When can courts impose conditions on bail in Malaysia?

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Courts Can Impose Conditions on Bail for Non-Bailable Offences in Malaysia

In Malaysia, courts can impose conditions on bail when an accused person is charged with a non-bailable offence. This discretion is granted under Section 388 of the Criminal Procedure Code, allowing the court or a police officer to release an individual on bail under specific circumstances. In contrast, for bailable offences, where an accused has a statutory right to bail, the imposition of conditions is generally not permissible as there is no discretion to refuse bail.
Bail for Non-Bailable Offences Involves Discretion

The legal framework in Malaysia, as outlined in Chapter XXXV of the Criminal Procedure Code, distinguishes between bailable and non-bailable offences. Section 388 specifically empowers police officers or the courts to exercise discretion in granting bail to individuals accused of non-bailable offences. This discretionary power, drawing from interpretations of Indian legal authorities, implies the ability to attach certain conditions to the bail order.
Conditions Are Not Permitted for Bailable Offences

For bailable offences, Section 387 of the Criminal Procedure Code establishes an accused person's right to bail. In such cases, once the accused is prepared to provide the stipulated bail, the court lacks the discretion to refuse it. Consequently, the legal principle established is that where there is no discretion to refuse bail, there is no power to impose conditions on the bail order itself.
A Recent Case Illustrates a Departure from Principle

Despite the established legal position, a recent instance, the case of Tamim Dahri, involved an accused charged under Section 295 of the Penal Code, which is classified as a bailable offence. Although the offence is bailable, the court granted bail with several conditions, including a RM10,000 bail sum, two sureties, surrender of passport, and bi-weekly reporting to the police. This case appears to deviate from the general rule that conditions cannot be imposed on bail for bailable offences.

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When can courts impose conditions on bail in Malaysia?

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