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By Hafiz Hassan

IN Tuan Mat bin Tuan Lonik v Public Prosecutor [2009], Court of Appeal Judge Suriyadi Halim Omar (as he then was) in delivering the judgment of the Court said:

“Sentence is the last stage of a judicial process in a criminal case, and will inevitably take place at the end of a full-blown trial or after a plea of guilt has been recorded. In both situations prior to the sentencing process, a conviction must be recorded first.” (Emphasis added)

A conviction at the end of a full-blown trial must be taken, until the contrary be shown, to have been properly conducted and without error of law. In Re Kwan Wah Yip & Anor [1954] Justice Spencer Wilkinson said:

“Once a person has been convicted by a court of competent jurisdiction it must be assumed, in the absence of any obvious defect on the face of the record, that he has been rightly convicted unless and until the conviction is set aside.” (Emphasis added)

There is no longer the presumption of innocence. The conviction stands now as a record against the convict.

This simply means that once a person is convicted he is expected to serve forthwith the sentence imposed upon him. (see the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004])

The question, therefore, is: under what circumstances a stay of execution is granted? And are there exceptional circumstances “which would drive the court to the conclusion that justice can only be done by the granting of bail pending appeal”?

Public confidence in the administration of justice requires that conviction and sentence be enforced. And the public interest may require that a person convicted of a very serious offence be denied bail because bail pending appeal does not rest on a presumption of innocence, even though the possibility that the appeal may ultimately lead to an acquittal is a prerequisite to any logical entitlement to bail.

It cannot, therefore, be said that the entitlement to bail pending appeal should be the same as the entitlement to bail pending trial.

That is why the Court of Appeal in the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004] said that a distinction should be made between pre-conviction and post-conviction application for bail. The latter does not allow a convict to benefit the presumption of innocence. Instead, a conviction resulting from a trial must be taken, until the contrary is shown, to have been properly conducted and without error of law.

On that note, the applications for the temporary release of the accused persons’ international passports cannot be treated alike.

In the case of Tan Bee Geok v Public Prosecutor [2019], the accused was convicted for an offence under section 188(3)(a) of the Capital Markets and Services Act 2007. The Sessions Court Judge granted the accused a stay of execution pending the disposal of her appeal at the High Court.

She subsequently applied for the temporary release of her international passport to enable her to perform her duties outside Malaysia to manage operational, financial and administrative matters for the group of companies in the United States of America, Brazil, Canada, Singapore, United Kingdom and Hong Kong of which she was a vice-president. In support of her application, she prepared the itinerary for her travel to these countries.

She contended that among others:

(a) she was not a flight risk;

(b) she had a family in Malaysia; and

(c) she had substantial assets and substantial business interests in Malaysia

The Deputy Public Prosecutor objected to the application, among others, on the ground that it was against the public interest to temporarily release the international passport.

Judicial Commissioner Ahmad Shahrir said:

“The risk of the [convict] absconding and defeating the impending appeal cannot be ruled out. In considering this risk, I am of the considered view that this Court should balance the interest of the [convict] with public policy considerations.”

Having considered the convict’s application for the temporary release of her international passport, the learned judge dismissed the application.

If a convict applies for the temporary release of his or her international passport – which essentially is an application to vary the condition of bail pending appeal – it cannot be treated as an application by an accused person who has a presumption of innocence.

His or her conviction which stands until and unless it is set aside must be balanced with public policy considerations.- BebasNews

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