The accused, Baghwan aged 70 years old, a diabetic and heart patient was charge with an offence

under Section 302 of the Penal Code which is a non-bailable offence according to the First
Schedule of Criminal Procedure Code. We humbly apply from the Court to release the accused
on bail. We hereby submit to the honourable Court the following grounds:
FIRST GROUND : The accused is 70 years old, a diabetic and heart patient, and

has to undergo coronary bypass surgery.

According to Section 388 (1) of Criminal Procedure Code, when any person accused of
any non-bailable offence is arrested or detained without warrant by a police officer or appears or
is brought before a Court, he may be released on bail by the officer in charge of the police
district or by that Court, but he shall not be so released if there appears 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 sixteen years or any woman
or any sick or infirm person accused of such an offence be released on bail.
The proviso under Section 388 (1) of Criminal Procedure Code provides the discretion
for the Court that any sick accused of any non-bailable offence be released on bail. As the
accused is a diabetic and heart patient plus he has to undergo coronary bypass surgery, we
humbly apply from the Court to direct the accused be released on bail as his condition falls
within the proviso in Section 388 (1) of Criminal Procedure Code. Accordingly, we plead from
the honourable Court to put the case in hand into consideration. The medical report and medical
appointment of the accused hereby submit to the Court.
In the case of CHE SU BINTI DAUD v PUBLIC PROSECUTOR [1978] 2 MLJ 162,
the Court decided to consider the exceptional and special reasons in the present case for bail to
be granted. GUNN CHIT TUAN J decided that;
The offence with which the accused has been charged is punishable under
section 39(B)(2) of the Dangerous Drugs Ordinance 1952 which is death or
imprisonment for life and also, if the offender is not sentenced to death, with whipping. It
was therefore necessary for me to consider some of the facts before me in order to find
out whether there were any exceptional or very special reasons in the present case for
1

bail to be granted. What constitutes exceptional and special reasons must necessarily
depend on the facts of each case.
The legislature has, for instance, by the proviso to section 388 (i) of the Criminal
Procedure Code made extreme youth or sex or state of health of the accused matters for
consideration in the exercise of the court's discretion. It is the net result of all the
considerations for and against the accused which must ultimately decide the matter.
As in the case of PUBLIC PROSECUTOR v DATO' BALWANT SINGH [2002] 4
MLJ 427, the accused was 81 years 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 section 388 (1) of the
Criminal Procedure Code. In support of its argument, the defence tendered a medical report on
the accused which stated that the accused suffered from several serious diseases. Whilst the
prosecution did not challenge the medical report, it submitted that there were medical facilities in
the prison to treat the accused. AUGUSTINE PAUL J in his judgement stated that:
In my opinion, the health of the accused is also a factor that can be considered.
The seriousness of the offence certainly cannot be the dominant consideration. The
very object of granting bail is to ensure that the accused will attend at the trial and that,
while on bail, he will not interfere with the administration of justice by tampering with
witnesses. The medical report tendered by the defence shows that the accused who is
aged 81 is in very poor health and needs to be monitored regularly. Though medical
facilities are available in the prison, it may be preferable for the accused to be in a
place where he can have access to immediate medical treatment. It cannot be said that
the accused would repeat the offence if released on bail. It may not be in the public
interest to grant bail to a person facing a murder charge. However, where the other
factors favour an accused, the requirements of public interest can be satisfied by
imposing suitable conditions in granting bail.

Such precedent had been followed in the case of Chow Lin Choy v Pendakwa Raya
[2010] 9 MLJ 813 which the accused had given reasons that he was a diabetic patient and to
frequently take medical injections from the doctor. KAMARDIN HASHIM JC decided that:

Although the accused's age and physical appearance was not as old and fragile
as the accused in the case of Public Prosecutor v Dato' Balwant Singh [2002] 4 MLJ
427, the accused had shown to court that he frequently needed medication by
injections and it would be difficult for him if he was arrested.
Setelah menimbangkan permohonan tertuduh, masalah kesihatan beliau,
jaminan beliau untuk tidak akan menghilangkan diri serta hak kesamarataan tertuduh
seperti dijamin di bawah perkara 8 Perlembagaan Persekutuan, saya telah
membenarkan permohonan tertuduh untuk dijamin keluar sementara menunggu
perbicaraan terhadap beliau dengan menggenakan syarat-syarat yang ketat. Tertuduh
Dato' Balwant Singh yang menghadapi tuduhan bunuh di bawah s 302 Kanun Keseksaan
telah diberi jamin atas sebab-sebab kesihatan maka tertuduh dalam kes ini wajar
dipertimbangkan dan dibenarkan untuk diberi jamin tanpa mengira halangan yang
diperuntukkan di bawah s 12 Akta Senjata Api tersebut.
As we have submitted the relevant precedents in order to assist the honourable Court to
reach its decision, we hereby plead that the honourable Court to release the accused on bail and
thus exercise the courts discretion provides in Section 388 (1) of the Criminal Procedure Code.

SECOND GROUND : The accused pleaded innocent, has to manage his business, deliver
his passport, and would weekly report to the nearest police station.
Our next ground for the honorable court to grant a bail to our client is because our client
had pleaded innocent for the charge against him. From this fact, it can be showed that our client
will always come to this honorable court to defense himself in order to clear his name since
because of the charge he had a bad reputation in the eyes of the society.
As our client is pleaded innocent, Puan Hakim, it is most honorable if this court will grant
a bail to our client as in the case of Chow Lin Choy v Pendakwa Raya, Kamardin Hashim J
had held that;
Oleh itu dalam hal ini, perkara 8 Perlembagaan Persekutuan telah ditimbulkan
oleh tertuduh mengenai hak sama rata iaitu All persons are equal before the law and
entitled to the equal protection of the law. Jika tertuduh telah ditawarkan jamin oleh
pendakwaan ataupun thelah dibenarkan jamin oleh mahkamah maka tertuduh
sewajarnya mendapat layanan yang sama seperti tertuduh yang lain tersebut
Thus, even the charge face by our client is fall under non-bailable offence. I believe that
this honorable court will consider our client confession for pleaded innocent against the charge.
His confession can be implied that he is preparing to face such bad incident and the law must
treat him as other person because all persons are equal before the law.
Next, I will proceed to highlight to the honorable court that our client is a prudent
businessman whereby it can clearly showed that he had a big responsibilities to maintain highest
profit gain by the company. Without him in such hectic office will cause loss to his company
since he is a mastermind behind the veil of the company.
Furthermore, I believe our client also has a good reputation in the eyes of the society
which Puan Hakim and honorable court will see that granting a bail to him will protect the public
interest. It is because our client can be considered as a public figure whereby thousands of people
admiring him because of his success in his life and business. The honorable court should
consider this matter as permit a bail to our client will boost the confident of our society towards
our honorable court for maintaining justice in this country.
4

Granting a bail can help the honorable court to has a speedy procedure to run the trial in
the court. As in the case of Sulaiman bin Kadir v Public Prosecutor, Harun J (as he then was)
had expressed that;
If a person should not be kept in custody for a moment longer than is necessary,
then the speedy procedure of Section 389 of Criminal Procedure Code rather than that of
an appeal was obviously indicated.
Our client will help to speed the procedure because he will accept any bail amount
granted by this honorable court which then will help the honorable court to continue with the
trial against our client. It is because as a public figure in the society, our client will bound to
behave in good attitudes and will attend in the trial with full of dignity. With that, there is no
possibility for our client to apply an appeal to the higher court which can save much time in
order for justice upheld on behalf of victim and also our client.
I will continue with the other ground which our client is willingly to deliver his
international passport to persuade the honorable court for granting a bail to our client. His
willingness is a concrete prove that our client will attend the trial without any possibilities for
him to escape from this country. Even in this country is absence of any express provision in the
Criminal Procedure Code to impose such condition as laid down in the case Public Prosecutor v
Dato Mat where Wan Yahya J held that;
It is not illegal to impose fair and reasonable conditions and in particular the
condition requiring the accused to surrender his international passport, apropos to the
securing of the accuseds subsequent attendance in court.
He further held that;
We would agree that analogous fair and reasonable conditions apropos to the
securing of the accuseds subsequent attendance in court are not illegal and therefore
imposable by our courts.

Therefore, we pleaded to the Puan Hakim for granting a bail to our client and as a change
our client will surrender his international passport to this court. We believe that the court have a
discretion to make a decision although no ruling was made in the Federal Courts decision in the
case Government of Malaysia & Ors v Loh Wai Kong and the Supreme Courts decision in
Public Prosecutor v Zulkiflee bin Hassan as Puan Hakim also may refer to the judgment held
by Wan Yahya J as in the case before this.
Lastly, we are in a defense counsel also pleaded to this honorable court for granting a bail
to our client with the condition that our client will weekly report to the nearest police station for
showing that our client is preparing to face the trial without any delay as he is innocent for the
charge against him. I believe that Puan Hakim has a discretion power to impose such condition
whereby there are many cases impose such condition. First, I would like to bring an intention for
Puan Hakim in the case of Chow Lin Choy v Pendakwa Raya whereby Kamardin Hashim in
his judgment stated that;
Setelah menimbangkan permohonan tertuduh, masalah kesihatan beliau,
jaminan beliau untuk tidak akan menghilangkan diri serta hak kesamarataan tertuduh
seperti dijamin di bawah perkara 8 Perlembagaan Persekutuan, saya telah
membenarkan permohonan tertuduh untuk dijamin keluar sementara menunggu
perbicaraan terhadap beliau dengan mengenakan syarat-syarat yang ketat.
Saya memerintahkan tertuduh dibebaskan atas jaminan sebanyak RM20, 000
dengan dua orang penjamin. Saya mengenakan syarat-syarat tambahan iaitu tertuduh
menyerahkan semua dokumen perjalanan termasuk passport antarabangsa untuk
simpnan mahkamah serta tertuduh diarahkan untuk melaporkan diri ke balai polis yang
berhampiran dengan tempat kediamannya sekali dalam setiap dua minggu.
Therefore, we as defense counsel and also our counsel will always hope for Puan Hakim
and the honorable court to grant a bail for the charge against our client. We believe that the
honorable court to give sympathy to our client as he pleaded innocent, his capacity as public
figure which lead to the public interest and then our client also with full hearted will deliver his
international passport and he himself will made weekly report at the nearest police station as an
assurance that he will be not escaped form the charge against him.
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THIRD GROUND : TERMS AND CONDITIONS OF BAIL

Bail in non-bailable offences is at the discretion of the court. It is not to be granted
automatically in every cases but there are number of factors that the court takes into
consideration in the exercise of its discretion. There is no mandatory requirement in the law that
an application for bail must be in writing. Pertaining to our situation, it is totally on the
deliberation of judge to consider the availability of bail for the accused, Mr Baghwan.
The court can consider to grant the bail even if made by the accused or his counsel orally.
As it may be refered to the the case of Public Prosecutor v Dato Seri Anwar Bin Ibrahim
[1998] 4 MLJ 481:
For the court to give the contemplation upon granting a bail, there are twelve
factors listed as a consideration in Mallals Criminal Procedure Code:
1. Whether there was or was not reasonable grounds for believing accused is
2.
3.
4.
5.

guilty of the offence.

Nature and gravity of the offence charged.
Nature of evidence in support of the charge.
Security and degree of punishment that conviction may entail.
Guarantee that when released on bail, the accused will not abscond or

obstruct prosecution in any way.

6. Danger of the offence being continued or repeated.
7. Danger of a witness being tampered with the accused.
8. Accused, if on bail, is likely to tamper with prosecution evidence.
9. Accused likely to set up false evidence in support of his evidence.
10. Opportunity for accused to prepare his defence.
11. Character, means and standing of the accused.
12. Long period of detention and probability of further period of delay.
Thus, it is material for the court to consider all the factors listed as the court thinks fit to
the case in hand. Need to put into consideration, Baghwan aged 70, a diabetic and heart patient.
We believe that the proper treatment is not available in the place of the detention. Considering
the status that he is a prominent businessmann who was still working when the offence took
place that makes him own a social obligation to his work place and to his family. Baghwan
claimed he is innocent and had no knowledge whatsoever to Dianes murder. Baghwan also
really need to be released on bail as he has to undergo coronary bypass surgery.
7

The principle and basis of our criminal law is that the accused is presumed to be innocent
until proven guilty. As in the case of Soo Shiok Liong v Public Prosecutor [1993] 2 MLJ 381,
bail is not intended to be punitive but only to secure the attendance of the accused at the trial.
The amount of bail may vary according to the circumstances even on similar value of the subject
matter of the charge. The rationale of the case is, a vague and general allegation that the accused
if released, would suborn or intimidate witnesses or tamper with evidence or try to obtain false
evidence in support of his defence, is not a sound reason for refusing bail. Bail is not to be
refused merely on the basis of allegations about it.
His surrender of his international passport should go to the consideration as well. The fact
that the accused had presented himself and had co-operated giving the sense that there is no
danger of the accused absconding or leaving the jurisdiction. It is an important factor to be
considered in favour of the accused when assessing an application for bail.
As in the case of Yusof bin Mohamed v Public Prosecutor [1995] 3 MLJ 66, various
other considerations which may arise in the case such as the propensity, the tendency or
likelihood of the accused participating in the commission of further offences, or his proximate
like attitude, conduct or tendency towards matters, persons or things around him, or in
connection with or in relation to the case at hand.
As the accused really need to be released on bail as he has to undergo coronary bypass
surgery and at the same time to give his commitment as he is a prominent businessman. There is
no tendency or likelihood of Baghwan participating in the commission of further offences as he
testified that he was innocent and had no knowledge whatsoever to Dianes murder. Moreoever,
towards his conduct or attitude that have the tendency towards matter or in connection with or in
relation in hand as the purpose of releasing Baghwan on bail is to allow him to undergo coronary
bypass surgery. The accused is in need of the operation to maintain his personal health for his
personal life, commitment to his work and to attend the trial in the future if he is set on bail
today.