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2021 MarsdenLR 1524
HIGH COURT MALAYA GEORGETOWN
BALACHANDRAN K ARUJUNAN & ANOR – Appellant
Versus
PP – Respondent
[Crimina Application No: PA-44-4-03/2021]
The prohibition of bail under Section 41B of the Dangerous Drugs Act is constitutional, establishing that specific legislation prevails over general statutes for drug-related offences.
Headnote:(A) Dangerous Drugs Act 1952 – Section 41B – Criminal Procedure Code – Section 388(1) – This application for bail under the Dangerous Drugs Act was dismissed due to the prohibition against bail for offences under Section 41B, affirming the principle that specific legislation regarding bail in drug-related offences takes precedence over general law. (Paras 9-10, 63)
(B) Constitutionality – Judicial Power – The court held that Section 41B does not usurp judicial power as it is a valid law enacted by Parliament, and that judicial discretion is preserved, albeit limited, under certain conditions. (Paras 23-30, 41-42)
(C) Discrimination – Equal Protection – The court found no merit in the argument that Section 41B was discriminatory as it serves a significant public interest and is proportionate to its objectives. (Paras 39-44)
Facts of the case: The Applicants were charged under the Dangerous Drugs Act and their bail applications were denied based on the absolute prohibition under Section 41B.
Findings of Court: The Court concluded that the DDA's prohibition on bail is valid and must be applied, thereby dismissing the bail applications.
Issues: Key issues addressed included the constitutionality of Section 41B, the applicability of Section 388(1) of CPC, and comparisons to earlier cases.
Ratio Decidendi: The ruling confirmed the priority of specific provisions in the DDA over general provisions in the CPC, maintaining the validity of Section 41B.
Result: The application for bail was dismissed.
JUDGMENT
Matter Before This Court
[1] This an application by way of a Notice of Motion by both the Applicants for a bail pursuant to s 388(1) of the Criminal Procedure Code (" CPC ") ("Application").
Background
[2] On 8 December 2020 both the Applicants were charged before the Magistrate Court at Georgetown, Penang for an offence under s 39B of the Dangerous Drugs Act 1952 (" DDA "). An application for bail was made before the Magistrate and that application was denied. Since then, both Applicants have been in remand at the Remand Prison, Penang dan Pokok Sena Prison, Kedah respectively.
[3] Dissatisfied with decision of the Magistrate in denying bail, both Applicants filed the Application with a Certificate of Urgency. The certificate was premised on the matter of liberty of both the Applicants. The Application was then heard on 16 April 2021.
The Application
[4] The Application was supported by Affidavit of Nurul Nabilah binti Habibu, legal counsel for both the Applicants ("Applicant's Affidavit").
[5] The Respondent filed a total of 13 Affidavits in reply to the Application ("Affidavits in Reply").
[6] The Application is premised on several issues. They are summarized as follows:
(a) The effect of the decision of Federal Court in Koh Chin Wah lawan Pendakwa Raya (No Rayuan Jenayah: 07-13- 11/2019(W)) that allowed an application for bail under s 13 of the Security Offences (Special Measures) Act 2012 ('SOSMA');
(b) That on the authority of the Federal Court decision Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat , , s 41B of the Dangerous Drugs Act 1952 amounts to a usurpation of the judicial power of the Court and is therefore ultra viresart 121 of the Federal Constitution;
(c) That s 41B of the DDA is ultra viresarts 4, 5 and 8 of the Federal Constitution in that offenders under the are not treated equally under the law where offenders under different penal law are allowed to apply for bail under s 388(1) of the CPC ;
(d) The effect of the High Court decision in Puan Saad v. PP , where the Court in that case had allowed an application for bail by an accused charged under s 39B of the DDA ; and
(e) That in the event this Court holds s 41B of the DDA to be unconstitutional and/or agrees with the position taken ini Puan Saad (supra) then s 388(1) of the CPC is available to both the Applicants. This Court should therefore consider this Applicant on its merits. In consideration of the medical issues suffered by both the Applicants and additionally, the second Applicant's gender, bail should be granted.
[7] The Application is opposed by the Respondent based, inter alia, on the following contentions:
(a) That there is a presumption of the constitutionality of s 41B of the DDA ;
(b) That the exercise and limits of judicial power to grant or not grant bail is derived from art 121 of the Federal Constitution and as provided by law;
(c) That s 41B of the DDA takes precedence over s 388(1) of the CPC since the is a specific law dealing with drug related offences; and
(d) That even if s 388(1) of the CPC is applicable, both the Applicants do not satisfy the requirements for bail under that provision.
Deliberations By This Court
Prohibition Against Bail Under The DDA - Background
[9] Section 41B of the DDA provides:
(1) Bail shall not be granted to an accused person charged with an offence under this Act:
(a) where the offence is punishable with death; or
(b) where the offence is punishable with imprisonment for more than five years; or
(c) where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.
(2) Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.
[9] This provision of the DDA came into effect on 10 March 1978 via the Dangerous Drugs (Amendment) Act 1978. It is plainly clear that s 41B of the strictly prohibits the granting of b
