1. Application for bail pending trial for charges of smuggling migrants under Section 26A ATIPSOM, categorized as security offences under the Security Offences (Special Measures) Act 2012. (Para 1 , 2 , 3 , 4 , 9 )
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2021 MarsdenLR 2342
HIGH COURT (SHAH ALAM)
NURULHUDA NUR’AINI MOHAMAD NOR, JC
Md Nasir Uddin – Plaintiff
Versus
Public Prosecutor – Defendant
PERMOHONAN JENAYAH NO BA-44-107-02/2020
Advocates:
Rajpal Singh (Rajpal, Firah & Vishnu) for the applicant.
Ho Kwon Ching (Deputy Public Prosecutor, Selangor State Legal Advisor’s Office) for the respondent.
Rajpal Singh (Rajpal, Firah & Vishnu) for the applicant.
Ho Kwon Ching (Deputy Public Prosecutor, Selangor State Legal Advisor’s Office) for the respondent.
Special legislation prohibiting bail for security offences overrides general judicial discretion under the Criminal Procedure Code, based on the principle Generalibus specialia derogant and the doctrine of separation of powers, unless specific statutory exceptions are met.
Headnote:(A) Security Offences (Special Measures) Act 2012 - Section 13 - Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 - Section 26A - Criminal Procedure Code - Section 388(1) - Federal Constitution - Article 149 and 121 - Bail in security offences - Whether the court has discretion to grant bail notwithstanding a statutory bar - Principle of Generalibus specialia derogant - Special legislation prevails over general law - The legislature's power to limit remedies under the doctrine of separation of powers (Paras 20, 45, 46, 57).
(B) Judicial Precedent - Decision per incuriam - A decision of a court of coordinate jurisdiction may be disregarded if it is found to have been made in ignorance of a relevant statutory provision or legal principle (Paras 65, 67, 68).
Facts of the case:
An applicant charged with smuggling migrants under a security offence sought release on bail, contending that the court possesses the discretion to grant bail under the general provisions of the criminal procedure code, relying on certain previous judicial decisions of coordinate jurisdiction.
Findings of Court:
The court held that the statutory prohibition on bail for security offences is a valid exercise of legislative power to protect national security. The specific provisions of the security offences act override the general bail provisions of the criminal procedure code.
Issues: Whether the court is bound by previous decisions of coordinate jurisdiction to grant bail in security offences and whether the general discretion to grant bail under the criminal procedure code applies when a special statute expressly prohibits it.
Ratio Decidendi: The court reasoned that the maxim Generalibus specialia derogant applies, meaning special laws prevail over general ones. Under the doctrine of separation of powers, Parliament may limit available remedies to meet the demands of national security. Consequently, bail cannot be granted for security offences unless the applicant falls within the narrow statutory exceptions regarding age, gender, or health.
Result: Application for bail dismissed.
Act Referred
Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007: S.26A
Penal Code: S.34, S.130J(1)(a), S.130JB(1)(a), S.130V(1), S.409, S.302, S.121, S.130K
Security Offences (Special Measures) Act 2012: S.13
Criminal Procedure Code: S.388(1), S.387, S.389
Dangerous Drugs Act 1952: S.41B, S.39B, S.39A(2), S.12
Immigration Act 1959/63: S.59, S.59A
Federal Constitution: Art.149, Art.121, Art.8
Corrosive and Explosive Substances and Offensive Weapons Act 1958
Firearms Act 1960
Firearms (Heavier Penalties) Act 1971
Penal Code: S.34, S.130J(1)(a), S.130JB(1)(a), S.130V(1), S.409, S.302, S.121, S.130K
Security Offences (Special Measures) Act 2012: S.13
Criminal Procedure Code: S.388(1), S.387, S.389
Dangerous Drugs Act 1952: S.41B, S.39B, S.39A(2), S.12
Immigration Act 1959/63: S.59, S.59A
Federal Constitution: Art.149, Art.121, Art.8
Corrosive and Explosive Substances and Offensive Weapons Act 1958
Firearms Act 1960
Firearms (Heavier Penalties) Act 1971
Legal Category Hierarchy
Table of Contents
2. Whether the court possesses discretion to grant bail under Section 388(1) Criminal Procedure Code notwithstanding the prohibition in Section 13 Security Offences (Special Measures) Act 2012. (Para 7 , 8 )
3. Analysis of the principle Generalibus specialia derogant and the legislature's authority to limit judicial remedies in security matters to protect national security and intelligence gathering. (Para 11 , 12 , 13 , 14 , 18 , 19 , 20 , 25 , 26 , 28 , 45 , 46 , 50 , 51 , 52 , 54 , 55 , 57 , 58 , 59 , 60 , 64 , 70 , 71 )
4. Specific statutory prohibitions on bail in security legislation prevail over general bail provisions in the Criminal Procedure Code under the maxim Generalibus specialia derogant. (Para 45 , 46 , 47 , 73 )
5. Application for bail dismissed as the applicant does not fall within the statutory exceptions provided under Section 13(2) Security Offences (Special Measures) Act 2012. (Para 74 )
6. Does the general power to grant bail under the Criminal Procedure Code apply to security offences under SOSMA?
No. The court held that specific legislation, such as Section 13 of SOSMA, prevails over general provisions like Section 388 of the Criminal Procedure Code based on the principle Generalibus specialia derogant, which dictates that special laws supersede general ones. (Para 45 , 46 , 47 , 73 )
7. Under what circumstances can bail be granted for a security offence under SOSMA?
Bail may only be granted if the accused is a woman, a person below eighteen years of age, or a sick or infirm person, subject to an application by the Public Prosecutor for the person to be attached with an electronic monitoring device. (Para 5 )
8. How does the doctrine of separation of powers affect the court's power to grant remedies in security cases?
The legislature may prescribe the extent of available remedies. Provided the language is clear, Parliament can depart from general laws or natural justice to limit judicial review or remedies to meet the demands of national security circumstances. (Para 55 , 57 , 58 )
9. What is the legal effect of a decision made per incuriam?
A decision made per incuriam—where the court failed to consider a relevant point of law or authority—is not binding and does not bar subsequent courts from determining the issue. (Para 65 , 67 , 68 , 69 )
Nurulhuda Nur’aini Mohamad Nor JC:
JUGDMENT
Background
[1]The applicant and another person are charged with 2 charges of smuggling migrants under section 26AAnti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM)section 34Penal Code
[2]Section 26ATIPSOM26A. 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 3 and 5 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 section 26Ast schedule of SOSMA, by virtue of section 13SOSMA
[5]Section 13SOSMA
“13. Bail.
(1)Bail shall not be granted to a person who has been charged with a security offence.
(2)Notwithstanding subsection (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. Saminathan a/I Ganesan v Public Prosecutor
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 a/l Ganesan v Public Prosecutor section 13SOSMA
ii)Hence section 388(1)Criminal Procedure Code
[8]The details of the application for this Court’s determination are:
– first, a declaration that s 13Security Offences (Special Measures) Act 2012
– 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 10 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 section 26AATIPSOM
[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 Alma Nudo Atenza Section 13SOSMA
[13]In addition, the AG had also made a press statement that the AG is not appealing against the decision in Saminathan. In other words, the AG agrees with the said decision. This goes further to undermine the application of section 13SOSMA
[14]In Koh Chin Wah, he was charged under Section 26AATIPSOMhttp://www.freemalavsjatodav.com/cateeorv/nation/2020/12/22/after-nearlv-4--vears-in-lockup-man- charged-with-security-offence-gets-bail/, V Arsbalagan 22 December 2020. The appellant having failed twice before the High Court and the Court of Appeal
