S Selvamsylvester v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 31 August 2005
• Neutral Citation: [2005] SGHC 158
• Citation: [2005] SGHC 158
• Date: 31 August 2005
• Published date: 01 September 2005
• Plaintiff Counsel: Udeh Kumar s/o Sethuraju (S K Kumar and Associates)
• Docket Number: Criminal Motion No 13 of 2005
• Defendant Counsel: Hay Hung Chun and Paul Quan (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Year: 2005

31 August 2005

Kan Ting Chiu J:

1 Can bail be offered for all offences, bailable and non-bailable? This question came up in the applicant’s criminal motion for bail, and there is no consensus on that.

2 Bail applications are governed by the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). A bailable offence is defined in s 2 of the CPC as:

an offence shown as bailable in Schedule A or which is made bailable by any other law for the time being in force, and “non-bailable offence” means any other offence.

3 Section 351(1) of the CPC provides:

When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of the officer or at any stage of the proceedings before the court to give bail, that person shall be released on bail by any police officer in such cases as are specified in orders issued by the Commissioner or Police or by that court.

In other words, bailable offences are bailable as of right.

4 “Non-bailable” means that there is no right of bail, but it does not mean that no bail can be offered. Bail is discretionary, and s 352(1) of the CPC provides:

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 …

5 However, this discretion to grant bail does not apply to all non-bailable offences, as s 352(1) continues:

… 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:

6 There is a school of thought that the words “he shall not be so released” do not create an absolute prohibition, and do not apply to the High Court. This arises from reading s 354(1) of the CPC which states that:

The High Court may, in any case whether there is an appeal on conviction or not, direct that any person shall be admitted to bail or that the bail required by a police officer or Magistrate’s Court or District Court shall be reduced or increased.

7 In Re K S Menon [1946] MLJ 49, A J Bostock-Hill (President) in dealing with ss 388 and 389 of the Federated Malay States Criminal Procedure Code (the equivalent provisions to our ss 352 and 354(1)), agreed with a submission that a judge of the High Court has complete discretion to grant bail free from the limitations of s 388. He explained at 49:

This has been held by a Full Bench in India to give the High Court absolute discretion in granting bail, free from the limitations of the discretion prescribed by section 388. (see King Emperor v. Nga San Htwa, and King Emperor v. Joglekar). I respectfully agree with this ruling. Also in the first of the above two cases, Rutledge C.J. says,

Though the discretion is absolute the High Court must exercise it judicially, and since the Legislature has chosen to entrust the initial stage of dealing with questions of bail to Magistrates and while giving Magistrates an unfettered discretion of granting of bail in all cases except two classes, i.e. cases punishable with death and cases punishable with transportation for life, the High Court ought not to grant bail in such cases except for exceptional and very special reasons.

8 I have difficulty in following this reasoning. Section 352(1) states that when a person accused of a non-bailable offence appears or is brought before a court, that court may release him on bail. A person facing a charge triable in the High Court will appear in the Subordinate Courts and the High Court. In the usual case, he will be dealt with in the Subordinate Courts until he is committed to stand trial in the High Court, then his case is transferred to the High Court. He may also, as in the case of the applicant, apply to the High Court for bail even before his committal. When the section prescribes that in a case where there are reasonable grounds to believe that the person is guilty of an offence punishable with death or life imprisonment he shall not be released, that should mean that neither the Subordinate Courts nor the High Court shall release him.

9 If the construction adopted in Re K S Menon is applied, the High Court which is prohibited from releasing the person under s 352(1) of the CPC may nevertheless release him under s 354(1). Instead of creating an inconsistency with s 352(1), s 354(1) should be read in harmony with it. Section 354(1) should be read to empower the High Court to grant or vary bail for persons whose cases are still being dealt with by the police officers and the Subordinate Courts. Its purpose is to enable a bail application to be made to a High Court any time after a person has been arrested. This construction allows the two sections to operate in harmony, without over-extending the effect of s 354(1) and placing the High Court beyond the scope of s 352(1).

10 In my view, therefore, all cases fall into three classes where bail is concerned:

(a) for bailable offences, where bail has to be offered;

(b) for most non-bailable offences, where there is a discretion to offer bail; and

(c) for non-bailable offences where there appear reasonable grounds for believing that the accused person has been guilty of an offence punishable with death or imprisonment for life, where no bail may be granted.

11 This leads to the next area of controversy: What constitute “reasonable grounds”? Earlier cases on this point came to different conclusions. In R v Chan Choon Weng [1956] MLJ 81 which dealt with s 416(1) of the Criminal Procedure Code of the Straits Settlements (equivalent to our s 352(1)), Spencer Wilkinson J stated at 82:

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) to grant bail whether that offence is or is not also punishable with death.

12 In Ad’at bin Taib v PP [1959] MLJ 245, however, Neal J took a stricter view than Spencer Wilkinson J. He stated (at 245–246):

Section 416(1) of the Straits Code is similar in terms with our section 388(i) [s 352(1) of the CPC]. It will be noted that the terms used in the Criminal Procedure Code do not refer to the charge but to the question of reasonable grounds for believing the guilt in respect of a particular offence. In my opinion, there is a wide distinction between the charging of an...