Recently, Parti Pribumi Bersatu Malaysia (Bersatu) president Tan Sri Muhyiddin Yassin made unwanted history after becoming the second former Prime Minister to be charged in Court. As reported by NST, Muhyiddin was charged at the Kuala Lumpur Sessions Court on 10 March 2023 with six counts of corruption and abuse of power involving RM427.5 million.
A day later, he was slapped with another charge at the Shah Alam Sessions Court. This time around, he was charged with one count of money laundering amounting to RM5 million.
The charges, some of which are part of the Malaysian Anti-Corruption Commission’s (MACC) investigations on the Jana Wibawa programme introduced during his premiership. Previously, two other Bersatu leaders were also charged in relation to Jana Wibawa, its information chief Datuk Wan Saiful Wan Jan and Segambut division deputy chief Adam Radlan Adam Muhammad.
All in all, Muhyiddin, who is also the Member of Parliament (MP) for Pagoh was slapped with these charges:
The Pagoh MP vehemently denied the accusations and pleaded not guilty to all charges. Following the six charges at the Kuala Lumpur Sessions Court, Judge Azura Alwi allowed Muhyiddin to be bailed at RM2 million with two surety, which the former Prime Minister paid. Muhyiddin was also told to surrender his passport.
For his separate money laundering charge at the Shah Alam Sessions Court, the Court agreed for the bail amount to be tied to his other charges. This was following the suggestion by the prosecution team led by deputy public prosecutor Ahmad Akram Gharib as they would be submitting applications to move the case to the Kuala Lumpur Court and be tried together.
Given the high-profile nature of the case, the charges inevitably became a hotly discussed topic amongst Malaysians. One of the issues being discussed was in regard to the RM2 million bail being set for the accused.
Some argued that the RM2 million bail amount was too low, especially compared to the total RM432.5 million involved in the alleged wrongdoings. Meanwhile, there were also those that saw the bail amount as too high and claimed that all the charges were merely political persecution towards the former Prime Minister.
Regardless of your opinion on the matter, court bail and its mechanics are definitely something that is not well-known, especially by laymen. So, how does bail work? Are there any specific formulas that the courts need to adhere to?
Well, join us as we dive deeper into the subject matter at hand below.
What is bail?
First up, let’s dive deeper into what exactly is meant by bail. In Malaysia, there are two types of bail, which are police bail and court bail.
Police bail is granted when an investigation cannot be completed. Instead of detaining the suspect longer, police bail is granted to ensure that the suspect will appear at the police station and report to the investigation officer at the appointed time. Usually, police bail takes the form of a bond by the surety without securities being furnished.
Meanwhile, according to the Office of the Chief Registrar Federal Court of Malaysia, court bail is a temporary release of an accused person upon depositing sufficient securities to the court and an undertaking by the bailor to ensure the attendance of the accused person throughout the trial.
Types of offences for the purposes of bail
As for offences that are eligible for bail, they are prescribed by the Criminal Procedure Code (CPC). Essentially, there are 3 types of offences for the purposes of bail:
A bailable offence is an offence in which bail has to be offered as of right. In other words, the court has no choice but to offer bail for the accused. Examples of bailable offences are voluntarily causing hurt, cheating and defamation,
Section 387 of the CPC prescribes:
Meanwhile, non-bailable offences are offences where the court has the discretion to grant bail. This is governed under Section 388 of CPC and includes offences such as rape, theft, infanticide and causing grievous hurt by dangerous weapons or means. A complete list of bailable and non-bailable offences for penal code offences is found in column 5 of the First Schedule of the Criminal Procedure Code.
Finally, as the name would suggest, bail will not be granted in unbailable offences. These are extreme and serious offences punishable by death or life imprisonment.
Examples of unbailable offences include those prescribed under Section 41B of the Dangerous Drugs Act, murder or kidnapping punishable under the Kidnapping Act. However, there are exceptions to this, as bail may be offered for any person below the age of 16 years or any woman or any sick or infirmed person accused of such an offence.
With that in mind, the charges faced by Muhyiddin are considered bailable offences, hence why he was released on bail by both the Kuala Lumpur and Shah Alam Sessions Courts.
Why was Muhyiddin’s bail set at RM2 million?
Circling back to the subject matter at hand, why did the court set the bail at RM2 million and ordered additional conditions of two local surety and having to surrender his passport to court? Moreover, how did the court decide on the RM2 million figure as the bail amount?
Well, the court has to consider a couple of things in determining the amount of bail. This is prescribed by Section 389 of CPC below:
Simply put, the court must consider the circumstances of the case as well as ensure the attendance of the accused throughout the trial. Furthermore, it must be understood that the purpose of bail is not to punish the accused but to merely secure his attendance in Court on a given date.
In relation to that, the judgement in the case of Tengku Adnan bin Tengku Mansor v Pendakwa Raya  MLJU 658, Nazlan J (as he then was) stressed that the determination on whether to grant or refuse bail is an exercise of judicial discretion. Citing the case of Soo Shiok Liong v Pendakwa Raya  2 MLJ 381, the judgement further elaborated on the case law authorities on the factors that the Court should consider before deciding whether to grant bail:
“The factors for consideration in setting the quantum of bail bond are as follows:
1. The nature and gravity of the offence and the severity and degree of punishment which conviction might entail. This is only one of the relevant, but not overriding, factors to be considered. It is thus decidedly wrong to fix the quantum of bail bond solely on the basis of such quantum being in proportion to the value of the subject matter of the charge, in as much as such reckoning would eclipse the overriding concern that bail bond should not be excessive but only be sufficient to secure the attendance of the accused
2. The quantum should be higher in the case of non-bailable offences
3. An excessive quantum may defeat the granting of bail as the accused may find difficulty in getting a bailor acceptable to the court
4. The principle and basis of our criminal law is that the accused is presumed to be innocent until proven guilty
5. Whether there is a likelihood of the applicant absconding if the bail quantum is set too low. See Low Chit Bah v PP 9
6. Bail is not intended to be punitive but only to secure the attendance of the accused at the trial; therefore the amount of the bond must be fixed with due regard to the circumstances and must not be excessive. See R v Rose 8. The amount of bail may vary according to the circumstances even on similar value of the subject matter of the charge
7. His surrender of his international passport should go to reduce the quantum of bail. See PP v Dato’ Mat @ Mat Shah bin Safuan @ Ahmad.
8. The fact that the accused had presented himself at the police station and had cooperated with the police should also go to abate the quantum of bail
9. The quantum of bail should not be set so prohibitively high as to have the effect of incarcerating the accused before he is convicted of the crime. See Zulkifflee bin Haji Hassan v PP 7
10. Application of the court’s mind in considering the above factors ought to be reflected in the judge’s records
“These factors are not exhaustive. In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim  4 MLJ 481 the High Court also held that the character, behaviour, means and standing of the accused may assume relevance along with other circumstances in considering whether to release the accused on bail.”
With that in mind, the court will usually take into account the following factors in granting bail:
However, bail once granted may be revoked if there is clear evidence that the accused is interfering with the course of justice. These include the destruction of evidence or tampering with witnesses.
Applied to Muhyiddin’s case, the amount of bond was set to RM2 million because the court didn’t determine the value of bail based on the subject. Instead it was done based on all the factors as mentioned above.
Towards that end, the judgement in Soo Shiok Liong v Pendakwa Raya  2 MLJ 381 perfectly sums up the matter at hand:
“It is thus decidedly wrong to fix the quantum of bail bond solely on the basis of such quantum being in proportion to the value of the subject matter of the charge, in as much as such reckoning would eclipse the overriding concern that bail bond should not be excessive but only be sufficient to secure the attendance of the accused.”
Moving forward, all eyes will be on Muhyiddin’s corruption trial when it is first heard this 26 May. Well, whatever happens, it is important for all members of the public to remain calm and let our legal system take its course.