Article: Can You Get Bail After Being Charged For A Criminal Offence?

In what circumstances would a person charged with a criminal offence be granted bail under Singapore law? What if the person needs to leave Singapore to attend to something important? What can a person use to post bail?

What is bail?

Bail is a security (cash or a pledge of property) furnished by a surety or bailor who executes a bail bond to ensure the attendance of a person who has been charged for a criminal offence.

The surety must execute a bail bond before the accused person may be released on bail. The personal bond (without sureties) is an alternative to a bail (bond with sureties). The accused pays for the bond amount. No sureties are involved.

When is bail entitled? Bailable or Non-Bailable Offence

Bailable Offence: Entitled

Bail is entitled when the offence a person is charged with is a bailable offence (Taylor v PP [1989] SLR 540). The right to bail is substantive not procedural: see R v Lim Kwang Seng & Ors [1956] MLJ 178. The Court has no discretion to refuse bail. Refer to s. 92, CPC 2010.

  • 92.—(1) When any person, except a person accused of a non-bailable offence

(a) is arrested or detained without warrant by a police officer, or appears or is brought before a court; and

(b) is prepared to give bail at any time while in the police officer’s custody or at any stage of the proceedings before the court,

the person must be released on bail by a police officer in cases determined by the Commissioner of Police or by that court.

(2) Instead of taking bail from the person, the police officer or the court may release him if he signs a personal bond without sureties.

To determine if an offence is a bailable offence, one has to look at the following:

a. Penal Code offences: refer to 5th column of First Schedule of CPC 2010: click here.

b. Offences under laws other than the Penal Code:

Under First Schedule, CPC 2010 –

If punishable with death, imprisonment for 7 years or upwards – not bailable.

If punishable with imprisonment for 3 years or upwards but less than 7 years – not bailable.

If punishable with imprisonment for less than 3 years – bailable.

If punishable with a fine only – bailable.

Meaning of bailable offences (s. 2(1), CPC 2010):

““bailable offence” means an offence shown as bailable in the fifth column of the First Schedule or which is made bailable by any other written law, and “non-bailable offence” means any offence other than a bailable offence;”

Non-Bailable Offences: Discretionary

Discretion

If the offence in question is a non-bailable offence, whether bail is offered is an exercise of the police or the court’s discretion (s. 93(1), CPC 2010). This is subject to s. 95(1) exceptions see below.

The power of the police to release a person accused of non-bailable offences on bail is exercisable before the accused is produced or brought before a court: Kwan Hung Cheong v Inspektor Yusof Haji Othman & Ors [2009] 3 MLJ 263.

In exercising its discretion, the court must consider the gravity of the crime: Public Prosecutor v Mat Zain [1948] MLJ 142.

Bail will not be withheld merely as a punishment and that the requirements as to bail are merely to secure the attendance of an accused at the trial: R v Rose (1891) 67 LJQB 289.

If there is substantial delay in the investigation of a case by the police, this might become a special reason for the court to grant bail even in a serious offence: R v Ooi Ah Kow [1952] MLJ 95.

Since the accused is most likely to be in remand, bail should be granted where the punishment for the offence charged is likely to be less than the time it takes for the case to be heard in court: Emperor v H L Hutchinson and another ILR 53 All 931.

The Court is duty bound to take into consideration various factors such as (Lau Kung Seng & Ors v Public Prosecutor [1997] 5 MLJ 323):

  • the nature of the offence,
  • the penalty provision,
  • the likelihood of the accused absconding and
  • whether the accused will interfere with prosecution witnesses or the investigation of the case, when deciding whether to grant bail.
  • A failure to do so would render the refusal of bail subject to challenge.

For a list of factors: see Appendix below, info from Subordinate Courts’ Bail Guidelines 2005.

No Reasonable Grounds For Believing That Accused Committed Non-Bailable Offence

S. 93(2): If, at any stage of an investigation, inquiry, trial or other proceeding under this Code, there are no reasonable grounds for believing that the accused has committed a non-bailable offence, the police officer or the court must release him.

Exception: Situations Where No Bail Will Be Granted

95(1)(a): if a person is charged with offence punishable with death or life imprisonment.

Under Singapore law, life imprisonment means natural life. Previously, if the max punishment is a minimum of 20 years (or more), then ball shall not be granted. It has since been amended in March 2012: to ‘life imprisonment’, that is natural life. If the provision states clearly minimum penalty of ‘life imprisonment’, no bail will be granted.

95(1)(b): having been previously released on bail or personal bond in any criminal proceedings, he had not
surrendered to custody or made himself available for investigations or attended court, and the court believes that in view of this failure, he would not surrender to custody, or make himself available for investigations or attend court if released.

Exception to exception

Where the accused person is a juvenile or is sick or is infirm (s. 95(2)(a)).

A juvenile is a person who is below16 years of age (s. 2(1)).

High Court’s Unfettered Discretion To Grant Bail Notwithstanding section 95

97: (1) High Court has a power to grant, or vary amount or conditions of bail required by police or Sub Court; (2) at any stage of proceedings, HC may cause accused to be arrested and committed to custody.

It is unclear whether the High Court has an unfettered discretion to grant bail notwithstanding non-bailable offences punishable with life imprisonment. In Mohamed Hisham bin Sapandi v PP [2011] 4 SLR 868, the High Court held that the answer is yes. It held that ss 93 and 95 CPC 2010 only applied to the Subordinate Courts and not to the High Court.

However, Kan Ting Chiu J in S Selvamsylvester v Public Prosecutor [2005] 4 SLR(R) 409; [2005] SGHC 158 commented obiter dicta that the answer is no. In that case, the applicant took out a criminal motion for the court to exercise its discretion under s 354(1) of the old Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) and grant him bail even though some of the offences he had been charged with were punishable with life imprisonment. The applicant contended that the court should exercise its discretion as:

(a) the charges were lacking in particulars;

(b) there had been a delay in prosecution;

(c) he needed to be on bail to effectively prepare for his trial;

(d) he was the sole breadwinner of his family and his business would suffer in his absence; and

(e) it was unlikely that he would abscond or interfere with prosecution witnesses if he were to be released on bail.

The Court held or stated as follows:

(1) All cases fell into three classes where bail was concerned:

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

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

(c) for non-bailable offences where there appeared reasonable grounds for believing that the accused person had been guilty of an offence punishable with death or imprisonment for life, where no bail may be granted: at [10].

(2)   When s 352(1) of the CPC prescribed that in a case where there were reasonable grounds to believe that the person was 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: at [8].

(3)   Section 354(1) of the CPC should be read in harmony with s 352(1) as empowering the High Court to grant or vary bail for persons whose cases were still being dealt with by the police officers and the Subordinate Courts. Its purpose was to enable a bail application to be made to a High Court any time after a person had been arrested: at [9].

(4)   “Reasonable grounds” under s 352(1) of the CPC, giving the provision its natural meaning, contemplated something more than the mere fact of the person having been charged as cause to believe the person charged was guilty. What constituted “reasonable grounds” could not be listed exhaustively but there had to be some material for the “reasonable grounds” to be based on such as admissions or 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: at [13] to [15].

(5)   It was sufficient that the Prosecution disclosed to the court and the accused person the material which, if assumed to be true, would constitute reasonable grounds for believing that the person charged was guilty: [16].

(6)   Based on the Prosecution’s disclosure of cautioned statements in which the applicant had admitted to the charges for the non-bailable offences and counsel for the applicant’s acknowledgment of their incriminatory effect, the applicant could not be released on bail: at [17] and [19].

[Observation: If the incriminatory effect of the statements had been disputed, the court would have read them because a statement could only be a “reasonable ground” for the purpose of s 352(1) if it was positive (ie contained admission of guilt): at [18].

Even if the court had a discretionary power to grant bail by virtue of s 354(1), the applicant had not made out a case to be offered bail. The applicant faced charges of outraging modesty, committing acts of gross indecency and engaging in carnal intercourse against the order of nature and had made statements containing admissions of guilt. These factors outweighed the other considerations raised by the applicant: at [26] to [29].]

In Mohamed Hisham bin Sapandi v PP [2011] 4 SLR 868, Choo Han Teck J held that ss 93 and 95 CPC 2010 only applied to the Subordinate Courts and not to the High Court, agreeing with academic views that the consequences of construing these provisions as applying to the High Court would be awkward if not absurd  because

(i)  it  would  not  be  right  to  impose  a  prohibition  on  the  High  Court’s  power  to  grant   bail;

(ii) the wording of s 97(2) CPC 2010 was similar to that of s 93(5) CPC 2010 and would be somewhat superfluous if s 93 CPC 2010 applied to the High Court; and

(iii) the specific mention of the High Court in s 97 CPC 2010 but not in s 93 CPC 2010 must have been deliberate and indicated that the latter was not intended to apply to the High Court

Can the Court Cancel Bail?

S 93(5), CPC: court can cancel bail at any stage of proceedings and have the accused person arrested.

In considering whether bail should be granted, the court is duty bound to consider various factors such as (Lau Kung Seng & Ors v Public Prosecutor [1997] 5 MLJ 323):

a. the nature of the offence,

b. the penalty provision,

c. the likelihood of the accused absconding and

d. whether the accused, if released on bail, would interfere with the prosecution witnesses or the investigation of the case.

To refuse bail on the ground that an accused person had a previous conviction is not justifiable particularly when the prosecution does not even offer any reasons that there was a likelihood the accused might abscond.

However bad a character an accused may possess, he is undoubtedly entitled to be proceeded against according to law and not to be deprived of his liberty except in due course of law.

Hence, where an accused is rightly entitled to be on bail, his bail cannot be cancelled except in due course of the law (see pp 325I and 326A-C); Bashiruddin v R AIR 1932 All 327 followed.

Types of Bail

Bail can be offered by the police or the Court.

Police Bail: 48 hours within arrest

When there is an arrest without a warrant, an arrested person must be produced before a Magistrate’s Court within 48 hours of arrest. If the police is unable to so produce the person before the Court, he must be releases on bail or personal bond by the police: s. 67 and 68, CPC.

Court Bail

For arrest without a warrant – court considers bail when arrested person is produced before a Magistrate’s Court.

For arrest pursuant to a warrant – the warrant can bear endorsement providing for bond. Otherwise, arrested person has to be brought before the issuing court which then considers bail issues. Refer to s. 72 and 74 CPC.

Quantum and Conditions of Bail

When the necessary bail cannot be furnished, e.g. no bailor, insufficient funds to post bail, the accused person will be remanded in prison until bail can be furnished.

Quantum of Bail

While bail cannot be punitive, it must be sufficient to ensure the attendance of the accused in each case (s. 96, CPC). S. 96 states: “The amount of every bond executed under this Division must be fixed with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested or charged.” For a list of factors: see Appendix below, info from Subordinate Courts’ Bail Guidelines 2005.

In deciding upon the quantum of bail, the court will consider a variety of factors (Soo Shiok Liong v Pendakwa Raya [1993] 2 MLJ 381), including

the nature and severity of the offence

the severity and degree of punishment which conviction might entail,

whether the offence is bailable or non-bailable, and

the likelihood of the offender absconding.

Other factors (Public Prosecutor v Zulkifflee bin Hassan [1990] 2 MLJ 215):

the seriousness of the charge,

the nature of the evidence,

the severity of the punishment prescribed for the offence,

in some instances, the character, means and status of the accused,

the penal consequences of the act when proved,

the nature of the offence charged,

whether the offence charged is or is not a bailable offence.

Bail Conditions

Conditions on the bail may be imposed by the police or court pursuant to s. 94, CPC.

Some typical conditions include:

Surrender of travel documents

Attendance for investigations or in court

Non-commission of offence;

Non-interference with witnesses

No leaving Singapore without permission of police/court

Breach of these conditions make the accused liable for re-arrest.

Mandatory conditions in s. 99, CPC 2010:

99(2): on condition that the released person attends on the date and at the time and place mentioned in the bond, and must continue to attend until otherwise directed by the police officer or court, as the case may be.

99(4): released person must not leave Singapore without the permission of the police officer or the court.

Can The Accused Person leave jurisdiction While on Bail?

S 99(4), CPC: the accused person must not leave Singapore without the permission of the police officer or the court.

(5) Such permission, if granted, must be evidenced by an endorsement on the bond specifying for how long and the place to which the permission applies.

(6) Such permission may be granted only on the personal application of the released person in the presence of his surety or sureties, if any.

If accused absconds, surety’s bail will be forfeited; court has discretion to remit some or all: Loh Kim Chiang v Public Prosecutor [1992] 2 SLR(R) 48; [1992] SGHC 116.

An application must be made to the Court to apply for the accused person to leave the jurisdiction.

Court of Appeal Posits Principles on Evidence in Granting or revoking bail

Public Prosecutor v Sollihin bin Anhar [2015] 3 SLR 447 (CA)

Save for the fact that bail must be granted at the first mention in cases involving bailable offences pursuant to s 92(1) of the CPC, all bail decisions in relation to the granting or denial of bail for non-bailable offences, the quantum of bail, the imposition of bail conditions and the revocation of bail entail the exercise of judicial discretion: [23].

It is thus often said that a bail decision entails balancing the right of the accused to liberty before he has been convicted with the interests of the community as a whole. The latter covers a broad based range of considerations including the need to secure the attendance of the accused, which is a matter of importance to society because it is directed at upholding the efficacy of the criminal justice system. Other aspects of the interests of society include the need to guard against the possibility of witnesses being tampered with which could prejudice a fair trial or against the danger of further offences being committed by the accused if he were not confined. The court, in appropriate circumstances, will similarly also take into consideration other factors in the accused person’s interest such as his health or the fact that trial is being unduly delayed. The making of a bail decision has therefore been described as a balancing of “the bi-focal interests of justice – to the individual involved and society affected”: [24].

While the granting or revocation of bail entails a balancing exercise between the interests of the individual and those of society, bail proceedings are also recognised as being interlocutory in nature (see Mohamed Razip v PP [1987] SLR(R) 525 at [15]). As such, the court does not undertake a rigorous fact-finding process. Rather, bail proceedings are conducted expeditiously and in the course of such proceedings, the court, without applying the strict rules of evidence, conducts the balancing exercise described above. In doing so, the court must of course assess the evidence that has been adduced but not with a view to making factual findings. For example, in PP v Yang Yin [2015] 2 SLR 78 (“Yang Yin”), the revisionary court was invited to review a decision to grant bail to an accused charged with a non-bailable offence. In revoking the bail that had been granted, the court considered the evidence adduced and assessed whether in totality, there were grounds to believe that there was a real risk of the accused absconding. In this regard, the court did not endeavour to determine as a fact by applying any particular standard of proof that the accused would abscond if granted bail. On the contrary, the court specifically refrained from making any determinative findings of fact: [25].

Indeed, it is essential that a court should avoid making such findings of fact in interlocutory applications because any such finding, if made, could potentially have a bearing on the ultimate questions that might have to be decided at trial. As seen from this case itself, it could certainly prejudice the accused in the present proceedings if the court were to make a finding of fact, based on either standard of proof, that he had breached the Bail Condition by tampering with witnesses, especially given that the accused has also been charged for the very offence of tampering with witnesses which has not yet been tried: [26].

In our judgment, given the nature of bail proceedings, which are in a sense, sui generis, it would be inappropriate to apply any specific standard of proof of the sort that a court usually takes reference from in the context of a trial where it is called upon to make determinative findings of fact. This analysis applies to bail-related applications brought under ss 102(1) and 103(4) of the CPC: [27].

On ss 102(1) and 103(4) of the CPC, under s 103(4), the court may revoke or vary bail conditions when “the court thinks” that the accused “is unlikely to surrender to custody, or to make himself available for investigations or to attend court” or “has broken or is likely to break any conditions of his bail or personal bond” [emphases added]. Save where there is an allegation that the accused has broken any conditions of bail, all the other criteria require the court to form a predictive view of what it “thinks” is “likely” or “unlikely” to happen. This is not language that calls for any particular standard of proof in the conventional sense to be applied simply because it is not language that is directed at findings of fact being made. Rather, it is language that calls for an assessment to be made of the various competing considerations. This, indeed, was the approach taken in Yang Yin. The court, when engaged under s 103(4), should therefore not make findings of fact; rather, it should consider the evidence and then, having regard to all the evidence that is before it and allocating to that evidence such weight as is appropriate having regard to its quality, specificity, and inherent probability or improbability, ask itself whether it “thinks” that the consequences stated are “likely” or “unlikely”. It should then consider the question of whether to vary the original orders it made in relation to bail in that light, keeping firmly in mind the fact that it is ultimately engaged in a balancing exercise between the interests of the accused person and those of society as a whole: [30].

As for s 102(1), although the words used are that bail may be revoked or varied when “a material change of circumstances” or “new facts” are “shown”, it nonetheless does not require a court to make any determinative findings of fact. Rather, it only refers to situations where the court is required to consider new or newly discovered facts, events or evidence and then undertake the balancing exercise to decide whether to revoke or vary a prior bail decision: [31].

With specific regard to s 103(4)(b), the analysis should not change even where the allegation is that the accused “has broken a condition of bail”. It must be emphasised that the word used is that the court “thinks” rather than “finds” that the bail condition has been breached. This also follows from the fact that in the context of such an application, the court remains concerned with a balancing exercise which it must conduct with a measure of expeditiousness and usually on the basis of affidavits and without oral evidence that is tested by cross-examination. The revocation of bail in such circumstances is a consequence of the court’s conclusion that the balance of interests has shifted; the grant of bail is not revoked as a punishment imposed for breaching the bail condition: [32].

Hence, a decision to revoke bail pursuant to s 103(4)(b) of the CPC is not to be justified on the grounds that it is to punish the accused for breaching a bail condition. The condition would have been imposed in the first place to enable the court to strike a suitable balance between the interests of the accused and those of society. If that balance has shifted, then the court may intervene. But the fact remains that the breach or anticipated breach of the condition is only a factor, albeit a potentially important one, in the balancing exercise which remains the premise of any decision to revoke bail – and so the question for the court is whether that balance has shifted. It thus follows that even where the allegation concerns an actual breach of a bail condition, the court seized of the matter need only decide whether it “thinks” there was a breach. There is no requirement for the court to make any finding that there has in fact been a breach and it needs only to assess the evidence in line with the balancing exercise: [34].

Any revocation of bail under s 102(1) of the CPC should, similarly, not be done for the purpose of punishing the accused for any subsequent acts he might have committed while on bail. Rather, in this situation also, the court is engaged in the balancing exercise that described and it considers whether in the light of the new evidence or the change of circumstances, the balance between the interests of the accused and those of society has shifted away from the initial grant of bail or from the terms on which bail was granted to such an extent that bail should be varied or revoked. Again, this does not encompass any fact-finding on the part of the court: [35].

Bail Pending Appeal

When a lower court decision is being appealed against, the accused person can apply to the court the decision to be stayed, and apply for bail pending the appeal. S 383, CPC 2010 provides that no appeal shall operate as a stay of execution, but the trial and appellate courts may stay execution on any judgment, order, conviction or sentence pending appeal on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in such judgment, order, conviction or sentence as to the court seems reasonable.

The burden is on the accused to convince the court of his reasons. Such considerations include

the gravity of the offence,

the likelihood of the accused absconding,

the possibility that the accused would be involved in other offences while he is on bail.

An important factor is the length of the potential imprisonment the accused would face compared with the time it takes for the appeal to be heard.

Bail would normally be granted where the length of imprisonment is relatively short since it would otherwise render the results of a successful appeal nugatory if the accused had already served his sentence by the time the appeal is heard: Ralph v Public Prosecutor [1971–1973] SLR(R) 365; Loh Kok Siew v Public Prosecutor [2002] 2 SLR(R) 186.

A special category of bail pending appeal is referred to in s 389 CPC 2010.

High Court may, where it is informed that the Public Prosecutor intends to appeal against the acquittal of an accused person in the High Court and on the application of the Public Prosecutor, order that the accused be remanded in custody for up to 24 hours pending the filing of the notice of appeal by the Public Prosecutor.

Where the Public Prosecutor proceeds to appeal against an acquittal after making the aforementioned application, the High Court that acquitted the accused may then commit him to prison pending the disposal of the appeal or admit him to bail.

(Section 389 CPC 2010 replaces s 49(3) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev  Ed)  (“SCJA”)  which  has  been  repealed  as  of  2  January  2011.)

Public Prosecutor (Deputy Public Prosecutor) v Norman bin Ismail [2008] 4  MLJ  830:

In this case, the court had to consider whether to exercise its discretion to make an order to remand the accused person, who had been acquitted of drug trafficking, or admit him to bail.

The court held that the provision serves the specific  purpose  of  ensuring  that  the  prosecution’s   right of appeal is not rendered academic or nugatory as a result of the absence of non-attendance of the accused.

The provision was construed as being intended to facilitate a full hearing of the appeal on its merits so that justice is not only done to the accused but also to the public and the State.

Duties of Sureties

S 104, CPC states the duties of sureties:

To ensure released person’s attendance;

Keep in daily communication with accused;

Lodge police report within 24 hours of losing contact;

Ensure accused is within Singapore unless permitted by Court.

Breach of duties renders bond liable to forfeiture: s. 104(2), 107.

Surety has to show cause why the entire bond should not be forfeited.

Orders made on forfeiture of bond are appealable: s. 108.

Discharge Bond

S 105 CPC. Sureties may at any time apply to discharge the bond so far as it relates to them.

On receiving such an application, the court may issue an arrest warrant for the released person to be produced before it.

Upon the appearance of the released person, the court must discharge the bond wholly or so far as it relates to the applicant and must call on the released person to provide other sufficient sureties.

Bail breach: Forfeiture of Bond

S 107, CPC provides that when it is proved to the satisfaction of the court that the bond is forfeited, the court must record the basis of such proof, may summon any person bound by the bond and may call upon him to pay the amount of the bond or to explain why it should not be paid: Valliamai v Public Prosecutor [1962] MLJ 280.

The burden of satisfying the court of relief against full penalty or that the full sum should not be forfeited lies with the surety: Re Ling Yew Huat & Anor [1990] 2 MLJ 124.

Forfeiture of full sum unless fair and just to do otherwise

There are several factors to be taken into consideration in deciding the quantum or proportion of the bail bond that ought to be forfeited.

Emphasis on the culpability of the surety in the failure to secure the attendance of the accused, including the efforts taken to secure attendance by the surety.

If the explanation is inadequate and the amount of the bond is not paid, the court may recover the  amount  in  full or  in  part  by  issuing  an  order  for  the  attachment  and  sale  of  the  surety’s  property and, in the event that the amount of the bond cannot even be recovered by attachment and sale, commit the surety to prison for a period not exceeding 12 months.

Insufficient excuse for surety: faith alone that the accused would return, without doing anything more; contacting family; mere making of a police report; publishing in the newspaper a notice of the accused’s disappearance: Public Prosecutor v Eyu Siew Hwa [2003] SGDC 41; Public Prosecutor v Ram Ghanshamdas Mahtani and another action [2003] 1 SLR(R) 517.

In Loh Kim Chiang v Public Prosecutor [1992] 2 SLR(R) 48; [1992] SGHC 116 it was held:

When a defendant for whose attendance a person stood surety failed to appear, the full recognisance should be forfeited, unless it appeared fair and just that a lesser sum should be forfeited or none at all.

The burden of satisfying the court that the full sum should not be forfeited rested on the surety and was a heavy one.

It was for him to lay before the court the evidence of want of culpability and of means on which he relied.

Where a surety was unrepresented the court should assist him by explaining these principles in ordinary language, and giving him the opportunity to call evidence and advance argument in relation to them: at [23].

On the facts, another point which reduced the surety’s culpability was the fact that the accused did attend court with the surety on all the dates she was required to attend, including the earlier date fixed for her trial, but which had to be vacated due to counsel’s indisposition.

It was the further date which was fixed for trial that the accused failed to keep.

However, on the facts, the surety did not appear to have kept in touch with the accused, and only at the last moment sent his friend to look for her as he could not go to Malaysia without a visa.

Therefore, the surety must take some of the blame for the accused’s failure to surrender to her bail: at [24] and [25], [26] and [27].

The administration of criminal justice could not function effectively without the bail system, and persons must not be discouraged from coming forward to stand bail.

Section 361(4) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) [s. 107, CPC 2010] accorded discretion to the court to remit any portion of the penalty and to enforce payment in part only.

It provided the court the opportunity to weigh the culpability of the bailor and to act fairly and justly in determining whether the full amount of the bail should be forfeited or a lesser sum or none at all.

In all the circumstances of this case, the Court held it would be a proper exercise of discretion to remit half the amount of the bail and enforce payment of the other half: at [31].

Bail and Backdating of Sentences

Generally, a sentence of imprisonment takes effect on the date it was passed unless court otherwise directs (s 318, CPC). However, the court has the discretion to backdate the sentence to the first remand.

Generally the sentence cannot be backdated to the first remand date if the remand period was interrupted by bail.

While the period of bail is generally irrelevant for the purposes of backdating of sentences, the court would as a general rule not backdate it to include the period where the accused was out on bail: Tan Kin Seng v Public Prosecutor [1996] 3 SLR(R) 444; see also Mani Nedumaran and another v Public Prosecutor [1997] 3 SLR(R) 717.

For the general factors which a court takes into account when deciding whether to backdate a sentence, see Chua Chuan Heng Allan v Public Prosecutor [2003] 2 SLR(R) 409.

Appendix: former Subordinate Courts’ (Now State Courts’) Bail Guidelines

Factors to determine whether to grant bail

Probability of appearance at trial

(i)  whether the accused has a fixed place of abode within the jurisdiction;

(ii)  whether the accused is domiciled or is a permanent resident in the country;

(iii)  the nature and seriousness of the offence, the punishment prescribed and the likely sentence to be imposed upon conviction i.e. whether there is a provision for a fine or mandatory custodial sentence or other punishment such as caning;

(iv)  the nature and the strength of the evidence in support of the charge e.g. where the evidence comprises confessions, admissions, material eye-witness accounts, or is supported by medical or scientific evidence such as HSA reports;

(v)  whether the accused, if released on bail, is likely to abscond;

(vi)  whether the accused has made an attempt to leave the jurisdiction without the permission of the court or the investigating officer;

(vii)  the extent of the accused’s ties and roots in Singapore.

Likelihood of interference with the judicial process

(i)  whether there is evidence of a likelihood that the accused will tamper with prosecution evidence;

(ii)  whether the accused is likely to procure false evidence either in support of his defence or to exonerate other accused persons involved in the commission of the offence;

(iii)  whether the accused is likely to convey information acquired during the investigations to other accused persons not yet arrested or charged for the offence.

Public safety considerations

(i)  where offences against the person are involved, whether the attack was deliberate, provoked, triggered by frustration or motivated by vengeance.

(ii)  whether the attack was by a group/secret society, gang or triad;

(iii)  the nature of violence inflicted on the victim and the extent of injuries suffered;

(iv)  the type of weapon or corrosive substance used;

(v)  whether the accused is likely to repeat the offence while on bail;

(vi)  whether the accused has displayed a propensity towards violence and can be regarded (possibly after psychiatric assessment from IMH) as one who has no respect for life and property;

(vii)  the number of charges preferred against the accused;

(viii)  whether the accused is a persistent offender with previous criminal convictions for serious or violent offences. In such cases, the previous conviction or record of the accused shall not be referred to in a manner that will prejudice his or her right to a fair trial. Furthermore, the court may in its discretion either hear the proceedings in camera or exclude from the proceedings all those other than the officers of the court, persons directly concerned with the proceedings and the press and such other persons if any as the court may permit to remain. It should be noted that when the press is allowed to remain, no information relating to the criminal record of the accused applying for bail should be published in a written publication or be broadcast.

Preparation of the defence

(i)  whether in the circumstances of the case, and the nature of the alleged offence, a refusal of bail would deprive the accused of the opportunity to adequately prepare his defence;

(ii)  whether there is a likelihood of the prosecution withdrawing or reducing the charges;

Likelihood of obtaining further evidence by remand

(i)  whether sufficient evidence has been obtained to raise a reasonable suspicion that the accused may have committed the alleged offence and it appears likely that further evidence may be obtained by investigators during a short period in remand;

(ii)  whether the period of remand requested by the police is reasonable in the circumstances of the case.

Humanitarian grounds

(i)  the long period of detention of the accused and probability of further period of delay in the accused’s trial;

(ii)  the likelihood of the trial being protracted resulting in a long period in remand;

(iii)  age, sex and state of health of the accused in remand.

Other factors

(i)  whether the accused had previously been refused bail by another court and is awaiting trial;

(ii)  the accused’s previous conduct and behaviour in court;

(iii)  whether the principal accused, accomplices and co-accused (if any) have been offered bail;

(iii)  whether the accused surrendered himself to the authorities;

(iv)  whether the accused co-operated with the authorities and assisted in the investigation to recover evidence or misappropriated other property;

(v)  whether the accused had made restitution in part or in full;

(vi)  whether the accused had shown any remorse for the commission of the offence/s;

(vii)  whether the accused is addicted to a controlled drug or other intoxicating substance/s

Factors For Court to determine bail amount

The suggested bail quanta listed below are intended only to serve as general guidelines. They may be adjusted upwards or downwards depending on the facts and circumstances of the case, bearing in mind considerations such as:

the seriousness of the offence(s) – including the likely sentence upon conviction and any mandatory sentences;

the number of charges involved;

the accused’s antecedents (if any);

the accused’s individual circumstances, including his means of raising bail;

where the offence relates to property, the benefits obtained or loss caused 
by the accused, including the value of any unrecovered property;

whether the accused surrendered himself.

The court will also evaluate, based on available evidence, the likelihood of the accused absconding if he is released on bail and consider what would be an appropriate amount to secure his attendance.

As a general guide, bail in respect of offences investigated by the police and other enforcement agencies is set at $5,000 upwards. Bail in respect of regulatory offences is usually set at between $1,000 to $5,000. These include offences under the following legislation and subsidiary legislation, which do not attract mandatory imprisonment and usually result in the imposition of fines only (in the case of first offenders) upon conviction:

Copyright Regulations

Environmental Public Health Act and Regulations

Hire-Purchase Act

Immigration Regulations

Parking Places Act and Rules

Property Tax Act

Public Utilities Regulations

Road Traffic Rules

Town Councils Act

General Bail Formulae

S/No Punishment Prescribed Bail Amount Guide
1. Offence is punishable with fine only $1,000 – $5,000 or
Up to the maximum fine
2. Offence is punishable with mandatory minimum fine Consider setting bail at minimum fine amount or upwards
3. Offence is punishable with imprisonment for up to 1 year $2,000 – $10,000
4. Offence is punishable with imprisonment for up to 3 years $5,000 upwards
5. Offence is punishable with imprisonment for up to 5 years $10,000 upwards
6. Offence is punishable with imprisonment for up to 7 years $10,000 upwards
7. Offence is punishable with imprisonment from
7 years upwards $20,000 upwards
8. Offence is punishable with mandatory imprisonment term * $6,000 upwards
9. Offence is punishable with mandatory caning * $10,000 upwards
10. Offence is punishable with either Mandatory minimum imprisonment of 1 year * OR
Mandatory minimum caning of 3 strokes * $12,000 upwards
11. Offence is punishable with either

Mandatory minimum imprisonment of 2 – 3 years

*
OR
Mandatory minimum caning of 6 strokes *

$20,000 upwards
12. Offence is punishable with either Mandatory minimum of 5 years upwards * OR
Mandatory minimum caning of 12 strokes * $30,000 upwards
* To consider scaling bail amount upwards if offence is punishable with mandatory minimum imprisonment term AND caning
Note Where the offence relates to property and the property is not recovered, the bail amount should generally bear some proportion to the value of the unrecovered property.

Additional Conditions on Bail

Some additional conditions that the court might impose in the bail bond are that: –

(i) the accused refrains from attending such premises or other place as the court may specify;

(ii) the accused should not approach or communicate with the victim and/or other witnesses whilst released on bail;

(iii) (in cases involving domestic violence) the accused voluntarily leaves the matrimonial home and takes up residence elsewhere i.e. to reside or remain in a particular place in the State to prevent interference with the family;

(iv) the accused reports routinely (e.g. daily/weekly) to the nearest police station at specified intervals to ensure that he remains within the jurisdiction;

(v) the accused surrenders all travel documents forthwith to the Investigating Officer;

(vi) where the accused was granted permission to leave the jurisdiction, he reports to the Investigating officer (IO) upon his arrival within the jurisdiction and surrenders to the IO his international passport and/or other travel documents;

(vii) the accused furnishes a signed promise by trustworthy persons or an organization that they would ensure his proper conduct and appearance in court.

Factors to determine application by accused to leave jurisdiction

When such applications are made before or during the trial, subject to the surety’s consent being obtained, the following factors are relevant in deciding whether to allow the application, and in assessing an appropriate amount of bail to secure the attendance of the accused, namely:

a)  whether the accused is a foreigner.;

b)  whether the accused is gainfully employed and is either working or has business interests outside the jurisdiction; If so, the court may require the production of documents to substantiate the type of business, course, conference etc. requiring the accused’s attendance and ascertain the length of time required for the accused to remain outside the jurisdiction (e.g. return air-tickets, visa etc);

c)  whether the accused has family, property and business interests within the jurisdiction that ought to deter him from absconding;

d)  whether the accused has made full or substantial restitution in respect of the offence/s charged;

e)  the seriousness of the charges against the accused;

f)  whether there is a likelihood of the prosecution amending the charges to lesser ones;

g)  whether there is a valid defence to the charges;

h)  whether the case is still under investigation;

i)  the possibility of interfering with prosecution witnesses who may reside overseas or with documentary evidence that may be located overseas;

j)  whether the accused is required to keep to a curfew, remain at a particular place or required to undergo regular urine tests at a particular police station on specified dates;

k) whether the accused will be posting additional bail as added security to cover the period of the trip.

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