Thursday, January 23, 2025

WOMAN can get Bail, and NOT a MAN - it is Discrimination based on Gender, which is against the Federal Constitution making it an invalid provision/law? Both men and women MUST be treated equally in law.

When a WOMAN who was charged with a SOSMA listed offence being  section 130V Penal Code for being a Member of an organized criminal group[an offence under CHAPTER VIB   ORGANIZED CRIME, was released on BAIL the question to be asked, why can't a man charged for the SAME offence, or other offences under Chapter VIB also be released on BAIL?

The High Court here has allowed an accountant of GISB Holdings Sdn Bhd (GISBH), who is charged with being a member of an organised crime group, to be bailed at RM40,000 with two sureties. Justice Latifah Tahar said the decision took into account the absence of objections from the prosecution and the fact that Hamimah Yakub, as a woman, fell under exemptions stipulated in the Security Offences (Special Measures) Act (Sosma) 2012.

If the provision says that a WOMAN can be released on Bail but not a Man - then it is against our Federal Constitution that PROHIBITS discrimination based on GENDER.

Article 8 - EQUALITY (Federal Constitution)

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

Now, let us look at Section 13 SOSMA - it states that woman can get BAIL but not Man, and that makes it ULTRA VIRES the Federal Constitution, as it DISCRIMINATES on the basis of GENDER. 

13  Bail [ SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012] ,,

(1) Bail shall not be granted to a person who has been charged with a security offence.

(2) Notwithstanding subsection (1)-

(a) a person below the age of eighteen years;

(b) a woman; or

(c) a sick or an infirm person,

charged with a security offence, other than an offence under Chapter VIA of the Penal Code [Act 574] and the Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770], may be released on bail subject to an application by the Public Prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code.

However, when the High Court released a WOMAN (Hamimah Yakub) on Bail - the question of GENDER DISCRIMINATION surfaced, and violation of the Federal Constitution. 

Art.8(2) which prohibits DISCRIMINATION based on GENDER or gender in any law - it is CRYSTAL CLEAR. So, MEN should also be released on BAIL or entitled to BAIL [Remember Bail can still be denied in exceptional cases because one is a FLIGHT RISK or the risk, that one may tamper with evidence(usually Witnesses who may be testifying against the accused) - however, the possibility alone is not sufficient, there must be REASONABLE evidence furnished by the Prosecution. With now, the availability of electronic monitoring - the worries of flight risk, and even witness tampering is much reduced. YES,even tampering with evidence/witnesses can with additional bail conditions prohibiting the accused approaching witnesses, etc..

In Section 13(2) there is an Absolute prohibition of BAIL if one is charged  an offence under Chapter VIA[CHAPTER VIA   OFFENCES RELATING TO TERRORISM] of the Penal Code [Act 574] and the Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770] - thus it makes sense that persons charged with any other of the SOSMA listed offences should as of right be entitled to BAIL, and if Public Prosecutor applies, he/she on release on BAIL may end up being attached with an an electronic monitoring device. If the Public Prosecutor do not apply - NO electronic monitoring device. 

But even for Chapter VIA offences relating to terrorism - Bail should be available for lesser offences of possession of materials - like literature, badges, ect.  because such persons may not be a terrorist or a supporter of a terrorist, and the materials are merely for educational purposes(to just find out what is so wrong with their ideology), or just for tokens/mementos/souvenirs/etc

My position is section 13 that denies BAIL should be deleted/repealed - let us just trust our JUDGES who will decide whether to grant bail or not...

BAIL should be generally a RIGHT for any person accused of a crime - because of the Legal Principle of presumption of INNOCENCE until proven guilty in a Court after a fair trial. It is unconscionable that a person languishes in detention for months/years and ultimately is NOT FOUND Guilty - This is a gross miscarriage of justice, more so in Malaysia, where there is still no law/scheme that provides for compensation when one is proven not guilty. Hence, section 13 of SOSMA needs to be repealed. 

For some more serious offences that resulted in loss of life, maybe Parliament can indicate that it NON-BAILABLE or even UNBAILABLE, but even then one's right to apply for Bail should be present, and the Courts can release persons on bail, with maybe more stricter conditions.

A former Master Chef Malaysia 2012 finalist, Etiqah Siti Noorashikeen Mohd Sulong, who is facing a murder charge, was allowed to be released on bail by the Court of Appeal here today pending transfer of her case to the High Court.

A three-member panel comprising Justices Datuk Lee Swee Seng, Datuk Supang Lian and Datuk M. Gunalan, in a unanimous decision, allowed Etiqah bail of RM30,000 with one surety.

The court also ordered her to surrender her passport to the Magistrate’s Court in Kota Kinabalu and to report to the Penampang police station on Monday of every week. - The Sun, 26/4/2022


A contractor succeeded in securing bail on a joint charge of killing the family's maid last year.

High Court Judge Leonard David Shim decided to grant bail to Mohammad Ambree Yunos @ Unos, 40.

His wife, Etiqah Siti Noorashikeen Mohd Sulong, 33, a former MasterChef Malaysia finalist, had been granted bail on April 26 after she won her Court of Appeal case.

In his decision, Leonard held that while it might not be in the interests of the public to grant bail to a person facing a murder charge, the factors highlighted by the defence counsels in their written submissions operated favorably towards the applicant (Ambree).

The court found the requirements of public interest could be satisfied by imposing suitable conditions in granting bail.

"In the absence of evidence of flight risk and tampering with evidence/witnesses and the lack of reasonable grounds being shown for believing the applicant had committed the offence of murder he is charged with and having regard to the unexplained and inordinate delay in transferring the case against the applicant and/or his wife to the High Court, this court finds this is an appropriate case to exercise its discretion to grant bail.- NST, 20/10/2022

A teenage girl who is facing a charge of killing her newborn son was allowed to be released on bail by the Court of Appeal today pending the completion of her trial. - Malay Mail, 13/5/2022

 The Federal Court today allowed Samirah Muzaffar, the wife of the late Cradle Fund CEO Nazrin Hassan, to be released on bail of RM500,000 with two sureties pending her murder trial. - Malaysiakini, 28/5/2019

The Court of Appeal on Tuesday struck out an appeal by the prosecution against the bail granted to  a restaurant owner charged with murder. Justices Datuk Abdul Karim Abdul Jalil, Datuk Supang Lian and Dato’ Nordin Hassan made the decision via video conferencing after being informed by the prosecution, as appellant, that they wish to withdraw their appeal.The appellant had on Nov 3, 2021 filed the appeal against the bail granted by the High Court to Hobalan N Vello.

Hobalan became the first accused in the State to be granted bail by the High Court on Oct 22, 2021 for a non-bailable offence pending his trial. - Daily Express, 12/1/2022
 
Senior lawyer Balwant was charged with murder but was allowed bail by the High Court. - The Sun, 3/1/2020
LESSON here is that irrespective whether a crime is considered BAILABLE, NON-BAILABLE or even UNBAILABLE, one should apply to the Court for Bail, and the Courts will consider whether to release an accussed on Bail or NOT, and if released on Bail, then what are the added conditions imposed. The fact that must be noted, is that some, who have been accused of MURDER (considered an 'unbailable' crime) have been released on BAIL pending their trial. It is important, especially for lawyers, to give up on Bail application simply because the offence committed by their client is considered 'Non-Bailable' or even Unbailable. REMEMBER that BAIL is premised on the legal principle of presumption of INNOCENCE until proven guilty and convicted by Court after a fair trial. The denial of BAIL for a person ultimately found NOT GUILTY is a serious miscarriage of JUSTICE which ought to be avoided.

And, if BAIL is denied, reasonably the TRIAL of such accussed persons must be EXPEDITED to finish as soon as possible, or at least reach the stage that Prosecution has successfully managed to prove a Prima Facie case, and Defence is called. HOW LONG? It should be no longer than 3 or 6 months from the date one is charged in court - for after all, it is a legal principle that Prosecution does not charge anyone UNLESS they believe or are ready to prove GUILT beyond reasonable doubt - this means that Prosecution is READY to immediately start the TRIAL. 

The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. It is unjust because of the social stigma that immediately attaches to a person once he is charged in Court. He is deserted by his friends. His business is affected. His creditors close on him. His family is ashamed. He is mentally tormented awaiting trial. And last but not least, he has to incur the expense of engaging Counsel. There is no consolation in the fact that he may eventually be shown to be innocent of the charge. The damage has been done. Public Prosecutor V. Tan Kim San [1980] CLJU 66[1980] 1 LNS 66,  the late Harun J

BAIL is to just ensure that the one released on Bail turns up for his/her trial - and with the availability of electronic monitoring, it removes concerns like flight risk.

PRISON OVERCROWDING is a serious issue, but the more serious concern is that the fact that there are about 25,000 - 30,000 in detention in Malaysian prisons because they cannot afford bail, or Bail has been denied. Justice demands that these cases be expedited to finish at least SIX(6) months from the date they be charged - alternatively, the requirement that Prosecution at least manage to prove a PRIMA FACIE case against them. 

I reiterate that In law, a legal principle is that the prosecution DO NOT CHARGE anyone until they believe that they have sufficient evidence to prove Guilt beyond reasonable doubt, or at the very least a prima facie case > so Prosecution is ready to proceed with the trial from the day a person is charged....so WHY is there a Delay? Lawyers for the accused cannot take up a case if they are not FREE .. So, is the delay because we are facing a shortage of Judges and Courts? In Peninsular, the lawyer population has more than doubled in the past decade. 

The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. It is unjust because of the social stigma that immediately attaches to a person once he is charged in Court. He is deserted by his friends. His business is affected. His creditors close on him. His family is ashamed. He is mentally tormented awaiting trial. And last but not least, he has to incur the expense of engaging Counsel. There is no consolation in the fact that he may eventually be shown to be innocent of the charge. The damage has been done. Public Prosecutor V. Tan Kim San [1980] CLJU 66[1980] 1 LNS 66,  the late Harun J


 

 

GISBH top leaders hauled to court over organised crime
Shahrin Aizat Noorshahrizam
Published:  Oct 23, 2024 11:16 AM
Updated: 12:41 PM
 
Global Ikhwan Services and Business Holdings (GISBH) CEO Nasiruddin Mohd Ali was charged this morning at the Selayang Sessions Court with being a member of an organised crime group.

Nasiruddin’s wife Azura Md Yusof was also charged with the same offence, as were 20 other GISBH members - 12 men and eight women.

Those charged are being held under the Security Offences (Special Measures) Act (Sosma).

Due to this, the case will be heard by the High Court, and as such, the accused did not enter a plea today.

Instead, they only acknowledged the charges read out to them before judge Lailatul Zuraida Harron@Harun.

Nasiruddin’s wife Azura Md Yusof

The Selayang court complex was under heavy police security while the group was there, with the courtroom cleared except for the accused, court officials, and media personnel.

During proceedings, the group's defence lawyer Rosli Kamarudin requested for bail but was denied by the judge, who said the matter would be up to the High Court to decide.

In a press conference later, Rosli said the defence would send representation to the Attorney-General Chambers but did not elaborate.

‘I hope there will be no more charges’

Commenting further on the charges, Rosli hopes GISBH will only be charged for the affiliation to organised crime and nothing more, as he noted that the company was reportedly being probed under 10 different Acts.

"I hope this will be the only charge," Rosli told reporters at the court complex.

Previously, Home Minister Saifuddin Nasution Ismail said GISBH leaders were being investigated under Sosma and Anti-Trafficking in Persons and Smuggling of Migrants (Atipsom) Act, among others.

Defence lawyer Rosli Kamarudin

The raid began with a sting on welfare homes allegedly connected to the group, from which 400 children were rescued.

It has since expanded to a crackdown on alleged deviancy practised by GISBH - which succeeded the outlawed al-Arqam group.

The alleged crimes took place in several locations in Malaysia. The company involved, GISBH, has denied all accusations.

Here is the list of GISBH members that were charged today:

1. Nasiruddin Mohd Ali, 65
2. Hasnan Abd Hamid, 53
3. Mohammad Adib At-Tarmizi Asa'ari, 32
4. Mohd Shukri Mohd Noor, 53
5. Mokhtar Tajuddin, 60
6. Shuhaimi Mohamed, 56
7. Muhammad Afdaluddin Latif, 34
8. Mohamad Sayuti Omar, 35
9. Mohd Fazil Md Jasin, 57
10. Mohd Dhirar Fakhrur Razi, 34
11. Muhammad Zahid Azhar@Nadzri, 51
12. Abu Ubaidah Ahmad Shukri, 34
13. Muhammad Fajrul Islam Khalid, 28
14. Azura Md Yusof, 57
15. Hamimah Yakub, 72
16. Asmat@Asmanira Muhammad Ramly, 44
17. Mahani Kasim, 54
18. Siti Hajar Ismail, 51
19. Khalilatul-Zalifah Mohammad Jamil, 27
20. Nurul Jannah Idris, 28
21. Nur Jannah Omar, 32
22. Siti Salmiah Ismail, 57

- Malaysiakini, 23/10/2024

At Selayang court, 22 GISBH members face organised crime charges, families barred from entry

The male members, dressed in white T-shirts and handcuffed, arrived at 8.15am, while the female members, also handcuffed and wearing robes, arrived at 9.30am. — Screengrab from social media
The male members, dressed in white T-shirts and handcuffed, arrived at 8.15am, while the female members, also handcuffed and wearing robes, arrived at 9.30am. — Screengrab from social media

KUALA LUMPUR, Dec 23 — A total of 22 members of GISB Holdings Sdn Bhd (GISBH) appeared at the Selayang Sessions Court this morning to face charges of being members of an organised crime group since 2020.

The accused include GISBH chief executive officer Datuk Nasiruddin Mohd Ali, his wife Datin Azura Md Yusof, and Mohammad Adib At-Tamimi Asa’ari, the son of the late founder of Al-Arqam, along with 19 other senior leaders of the organisation, according to a report published in Astro Awani today.

The male members, dressed in white T-shirts and handcuffed, arrived at 8.15am, while the female members, also handcuffed and wearing robes, arrived at 9.30am.

On October 23, Nasiruddin, Azura, and 20 others were charged in the same Sessions Court with being members of an organised crime group over the past four years.

During the mention, all the accused nodded to indicate understanding after the charges were read before Judge Lailatul Zuraida Harron @ Harun.

No pleas were recorded as the case falls under the jurisdiction of the High Court.

In addition to Nasiruddin, 65, and Azura, 57, the other accused are Hasnan Abd Hamid, 53, Mohammad Adib At-Tarmizi, 32, Mohd Shukri Mohd Noor, 53, Mokhtar Tajuddin, 60, Shuhaimi Mohamed, 56, Muhammad Afdaluddin Latif, 34, Mohamad Sayuti Omar, 35, Mohd Fazil Md Jasin, 57, Mohd Dhirar Fakhrur Razi, 34, Muhammad Zahid Azhar@Nadzri, 51, Abu Ubaidah Ahnad Shukri, 34, and Muhammad Fajrul Islam Khalid, 28.

Other defendants include Hamimah Yakub, 72, Asmat@Asmanira Muhammad Ramly, 44, Mahani Kasim, 54, Siti Hajar Ismail, 51, Khalilatul-Zalifah Mohammad Jamil, 27, Nurul Jannah Idris, 28, Nur Jannah Omar, 32, and another identified as Siti Salmiah.

According to the charges, the accused were alleged to have been members of the organised crime group GISBH at a location on Jalan Desa, Bandar Country Homes, Rawang, between October 2020 and September 11 this year.

The charges were filed under Section 130V(1) of the Penal Code, which carries a minimum imprisonment of five years and a maximum of 20 years upon conviction.

Meanwhile, in a separate report, Utusan Malaysia said that nearly 30 individuals believed to be family members of the accused linked to GISBH were barred from entering the Selayang Court Complex today.

Family members gathered outside the courthouse gates were seen waving and calling out to their relatives from a distance. - Malay Mail, 23/12/2024

GISBH accountant released on bail

-

Section 13(2)(b) of Sosma allows for release under bail for women, minors, or those suffering from severe illness.

Hamimah Yakub
Hamimah Yakub’s lawyer said the 73-year-old suffers from multiple health conditions and that the poor conditions at the Kajang women’s prison had worsened her health. (Bernama pic)

SHAH ALAM:

The High Court here has allowed an accountant of GISB Holdings Sdn Bhd (GISBH), who is charged with being a member of an organised crime group, to be bailed at RM40,000 with two sureties.

Justice Latifah Tahar said the decision took into account the absence of objections from the prosecution and the fact that Hamimah Yakub, as a woman, fell under exemptions stipulated in the Security Offences (Special Measures) Act (Sosma) 2012.

She also said there was no evidence suggesting that the applicant posed a risk of fleeing or interfering with witnesses if released on bail.

“The court also considered the age of the applicant, who is now 73, and the submitted evidence of her health problems. Therefore, the court grants bail with conditions,” Latifah said.

Hamimah, a member of GISBH, is among 22 people detained under Sosma and accused of being members of an organised crime group at a location in Bandar Country Homes, Rawang, from October 2020 to September 2024.

The charge was framed under Section 130V(1) of the Penal Code, which provides for five to 20 years in prison, upon conviction.

Hamimah was also prohibited from contacting any of the prosecution witnesses and ordered to surrender her passport to the court until the case concludes.

She is also required to report to the Kajang police headquarters every two weeks until the trial ends.

“Failure to comply with any of the bail conditions could result in the issuance of an arrest warrant, forfeiture or increase of bail, or imprisonment until the case is resolved,” the judge said.

Earlier, lawyer Kamal Hisham Jaafar argued that the bail application was made under Section 13(2)(b) of Sosma, which specifically allows for consideration of release under bail for women, minors, or those suffering from severe illness.

He added that Hamimah suffered from multiple health conditions, including asthma, diabetes, hypertension, and chronic eczema.

“The poor conditions and lack of cleanliness in prison have worsened the applicant’s health. She has been in remand at the Kajang women’s prison for approximately four months since Sept 20 last year,” he said. - FMT, 13/1/2025

 

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