048708 Once an application for bail has been rejected a second or subsequent application is possible but not likely to be granted unless

o 1048708 Material change in circumstances o 1048708 New facts have since come to light (Mohamed Razip)

- see newspaper article April 26 2003 ldquoallowance just $600 but priest has condo and $1m cashrdquoo Joachim kang hock chai ndash HC ndash man of substantial assets ndash therefore court shld not reduce bail fr 2

million set Kang accused of 14 counts of embezzling 433 million fr catholic church counsel asked for 250000 bail argung that his children had served church for almost 30 yrs and al money and assets were traceable and intact Also said that kang unlikely to abscond But DPP said Kang was a flight risk adding that preist had refused to allow auth to get his bank records fr Malaysia

Justice woo bih li halved kangrsquos bail to 1 million but ordered that he report weekly to commercial affairs department (CAD)

- Datorsquo Seri Anwar bin Ibrahim v PP [1999] 1 MLJ 321 o Facts The appellant was charged with non-bailable offences the trial of which in the High Court

is at present continuing The High Court judge in exercising his discretion refused the appellantrsquos application for bail under Section 388(i) of the CPC The appellant appealed The issue before the court was whether the matter of bail is appealable to the Court of Appeal taking into consideration the definition of `decision` in Section 3 of the Courts of Judicature Act 1964 after the amendment in 1998 Further the court had to consider whether it was justifiable for it to interfere with the discretion exercised by the judge below

o Held It was not the intention of Parliament that any decision of the High Court on any matter would be appealable to the Court of Appeal The matter of bail may very well be extraneous to the issues to be determined in the main case What are appealable as intended by the current definition of the word lsquodecisionrsquo in Section 3 of the Act are those decisions of the High Court that have the effect of finally disposing of the rights of the parties The very nature of bail possesses no element of finality It is a mechanism for temporary relief from confinement An appeal on the matter of bail was incompetent to be laid before this court and therefore should be rightly dismissed

Bail amp Backdating of Sentences- 1048708 Every imprisonment sentence takes effect from day it was passed unless court otherwise directs - s223

CPCo 1048708 Can backdate sentence (discretionary) ndash by sentencing court

- Power to backdate - Section 223 CPCDate of commencement of sentence223 Subject to the provisions of this Code and of the Supreme Court of Judicature Act every sentence of imprisonment to which section 221 or 222 apply shall take effect from the date on which it was passed unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs

- 1048708 General rule o If accused was released on bail his sentence will not be backdated to take into account any

periods during which he was in remand Only can backdate if had been in remand all alongo rarely done in HC but common practice in subcourts

- =gt take note when ur client first put in remand because this is date when court will backdate the sentence

o 1048708 Tang Kin Seng v PP [1997] 1 SLR 46 (para 115-119) ndash suggested that when period of bail irrelevant for backdating of sentences court generally wld not backdate it to include period where accused out on bail

o Facts The appellant was charged with using criminal force on an Indonesian maid intending to outrage her modesty by hugging her and kissing her on the cheeks The offence was alleged to have been committed in the lift of a block of flats

o Held Amongst others o As a general rule the period in which a convicted person had been out on bail should not be taken

into account in backdating a sentence under Section 223 of the Criminal Procedure Code

- In Cheong Seok Leng v PP [1988] SLR 565 Chan Sek Keong J had to consider whether any allowance ought to be made for a period of detention in a drug rehabilitation centre when considering the commencement of a sentence under Section 223

o It was held that it should not because such a centre is not gazetted as a prison This case also suggests that periods in which a convicted person has been out on bail is as a general rule irrelevant for the purpose of Section 223

- It is added that a primary consideration is the adequacy or harshness of the sentence o This is demonstrated in PP v Tan Kim Chok [1969] 1 MLJ 211 and Pang Po amp Anor v PP [1962]

MLJ 294 The discretion given to the court under Section 223 does allow the court to a certain

extent to achieve the effect of giving the convicted person either an enhanced sentence or a discount or so it appears from the two cases

- Nevertheless there is a dearth of authority on this point In the absence of more detailed argument the question whether under no circumstances should a sentence be backdated unless the convicted person had been remanded in prison is best left open for another day

- Mani Nedumaran amp Anor v PP [1998] 1 SLR 411[1997] SGHC 349) o Facts The appellants were originally charged with gang robbery At that date of pleading guilty

the appellants had already been remanded in prison for four months The district judge convicted them upon their plea of guilt and imposed the maximum sentence of one monthrsquos imprisonment prescribed He refused to backdate the sentences to the date when the appellants were first taken into remand Both appellants appealed against sentence

o Held Section 223 of the Criminal Procedure Code permitted a sentencing court the discretion to backdate a custodial sentence thereby achieving in effect a discount in an accusedrsquos sentence Conversely the court might by refusing to backdate a custodial sentence impose what amounted in effect to an enhanced sentence It was only fair that a court took into consideration any period spent in remand by an accused when contemplating the exercise of its discretion to backdate

o This did not mean that a custodial sentence had to invariably be backdated to the date when an accused was taken into remand There were other considerations which were relevant to a courtrsquos decision to backdate the sentence these included the seriousness of the offence committed and the corresponding demands of public policy as well as the quantum of maximum punishment prescribed for the offence

o In the present case bearing in mind the circumstances of appellants` offence and also the length of the maximum custodial sentence prescribed for the offence the court agreed that the appellants` sentences should have been backdated to the date when they were first remanded However the court decided against ordering any backdating because such an order would have served no real purpose in view of the period already spent in remand by the appellants

- Chua Chuan Heng Allan v PP 2003 SGHC 105 (check case) ndash general factors on whether court will backdate a sentence

o The courtrsquos power to backdate a custodial sentence is always discretionary 8 The general rule of sentencing is that every custodial sentence takes effect from the

date on which it is passed This is expressly provided for in s 223 of theCPC Thus the courtrsquos power to backdate a custodial sentence is purely discretionary Sinniah

Pillay v PP [1992] 1 SLR 225 The backdating of a custodial sentence is an exception to the general rule of sentencing and is never available as of right

o The court is not obliged to exercise its discretion to backdate 9 It is settled law that the court is not obliged to backdate a sentence of imprisonment

in any case In Mani Nedumaran v PP [1998] 1 SLR 411 at 414 to 415 the court stated [I]t is only fair that a court take into consideration any period spent in remand by an accused when contemplating the exercise of its discretion to backdate hellip The above does not mean that a custodial sentence must invariably be backdated to the date when an accused was taken into remand

Thus where the court knows that an offender has previously spent time in remand it should take such a period into account when it is deciding whether to backdate a custodial sentence However this does not oblige the court to backdate a custodial sentence in every case where an offender has already spent time in remand

10 The fact that an offender has spent time in remand does not necessarily increase the likelihood that his sentence will be backdated This is evidenced by the case of PP v Wong Siu Fai [2002] 3 SLR 276 where the offender pleaded guilty to having committed carnal intercourse against the order of nature on a five-year-old boy In that case the court refused to backdate the offenderrsquos custodial sentence because it was of the opinion (at 280) that ldquothe five monthsrsquo imprisonment already served should be part of the punishment given the circumstances of [the] caserdquo

11 The sentencing judge is not obliged to launch into an inquiry to find out whether an offender has previously spent any time in remand The law does not require the court to actively ferret out such information It is the offender who seeks to rely on the fact that

time was previously spent in remand ndash the onus of bringing such a fact to the courtrsquos attention must rest on him It is pertinent that s 103(1) of the Evidence Act (Cap 97) states 103 mdash (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist

o Factors which the court takes into account when deciding whether to backdate a custodial sentence

12 The court will take a variety of factors into account when deciding whether to exercise its discretion to backdate In the cases of Mani Nedumaran v PP and Sinniah Pillay v PP the court provided a list of relevant factors to be considered in this context This list included the seriousness of the offence committed the corresponding demands of public policy and the quantum of the maximum punishment prescribed for the offence

13 However the above list is not meant to be exhaustive After all the power to backdate is properly left to the discretion of thesentencing judge based on the circumstances of every case

Forfeiture of Bail Bond- 1048708 WA issued if person does not appear - s360 CPC

Arrest on breach of bond for appearance360 When any person who is bound by any bond taken under this Code to appear before a court does not so appear the court may issue a warrant directing that that person shall be arrested and produced before it

- 1048708 Bailor to show cause why bond should not be forfeited - s361(1) CPCProcedure on forfeiture of bond361 mdash(1) Whenever it is proved to the satisfaction of a court that any bond taken under this Code has been forfeited the court shall record the grounds of such proof and may summon before it any person bound by the bond and call upon him to pay the penalty thereof or to show cause why it should not be paid

Forms 62 to 71(2) If sufficient cause is not shown and the penalty is not paid the court may proceed to recover the penalty by issuing a warrant for the attachment and sale of the property belonging to that person (3) If the penalty is not paid and cannot be recovered by such attachment and sale the person so bound shall be liable by order of the court which issued the warrant to imprisonment for a term which may extend to 6 months (4) The court may in its discretion remit any portion of the penalty mentioned and enforce payment in part only (5) Nothing in this section shall be deemed to prevent the penalty or any portion thereof of any bond under this Code being recovered under the Government Proceedings Act

The Show Cause- when proved to satisfy to court that bond forfeited court may summon ay person boud by bond and call on

him to pay penalty or show cause why it shld not be paid ndash Villiamai v PP 1962 in Valliamai v PP the High Court in considering the Malaysian equivalent of s361(1) CPC held

ldquo upon sufficient cause shown forfeiture may be waived altogether s361(4) CPC further states in specific terms that the Court has a discretion to remit any portion of the penalty mentioned and enforce payment in part only Careful consideration therefore ought to be given by Magistrates to the question in 2 stages first has sufficient cause been shown against forfeiture secondly if not are the circumstances such that the whole sum of the penalty ought to be enforcedrdquo

- 1048708 burden on bailor

o re ling yew huat 1990 ndash burden of satisfy court of relief against full penalty or tt full sum shld not be forfeited lies with surety

- 1048708 seriousness of standing bail for another- 1048708 conduct of the bailor is relevant- 1048708 See Loh Kim Chiang v PP [1992] 2 SLR 233

o Emphasis on the culpability of the bailor in the failure to secure the attendance of the accusedo Consideration of efforts taken to secure the attendance by the bailor

- in Ramlee v PP the Magistrate estreated S1000 out of the bond of $2000 because he felt the bailorsrsquo explanation were not satisfactory

o on appeal to High Court it was held inter alia that the ldquolearned Magistrate should have concerned himself whether there was sufficient cause shown and not whether the explanation was satisfactory or unsatisfactory He should have gone a step further (which he did not do) to decide whether in view of the unsatisfactory explanation he considered that the appellants had not shown sufficient causerdquo The order of the Magistrate was accordingly quashed

o 1048708 Adoption by Karthigesu J of the principles propounded in R v Uxbridge Justices ex parte Heward Mills [1983] 1 All ER 530

- 1048708 (1) When a defendant for whose attendance a person has stood surety fails to appear the full recognizance should be forfeited unless it appears fair and just that a lesser sum should be forfeited or none at all

- 1048708 (2) The burden of satisfying the court that the full sum should not be forfeited rests on the surety and is a heavy one It is for him to lay before the court the evidence of want of culpability and of means on which he relies

- 1048708 (3) Where a surety is unrepresented the court should assist him by explaining these principles in ordinary language and giving him the opportunity to call evidence and advance argument in relation to them

- ldquoThe court must consider the extent to which the surety was at faultrdquo- ldquoThe courtrsquos discretion under s 361(4) hellip was most important as it gave the court the

opportunity to weight the bailorrsquos culpability to act fairly and justly in determining whether the full amount of the bail should be forfeited or a lesser sum or none at allrdquo

- PP v Kam Weng Namo bailor took no steps at all to ensure the accusedrsquos attendanceo full amount of bail forfeited

- PP v Pang Tye Mano bailor took the trouble to be present in the court punctually when the accusedrsquos case was

mentionedo intended to remind the a to attend court

- Doanne Neville- 1048708 Stood bail for $400000 ndash monies from wife amp friends- 1048708 Accused convicted on 10 charges of cheating ndash out on bail pending appeal White collar crime

Further offences stood down during trial 2 bail bonds ndash 1 for his appeal 1 for his 2 stood down own charges

- 1048708 Surety -a) 1048708 contacted accused 2 weeks before hearingb) 1048708 accused disappeared 2 days laterc) 1048708 surety lodged a police report

- 1048708 No cause shown as to why sum should not be forfeited- 1048708 Full sum forfeited

- 1048708 S361(4) Court has discretion to remit part of the penalty- 1048708 PP v Ram Ghanshamdas Mahtani amp Anor [2003] 1 SLR 517

o 1048708 Accused convicted of illegal employmento 1048708 Bail pending appeal put up by accusedrsquos wife and brother-inlaw accused absconded after

obtaining leave to travel outside jurisdictiono 1048708 CJ affirmed prima facie position that the bail amount will be forfeited in fullo 1048708 Case not exceptional for court to modify prima facie position and exercise discretion to remit

whole or part of bail o 1048708 Bailors completely failed to show they exercised due diligence to ensure accused would return

knew he was abroad but relied on faith that he would return - must secure attendanceo 1048708 Bailors did not expend every effort to search for accused when he failed to return merely

making a police report was insufficient

- 1048708 Orders made under s361 are appealable s362 (362 All orders made under section 361 by any Magistratersquos Court or District Court shall be appealable)

- 1048708 See PP v Mahadi bin Mohamed Daud [2000] 1 SLR 30 [1999] SGHC 278

o Facts The respondent was the surety for a Saudi Arabian national (the àccused`) who was charged in the district court for outraging the modesty of a stewardess on board an SIA flight The cash bail furnished was $15000 Whilst on bail the accused left Singapore and failed to return to attend court At the show cause proceedings the respondent informed the district court that he had sent a facsimile to the accused in Saudi Arabia on the day before he was due to return to Singapore reminding him to attend court The respondent also revealed that the money for the $15000 cash bail was provided by the accused

o The district judge ordered the forfeiture of $10000 out of the entire $15000 The remaining $5000 was remitted to the respondent The Public Prosecutor appealed against the order of the district judge on the ground that the respondent had not shown sufficient cause why the entire bail of $15000 should not be forfeited and the district judge had erred in not forfeiting the entire sum of $15000

o 1048708 PP has locus standi to appeal against an order made under s 361o Since the whole purpose of bail was to ensure the attendance of accused persons in criminal

proceedings the Public Prosecutor should be considered a party to proceedings involving issues of bail Thus the Public Prosecutor had the locus standi to appeal against an order on the forfeiture of a bail bond under Section 247 and 362 of the CPC

o 1048708 Funds for bail were provided by accused person (and not by bailor) ndash entire amount should have been forfeited since to remit the amount to bailor would be allowing him to profit from accusedrsquos failure to attend court

o Held allowing the appeal - ldquoShow cause proceedings constitute a continuation of the original criminal

proceeding and the Public Prosecutor is a party to proceedings involving bailrdquo- ldquoMahadi did not show sufficient cause why the full amount should not be forfeited

as he had not done enough to secure the- attendance of the accused hellip it would be wrong to remit any part of the bail bond to

him as (a) it would allow him to profit from the accusedrsquos failure to attend court and (b) the judge had failed to adequately consider the fact that the accused had provided the bail bond with the intention of not returning for his hearingrdquo

o The forfeiture of $10000 and the remittance of the remaining $5000 to the respondent would have resulted in the respondent receiving $5000 which clearly did not belong to him Moreover to remit the $5000 would have allowed the respondent to profit from the failure of the accused to attend court when this resulted from his own failure to ensure the attendance of the accused It also appeared that the accused had conveniently bought himself a passage out of our criminal jurisdiction by putting up the $15000 through the respondent when he had probably intended all along never to return

o The district judge had failed to give adequate consideration to the source of the funds for the cash bail Having had the benefit of the knowledge that the $15000 cash bail was provided by the accused himself it was clearly wrong to remit any part of the $15000 upon his failure to attend court

o In the circumstances the respondent had not shown sufficient cause why the whole amount of $15000 should not have been forfeited Besides sending a cursory facsimile message one day before the accused was required to return to Singapore there was no evidence that the respondent had taken any other steps to contact the accused Moreover given the fact that the cash bail had been provided by the accused himself there would have been no real incentive for the respondent to ensure the accusedrsquos attendance in court

Bailable or Non-Bailable- 1048708 S2 CPC - definition of ldquobailable offencerdquo

o ldquoan offence shown as bailable in Schedule A or which is made bailable by any other law for the time being in force and lsquonon-bailable offencersquo means any other offencerdquo

- 1048708 Schedule A CPC 5th columno 1048708 Penal Code offenceso 1048708 Offences against Laws other than the Penal Code

- 1048708 Punishable with imprisonment for less than 3 years ndash bailable (unless statute states otherwise)

Bailable Offences - 1048708 S351 (1) CPC

o 1048708 When any person other than a person accused of a non-bailable offenceo 1048708 is arrested or detained without warrant by a police officer or appears or is brought before a courto 1048708 and is prepared at any time while in the custody of the officer or at any stage of the proceedings

before the court to give bailo 1048708 that person shall be released on bail by any police officer in such cases as are specified by

orders issued by the Commissioner of Police or by that court- (2) The police officer or the court if he or it thinks fit may instead of taking bail from that person

discharge him on his executing a bond without sureties for his appearance as hereinafter provided -- =gt 1048708 Bail is as of right not as a favour ndash no discretion to refuse bail - If the accused is able to and prepared to give bail he must be released(Lim Kwang Seng)- Bailable offence one that is listed in Schedule A of the CPC

- 1048708 BUT EXCEPTIONo High Courtrsquos inherent power under equivalent of our s 4 CPC

Talab Haji Hussain v Madhukar Purshottam Mondkhar AIR 1958 SC 376 ndash cancellation of bail in bailable offence because harassed witnesses while on bail

o For Sub Cts Bachchu Lal v State AIR 1951 All 836 ndash sub court tried to preserve such pwier to

themselves (but not decided in sg) ndash shld have though Michael Raymond Taylor

o no express requirement that arrest is a precondition for bail in bailable offenceso Magistrate has power to set bail for a person who appears in obedience to a summons

Wong Kim Woono Court can revoke or vary the bail granted on the ground that the bail was breachedo Court can also refuse fresh bail for a bailable offence if there had been a breach of prior bail for the

same offenceo Entitled to bail only when first arrested in connection to bailable offence and So if accused

breaches his bail or cause it to be forfeited he will no longer be entitled to bail as of right

Non-Bailable Offences - 1048708 For non-bailable offences bail is at the discretion of the court except for capital or life

imprisonment cases- Bail generally allowed- 1048708 S352(1) CPC

o 1048708 When any person accused of any non-bailable offence is arrested or detained without a warrant by a police officer or appears or is brought before a court

o 1048708 he may be released on bail by any police officer not below the rank of sergeant or by that courto 1048708 but he shall not be so released if there appear reasonable grounds for believing that he has

been guilty of an offence punishable with death or imprisonment for lifeo 1048708 Provided that the court may direct that any person under the age of 16 years or any woman or

any sick or infirm person accused of such an offence be released on bail

- An accused is presumed to be innocent until proved to be guilty As a presumably innocent person he is entitled to freedom and every opportunity to look after his own case should be offered to him


















































read case






































Foreigner






















































Bail Pending Appeal

o Section 251 CPC


































under s 51(2) SCJA











































































































































read case






































Foreigner






















































Bail Pending Appeal

o Section 251 CPC


































under s 51(2) SCJA































































































































Foreigner






















































Bail Pending Appeal

o Section 251 CPC


































under s 51(2) SCJA














































































































































Bail Pending Appeal

o Section 251 CPC


































under s 51(2) SCJA



























































































































under s 51(2) SCJA


























































































6 Bail

Documents

Transcript of 6 Bail