Gunn Chit Tuan CJ (Malaya):

[1] Leong Ying Ming ("the respondent") was charged for an offence under s 39A(2) of the Dangerous Drugs Act 1952, ("the Act") at the Sessions Court, Bentong, Pahang Darul Makmur. That section provides for increased penalty where the subject matter is the prescribed amount of certain dangerous drugs and reads as follows:

39A(2) Every person found guilty of an offence againstthis Actwhere the offence is not punishable with death and where the subject matter of the offence is-

(a) 5 grammes or more in weight of heroin;

(b) 5 grammes or more in weight of morphine;

(c) 5 grammes or more in weight of monoacetylmorphines;

(d) a total of 5 grammes or more in weight of heroin, morphine and monoacetylmorphines or a total of 5 grammes or more in weightof any two of the said dangerous drugs;

(e) 15 grammes or more in weight of cocaine;

(f) 50 grammes or more in weight of cannabis;

(g) 50 grammes or more in weightof cannabis resin;

(h) a total of 50 grammes or more in weight of cannabis and cannabis resin;

(i) 250 grammes or more in weight of raw opium;

(j) 250 grammes or more in weight of prepared opium;

(k) a total of 250 grammes or more in weight of raw opium and prepared opium; or

(1) 750 grammes or more in weight of coca leaves,

shall, instead of being liable to the punishment provided for that offence under the section under which the person has been so found guilty, be punished with imprisonment for life or for a term which shall not be less than five years, and he shall also be punished with whipping of not less than ten strokes.

[Emphasis Provided]

[2] The respondent, who was charged with possession of 50.84 grammes of ganja, applied for bail which was refused by the Sessions Court Judge, as he was of the view that the offence was not bailable under s 41B of the Act which reads as follows:

41B. (1) Bail shall not be granted to an accused person charged with an offence under this Act-

(a) xxx

(b) where the offence is punishable with imprisonment for more than five years;

(c) where the offence is punishable with imprisonment for five yearsor less and the Public Prosecutor certifies in writing that it is not in the public interest to grantbail to the accused person.

(2) The provisions of subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.

[Emphasis Provided]

[3] The respondent then made an application for bail to the Kuantan High Court pursuant to s 389 of the Criminal Procedure Code (FMS Cap 6) and the learned Judge there allowed his application and granted bail of RM10,000 in two sureties.

[4] The Public Prosecutor filed an appeal to the Supreme Court on 10 April 1990, and in his petition of appeal dated 28 July 1990, he set forth the following grounds of appeal:

1. Yang Arif Hakim telah tersilap dari segi undang-undang dalam mengintepretasikan s 41B Akta Dadah Berbahaya 1952 (Akta 234).

2. Yang Arif Hakim telah tersilap dari segi undang-undang dalam memutuskan bahawa s 41B(1)(b)Akta Dadah Berbahaya 1952 (Akta 234) adalah tidak terpakai di dalam kes yang dirayu.

3. Yang Arif Hakim telah tersilap dari segi undang-undang dalam memutuskan bahawa kesalahan di bawah s 39A(2) bukanlah merupakan jenis-jenis kesalahan yang dimaksudkan di bawah s 41B(1)(b) Akta Dadah Berbahaya 1952 (Akta 234).

[5] The only issue for the determination of the Supreme Court, as well as for the High Court, was whether an offence under s 39A(2) of the Act is a bailable offence.

[6] Before us, Dato' Stanley Isaacs for the Public Prosecutor referred to sub-section 2 of s 41B of the Act and submitted that in considering the issue raised in this appeal, the Court should ignore any reference to any other written law or statutes, especially Chapter XXXVIII of the Criminal Procedure Code concerning bail. He also referred to Public Prosecutor v. Chew Siew Luan, [1982] 2 MLJ 119; [1982] CLJ (Rep) 285, in which case the former Federal Court held that the provisions regulating the granting of bail under the Act