XAVIER A/L MANOHAR v Pendakwa Raya

Case Significance

Illustrates that the sickness-or-infirmity exception to the SOSMA bail prohibition requires an illness serious enough to be harmful or life-threatening, and that a fresh bail application may be made if the accused's health materially changes.

This Court of Appeal decision concerns bail pending trial for an accused charged with a security offence, determined together with two related applications by persons jointly charged. The applicant had been charged under section 130V of the Penal Code ("seksyen 130V Kanun Keseksaan") for involvement in an organised criminal group, an offence whose trial is governed by the Security Offences (Special Measures) Act 2012 ("Akta Kesalahan Keselamatan (Langkah-Langkah Khas) 2012", or SOSMA). Having been refused bail by the High Court, the applicant moved the Court of Appeal under sections 388 and 389 of the Criminal Procedure Code and section 13(2) of SOSMA. Because bail for such offences is available only within the narrow exceptions listed in section 13(2), the appeal centred on whether the applicant qualified as a person who is sick or infirm ("sakit atau uzur") to a degree that could be harmful or life-threatening. Assessing the medical evidence, the Court held that the applicant's condition did not reach that threshold: appropriate treatment could be provided in hospital even while the applicant remained in custody, and the general hardship of imprisonment was not a proper basis for release on bail. The Court accepted the prosecution's submission that section 388(1) of the Criminal Procedure Code has no application to security offences of this nature, and it declined to comment further on the applicant's rights under Article 8 of the Federal Constitution or the presumption of innocence, considering the law on bail to be clear. The three applications were dismissed unanimously as lacking merit, with the Court expressly preserving the applicant's liberty to bring a fresh application if there were a material change in his state of health. The decision underscores how exacting the medical-condition exception under SOSMA is in practice. The Court observed that although the conditions of detention afforded the applicant little comfort, that consideration went to the manner in which custody was experienced rather than to any entitlement to bail under the statute, and it emphasised that the burden lay on the applicant to bring himself squarely within a section 13(2) exception.