What's life REALLY like when you're out on bail in Malaysia?

In many movies that we’ve seen, it’s always the rich bad guy who gets arrested by the cops and gets someone to bail him out. But then right after that, he goes on to have wild party in Ibiza and somehow just gets away with his crime altogether. While it may seem like the usual scene in movies, it’s not the case in reality. In fact, it’s quite far from it. 

The term bail has been commonly used be it in movies or in real life. Bail is basically getting someone to pay money to get you out of jail after you’ve been arrested. Though, this release is temporary till your case goes on trial and if you’re found to be guilty, back you go into the cells!  Yet, while many of us only have an impression of what being on bail is like from movies, here’s what it’s really like.

But first...what is bail?

Usually if you’re charged with a crime, you would have to stay in jail until the day of your trial. In some situations, the law will allow you to go home during this period. Essentially, bail is the temporary release of an accused person who is awaiting trial in exchange for money. In case you didn’t know what an accused person is, this is the stage where they are charged with a crime but not yet tried in court. This would mean that they have just been accused of a crime and are still presumed to be innocent unless proven guilty in court.

Though, you will need someone to post your bail on your behalf because you cannot do it yourself. This is because the person who posts your bail (aka the bailor) has the additional duty to make sure you actually show up in court. 

However, bail cannot be posted for every offence. There are some situations where you are automatically given the right to be released on bail, some situations where you absolutely can’t be granted bail or situations where the judge gets to decide whether to grant it to you or not. This all depends on the type of crime that you have been charged with. This then can be divided into 3 different categories: 

Bailable offences are offences where an accused person must be allowed to be given bail as of right as provided under Section 387 of the Criminal Procedure Code (CPC). This means that courts are not allowed to deny bail for bailable offences. These offences are often minor ones and carry lighter punishments. An example would be assault under Section 352 of the Penal Code.

Non-bailable offences are offences where generally bail is not allowed but the judge has the choice whether to grant it or not as seen under Section 388 of the CPC. They are usually offences which are more serious in nature. Getting bail depends on a few factors such as:  

• whether the offence committed is punishable by death or life imprisonment
• whether there are reasonable grounds to believe the accused is guilty or not
• whether the accused is under the age of 16, a woman or has any illnesses.

Unbailable offences however, are offences where bail is absolutely not allowed and the court has no say in the granting of it either. These offences are usually at the height of serious ones. One example would be drug trafficking under Section 39B of the Dangerous Drugs Act 1952 which carries the death penalty.

[READ MORE: In Malaysia, you can pay bail to go home instead of going to jail. Here's how it works]

The judge can place additional conditions on you

The Criminal Procedure Code doesn’t really say that a judge can impose conditions on your bail/release, but past court cases have said that it can be done.

But of course, judges can’t simply impose conditions on bail like that. It’s only in certain situations that they can do so. These conditions can only be imposed in non-bailable cases where the judge is allowed to decide if an accused should be out on bail or not. For bailable cases, where bail is already a given right, no conditions can be imposed.

The most important term though is that you absolutely have to attend all court dates given to you if you’re out on bail. This is regardless of whether you have committed a bailable or non-bailable offence.

The court could also order for an electronic monitoring device to be attached to you as provided under Section 388A of the CPC. This actually applies to both bailable and non-bailable offences. So while conditions generally can’t be imposed on bailable offences, this section allows for the court to choose whether or not to order an electronic monitoring device to be attached to an accused person no matter if it’s a bailable or non-bailable offence.

One thing the judge might take into consideration is how much of a flight risk you are and whether you have the resources to leave the country. That being said, your passport may be seized to prevent you from leaving the country. There have been cases where the accused’s passport have been seized as seen in Zulkiflee bin Hj Hassan v PP [1987] 2 MLJ 527 and in the even more recent Zahid Hamidi’s corruption case. As the former deputy prime minister is facing multiple charges of money-laundering, criminal breach of trust and corruption, he was released on bail and had his passport seized. However, he had recently appealed to the court to get his passport back for him to be able to perform umrah. The court rejected his appeal stating that while the performance of umrah is highly recommended during the fasting month, it is not compulsory. The prosecution also added in that while the government does not intend to prevent one from performing his religious obligations, the former deputy prime minister is facing very serious charges and shouldn’t be allowed to leave the country. 

Though, there have been cases where not one but multiple and even stricter conditions have been imposed in order for bail to be granted. In the case of PP v Dato Balwant Singh (No.1) [2002], an 80 year old lawyer (being Dato Balwant Singh) was charged for the murder of a despatch rider after shooting him with his gun. The conditions that the court had imposed on him were such as: 

• to surrender his firearm and the licence relating thereto to the police immediately
• passport to be surrendered to the court
• to report to the police once in two weeks
• to remain indoors from the hours of 6pm-8am
• not to be present at any open public place or attend any public functions except for religious and family activities
• not to leave Kuala Lumpur and Petaling Jaya without the leave of court

But restrictions aren’t the only thing they can do to you because….

Your bail can be cancelled even after being released

The court can actually cancel your bail in certain situations for both bailable and non-bailable offences.

While the CPC does not specifically state for the cancellation / revocation of bail for bailable offences, the case of Wong Kim Woon v PP [1999] 5 MLJ 114 held that bail can be revoked for bailable offences if a vital term has been breached. In this case, the accused had failed to appear in court on a date that was given and so had breached a vital term of his bail. The court then had revoked his bail.  So the courts may revoke bail in bailable offences provided that the accused is first given a chance to explain on why the bail granted should not be cancelled/revoked. So you probably wouldn’t want to skip your court date to catch up on your Netflix shows. 

For non-bailable offences however, Section 388(5) of the CPC allows the Court to cancel the bail at any time. Besides non-compliance of bail terms, it could also be due to any factors that would jeopardize the case such as the harassing and tampering with witnesses. This was alleged in the case of Phang Yong Fook v PP [1988] 1 MLJ 267 where the accused was charged with criminal breach of trust. The prosecution had applied for the bail to be cancelled on the basis that the accused was harassing witnesses. Though the application to revoke the bail was set aside as there was not enough evidence. 

So yes while bail gives you the opportunity to live a somewhat normal life while waiting for your trial to begin, it doesn’t work the same way in the movies where you could be soaking up the sun and partying in Ibiza. You could though be soaking up crime movies or tv shows on Netflix and imagining you were living that movie bail life.