NITHIYAN A/L NAGARAJAN v Pendakwa Raya [Jabatan Peguam Negara]

Case Significance

Reinforces, in the companion SOSMA bail matter, that release on bail on medical grounds requires cogent, current evidence of a serious condition: where the latest medical report certified the applicant as being in good and stable condition, the court refused bail, leaving him free to reapply if his health materially changed.

This Court of Appeal decision, delivered by Che Mohd Ruzima bin Ghazali JCA, is the companion application, heard together with a related bail application, concerning release on bail on medical grounds pending trial under the Security Offences (Special Measures) Act 2012 (SOSMA). The applicant was held in remand custody on a security offence and had applied to the High Court at Klang to be released on bail because of illness and infirmity. The High Court refused bail, and the applicant renewed the application before the Court of Appeal. The question was whether his medical condition was grave enough to justify the exercise of the court's discretion to grant bail, notwithstanding the restrictions that apply to bail in SOSMA prosecutions.

The Court of Appeal dismissed the application. It restated that its discretion to release an accused on bail on health grounds is exercised only where the applicant establishes a sufficiently serious medical condition, and it examined the most recent medical reports tendered in respect of the applicant. On that material, the applicant had been certified to be in good and stable condition by the doctor who last examined him before he was discharged from the ward, and the court was not satisfied that his condition warranted release on bail. It accordingly refused the application, while making clear that the applicant remained free to apply afresh in the future if there were a material change in his state of health. The court's approach illustrates that the medical exception to the SOSMA bail restriction is assessed on the objective clinical picture rather than the applicant's own account of his suffering, so that a report certifying stability at the point of discharge from hospital weighs heavily against release, however much the applicant may press the gravity of his condition in submissions. The judgment reinforces, in the companion matter, that bail on medical grounds in a SOSMA prosecution requires cogent, current evidence of a serious condition, and that a favourable medical report certifying stability tells against release.