Back
2021 MarsdenLR 1727
HIGH COURT MALAYA KUALA LUMPUR
ARWIN SYAZUANSYAH PERPINDER V.PP
[Criminal Revision No: WA-44-149-06-2021]
Bail under the Dangerous Drugs Act 1952 is unbailable for specific offences, and statutory provisions take precedence over general bail statutes.
Headnote:(A) Criminal Procedure Code – Section 388 – Dangerous Drugs Act 1952 – Section 12(2) and 39A(2) – Application for bail in connection with a charge under s 12(2) of the DDA for possession of cannabis punishable under s 39A(2) – Court reaffirmed that offences under s 41B are unbailable, and the principle of statutory interpretation requires adherence to the specific provisions of the DDA over general bail statutes. (Paras 1, 39, 40)
(B) Revisionary Powers – The High Court, in exercising its revisionary powers, must ensure substantial justice is done without causing a miscarriage of justice. (Paras 5, 42)
(C) Constitutionality – Challenge to the constitutionality of s 41B DDA raised in relation to articles 5 and 8 of the Federal Constitution regarding personal liberty and equality. (Paras 44, 46)
Facts of the case: Application for revision against the refusal of bail by Sessions Court involving possession of 196.36 grams of cannabis.
Findings of Court: The SCJ did not err in law or principle and did not cause a miscarriage of justice in denying bail under s 41B.
Issues: Whether accused charged under s 39A(2) DDA is entitled to bail and constitutionality of s 41B DDA.
Ratio Decidendi: The Court upheld that statutory provisions specific to the DDA govern bail applications, affirming the unbailable status of offences under specific sections of the DDA.
Result: Application for revision dismissed.
JUDGMENT
(A) Introduction
[1] This application for revision was in respect of the decision of the learned Sessions Court Judge (SCJ) on 5 January 2020 which denied an application for bail under s 388 of the Criminal Procedure Code (" CPC ") by the applicant who was charged under s 12(2) of the Dangerous Drugs Act 1952 (" DDA ") punishable under s 39A(2) of the same act.
[2] The issue for determination before this Court is whether or not an accused facing a charge punishable under s 39A(2) DDA is entitled to bail.
(B) Powers Of Revision
[3] At the outset, it is necessary to be reminded that what sought to be invoked are the revisionary powers of this Court pursuant to s 323 of the CPC . The powers of a judge upon revision are contained in s 325 of the which reads:
325. Powers of judge on revision
(1) A Judge may, in any case the record of the proceedings of which has been called for by himself or which otherwise comes to his knowledge, in his discretion, exercise any of the powers conferred by ss 311, 315, 316 and 317 of this Code.
(2) No order under this section shall be made to the prejudice of the accused unless he has had on opportunity of being heard, either personally or by advocate, in his own defence.
(3) Nothing in this section shall be deemed to authorise a Judge to convert a finding of acquittal into one of conviction
[4] These powers were also explained by Hashim Yeop Sani J (as he then was) in Public Prosecutor v. Kulasingam , as follows:
"The powers of the High Court in revision are amply provided under s 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of 'paternal or supervisory jurisdiction' in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower Court should be interfered with in the interest of justice".
[Emphasis added]
[5]Mallal's Criminal Procedure (7th Ed) at p 581 in explaining the difference between appellate and revisional jurisdiction stated:
"In an appeal it is the duty of the appellate Court to examine the evidence and come to an independent finding on each issue of fact but a Court sitting in revision deals with questions of evidence or disturbs the finding of fact by the lower Court only in very exceptional cases, to prevent a miscarriage of justice".
[6] The principle objective then of the revisionary powers of the Court is to correct or prevent a miscarriage of justice.
(C) Analysis And Decision
[7] This revision essentially concerns a point of law and thus the background factual matrix in the Sessions Court that led to this application need not be set out as nothing turns on it.
[8] In any event, the factual matrix at the Sessions Court has been adequately set out in the written submissions of learned counsel for the applicant.
[9] Before proceeding to analyse the arguments put forth by learned counsel for the applicant, it is necessary to set out first the relevant section to which this application relates.
[10] Section 41B of the DDA reads as follows:
41B. No bail to be granted in respect of certain offences
(1) Bail shall not be granted to an accused person charged with an offence under this Act-
(a) where the offence is punishable with death;
(b) where the offence is punishable with imprisonment for more than five years; or
(c) where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.
(2) Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary."
[11] To recapitulate, the applicant stands charged with committing an offence under s 12(2) DDA which reads:
12. Restriction on import and export of certain dangerous drugs
(1) No person shal
