WAAZAN A/L BALARAMAN v Pendakwa Raya

Case Significance

Confirms that section 41B(1)(a) of the Dangerous Drugs Act 1952 imposes an absolute, discretion-free prohibition on bail for a section 39B offence punishable by death, which overrides the general bail power in section 388 of the Criminal Procedure Code even where the accused is gravely ill.

This High Court decision at Butterworth concerns an application for bail by an accused charged with drug trafficking, and the question whether the court has any discretion to grant bail for such an offence on serious health grounds. The applicant had been charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), read with section 34 of the Penal Code, with trafficking 413.7 grams of heroin and monoacetylmorphines — an offence punishable by death or imprisonment for life together with caning. He applied under section 388 of the Criminal Procedure Code to be released on bail, relying on the fact that he suffered from stage 4 testicular cancer requiring chemotherapy and follow-up treatment, and argued that his prolonged detention endangered his life and that the court should exercise its discretion to protect his rights under Article 5(1) of the Federal Constitution. The prosecution objected, contending that a section 39B offence is entirely unbailable and that section 41B(1)(a) of the Dangerous Drugs Act is a specific provision imposing an absolute prohibition on bail where the offence is punishable by death. The court accepted the prosecution's position, holding that the specific provision prevails over the general and that a section 39B(1)(a) offence falls within the category of offences that cannot be granted bail at all, so that the court has no discretion to allow bail even on health or humanitarian grounds. While expressing sympathy for the applicant's condition, the court held that sympathy could not override an express statutory prohibition, and that medical treatment could be provided in custody. The court reinforced its conclusion by reference to the statutory scheme allowing a prisoner to be removed to a government hospital where a medical officer certifies that admission is necessary, reasoning that this mechanism — consistent with the right to life and personal liberty under Article 5 of the Federal Constitution — met the applicant's health needs without releasing him on bail. It dismissed the bail application, but ordered the prison authorities to take immediate steps to ensure the applicant received periodic medical treatment and proper monitoring at a government hospital.