IS justice seen to be done when a court (in Selangor) sets bail at 250% of the maximum penalty for a minor traffic offence with which a person is charged? Technically the court was not wrong as the law or rules of court allow this by giving “discretion” to the judge or magistrate.

The surety was required to open a bank account, at a particular bank, with a deposit of RM5,000.00 and “cagar” (charge) the savings book to the Court.

Fortunately, the “victim” had taken his wife along, and although they did not have RM5,000 cash on their persons, she was able to go to the bank, withdraw the cash and open a savings account. If not, the “victim” might have had to stay behind bars after court closed for the day until the savings account with that sum was brought to court.

The accused was also photographed, albeit in his own clothes and without a number around his neck.

Both the accused and the surety then had to sign a bond (a copy of which was not given to them, even upon request) and were told that if the accused does not turn up in court on the appointed date, the court will “rampas” (forfeit) the RM5,000.00

The minor traffic offence carries a maximum penalty of RM2,000, if found guilty by the court.

Firstly, isn’t the bail amount excessive and punitive? Why is this considered “fair” or “reasonable”? The accused was told by an officer of the court that there are cases where the bail is even higher!

In fact, before court started, he was advised by a police personnel in the court to plead guilty, if not he would have to post bail of RM2,000 as the court was very strict. Let it be clear that there is no issue with the court being strict. The question is hasn’t strictness to be tampered with fairness, and what’s the logic behind a bail 250% higher than the maximum fine provided by law?   

Secondly, in case the person does not attend court and the bail is forfeited, is it right to penalize him to a tune of RM5,000 when the maximum penalty is only RM2,000?

What moral (if not also legal) right has the government, through the court, to take an additional RM3,000 up and above the maximum penalty provided for the offence?  

Is there any principle of law which extends the court’s “discretion” to do this? Is it not ultra vires the Constitutional provision that no person shall be deprived of his life or personal liberty (in this case depriving him of RM3,000) save in accordance with the law? In commercial transactions this would amount to unlawful enrichment.

The accused was not asked if he had anything to say about the amount of bail the court wanted to set. He had travelled over 300km, interstate, on his own, to plead “not guilty” to the traffic charge and was not brought to court in handcuffs by any law enforcement agency. He was not a flight risk. Yet the bail imposed was a bond with surety and security, 250% up and above the maximum fine for the offence, if found guilty!

Even if the court felt, for reasons known to it, that he might not appear in court and it was therefore necessary to ensure he does not escape the maximum penalty, that only justifies a sum of RM2,000 and not RM5,000.

Courts no doubt have the discretion about imposing bail. In his paper “Bail and the amount of bond”, Ikram Abdul Sattar of IIUM lists four categories of bail: personal bond with surety; personal bond without surety; bond with surety but without security and bond with surety and security.  

P. Sundramoorthy of the Research Team on Crime and Policing at USM, in an article titled “Bail is not about guilt or innocence”, (NST July 4, 2016), says:

• A person is innocent until proven guilty
• The bail amount must be reasonable and is not meant for punitive purposes, similar to a fine imposed upon a person’s conviction,
• In recent media coverage of high profile cases, bail appears to symbolize judgment, and serves as a proxy for guilt and punishment.
• It seems that, as per media reports, denying bail or an excessive bail amount has become a way of condemning the behavior or actions that a person is alleged to have engaged in or is guilty of.

Is a simple traffic offence “a high profile case”? Is pleading “not guilty” to a traffic charge, i.e. in a way questioning the police, such a condemnable behavior?  

The minister for law must explain whether Parliament, in giving discretion to courts on the question of bail, had intended that discretion should not stop at the maximum penalty for the offence but could extended to any amount, even way beyond the penalty for the offence, at the “discretion” of the court?

If so, what is the rationale for giving courts a blank cheque on bail?

If not, shouldn’t the law or rules of court be amended to limit “discretion” from RM1.00 to not more than the maximum fine for the offence the person is charged with?

The minister for law must also explain how the government, through a court, can justify forfeiting a bond of RM5,000 when the offence carries a maximum fine of RM2,000. Even banks that auction off properties to recover bad debts have to refund any excess from the auction to the borrower. – September 4, 2017.

* Ravinder Singh reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.