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2021 MarsdenLR 2889
HIGH COURT MALAYA KOTA BHARU
MACK (A CHILD) – Appellant
Versus
PP (ENCL 2 & 5) – Respondent
[Criminal Trial No: DA-44-56-09/2021]
The court affirmed that specific provisions in the Dangerous Drugs Act regarding bail take precedence over general provisions in the Criminal Procedure Code.
Headnote:(A) Dangerous Drugs Act 1952 – Section 12(2) and Section 39A(2) – Criminal Procedure Code – Section 388 – Bail pending trial for a child charged under the Dangerous Drugs Act – Previous decisions reaffirmed that application of specific laws supersedes general provisions regarding bail – The court examined the provisions of s 41B of the Dangerous Drugs Act regarding an absolute restriction on bail for offences punishable with more than five years – Reference made to the doctrine of separation of powers and the non-binding nature of the UN Convention regarding the treatment of children in this context. (Paras 4, 10, 12, 18, 30)
Facts of the case: The Applicant, a 16-year-old child, faced charges of possession of dangerous drugs under the Dangerous Drugs Act. As the charges related to a serious offence, the application for bail was made on the grounds of exceptional circumstances due to the Applicant's age and circumstances.
Findings of Court: The court found that the provisions within the Dangerous Drugs Act provided a clear prohibition against granting bail in cases like the present one, emphasizing Parliament's jurisdiction to legislate on these matters.
Issues: Whether the court can grant bail despite the prohibition within the Dangerous Drugs Act and the relevance of considering the Applicant's age.
Ratio Decidendi: The court ruled that specific provisions govern bail in the context of the Dangerous Drugs Act, and general provisions of the Criminal Procedure Code could not override this – It is not within the judiciary's power to amend laws regarding bail prohibitions for children without legislative backing.
Result: The application for bail is dismissed.
JUDGMENT
Introduction
[1] This is an application under s 388 of Criminal Procedure Code (" CPC ") for bail pending trial by an Applicant whom is a child.
[2] The Applicant was charged before the Session Court of Kota Bharu, Kelantan under s 12(2) of the Dangerous Drugs Act 1952 ("Act 234") punishable under s 39A(2) of the same Act together with 3 other accused for having in their possession 43.6 gram dangerous drugs of Methamphetamine.
[3] At Session Court of Kota Bharu upon the charge was read, an oral application for bail by the counsel representing the Applicant was denied by the learned Session Court Judge ("SCJ") in lieu of s 41B of Act 234. Hence this application is filed in this Court. The application is supported by an Affidavit in Support ("Encl 2") affirmed by Ab Aziz bin Mohamed and in reply, the Public Prosecutor had filed Affidavit in Reply ("Encl 5") affirmed by Deputy Public Prosecutor Puan Norazlinawati binti Mohd Arshad.
Submissions Of Parties
[4] Learned counsel for the Applicant had urged this Court to grant bail on reason of special circumstances peculiar this case whereas the Applicant in this case is a child aged 16 years. The crux of the learned counsel's submission was focussed on art 121 of the Federal Constitution which provides the judicial power of the Federation as follows;
"There shall be two High Courts of co-ordinate jurisdiction and status, namely:
(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and
(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
(c) (Repealed),
and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law."
[5] It was argued that this Court has the inherent jurisdiction as provided under the Federal Constitution as check and balance mechanism and is also entrusted with keeping the law within the legal boundary. This include the power to grant bail which supersede the limitation provided under the Criminal Procedure Code (" CPC ") as well as s 41A of Act 234. (refer to; Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Anor and Other Appeal, and Saminathan Ganesan v. PP; [2020] 7 MLJ 681; [2020] 3 CLJ 398).
[6] The counsel highlighted to this Court that in this case the Applicant is a child of 16 years old and is still schooling at SMK Beris Lalang. The Applicant was staying with his family at Kampung Nenasi, Beris Lalang and he was arrested at the family's house together with 3 other Accused persons.
[7] As our country is a party to the Convention on the Rights of the Child ("UN Convention"), this Court is urged to put the best interest of the Applicant as a primary consideration. Under art 40 of the UN Conventions, States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which considers the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. Among others, the State party shall ensure that every child alleged or accused of having infringed the penal law has at least being guaranteed to be presumed innocent until proven guilty according to law.
[8] The learned Deputy Public Prosecutor on the other hand argued that s 388 CPC provides general power of the Court to grant bail. Nevertheless, this general provision is subject to the specific provision of s 41B of Act 234
