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2021 MarsdenLR 2747
HIGH COURT MALAYA SHAH ALAM
MD NASIR UDDIN – Appellant
Versus
PP – Respondent
[Criminal Application No: BA-44-107-02-2020]
The interpretation of security offenses under SOSMA restricts bail applications, affirming precedents when legislation explicitly denies such claims.
Headnote:(A) Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 – Section 26A – Security Offences (Special Measures) Act 2012 – Section 13 – Application for bail dismissed as no constitutional grounds were established – Court bound by existing legislation restricting bail for security offenses. (Paras 4, 12, 74)
(B) Constitutional Law – Right to bail – Examination of the interpretation and relation of s 13 SOSMA with previous cases and their verdicts outlining restrictions on bail – Decision to deny bail supported by the context of legislative purpose. (Para 70)
Facts of the case: Applicant charged with smuggling migrants under s 26A ATIPSOM, seeks bail on grounds of constitutionality of s 13 SOSMA claimed to be unconstitutional amidst various citing of prior case law. (Paras 1-9)
Findings of Court: The court found no grounds to allow bail under s 13 SOSMA, reinforcing that the law is meant to guard against security risks even in the presence of conflicting judicial opinions. (Paras 73-74)
Issues: Whether the prior decisions regarding the constitutionality of s 13 SOSMA are to be followed or overruled by recent judgments. (Paras 48-49)
Ratio Decidendi: The court determined that it is not bound by previous rulings that deemed SOSMA unconstitutional, leading to a dismissal of the bail application, emphasizing the legislative intent behind SOSMA. (Paras 72-74)
Result: Application for bail dismissed.
JUDGMENT
Background
[1] The applicant and another person are charged with two charges of smuggling migrants under s 26A of the Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM) read with s 34 of the Penal Code.
[2] Section 26A ATIPSOM reads as follow:
26A. Offence of smuggling of migrants
Any person who carries out smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine, or to both.
[3] The migrants involved are three and five individuals of Bangladesh national respectively. The applicant himself is a Bangladeshi whilst the other accused is a Malaysian.
[4] The said charges are pending for trial before this court. As the said charges under s 26A are one under Part III A of ATIPSOM and categorised as a 'security offence' under First Schedule of SOSMA , by virtue of s 13 of , no bail was granted by the court, hence this application.
[5] Section 13 of SOSMA provides as follows:
13. Bail.
(1) Bail shall not be granted to a person who has been charged with a security offence.
(2) Notwithstanding sub-s (1):
(a) A person below the age of eighteen years;
(b) A woman; or
(c) A sick or an infirm person,
charged with a security offence, other than an offence under Chapter VIA of the Penal Code and the Special Measures Against Terrorism in Foreign Countries Act 2015, may be released on bail subject to an application by the Public Prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code.
[6] The SOSMA legislation itself primarily only governs the processes relating to the trial of security offences.
The Application And Basis
[7] The applicant is applying to be released on bail on the basis that the court is vested with the discretion to permit bail, citing these reasons below as foundation supporting the said application. They are:
(i) The decision by Mohd Nazlan J in Saminathan Ganesan v. PP , declaring s 13 SOSMA as unconstitutional;
(ii) Hence s 388(1) of the Criminal Procedure Code is open to be utilised by the applicant.
[8] The details of the application for this court's determination are:
(i) first, a declaration that s 13 of the Security Offences (Special Measures) Act 2012 ('the SOSMA ') is unconstitutional; and
(ii) thus, the applicant be released on bail pending the disposal of the main suit BA-45SOM-20-12/2018.
[9] Having perused the affidavit in support by the applicant, it is further deposed that the applicant has been in Malaysia working for ten years, a breadwinner to his family in Bangladesh and that he is not a flight risk and neither has he been involved in any criminal offence nor has he any criminal record in Malaysia.
Important Deposition
[10] What is clear is that the applicant is seeking for him to be released on bail to enable him to continue working here in Malaysia. This court observed that he was arrested in 2018 and the working visa would possibly have expired by now. In addition, nothing was mentioned about the Malaysian individual charged with common intention with him under s 26A ATIPSOM.
[11] Be that as it may, this court will proceed to determine if this court is bound by the decision of Mohd Nazlan J in Saminathan (supra) which would have been applied by the Federal court in its recent decision in Koh Chin Wah decided on 22 December 2020 with the caution that there is no ground of judgment in Koh Chin Wah just yet.
Recent Cases On SOSMA And Treatment By The Courts
[12] In Saminathan, the High court applied the Federal court decisions and principles enunciated in Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza and concluded that s 13 SOSMA is unconstitutional because it divests from the courts the judicial discretionary power to evaluate whether or not to grant or refuse bail applications.
[13] In addition, the AG had also made a press statement that the AG is not appealing against the dec
