KOTA KINABALU: A Filipina widow detained under the Security Offences (Special Measures) Act 2012 (Sosma) has been, in what was a landmark decision, granted bail by the High Court here on Friday (March 3).
Kota Kinabalu High Court Judge Datuk Christopher Chin Soo Yin overturned a lower court’s previous decision not to grant bail to Divina Gutierez Sanchez, 46, after hearing submissions from both the prosecution and defence.
A tearful Sanchez was seen hugging her two sons and thanking her lawyer Datuk Seri K. Rakhbir Singh as well as the judge for the decision.
Sanchez was initially charged at the Sessions Court here on Dec 28 last year.
She was facing a charge for an offence under Section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrant (Atipsom) Act 2007 which carries a maximum punishment of 20 years in jail or fine, or both on conviction.
On Jan 31 this year, Rakhbir appeared for Sanchez at the Sessions Court and had sought bail for her but the presiding judge refused.
He then filed a revision with the High Court and after hearing submissions from Rakhbir and from Deputy Public Prosecutor Afiq Agoes, Judge Chin then delivered the verdict on Sanchez’s bail.
In his decision, which was read in open court, Judge Chin said the accused (Sanchez) was charged under Section 26A of Atipsom and that the Act was amended to include Part III A, which had included the said Section 26A to 26K in the First Schedule of Sosma.
"So, bail cannot be granted save if one of the three exceptions allowed in section 13(2) of Sosma 2012 is met (which are) below 18-years-old or, a woman or a sick or infirm person," he said.
He added that Section 26A of Atipsom which is the section the applicant was charged under is encompassed in the First Schedule to Sosma, hence, the grant of bail is governed by Section 13 of Sosma and not by Section 388(1) of the Criminal Procedure Code (CPC).
"Put simply, and as I understand it, an offence under Atipsom is a security offence for the purposes of Sosma and hence bail is governed under Section 13(2) of Sosma and its exceptions.
"As the applicant is obviously a female, she falls under one of the exceptions.
"On the assumption that the court below did not consider bail at all in the belief this case is non-bailable, I revise that decision," Chin said.
After having heard from both parties, he said, he allowed a bail of RM20,000, with RM10,000 deposited in two local sureties with local permanent addresses.
The Judge also ordered the accused to fulfil several conditions including reporting herself to the police station in the Penampang district near here on the first and 15th of every month.
Her passport, he added, was also to be surrendered until otherwise ordered by the Court upon the conclusion of her case.
"Pursuant to Section 13(2) of Sosma, she is to be fitted with an electronic monitoring device and for this purpose, she is to report to the investigating officer at the Sabah police headquarters here daily until such device has been fitted," Chin said.
The verdict, he added, was made after taking into account the requirement to balance the severity of the offence charged being a security offence against the basis that the person is innocent until proven otherwise, and having considered and read the decision of similar cases decided by the apex court and also the circumstances of the case and the applicant.
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