[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MUHAMAD AZMI BIN YUSUF (WA-45SOM-1-01/2023)

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERALTERRITORY OF KUALA LUMPUR CRIMINAL CASE NO. WA-45SOM-1-01/2023 & WA-45SOM-2-01/2023 BETWEEN PUBLIC PROSECUTOR

Lampiran

LAMPIRAN B ), DAN DENGAN YANG DEMIKIAN KAMU TELAH MELAKUKAN KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 26A AKTA ANTI PEMERDAGANGAN ORANG DAN ANTI PENYELUDUPAN MIGRAN 2007 DIBACA BERSAMA SEKSYEN 34 KANUN KESEKSAAN. HUKUMAN PENJARA SELAMA TEMPOH TIDAK MELEBIHI DUA PULUH TAHUN, DAN BOLEH JUGA DIKENAKAN DENDA, ATAU KEDUA-DUANYA [3] During case management on 22.1.2024, the following took place: Untuk Pengurusan Kes TK Pang untuk OKT 1 Sazlin Hidayu untuk OKT 2 TPR Representasi telah ditolak Mohon tarikh perbicaraan ditetapkan. PB - OKT 1 dan OKT2 Apply for bail Submission filed - 31.12.2023 Served on DPP and Court Reliance on submission Section 26A of ATIPSOM Act - maximum 20 years imprisonment. Non-bailable offence Section 13 of SOSMA Act - section 388 CPC prevails. Two Federal Court decisions - Koh Chin Wah v PP; Samad Yamin v PP. OKT 1 - at time of offence 17 years old; now 18 years old - he is a youthful offender - smuggling of migrants - 25 migrants - Nationality - Malaysian and the migrants are Myanmar - Migrants are all deported to their own country. None of them here. Depositions recorded - received all of them. Unable to interfere with them - impossible. OKT 2 - Jenis kesalahan - sama dengan OKT 1. Dituduh kerana niat bersama. OKT 2 - umur 32 tahun. TPR Hujahan baru diterima. In the case of Koh Chin Wah - no written judgment. Object to bail to be granted. DC for OKT 1 - the sister is willing to be bailor - also pray for an amount of RM10,000. For OKT 2 - mother and sister are willing to bail - pray for an amount of RM10,000 DPP If bail is allowed - pray for an amount of RM30,000. Both accused to surrender their passport and to report to the police station once a week. DC Mohon lapor kepada Balai Polis sebulan sekali. Court – 1. Bail granted with the following conditions Bail bond for an amount of RM20,000 with two sureties. 2. Accused persons to report to the nearest police station - OKT 1 - BP Pasir Mas Kelantan - 3. OKT 2 - BP Pasir Mas Kelantan - once a month Travel documents to be surrendered to the court as condition of bail. To - 6, 7, 8 dan 9.5.2024 for trial. PB OKT 2 menarik diri sebagai peguambela. PB OKT 1 akan mewakili OKT 2 seterusnya. [4] Flowing from the above, the following are apparent: • Both accused persons were released on bail despite objection by the deputy public prosecutor (DPP). • As conditions of bail, this court had imposed the following – o Each of the accused persons are to execute a bail bond and the amount ordered was RM20,000 each. o As for the number of sureties to the bail, two are allowed and they are to be the bailors. o In addition to that, each of the accused persons are also to report to the nearest police station at their place of residence once a month. This court was informed the nearest police station for both the accused persons are at Pasir Mas police station at Kelantan. [5] The DPP had objected to the bail as she had taken the position that since the offence committed by the accused persons is a security offence, pursuant to section 13 of the Security Offences (Special Measures) Act 2012 (Act 747/SOSMA), it is stipulated that bail shall not be allowed to the accused persons. She had also relied on the decision by the apex Court in the case of Samat Yamin v PP (2023) 6 CLJ 1, wherein in that case, one of the offences charged against the accused was also under section 26A of Act 670, and the Federal Court in that case had opined that bail shall not be granted to him. [6] This court had allowed the accused persons the right to bail, as it had instead followed the decision, also of the apex Court in the case of Koh Chin Wah v PP (Criminal Application No. W-07-94-08-2019 – unreported) wherein the Federal Court had allowed the accused person to be released on bail pending trial. Incidentally, in that case the accused also stood charged for an offence squarely under section 26A of Act 670, which on all fours is similar to the present case. The Federal Court had taken a contrary stance from the High Court and Court of Appeal which had refused bail pending trial, as the offence alleged against him pursuant to section 26A of Act 670 is a security offence pursuant to SOSMA. [7] As submitted by counsel TK Phang for the first accused, diligently that where there are two different interpretations on the right to bail for an accused person charged for an offence under Act 670, which had occurred in the case of Koh Chin Wah and Samat Yamin, the one in favour of the accused shall be adopted. As the present case too involves the right to bail of the accused persons, which is a fundamental liberty pursuant to Article 5(1) of the Federal Constitution (FC), interpretation in favour of the accused persons to be released on bail shall be adopted. (See by analogy: Tan Tatt Eek & other appeals (2005) 1 CLJ 713). [8] Aside that, the other factors considered by this court before releasing the accused persons on bail pending trial are: • They are presumed innocent until proven guilty after an open court trial by the prosecution, beyond reasonable doubt that they have committed the offences alleged. • As in the case of Koh Chin Wah, this court also adopts the application of section 388 of the Criminal Procedure Code (CPC/Act 593) which allows discretion to grant bail for non-bailable offences. The factors to be considered are by nature myriad. Although the offence alleged to have been committed by the accused persons entails a heavier penalty of twenty years imprisonment, but the nature of the evidence in support of the charge is one of the contributing factors in favour of the accused persons to be released on bail. As submitted by the DPP, the migrants who were allegedly smuggled into our beloved country by the accused persons are Myanmar citizens, all of them have been deported and their depositions have been taken before deportation, in order to ensure a fair and swift progress of the trial of the accused persons. • There is not an iota of evidence by the prosecution suggesting that the accused persons bear the risk of flight if they are released on bail. • In addition to that there is also no hard evidence tendered by the prosecution demonstrating that they are likely to interfere with the witnesses for the prosecution, if they are released on bail. Moreover, the migrants involved have been deported. In any event, in this regard, section 388 (5) CPC would act against the accused persons, if there is evidence later that the accused persons are alleged to have harassed, tampered and/or intimidated prosecution witnesses, bail granted to them may be cancelled and/or revoked. The principle of revocation works on the basis that the accused is interfering with the cause of justice by tampering with witnesses. In any event, even when evidence is adduced to support an application for revocation of bail, the court must give the accused person an opportunity to be heard first before allowing an application by the prosecution, hence the need for some form of tangible evidence in support of the application for the revocation and mere vague allegations would be inadequate. (See: Phang Yong Fook v PP (1988) 1 MLJ 267). [9] When bail was granted, this court is duty bound to mention the sum of money as bond and the number of sureties, if any. Section 390 (1) CPC provides for this. The purpose of the bond is for the accused persons to attend at High Court 2 (Criminal) Kuala Lumpur to answer the charge on the dates fixed for trial on the 6th, 7th, 8th and 9th May 2024. (See section 390 (2) CPC). Flowing from that a bond for the sum of RM20,000 is to be executed by the sureties for each of the accused persons. [10] As for the imposition of other conditions, although there is no legal provision expressly providing for it, but it is now a legal norm in practice to impose conditions like requiring the accused person to surrender his travel documents to the court. Imposition of such conditions has received legal support by the Supreme Court in cases like PP v Zulkifflee bin Hj Hassan (1990) 2 MLJ 215; PP v Dato Mat (1991) 2 MLJ 186; and also, the Federal Court case of Government of Malaysia & Ors v Loh Wai Kong (1979) 2 MLJ 33. In those cases, imposition of conditions was tacitly approved. But unfortunately, those decisions of the apex Court which forms the corpus of jurisprudence in this realm of law, are not appreciated fully by parties when submitting on the grant of bail or objecting to it; imposition of the amount as bail and conditions of bail. To ease back into the decision, His Lordship Wan Yahya J (who presided at the then Supreme Court, later SCJ) had decided in the case of Dato Mat that imposition of fair and reasonable conditions is fair and proportionate to the securing of the accused’s subsequent attendance in court, and imposing it is not illegal. He had decided: The practice to impose conditions however had gained judicial recognition in the courts in both India and Malaysia on the rationale that such condition would provide an adjunctive or supplemental security towards ensuring the attendance of the arrested person at his subsequent trial. On the amount to be deposited, His Lordship decided: No person can be admitted to bail under s. 388 or 389 purely on his undertaking to abide by some conditions alone without binding himself to forfeit a certain sum in the event of his default, but a person may be released on bail without any conditions attached to it. Such condition therefore, to our mind, is not the principal but only a complementary security to be applied concomitantly with the amount prescribed in the bail bond. … The amount of money in the bail bond and not the conditions form the pre-requisite to the release of an arrested person on bail. On further conditions like, surrendering of passport as well as periodical reporting at the nearest police station, His Lordship had decided: Such condition in the bail bond would have a persuasive effect of reducing a larger amount of bail which would have been otherwise required by the court. To put it another way – a court may require a certain large amount to be deposited in respect of a non-bailable offence but would be willing to reduce it to a lesser sum on the undertaking of the detained person to surrender his passport. [11] On the sum of money to be deposited as bail, section 389 CPC says it all. It contain two distinct limbs: the first limb says that the amount of every bond executed under the chapter shall be fixed with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested, who are the accused persons in this case, but shall not be excessive; (emphasis is mine) the second limb says that a judge may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail or that the bail required by the court be reduced or increased. (emphasis is mine). Thus, reading the said provision and understanding its intent and purport, imposition of the bond for such sum of money is justified by law. [12] Concomitantly, I have also been mindful of the fact that what was before me in court was only the charge document against the accused persons; the consent to prosecute accompanying the charge as required under section 41 of Act 670 as well as submission on the law, facts as well as status of the accused persons vis a vis their station in life at the material time and nothing more. Their guilt or otherwise would not be a consideration at this point of time, as it is not before the court, unlike the yesteryears when the preliminary inquiry record from the subordinate court was made available to the high court (if the offence carries the death penalty), which is absent now post abolishment of such inquiries. The only instrument signifying prosecution of the accused persons is the consent to prosecute issued pursuant to section 41 of Act 670 read together with Article 145 (3) FC. However, section 388 CPC remains unaltered. [13] On the sum of money RM20,000 ordered as bail bond for each of the accused persons, it is also just, reasonable and proportionate in accordance with circumstances of the case, for the following reasons: • The offences alleged to have been committed by the accused persons are not petty offences, but of a serious nature. • It carries a maximum period of twenty years of imprisonment, which was once considered to be imprisonment for life under our law, now altered to a period of thirty years. (See section 3 of the Criminal Justice Act 1953 (Act 345)) • The alleged crimes are against humanity, if proven beyond reasonable doubt, would show that the Myanmar citizens were smuggled into our country but speedily thwarted with the arrest of the accused persons and deportation of the migrants back to their country of origin. They may have been exploited with pecuniary motive etc. into being victims of human smuggling. If not detected and nipped in the bud, it has a devastating effect on them as well as our country internationally as we are liable to be named and shamed if our law enforcement regime is weak and tardy by virtue of the Trafficking in Persons Report. • Such being the nature of the offences alleged to have been committed by both the accused persons, although now released on bail, as liberty is always sacrosanct in terms of Article 5(1) FC, they shall not be released with a bond for a sum of money which is grossly inadequate but proportional to the seriousness of the crime allegedly committed by them. • Therefore, the sum of RM20,000 is just, reasonable and proportional and not manifestly excessive nor punitive. In fact, I am made to understand by Registrar of this court Madam Catherine Nicholas that one of the accused persons, Muhamad Azmi bin Yusuf has been able to raise the sum of money and now freed on bail pending trial. This is reflected by the bond executed by him and his bailors, found at enclosure 36 of the record of proceeding in the Case Management System (CMS). • Ordering a bail bond for such sum of money is not premised on the affordability of the accused persons or their family members but it must be proportional to the crime alleged to have been committed by them. Thus, if the sum of money could not be raised by the accused persons, they have to suffer the peril of detention in custody and not to be released on bail pending trial. Ordering a bail amount, on the basis of affordability by the accused persons is an affront to the law on bail, which although safeguards liberty of the accused persons but public interest vis interest of the State has to be protected too, to ensure that the same accused persons appear in court to answer the charge when required to do so, after being freed on bail. Their bailors are equally responsible in ensuring so. Ordering a very small sum of money as bond could serve to be counterproductive as there would be a tendency for the bailors to allow the sum of money to be forfeited if the accused persons’ presence in court could not be enforced, pursuant to section 404 CPC. It would also not be reflective as a serious condition of bail for the accused persons, to meet. Therefore, public interest in ensuring presence of the accused persons at their open court trial would prevail over their private interest to deposit an affordable sum of money as bail. • Likewise, this court was ever mindful of the fact that by ordering an excessive sum of money as bail may defeat the granting of bail. [14] Taking cue from section 389 CPC, it is axiomatic that the sum of money ordered could be reduced, subject to disclosure of cogent reasons to this court that there has been a change in circumstance, justifying a reduction. The reasons afforded to the court ought to be convincing, logical and not marginal bordering on the same reasoning when the bail amount was ordered by this court at the outset. Therefore, the second limb in fact and law allows me as the Judge of the High Court to reduce or increase the sum of money ordered as bail bond. Other situations may include fresh applications for bail, and applications after failed attempts at the subordinate court. The mode is by filing a notice of motion in the High Court, which is speedier and quicker and definitely advantageous over filing an appeal, which is predicated by the filing of notice of appeal, receipt of grounds of judgment, filing of petition of appeal before the appeal is heard by the court. Thus, it is riddled with constrictions as to time. (See: Sulaiman bin Kadir v PP (1976) 2 MLJ 37). When hearing such a motion, the Judge ought to only consider exceptional and special grounds. (Also see: Che Su binti Daud v PP (1978) 1 MLJ 283). Flowing from this, is the appeal to the Court of Appeal (COA) competent? [15] It is opined that the appeal lodged may not be competent as pursuant to the intent and purport of section 389 CPC as alluded to above, the rights of the accused persons are not finally disposed of by the order of this court on the sum of money to be deposited by each one of them as bond before being released on bail, as their rights to a reduction of the bail amount could be ventilated before this court successively as this court is seized with unfettered judicious discretion. It smacks on the applicability of section 3 of the Courts of Judicature Act 1964 (Act 91) which speaks of the word “decision” and it does not include an order of this court which does not finally dispose of the rights of the parties. It reads as the following: “decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties; (emphasis is mine) Therefore, it has to be a final order in its effect as in the case of a judgment or a sentence, applying the ejusdem generis rule of statutory interpretation. (See: Cheah Yoke Thong and Maleb bin Su v PP (1984) 1 MLJ 311). [16] Be that as it is so, it is ultimately for the parties and COA to decide on the competency of this appeal, but my reasons for ordering the said sum of money as bail are as canvassed above. Bail granted to accused persons. Amount of RM20,000 for each of the accused persons to be deposited as bail bond. Dated 31 March 2024 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur DPP Zaileen Nadia binti Zubir of the Attorney General’s Chambers (AGC) for the prosecution. TK Phang of Messrs. TK Pang, counsel for first accused (on behalf of Yayasan Bantuan Guaman) Sazlin Hidayu counsel for second accused.