KOTA KINABALU: A Filipina widow held under the Security Offences (Special Measures) Act 2012 (Sosma) for two months was in tears after the High Court here overturned a lower court’s decision and allowed bail.
Kota Kinabalu High Court judge Christopher Chin Soo Yin granted 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 thanked her lawyer Datuk Seri K. Rakhbir Singh and the judge.
Sanchez was charged at the Sessions Court here on Dec 28 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, the Sessions Court refused her bail.
A revision was filed to the High Court and after hearing submissions from Rakhbir and from deputy public prosecutor Afiq Agoes, the judge allowed bail of RM20,000, with RM10,000 deposited in two local sureties with local permanent addresses.
He also ordered her to report to the Penampang district police station on the first and 15th of every month and to be fitted with an electronic monitoring device. Her passport was also impounded.
In his decision read in open court, Justice Chin said Sanchez had been charged under Section 26A of Atipsom and that the Act was amended to include Part III A which 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. These are (the accused being) below 18 or, a woman or a sick or infirmed person,” he said.
“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 that this case is non-bailable, I revise that decision,” Justice Chin said.
The verdict, he added, was made after taking into account the requirement to balance the severity of the offence – a security offence – against the basis that the person is innocent until proven otherwise, and also the circumstances of the case and the applicant.