The court upheld the Public Prosecutor's application for remand under Section 56A of the Courts of Judicature Act to prevent the appeal from being rendered nugatory, emphasizing the balance between individual rights and public interest.

JUDGMENT

Vazeer Alam Mydin Meera JCA:

[1] This is an application by the Public Prosecutor for an order of remand against the Respondents pursuant to s 56A of the Courts of Judicature Act 1964 ("CJA").

[2] The Respondents were jointly charged with 3 counts of trafficking in dangerous drugs under s 39B of the Dangerous Drugs Act 1952 and one count under s 9(1) of Poisons Act 1952 . The Respondents pleaded not guilty to the charges and were tried. At the close of the prosecution's case, the High Court found that the prosecution had failed to establish a prima facie case, and accordingly the Respondents were acquitted and discharged. The Applicant appealed that decision to the Court of Appeal and the appeal is pending.

[3] The Respondents are all foreign nationals where the 1st Respondent, Artur Peek is a Russian citizen, while the 2nd and 3rd Respondents, Ajithkumar and Prem Dass respectively, are Indian citizens. They were being held at the Bukit Jalil Immigration Depot pending deportation.

[4] The Public Prosecutor then filed this application to seek an order of arrest and remand against all the Respondents under s 56A of the CJA primarily on grounds that if the Respondents were deported to their countries of origin before the appeal is heard and disposed, they would be beyond the Court's jurisdiction and the appeal would be rendered academic and nugatory. The Applicant further contended that the appeal has merit and there was a good chance of success.

[5] On 7 April 2023, an ex-parte order for arrest and remand was granted by this Court against all the Respondents. A date for the inter partes hearing was then fixed. An affidavit was filed by Imelda Puyang Ajeng, a Malaysian, who was the lawful wife of the 1st Respondent stating her willingness to stand as bailor and surety for the 1st Respondent. The 3rd Respondent had vide his counsel filed written submission resisting the application. Counsel for the 2nd Respondent submitted orally.

[6] At the inter-partes hearing, learned counsel for the 3rd Respondent in opposing the application submitted that:

(a) section 56A of the CJA does not distinguish between citizens and foreigners, it merely makes reference generally to accused persons, and as such, the fact that the Respondents are foreigners has no bearing on the Public Prosecutor's application;

(b) the Respondents are entitled to equal treatment under the law pursuant to art 8 of the Federal Constitution and that any detention of the 3rd Respondent pending disposal of the appeal on grounds that he is a foreigner would be a breach of this constitutional right;

(c) the appeal would not be rendered nugatory or struck out by reason of the 3rd Respondent leaving the country as the prosecution can still proceed with the appeal by virtue of s 425A of the Criminal Procedure Code;

(d) the contention that the appeal has merit, even if true, has no bearing on this application as s 56A CJA does not make reference to the merits of the appeal as a consideration.

[7] Further, and/or in the alternative, learned counsel for the 3rd Respondent submitted that if this Court was minded to allow the application to remand the 3rd Respondent, s 56A CJA allows the exercise of the Court's discretion to admit the 3rd Respondent to bail, and prayed for bail to be granted in such circumstance.

[8] Learned COUNSELS respectively for the 1st and 2nd Respondents submitted that if the Court was minded to allow the Applicant's application, then their respective clients ought to be admitted to bail with appropriate conditions in order to balance the interest of the state as against that of the interest of their clients who had been acquitted of the charges by the trial Court.

[9] Having considered the submissions, we unanimously allowed the application by the Public Prosecutor and granted the order to arrest and remand the Respondents in prison under s 56A CJA until disposal of the pending appeal and further ordered that in the event any of the Respondents were able to pro