Low Hop Bing JCA

Notice Of Motion

[1] Before us is the prosecution's application by way of notice of motion under s. 56A of the Courts of Judicature Act 1964, seeking a warrant directing that the respondent ("the accused") be arrested and brought before this court so as to remand him to prison pending the disposal of the prosecution's appeal by this court.

Factual Background

[2] This has been set out in the affidavit in support affirmed by the learned deputy public prosecutor Ms. Nurulhuda Nur'aini bt. Mohamed Nor.

[3] The accused was charged in the Ipoh High Court with an offence of drug trafficking under s. 39B(1)(a) of the Dangerous Drugs Act 1952, punishable under s. 39B(2) of the same Act.

[4] The accused was represented by counsel in the High Court.

[5] On 29 January 2008, at the close of the prosecution's case, the learned trial judicial commissioner acquitted and discharged the accused without calling for defence.

[6] On the basis of the evidence adduced for the prosecution at the trial, the affidavit in support averred that:

(a) On 20 May 2001, at about 8.30pm, SP5 together with his police party kept watch on the road leading to Kampung Tersusun, Tronoh Mines, in the district of Kinta, in the state of Perak;

(b) At about 9pm, SP5 saw four men, including the accused, walking from Kampung Tersusun towards the direction of the Ipoh-Lumut trunk road. Some 10 minutes later, the accused was seen walking from a food stall towards Kampung Tersusun. Five minutes later, the accused was seen carrying a bag in his left hand and walking from Kampung Tersusun towards the direction of the Ipoh-Lumut trunk road;

(c) When the accused arrived at the place where SP5 and his police party were based, he was detained by SP5. On checking the bag carried by the accused, SP5 recovered five slabs of substances which, upon analysis, were found to contain 4973gm of cannabis; and

(d) SP5 and his police party also arrested the other three men and detained their Indonesian passports as well. However, they were subsequently released, as nothing incriminating was found on them.

[7] On 29 January 2008, in an oral judgment, the trial court acquitted and discharged the accused on the basis of s. 114(g) of the Evidence Act 1950, holding that the prosecution's failure to call the three Indonesians had caused a break in the chain of evidence in the prosecution's case;

[8] The accused is apparently an Indonesian without any travel document. He has since 18 February 2008 been detained by the Perak Immigration Department at the Langkap Immigration Depot.

[9] Upon the prosecution's application on an ex parte basis, this court issued a warrant of arrest against the accused on 28 February 2008.

[10] The warrant was executed on 29 February 2008 and he was brought before this court on the same date.

[11] Pending the disposal of the prosecution's appeal, the prosecution has now filed this application for an order to remand the accused to prison.

Section 56A, Courts Of Judicature Act 1964

[12] In urging the court to order the remand of the accused, the prosecution submitted that the accused's presence at the hearing of the appeal is essential; otherwise the appeal would be rendered academic or nugatory.

[13] The accused was not legally represented at the hearing of this application. However, he did not dispute the fact that he is an Indonesian without any travel document and that he is now brought before this court on the warrant.

[14] In my judgment, the question that arises for determination herein may be stated as follows:

Where an accused has been acquitted and discharged of an offence punishable with death sentence, and is a foreigner without any travel document, is it just and proper for the Court of Appeal to invoke s. 56A of the Courts of Judicature Act 1964 and to issue a warrant directing that the accused be arrested and brought before it and to remand him to prison pending the disposal of the prosecution's appeal against the acquittal?.

[15] So f