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IN a law tutorial in the recent past, the following facts were presented to a class of fourth-year law students:

“Two accused persons are facing trial for charges for criminal breach of trust. Both have been granted bail with conditions imposed. One of the conditions requires that the accused persons surrender their respective international passport.

The first accused has applied for the temporary release of his international passport to enable him to make an overseas trip to seek medical treatment. The second accused has followed suit with his own application for the temporary release of his international passport to enable him to perform his duties outside Malaysia to manage operational, financial and administrative matters for the group of companies outside of Malaysia, of which he is a vice-president.

Unlike the first accused, the second accused has a conviction against him in an earlier case for which conviction he has been sentenced to five-year imprisonment and RM7 million fine. He is appealing against conviction and sentence. He has also been granted a stay of execution of the sentence, and bail pending appeal.”

The students were asked, as the trial judge, how would you decide?

The answer lies in the principles governing such application. The grant or otherwise of the applications before the court for the temporary release of the international passports is a matter of an exercise of judicial discretion. 

In considering an exercise of a judicial discretion, regard must be had to the established legal principles and an assessment of the facts and evidence as well as the prevailing circumstances as justice of the case may require.

If the facts and evidence fall short of the necessary requirements, the basis for an exercise of the discretion will be wanting. If the discretion is still exercised, then it is one which is exercised without regard to the legal parameters or one which is not exercised judiciously. (see the recent case of Tan Bee Geok v Public Prosecutor [2019])

The court can only exercise that discretion if sufficient basis for it can be shown.

In granting bail – be it bail pending trial or bail pending appeal – and imposing conditions of bail, it is trite that the court is vested with the power to attach such conditions as may be necessary to secure attendance of the accused person. These may include conditions relating to the surrender of the accused person’s international passport.

Being part of the conditions in granting bail, the court is also equipped with the power to vary the terms relating to the surrender of the accused person’s international passport.

In the facts above, both accused persons’ applications are similar – for the temporary release of their international passports. But they are not alike.

The first accused person enjoys a presumption of innocence. He is innocent until proven guilty.


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