OCTOBER 23 — In a law tutorial of a recent past, the following facts were presented to a class of fourth year law students:
“Two accused persons are facing trial for charges for criminal breach of trust. Both have been granted bail with conditions imposed. One of the conditions requires that the accused persons surrender their respective international passport.
The first accused has applied for the temporary release of his international passport to enable him to make an overseas trip to seek medical treatment. The second accused has followed suit with his own application for the temporary release of his international passport to enable him to perform his duties outside Malaysia to manage operational, financial and administrative matters for the group of companies outside of Malaysia of which he is a vice-president.
Unlike the first accused, the second accused has a conviction against him in an earlier case for which conviction he has been sentenced to 5-year imprisonment and RM7 million fine. He is appealing against conviction and sentence. He has also been granted a stay of execution of the sentence, and bail pending appeal.”
As the trial judge, how would you decide? The students were asked.
The answer lies in the principles governing such application. The grant or otherwise of the applications before the court for the temporary release of the international passports is a matter of an exercise of judicial discretion.
In considering an exercise of a judicial discretion, regard must be had to the established legal principles and an assessment of the facts and evidence as well as the prevailing circumstances as justice of the case may require.
If the facts and evidence fall short of the necessary requirements, the basis for an exercise of the discretion will be wanting. If the discretion is still exercised, then it is one which is exercised without regard to the legal parametres or one which is not exercised judiciously. (see the recent case of Tan Bee Geok v Public Prosecutor )
The court can only exercise that discretion if sufficient basis for it can be shown.
In granting bail — be it bail pending trial or bail pending appeal — and imposing conditions of bail, it is trite that the court is vested with the power to attach such conditions as may be necessary to secure attendance of the accused person. These may include conditions relating to the surrender of the accused person’s international passport.
Being part of the conditions in granting bail, the court is also equipped with the power to vary the terms relating to the surrender of the accused person’s international passport.
In the facts above, both accused persons’ applications are similar — for the temporary release of their international passports. But they are not alike.
The first accused person enjoys a presumption of innocence. He is innocent until proven guilty.
The second accused person has a conviction and sentence against him.
In Tuan Mat bin Tuan Lonik v Public Prosecutor , Court of Appeal Judge Suriyadi Halim Omar (as he then was) in delivering the judgment of the Court said:
“Sentence is the last stage of a judicial process in a criminal case, and will inevitably take place at the end of a full-blown trial or after a plea of guilt has been recorded. In both situations prior to the sentencing process a conviction must be recorded first.”
A conviction at the end of a full-blown trial must be taken, until the contrary be shown, to have been properly conducted and without error of law. In Re Kwan Wah Yip & Anor  Justice Spencer Wilkinson said:
“Once a person has been convicted by a court of competent jurisdiction it must be assumed, in the absence of any obvious defect on the face of the record, that he has been rightly convicted unless and until the conviction is set aside.”
There is no longer the presumption of innocence. The conviction stands now as a record against the convict.
This simply means that once a person is convicted he is expected to serve forthwith the sentence imposed upon him. (see the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor )
The question therefore is: under what circumstances a stay of execution is granted? And are there exceptional circumstances “which would drive the court to the conclusion that justice can only be done by the granting of bail pending appeal”?
Public confidence in the administration of justice requires that a conviction and sentence be enforced. And the public interest may require that a person convicted of a very serious offence be denied bail because bail pending appeal does not rest on a presumption of innocence, even though the possibility that the appeal may ultimately lead to an acquittal is a prerequisite to any logical entitlement to bail.
It cannot therefore be said that the entitlement to bail pending appeal should be the same as the entitlement to bail pending trial.
That is why the Court of Appeal in the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor  said that a distinction should be made between pre-conviction and post-conviction application for bail. The latter does not allow a convict to benefit the presumption of innocence. Instead, a conviction resulting from a trial must be taken, until the contrary be shown, to have been properly conducted and without error of law.
On that note, the applications for the temporary release of the accused persons’ international passport cannot be treated alike.
In the case of Tan Bee Geok v Public Prosecutor , the High Court said:
“The risk of the [accused] absconding and defeating the impending appeal cannot be ruled out. In considering this risk, I am of the considered view that this Court should balance the interest of the [accused] with public policy considerations.”
Having considered the accused person’s application for the temporary release of her international passport, the High Court dismissed the application.
If the accused person is a convict, his or her application to vary the condition or conditions of bail pending appeal cannot be treated like an application by an accused person who has a presumption of innocence.
His or her conviction which stands until and unless it is set aside must be balanced with public policy considerations.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.