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 26A^st 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