SHEARVIN RAJOO A/L JOHN v Pendakwa Raya

Case Significance

Illustrates the narrow sickness-or-infirmity exception to the general prohibition on bail for security offences under section 13(2) of SOSMA, and that ordinary prison discomfort does not meet that threshold.

This Court of Appeal decision concerns an application for bail pending trial in a security-offence prosecution, heard together with two related applications by co-accused. The applicant had been arrested and charged with an offence under section 130V of the Penal Code ("seksyen 130V Kanun Keseksaan"), which concerns membership of an organised criminal group, an offence tried under the Security Offences (Special Measures) Act 2012 ("Akta Kesalahan Keselamatan (Langkah-Langkah Khas) 2012", or SOSMA). The applicant sought bail under sections 388 and 389 of the Criminal Procedure Code ("Kanun Tatacara Jenayah") and section 13(2) of SOSMA, having earlier been refused bail by the High Court. The appeal turned on whether the applicant fell within the limited exceptions in section 13(2) of SOSMA — in particular the exception for a person who is "sakit atau uzur" (sick or infirm) — which alone can open the door to bail for an offence otherwise non-bailable under that Act. The Court examined whether the applicant's medical condition reached the threshold of an illness or infirmity serious enough to be harmful or life-threatening, and held that it did not; the applicant could still receive medical treatment in hospital while in custody, and the discomfort of prison conditions was not a ground for bail. The Court also accepted the prosecution's argument that section 388(1) of the Criminal Procedure Code does not apply to security offences of this kind. It further declined to enlarge upon the applicant's rights under Article 8 of the Federal Constitution and the presumption of innocence, the law on bail being clear. The Court unanimously dismissed the application as being without merit ("tidak bermerit dan adalah ditolak"), while noting that a fresh application could be made if the applicant's state of health materially changed. The judgment illustrates the narrow scope for bail in SOSMA prosecutions and the high threshold of the sickness-or-infirmity exception.