[2019] 1 LNS 1178 Legal Network Series

IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR

IN THE FEDERAL TERRITORY OF MALAYSIA

[ORIGINATING MOTION: WA-44-157-06/2019]

BETWEEN

KOH CHIN WAH … APPLICANT

AND

PUBLIC PROSECUTOR … RESPONDENT

GROUNDS

A) INTRODUCTION

[1] The applicant is charged together with another, namely, Mohd

Jasmin bin Mat Nor, in an ongoing trial before this court for an
offence of smuggling of migrants pursuant to section 26A of the
Anti- Trafficking in Persons and Anti-Smuggling of Migrants
Act 2007 (“ATIPSOM”) tried under the provisions of the
Security Offences (Special Measures) Act 2012 (“SOSMA”).

[2] This is the applicant’s application for bail. Learned counsel for
the said Mohd Jasmin bin Mat Nor, although he did not file a
similar application, said that he wished to also address the court
on the issues raised in this application and that he would adopt
the submissions of the applicant in this application in respect of
his client as well and would abide by the decision given by the
court in respect of his client.

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[3] The crux of the applicant’s submission is that the said section
26A ATIPSOM is not meant to be classified as a “security
offence” within the definition of the SOSMA.

[4] It was submitted by the applicant that this is because SOSMA

was intended only and meant to combat offences related to
terrorism. Therefore, it is an anomaly that section 26A of
ATIPSOM is listed as one of the Security Offences in the First
Schedule to SOSMA and that it was not intended that the section
was categorized as a security offence within the meaning of
Article 149(1) of the Federal Constitution.

[5] Accordingly, the normal bail provisions under section 388(1) of

the Criminal Procedure Code (CPC) ought to apply and not
section 13(1) of SOSMA which provides that bail shall not be
granted to a person charged with a security offence unless the
accused person falls within the categories of persons under
section 13(2) of SOSMA.

[6] It was also contended that since this was not a security offence,
the matter ought not to be tried in the High Court. It was
submitted finally that although the charge was under the
provisions of SOSMA, this was not stated to be so in the charge.
This omission, submitted the applicant, had prejudiced the
applicant and was not curable under section 422 of the CPC.

B) ANALYSIS AND FINDINGS

[7] The issues in this application are the following:

a) Whether section 26A ATIPSOM was intended to constitute

a security offence within the meaning of Article 149(1) of the
Federal Constitution;

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b) Whether the applicant is entitled to bail pursuant to section

388(1) CPC;

c) Whether the case ought to be tried in the High Court; and

d) Whether the charge is defective for failing to state that it

was pursuant to SOSMA.

a) Whether section 26A ATIPSOM was intended to constitute a

security offence within the meaning of Article 149(1) of the
Federal Constitution

[8] The preamble to the SOSMA reads:

An Act to provide for special measures relating to security

offences for the purpose of maintaining public order and
security and for connected matters.

WHEREAS action has been taken and further action is

threatened by a substantial body of persons both inside and
outside Malaysia—

(1) to cause, or to cause a substantial number of citizens to

fear, organized violence against persons or property;

(2) to excite disaffection against the Yang di-Pertuan Agong;

(3) which is prejudicial to public order in, or the security of,

the Federation or any part thereof; or

(4) to procure the alteration, otherwise than by lawful means,

of anything by law established;

AND WHEREAS Parliament considers it necessary to stop such

action;…….

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[9] It is to be noted that one of the actions listed under (3) above are
actions which are prejudicial to public order in, or the security
of, the Federation or any part thereof.

[10] It is not in dispute that SOSMA was enacted pursuant to Article

149 (1) of the Federal Constitution which reads as follows:

149 (1) If an Act of Parliament recites that action has been

taken or threatened by any substantial body of persons, whether
inside or outside the Federation—

(a) to cause, or to cause a substantial number of citizens to

fear, organized violence against persons or property;

or

(b) to excite disaffection against the Yang di-Pertuan Agong

or any Government in the Federation; or

(c) to promote feelings of ill-will and hostility between

different races or other classes of the population likely to cause
violence; or

(d) to procure the alteration, otherwise than by lawful means,

of anything by law established; or

(e) which is prejudicial to the maintenance or the functioning

of any supply or service to the public or any class of the public
in the Federation or any part thereof; or

(f) which is prejudicial to public order in, or the security of,

the Federation or any part thereof,

any provision of that law designed to stop or prevent that action

is valid notwithstanding that it is inconsistent with any of the
provisions of Article 5, 9, 10 or 13, or would apart from this

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Article be outside the legislative power of Parliament; and

Article 79 shall not apply to a Bill for such an Act or any
amendment to such a Bill.

[11] It is also to be noted that the said article specifies in paragraph

(f) thereof action which is prejudicial to public order in, or the
security of, the Federation or any part.

[12] Section 26A ATIPSOM is listed and categorized as a security

offence by virtue of the First Schedule to SOSMA which
categorises offences under Part III A of the Anti-Trafficking in
Persons and Anti-Smuggling of Migrants Act 2007 [Act 670]
(ATIPSOM) as a security offence.

[13] Section 26A of ATIPSOM creates the offence of “smuggling of

migrants”. Without attempting to define what amounts or does
not amount to acts which are prejudicial to public order in, or
the security of, the Federation or any part thereof, there can be
little doubt that the very act of smuggling of migrants has
inherent in it the capacity of giving rise to action which is
potentially prejudicial to public order or which may threaten the
security of the Federation or any part thereof.

[14] Anyone who holds the belief that the influx of illegal
immigrants in and out of this country is not potentially
prejudicial to public order or does not threaten the security of
the Federation, is blind to the risks posed as a consequence of
such acts.

[15] Again, without attempting to exhaustively define what these acts

could be, they most certainly will involve the taking up of
employment meant otherwise for our citizens, potential health
risks or the importation of unknown and deadly diseases and

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introduction of rival triad activities imported from abroad, to

name but just a few.

[16] It is plain and obvious that the enabling provision for the
promulgation of such laws is Article 149 (1) of the Federal
Constitution. Any laws promulgated in accordance with Article
149 (1) is valid notwithstanding that it is inconsistent with any
of the provisions in Articles 5,9,10 or 13 of the Federal
Constitution, all of which contain pertain to fundamental rights
and liberties.

[17] The case of PP v. Khairuddin Abu Hassan & Anor [2017] 4 CLJ
701, cited by the applicant dealt with a charge under section
124L of the Penal Code which concerned the offence to sabotage
essential services, namely, the banking and financial services of
this country where the Court of Appeal held that such act did not
fall within any of the categories outlined in Article 149(1) of the
Federal Constitution and therefore there was ambiguity whether
the said charge was intended by Parliament to be categorized as
a security offence under Article 149(1). That case can be thus
distinguished from the facts in the instant case.

[18] The case of Mohamad Roslan Marjo v. PP & Other Applications

[2019] 4 CLJ 648, also cited by counsel for the applicant
concerned an offence under section 26E where it was held inter
alia, that the fact that offences under Part IIIA of ATIPSOM
under which section 26E was listed as a security offence does
not provide a blanket approval that all offences thereunder must
be treated as a security offence under the SOSMA.

[19] The offence there related to fraudulent travel or identity

documents for the purpose of facilitating an act of smuggling of
migrants and although listed under Part III A, is not entirely
similar to the offence under section 26A ATIPSOM.

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[20] The case also made it clear that the categorization of offences as
a security offence or otherwise has to be determined on a case
by case basis and not in terms of a sweeping generalization. The
case can therefore be distinguished.

[21] The argument thus of learned counsel for the applicant that
section 26A ATIPSOM was not meant to be classified as a
security offence holds no water.

[22] I therefore find that Section 26A ATIPSOM therefore validly

constitutes a security offence within the meaning of Article
149(1) of the Federal Constitution.

b) Whether the applicant is entitled to bail pursuant to section

388(1) CPC

[23] As SOSMA was validly enacted pursuant to Article 149 (1) of

the Federal Constitution and section 26A ATIPSOM is
encompassed in the First Schedule to SOSMA, the grant of bail
is governed by section 13 SOSMA and not by section 388(1) of
the CPC.

[24] Bail under SOSMA is made available under section 13 for

certain categories of persons, with the exception of those
charged for terrorist offences. It was therefore still open to the
applicant to satisfy the court that he qualifies for bail.

[25] In the case of Jimmy Seah Thian Heng & 4 Ors v. Public
Prosecutor (and 4 Other Applications) [2018] 6 AMR 345, the
High Court held that bail was available under section 13(1)
SOSMA notwithstanding that the Public Prosecutor does not
first apply for an electronic monitoring device (EMD).

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[26] However, on the individual facts of this case, the applicant has
not given any cogent reasons to qualify him as falling within
one of the categories of persons entitled to bail under section
13(1) SOSMA.

c) Whether the case ought to be tried in the High Court

[27] As section 26A ATIPSOM comes under the First Schedule to

SOSMA, it is the High Court that has the jurisdiction to hear
such a case. See Section 12 SOSMA.

d) Whether the charge is defective for failing to state that it was

pursuant to SOSMA

[28] With regard to the submission that the charge was defective,
SOSMA prescribes the procedure applicable to offences tried
under SOSMA but does not create any substantive offence.
There was therefore no necessity to state that the charge was
under the SOSMA.

[29] In any event, the applicant at all material times were represented
by learned and able counsel and therefore could not have been
misled in any way regarding the essential ingredients of the
charge. No prejudice was therefore occasioned.

Decision

[30] In the premises, bail is denied. The trial is to continue to

proceed before this court.

Dated: 19 AUGUST 2019

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(COLLIN LAWRENCE SEQUERAH)

Judge
High Court of Malaya
Kuala Lumpur

COUNSEL:

For the applicant - T Harpal Singh; M/s T Harpal & Associates

For the respondent - Ariza Khairuddin, Public Prosecutor; Attorney

General’s Chambers

Case(s) referred to:

PP v. Khairuddin Abu Hassan & Anor [2017] 4 CLJ 701

Mohamad Roslan Marjo v. PP & Other Applications [2019] 4 CLJ

648

Jimmy Seah Thian Heng & 4 Ors v. Public Prosecutor (and 4 Other
Applications) [2018] 6 AMR 345

Legislation referred to:

Anti- Trafficking in Persons and Anti-Smuggling of Migrants Act

2007, ss. 26A, 26E

Security Offences (Special Measures) Act 2012, ss. 12, 13(1) (2),
First Schedule

Federal Constitution, art. 5, 9, 10, 13, 149(1)

Criminal Procedure Code, ss. 388(1), 422

Penal Code, s. 124L