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Key Legal Development: Bail under SOSMA? The case of Raman Shunmugham v PP [2019] 1 LNS 896

Background: -
The Applicant was charged with the offence of being a member of an organized criminal group under Section 130V(1) of the Penal Code which is an unbailable offence under section 13(1) of the Security Offences (Special Measures) Act 2012 (SOSMA). Upon dismissal of the Applicant’s bail application by the High Court, the matter was appealed to the Court of Appeal by way of Notice of Motion pursuant to Section 72(4) of the Court of Appeal Rules 1994.

Issue: -
Whether the Applicant was entitled to bail under Section 388 and 389 of the Criminal Procedure Code and Section 13(2)(c) of SOSMA.

Decision: -
The Court of Appeal found that the High Court Judge had erred in rejecting the bail application. The Court of Appeal in its judgment enumerated that the three objections raised by the Prosecution that (i) the offence is an unbailable offence under section 13(1) of SOSMA, (ii) the Applicant did not make the application under section 13(2) of SOSMA and (iii) Applicant has failed to prove that he is a ‘sick or infirm person’ are unacceptable.

The offence under section 130V(1) of the Penal Code is not an unbailable offence per se as Section 13(2)(c) of SOSMA contains an enabling proviso to allow the accused to apply for bail under a number of circumstances.

Secondly, the discretion whether to grant bail or not depends on the court and if the court decides to grant bail then the Public Prosecutor may then apply under section 13(2)(c) SOSMA for the fitting of an electronic monitoring device to the Applicant in accordance to the provisions in CPC.
Thirdly the Applicant had evidenced all his medical reports via his affidavit to prove that he is affected by chronic diabetes resulting in the amputation of his left lower limb leg and he was brought to court in a wheelchair.

Section 388(2)(c) of Criminal Procedure Code meanwhile, allows a person with considerable decline of health of bail.

Citing the landmark decision of Samirah Binti Muzaffar v PP, the Court of Appeal opined that that the charge against the Accused in Samirah Binti Muzaffar v PP was of a more serious nature and yet her bail application was allowed under Section 388(2)(b) of Criminal Procedure Code for the existence of a special circumstance permitted under the law.

On the contrary there was no evidence adduced by the Prosecution to indicate that there is a possibility of flight risk and witness tampering, if the Applicant’s bail application was to be allowed.
In conclusion, the Court of Appeal thus exercised its discretion to allow bail after determining that there was a misdirection of law in the court of first instance, ie. the Sessions Court.

Written by Dennis Lim, Edited by Kausalya Ponnusamy