Can a person charged with murder be granted bail?

 

The 15-year-old girl charged with murdering a newborn baby was twice denied bail. (Bernama pic)

PETALING JAYA: The recent denial of bail for a 15-year-old girl charged with the murder of a newborn baby has led to a fierce debate on social media.

While some said a person charged with murder should not be granted bail, others argued that the girl, a rape victim, was still a teenager.

The girl’s lawyers have on two occasions sought bail for their client from both the Kuala Terengganu magistrates’ court and the High Court. They were denied on both occasions.

FMT takes a closer look at the law pertaining to bail for murder cases.

Can a person charged with murder be granted bail?

According to lawyer Kitson Foong, the answer is yes, but it is very rarely done by the court.

He said murder, being punishable by death, was considered a “non-bailable” offence under the Criminal Procedure Code (CPC). This means bail is not a right.

“For non-bailable offences, bail is not a given, but the court has the discretion to grant it at the application of the defence under Section 388 of the CPC,” he said.

He said “in maybe up to 99%” of cases, bail is not granted but there have been exceptions to this general rule.

“These include instances such as if the person is a woman, is sick or infirm or is under the age of 16.”

He cited two cases – one involving a 10-year-old boy and another involving an 80-year-old lawyer named Balwant Singh, where bail was granted.

Balwant had shot a motorcyclist on Jalan Maarof, Bangsar, after an altercation, but he was granted bail as he was sick and infirm. He was subsequently freed.

In determining whether bail should be granted, the court considers the following factors:

• The seriousness of the offence;
• The length of the jail sentence in comparison to the time needed for the appeal to be heard;
• Whether there are difficult points of law to consider;
• Whether it is the accused’s first offence;
• Whether the accused would commit another crime if released on bail; and
• Whether the security imposed would ensure that the accused would show up in court as ordered.

Family and child rights lawyer Goh Siu Lin said the court might also consider factors such as whether there were reasonable grounds to believe the accused was guilty, risk of absconding or witness tampering, the accused’s character, and opportunity for the accused to prepare his or her defence.

What if the bail application is rejected?

Lawyer Baljit Singh Sidhu said if the bail application was rejected by the court, the defence lawyers had several options.

“For instance, if the magistrates’ court rejects bail, the defence can make an application by way of Section 389 of the CPC to the High Court.

“Alternatively, the defence can wait for the case to be transmitted to the High Court and then make a fresh application for bail pursuant to Section 388 of the CPC,” he said.

If they fail, they can then take the matter to the Court of Appeal. - FMT