IN our criminal justice system, the purpose of bail is to primarily secure the attendance of an accused on a certain day and place to answer the charge against him.

However, the type of bail imposed to an accused is determined on whether the accused was charged with a bailable or non-bailable offence, defined in section 2 of the criminal procedure code.

When the court decides to grant bail, it must decide on the amount. Section 389 of the CPC states that the amount must be sufficient to secure the attendance of the person arrested, but shall not be excessive, as held in the case of Manickam & Ors v Public Prosecutor [1982] 1 MLJ 227.  

The sureties are to ensure the attendance of the accused person, failing which the court may issue an arrest warrant and forfeit the bond that was paid by the surety (bailor).

As such, the bond amount must be paid before the accused can be released from custody. Failing to bring in a surety (bailor) detains their right to be released until they can provide a surety.

Bail is not designed to be punitive in nature, but merely warrant the appearance of the applicant at the place, date, and time stated in the bond.  Hence, the bail amount stated should be reasonable.

If the bail amount is high, it will cause difficulties for the accused to find sureties (bailor) to post bail. In the case of Soo Shiok Ling v Pendakwa Raya [1993] 2 MLJ 381, the court held as follows :

“The question for consideration in our instant case is whether bail of RM1m in two sureties is adequate or too excessive in the light of the circumstances herein. Applying the principles adumbrated above to the facts of this case, it appears to me that the bail of RM1m has the unfortunate effect of punishing the applicant before he is proven guilty of the charges against him. This is evident from the fact that he is unable to find the two sureties to secure such bail. As a result he has been on remand in prison from 20 February 1993 to date. The amount of money fixed by the court as bail is not the sole consideration to secure the attendance of an accused person in court. A wealthy accused may be too happy to deposit RM1m in court and then abscond from the country and does not attend the trial. On the other hand, a person of meagre means, who cannot raise bail of RM1m may be kept in the remand prison for months before his trial and in the end he may be found not guilty.”

To date, marginalist victims have found it difficult to post bail, in which they end up being in prison while waiting for their case to be heard or for them to secure a bailor.

It is a fundamental principle of natural justice that every person should be accorded the right to be heard, and are deemed “innocent unless proven guilty”.

Perhaps bails come at a cost! – AFP, April 24, 2023.

* Matilda George 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.