Court ruling reignites debate over bail in drug cases

PETALING JAYA: A recent Court of Appeal ruling on the transfer of drug trafficking cases to the High Court has reignited calls to amend the law and allow courts discretion to grant bail to accused persons awaiting trial.

Lawyer Salim Bashir said individuals charged with drug trafficking and certain possession offences often spend extended periods in remand, as Section 41B of the Dangerous Drugs Act 1952 (DDA) expressly prohibits bail.

“The government should consider amending the DDA to allow the court discretion to grant conditional bail pending trial in trafficking and possession cases,” he said.

He said the situation was particularly troubling given delays in obtaining chemist reports, which are necessary before trafficking cases can be transferred to the High Court for trial.

Salim was commenting after the Court of Appeal ruled that a magistrate cannot transfer a drug trafficking case to the High Court until a chemist report confirms the identity and weight of the seized drugs.

The ruling was made in the case of British national Deishanei Ciara Hall, who was denied leave to appeal after the High Court declined to interfere with a magistrate’s refusal to transfer the case.

Hall, charged with trafficking 19kg of cannabis at Kuala Lumpur International Airport, argued that her case should have been transferred immediately under the DDA.

Justice Wong Kian Kheong, who wrote the judgment of a three-member bench, said expert evidence was necessary to determine jurisdiction. He said that, without a chemist report, trial scheduling and court allocation could be affected.

Salim said delays by the chemistry department in issuing reports could prolong the detention of accused persons and delay the start of their trials.

He urged the department to expedite the preparation of reports, particularly in cases already before the courts.

Lawyer Kitson Foong said the Court of Appeal had correctly interpreted the law, as a case could only be transferred once the chemist confirmed the weight and nature of the drugs.

He noted that because trafficking offences are non-bailable, accused persons remain in custody until the report is completed and the public prosecutor consents to the transfer of the case.

Foong said the previous practice of transferring cases before reports were ready was often intended to secure earlier trial dates.

He attributed delays partly to the growing caseload, with drug-related cases rising from about 73,000 in 2023 to 87,000 last year, while chemistry laboratories also handle substantial non-drug-related work.

Foong cautioned against rushing chemists, noting that trafficking charges carry severe penalties, including the death penalty in some circumstances and lengthy prison terms.

He proposed the establishment of dedicated drug trafficking courts, similar to special corruption courts, to ensure cases are disposed of within a year of registration.