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CASES UNDER SOSMA 2012
Since the enforcement of SOSMA on 22 June 2012, there has been two (2) cases
proceeded under this Act to this date
1
. The first ones detained under SOSMA are Yazid bin
Sufaat, Halimah Hussein and Mohd Hilmi Hasim for inciting or promoting the commission of
terrorist acts under Section 130G(a) of the Penal Code as their involvement in encouraging
violence to threaten the public in Syria.
2
It is to be noted that the trio was previously detained
under the now repeal of Internal Security Act. At first, the High Court of Kuala Lumpur,
Judge Kamardin Hashim, in setting free Yazid and his friends Halimah Hussein and
Muhammad Hilmi Hasim decided that Article 149 of the Federal Constitution was only
applicable to acts of threats in Malaysia. Therefore, as such the SOSMA was enacted under
Art. 149 of the Federal Constitution, the charges under the Act do not hold up and cannot be
proved against them.
3

However, the prosecution appealed the decision of the High Court before the Court of
Appeal, Putrajaya. The panel led by Justice Abu Samah Nordin together with Justices
Zawawi Salleh and Azhar Mohamed allowed the appeal and remitted back the case to the
Kuala Lumpur High Court for its error in interpretation of the charges and misconstrued Art.
149 the charge against the respondents (the trio) are within the scope of Art. 149. Their
defence counsel had applied for a stay of proceedings, saying that the High Court had ordered
all three be tried together pending the appeal and there was no objection from the
prosecution.
4

Nonetheless, this case is in pending due to the fact that Halimah Hussein, the religious
teacher and also the first woman to be detained and charged under the Security Offences
(Special Measures) Act 2012 (SOSMA), is still on the run. This has been confirmed by the
Attorney General, Tan Sri Abdul Ghani Patail. Warrant of arrest has been issued by the Court

1
The date of this assignment, 2 May 2014.
2
Bernama, Detention of trio under Security Offences Act has global impact, New Straits Times, 9 February, 2013, via
News Straits Times website, <http://www.nst.com.my/latest/detention-of-trio-under-security-offences-act-has-global-
impact-1.215792#ixzz300d0ZLlt>. Retrieved from 26 April 2014.
3
High Court strikes out Sosma charges against three, New Straits Times, 21 May, 2013, via News Straits Times website,
General, <http://www.nst.com.my/nation/general/high-court-strikes-out-sosma-charges-against-three-
1.283111#ixzz306eAPiHj>. Retrieved from 27 April 2014.
4
Prosecution wins appeal against Yazid Sufaats acquittal over terror charge, News Strait Times, 18 June, 2013, via News
Strait Times website, Nation,
< http://www.thestar.com.my/news/nation/2013/06/18/prosecution-wins-appeal-against-yazid-sufaats-acquittal-over-terror-
charge.aspx/>
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of Appeal on May 31, 2013
5
and even until now; there is neither news about the fugitive
Halimah Hussein nor any yet cases report about the trio under SOSMA.
The second case noteworthy to mention for this purpose of assignment is a Kota
Kinabalu High Courts case, Public Prosecutor v Hassan bin Hj Ali Basri [2014] 7 MLJ
153
6
. This case is in connection with the infamous armed intrusion by a group of foreigners
from the Philippines of the so-claimed Sulu Sultanate into Kampung Tanduo, in the district of
Lahad Datu, Sabah. The accused, a corporal attached to the Special Branch of the Royal
Malaysian Police Force in Lahad Datu, was charged with the offence of omitting to disclose
information pertaining to a terrorist act under section 130M of the Penal Code. The accused
was alleged to have been in possession of this information as early as January of 2013.
However, he withheld all this crucial information from his superiors. The crucial witnesses
who gave evidence to support the case for the prosecution were PW1 and PW2, both of
whom had been accorded protected witness status pursuant to SOSMA.
It was the PW1 had passed information pertaining to armed intrusion into Sabah to the
accused in January 2013. According to PW1, when he was selling fish in Bungao in the
Philippines, he came across men wearing camouflage uniforms with the words 'Royal Sulu
Force' written on their uniform. From his conversation with them in the Suluk Language, he
learnt that 1,500 men had gathered in Pulau Siminul and had planned entry into Sabah to
stake a territorial claim of the state. On the other hand, PW2, an administrative assistant
attached to the Special Branch Division at the Federal Police Headquarters was the one who
intercepted telephone conversations and was tendered by the court as non verbatim
transcriptions namely, P5, P6 and P7 which its content corroborated the prosecutions case
that the accused knew of the impending armed intrusion into Sabah and terrorist acts that
were committed.
The application of sections 14, 6 and 24 of Security Offences (Special Measures) Act
2012
7
are discussed in this case in regards to the protection of witnesses identity (particularly
PW1 and PW2) and the admissibility of intercepted communications.

5
Bernama, A-G confirms Halimah skipped bail, New Straits Times, 19 December, 2013, via News Straits Times website,
General, <http://www.nst.com.my/nation/general/a-g-confirms-halimah-skipped-bail-1.437566#ixzz306mDaDzF>.
Retrieved from 27 April 2014.
6
This case is presiding before Ravinthran J.
7
Act 747
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The s. 14 of the SOSMA provides for the giving of evidence by a witness in a special
manner to protect his or her identity which reads as follows:
PART VI
SPECIAL PROCEDURES RELATING TO PROTECTED WITNESS

14. Evidence of witness given in a special manner
(1) Notwithstanding Article 5 of the Federal Constitution and section 264 of
the Criminal Procedure Code, where at any time during the trial of a security
offence, any of the witnesses for the prosecution refuses to have his identity
disclosed and wishes to give evidence in such a manner that he would not be
seen or heard by both the accused and his counsel, the Public Prosecutor may
make an oral application to the court for the procedures in this section to
apply.

(2)For the purpose of satisfying itself as to the need to protect the identity of
the witness, the court shall hold an inquiry in camera by questioning the
witness concerned or any other witness in the absence of the accused and his
counsel.

(3) If after such inquiry the court is satisfied as to the need to protect the
identity of the witness, the evidence of such witness shall be given in such
manner that he would not be visible to the accused and his counsel, but would
be visible to the court; and further if the witness fears that his voice may be
recognized, his evidence shall be given in such manner that he would not be
heard by the accused and his counsel.

(4)The court may disallow such questions to be put to the witness as to his
name, address, age, occupation, race or other particulars or such other
questions as in the opinion of the court would lead to the witnesss
identification
As the learned judge also give heed to not record any of his questions to the respective
witnesses (PW1 and PW2) and their answers or else it will defeat the purpose of application
of the s. 14 and also described the manner of the special proceeding for the protected
witnesses are conducted, by quoting:
I deliberately did not record the questions I posed to the witnesses or
their answers during the inquiry in the notes of proceedings as that could
give clues to their identity. It should be noted that even during cross-
examination, questions that could lead to the identification of a protected
witness are barred (see s 14(4) of the SOSMA). When the protected
witnesses gave evidence, they were not visible to the accused and his counsel.
The protected witnesses had been placed in a secured room in the court
premises. The secured room was connected to the open court via a video and
audio link. The video images were displayed only on the computer screen of
the judge. The audio link was made available to the judge, DPP and the court
interpreter. The questions of the DPP and counsel for accused were posed to
the protected witnesses through the court interpreter who relayed the questions
through the audio link to the protected witnesses. The answers of the
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witnesses were also relayed back to the court through the same manner. This
procedure was adopted in order to comply with s 14(3) that I reproduced
above.
8
[Emphasis added]
Meanwhile, the s. 6 of the SOSMA is stipulated for the power to intercept
communication as there are three (3) non verbatim transcriptions of intercepted telephone
conversations through PW2 which were tendered by the prosecution as P5, P6 and P7. P5 is a
transcript of a conversation between one Datu Amir Bahar and a so-called Raja Muda
Agbimudin about the role of the accused in supplying them information while P6 and P7 are
in respect of a telephone conversation between the accused and a man referred to by PW2 as
'Lelaki Sabah'. The non verbatim transcript in P6 that was recorded by PW2 is clear evidence
that the accused possessed information that 400 more foreign intruders would arrive to lend
support to those already present in Kampung Tanduo since 12 February 2013. Similarly, P7
constitutes clear evidence that the accused had knowledge that foreign intruders were keen on
staking a claim on Sabah and were willing to create disorder and anarchy through guerrilla
tactics to achieve their objectives.
9
Section 6(1) of the SOSMA reads as follows:
6. Power to intercept communication

(1) Notwithstanding any other written law, the Public Prosecutor, if he
considers that it is likely to contain any information relating to the
commission of a security offence, may authorize any police officer
(a) to intercept, detain and open any postal article in the course of
transmission by post;
(b) to intercept any message transmitted or received by any
communication; or
(c) to intercept or listen to any conversation by any communication.

(2) The Public Prosecutor, if he considers that it is likely to contain any
information relating to the communication of a security offence, may
(a) require a communications service provider to intercept and retain a
specified communication or communications of a specified description
received or transmitted, or about to be received or transmitted by that
communications service provider; or
(b) authorize a police officer to enter any premises and to install on
such premises, any device for the interception and retention of a
specified communication or communications of a specified description
and to remove and retain such evidence.

(3) Notwithstanding subsection (1), a police officer not below the rank of
Superintendent of Police may
(a) intercept, detain and open any postal article in the course of
transmission by post;

8
[2014] 7 MLJ 153. See Para. 10 at p. 163-164
9
Ibid. See Para. 15-19 at p. 165-166
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(b) intercept any message transmitted or received by any communication;
or
(c) intercept or listen to any conversation by any communication,
without authorization of the Public Prosecutor in urgent and sudden
cases where immediate action is required leaving no moment of
deliberation.

(4) If a police officer has acted under subsection (3), he shall immediately
inform the Public Prosecutor of his action and he shall then be deemed to
have acted under the authorization of the Public Prosecutor.

(5)The court shall take cognizance of any authorization by the Public
Prosecutor under this section.

(6) This section shall have effect notwithstanding anything inconsistent with
Article 5 of the Federal Constitution.

(7) For the purpose of this section
communication means a communication received or transmitted by post or a
telegraphic, telephonic or other communication received or transmitted by
electricity, magnetism or other means;
communications service provider means a person who provides services for
the transmission or reception of communications. [Emphasis added]
The defence counsel argued on the admissibility of the intercepted communications and
submitted that the s. 6 has been breached because breached. This is because the authorisation
to intercept was only given to Supt Anuar bin Ahmad through the issuance of written
authorization by DPP Dato' Mohamad Hanafiah and not to PW2 who is not even a police
officer as her designation is administrative assistant. However, the court rejected this
argument as quoted as follows:
In my opinion, there is no requirement for Supt Annuar to personally
intercept, listen in and translate telephone conversations pursuant to the
authority granted to him under s 6 of SOSMA. It is sufficient that the said
tasks were carried out under his direction and supervision as is the case
here. Otherwise, no meaningful interception can be done if the police officer
authorised by the public prosecutor under s 6 of SOSMA does not understand
the language in which the telephone conversation in question was conducted.
Nonetheless, counsel for the accused submitted that the plain words of s
6(1) require the interception to be done personally by the authorised
police officer and no other. In my view, this cannot be the law as the
authority given to intercept could be rendered useless.
10
[Emphasis
added]
Even the defence counsel is correct in his submission but still the court regards P5, P6
and P7 admissible in accordance with the evidentiary rule as long it is relevant regardless

10
Ibid. See Para. 22 at p. 167-168.
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improperly obtained evidence.
11
The defence counsel also objected on the ground the
intercepted telephone conversations were not transcribed verbatim instead they were only a
summary. This objection was overruled by the court in cross-reference to the s. 24 of the
SOSMA which reads as follows:
24. Admissibility of intercepted communication
Where a person is charged for a security offence, any information obtained
through an interception of communication under section 6 shall be
admissible as evidence at his trial and no person or police officer shall be
under any duty, obligation or liability or be in any manner compelled to
disclose in any proceedings the procedure, method, manner or any means or
devices, or any matter whatsoever with regard to anything done under section
6. [Emphasis added].
Moreover, it is noted that s. 24 under Part VII of the Act thus, subjected to s.17 which
provides:
PART VII
EVIDENCE

17. Inconsistency with the Evidence Act 1950
This Part shall have effect notwithstanding anything inconsistent with the
Evidence Act 1950 [Act 56].
Consequently, even there is the failure by the prosecution to tender the itemised billing
telephone records of the accused is not fatal and the intercepted communications tendered as
P5, P6 and P7 is admissible under SOSMA
12
. Therefore, the court held convicting and
sentencing the accused with the offence charged based on the credible evidence by the
protected witnesses, PW1 and PW2 and intercepted communications through PW2 pursuant
to SOSMA Act.
It is also to be noted that the hunt for the culprits of the Sabah armed intrusion was
ongoing investigations, as so far the numbers of arrest under SOSMA have reached to 122
including investigate into the sponsors or any directly and indirectly involvement to the so-
claimed Sulu Sultanate, Jamalul Kiram and his followers
13
. It can also be inferred that the
investigations might be at halt due to the death of the leader of the Sabah armed intrusion,
Jamalul Kiram on 20
th
October 2013.
14


11
Ibid. See Para. 23-28 at p. 168-169.
12
Ibid. See Para. 29-33 at p.169-170.
13
Ridzwan detained under SOSMA, FMT News, 1 April, 2013, via FMT News website,
http://www.freemalaysiatoday.com/category/nation/2013/04/01/wanted-dato-seri-surrenders-denies-involvement/. Retrieved
from 28 April 2014.
14
Sultan Jamalul Kiram III, Who Led Revolt in Malaysia, Dies at 75, Bloomberg, 21 October, 2013, via Bloomberg.com
website, <http://www.bloomberg.com/news/2013-10-20/sulu-s-sultan-kiram-iii-dies-sought-to-restore-reign-over-
sabah.html>. Retrieved from 28 April 2014.