6 Bail

BAIL 3 types 1. investigations take time – instead of charging him, police will release on bail pending decision whether to charge – bail pending charge 2. charged in court but not yet sentenced or convicted – bail pending trial – court bail 3. bail pending appeal -

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

Purpose To secure attendance Not intended to be punitive - S.353 CPC – “The 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 arrested.” See Soo Shiok Liong v Pendakwa Raya [1993] 2 MLJ 381: o 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 m1,000,000 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 $6.7m. 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 case. Holdings: 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 $200,000 and two sureties. Sureties Sureties may surrender the accused to the Court before the date assigned and free themselves from further responsibility: s.358 CPC Sureties may apply to have bond discharged. 358. —(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 surety’s 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? S.2 CPC - definition of “bailable offence”: o “an offence shown as bailable in Schedule A or which is made bailable by any other law for the time being in force, and ‘non-bailable offence’ means any other offence” Schedule A CPC, 5th column o Penal Code offences o Offences against Laws other than the Penal Code

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Punishable with imprisonment for less than 3 years – bailable (unless statute states otherwise)

Bailable Offences S.351 (1) CPC: o When any person other than a person accused of a non-bailable offence o is arrested or detained without warrant by a police officer or appears or is brought before a court o 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 bail, o 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. - => Bail is as of right, not as a favour – 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

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BUT EXCEPTION: o High Court’s inherent power under equivalent of our s. 4 CPC.

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

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Bachchu Lal v State AIR 1951 All 836 – sub court tried to preserve such pwier to themselves (but not decided in sg) – shld have though Michael Raymond Taylor o no express requirement that arrest is a precondition for bail in bailable offences o Magistrate has power to set bail for a person who appears in obedience to a summons. Wong Kim Woon o Court can revoke or vary the bail granted on the ground that the bail was breached o Court can also refuse fresh bail for a bailable offence if there had been a breach of prior bail for the same offence o 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 For non-bailable offences, bail is at the discretion of the court, except for capital or life imprisonment cases. Bail generally allowed S.352(1) CPC: o 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 he may be released on bail by any police officer not below the rank of sergeant or by that court, o 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 life

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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 “reasonable grounds for believing”

R v. Ooi Ah Kow Facts: 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 bail. Holdings: (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 Kadir Facts: 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 389. Holdings: (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.

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what is reasonable ground for belief?  Sunny Ang (Ang Sunny v PP [1965 – 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-bailable; b) secondly, such offences are extremely grave; c) 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:

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easiest is cash bail where the person deposits a sum of money as security 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

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usually when person is charged in court, that is sufficient to constitute reasonable grounds alternative position taken in PP v. Dato’ Balwant Singh by Malaysian courts

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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 charged. Holdings: Held , ordering the accused to be enlarged on bail in the sum of RM500,000 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 `appears 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 `at 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 nonbailable 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 RM500,000 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 Court’s powers to vary bail. 354. —(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 Magistrate’s 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 s.352 CPC extends to both High Courts’ and Subordinate Courts’ power to extend bail o Bail in bailable offences ought to be granted as of right and that in such cases, ‘bail has to be offered’ o Justice Kan: ‘reasonable grounds .. .cannot be listed exhaustively, there must be some material for finding of the existence of reasonable grounds to be based upon …, which if assumed to be true would point towards a person’s guilt’ o Kan J explained that the effect of s.354 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 s.352 CPC against the grant of bail where the offence involves life imprisonment or the death penalty o In Selvamsylvester, copies of accused person’s incriminatory statements were supplied to defence counsel. This constituted the “reasonable grounds” required by s.352 CPC

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Factors to be considered in granting/refusing bail o Gravity of offence – PP v Mat Zain 1948-9 – in non bailable cases bail is at discretion of court and in exg discretion court must consider gravity of crime

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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 Severity of punishment that might follow - the more dangerous, the more likely of re-offence/ absconding Accused’s ties to Singapore (family, assets); his character, means and standing Danger of absconding Danger of offence being continued/repeated Nature of evidence in support of the charge Danger of witnesses/evidence being tampered with Where refusing bail would prejudice preparation of defence Capital or life imprisonment cases

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“… 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 life.” “Reasonable grounds”

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Mere fact that he faces a charge carrying such a punishment – sufficient? See above

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S Selvamsylvester v PP [2005] 4 SLR 409; [2005] SGHC 158

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Mere fact of charge is insufficient applicant tried unsuccessfully to obtain bail 7 charges – carnal intercourse with boy and molest of boy accused sought bail, charged with offence punishable with life imprisonment – qn as to whether entitled to bail s352 – shall not be so released if reasonable grds tt guilty of offence punishable with death… reasonable grds:? – mere fact that faces such charge sufficient?

Cf R v Chan Choon Weng [1956] MLJ 81

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Justice kan held that must be some material which if assumed to be true, would point to towards the person’s guilt o Admissions/confessions o Medical/scientific evidence (DNA, fingerprints) o Eye witness evidence o Circumstantial evidence

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

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so held that wld not allow accused to go on bail

justice kan went on to consider – if had discretion to grant bail, wld he have granted – 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 – 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 – 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 Factors for consideration in setting quantum (Soo Shiok Liong) o Nature & gravity of offence; severity & degree of punishment o Quantum should be higher in non-bailable offences o 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 punitive o Not prohibitively high to have effect of incarcerating the accused before he is convicted o Basis of criminal law is that person is innocent until proven guilty o Likelihood of absconding if bail quantum too low o Whether passport surrendered - the surrender of the accused’s international passport should go to reducing the quantum of bail o Whether accused presented himself at police station and cooperated with police o 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 bail; o 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 crime; o => the application of the court’s mind in considering the above factors ought to be reflected in the judge’s 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 – note bail amount and number of sureties $50,000 With One Surety – one person must come up with entire amount $50,000 With Two Sureties / In Two Sureties = $50K x 2 OR $50K ÷ 2 ? Case law vs court terminology – case law: o case law - 50000 divided by 2 o court terminology – yes – five in two can be the same as 10000 in one (judge made order based on counsel’s submissions) - rule depends on context! There is no rule – listen carefully to contexts of order

Imposition of Conditions Justification? Court has power to impose fair and reasonable conditions to secure attendance.

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PP v Dato’ Mat [1991] 2 MLJ 186 o Permissible to impose fair and reasonable conditions when granting bail in non-bailable offences o What about bailable offences? – conditions also inherent o Facts: The respondent had been charged for criminal breach of trust and had been offered bail in the sum of $400,000 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 accused’s 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.

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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 & 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 & Anor AIR 1972 SC 484 it was held that the High Court while granting bail can lay down a condition restricting the accused person’s 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.

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Court has no discretion? Does court has same power to impose conditions? Local position (bailable/non-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 => not settled in SG.

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Mandatory conditions S.355(1) CPC: Bond to be executed by person/bail executed by his sureties: person is released on condition that he will attend at designated time and place (eg, police station or court) – bonds usually monetary bonds Bond to be executed. 355. —(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

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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.

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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.

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

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Foreigner • The CPC does not disqualify a foreigner from standing bail. If the proposed surety is a nonSingaporean, the Court has to be satisfied that the surety has sufficient funds/ property in Singapore for the bond to be enforced.

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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.

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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.

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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 firm’s client account.

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Accused Persons • He will not be allowed to stand as surety.

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Bankrupt • All undischarged bankrupt cannot stand as sureties.

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Bailor •

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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

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The CPC provides for sureties standing bail in 2 sections: Section 355 and Section 359

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

Bond to be executed. 355. —(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 sureties. 359. 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. •

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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.

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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 $1,000, the surety need not swear am affidavit. • where the sum is greater than $1,000 but less than $5,000, 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 $5,000, 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.

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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

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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

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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 Sale.2 Share Certificate • The Court is often reluctant to accept them as there will be difficulty in valuation. Even shares of SIA for e.g. 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 sureties’ 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 • Partnership property actually belongs to the partners. It therefore can be used to indicate the financial worth of the proposed surety.

S.355(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. Surrender of passports – midway pt stimes o Not provided for in CPC o Local practice for both bailable and non bailable offences o Passports surrendered in bailable and nonbailable cases whether this practice arises due to court impounding th passport or as cond of bail – see Lim Kiap Kee v PP 1998 1 MLJ 198 as opposed to PP v Dato’ 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 produced. 67. 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 taken. 47. —(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 2

This comment is solely of the author’s. It is not recommended that the reader use this for examination purposes.

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 — (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 S.36 CPC: Person arrested to be brought to Magistrate’s Court within 48 hours of arrest o May be remanded, or granted Court bail o If investigations are not complete, the police can release the accused on Police Bail instead of producing him in court and seeking custody/remand under s. 198 CPC Person arrested not to be detained more than 48 hours. 36. —(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 Magistrate’s Court. - Arrest with warrant o S.50 CPC: Person arrested to be brought before Court without unnecessary delay Person arrested to be brought before court without delay. 50. 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 May be remanded, or granted Court Bail Bail Pending Appeal o

Section 251 CPC: Stay of execution pending appeal. 251. 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.

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Already conviction – found guilty o 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 passed o Might have client serving sentence alrayd and appeal court setting aside sentence with order of acquittal – unnec punishment in tt case o Yeo Eng Siang v PP 2005 SGHC 47

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The appeal process 48 On 26 November 2004, the appellant was sentenced to seven months’ 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 appellant’s 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.

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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 S.248 CPC: District Court or Magistrate’s Court may grant bail to a person who has filed a notice of appeal Discretionary; “special reasons” needed before bail will be granted; for factors to be considered o see Re Kwan Wah Yip [1954] 1 MLJ 146, Ralph v PP [1972] 1 MLJ 242 – “special reasons” needed before bail will be granted; mere fact of notice of appeal given is not sufficient reason o Re Kwan Wah Yip [1954] 1 MLJ 146.1  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.  => 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

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Gravity or otherwise of the offence Length of term of imprisonment compared with length of time it’s likely to take for the appeal to be heard – if term of say 1 mth but appeal in 6 wks, then if make him serve his time then more time than nec – so court likely to grant bail pending appeal – emphasized in both casdes Whether there are difficult points of law involved Whether appellant is a first offender or has previous convictions The possibility of his becoming again involved in similar or other offences whilst at liberty

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Whether the security imposed will ensure the attendance of the appellant before the appellate court. Lim Teck Leng Roland v PP 2001 4 SLR 61 – decision must be supported by gd reasons and burden is on accused to onvince court of his reasons – see above 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

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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. In practice, bail amount is normally increased after conviction – general rule of thumb – will ask for double, and for defence to ask for lower bail

High Court’s Power to Vary Bail - Section 354 CPC: 354. —(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 Magistrate’s 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

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“[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 more.” o Mohamed Razip v PP [1988] 1 MLJ 84 o Not a judgment or sentence; not an order of finality (eg, of conviction or acquittal) – a nonappealable order Thus, there is no appeal from a refusal of bail - Therefore the CA cannot hear an ‘appeal’ from an order of bail o 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. What to do? o If trial court refuses bail pending appeal o Apply by Notice of Motion to the High Court for bail under s.354 CPC or to Court of Appeal under s. 51(2) SCJA

Appeal not to operate as stay of execution 51. —(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 nonperformance 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 — (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.

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Once an application for bail has been rejected, a second or subsequent application is possible, but not likely to be granted unless: o Material change in circumstances o New facts have since come to light (Mohamed Razip)

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see newspaper article April 26 2003: “allowance just $600 but priest has condo and $1m cash” o Joachim kang hock chai – HC – man of substantial assets – therefore court shld not reduce bail fr 2 million set. Kang accused of 14 counts of embezzling 4.33 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 kang’s bail to 1 million but ordered that he report weekly to commercial affairs department (CAD) Dato’ 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 appellant’s 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 ‘decision’ 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

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appeal on the matter of bail was incompetent to be laid before this court and therefore, should be rightly dismissed. Bail & Backdating of Sentences Every imprisonment sentence takes effect from day it was passed, unless court otherwise directs - s.223 CPC o Can backdate sentence (discretionary) – by sentencing court Power to backdate - Section 223 CPC Date of commencement of sentence. 223. 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.

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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 along o rarely done in HC but common practice in subcourts

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=> take note when ur client first put in remand because this is date when court will backdate the sentence o Tang Kin Seng v PP [1997] 1 SLR 46 (para 115-119)– 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.

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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.

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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 & 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.

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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.

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Mani Nedumaran & 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 month’s imprisonment prescribed. He refused to backdate the sentences to the date when the appellants were first taken into remand. Both appellants appealed against sentence.

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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 accused’s 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. 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 court’s 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. 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) – general factors on whether court will backdate a sentence o The court’s power to backdate a custodial sentence is always discretionary

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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

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Thus, the court’s 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. The court is not obliged to exercise its discretion to backdate

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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 … The above does not mean that a custodial sentence must invariably be backdated to the date when an accused was taken into remand.

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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.

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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 offender’s custodial sentence because it was of the opinion (at 280) that “the five months’ imprisonment already served should be part of the punishment given the circumstances of [the] case”.

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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 – the onus of bringing such a fact to the court’s attention must rest on him. It is pertinent that s 103(1) of the Evidence Act (Cap 97) states: 103. — (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. Factors which the court takes into account when deciding whether to backdate a custodial sentence

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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.

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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 W/A issued if person does not appear - s.360 CPC Arrest on breach of bond for appearance. 360. 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.

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Bailor to show cause why bond should not be forfeited - s.361(1) CPC Procedure on forfeiture of bond. 361. —(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 – Villiamai v PP 1962 • in Valliamai v. PP, the High Court in considering the Malaysian equivalent of s.361(1) CPC held: “ upon sufficient cause shown, forfeiture may be waived altogether, s.361(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 enforced”

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burden on bailor o re ling yew huat 1990 – burden of satisfy court of relief against full penalty or tt full sum shld not be forfeited lies with surety seriousness of standing bail for another conduct of the bailor is relevant 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 accused o Consideration of efforts taken to secure the attendance by the bailor in Ramlee v. PP, the Magistrate estreated S1,000 out of the bond of $2,000 because he felt the bailors’ explanation were not satisfactory o on appeal to High Court, it was held, inter alia that the “learned 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 cause”. The order of the Magistrate was accordingly quashed.

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Adoption by Karthigesu J of the principles propounded in R v Uxbridge Justices ex parte Heward Mills [1983] 1 All ER 530: (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. (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. (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. - “The court must consider the extent to which the surety was at fault.” “The court’s discretion under s 361(4) … was most important as it gave the court the opportunity to weight the bailor’s 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 all.” PP v Kam Weng Nam o bailor took no steps at all to ensure the accused’s attendance o full amount of bail forfeited PP v Pang Tye Man o bailor took the trouble to be present in the court punctually when the accused’s case was mentioned o intended to remind the a to attend court Doanne Neville Stood bail for $400,000 – monies from wife & friends Accused convicted on 10 charges of cheating – out on bail pending appeal. White collar crime. Further offences stood down during trial. 2 bail bonds – 1 for his appeal, 1 for his 2 stood down own charges Surety :a) contacted accused 2 weeks before hearing, b) accused disappeared 2 days later, c) surety lodged a police report No cause shown as to why sum should not be forfeited Full sum forfeited

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S.361(4): Court has discretion to remit part of the penalty PP v Ram Ghanshamdas Mahtani & Anor [2003] 1 SLR 517 o Accused convicted of illegal employment o Bail pending appeal put up by accused’s wife and brother-inlaw; accused absconded after obtaining leave to travel outside jurisdiction o CJ affirmed prima facie position that the bail amount will be forfeited in full o Case not exceptional for court to modify prima facie position and exercise discretion to remit whole or part of bail o 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 attendance o Bailors did not expend every effort to search for accused when he failed to return; merely making a police report was insufficient

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Orders made under s.361 are appealable: s.362 (362. All orders made under section 361 by any Magistrate’s Court or District Court shall be appealable.) 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 `accused`) who was charged in the district court for outraging the modesty of a stewardess on board an SIA flight. The

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cash bail furnished was $15,000. 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 $15,000 cash bail was provided by the accused. The district judge ordered the forfeiture of $10,000 out of the entire $15,000. The remaining $5,000 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 $15,000 should not be forfeited and the district judge had erred in not forfeiting the entire sum of $15,000. PP has locus standi to appeal against an order made under s. 361 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. Funds for bail were provided by accused person (and not by bailor) – entire amount should have been forfeited since to remit the amount to bailor would be allowing him to profit from accused’s failure to attend court Held: allowing the appeal, “Show cause proceedings constitute a continuation of the original criminal proceeding, and the Public Prosecutor is a party to proceedings involving bail.” “Mahadi 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 … it would be wrong to remit any part of the bail bond to him as (a) it would allow him to profit from the accused’s 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 hearing.” The forfeiture of $10,000 and the remittance of the remaining $5,000 to the respondent would have resulted in the respondent receiving $5,000, which clearly did not belong to him. Moreover, to remit the $5,000 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 $15,000 through the respondent, when he had probably intended all along never to return 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 $15,000 cash bail was provided by the accused himself, it was clearly wrong to remit any part of the $15,000 upon his failure to attend court. In the circumstances, the respondent had not shown sufficient cause why the whole amount of $15,000 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 accused’s attendance in court.