CHAN AH MOI v Pendakwa Raya (JA-44-15-02/2026)

By way of a Notice of Motion dated 25-02-2025, the Applicant had sought for the following order:- a) Bahawa suatu perintah ikat jamin Mahkamah diberikan kepada Pemohon di bawah peruntukan Seksyen 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 Applicant was charged under three (3) different charges, namely sections 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, 04-05-2024. Only the charge under s.39B(1) is relevant to this motion.

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.

S.388 CPC relied upon by the Applicant reads as follows:- 388 When a person accused of non-bailable offence may be released on bail 3 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.

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.

However, there is a specific provision under DDA in relation to bail for certain charges under the Act which reads as follows:- S.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-

Meanwhile s.39B(1) under which Applicant was charged reads as follows:-

A charge under section 39B(1) of the Dangerous Drugs Act 1952, is an offence which is unbailable. Section 41B(1)(a) and Since section 39B(2) prescribes death and imprisonment for life or for a term not less than five years together with whipping, it falls squarely within the prohibition of section 41B(1) and (b).

Emphasis should be given to the following parts:- 5 punishable with death and imprisonment for more than five years;

(ii) Subsection (1) to s. 41B shall have effect notwithstanding any other written law or any rule of law to the contrary. [10] The basic principle of statutory interpretation generalia specialibus non derogant is clear, that a specific provision in a written law would override general provisions of the CPC. This was lucidly explained by Chief Justice (Malaya) Raja Azlan Shah (as His Majesty then was) in PP v Chew Siew Luan [1982] 2 MLJ 119 where the apex court then had to decide whether a pregnant woman charged for trafficking in drugs could and should be granted bail. This is what His Lordship said at p 119: “In other words, the Act is in substance a special law passed by Parliament in derogation of the rights of a person concerning the granting of bail in an otherwise ordinary case. We further note in particular that s 41B of the Act is an entirely new section introduced by the Dangerous Drugs (Amendment) Act, 1978 (Act A426) and became operative on 10 March 1978. Generalibus specialia derogant is a cardinal principle of interpretation. It means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law. And at p. 287, His Lordship had this to say: The provisions regulating the granting of bail under the Dangerous Drugs Act must be construed in the context of that Act and not in that of the Criminal Procedure Code and to that extent the general provisions of the Criminal Procedure Code must ex necessitate yield to the specific provisions of s 41B of the Dangerous Drugs Act in that regard.” [11] In PP v. Leong Ying Ming [1993] 2 CLJ 143, the respondent was charged for an offence under s. 39A(2) DDA. The respondent’s bail application was refused by the Sessions Court Judge, on grounds that the offence was not bailable under s. 41B of the Act. The respondent then applied for bail at the High Court pursuant to s. 389 of the Criminal Procedure Code where the learned judge granted bail. On appeal, the Supreme Court held that: "We have perused the notes of proceedings recorded in the court below and note that unfortunately the Federal Court case of Public Prosecutor v. Chew Siew Luan[1982] CLJ (Rep) 285; [1982] CLJ 354; [1982] 2 MLJ 119 was not brought to the learned Judge's attention. Otherwise he would have been aware of the judgment in that case. In any case, we are of the view that the words used in s. 41B(1)(b) are clear and that the words "punishable with imprisonment for more than five years" mean imprisonment from five years and one day upwards up to imprisonment for life. Then, when we turn to s. 39A(2), we consider that the words "be punished with imprisonment for life or for a term which shall not be less than five years" are also clear and unequivocal and mean that the offence is punishable with imprisonment for more than five years, i.e. five years and one day up to a maximum of imprisonment for life. That being so, an offence under s. 39A(2) of the Act clearly comes within the ban imposed by s. 41B(1)(b) of the Act and therefore no bail can be granted in respect of such an offence. It follows that in this case the offence for which the respondent was charged was not bailable under the specific provisions of the Act and that the learned Judge should not have granted bail in this case." Analysis [12] In their fervent arguments marshaled by both the counsels for the Applicant, they have cited the following cases in reliance of their client’s application. [13] In the Johor Bharu High Court case of Chow Lin Choy v PP Fire Arms (Increased Penalties) 1971 in respect of prohibition of bail was discussed in relation to Articles 5 and 8 of the Federal Constitution in respect of the liberty of a person and equality before the law. However, in the case of Datuk Zainal Abidin Alias & Satu Lagi v. PP [2023] 2 CLJ 70, the learned Judge explained on the position of s.41B DDA in the context of Article 5 of the Federal Constitution, and in the similar vein Article 8, and held as follows: "[85] Mahkamah ini berpendapat bahawa peruntukan s. 41B ADB 1952 tersebut tidak dapat ditunjukkan oleh pemohon telah melanggar peruntukan per. 5 Perlembagaan Persekutuan bagi membolehkan mahkamah mengisytiharkan bahawa s. 41B ADB 1952 tersebut adalah tidak berperlembagaan." [14] In Che Su Daud v PP (1978) 2 MLJ 162 the accused who was charged under 39B DDA was granted bail in order to nurse her infant child. It is to be noted that this decision was prior the the Federal Court’s decision in the case of Chew Siew Luan (1982). [15] With respect, this court is unable to agree with the decision in Puan Saad v PP (2020) MLRHU 1499 where the learned Judge had quoted the decision of a Federal Court Judge sitting alone in Chew Siew Luan (1980) CLJU 210 in an appeal on a question of law against the granting of bail by the Sessions Court President which was upheld by the High Court. The Public Prosecutor had then applied for the following questions of law of public interest to be reserved for determination by the Federal Court under section 66 of the Courts of Judicature Act (1964). "(i) Whether or not section 388 Criminal Procedure Code overrides the provision of section 41B of the Dangerous Drugs Act 1952 (Act 234).

(ii) If the answer to question (i) above is in the negative, whether it is right in law for bail to be granted in respect of a person charged for an offence under section 39B of the Dangerous Drugs Act 1952 (Act 234)." However, this citation of Chew Siew Luan in the year 1980 which was referred to in Puan Saad predated the decision of Raja Azlan Shah in Chew Siew Luan (1982). [16] The case of Raman Shunmugham lwn. PP [2020] 2 CLJ 818CA can be distinguished as the accused was charged under s. 130V(1) of the Penal Code and bail was granted pursuant to s. of SOSMA. Similarly bail was granted pursuant to SOSMA provision on the cases of Saminathan Ganesan v. PP [2020] 3 CLJ 398 HC and Ganesan Muniandy lwn. PP [2018] CLJU 1353. [17] Meanwhile in PP v. Dato' Balwant Singh [2002] 4 CLJ 155 HC, the accused was charged with murder under the Penal Code and was granted bail by reason of his medical condition. [18] However, there were no authorities submitted by the Applicant’s counsel which has gone against the Federal Court case of Chew Siew Luan (supra) and the Supreme Court case of Leong Ying Ming (supra), both which stood the test time of in respect of bail. Both the case had decided in no uncertain terms that that bail is denied if an accused is charged with an offence punishable with death or imprisonment of more than five years under the DDA. [19] This Court is also mindful of the often referred unreported Federal Court case of Koh Chin Wah v PP (KB-44-24-2021) (Criminal Application No: W-07-94-08-2019) where the Court had allowed bail under Section 388 CPC despite the fact that the applicant there was charged under a charge listed as a security offence in the First Schedule of SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 (SOSMA). The provision in regards to bail under SOSMA is as follows: S.13. (1) Bail shall not be granted to a person who has been charged with a security offence. Chapter VIA of the Penal Code [Act 574] and the Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770], may be released on bail subject to an application by the Public Prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code. [20] Contrary to the express prohibition under DDA, on the face of it, there is a provision for bail under SOSMA mirroring that of s.388 CPC, despite it being a charge listed as a security offence. [21] Notwithstanding, this Court is unable to delve further into the decision in Koh Chin Wah on a speculative basis as there is no written decision available despite being an important ruling by the Federal Court. [22] The Federal Court in Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731, has this to say in respect of judgments without grounds: "(2) There was no written judgment by the Federal Court in Saw. Of assistance was the Editorial Note in the reported judgment of the High Court which indicated that the Federal Court reversed the High Court's decision because 'there was no cross-appeal by the respondents against the trial judge's finding that the plaintiff was not a passenger. As such, the learned trial judge should have held that the exceptions to Section II of the policy applied. Hence, the insurer was not liable to indemnify the defendants'. Without a written judgment, the Federal Court's reasons for allowing the appeal was purely speculative and could not be regarded as authoritative and/or binding. The Court of Appeal did not err when it did not consider itself bound to follow Saw. (paras 79 & 82)" [23] In Loy Chin Hei v. PP [1981] CLJ 177, Wan Yahya J, discussed whether the court was precluded from exercising its discretionary powers over bails are as follows: "The discretion as generally given by s. 388, 389 & 394 of the Criminal Procedure Code has been effectively taken away from the Courts, both the subordinate and High Courts, by s. 41B of the Dangerous Drugs Act. Disconcerting as it may be for us to witness the power of the Courts, both the Sub Dangerous Drugs Act. Disconcerting as it may be those relating to the liberty of the subject who is accused but yet to be proven guilty, being gradually whittled away by statute, yet when Parliament has expressed in unequivocal language its intention to curtail this discretionary power, the Courts are not free to question its wisdom in providing for a deterrent procedure for an obviously baneful mischief to society, but must interpret and give effect to the law as it stands. The restriction on bail under s. 41B of the Dangerous Drugs Act is absolute. Neither the Courts below, nor this Court, now possess the power to admit to bail any person charged thereunder with any offence punishable with death or more than five years' imprisonment, or even for lesser terms when the Public Prosecutor certifies that it is against public interest to allow bail." [24] The wordings in in s.41B is plain and unambigious and the Court has to give effect to its plain and ordinary meaning. In PP v. Sihabduin & Anor [1980] 2 MLJ 273) the Federal Court has this to say: “The words of Lord Diplock in an authority cited by my Lord President, Duport Steels Ltd. v. Sirs [1980] 1 All ER 529, seem to me to be particularly apt, for: the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the Judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.” [25] Section 41B(1)(a) (DDA) read together with section 41B(2) DDA clearly provides that no bail may be granted for offences punishable by death or imprisonment that exceeds five years. This prohibition is absolute. The settled rule of statutory interpretation states that when the words of a statute are plain and unambiguous, the literal rule must be applied. This principle was also adopted in Kumaran Suppiah v. Dato' Noh Hj Omar & Anor [2006] 4 CLJ "It is a rule of construction that where the terms of an enactment are clear, precise and unambiguous it must be applied and enforced according to its plain meaning and it is not the function of the court to speculate as to what might have been in the mind of the enacting authority as it may appear to the court from the preamble or otherwise." [26] This court is mindful that the Applicant is of advance age and not in the best of health. However, there are provisions in the law which addresses such situations. The Prison Act 1995 has the following provision: Officer, make an order for the removal of the prisoner to a government hospital.