What is the Malaysian legal stance on imposing bail conditions when refusal is not an option?

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Bail Conditions When Refusal Is Not an Option Under Malaysian Law

In Malaysian law, when an offense is bailable, the accused has a right to bail, and no conditions can be imposed if they are prepared to provide it. This principle stems from the interpretation of Section 387 of the Criminal Procedure Code, which grants no discretion to refuse bail in such instances. Consequently, the imposition of conditions on bail for bailable offenses is legally untenable, as the power to impose conditions is intrinsically linked to the discretion to refuse bail, a power absent when the offense is bailable.
Right to Bail for Bailable Offenses

Malaysian criminal procedure law distinguishes between bailable and non-bailable offenses. For bailable offenses, Section 387 of the Criminal Procedure Code establishes an entitlement to bail. This means that if an accused person is prepared to furnish the required bail, the court or police officer has no legal basis to deny bail. The absence of discretion to refuse bail directly precludes the imposition of any conditions on the bail granted.
Discretionary Bail and Conditions for Non-Bailable Offenses

In contrast, Section 388 of the Criminal Procedure Code addresses non-bailable offenses, where the police officer or the Court exercises discretion in granting bail. Indian legal authorities, which influence Malaysian jurisprudence, suggest that this discretion to grant or refuse bail inherently implies a discretion to impose conditions. Therefore, for non-bailable offenses, bail bonds can include stipulations such as surrender of passport, regular reporting to the police, or limitations on travel, reflecting the court's assessment of flight risk or other concerns.
Legal Precedent on Imposing Conditions

The Supreme Court case of PP v Dato’ Mat Safuan [1991] provided significant clarity on this matter. The court affirmed that conditions cannot be attached to bail granted under Section 387 of the Criminal Procedure Code. This is because Section 387 does not grant the court the power to withhold bail when the accused is willing to provide it; thus, the issue of imposing conditions does not arise. This principle is rooted in the understanding that where there is no discretion to refuse bail, there is no power to impose conditions.
Contradictory Application in Practice

Despite the established legal stance, instances have arisen where conditions have been imposed on bail for bailable offenses. For example, in the case of Tamim Dahri, who was charged under Section 295 of the Penal Code, an offense classified as bailable, the court imposed conditions including a RM10,000 bail sum, two sureties, surrender of passport, and bi-weekly police reporting. This application appears to diverge from the established legal precedent that prohibits conditions when bail is a matter of right and refusal is not an option.

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What is the Malaysian legal stance on imposing bail conditions when refusal is not an option?

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