KC Vohrah J

(delivering oral judgment): This is an application for bail for the accused pending disposal of the case against him. The accused was produced before a magistrate charged for an offence under section 39B(1) of the Dangerous Drugs Act 1950 (the Act) punishable, under section 39B(2), with death. It is not disputed that the charge against him of trafficking in a dangerous drug, heroin, disclosed not the nett weight but the gross weight of heroin he was alleged to be trafficking in. The gross amount was put in the charge as 37 grammes of heroin. The magistrate before whom the accused was produced refused him bail and therefore application was made to the High Court for bail pending the disposal of the case.

Counsel for the applicant relied on the judgment of Ajaib Singh J. in Ho Huan Chong v Public Prosecutor [1980] 2 MLJ 289 and on Article 5(1) of the Federal Constitution to argue that the accused should be allowed bail. And he argued, and I would like to put the gist of his argument here, that since the nett weight of heroin, after a chemist's report is received, could well be below the presumptive amount of 15 grammes of heroin under section 37(da) of the Act, or, for that matter, below the amount of 5 grammes of heroin and therefore not falling under section 39A (under section 39A(a), offences falling thereunder and involving 5 grammes or more of heroin would attract, inter alia, a sentence of imprisonment of not less than five years) the accused is not caught under the restriction relating to bail in section 41B of the Dangerous Drugs Act 1950; the gross amount of heroin as indicated in the charge is an uncertain amount and therefore applying the case of Ho Chuan Chong [1980] 2 MLJ 289 the accused should have been given bail; also, since it is necessary for the exact amount of the heroin to be indicated, it has perforce to be specified in accordance with law and no such amount being given the accused had been deprived of bail and that is not in accordance with law as Article 5 of the Federal Constitution enjoins that no person "shall be deprived of … personal liberty save in accordance with law."

It is well known that indeed most charges involving drug offences do not indicate the exact weight of the drugs alleged to have been found on accused persons or in which they are alleged to have trafficked on the day the accused are charged. It is also a well known fact that drugs found on the accused or in which the accused are alleged to be trafficking are not in their pure form and therefore substances containing the drugs which have been seized need to be sent to the chemist for qualitative and quantitative tests. It is within judicial knowledge that there are arrests made virtually everyday in respect of various drug offences and invariably the drugs seized in the cases are sent to government chemists for analysis. The government chemists are clearly inundated with the work of analysing such drugs and there does not appear to be any respite for them. There is therefore a time lag between the time an accused is charged with whatever drug offence on the basis of a gross amount of the dangerous drug and the time the investigating officer receives the chemists' report of the nett amount of the dangerous drug whereupon the amount is inserted into the charge. Ideally, the chemists' report should be available within a few weeks but I am not in a position to say anything more on the matter except to draw attention to what Ajaib Singh J. has stated in the case of Ho Huan Chong [1980] 2 MLJ 289 at pp and 290.

This case, however, does not essentially turn on the weight of the heroin specified in the charge. In the present case, the amount indicated in the charge is 35 grammes of heroin, no doubt the gross weight. But the crucial question in this case is, "What is the offence the accused is charged with?" He is charged with the offence of "trafficking" in a dangerous drug, heroin, an offence punishable, under section 39B(2), wit