Professional Documents
Culture Documents
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
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
Sureties
- Sureties may surrender the accused to the Court before the date assigned and free themselves from further
responsibility: s.358 CPC
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
- � BUT EXCEPTION:
o High Court’s inherent power under equivalent of our s. 4 CPC.
Talab Haji Hussain v Madhukar Purshottam Mondkhar AIR 1958 SC 376 – cancellation
of bail in bailable offence because harassed witnesses while on bail
o For Sub Cts
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
o � 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.
- 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.
- 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:
1. easiest is cash bail where the person deposits a sum of money as security
2. 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
- 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
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 non-
bailable 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
Imposition of Conditions
Justification?
- Court has power to impose fair and reasonable conditions to secure attendance.
- 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.
- 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.
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
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
- 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.
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.
Relatives
There are no restriction on relative standing as sureties. They are very highly desirable.
Foreigner
1
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)
The CPC does not disqualify a foreigner from standing bail. If the proposed surety is a non-
Singaporean, the Court has to be satisfied that the surety has sufficient funds/ property in
Singapore for the bond to be enforced.
Age
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.
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.
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.
Accused Persons
He will not be allowed to stand as surety.
Bankrupt
All undischarged bankrupt cannot stand as sureties.
Bailor
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.
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.
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.
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.
- � 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.
- � 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
� 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
Whether the security imposed will ensure the attendance of the appellant before the
appellate court.
o 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
o 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
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
- � 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)
- 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
appeal on the matter of bail was incompetent to be laid before this court and therefore, should be
rightly dismissed.
- � 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
- => 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.
- 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.
- 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.
- 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
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
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.
o The court is not obliged to exercise its discretion to backdate
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.
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.
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”.
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.
o Factors which the court takes into account when deciding whether to backdate a custodial
sentence
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.
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.
- � 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.
- � 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.
o � 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