Back in July 2018, Dato’ Seri Najib Razak (“DSNR”) was charged with three counts of criminal breach of trust and one count of abuse of power. DSNR pleaded not guilty and His Lordship Sofian Abdul Razak J set a bail amount of RM1,000,000.[1] His Lordship allowed DSNR to pay the bail amount in two instalments.[2]
This was a momentous occasion in Malaysian jurisprudence as there had been no recorded instance of this ever happening prior to DSNR’s case. The closest to this is the High Court case of Ramlee & Anor v Public Prosecutor [1969] 1 MLJ 42 wherein the bailors were ordered to pay the bail money by instalments after the accused failed to appear in court.
DSNR’s case had become the precedent for bail by instalment. Subsequent to DSNR’s case, the following individuals were also allowed to pay their respective bail in instalments:
| Individual | Bail Amount | Instalments |
| Tan Sri Muhammad Shafee Abdullah | RM1,000,000[3] | 2 |
| Datuk Seri Dr Ahmad Zahid Hamidi | RM2,000,000[4] | 2 |
| Datuk Seri Najib Razak | RM3,500,000[5] | 6 |
| Datin Seri Rosmah Mansor | RM1,000,000[6] | 2 |
| Datuk Rizal Mansor | RM1,000,000[7] | 2 |
| Tan Sri Musa Aman | RM2,000,000[8] | 2 |
The concept of bail by instalments is not unique to Malaysia as there are instances of this, pre-DSNR’s case, in other jurisdictions such as in India,[9] Pakistan,[10] and South Africa.[11]
In the state of California in the United States of America, bail can be paid by instalments. However, this is limited to traffic violations.[12] Over in Spain, in Infanta Cristina’s case, bail was set at €2.7m[13] and an initial amount of €2.4m was paid.[14]
In Soo Shiok Liong v Pendakwa Raya [1993] 2 MLJ 381 (“Soo Shiok Liong”), the High Court listed out ten factors for consideration in setting the quantum of bail bond:
“(1) The nature and gravity of the offence and the severity and degree of punishment which conviction might entail. This is only one of the relevant, but not overriding, factors to be considered. It is thus decidedly wrong to fix the quantum of bail bond solely on the basis of such quantum being in proportion to the value of the subject matter of the charge, in as much as such reckoning would eclipse the overriding concern that bail bond should not be excessive but only be sufficient to secure the attendance of the accused.
(2) The quantum should be higher in the case of non-bailable offences.
(3) An excessive quantum may defeat the granting of bail as the accused may find difficulty in getting a bailor acceptable to the court.
(4) The principle and basis of our criminal law is that the accused is presumed to be innocent until proven guilty.
(5) Whether there is a likelihood of the applicant absconding if the bail quantum is set too low. See Low Chit Bah v PP
(6) Bail is not intended to be punitive but only to secure the attendance of the accused at the trial; therefore the amount of the bond must be fixed with due regard to the circumstances and must not be excessive. See R v Rose The amount of bail may vary according to the circumstances even on similar value of the subject matter of the charge.
(7) His surrender of his international passport should go to reduce the quantum of bail. See PP v Dato’ Mat @ Mat Shah bin Safuan @ Ahmad.
(8) The fact that the accused had presented himself at the police station and had co-operated with the police should also go to abate the quantum of bail.
(9) The quantum of bail should not be set so prohibitively high as to have the effect of incarcerating the accused before he is convicted of the crime. See Zulkifflee bin Haji Hassan v PP
(10) Application of the court’s mind in considering the above factors ought to be reflected in the judge’s records.” (emphasis added)
Taking into account the considerations in Soo Shiok Liong, the decision by the learned judges in Malaysia to grant bail by instalment achieves the desired goal of inter alia securing the attendance of the accused at trial and yet is not overly oppressive to the point of having the effect of incarcerating the accused before he/she is convicted of the crime.
Further, as explored above, this concept is not uncommon in other jurisdictions.
What is important is that the approach of granting bail by instalment is not applied preferentially to certain classes of individuals but rather is applied across the board where relevant and necessary.
[1] “Najib to pay RM1 million bail in 2 instalments, passport seized.” FreeMalaysiaToday.com. FMT News. Accessed April 1, 2020. https://www.freemalaysiatoday.com/category/nation/2018/07/04/najib-to-pay-rm1-million-bail-in-2-instalments-passport-seized/
[2] Ibid.
[3] Nurbaiti Hamdan, “Shafee pays remaining RM500,000 of his RM1mil bail.” TheStar.com.my. The Star. Accessed April 1, 2020. https://www.thestar.com.my/news/nation/2018/09/18/shafee-pays-remaining-rm500-000-of-his-rm1mil-bail
[4] “Zahid forks out first instalment of RM2m bail.” EdgeProp.my. Edge Prop. Accessed April 1, 2020. https://www.edgeprop.my/content/1435902/zahid-forks-out-first-instalment-rm2m-bail
[5] “‘I am not a thief’, Najib’s defence in a nutshell.” NewMalaysiaTimes.com. New Malaysia Times. Accessed April 1, 2020. https://newmalaysiatimes.com/2018/09/21/i-am-not-a-thief-najibs-defence-in-a-nutshell/
[6] “Rosmah, Adnan and Najib’s aide charged.” DailyExpress.com.my. Daily Express. Accessed April 1, 2020. http://www.dailyexpress.com.my/news.cfm?NewsID=128733
[7] Ibid.
[8] “High Court to decide today on Musa vs Shafie as Sabah chief minister.” FreeMalaysiaToday.com. FMT News. Accessed April 1, 2020. https://www.freemalaysiatoday.com/category/nation/2018/11/07/high-court-to-decide-today-on-musa-vs-shafie-as-sabah-chief-minister/
[9] E.g. see “Sahara : Subrata Roy Gets 10 More Days To Deposit Rs 700 Cr; Bail Extended Till Jul 5.” LiveLaw.in. Live Law. Accessed April 1, 2020. https://www.livelaw.in/roy-gets-10-days-deposit-rs-700-cr-bail-extended-till-jul-5/; see also Richa Banka, “Bawana fire: Delhi court rejects cops’ plea to cancel bail of accused.” HindustanTimes.com. Hindustan Times. Accessed April 1, 2020. https://www.hindustantimes.com/delhi-news/bawana-fire-delhi-high-court-rejects-cops-plea-to-cancel-bail-of-accused/story-JtFG5KzaXSYPRzfEsiMsOK.html
[10] E.g. see “SC stays Tajuddin’s bail in Basic Bank loan scam case.” Daily-Sun.com. Daily Sun. Accessed April 1, 2020. https://www.daily-sun.com/post/175617/SC-stays-Tajuddin%e2%80%99s-bail-in-Basic-Bank-loan-scam-case
[11] E.g. see “Pistorius to challenge bail conditions.” Zalebs.com. Zalebs. Accessed April 1, 2020. https://zalebs.com/whats-hot/pistorius-to-challenge-bail-conditions
[12] “TR300 – Agreement to pay and forfeit bail.” Colusa.courts.ca.gov. Superior Court of California, Country of Colusa. Accessed April 1, 2020. http://www.colusa.courts.ca.gov/misc_forms/TR300%20-%20Agreement%20to%20pay%20and%20forfeit%20bail.pdf
[13] Patrick Frye, “Princess Cristina: Judge’s Bail Stays At $3M, Even Spain’s Prosecutors Want Princess’ Bail Reduced.” Inquisitr.com. Inquisitr. Accessed April 1, 2020. https://www.inquisitr.com/2138149/princess-cristina-judges-bail-stays-at-3m-even-spains-prosecutors-want-princess-bail-reduced/
[14] “Infanta Cristina flogs mansion to raise bail.” TheLocal.es. The Local. Accessed April 1, 2020. https://www.thelocal.es/20150618/cristina-flogs-mansion-to-raise-bail
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