by Alex Anton Netto
Published January 8, 2017
We hear this phrase in almost all crime-based dramas/series:
“…The accused is released on bail.”
Bail is usually requested by defence lawyers in court. Fast forward, and we would then see the accused walking out of court after having been charged.
So what exactly is ‘bail’, and is this avenue available to all accused persons in criminal proceedings in Malaysia? In summary:
It is a court mechanism used to secure an accused person’s temporary release.
Money is usually lodged with court to guarantee his subsequent appearance.
If the accused person obtains bail, he is set ‘free’ after he has been formally charged. Though released, he must still attend all upcoming court hearings. If he fails to do so, that bail will be revoked. The accused will then have to spend his days behind bars until the full disposal of his case.
Bail can only be granted in situations where there is a bailor present to post the bail.
Who is this ‘bailor’, and what does he or she do? It can be the mother, father, uncle or a close friend of the accused. They would pay a sum into court (which amount will be determined by the judge) to secure the accused’s release.
Upon release, should the accused fail to attend any of the court hearing dates, the judge will call the bailor to explain the accused’s absence. If the court deems the bailor’s explanation unacceptable, the bail sum will be revoked and a warrant of arrest will be issued against the accused, who would then be required to immediately present himself at the nearest police station for him/her to be arrested.
Three categories apply when we consider bail: ‘bailable offences’, ‘non-bailable offences’ and ‘unbailable offences’. Allow this writer to explain the difference:
‘Bailable offences’ are those offences where the option of bail is made available to the accused as of right. Example offences: when the accused is charged with impersonating a public servant or charged with voluntarily causing hurt.
Confusingly, and notwithstanding its name, bail is actually sometimes available for ‘non-bailable’ offences. This is where the accused is entitled to bail, but the discretion to grant it is left to the court. Example non-bailable offences: rape, and hostage-taking.
‘Unbailable’ offences are those offences for which the accused does not have the option to post bail at all, and for which no bail application could be entertained. These are usually offences punishable with death or life imprisonment; e.g. drug trafficking, kidnapping, and murder.
This writer places a caveat: the court always retains its discretion as to bail. The court may at any time deny bail, even for bailable and non bailable offences. Among the usual reasons for refusing bail: where the accused may abscond upon being released, or when the accused has the potential to tamper with witnesses.