Pn. Ariza binti Khairuddin v En. T. Harpal Singh (ORIGINATING MOTION: WA-44-157-06/2019)

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 2 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.

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.

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.

Accordingly, the normal bail provisions under section 388(1) of the Criminal Procedure Code (CPC) ought to apply and not section 13(1) 3 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.

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; 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 4 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:

(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; 5 AND WHEREAS Parliament considers it necessary to stop such action;……. [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

of the Federal Constitution which reads as follows:

(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—

to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or

to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or

to promote feelings of ill-will and hostility between different races or other classes of the population likely 6 to cause violence; or

to procure the alteration, otherwise than by lawful means, of anything by law established; or

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

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 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 7 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 8 importation of unknown and deadly diseases and 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

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. 9 [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. [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 10 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. 11 [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). [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 12 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 sgd. ( COLLIN LAWRENCE SEQUERAH ) Judge High Court of Malaya Kuala Lumpur 13 Counsels: For the Applicant … En. T. Harpal Singh [Messrs. T. Harpal & Associates] For the Respondent … Pn. Ariza binti Khairuddin Public Prosecutor [Attorney General’s Chambers]