The court determined that the offence under s 124K of the Penal Code does not fall under the ambit of SOSMA, allowing bail considerations to revert to the Criminal Procedure Code.

JUDGMENT

See Mee Chun JCA:

Introduction

[1] Enclosure 1 is a Notice of Motion dated 1 June 2021 filed by the Applicant/ Accused that he be released on bail pending on going criminal proceedings vide case no WA-45SO-4-03/2021 against him. He also seeks an order that the offence under s 124K of the Penal Code does not fall under the ambit of the Security Offences (Special Measures) Act 2012 [Act 747] ( SOSMA ).

The Charge

[2] The Applicant was charged under s 124K of the Penal Code and the details are as follows:

"Pada menjalankan kuasa-kuasa yang diberikan di bawah s 177A(1) Kanun Tatacara Jenayah dan terletak hakpada saya menurut s 376(3) kanun yang sama, saya MUHAMAD ISKANDAR BIN AHMAD, Timbalan Pendakwa Raya, Negeri Selangor Darul Ehsan dengan ini memberi izin bagi pendakwaan terhadap:

1. NATHAN A/L RAJADRAN (No KP: 771205-14-5285)

2. LIM KIAN AIK (No KP: 780116-14-5519)

Bagi kesalahan melakukan sabotaj dengan niat untuk mendatangkan mudarat kepada perkhidmatan air di Negeri Selangor dan merupakan satu kesalahan di bawah s 124(K) Kanun Keseksaan yang dikatakan telah dilakukan antara 2 haribulan sehingga 10 haribulan November 2020 bertempat dipermis No 32 Jalan Velox 2 Taman Velox, Rawang dalam Daerah Gombak, dalam Negeri Selangor Darul Ehsan."

[3] The charge is as follows:

"Whoever, by any means, directly or indirectly, commits sabotage shall be punished with imprisonment for life."

Submissions Of The Applicant

[4] The submissions of the Applicant were that s 13 SOSMA is unconstitutional; s 124K of the Penal Code falls outside the ambit of ; the power to remand under s 4(5) is no longer in force; there are five exceptions in s 13(2) for which bail may be granted subject to the discretion of Court; the Court is vested with power to grant bail under s 388 Criminal Procedure Code regardless of the constitutionality of s 13 ; and the circumstances and factors to consider in allowing the Applicant's bail application.

Submissions Of The Deputy Public Prosecutor (DPP)

[5] It was submitted that s 124K of the Penal Code is a security offence and unbailable under s 13 SOSMA unless the three categories are met and it is also subject to an application by the DPP to be released on bail. Section 13 overrides s 388 Criminal Procedure Code . The application for bail ought to have been made under s 13 .

Analysis And Decision

[6] Although there were many issues put forth by the applicant, in particular on the constitutionality of s 13 of SOSMA pertaining to bail, we felt it was not necessary to consider all of them. This is because the Notice of Motion as filed seeks for the release of the Applicant on bail and that the offence under s 124K of the Penal Code does not fall under . Hence we will look at 2 issues as put forth by the Applicant, namely that the s 124K of the falls outside the ambit of and that the Court has power to grant bail under s 388 Criminal Procedure Code ( CPC ). Whether the offence under s 124K of the falls outside the ambit of

[7] It could not be gainsaid that s 2 SOSMA prescribes its application to "security offences" which as per s 3 "means the offences specified in the First Schedule". Further, the offence under s 124K of the Penal Code being an offence under Chapter VI is an offence specified in the First Schedule. However we find that this does not ipso facto render s 124K of the as falling within the ambit of .

[8] The Court of Appeal in an earlier case of PP v. Khairuddin Abu Hassan & Anor, 2017 MarsdenLR 3175 had the occasion to consider this very same issue. That case concerned an offence under s 124L of the Penal Code which was for the offence of sabotage of banking and financial services. Our offence here is that of sabotage of water services. But nothing turns on this. This is because the element of sabotage is still there where it is defined in s 130A(h)(iii) of the as an act of omission intending to cause harm to the maintenance of essential services. Section 130A (d)(a) in turn includes "water s