HEMANATHAN A/L SELVARAJAH v Pendakwa Raya [Jabatan Peguam Negara]

Case Significance

Illustrates the demanding threshold for bail on medical grounds in a SOSMA prosecution: the court grants such bail only where a sufficiently serious, well-documented health condition is shown, and here, unpersuaded by the current medical reports, it refused bail but left the applicant free to reapply if his health materially changed.

This Court of Appeal decision, delivered by Che Mohd Ruzima bin Ghazali JCA, concerns an application to be released on bail pending trial on medical and ill-health grounds, in a prosecution under the Security Offences (Special Measures) Act 2012 (SOSMA). The applicant, held in remand custody on a security offence, had applied to the High Court at Klang to be released on bail on the ground of illness and infirmity; the High Court dismissed the application, and the applicant renewed it before the Court of Appeal, his matter being heard together with a related application by a co-accused. The governing question was whether the applicant had established a health condition of such gravity as to warrant the exercise of the court's discretion to grant bail in a SOSMA case, where bail is otherwise restricted.

The Court of Appeal dismissed the application. It reiterated that the court will exercise its discretion to release an accused on bail on medical grounds only where the applicant can demonstrate a sufficiently serious health condition, referring to authority such as the case in which bail had been allowed to an accused suffering from a chronic and undisputed illness. On the material before it, including the most recent medical reports tendered by the hospital, the court was not satisfied that the applicant's condition met that threshold. It accordingly refused bail, but made clear that the refusal was not final: the applicant remained at liberty to make a fresh application in the future should there be a material change in his state of health. The court's reasoning reflects the balance the legislature has struck in SOSMA, under which the ordinary entitlement to bail is curtailed for security offences and preserved only for defined categories, so that a medical ground succeeds not on a general appeal to hardship but on proof that continued detention would expose the accused to a health risk the prison and hospital system cannot adequately manage. The judgment illustrates the demanding threshold for bail on medical grounds in a SOSMA prosecution, and the court's willingness to leave the door open to a renewed application if the accused's health deteriorates.