Bailor Beware: Duties of a Bailor for an Absconded Accused

Note¹This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction.

A bailor or surety ought to fully appreciate the responsibility of standing bail for an accused person. In fact, the obligation of standing bail has often been lauded as one of the foundations of the proper administration of the criminal justice. This article wishes to address the consequences to a bailor when an accused person on bail (by execution of a bail bond) fails to attend court. Further, this article also summarises the steps a bailor ought to take to safeguard her full bail amount when an accused person she stands bail for has absconded.

Introduction

“The wound of peace is surety, surety secure; but modest doubt is called the beacon of the wise, the tent that searches to the bottom of the worst.”
 
– William Shakespeare, Troilus & Cressida Act 2 Scene 2.

The amendments to the Criminal Procedure Code 2010 (CPC) with the passing of the Criminal Justice Reform Act 2018 saw new offences to strengthen the bail bond regime.²Ministry of Law Press Release, 31 October 2018, “Strengthening Singapore’s Criminal Justice Framework – Implementation of Criminal Justice Reform Act 2018 and Evidence (Amendment) Act 2018 Provisions” For example, under section 103(5) of the CPC, where an accused person knowingly, and without reasonable excuse, fails to comply with bail conditions, he or she shall be guilty of an offence, and upon conviction be liable to a fine or to imprisonment for a term not exceeding three years or to both.³Section 103 of the Criminal Procedure Code 2010 (the “CPC“); See also Section 106A of the CPC which prohibits entering agreements to indemnify a surety; Public Prosecutor v Katchu Mohideen Bazeer Ahamed (2024) SGMC 16

At the same time, it cannot be overemphasised that standing bail for someone in Singapore is a serious responsibility that should never be taken lightly. The bailor or surety undertakes real risks, when an accused person fails to surrender to his bail. In the present article, we will be focusing on the consequences faced by a bailor when an accused person on bail (by execution of a bail bond) fails to attend court as required.

We first set out the duties of a bailor. Second, we will summarise the steps that follow when an accused person fails to surrender for bail. Third, we will summarise the procedure for forfeiture of bonds with sureties as set out in section 107A of the CPC. Finally, this article will elaborate on the two-stage analytical framework for the courts to determine whether a surety’s bond should be forfeited and if so, the extent of the forfeiture amount as laid out in Cher Ting Ting v Public Prosecutor [2017] SGHC 13⁴Cher Ting Ting v Public Prosecutor (2017) SGHC 13 (Cher Ting Ting).

The Duty of a Bailor

The duty of a bailor is set out in section 104 of the CPC⁵Section 104 of the CPC which reads as follows:

104. A surety must —

(a) ensure that the released person surrenders to custody, or makes himself or herself available for investigations or attends court on the day and at the time and place appointed for him or her to do so;

(b) keep in daily communication with the released person and lodge a police report within 24 hours of losing contact with him or her; and

(c) ensure that the released person is within Singapore unless the released person has been permitted by the police officer mentioned in section 92 or 93 (as the case may be) or the court to leave Singapore.

From the above, it is clear that a bailor ought to play an active role in ensuring the accused person’s compliance with their bail conditions. In Cher Ting Ting, Chan Seng Onn J (Chan J) at [19], citing the English case of R v York Crown Court, ex parte Coleman and How (1988) 86 Cr App R 151⁶R v York Crown Court, ex parte Coleman and How (1988) 86 Cr App R 151 (Coleman), held as follows:

“[The obligation which comes with standing bail for an accused person] is indeed, as has been said in one of the authorities, one of the foundations of the proper administration of criminal justice. It should not be thought that it is otherwise than very difficult for a surety to escape the basic obligation of his recognizance willingly undertaken.” [emphasis added]

The consequence of failing to discharge a bailor’s duty was also highlighted by Yong Pung How CJ (Yong CJ) in Public Prosecutor v Ram Ghanshamdas Mahtani [2003] 1 SLR(R) 517⁷Public Prosecutor v Ram Ghanshamdas Mahtani (2003) 1 SLR(R) 517 (Mahtan“), citing the English case of R v Uxbridge Justices, ex parte Heward-Mills [1983] 1 All ER 530⁸R v Uxbridge Justices, ex parte Heward-Mills (1983) 1 All ER 530, at [5] which held that:

” … It has been said by this court, and by other courts time and again, that entering into suretyship (going bail for someone, to use the common phrase) is an extremely serious matter not to be lightly undertaken, and those who go bail must understand that, if the accused fails to surrender to his bail, it is only in the most exceptional cases that the court will be prepared to modify the prima facie position, which is that the amount for which the person concerned has stood surety will be forfeit in full.” [emphasis added]

With a proper appreciation of the duty of the bailor, we will now review the specific consequences a bailor faces when the accused person absconds.

The Consequences to Surety When the Accused Person Absconds

Broadly, when an accused person is bailed out by a bailor or surety (by execution of a bail bond) fails to attend court as required, the following consequences follow:

1. The Prosecution would apply to the Court to issue a warrant of arrest against the accused.

2. The surety would then be asked to show cause why the surety bond she had executed for the appearance of the accused person should not be forfeited. 

3. The Court will then adjourn the matter for further mention on another date for the bailor to show cause.

4. At the show cause mention, if no cause is shown, the bailor will be provided an opportunity to make a plea in mitigation (as in to show cause) to justify why not all of the bail sums should be forfeited.

5. At the same mention date, the warrant of arrest would also be reviewed.

Having set out the overarching steps that follow when an accused person absconds. It would be apposite to set out the legislative framework on the procedure for forfeiture of bonds with sureties as set out in section 107A of the CPC⁹Section 107A of the Criminal Procedure Code 2010:

107A.—(1) This section provides for the forfeiture of the following bonds:

(a) a bond with one or more sureties;

(b) a bond with sureties to keep the peace;

(c) a bond with sureties for good behaviour.

(2) If it is proved to a court’s satisfaction that —

(a) the released person for whose appearance a bond mentioned in subsection (1)(a) was executed has, without reasonable excuse, failed to comply with any duty imposed on the released person to surrender to custody, to be available for investigations, or to attend court on the day and at the time and place appointed for the released person to do so;

(b) the person bound by a bond mentioned in subsection (1)(b) has, without reasonable excuse, failed to keep the peace; or

(c) the person bound by a bond mentioned in subsection (1)(c) has failed to be of good behaviour,

the court —

(d) must record the basis of such proof;

(e) must forfeit the bond, as far as it relates to the relevant person;

(f) may summon before the court each person bound by the bond;

(g) may call upon each surety bound by the bond to explain why the bond, as far as it relates to that surety, should not be forfeited; and

(h) may call upon the relevant person to pay a sum, being the whole or any part of the amount of the bond, or to explain why the relevant person should not pay that sum.

(3) If the explanation given by a surety is inadequate, and it is proved to the court’s satisfaction that —

(a) in relation to a bond mentioned in subsection (1)(a), the surety is in breach of any of the surety’s duties mentioned in section 104;

(b) in relation to a bond mentioned in subsection (1)(b), the surety has, without reasonable excuse, failed to ensure that the relevant person keeps the peace; or

(c) in relation to a bond mentioned in subsection (1)(c), the surety has, without reasonable excuse, failed to ensure that the relevant person is of good behaviour,

the court —

(d) must record the basis of such proof; and

(e) may, having regard to all the circumstances of the case —

(i) forfeit the whole or any part of the amount of the bond, as far as it relates to the surety; and

(ii) order the surety to pay the amount forfeited.

(4) The court may order that any sum or amount mentioned in subsection (2)(h) or (3)(e) be paid by instalments.

Application of the Two-Stage Analytical Framework in Cher Ting Ting

In Cher Ting Ting, Chan J laid down a two-stage analytical framework for the Singapore Courts to determine whether a surety’s bond should be forfeited and if so, the extent of the forfeiture. Despite the new provision under section 107A of the CPC, the two-stage analysis in Cher Ting Ting remains applicable and good law which the Singapore Courts continue to apply.¹⁰In Public Prosecutor v Woo Weng Yu Jordan (2020) SGDC 37 where District Judge Lorraine Ho at (23) held that “In light of the new provision of s107A of the CPC, the two-stage analysis as laid out by Chan J is still applicable.”; Since 21 June 2019, when Section 107A of the CPC came into force, the two-stage analytic framework in Cher Ting Ting continues to be adopted by the Courts in its assessment if a surety’s bond should be forfeited i.e PP v Mohamed Afzal s/o Latiff Abdul Kader (2020) SGDC 85; Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31.

In Cher Ting Ting at [67], the two-stage analysis was summarised as follows:

“(a) The court should first consider whether the surety has shown sufficient cause against forfeiture. The key consideration is whether the surety exercised reasonable due diligence in the discharge of his duties as surety. It is for the surety to lay before the court evidence of want of culpability. This is an intensely fact-specific inquiry and the court should have regard to all the circumstances in making its finding. (First Stage)

(b) If the surety satisfies the court that sufficient cause exists, then forfeiture may be waived altogether. But if the surety fails to do so, then the court must consider the extent to which forfeiture is appropriate. The starting point where the surety fails to show sufficient cause is forfeiture of the entire amount of the bond. The surety must demonstrate the existence of exceptional circumstances to justify any lesser degree of forfeiture; this is a heavy burden to discharge. The degree of culpability of the surety is a crucial consideration in the court’s assessment of the appropriate extent of forfeiture. The court should similarly have regard to all the circumstances (including any subsequent efforts made by the surety, between the date of the accused’s non-attendance in court and the date of the show cause hearing to locate or produce the accused in court) in determining, in the exercise of its discretion, the extent of forfeiture that would be fair and just.” (Second Stage)

A. First Stge: Show Cause

When a bailor intends to show cause, the Court’s key consideration is whether the surety exercised reasonable due diligence in the discharge of her duties as surety. Chan J in Cher Ting Ting at [35] held that:

“The determination of whether sufficient cause against forfeiture exists in each case is, of course, an intensely fact-specific inquiry. Accordingly, unless the factual matrices present striking similarities, a case-for-case comparison may therefore be of limited utility in providing guidance for ascertaining the appropriate outcome in a given case.” [emphasis added]

Having said that, it would fall on the bailor to show to the satisfaction of the Court that she had exercised reasonable due diligence in the discharge of her duties based on the evidence presented before the Court. Further, it is for the bailor to produce before the Court, the appropriate supporting documents to show cause.¹¹This could range from medical certificate which excuse the bailor from attending Court, Proof of correspondence between the bailor and accused person demonstrating attempts were made to exercise due diligence and the police report filed after the accused person absconded; c.f. PP v Mohamed Afzal s/o Latiff Abdul Kader (2020) SGDC 85

We note that the Singapore Court have been slow in expressing any firm views on whether these steps, taken alone or in combination with one another, would amount to reasonable due diligence. However, we draw on specific authorities to demonstrate the operative considerations that should be borne on the mind of sureties when the accused person she has stood bail for absconds.

The following observations, without attempting to be prescriptive or exhaustive, can be gleaned to demonstrate that the bailor has indeed shown cause:

i. Making sure the accused person complies with bail conditions by the Court

The mere reliance on faith alone that the accused person will show up for court hearings, without more, is not sufficient for a surety to discharge the onerous duty of ensuring the accused person’s attendance in Court.¹²Public Prosecutor v Ram Ghanshamdas Mahtani (2003) 1 SLR(R) 517 at (6) Further, a surety’s duty is personal to the surety and so the surety cannot rely on the fact that she had delegated her duty to ensure the accused person attended court.¹³PP v An Wei (2014) SGDC 182 at (19)

Hence, it is necessary for the bailor to be personally ensuring that the accused person complies with his bail condition. This would include making diligent attempts to ensure the accused person is present at any court hearings and accompanying the said accused person to any court hearings. Further, when the accused person is permitted by the Court to leave jurisdiction (travel out of Singapore), the bailor ought to ensure the accused person complies with the prescribed bail conditions by the Court.

ii. Maintaining constant communication with the accused person

The Court in Public Prosecutor v Low Geok Min and Thean Sow Foon [2020] SGDC 31¹⁴Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31 (Low Geok Min), reiterated that sporadic communication falls far short of the due diligence that would be expected of a bailor.¹⁵Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31 at (40) Additionally, if there were problems with reception, the bailor would have to show the appropriate steps were taken to instruct the accused person to make whatever arrangements necessary to facilitate communications on a daily basis.¹⁶Ibid.

In Low Geok Min, two sureties posted bail for the accused person. The accused person had obtained permission from the Court to travel to Bangladesh. However, the accused person then failed to return to Singapore and the Court ordered forfeiture of the entire bond amounts. The sureties appealed the decision but were unsuccessful and so the case remains instructive in the key consideration of what constitutes reasonable due diligence.

It can be gleaned that it is not sufficient for the bailor to passively wait and hope for the accused person to return. In fact, even when a bailor relies on the fact that she communicated with the accused person to comply with the Court’s directions, it is necessary to show she personally contacted the accused person on a regular basis asking them to surrender themselves.¹⁷Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31 at (40) This is also set out in section 104(1)(b) of the CPC which requires that the surety “keep in daily communication with the released person“.

iii. Filing a police report

Similarly, under section 104(1)(b) of the CPC, it is also necessary to “lodge a police report within 24 hours of losing contact with [the accused person]”.¹⁸See also Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31 at (41) where a three day delay in filing a police report demonstrated to the Court that the sureties did not exercise reasonable due diligence in discharging their obligations However, it is not sufficient for the police report to be merely for “record purposes“¹⁹Public Prosecutor v Ram Ghanshamdas Mahtani (2003) 1 SLR(R) 517 at (7). This is because “the bailor would be able to escape from the obligation that he had entered into by simply saying to the court “I am sorry that the accused cannot be found but I have already made a report to the police and hopefully they will be able to trace his whereabouts””²⁰Public Prosecutor v Ram Ghanshamdas Mahtani (2003) 1 SLR(R) 517 at (7).

Instead, it is essential for the police report to provide law enforcement with sufficient details to facilitate and assist the authorities in locating the accused person.²¹Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31 at (41)

iv. Attempting to locate the accused person in the foreign jurisdiction

The District Court in Low Geok Min opined that “[n]o one is suggesting that sureties must forcibly bring accused persons back from the foreign jurisdiction. However, at the very least, one would expect the surety to try and locate the accused person in the foreign jurisdiction concerned. Upon ascertaining where the accused person was, the surety could try to persuade him to return to Singapore. If that failed, the surety could relay the information pertaining to the accused person’s exact whereabouts to the authorities in Singapore, to facilitate cross-border enforcement efforts.”²²Public Prosecutor v Low Geok Min and Thean Sow Foon (2020) SGDC 31at (36)

Hence, it appears that the bailor may not be required to personally track the accused person in the foreign jurisdiction and forcibly bring them back to Singapore. However, at least in the situation where the bailor is aware of the accused person’s whereabouts in the foreign jurisdiction, it has been alluded that the bailor, either individually or through a proxy, could take steps to search for the accused person in the foreign jurisdiction.²³Ibid

B. Second Stage: Mitigation

When a surety fails to show sufficient cause against forfeiture, the prima facie position is for the Court to forfeit the entire bond amount. If the surety wishes the Court to refund part of the bond amount, she bears the burden of proving exceptional circumstances.²⁴Section 107A(3)(E) of the CPC; Cher Ting Ting v Public Prosecutor (2017) SGHC 13 at (41)

In relation to the surety’s culpability, it goes without saying that if the bailor connived, aided or abetted in the disappearance of the accused person, a full forfeiture would inevitably follow.

In contrast, where the surety made efforts to locate the accused person and secure his subsequent arrest or attendance in Court after the accused person had absconded to the date of the show cause hearing, this would militate against a full forfeiture.

Further, a bailor who may lack financial means must understand that they cannot avoid liability through a full forfeiture of the bond amount by merely raising their financial difficulty. Bailors must bear in mind that the financial burden posed by standing bail is pivotal to the bail regime. This was also highlighted by Yong CJ in Mahtani at [9], adopting the observations of Lord Widgery CJ in R v Southampton Justices, ex parte Corker (1976) 120 SJ 214²⁵R v Southampton Justices, ex parte Corker (1976) 120 SJ 214, that:

“…The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort…”

Given the above, it would be misguided to expect partial forfeiture merely by stating one’s financial position. The High Court in Cher Ting Ting stated at [56] that “such lack of means must amount to an exceptional circumstance warranting departure from the prima facie position of full forfeiture“.

However, the bailor can still request to pay the forfeited sum by instalments pursuant to section 107A(4) of the CPC citing one’s financial position. It would be useful for the bailor to provide sufficient information on a proposed instalment plan to assist the Court and demonstrate her commitment in ensuring compliance in payment of the forfeited sum. Failing which, the Court may direct a full forfeiture on the basis that the “surety was not serious about his [request for an instalment plan to pay the forfeited sum]”.²⁶PP v Mohamed Afzal s/o Latiff Abdul Kader (2020) SGDC 85 at (30)

Conclusion

One cannot emphasise the responsibility of an individual standing bail. It is onerous, and one cannot passively delegate that responsibility to another. Doing so, will almost certainly lead to a complete forfeiture of the bail. There needs to be a clear appreciation of one’s duty as a bailor before taking on this heavy responsibility.

Further, in the unfortunate event where the accused person for whom the bailor stood bail for absconds, the bailor must know the steps he can take to mitigate his culpability. There are multiple non-exhaustive steps that ought to be taken if the bailor wishes to demonstrate that reasonable due diligence was exercised. These attempts could assist the bailor in demonstrating cause has been shown to prevent forfeiture or at least reduce the forfeiture sum.

The post Bailor Beware: Duties of a Bailor for an Absconded Accused appeared first on The Singapore Law Gazette.