What is the difference between bailable, non-bailable and unbailable offences? Before we that, we must first understand what does bail itself means.
A bail is defined as “a delivery or bailment, of a person to his sureties, upon their giving… sufficient security for his appearance, he being supposed to continue in their friendly custody, instead of going to gaol”
To make it simple, a bail is a payment of security you make, to secure that your attendance to the Court. In Bahasa Malaysia, bail is known as jamin.
In normal criminal cases where you are charged for a criminal offence. If it’s a warrant case, you’ll usually be brought to Court in handcuffs and the charges made against you will be read to you. If you plead not guilty, the Court will fix a trial date for your case to heard.
While waiting for the trial date, you will be under the police custody or you can choose to apply bail while waiting for trial.
However, not type of offence have automatic right to bail.
For instances, if you’re charged under unbailable offence which is usually offences that are quite serious in nature such as s12 of the Firearms (Increased Penalties) Act 1971, s41B Dangerous Drug Act 1952 & etc. Do take note that, in the event you are charged under these cases you are not allowed to bail yourself at all.
For non-bailable offence, generally, you are not allowed to have bail unless you can satisfy under the 3 exceptions laid down in s388 of the Criminal Procedure Code:
- There are no reasonable grounds to believe that the accused is guilty but there is sufficient ground for further inquiry;
- There are reasonable grounds to believe that the accused is guilty;
- The accused is under 16 years old or any woman or any sick or infirm person.
In first type situation, the accused is allowed to have bail however it is subjected to the court discretion and decided case law.
In second type situation, the accused is not allowed to have bail.
In third type situation, the accused is allowed to have bail as of right.
However, there are instances where the bail is granted as of right which only applies on bailable offences. If the accused is charged under bailable offences, the bail shall be granted to the accused as of right.
Therefore, not every case has an automatic right of bail.
