: This is an application for criminal revision under s 323 of the Criminal Procedure Code (the Code) and is concerned with the validity and the legal propriety of an order of bail made by a magistrate. The issue for determination initially relates to the issue of quantum of bail; at the hearing, questions the jurisdiction of the magistrate to grant bail at all; and towards the end of the hearing, invites the court to instead exercise its power of judicial review under s 25(2) of the Court of Judicature Act 1964.

All references to sections in this judgment, shall, unless otherwise stated, be to the Drug Dependants (Treatment and Rehabilitation) Act 1983. The background facts are as follows.

On 4 March 1999, Muhammad bin Ali (the applicant) was taken into the custody of the police for being a suspected drug dependant pursuant to the powers conferred upon them by s 3 of the Act. The applicant was then, within 24 hours, produced before a magistrate on 5 March 1999, who then issued an order directing the applicant to be detained for a period of 14 days at Lockup Kampong Selamat for the purpose of undergoing tests pursuant to s 4(1)(b) of the Act and further, directed that the applicant be produced again on 18 March 1999.

On 17 March 1999 Dr T Nachammal, Medical Officer Seberang Jaya Hospital Seberang Jaya certified that, after having carried out the necessary tests upon the applicant, he found the applicant to be a drug dependant within the meaning of the Act of the drug morphine. Thereafter, on 17 March 1999, the applicant was again produced before a magistrate. The minutes recorded by the magistrate on that date reads as follows:

Penama hadir

PPI Zulhazi

Pegawai Pemulihan Noorfaezah

Peguambela Rajiv Prabakaran

Mahkamah : Jamin RM10,000

Peguambela : Jamin ditetapkan untuk kehadiran OKT 20/4/99 (Inquiri)

Jamin lulus.

tt 18 March 1999

There was nothing to indicate from the minutes recorded on 18 March 1999 of counsel acting for the applicant objecting to the amount of bail set as being high nor as to the jurisdiction of the court to grant bail at that stage of the proceedings. Be that as it may, about a week later, Tetuan Praba & Associates, by letter dated 25 March 1999, wrote to the judge of the High Court Pulau Pinang in the following terms:

Tuan Hakim Mahkamah Tinggi Pulau Pinang

Tuan,

Per : Mahkamah Majistret di Butterworth

Mohd. Ali Bin Hamid

Kes Tangkap No 89-432-99

Drug Dependants (Treatment and Rehabilitation) Act 1983

Kami merujuk kepada perkara tersebut diatas yang mana ditetapkan untuk

enquiry pada 20 April 1999.

Kes ini telah ditetap untuk sebutan pada 18 Mac 1999 dimana anak guaman

kami telah didapati positif selepas ujian urine anak guaman kami

dilaksanakan.

Jaminan telah diberikan sebanyak RM10,000 oleh Tuan Majistret walaupun

kami telah membantah tentang jumlah tersebut diatas yang terlalu tinggi.

Kami akan berbesar hati jika pihak tuan dapat menyemak file ini sebelum

20 April 1999 di bawah s 323 Kanun Acara Jenayah.

Sekian, terima kasih.

Yang benar,

tt

The issue raised in this letter appeared to be a straightforward one, ie as to quantum of bail set and the court issued a notice for this application for criminal revision to be heard on 8 April 1999.

When this application was however called for hearing on 8 April 1999, En Rajiv Prabhakaran, counsel for the applicants arguments however was not centered on the issue of the amount of bail as set out in his letter dated 23 March 1999. He went into a more substantive issue, ie that of the jurisdiction of the magistrate to grant bail pending the holding of an inquiry as to whether an order under s 6 of the Act should be made against the applicant in a situation where the results of the tests carried out under s 4(1)(b) were already known.

I am made to understand that the reason for the change in issue for the determination of this court b