The High Court’s Latest Bail Decision: Overdue for 50 Years?

The recent decision of Justice Kan Ting Chiu in Selvamsylvester v Public Prosecutor¹ should be of considerable interest to criminal law practitioners. In some aspects, this is indeed a decision that has been overdue for more than 50 years.

The Facts in Selvamsylvester

The accused was charged with having committed seven offences under the Penal Code² for outraging modesty (s 354), acts of gross indecency (s 377A) and engaging in carnal intercourse (s 377). The s 377 charges provide for punishment for life imprisonment or a term of 10 years’ imprisonment. Applications for bail at the Subordinate Courts having been refused, an application was made by criminal motion to the High Court, under s 354(1) of the Criminal Procedure Code³ (‘the CPC’).

In determining the bail application, the High Court no doubt considered the number and nature of the offences the accused was charged with, the fact that the alleged victim is a male infant aged eight years and the accused’s ‘positive statements’ to the police. It is therefore not surprising that bail was refused despite the vigour with which the application was pursued.⁴ What is particularly instructive in the short written judgment of Justice Kan is not the decision itself, but certain pronouncements of law made by the learned judge in the course of his judgment.

Criminal law practitioners should applaud the decision in Selvamsylvester for at least two reasons:

1    It re-affirms the principle that bail in bailable offences ought to be granted as of right. One would have thought it an elementary principle of law, given the mandatory language of s 351(1) of the CPC that any person accused of an offence other than a non-bailable offence ‘shall be released on bail’. The available decisions both in Singapore and Malaysia affirm this.⁵ But some lawyers are apparently bemoaning the fact that, in recent times, it is taking a lot of persuasion to convince a few members of the lower judiciary of this obvious direction of the law. Justice Kan’s reiteration that ‘bailable offences are bailable as of right’⁶ and that in such cases, ‘bail has to be offered’⁷ should, therefore, come as a welcome relief.

2    More importantly, it is the judge’s interpretation of what constitutes ‘reasonable grounds for believing guilt’ under s 351(2) of the Criminal Procedure Code, for purposes of a bail application, that the legal fraternity has been expecting for more than half a century.

Bail in Non-bailable Offences

Bail in non-bailable offences is generally at the discretion of the court.⁸ However, Subordinate Court judges do not have the discretion to grant bail for offences punishable with death or imprisonment for life if there ‘appear reasonable grounds for believing that he has been guilty’ of such an offence. The only exception is for a woman, or a person who is below 16 years of age, sick or infirm.⁹ This is because of the provisions of s 352(1) of the Criminal Procedure Code:

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, he may be released on bail by any police officer not below the rank of sergeant or by that court, 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:

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.

It is important to emphasise that s 352(1) of the CPC does not totally prohibit a Subordinate Court from granting bail in offences punishable with death or imprisonment for life. The lower court is only prohibited from granting bail for such offences if there are ‘reasonable grounds’ for believing that the accused has been guilty of such an offence. The sub-section hence raises two questions:¹⁰

1    What is the meaning of the phrase ‘reasonable grounds for believing that he has been guilty’?

2    How is a court of first instance to determine if there are reasonable grounds for believing guilt under 
s 352(1) of the CPC at the time of his bail application?

Reasonable Grounds for Believing Guilt

For more than 50 years, the Singapore and Malaysian courts have been content with applying the 1952 and 1956 decisions of Spenser Wilkinson J in R v Ooi Ah Kow¹¹ and R v Chan Choon Weng & Others¹² on what constitutes ‘reasonable grounds’ and the proper manner in which such grounds ought to be determined for purposes of a bail application under s 352(1) of the CPC.¹³

In Ooi Ah Kow, Justice Wilkinson stated the following startling proposition:¹⁴

Under section 416(i) [our s 352(1)] a magistrate has no power to release an accused on bail. Because unless there has been at least reasonable grounds of suspicion that the accused had been guilty of such offences he presumably would not have been remanded in custody on the previous occasions. [Emphasis added]

Section 352(1) demands the existence of reasonable grounds for believing guilt before denial of pre-trial liberty by a Subordinate Court. It does not speak of, or even remotely suggest, reasonable grounds for ‘suspecting guilt’, whatever the expression may mean. Even more repugnant to the bail provisions of the law was the presumption by the learned judge of the existence of reasonable grounds merely because the accused had been remanded in custody on previous occasions.

Four years after his decision in Ooi Ah Kow,¹⁵ in R v Chan Choon Weng & Others,¹⁶ Mr Justice Spenser Wilkinson propounded one of the most controversial and illogical rules in criminal procedure in the following terms:¹⁷

In my opinion there is no doubt in law that where an accused is charged with an offence punishable with life imprisonment a magistrate has no power under section 416(1) [our s 352(1)] to grant bail whether that offence is or is not also punishable by death.

That rule, although rightly stated to be ‘an incorrect statement of the law’ in A’dat bin Taib v PP,¹⁸ has nevertheless been affirmed in a number of subsequent decisions by the Malaysian courts. With one recent reservation,¹⁹ it still appears to be good law in Malaysia.²⁰ The Indian courts, on the other hand, have long taken the view that the section requires reasonable grounds, not reasonable evidence. They have further held that this may be established, for purposes of a bail application, by producing in court, materials to indicate the nature of the evidence at hand.²¹ Indian decisions to this effect have been generally ignored by the local courts for more than half 
a century.

Following Malaysian authorities and in the absence of any intervention by the Singapore High Court before Selvamsylvester, the Subordinate Courts in Singapore have maintained that the mere fact that an accused person has been charged with an offence punishable with death or life imprisonment prohibits the court from entertaining a bail application from him. This view has not been seriously challenged in Singapore since the 1964 case of Sunny Ang v Public Prosecutor.²² The Singapore High Court has not considered the matter until the present decision of Justice Kan in Selvamsylvester.

There are obvious reasons why the mere preference of a charge against the accused person is insufficient to indicate the existence of reasonable grounds for believing his guilt:

1    It means that the determination of reasonable grounds for believing guilt is left entirely to the police or other enforcement agencies who have brought the charge and not to the court before which the bail application is being made. This is inconsistent with judicial checks against unnecessary pre-trial detention envisaged by s 352 of CPC. Pre-trial detention can thus be effected sub rosa by merely preferring against the accused a ‘holding’ charge in respect of an offence punishable with death or life imprisonment.

2    It weakens the cherished principle of the presumption of innocence as a charge is merely an allegation by the prosecution that the accused has committed the offence. Indeed, the very purpose of producing an accused person before a Magistrate’s Court for the purpose of a preliminary inquiry is for a Magistrate to determine whether a prima facie case has been made out against the accused, on credible evidence for him to stand trial. It would thus be odd for a lower court to conclude even before a preliminary inquiry, that reasonable grounds for believing his guilt already exist.

It has taken the Singapore High Court more than 52 years to intervene to uphold such a reasoning. In Selvamsylvester, Justice Kan made two refreshingly logical but simple observations:

1    The decision to charge a person is made by the police, with or without reference to the prosecution authorities. The courts have no part at all to play in that decision. The mere fact that the decision has been made cannot be relied on by the police or prosecution authorities, much less the courts, as reasonable grounds for believing that the person charged is guilty.

2    If it was intended that a person shall not be released once he has been charged with those offences, the provision could have stated that in those terms. He therefore held that the provision must be given its natural meaning and that ‘reasonable grounds’ contemplate something more than the mere fact of the person having been charged.

The judge took the commonsense view that whilst reasonable grounds by their very nature cannot be listed exhaustively, there must be some material for a finding of the existence of reasonable grounds to be based upon. For example, ‘admissions of confessions, medical or scientific evidence like DNA test results or finger print examination results, eye-witnesses evidence, or circumstantial evidence, which if assumed to be true would point towards the person’s guilt.’²³ These materials, the judge reasoned, need not be tendered at a preliminary hearing or sub-trial. It should be sufficient if the prosecution discloses the materials to the courts and the accused person. In Selvamsylvester’s case, there were four cautioned statements which the defence had admitted were incriminatory. He was therefore denied bail ‘on the basis of the disclosure and production of the cautioned statements and counsel’s acknowledgement of their effect.’²⁴

The Difficulties with the Judgment

Unfortunately, there are some difficulties with the judgment in Selvamsylvester.²⁵ These are with the court’s subsequent holdings, namely:

1    that the restrictions in granting bail in offences punishable with life imprisonment or death under 
s 352(1) apply to both the Subordinate Courts and the High Court; and

2    that consequently, s 352(1) is inconsistent with the later s 354(1) of the CPC which gives the High Court wide powers to release any person on bail. Because of this perceived inconsistency, s 354(1) of the CPC must be read, the judge reasoned, as restricted by s 352(1) in order to allow the two sub-sections to ‘operate in harmony’.²⁶

Applicability of Restrictions to the High Court

Section 352(1) of the Criminal Procedure Code provides as follows:

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, he may be released on bail by any police officer not below the rank of sergeant or by that court, 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:

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.

The judge concluded that the restrictions in s 352(1) also applied to the High Court because a person facing a charge triable in the High Court will appear in the Subordinate Court before he is committed to stand trial and ‘he may also … apply to the High Court for bail even before his committal’. Hence, the restrictions to bail should apply to both courts despite the provisions of s 354(1).

This reasoning is difficult to follow. It flies against the plain language of these provisions and the very scheme of arrest, appearance and pre-trial applications provided for in the CPC, let alone a considerable line of authorities. It is to the Subordinate Court that an accused’s application for bail will have to be made in the first instance. Clearly, he would not need to apply to the High Court, whether before or after the committal, unless bail is refused in the court below. The correct course of a bail application is to first make the application to the lower courts and to obtain their orders before going up to the High Court, unless there are special reasons for a direct approach.²⁷ As the Indian courts have held,²⁸ no application for bail to the High Court under s 354(1) will be entertained by the High Court unless the lower court has been approached first.

In PP v Dato Balwant Singh,²⁹ the Malaysian High Court took pains to explain this:

Section 388(1) [our s 352(1)] becomes applicable when the accused “appears or is brought before a court ... ”. The phrase thus restricts the applicability of s 388(1) to the first production of the accused in court pursuant to a summons or warrant.

This interpretation is consistent with the fact that there is no provision in the Criminal Procedure Code for an accused person to be arrested and produced before the High Court, to enable a bail application to be entertained for the first time. Indeed, the structure of Chapter XXXV of the CPC which contains the bail provisions gives further support for the argument that the High Court’s power to grant bail is outside these sections. For example, s 352(4) and s 354(2) cover essentially the same ground and obviously were not intended to both apply to the High Court. The former states that: ‘Any court may at any stage of any proceeding under this Code cause any person who has been released under [s 352] to be arrested and may commit him to custody.’ The latter states that: ‘The High Court may at any stage of any proceeding under this Code cause any person who has been released under [s 354] to be arrested and may commit him to custody.’³⁰ The reason why such restrictions apply only to the lower courts is the gravity of the offences and because the Subordinate Courts have no jurisdiction to try 
such offences.

As one academic writer has pointed out,³¹ extending the application of ss 351 and 352 to the High Court ‘would be awkward, if not absurd’. Since 
s 352(1) imposes a general prohibition on granting bail if the offence carries either the death penalty or life imprisonment, it would be improper to impose a similar prohibition on the High Court’s power to grant bail in the absence of a clear language to that effect. The mention of the High Court in only s 354 and not the earlier bail sections must be deliberate and hence subject to the expressio unius est exclusio alterius rule of interpretation.³²

Apart from Re KS Menon³³ which the judge did not follow, there is clear authority for the proposition, both in Malaysia and India, that s 352(1) and the limitations the sub-section imposes for release on bail in respect of offences punishable with death or imprisonment for life apply only to the Subordinate Courts and not to the High Court.³⁴ For example, in PP v Shanmugam,³⁵ Azmi J observed that ‘the position is that a president or a magistrate has no power to grant bail under s 388(i) in a case involving a non-bailable offence if there appears to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or with imprisonment for life.’ [emphasis added]

Does the High Court Have an Unfettered Discretion to Grant Bail under Section 354 of the CPC?

Having decided that s 352(1) applied to both the Subordinate and High Courts, the learned judge was next driven to the conclusion that ss 352(1) and 354(1) were somewhat inconsistent despite having existed in that form since the enactment of the CPC in 1900 and having been judicially considered consistent for many decades. His solution was that ‘instead of creating an inconsistency with section 352(1), section 354(1) should be read in harmony with it,’³⁶ which meant that where there are reasonable grounds for believing guilt in offences punishable with death or life imprisonment ‘neither the Subordinate Courts nor the High Court shall release him’.³⁷ This renders 
s 354(1) somewhat superfluous.

Clearly, in addition to the fact that 
s 352(1) of the Criminal Procedure Code does not apply to the High Court, the High Court has an unfettered discretion to consider applications for bail in all cases under s 354(1) of the CPC. The High Court’s unfettered discretion³⁸ is clear from the language of s 354(1) of the Criminal Procedure Code which expressly states, inter alia, that the High Court may:

1    in any case;

2    whether there is an appeal on conviction or not;

3    direct that any person shall be admitted to bail.

The cardinal principles of statutory interpretation are that a statute must not be interpreted in a way that fetters the court’s discretion and that words in a section must be given their natural and ordinary meaning. The decision in Selvamsylvester does not appear to support either principle.

The Malaysian Supreme Court, on the other hand, has held that an identical section in the Malaysian Criminal Procedure Code (s 389) confers upon the High Court an absolute discretion to consider applications for bail. In PP v Zulkiflee bin Hassan,³⁹ Gunn Chit Tuan SCJ in delivering the judgment of the Supreme Court stated:

However, it is obvious from a perusal of s 389 of the Criminal Procedure Code that a judge has jurisdiction to consider an application under the said section and we agreed with Encik Shafee that the words “in any case” import that the powers of the High Court are unfettered. The High Court has the fullest discretion in the matter when considering the amount of the bond and the words “whether there be an appeal on conviction or not” appearing in the said section give the judge very wide powers to admit to bail even where an accused person has been convicted and has not appealed.

In a later decision, PP v Dato Mat,⁴⁰ the Malaysian Supreme Court again explained:

Section 389 of our Criminal Procedure Code [our 353 and 354] which is relevant to this issue ... is intended to supplement the provision on s 388. The first part of the section contains a directive to the police officer or the court before which the accused is produced in the first instance, that the amount of bail should be reasonably sufficient to secure the attendance of the person arrested and this amount should not be excessive. The second part confers on the judge (i) the power to direct in any case, whether there be an appeal or not on conviction, that any person be admitted to bail and (ii) the power to direct that the bail required by a police officer or the court be reduced or increased. In Hidayat Ullah v The Crown 50 CR LJ 1949 (folld) the full Bench of the Lahore High Court opined that the use of the expression, ‘The High Court, may in any case, direct that any person be admitted to bail’ clearly shows that s 498 [corresponding to our s 389] is intended to supplement and complete the provision of s 497 [our s 388] and s 498 [our s 389] and justifies the belief that the power given includes a power to revise the exercise of discretion by police officer and court of first instance.

We agree with the above authorities and we would reiterate what was said earlier in PP v Zulkifflee bin Hassan that the High Court has an unfettered judicial discretion in dealing with an application under s 389.

A number of writers have also expressed a similar view that the High Court has an absolute discretionary power to grant bail in any case under s 354, and identical sections in the Malaysian Criminal Procedure Code. Their view is that the High Court has ‘absolute discretionary powers’,⁴¹ an ‘unfettered judicial discretion’⁴² and with ‘no limitation placed on it’.⁴³ This writer⁴⁴ has also expressed the view that the High Court is invested with ‘such powers as a court of superior, appellate or revisional jurisdiction to revise the exercise of discretion by police officers and courts of first instance where bail has been refused, and to grant bail to persons to whom the police and the Subordinate Courts are not permitted to grant bail’ under s 352 of the CPC.

Exercise of the High Court’s Discretion

Justice Kan’s concern about the High Court not giving due regard to a finding by a lower court that there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, is legitimate. As the Indian Supreme Court has observed, the High Court cannot be ‘oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life’. The answer, however, lies not in denying the High Court’s existence of its unfettered discretion under s 354(1) of the CPC, but in determining how that discretion ought to be exercised in the circumstances. Indeed, that has been done by the Malaysian courts since at least 1946.⁴⁵ Although the discretion to admit any person is absolute, the High Court must exercise it judicially since the Legislature has chosen to entrust the initial bail decision to the lower court. Accordingly, it was held in Re K S Menon⁴⁶ that the High Court should not, unless there are ‘exceptional and very special reasons’, grant bail if there appear reasonable grounds for believing that an accused has been guilty of an offence punishable with death or imprisonment for life. Re K S Menon, which has been followed in a number of cases,⁴⁷ was brought to the attention of the court in Selvamsylvester but not followed.

Conclusion

The strange saga of Selvamsylvester is that whilst the Singapore High Court has corrected a wrong that has existed in our law for more than 50 years, it appears to have fallen into an error that the courts have avoided for almost twice that length of time. The usefulness of the Selvamsylvester decison lies in its affirmation of the absolute right to bail in bailable offences and in the court’s commonsense approach in determining the ‘reasonable grounds’ test for non-bailable offences where the punishment is imprisonment for life or death. However, there is an urgent need to have the High Court re-affirm at the earliest opportunity that it is not subject to the restrictions in s 352(1) of the CPC and indeed has an unfettered discretion under s 354(1) of the CPC to consider a bail application from ‘any person’, in ‘any case’ and at any time. This is a particularly important supervisory power over lower court decisions especially at a time when there is concern over our bail system.⁴⁸

S Chandra Mohan

B Rao & KS Rajah

E-mail: chandra@wisden.com.sg

Notes

1    [2005] 4 SLR 409.

2    Cap 224, 1985 Rev Ed.

3    Cap 68, 1985 Rev Ed.

4    Mr S K Kumar, who appeared for the accused, made written submissions with a number of authorities.

5    See for example R v Lim Kwang Seng & Others [1956] MLJ 178; Sebastian v PP [1968] 2MLJ 214; Mohd Jalil Abdullah & Anor v PP [1996] 5 MLJ 564; PP v Dato Balwant Singh [2002] 4 MLJ 427.

6    At para 3, p 411 of the case report.

7    At para 10, p 412 of the case report.

8    See generally S Chandra Mohan, Bail in Singapore (Malayan Law Journal, 1977), chapter four; Mimi Kamaria Majid and Lee Oi Kuan, Malaysian Law On Bail (Malaysian Law Publishers, 1986); Tan Yock Lin, Criminal Procedure (LexisNexis, 2005) X352–553.

9    Even in such cases, bail applications are not always successful. See for example PP v Latchemy [1967] 2 MLJ 79; Leow Nyok Chin v PP [1999] 1 MLJ 437.

10 For a fuller discussion see 
S Chandra Mohan, ‘Sulaiman bin Kadir and Bail in Offences Punishable with Death or Imprisonment for Life’ [1977] Journal of Malaysian and Comparative Law 311.

11 [1952] MLJ 95.

12 [1956] MLJ 81.

13 For a fuller discussion, see S Chandra Mohan, op cit, footnote 10 and Majid and Lee, op cit, pp 38–46.

14 [1952] MLJ 95 at 96.

15  Ibid.

16 [1956] MLJ 81 followed in Chinnakaruppan v PP [1962] 
MLJ 234.

17  Ibid, at p 81.

18 [1959] MLJ 245 which appears to have been approved by Kan J in Selvamsylvester despite the indication in the case report that it was not.

19 Dato Balwant Singh [2002] 4 MLJ 427 at 439.

20  Majid and Lee, op cit.

21  See for example Mohammed Panah 36 Cr LJ 711; State v Vellapan Kochunny [1952] Cr LJ1087; Ram Sewak v State [1974] Cr LJ 1090; Prahlad Singh v NCT Delhi (2001) 4 SCC 280.

22 Magistrates’ Appeal No 4 of 1965. The appeal was subsequently discontinued. See Chandra Mohan, Bail in Singapore, (Malayan Law Journal, 1977) pp 56–57 for details of the submissions made in the Magistrates’ Court by Mr Punch Coomaraswamy who appeared for the accused.

23 [2005] 4 SLR 409 at 413.

24 Ibid at 414.

25 [2005] 4 SLR 409.

26  At p 412 of the case report.

27 Gurucharan Singh v State (Delhi Administration) 1978 SCC (Cri) 41.

28 Ibid.

29 [2004] 4 MLJ 427 at 435. See also Gurucharan Singh, supra, footnote 27.

30 Tan Yock Lin, Criminal Procedure (LexisNexis, 2005) X75.

31  Tan Yock Lin, ibid.

32 For an application of the rule, see The Jarguh Sawit [1995] 3 SLR 840 at 850; Muhd Munir v Noor Hidah [1991] 1 MLJ 276.

33 [1946] MLJ 49.

34 See for example R v Ooi Ah Kow [1952] MLJ 95; PP v Dato Balwant Singh [2002] 4 MLJ 427; Gurcharan Singh and Others v State [1978] 
SCC 41.

35 [1971] 1 MLJ 283 at 283.

36 At p 412 of the case report.

37 Ibid.

38 So held in a number of India cases: eg Gucharan Singh & Ors v State [1978] SCC (Css) 41; King Emperor v Nga San Htwa AIR [1927] Ran 2005; King Emperor v Joglekar AIR [1931] ALL 504 followed in Re K S Menon [1946] MLJ 49; Hannmantha Reddy v Government of Mysore AIR 1953 Mys 132 at 133; Jamini Mullick v Emperor ILR 36 Cali 174 at 177, Juhar Mal v State AIR 1954 Raj 279.

39 [1990] 2 MLJ 215 at 217.

40 [1991] 2 MLJ 186 at 188.

41 Mimi Kamaria Majid and Lee Oi Kuan, Malaysian Law on Bail (Malaysian Law Publishers, 1986) at p 68.

42 Mallal’s Criminal Procedure (5th edn) para 12552, p 6181.

43 Tan Yock Lin, Criminal Procedure (LexisNexis, 2005) pp X75–X76.

44 S Chandra Mohan, Bail in Singapore (Malayan Law Journal, 1977) p 48.

45 Re K S Menon [1946] MLJ 49.

46 [1946] MLJ 49 following King Emperor v Nga San Hwa ILR 5 Rang 276.

47 R v Ooi Ah Kow [1952] MLJ 95; Shanmugam v PP [1971] 1 MLJ 283; PP v Larchemy [1967] 2MLJ 79; Che Su binti Daud v PP [1978] 2 MLJ 162.

48  Judging from grievances of criminal lawyers, bail administration should be among the subjects that need urgent examination among the areas for reform that have been recently proposed for study by one writer: Low Siew Ling, ‘A Re-Examination of Bail Law in Singapore’ (2005) 17 SAcLJ 867.