FEB 15 — More than 20 years ago in 1998, extradition proceedings under the Extradition Act 1992 against one Michael Lee were commenced in the Sessions Court at Kuala Lumpur. Michael had earlier been arrested on a warrant of apprehension issued by a Magistrate.
Pending his extradition, Michael applied for bail to the Sessions Court judge, not once but twice. He was unsuccessful on both applications. He followed up with another bail application to a High Court judge. He was again unsuccessful.
Undaunted, he pursued for bail yet again with another application to another High Court judge. Justice KC Vohrah, before whom the application was heard, said:
“An application for bail can be made to the High Court in any event of an unsuccessful application in any subordinate court, without resort to an appeal to the High Court against the refusal to give bail (see s 389 of the Criminal Procedure Code (CPC) and Sulaiman bin Kadir v Public Prosecutor [1976] 2 MLJ 37).
“There is persuasive authority (see the Singapore case of Mohamed Razip & Ors v Public Prosecutor [1988] 1 MLJ 84) and it is a prevailing practice that there can be renewed application for bail in the High Court, provided that the consideration of the court on the reapplication for bail should touch on a material change of circumstances and not circumstances which were considered in the application before the earlier court, as to do that would surely be to constitute the later court of coordinate jurisdiction as an appellate court.”
The above shows that an application for bail, which is an interlocutory order, can be submitted repeatedly. Importantly, when an accused is denied bail for a non-bailable offence (where bail is granted at the discretion of the court) in the subordinate court – Magistrate’s Court or Sessions Court – a course of action that is open to the accused is to apply by way of a notice of motion to a High Court judge under section 389 CPC.
The High Court judge has absolute discretionary power to direct that an accused be granted bail. In that case that was referred to by Justice Vohrah, Sulaiman bin Kadir v Public Prosecutor, Justice Harun said:
“In my view, if a person should not be kept in custody for a moment longer than is necessary then the speedy procedure of section 389 is obviously indicated. But there are other compelling reasons why section 389 is the appropriate procedure.
“That section gives the High Court absolute discretionary powers to vary bail from time of arrest right up to the time of conviction. It may grant bail when bail has been refused. It may reduce the amount of bail if the amount is excessive. It may increase the amount of bail if the amount is insufficient. But it may not order custody if bail has been granted.”
In short, in an application for bail to the High Court judge arising out of a refusal to grant bail in the court below, the provisions of section 389 CPC apply and the application before the High Court judge is proper.
This despite the subordinate court being correct in refusing bail as the court has no power to grant bail if there are reasonable grounds for believing that an accused person has been guilty of an offence punishable with death or life imprisonment.
There must, however, be exceptional and special reasons before the High Court judge could exercise his discretion and grant bail.
All is not lost, therefore, for the raped teen who allegedly stabbed newborn son charged with murder and who was denied bail by Magistrate Tengku Eliana Kamaruzaman.
The “speedy procedure” of section 389 CPC is available.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
