Introduction

 [1]        When someone is arrested, one of the first questions people often ask is: Can they get bail? Bail is a legal process that allows a person to be temporarily released from custody while waiting for their trial. Whether bail is granted depends on the type of offence involved.

[2]        In Malaysia, every accused person is presumed innocent until proven guilty. However, the right to bail depends on the seriousness of the offence. Generally, offences fall into three categories: bailable, non-bailable, and unbailable.

[3]        If the offence is bailable, accused is entitled as of right to bail. For non-bailable offences, the court has the discretion to either allow or deny bail. If it is unbailable, bail is refused outright.

[4]        Section 387 of the Criminal Procedure Code (“CPC”) governs bailable offences, while Section 388 CPC applies to non-bailable offences. The CPC does not specifically address unbailable offences, which are typically excluded from bail under other specific laws.

[5]        The purpose of bail is to secure the attendance of an accused person at a certain day and place to answer the charge against him. It is not intended to be punitive[1] and excessive bail ought not to be required[2].

[6]        In granting bail, the Court may, in addition to stating the amount of bail and the number of sureties, impose an additional condition requiring the accused person to surrender his passport.

 

The Law

[7]        Bailable offence means an offence shown as bailable in the First Schedule (of the CPC) or which is made bailable by any other law for the time being in force and “non-bailable offence” means any other offence[3].

 [8]        The classification of offences as bailable, non-bailable, or unbailable is outlined in the First Schedule of the CPC. This schedule links the severity of punishment to the availability of bail, covering offences under both the Penal Code and other laws.

 

OFFENCES AGAINST LAWS OTHER THAN THE PENAL CODE
If punishable with death, or imprisonment for seven years or upwards	May arrest without warrant	Warrant	Not bailable	Not compoundable
If punishable with imprisonment for three years and upwards, but less than seven years	do.[4]	do.	do.	do.
If punishable with imprisonment for less than three years	Shall not arrest without warrant	Summons	Bailable	do.
If punishable with fine only		do.	do.

 

[9]        For example, an offence under section 14(a) of the Sexual Offences Against Children Act 2017, which carries a maximum imprisonment term of 20 years upon conviction, falls under the category of non-bailable offences as set out in the First Schedule of the CPC.

[10]     Unlike bailable offences, a person arrested for a non-bailable offence does not have an automatic right to bail. Under section 388 of the CPC, the court may grant bail unless there are reasonable grounds to believe the accused has committed an offence punishable with death, life imprisonment, or imprisonment of up to 40 years. Section 388 of the CPC reads: –

 

Section 388. When person accused of non-bailable offence may be released on bail.

 

(1) 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 or imprisonment for a term which may extend to forty years: 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.

 

[11]      The discretion to grant or not to grant bail must be exercised judicially[5].

 

The Matters for Consideration in Granting or Refusing Bail 

[12]     The factors to be considered when deciding whether to grant or refuse bail are outlined in Mallal’s Criminal Procedure (4th Edition, p. 551), and include the following[6]: –

 

1.	the nature and gravity of the offence charged;
2.	the nature of the evidence in support of the charge;
3.	whether there was or was not reasonable ground for believing the accused guilty of the offence;
4.	the severity and degree of punishment which conviction might entail;
5.	the guarantee that the accused, if released on bail, will not either abscond or obstruct the prosecution in any way;
6.	the danger of the offence being continued or repeated;
7.	the danger of the witnesses being tampered with;
8.	whether the accused, if released on bail, is likely to tamper with the prosecution evidence;
9.	whether the accused is likely to setup false evidence in support of the defence;
10.	the opportunity of the accused to prepare the defence;
11.	the character, means and standing of the accused; and
12.	the long period of detention of the accused and probability of further period of delay.

 

[13]     These considerations are not exhaustive. Courts may expand or adapt them over time as the law on bail continues to develop.

[14]     In Yusof Mohammed v Public Prosecutor[7], the court added further factors to consider in bail applications: –

 

1.	the larger interest of the public and the country as a whole; and
2.	various other considerations which may arise in the case such as the propensity, the tendency or the likelihood of the accused participating in the commission of further offences, or his proximate likely attitude, conduct or tendency towards matters, persons or things around him, or in connection with or in relation to the case at hand.

 

[15]     In Leang Win Son v Public Prosecutor[8], the court refused bail because it believed releasing the accused could endanger children. He had previously pleaded guilty to five serious offences, including possessing child sexual abuse materials and abducting a child, whom he took nearly 380 kilometers from her home. These past actions raised concerns about his behaviour and the risk of reoffending. The judge noted that if the current charge had been unrelated to his earlier crimes, bail might have been considered. However, due to the similarity in conduct, the court found it safer and more responsible to keep him in custody while the case proceeds.

 

Specific provisions under the Dangerous Drugs Act 1952 (“DDA”)

 [16]     There are specific provisions under the DDA regarding bail applications.

 

No bail to be granted in respect of certain offences

41B.	(1)	Bail shall not be granted to an accused person charged with an offence under this Act—
		(a)	where the offence is punishable with death;
		(b)	where the offence is punishable with imprisonment for more than five years; or
		(c)	where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.
	(2)	Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.

 

[17]     This provision overrides Section 388 of the CPC, which usually gives the court discretion to grant bail in non-bailable cases.

[18]     In PP v. Leong Ying Ming[9], the Supreme Court ruled that an offence under Section 39A(2) of the DDA, which carries a mandatory minimum sentence of five years’ imprisonment, falls under the absolute prohibition in Section 41B(1)(b).

[19]     Bail is allowed under Section 39A(1) of the DDA.

[20]     At the time of writing, there are two conflicting High Court decisions on whether bail should be granted for offences under Section 15(1)(a) of the DDA, which carry heavier penalties under Section 39C(1)(b)[10]. Since the law is still unsettled, this issue can only be resolved once the apex court delivers a definitive ruling.

[21]     In the case of Waazan A/L Balaraman v PP[11], the accused was charged with drug trafficking under Section 39B(1)(a) of the DDA and applied for bail on humanitarian grounds due to stage 4 testicular cancer requiring chemotherapy. The High Court rejected the application, ruling that Section 41B of the DDA overrides general bail discretion, and bail is absolutely prohibited for capital drug offences.

[22]     However, denial of bail does not mean the accused loses the right to medical care. Under Section 37 of the Prisons Act 1995, the Prison Medical Officer must ensure that any ill detainee is referred to a government hospital for appropriate treatment.

 

What if the accused failed to attend court?

[23]     If the accused fails to appear in court, the court will issue a warrant of arrest and a show-cause notice to the bailor. The court may then consider revoking the bail, but only after giving the accused an opportunity to explain their absence.

[24]     If bail is revoked, the court may still grant fresh bail with appropriate conditions and sufficient sureties. Only if the accused fails to meet these new conditions can the court order that they be remanded in custody. Even if the accused has a poor record, they remain entitled to bail as of right in bailable offences, and the court cannot deny bail outright without lawful justification[12].

[25]     However, if the accused is found to be interfering with the course of justice, such as by tampering with witnesses, the court may consider revoking bail. Even in such cases, the court must first give the accused a chance to be heard. Any application by the prosecution to revoke bail must be supported by credible and specific evidence; vague or unsubstantiated allegations are not sufficient[13].

 

Is a foreigner entitled for bail for offences committed in Malaysia?

[26]     The fact that the accused is a foreign national does not automatically disqualify them from being granted bail, especially when the charges involve bailable offences. Article 8(1) of the Federal Constitution guarantees “equality before the law” and the right to legal protection, regardless of whether the person is a Malaysian citizen or a foreigner and this includes matters relating to bail[14].

 

Conclusion

[27]     Bail is more than just a legal term. It’s a safeguard that balances the rights of an accused person with the interests of justice and public safety. In Malaysia, whether someone can be released on bail depends on the type of offence, the circumstances of the case.

 

[1] Zulkifflee bin Hj Hassan v PP [1987] 2 MLJ 527

[2] Section 389 of the CPC, “The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested, but shall not be excessive; and a Judge may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail or that the bail required by a police officer or Court be reduced or increased.”

[3] Section 2 of the CPC

[4] In this context, “do.” is an abbreviation for “ditto”, which means “same as above”.

[5] Public Prosecutor v Mat Zain [1948-49] MLJ Supp 142

[6] Che Su Daud v Public Prosecutor [1978] 2 MLJ 162

[7] Yusof Mohammed v Public Prosecutor[7] [1995] 3 MLJ 66, HC

[8] Leang Win Son v Public Prosecutor [2025] MLJU 3384, HC

[9] PP v. Leong Ying Ming [1993] 2 CLJ 143, Supreme Court

[10] Yong Wai Kee lwn Pendakwa Raya [2025] MLJU 3089, HC

[11] Penang High Court Criminal review PB-44-12-08/2025

[12] MOHD JALIL BIN ABDULLAH & ANOR v PUBLIC PROSECUTOR [1996] 5 MLJ 564

[13] Phang Yong Fook v PP (1988) 1 MLJ 267

[14] PENDAKWA RAYA LWN LEE KIM TUYEN [2020] MLJU 409, HC