Criminal lawyers question why sex bloggers not given bail

What if the sex bloggers are found not guilty?

The time spent in jail as remand prisoners cannot be reversed and this would amount to a travesty of justice for sex bloggers Alvin Tan and Vivien Lee.

In pointing this out, criminal lawyers are aghast the infamous couple were not granted bail when they were charged yesterday with three charges related to their Ramadan bak kut teh greeting on their Facebook page and pornographic pictures in their blogs.

"They are innocent until proven guilty," said Rajpal Singh.

Rajpal said under normal circumstances bail would have been offered to those who were charged with similar offences faced by the two.

"I feel bail should have been offered to the two because they did not plead guilty to the charges," he said.

He said Sessions court judge Murtazadi Amran did not use his discretion to offer bail judiciously.

Criminal law lecturer Datuk Baljit Singh Sidhu said Section 389 of the Criminal Procedure Code clearly states that bail is offered to secure the presence of the accused in court.

He said case laws over the years had also emphasised that the court could offer bail to accused persons provided there was no attempt to interfere with witnesses.

Other reasons could be that the accused did not abscond or tamper with evidence, he said.

He pointed out that in non-bailable offences like murder, they were instances when the court had offered bail.

In 2002, the High Court set a precedent by releasing murder accused Datuk Balwant Singh on RM500,000 bail in two sureties pending hearing.

The reason being the accused was in his advanced age and that he suffered from medical complication. Balwant was imposed several other conditions, including to remain at home from 6pm to 8am.

Given this example, Baljit said he was perplexed when the Sessions court judge agreed with the prosecution that the couple had the tendency to upload content that stirred up public anger.

"With respect, this suggestion is totally unfounded and an error of law was committed by the judge," he said.

Lawyer Paul Krishnaraja said having read the court proceeding yesterday he too was stunned that the judge had applied the wrong principle in rejecting bail.

"Was the judge reacting differently because the case generated wide publicity in the media?" he asked.

He said the judge had the power to impose conditions in giving bail.

Paul said the couple should file a motion before the High Court to secure their freedom pending the outcome of the trial.

"They cannot be compensated for being remand prisoners if they are found not guilty at the end of the trial," he said.

In the first charge, they were jointly accused of making a seditious posting on their Facebook page by uploading a photo of themselves eating bak kut teh (a pork dish) with the greeting Selamat Berbuka Puasa with bak kut teh (fragrant, delicious and appetising) together with the halal logo.

The charge is under subsection 4(1)(c) of the Sedition Act 1948, which is punishable under subsection 4(1) of the same Act and read together with Section 34 of the Code Penal.

If convicted they face a fine up to RM5,000, an imprisonment up to three years or both, and imprisonment up to five years for subsequent offence.

In the second charge, Tan and Lee were accused of displaying pornographic pictures on their blog.

They were charged under subsection 5(1) of the Film Censorship Act 2002, which is punishable under subsection 5(2) of the same Act which carries a fine of between RM10,000 and RM50,000 or imprisonment of up to five years or both.

The two were accused of uploading on their Facebook page the same picture and comment which were likely to cause religious enmity between people of different faiths.

They were charged under Section 298A(1)(a) of the Penal Code which carries imprisonment of between two and five years.