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2022 MarsdenLR 1843
HIGH COURT SABAH & SARAWAK KOTA KINABALU
MOHAMMAD AMBREE YUNOS @ UNOS – Appellant
Versus
PP – Respondent
[Criminal Motion No: BKI-44-6/5-2022]
The court has discretion to grant bail even for non-bailable offences if reasonable grounds to believe guilt are insufficient, and special circumstances exist.
Headnote:(A) Criminal Procedure Code – Sections 49, 388, 388A – Application for bail pending trial for a non-bailable offence of murder under s 302 – Court found insufficient grounds by the prosecution to believe guilt of the Applicant – Essential need for the Applicant's presence with family considered – Bail granted with conditions including electronic monitoring and reporting requirements. (Paras 24, 42, 44)
Facts of the case:
The Applicant and his wife were tentatively charged with murder; the defence claimed special circumstances for bail as the wife was already released on bail to care for their kids.
Findings of Court:
Insufficient material to support prosecution's claim of the Applicant's guilt were indicated, allowing for bail to be granted given the lack of risk for absconding or tampering.
Issues
: The core issue revolved around whether the prosecution showed reasonable grounds for believing the Applicant's guilt while balancing the need for family presence.
Ratio Decidendi:
The court emphasized that the seriousness of the offence must be balanced against failure of the prosecution to provide sufficient reasonable grounds for belief in guilt; bail can be granted under special circumstances.
Result:
The Court granted bail to the Applicant.
JUDGMENT
(Enclosure 1)
[1] This is a Notice of Motion by the Applicant for bail under ss 49, 388, 388A CPC . The orders sought are as follows:
a) the Applicant/Accused be granted bail pending disposal of the trial at High Court, Kota Kinabalu on condition set by the Court in order for him to attend Court during the trial;
b) alternatively, with leave of this Court, the Applicant/Accused be released on bail and an electronic monitoring device be attached to him under s 388A of the Criminal Procedure Code (when it is in force) on condition set by the Court in order for him to attend Court during the trial; and
c) Such further order or other relief which this Court deems just and fit to grant.
[2] The grounds of this application as stated (verbatim) in the Affidavit in Support (Encl 2) are as follows:
(i) I verily state that the reasons that this application is made now is because my wife, Etiqah Siti Noorashikeen Mohd Sulong, who is also an Accused in this case was allowed and released on bail by the Court of Appeal on 26 April 2022. My wife and I are still lawfully married.
(ii) I was the one looking after the children while my wife was busy at work, considering the post she held at Petronas, Kota Kinabalu. Most of the time, I was the one looking after the children, took care for their daily needs from the moment they got up till bedtime. Of course, with the assistance of the maid (deceased) to do housework. I even shopped for groceries and prepared foods for the family.
(iii) The maid only does the cleaning in our apartment. Normally I will send my wife to work before 8am and send my son to school, thereafter attend to my twin children. I will fetch my son from Taska in Kepayan at 2pm.
(iv) Before I fetched my wife from work, I bathe the children and I leave home at 4.30 pm. My wife's routine is one week working from home and one week working in the office.
(v) I worked as a contractor and arranged my own timing and work schedules to suit the convenience of the family and also to cater the needs of the children.
(vi) I wish to state that both my wife and I are still married and we both have equal rights in managing, care, custody and control of the children where at this moment they must be thinking about me who is still on remand, though they are able to be with their mother which is indeed good, but my presence with the family is essential too.
(vii) I must say that I do miss them and guidance from me to keep the family going, particularly the young children is a paramount consideration.
(viii) I have permanent address and home in Kota Kinabalu, Sabah and my family members who are having permanent job and address shall stand as sureties for me.
(ix) I undertake not to abscond and there is no risk at all that I will do so, as my wife and young children are in Kota Kinabalu. I need them more than to jeopardise the family situation, including myself by now attending Court till disposal of the trial.
(x) I also wish to state that the Applicant/Accused's applications herein do not cause any prejudice to the prosecution, police authorities and/or the prison's authorities.
Brief Factual Background
[3] The Applicant and his wife, Miss Etiqah Siti Noorashikeen Mohd Sulong (hereinafter referred to as "the Applicant's wife") have been preferred a tentative charge under s 302 of the Penal Code read together with s 34 of the Penal Code at the Magistrates' Court, Kota Kinabalu on 29 December 2021.
[4] The tentative charge against the Applicant and his wife reads as follows:-
'Bahawa kamu bersama-sama, diantara 10 Disember 2021 hingga 13 Disember 2021 bertempat di alamat rumah Unit A-03- A, Tingkat 3, Amber Tower, Lido Avenue, Jalan Lintas, Lido, di dalam Daerah Penampang, di dalam Negeri Sabah, telah membunuh Nur Afiah Binti Daeng Damin (Kad Pengenalan: 930607-01-5884) umur 28 tahun, bangsa Bugis dan dengan itu, kamu telah melakukan suatu kesalahan di bawah s 302 Kanun Keseksaan dan dibacakan bersama s 34 Kanun Keseksaan.
Hukuman: Hendakla
