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2021 MarsdenLR 705
HIGH COURT MALAYA KOTA BAHRU
MOHD ASYRAF SALIM – Appellant
Versus
PP – Respondent
[Criminal Application No: DA-44-24-04/2021 & DA-44-26-04/2021]
The Court affirmed that specific bail provisions in the Dangerous Drugs Act 1952 prevail over general bail provisions in the CPC, thereby denying bail for applicants facing serious charges.
Headnote:(A) Dangerous Drugs Act 1952 – Section 41B – Application for bail pending trial – Applicants charged under s 39B(1), facing possibility of death penalty – Section 41B provides that bail shall not be granted for such offences, overriding general bail provisions in s 388 of CPC. The applicants' arguments regarding violation of rights and lengthy detention were considered but found insufficient to warrant bail. (Paras 8, 11, 17, 19)
(B) Principle of Generalibus Specialia Derogant – Established that specific provisions in special statutes take precedence over general provisions in ordinary law. Court finds itself bound by Federal Court precedents affirming this principle in the context of bail under the Dangerous Drugs Act. (Paras 4, 8, 12, 16)
Facts of the case: The applicants were detained for almost a year and charged under the Dangerous Drugs Act, with the prosecution arguing the unbailable nature of their offence as stipulated in s 41B. The applicants sought bail citing special circumstances. (Paras 1-4)
Findings of Court: The court determined that bail cannot be granted under s 41B of the Dangerous Drugs Act due to the nature of the charges. The court emphasized adherence to statutory provisions without undermining the judiciary's power. (Paras 10-19)
Issues: Whether the imposition of s 41B constitutes a violation of judicial discretion in granting bail and the implications of illegal detention prior to charges being filed. (Paras 13, 17)
Ratio Decidendi: The court concluded that s 41B mandates the denial of bail for serious offences, affirming established precedent that special provisions prevail over general law. (Paras 8, 12)
Result: Both applications for bail dismissed.
JUDGMENT
Introduction
[1] This is an application under s 388 of Criminal Procedure Code (" CPC ") for bail pending trial by both applicants in two separate applications. It was heard together since both applicants were charged jointly and will be tried in the same trial.
[2] Both applicants were charged before the Magistrate Court Pasir Mas, Kelantan under s 39B (1) of the Dangerous Drugs Act 1952 (Act 234") punishable under s 39B (2) of the same Act and if convicted can be punished with death. According to the Learned Deputy Public Prosecutor, the case against both applicants has been transmitted to the High Court and is fixed for mention before this Court on 7 August 2021.
Submission By Both Parties
[3] Learned counsel for the applicants urged this Court to grant bail on reason of special circumstances peculiar this case. According to the learned counsel, both applicants were only charged at the lower Court on the 15th day of their arrest which breached their fundamental rights. Secondly, that they have been remanded for almost a year and due to the current situation, it will take some time for their case to be concluded.
[4] The prosecution on the other hand submitted that this Court should not grant bail for the reason that s 41B of Act 234 is a specific provision with regard to bail for offences under the act and that based on the principle of generalibus specilia derogant, the provision of s 41B prevails over the provision of s 388(1) of CPC . The learned DPP further submitted that the provision of s 41B is mandatory and therefore the offence punishable under s 39B of Act 234 is unbailable where the Court has no discretion to grant bail unlike a non-bailable offence which s 388(1) is applicable.
[5] The prosecution based their argument on Federal Court decisions in PP v. Chew Siew Luan , [1982] 2 MLJ 119; which were followed in PP v. Ajim Otoh ; [2017] 2 CLJ 240 and the case of Loy Chin Hei v. PP , ; [1981] CLJ (Rep) 178.
[6] The learned counsel for the Applicants however had urged this Court to depart from the previous authorities in view off principles enunciated by Federal Court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case, , Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals; [2018] 3 CLJ 145; [2018] 2 AMR 313 and Alma Nudo Atenza v. PP & Another Appeal; [2019] 4 MLJ 1; [2019] 5 CLJ 780 and to conclude that s 41B of Act 234 is unconstitutional because it divests from the courts the judicial discretionary power to evaluate whether or not to grant or refuse bail. The learned counsel submitted that the bail should be allowed since the purpose of bail is to secure attendance at the trial and that the granting of bail is a judicial act and it is the Court that must decide whether there are reasonable grounds for granting the bail.
Analysis And Findings Of This Court
[7] Section 41B of Act 234 states as follows:
"(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) The provisions of subsection (1) shall have the effect notwithstanding any other written law or any rule of law to the contrary."
[8] This provision clearly states that notwithstanding any other written law or any rule of law to the contrary, bail shall not be granted where the accused is charged with offences punishable with death under Act 234. When there is a written law has specifically provided for a matter provided in general law, then the principle of generalibus specilia derogant shall be applicable. As such the provision of s 41B of Act 234 prevails over the provision of s 388(1) CPC .
[9] In PP v. Chew
