Public Prosecutor v Zahar Gerald Bin Mejoh

Appellant(s): Pendakwa Raya

Respondent(s): Zahar Gerald Bin Mejoh

• YA Dato' Paduka Azman Bin Abdullah
• YA Dato' Azmi Bin Ariffin
• YA Datuk Noorin binti Badaruddin

• The respondent was charged in the Sessions Court under Section 8 of the Firearms (Increased Penalties) Act 1971 ("FIPA") for unauthorised possession of firearms, and pleaded not guilty.
• Despite the prosecution's objection that Section 12 FIPA absolutely prohibits bail for FIPA offences, the Sessions Court judge granted bail relying on the general bail provision in Section 388 of the Criminal Procedure Code ("CPC").
• On appeal, the High Court held that Section 12 FIPA was unconstitutional as it fettered judicial discretion contrary to Article 121 of the Federal Constitution, and upheld the bail granted under Section 388 CPC, prompting the prosecution's further appeal to the Court of Appeal.

• Whether an order granting bail (and a High Court decision on such an order) constitutes a "decision" appealable under Section 3 of the Courts of Judicature Act 1964, given it is ostensibly an interlocutory order.
• Whether Section 12 FIPA, which absolutely bars bail for FIPA offences notwithstanding any other law, is unconstitutional for encroaching on judicial power under Article 121 of the Federal Constitution.
• Whether the general bail provision under Section 388 CPC can override the specific prohibition in Section 12 FIPA, and whether Section 12 FIPA offends the equality guarantee under Article 8 of the Federal Constitution.

• The Court held that the High Court's ruling declaring Section 12 FIPA unconstitutional and reverting to Section 388 CPC was a final determination of rights, and therefore constituted an appealable "decision"; the respondent's preliminary objection was dismissed.
• On the substantive constitutional issue, the Court held that judicial power under Article 121 is derived from and defined by federal law, and Parliament validly exercised its legislative function in enacting Section 12 FIPA; the absence of judicial discretion to grant bail for FIPA offences does not amount to an unconstitutional fetter on judicial power, following the reasoning in Kok Wah Kuan v PP and Ravin Joty Kodeeswaran v Lembaga Pencegahan Jenayah.
• Applying the maxim generalia specialibus non derogant (as in PP v Chew Siew Luan), the Court ruled that the specific prohibition in Section 12 FIPA prevails over the general provision in Section 388 CPC, and that Section 12 FIPA's differential treatment of firearms offenders is a reasonable classification consistent with Article 8; the appeal was allowed and the respondent was ordered to be denied bail.