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2026 MarsdenLR 1843
HIGH COURT MALAYA JOHOR BAHRU
ABDUL FAREED ABDUL GAFOOR, JC
CHAN AH MOI – Appellant
Versus
PP – Respondent
[Criminal Application No: JA-44-15-02/2026]
Special statutory provisions prohibiting bail for specific serious drug offences override the general discretionary powers granted to courts under the criminal procedure code, precluding the release of an accused regardless of age or infirmity.
Headnote:(A) Criminal Procedure Code - Section 388 - Bail - Accused charged with non-bailable offences (drug trafficking and possession) - Principles for granting bail to women or infirm persons - Interaction with statutes containing express prohibitions on bail. (Paras 4, 5)
(B) Dangerous Drugs Act 1952 - Section 41B - Prohibition of bail for offences punishable with death or imprisonment for more than five years - Statutory interpretation - Principle of 'generalia specialibus non derogant' - Where a special provision is made in a special statute regarding bail, that provision excludes the operation of general provisions in the criminal procedure law. (Paras 6, 8, 10)
(C) Stare Decisis - Doctrine of binding precedent - Courts are not free to question the wisdom of the legislature when it has expressed in unequivocal language its intention to curtail discretionary powers to admit to bail. (Paras 23, 27)
Facts of the case:
The applicant was charged with drug trafficking and possession, facing charges of death or imprisonment for life. Relying on advanced age and infirmity, the applicant moved for bail under the general criminal procedure law. The opposition argued that the specific drug legislation contains an express prohibition on bail that overrides the general procedural provisions.
Findings of Court:
The court determined that the specific legislative provision under the drugs statute explicitly prohibits the granting of bail for offences punishable by death or imprisonment exceeding five years. It affirmed that this prohibition is absolute, and judicial sympathy toward an applicant's age or health cannot override the clear, unambiguous command of the statute.
Issues: Whether the general discretion to grant bail under the criminal procedure code can be exercised in favour of an accused charged with an offence under the specific drug legislation, notwithstanding express statutory prohibitions against such bail.
Ratio Decidendi: The court held that the specific statutory prohibition in the drug legislation regarding bail constitutes a special law that overrides general provisions of the criminal procedural law. Adopting the principle of 'generalia specialibus non derogant', the court reasoned that it must give effect to the plain and ordinary meaning of the statute, which expressly forbids the court from exercising its discretion to grant bail for offences carrying the specified penalties.
Result: Notice of motion dismissed.
| Table of Content |
|---|
| 1. application for bail based on personal circumstances of the accused. (Para 1 , 2 , 3) |
| 2. statutory prohibition of bail for specific drug-related offences. (Para 4 , 5 , 6 , 7 , 8 , 9) |
| 3. principle of statutory interpretation: special laws override general bail provisions. (Para 10 , 11 , 23 , 24 , 25 , 27) |
| 4. evaluation of precedents and arguments regarding bail discretion. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 28) |
| 5. administrative handling of sick prisoners and formal dismissal of motion. (Para 26 , 29) |
JUDGMENT
Introduction
[1] By way of a Notice of Motion dated 25 February 2025, the Applicant had sought for the following order:
a) Bahawa suatu perintah ikat jamin Mahkamah diberikan kepada Pemohon di bawah peruntukan s 388 Kanun Tatacara Jenayah sehingga pelupusan perbicaraan kes Mahkamah Tinggi Malaya di Johor Bahru, Dalam Negeri Johor Darul Ta'zim, Perbicaraan Jenayah No JA-45A-19-03/2025, JA-45A-21-03/2025 dan JA-45A-22-03/2025, Pendakwa Raya lwn. (1) Lim Huang Kin (2) Tan Chee Seong (3) Chan Chui Lai (4) Chan Ah Moi;
(that bail be granted pursuant to s 388 of the Criminal Procedure Code until the disposal of Johor Bahru High Court cases nos: JA-45A-19-03/2025, JA-45A-21-03/2025 dan JA-45A-22-03/2025)
The Charges Against The Applicant
[2] The Applicant was charged under three (3) different charges, namely ss 39A(1), 39B(1) and 12(2), all of the Dangerous Drugs Act 1952 (DDA) for drug trafficking and possession together with three other individuals and remanded since her date of arrest, 4 May 2024. Only the charge under s 39B(1) is relevant to this motion.
[3] The Applicant moved this Court for bail pursuant to s 388 of the Criminal Procedure Code (CPC) on the grounds of her advanced age of 76 years and infirmity. The prison doctor who examined her recommended that she be kept in the care of a close relative. Her niece, Chan Pei Wei, who affirmed the affidavit supporting this motion, agreed to care for her and to be her bailor if bail is granted.
The Law
[4] Section 388 CPC relied upon by the Applicant reads as follows:
388. When a person accused of non-bailable offence may be released on bail
(1) When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a Court, he may be released on bail by the officer in charge of the police district or by that Court, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for a term which may extend to forty years:
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
[5] Since the Applicant was charged with a non-bailable offence, and she being a woman an od infirmity, prima facie, it would mean that the Applicant can seek bail pending trial.
[6] However, there is a specific provision under DDA in relation to bail for certain charges under the Act which reads as follows:
Section 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; or
(b) where the offence is punishable with imprisonment for more than five years;
(2) Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.
[7] Meanwhile s 39B(1) under which Applicant was charged reads as follows:
(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia:
(a) traffic in a dangerous drug;
(b) offer to traffic in a dangerous drug; or
(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.
(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an
