Zakaria Yatim J:

This is an application by the accused in Kuala Lumpur Sessions Court Arrest Case Nos. 69/87 and 70/87 for an order that he be admitted to bail under s. 389 of the Criminal Procedure Code.

On 4 May 1987 the applicant was charged in the Sessions Court for abetting the commission of an offence of criminal breach of trust in A/C No.69/87 and for committing criminal breach of trust in A/C No. 70/87. On the same day, the learned Sessions Judge allowed him to be released on a bail of RM1 million in four sureties. The bail was duly executed and the applicant was released pending his trial, which was fixed on 21 September 1987.

At the commencement of the trial, the learned Deputy Public Prosecutor applied to the Sessions Court for an order that the bail granted to the applicant be revoked. The learned Deputy told the Sessions Court that he had been informed that the applicant "has been harassing and tampering with the witness". He further told the Court that it was "already difficult to get witnesses to come to Court. It is worse if these witnesses are tampered with and harassed ..." The learned Deputy however, was not prepared to reveal the witnesses in question on the ground that "there would be further intimidation." Mr. Tong and Mr. Low Hop Bing, who were Counsel for the applicant in the Court below objected to the application.

After hearing the arguments of both the learned Deputy and Counsel for the applicant, the learned Sessions Judge made an order revoking the applicant's bail and the applicant was accordingly committed to custody.

The question for the Court to consider is whether the order revoking the applicant's bail was a valid order.

It is not in dispute that the learned Sessions Judge has the power to commit a person, who has been released on bail in respect of a non-bailable offence, to custody. Section 388(v) of the Criminal Procedure Code states:

Any Court may at any subsequent stage of any proceeding under this Code cause any person who has been released under this section to be arrested and may commit him to custody.

The Criminal Procedure Code does not lay down the procedure to be adopted by the Court in exercising its discretion under s. 388(v). The learned Deputy in support of his application in the Court below, relied on Public Prosecutor v. Wee Swee Siang [1948]. But that case only provided the factors to be taken into consideration when the Court was granting or refusing bail. That case was not concerned with the revocation of bail.

There seems to be no decided case in this country on the question of revocation of bail under s. 388(v). In the absence of local authority, it is perhaps useful to examine the Indian decisions on this point. The present Indian equivalent of s. 388(v) is s. 437(5) of the Indian Code of Criminal Procedure 1973. Section 437(5) corresponds to s. 497(5) of the old Indian Code of 1898. Section 437(5) of the 1973 Indian Code reads:

Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do direct that such person be arrested and commit him to custody.

The Indian cases cited by the learned Deputy and learned Counsel were cases decided under the old Indian Code as well as under the 1973 Code. The decisions of the Indian Courts were, however not consistent.

In Sant Ram & Others v. State [1952] Cr LJ 1223, the High Court of Jammu and Kashmir, decided that affidavit evidence was not acceptable to support an application of bail under s. 497 of the 1898 Code. The Court held that the witnesses who had been intimidated by the accused person should testify in Court and they should be subject to cross-examination.

In Maibam Bidhu Singh & Others v. Manipur Administration [1959] Cr LJ 1453, the High Court of Manipur held that it was not essential that positive evidence of witnesses to show that the accused persons were tampering with the prosecution witnesses, must be tendered and the fact proved beyond