Nurulhuda Nuraini Mohamad Nor JC:

GROUNDS OF JUDGMENT

Introduction

[1]This is an application for bail by the applicant accused who is charged with a serious offence of sabotage under section 124KPenal Codesection 34section 34Penal Code

[2]The Notice of Motion Enclosure 1 prayed for the following:

a)Order that the offence under section 124KPenal Code

b)Section 388

c)The said charges be tried by the Session Court.

[3]This Court, having perused the application and affidavits filed by both parties and upon hearing submissions, dismissed the said application. This judgment is written giving reasons for the dismissal.

Application and reasons

[4]In the Notice of Motion dated 22 December 2020, states that the application is supported by the affidavit of Lim Kian Aik Enclosure 2 affirmed on 22 December 2020 and the reasons supporting the prayers as stated in the application are summarised as follows:

a)The charge is not one of terrorism thus SOSMA does not come into play;

b)The charge comes under Article 149(1)(e) but this is not captured by the SOSMA preamble,

c)Facts deposed will show that the applicant is innocent hence will not abscond if bail is granted;

d)The applicant suffers from heart problem and justifies to be released on bail.

[5]The affidavit Enclosure 2 of Lim Kian Aik, on the other hand in para 3 sought only the following prayer:

a)That he be released on bail;

b)The sec 124K offence is not governed by SOSMA thus the Criminal Procedure Code to be applied instead;

c)The charges proffered against him to be tried before the Session Court.

[6]Nothing was said about his medical problem. The other contents of the said affidavit consist of deposition on the following:

a)The offence of SOSMA in its preamble, contrary to Article 149 of the Federal Constitution does not include a section 124K

b)That he has merits in his defence;

c)The assurance that if bail is granted, he would not abscond.

[7]There was no averment in his affidavit as to his health status that formed one of the bases in the summarised prayer in the Notice of Motion or that led to the wife’s affidavit filed subsequently.

[8]His wife’s affidavit Lee Yin Fong affirmed on 28 December 2020 said that on 22.12.2020 (the date the applicant’s affidavit was affirmed) the applicant complained of chest pain to his counsel who came to seek instruction from him and was advised by his counsel to let the prison authority know for immediate referral to the hospital.

[9]On 25.12.2020, the prison authority referred the applicant to the Shah Alam Hospital that led the counsel to write to the Hospital on 26.12.2020, seeking for a medical note on the applicant’s status. A note from the medical officer Dr. Nur Diyanah Shahirah dated 26.12.2020 states that the applicant is being treated for ‘acute coronary syndrome’. This, was further deposed by Lee Yin Fong that ‘acute coronary syndrome’ is also known as ‘heart attack’.

Submission by parties

[10]The applicant relied on the case of PP v Khairuddin Abu Hassan & Anor [2017] 4 CD 701 a decision by the Court of Appeal involving a charge under section 124LPenal Code

“[2] SOSMA is intended by the Parliament to combat terrorism. The preamble of SOSMA shows that it is enacted to deal with four out of the six categories of action under art. 149(1) of the FC ie. paras, (a), (b), (d) and (f) and not the action under paras, (c) and (e). Further, the scheme and the provisions of SOSMA are designed to limit the fundamental liberties under arts. 5, 9, 10, and 13 of the FC and to depart from the procedures laid down under the Criminal Procedure Code. Although SOSMA merely regulates the trial of the offences and does not create the said offences, undoubtedly a person charged and tried under SOSMA will lose his liberty as he will be denied bail. Therefore, in interpreting SOSMA the court should be guided by the principle of giving full recognition to the fundamental rights and freedoms.

[3] Every Act of Parliament or law enacted under art. 149 must stipulate specifically the action th