PUTRAJAYA: A wheelchair-bound man facing a drug trafficking charge must return to prison after the Court of Appeal revoked the bail granted to him by the High Court in September 2024.
A three-member bench comprising Justices Choo Kah Sing, K Muniandy and Latifah Tahar ruled that the High Court had erred in granting bail to M Alagesan despite a statutory prohibition under the Dangerous Drugs Act 1952 (Act 234).
The bench also ordered the RM150,000 bail money to be returned to a member of Alagesan’s family.
Choo said Section 41B of Act 234 expressly prohibits bail for offences punishable by death or imprisonment exceeding five years, notwithstanding any other written law or rule of law to the contrary.
“The High Court also erred in relying on Section 388 of the Criminal Procedure Code (CPC) to grant bail to Alagesan when a law expressly prohibits bail,” he said.
However, the court expressed sympathy for Alagesan and directed that his trial, scheduled to begin at the Shah Alam High Court on Feb 17 next year, be expedited and concluded by the end of this year if possible.
The bench also ordered that Alagesan be placed in Sungai Buloh prison’s hospital unit until his trial concludes.
Alagesan, 44, was charged with trafficking 6.2kg of cannabis on a village road near Lot 24 in Kampung KL Tin, Kalumpang, Kuala Kubu Baharu, Hulu Selangor, on Feb 7, 2024. If convicted, he faces the death penalty or imprisonment of 30 to 40 years, with at least 12 strokes of the rotan.
On Sept 23, 2024, the High Court granted him bail under Section 388 of the CPC, subject to conditions including monthly police reporting, surrender of his passport, a ban on contacting prosecution witnesses and a curfew from 7pm to 7am.
Deputy public prosecutor Hafizah Johor Ariff Johor today argued that Section 41B of Act 234 imposed an absolute bar on bail and overrode Section 388 of the CPC, which allows bail in certain cases involving sick or infirm accused persons.
She said Alagesan's disability did not justify overriding the statutory prohibition and accused the High Court of wrongly placing the burden on the prosecution to prove that prison facilities could meet his needs.
Hafizah warned that allowing exceptions could undermine Parliament's intention to deny bail in serious drug cases and encourage similar applications by other accused persons.
Lawyer Naran Singh, assisted by Amrick Singh Sandhu, argued that the prohibition was unconstitutional because judicial power and the separation of powers formed part of the Federal Constitution's basic structure.
“Parliament cannot completely remove the judiciary’s power to decide whether bail should be granted, as doing so would undermine judicial independence,” he said.
Naran urged the court to interpret Section 41B of Act 234 purposively to allow bail in exceptional circumstances, stressing that Alagesan remained innocent until proven guilty.
He said Alagesan was paralysed from the waist down and used a wheelchair. However, he said, prison authorities had previously failed to provide essential facilities, including a seated toilet and suitable equipment for his personal care.