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2021 MarsdenLR 3378
HIGH COURT MALAYA KLANG
JONATHAN TAN KWAN NYAN – Appellant
Versus
PP (ENCL 11) – Respondent
[Criminal Appeal No: BL-45JT-10-11/2020]
The court affirmed the constitutionality of Section 13 of the Security Offences (Special Measures) Act 2012, determining it prevails over Section 388 of the Criminal Procedure Code regarding bail applications.
Headnote:(A) Security Offences (Special Measures) Act 2012 – Section 13 – Constitutionality – The applicant faces a charge under s 130V of the Penal Code, seeking bail while asserting that s 13 of SOSMA is unconstitutional. The court concluded that s 13 is valid under art 149 of the Federal Constitution. (Paras 1-19)
(B) Bail – Considerations under SOSMA – The court discussed the interplay between s 388 of the Criminal Procedure Code and s 13 of SOSMA, determining the latter as the applicable provision. Conditions for granting bail were examined. (Paras 22-41)
Facts of the case: The applicant is charged with being a member of a criminal gang and seeks bail, contesting the constitutionality of s 13 of SOSMA and its compatibility with provisions of the Criminal Procedure Code.
Findings of Court: The court found no merit in the applicant's arguments against the constitutionality of s 13 of SOSMA and determined that bail should not be granted based on the applicant's profile and the statutory requirements.
Issues: The primary issues addressed were the constitutionality of s 13 of SOSMA, the applicability of provisions under the CPC, and whether the applicant qualified for bail under the prescribed conditions.
Ratio Decidendi: The court emphasized that the power to declare legislation unconstitutional must be exercised with a solid foundation, reaffirming the presumption of constitutionality. It applied the principle of generalia specialibus non derogant to affirm that s 13 of SOSMA prevails over s 388 of the CPC in the context of bail applications.
Result: Application for bail dismissed.
[1] This application being encl 11 is to move this court to grant bail to the applicant who is facing a charge under s 130V of the Penal Code (PC) with the said Section coming within chapter VIB of the PC. A trial for the offence under this chapter of the PC falls within s 12 of Security Offences (Special Measures) Act 2012 ( SOSMA ) with s 13 of the said Act dealing with the granting of bail. The said charge is as below:
"Bahawa kamu di antara Mei 2017 hingga 22 Januari 2020 di alamat Red Warrior Muay Club, No 11 A, Tlngkat 3, Jalan Sentul, Pandamaran, 42000 Pelabuhan Klang, dl dalam Daerah Klang, dalam Negerl Selangor Darul Ehsan, telah didapati menjadi ahli kumpulan jenayah terancang "Ayahanda Yie Tiger 99" dan oleh yang demlklan kamu telah melakukan satu kesalahan di bawah s 130V (1) Kanun Keseksaan dan boleh dihukum di bawah subseksyen yang sama."
[2] In seeking bail the argument presented by the applicant is that s 13 of SOSMA is unconstitutional and the argument also poses to the court the issue of s 388 of the Criminal Procedure Code ( CPC ) against s 13 of as well as the recent decision of the Federal court of Koh Chin Wah v. PP (07-13-11/2019).
[3] From the outset the counsel for the applicant during the oral submission concedes that this case is not a Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat and another case, situation. This court is in full agreement with this as Semenyih Jaya deals with s 40D of the Land Acquisition Act 1960 whereby the effect of having the particular section brings the effect that the court has to abdicate its power to make a ruling by having to defer to the assessors in granting an award.
[4] On the issue of Koh Chin Wah being a precedent that binds, this court refrains from such a finding. The argument herein is that in Koh Chin Wah, the Federal court has ruled that s 13 of SOSMA has been found to be unconstitutional wherein bail was granted utilising s 388 of the CPC .
[5] From the perusal of the Federal court Order for the case dated 22 December 2020, no such ruling can be gleaned from the Order ie that s 13 of SOSMA has been rendered unconstitutional.
[6] Without the facts and clarity of ruling on the issue as argued by the applicant being available due to the absence of a written ground from the authority cited, this court cannot be persuaded that such a ruling exists and be binding on this court.
[7] Without being able to digest the intricacies that led to the decision of the Federal court this court is guided by the precedents of Kanagasingam Anantham v. Timbalan Menteri Dalam Negeri Malaysia & Ors, [2019] 4 MLJ 103 and Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo ; [2020] 1 MLJ 440; [2019] 10 CLJ 731. Though admittedly these precedents are not on the same issues as this application before this court, the gist of the decisions are that a decision, even a Federal court one, without having its written grounds provided could not be regarded as authoritative and/or binding as to ascertain the reasoning that led to the decision would be speculative.
[8] In Kanasingham Ananthan the court of Appeal held:
"[22] The appellant heavily relied on the case of Abdul Wahid, supra, because the issue raised is related to s 5(4) of the SPM Act which is relevant and similar as the issue raised in the present case. The appellant urged upon us to follow this case because according to him the case was on appeal by the Senior Federal Counsel for the respondents to the Federal court and the appeal was dismissed on 16 August 2018. The appellant did not produce the written grounds from the Federal court. Although the appellant produced the order of the Federal court dated 16 August 2018, and tried to convince us that there was only one issue raised, ie, delay under s 5 of the SPM Act it was our view that without the written grounds, we would not be able to know whether the appeal was dismissed on the said issue raised. We cannot speculate whether the decision was
