Navukarasan A/l Rethinasingam v Pendakwa Raya (BA-44-95-02/2024)

If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but 18/03/2024 15:22:50 Kand. 11 S/N wCf5moEprUiq8rH0Q2c6yA there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of that officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." (emphasis added) [3] The so-called exceptional grounds for the application can be gleaned from the Applicant's affidavit in support of the notice of motion, and the Applicant's main grounds for the application are the alleged long period of detention. [4] Based on the Applicant's Affidavit deposed by the Applicant's mother, the deponent averred that the Applicant was detained on 12.10.2022 and charged in the High Court on 18.10.2022 for murder under section 302 of the Penal Code. The remand period from the date of arrest is one year and five months. [5] Having read the written submissions by both parties and heard the oral submission of both counsels on 5.3.2024, we fixed the decision for 8.3.2024. [6] The Court found no exceptional ground to warrant the bail; therefore, the Court dismissed the Applicant's bail application for the reasons set out below. S/N wCf5moEprUiq8rH0Q2c6yA THE SALIENT FACTS OF THE CASE [7] At the outset, the Applicant was jointly charged with murder under section 302 of the Penal Code. [8] The charge under section 302 Penal Code reads: Bahawa kamu dengan niat secara bersama Ragunathan A/L Selvamani (nombor kpt: 860521-56-5323) yang telah dituduh dan 3 lagi yang masih bebas pada 14 Ogos 2020 antara jam 2.00 petang hingga 7.30 malam bertempat di parkir level 1, Pangsapuri Setia Impian, Jade Hill 43000 Kajang, Selangor dalam Daerah Hulu Langat, di dalam Negeri Selangor telah melakukan bunuh dengan menyebabkan kematian kepada penama Syamalan A/L Vijayakumar (nombor kpt: 930928-07-5087). Oleh yang demikian itu, kamu bersama Ragunathan A/L Selvamani (nombor kpt: 860521-56-5323) yang telah dituduh dan 3 lagi yang masih bebas telah melakukan satu kesalahan yang boleh dihukum dibawah seksyen 302 Kanun Keseksaan dan dibaca bersama dengan seksyen 34 Kanun Keseksaan. [9] The trial proceeded, and at the end of the prosecution case, on 27.10.2023, the learned Judge reduced the charge to section 304(a) of the Penal Code, and the defence was called for the reduced charge. The reduced charge reads as follows: Bahawa kamu bersama-sama 2 lagi yang masih bebas pada 14.08.2020 jam antara 1400 hrs hingga 1930 hrs di parkir Level 1, Pangsapuri Setia Impian, Jade Hill, 43000 Kajang Selangor telah melakukan kesalahan menyebabkan kematian yang tidak terjumlah kepada membunuh ke atas Syamalan a/l Vijayakumar (No. K/P: 930928-07-5087) dengan niat S/N wCf5moEprUiq8rH0Q2c6yA menyebabkan kecederaan tubuh yang mungkin menyebabkan kematian dan dengan itu kamu telah melakukan kesalahan yang boleh dihukum dibawah seksyen 304(a) Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun yang sama. [10] The Applicant claimed trial when the reduced charge was read and explained to him. [11] On the other hand, the prosecution filed an appeal to the Court of Appeal on 7.11.2023. [12] On 8.12.2023, the date fixed for the defence, the prosecution asked for a postponement pending their appeal at the COA, which the Court allowed. [13] The postponement and the appeal resulted in the Applicant being unable to defend his case against the reduced charge as alleged by the deponent of the Applicant's affidavit. ANALYSIS AND RULING [14] First and foremost, it is crucial to determine whether the offence under section 304(a) CPC is bailable or non-bailable based on the First Schedule of the CPC. S/N wCf5moEprUiq8rH0Q2c6yA [15] If it is bailable, an accused is entitled to be released on bail as a matter of right. See: PP v. Dato’ Mat [1991] 2 MLJ 186. [16] Otherwise, if it is non-bailable, any person charged with the offence is not entitled to bail as a matter of right. It is the judicial discretion of the Court to allow bail, and the burden lies on the Applicant to establish exceptional ground, which depends on the facts of each case. See Che Su binti Daud v. Public Prosecutor 1 LNS 23; [1978] 2 MLJ 162. [17] Having perused the First Schedule of CPC, it is without doubt that section 304(a) of the Penal Code is a non-bailable offence. Hence, the burden lies on the Applicant to satisfy the Court that there is exceptional ground for the Court to exercise its jurisdiction to grant bail. [18] The only ground advanced by the Applicant is as stated in paragraphs 4 and 5 above. Hence, are those grounds exceptional grounds for the Court to exercise its discretion to allow bail? [19] Several authorities guide the Court on the issue at hand. In the case of Yusof bin Mohamed v PP [1995] 3 MLJ 66, the learned High Court Judge, Abdul Malik Ishak J (as he then was), referred to the Indian CPC, which corresponds with the Malaysian CPC. The Court referred to Babu Singh & Ors v State of Uttar Pradesh AIR 1978 SC 527 at p 532, which lists the considerations that generally weigh with the Courts in deciding whether the accused should be allowed to remain on bail. These considerations are: S/N wCf5moEprUiq8rH0Q2c6yA "Since offences under ss 392, 397 and 400 of the Penal Code are non-bailable offences (see the First Schedule to the CPC), it may be appropriate, at this juncture, to list down the considerations which generally weigh with the courts in deciding as to whether the accused should be allowed to remain on bail or not. These considerations are:

(1)the nature of the offence and its seriousness;

(2)the character of the evidence on which the prosecution case rests;

(3)reasonable possibility of the presence of the accused at the trial;

(4)reasonable apprehension of witnesses being tampered with if the accused is released on bail;

(5)the larger interest of the public and the country as a whole; and

(6)various other considerations which may arise in the case such as the propensity, the tendency or the likelihood of the accused participating in the commission of further offences, or his proximate likely attitude, conduct or tendency towards matters, persons or things around him, or in connection with or in relation to the case at hand." [20] The above list is not exhaustive. As can be seen from the development of cases on the same subject matter of bail, the Malaysian court decisions show that the considerations for allowing or disallowing bail have evolved. See also: Dato' Seri Anwar Ibrahim v PP [1999] 1 MLJ 321 and Samirah v Public Prosecutor (unreported). [21] Most importantly, the Court must exercise its discretion judiciously after seriously considering the interests of all parties concerned. S/N wCf5moEprUiq8rH0Q2c6yA [22] The Court was referred by the learned counsel for the Applicant to the decision in PP v. Dato Balwant Singh [2002] MLJU 4 CLJ 155, where the accused was charged with a non-bailable offence under section 302 of the Penal Code and was entitled to bail. [23] The case of PP v. Dato Balwant Singh (supra) is easily distinguishable. The case involved an application under section 388(1) CPC. The Applicant argued that his case falls under the caveat to section 388(1) CPC, that he was a sick and infirm person within the proviso to section 388(1) CPC. The Court decided that the proviso applied to the accused based on the medical report of the accused filed in Court. As the case involved section 388(1) CPC, it is relatively different from the facts of the instant case, which involved section 388(2) CPC. Hence, it is inapplicable to the facts of the instant case. [24] The Applicant contended that a prolonged period of detention was his main grounds for the application. The Applicant's counsel also referred this Court to PP v Wee Swee Siang [1948] 1 MLJ 114, and the counsel contended that the Court considered such ground in that case. [25] However, this Court found no basis for the Applicant's counsel's contention as the Court in PP v Wee Swee Siang (supra) did not decide based on the ground as alleged by the Applicant's counsel. Interestingly, the Court refused bail because there was a likelihood of interference with prosecution witnesses, which was the decisive reason for the decision to deny bail. S/N wCf5moEprUiq8rH0Q2c6yA [26] Similarly, the learned Deputy Public Prosecutor in the instant case also contended that there was a likelihood of interference with prosecution witnesses as section 425 CPC provides that the prosecution or defence may recall and re-examine any prosecution witness during the defence stage. [27] The Court finds this to be one of the critical considerations for not allowing the bail as decided in PP v Wee Swee Siang (supra). [28] Another point which is worth mentioning is that in the instant case, the Applicant applied for bail under section 388(2) CPC, which explicitly provides that if there are reasonable grounds for believing that the Applicant/accused has not committed a non-bailable offence, the Applicant is entitled to bail. [29] What are "reasonable grounds" has been discussed by Augustine Paul J in PP v. Dato Balwant Singh (supra), where His Lordship referred to Hari Swarup J in Ram Sewak v State of UP [1974] Cri LJ 1090 at p.1091, where His Lordship said that the Court must decide the existence of the reasonable grounds on the material facts before it and not what may be unfolded later. [30] Applying the principle decided in Ram Sewak v State of UP to the facts of the instant case, the Applicant was called to enter his defence as the prosecution has established a prima facie case against the Applicant under section 304(a) of the Penal Code. S/N wCf5moEprUiq8rH0Q2c6yA [31] According to section 183(4) CPC, prima facie is made out against an accused when the prosecution has adduced credible evidence that would warrant a conviction if unrebutted or unexplained. See also Balachandran v Public Prosecutor [2005] 2 MLJ 301. [32] Hence, the Court has reasonable grounds to believe that the Applicant has committed a non-bailable offence during the trial. [33] Further, the offence involved section 304(a) of the Penal Code, and the Court, guided by the authorities, decided by the Malaysian and Indian courts that the Court refused bail if the Applicant is involved in a serious offence. [34] In summary, the Court finds that the Applicant has failed to establish exceptional ground. [35] The grounds for a prolonged delay are not exceptional based on the facts of the instant case and in light of the interest of the parties concerned. CONCLUSION [36] Based on the above, the Court dismissed the application. S/N wCf5moEprUiq8rH0Q2c6yA S/N wCf5moEprUiq8rH0Q2c6yA