Basically there are two types of bail –

(i) police bail; and

(ii) court bail.

Police bail is granted when investigation cannot be completed. Instead of detaining the suspect longer, police bail is granted to ensure that the suspect will appear at the police station and report to the investigation officer at the appointed time. Usually, police bail takes the form of a bond by the surety without securities being furnished.

On the other hand, court bail means the release of a person from custody of the detaining authorities upon security being given for his appearance in Court on an appointed date.

Whether court bail will be granted would depend on the nature of the offence. For purpose of bail, offences are classified under (i) bailable (ii) non-bailable and (iii) unbailable offences. A bailable offence means bail has to be offered as of right. The court has no choice but to offer bail. Non-bailable means the court has a discretion to grant bail and when an offence is described as unbailable, no bail will be offered. Examples of bailable offences are voluntarily causing hurt, cheating and defamation. Examples of non-bailable offences are rape, theft, infanticide and causing grievous hurt by dangerous weapons or means. For penal code offences, a complete list of bailable and non-bailable offences is found at column 5 of the First Schedule of the Criminal Procedure Code.

Bail will not be granted in unbailable offences. These are offences punishable with death or life imprisonment for instance drugs trafficking, murder, or kidnapping punishable under the Kidnapping Act.

However, there are exceptions and bail may be offered for any person under the age of 16 years or any woman or any sick or infirmed person accused of such of offence.

Conditions may be imposed in granting bail (only in respect of non-bailable offence) such as requiring the accused person to surrender his passport. Failure to comply with the condition imposed may result in an accused person being remanded until trial.

The purpose of bail is not to punish the accused person but to merely secure his attendance in Court on a given date. Thus the Court will normally take into account the following factors in deciding whether bail ought to be granted: –

  • The nature of the offence with which he is charged;
  • The apparent possibility of conviction;
  • The likely sentence;
  • His family lives and relationship within the community in which he lives;
  • His previous criminal record (if any);
  • His reputation, employment status and monetary conditions

A bail once granted may however be revoked if there is clear evidence that the accused person is interfering with the course of justice for example the destruction of evidence or tampering of witnesses.

Extracted from The Malaysian Bar