Kandungan

KETUA PENGARAH JABATAN ALAM SEKITAR & ANOR v. KAJING TUBEK & ORS & OTHER APPEALS
PP v. TA HSIN ENTERPRISE SDN BHD
RAMLAH MUKADIS v. KETUA PENGARAH ALAM SEKELILING & ANOR
MALAYSIAN VERMICELLI MANUFACTURERS (MELAKA) SDN BHD V. PP
PP v. COCOLIN INDUSTRIES SDN BHD
LAM ENG RUBBER FACTORY (M) SDN BHD v. PENGARAH ALAM SEKITAR, NEGERI KEDAH DAN PERLIS & ANOR
TENGGARA GUGUSAN HOLIDAYS SDN BHD v. PP
PUBLIC PROSECUTOR v. PENGURUS, MBF BUILDING SERVICES SDN BHD
DUNLOP MALAYSIAN INDUSTRIES BHD v. PUBLIC PROSECUTOR
QUEK GIN HONG v. PP

KETUA PENGARAH JABATAN ALAM SEKITAR & ANOR v. KAJING TUBEK & ORS & OTHER APPEALS
COURT OF APPEAL, KUALA LUMPUR
GOPAL SRI RAM JCA AHMAD FAIRUZ JCA MOKHTAR SIDIN JCA
[CIVIL SUIT NO: W-01-166 OF 1996]
14 JUNE 1997

CONSTITUTIONAL LAW: Federal Constitution - Doctrine of federalism - Parliament and State Legislative Assemblies
- Power to make laws on a particular subject - Rules of interpretation - Whether courts to read enactments in such
manner as to avoid inconsistency or repugnancy - Federal Constitution, arts. 5(1), 73, 74, 75, 76, 77, 95B(1), 9th
Schedule thereto - Environmental Quality Act 1974, s. 34A - Natural Resources Ordinance 1949 (Sarawak Cap 84)

CONSTITUTIONAL LAW: Legislature - Parliament and State Legislative Assemblies - Federal and State laws - Scope
of applicability - Laws on the environment - To regulate the production, supply and distribution of hydroelectric
power in the State of Sarawak - Governing law - Whether the Environmental Quality Act 1974 - Whether the
Natural Resources Ordinance 1949 (Sarawak Cap. 84) - Federal Constitution, arts. 5(1), 73, 74, 75, 76, 77, 95B(1) -
Environmental Quality (Prescribed Activities) Environmental Impact Assessment) Order 1987 - Environmental
Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995

CONSTITUTIONAL LAW: Remedies - Declaratory relief - Locus standi - Application to declare invalid a Federal order
- Enforcement of penal sanction by way of private law litigation - Whether improper - Whether entirely within the
discretion of the Attorney-General

ADMINISTRATIVE LAW: Remedies - Declaratory relief - Deprivation of fundamental rights - Locus standi -
Applicants suffering no injury in law - Whether lacking substantive locus standi - Granting of relief by trial judge -
Whether a misdirection

WORDS & PHRASES: "Environment" - Meaning - Whether a multi-faceted concept - Whether depending for its
meaning upon the context of its use

The respondents are three of the 10,000 natives living in that part of Sarawak where the Bakun Hydro-Electric
Project ('the Project') is situated. Following the commencement of the Project, steps were taken by the appellants
to compensate the respondents and also to resettle them. The respondents did not challenge the compensation or
the resettlement, but claimed that (i) the Project, if carried through, would adversely affect their fundamental
rights in that their livelihood would suffer from the resulting impact on the environment (ii) they had been
subjected to procedural unfairness in that they had been deprived of their vested right to obtain a copy of the
Environmental Impact Assessment ('EIA') of the Project, or to make representation thereon (iii) the appellants, in
undertaking the Project, were bound but had failed to observe the requirements of the Environmental Quality Act
1974 ('the Act'), in particular s. 34A thereof. The respondents, in the circumstances, applied to the High Court to
declare invalid the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment)

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Order, 1995 ('the Amendment Order'), and for a declaration that Ekran Berhad, the company appointed to carry
out the Project, comply with the Act. It is common ground that in so proceeding the respondents had acted on
their own and had not in any way represented the rest of the natives.

It was not disputed that (i) for the purpose of these appeals there are two sets of laws existing for environment,
namely, the Act which applies to Malaysia as a whole and the Natural Resources Ordinance 1949 (Sarawak Cap 84)
('the Ordinance') which applies to Sarawak (ii) section 34A of the Act creates an offence and renders criminally
liable any person who contravenes it (iii) by the Environmental Quality (Prescribed Activities) (Environmental
Impact Assessment) Order 1987 ('the 1987 Order'), the Director General was empowered to make guidelines in
respect of any EIA report submitted to him, and that among the guidelines issued by him was that the report could
be made available to the public (iv) by the Amendment Order, which had retrospective effect, the 1987 Order was
made inapplicable to Sarawak with the result that the Director General's guidelines, as of 1 September 1994,
became inoperative in that State.

The learned trial Judge, granting the application, ruled that (i) the law applicable is the Act and not the Ordinance
(ii) the respondents had a vested right to the EIA report, and as such had been denied procedural fairness when
the report was not made available to them (iii) the Amendment Order is null and void because of its retrospective
effect.

The appellants appealed and argued that the learned Judge was wrong in deciding the way he did as (i) the legal
position was governed by the Ordinance and not the Act (ii) that being so, no question of deprivation of procedural
fairness could possibly arise as the complaint relating to such deprivation was founded upon the applicability of
the Act (iii) the respondents lacked substantive locus standi to apply for the declaratory relief in question. The
main issues that arose were (i) whether the Act applies to the Project (ii) whether the respondents had locus
standi in point of relief.

Held: Per Gopal Sri Ram JCA

[1] The term "environment" is a multi-faceted and multi-dimensional concept, depending for its meaning upon the
context of its use.

[2] In the context of State and Federal relations as enshrined in the supreme law, Parliament is presumed not to
encroah upon matters that are within the constitutional authority of a State within the Federation. The principle of
interpretation that emerges in consequence is that Courts should, when determining the scope of Federal and
State legislation upon a particular subject, ensure that the enactments of each legislative power are read so as to
avoid inconsistency or repugnancy between them.

[2a] Applying the settled principles of interpretation, it is plain that both Parliament and the Legislative Assembly
of the State of Sarawak have concurrent power to make law regulating the production, supply and distribution of
power, including hydro-electric power. In the present case, the place where the power is to be generated is land
and water and this is the "environment" upon which the Project will have an impact.

[3] Since the "environment" in question, by reason of Item 2(a) of List II and Item 13 of List IIIA (of the Ninth
Schedule), lies wholly within the legislative and constitutional province of the State of Sarawak, the State should
have exclusive authority to regulate, by legislation, the use of it in such manner as it deems fit. In the
circumstances, the relevant statute that regulates the use of the environment in relation to the Project is the
Ordinance and not the Act.

[4] Since the Act does not apply to the Project, it follows that the respondents did not acquire any vested rights
under it. The validity of the Amendment Order is therefore wholly irrelevant to the case and both declarations
ought to have been refused.

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[4a] The Amendment Order, in any case, was made and published, not for the purpose of cutting the ground from
under the feet of the respondents as suggested by them, but for the purpose of making it abundantly clear that the
1987 Order was not, for constitutional reasons, meant to apply to Sarawak.

[5] The approach adopted by the learned Judge disregards the doctrine of federalism which is woven into the very
fabric of the Federal Constitution. Since the learned Judge adopted the wrong, his finding that the Act applies to
the Project amounts to a serious misdirection. This ground alone warrants a reversal of the judgment.

[6] The respondents also lacked substantive locus standi and the relief sought should have been denied because (i)
the respondents were attempting to enforce a penal sanction, the discretion to enforce which lies entirely with the
Attorney General (ii) The action was not a representative action and there was no special injury suffered by the
respondents over and above the injury suffered by the other affected natives (iii) although the respondents had
been deprived of their life under Article 5(1) of the Federal Constitution, such deprivation was in accordance with
law and the respondents, therefore, have not suffered any injury as to nececcitate a remedy.

Per Mokhtar Sidin JCA (concurring)

[1] Environment per se is an abstract thing. It is multi-dimensional so that it can be associated with anything
surrounding human beings. Environment only exists when it affects something of physical nature, biological or
social factors. The environment affected, thus, must be viewed with what it is related.

[2] Reading Articles 73 to 77 of the Federal Constitution, it is clear that the State Legislature my make laws with
respect to matters enumerated in the State List or the Concurrent List as set out in the Ninth Schedule or where
the the matter is not enumerated in any of the lists in the Ninth Schedule. In addition to these the States of Sabah
and Sarawak are given additional list as contained in List III which is supplement to Concurrent List for States of
Sabah and Sarawak. The relevant provisions giving this power is Article 95B(1).

[3] Environment is not included in any of the lists and it appears that both the Federal Parliament and the State
Legislature are competent to make laws on environmental impact. There is no conflict in this as one has to look
into the activity to which the environmental impact is aimed at. If the activity complained is in the State List then
the Ordinance shall apply and if the activity is in the Federal List the Act shall apply.

[4] In the present case, the activities complained are related to matters in the State List. The correct law to apply,
therefore, is the Ordinance and not the Act. The respondents, in the circumstances, had no cause of action to rely
upon since their complaints were based on s. 34A of the Act. It follows that the learned Judge had erred in finding
that the respondents have accrued or vested rights to claim for a declaration.

[5] Although there are provisions under the Act and the Ordinance for an EIA to be submitted for it to be approved
by the Director General or the Board as the case may be, neither in the Act nor in the Ordinance is there a
requirement for the report to be made public. The Guidelines by the Director General, in any case, has no force of
law. Noncompliance with it, therefore, would not nullify the Project or attract an order for a declaration.

[6] The learned Judge had also erred when he considered the damages done to the properties of the respondents.
The only complaint of the respondents was that they were not given or supplied with EIA report and that they
were not given the opportunity to present their views. Nowhere was it pleaded that they had suffered damages as
described by the learned Judge.

[7] Since s. 34A of the Act does not accord any right to the respondents for them to be supplied with the EIA
report, it really does not matter whether the Amendment Order is valid or not. The Amendment Order, in any case,
is nothing more than a mere clarification. The facts showed that upon realising that the 1987 Order had

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encroached the activities which are reserved for the State, the Minister made the amendment to clarify the Order
that it shall not apply to the State of Sarawak because Sarawak has its own law in respect of those activities.

[8] Section 34A prescribes a penalty for any breach committed under it and not providing a civil remedy. That
being so, the general rule is that no private individual can bring an action to enforce that provision, either by way
of injunction or by a declaration or for damages. On the facts, the exceptions to this general rule do not apply,
particularly because the respondents had not suffered special damages as compared to the rest of the people
there. It is also a fact that the Government had compensated these people. Whether the compensation is
adequate or not the action taken by the respondents is not the right remedy.

[Appeals allowed.][Bahasa Malaysia Translation of Headnotes]

UNDANG-UNDANG PERLEMBAGAAN: Perlembagaan Persekutuan - Doktrin Persekutuan - Parlimen dan Dewan

Perundangan Negeri - Kuasa untuk membuat undang-undang atas sesuatu perkara - Peraturan-peraturan
Pentafsiran - Samada Mahkamah harus membaca enakmen-enakmen dengan cara yang akan mengelakkan
ketidakselarasan atau pertentangan - Perlembagaan Persekutuan Per. 5(1), 73, 74, 75, 76, 77, 95B(1), Jadual
Kesembilan didalamnya - Akta Kualiti Alam Sekeliling 1974 s. 34A - Ordinan Sumber Asli 1949 (Sarawak Cap 84)

UNDANG-UNDANG PERLEMBAGAAN: Badan perundangan - Parlimen dan Dewan Peundangan Negeri - Undang-
undang Persekutuan dan undang-undang Negeri - Skop pemakaian - Undang-undang berhubung alam sekitar -
Untuk mengawal, membekal dan mengedar kuasa hidro-elektrik di Negeri Sarawak - Undang-undang yang
terpakai - Samada Akta Kualiti Alam Sekeliling 1974 - Samada Ordinan Sumber Asli 1949 (Sarawak Cap 84) -
Perlembagaan Persekutuan Per. 5(1), 73, 74, 75, 76, 77, 95B(1) - Perintah Kualiti Alam Sekeliling (Aktiviti yang
Ditetapkan) (Penilaian Kesan Kepada Alam Sekeliling) 1987 - Perintah Kualiti Alam Sekeliling (Aktiviti yang
Ditetapkan) (Penilaian Kesan kepada Alam Sekeliling) (Pindaan) 1995

UNDANG-UNDANG PERLEMBAGAAN: Remedi - Relif perisytiharan - Locus standi - Permohonan untuk mengistihar
tidak sah Perintah Persekutuan - Pelaksanaan hukuman jenayah melalui litigasi undang-undang persendirian -
Samada tidak wajar - Samada sepenuhnya budi bicara Peguam Negara

UNDANG-UNDANG PENTADBIRAN: Remedi - Relif perisytiharan - Pelucutan hak-hak asasi - Locus standi -
Pemohon tidak mengalami apa-apa kecederaan di sisi undang-undang - Samada tiada locus standi substantif -
Pemberian relif oleh Hakim perbicaraan - Samada satu salah arahan

PERKATAAN & ISTILAH: "alam sekeliling" - Maksud - Samada suatu konsep berbagai-muka - Samada maksudnya
bergantung kepada konteks di mana ia digunakan

Responden-responden adalah tiga dari 10,000 anak negeri yang tinggal di satu bahagian di Sarawak di mana
terletaknya Projek Hidro-elektrik Bakun ('Projek'). Ekoran pelaksanaan Projek, langkah-langkah telah diambil oleh
perayu untuk mempampas responden serta memindahkan mereka. Responden tidak mencabar pampasan atau
pun pemindahan tersebut, tetapi menegaskan bahawa (i) Projek tersebut, jika terus dilaksanakan, akan
memudaratkan hakhak asasi mereka dalam ertikata penghidupan mereka akan terjejas akibat kesan kepada alam
sekeliling yang akan berlaku (ii) mereka tidak diberikan keadilan prosedur dalam ertikata mereka telah dinafikan
hak kukuh mereka untuk memperolehi sesalinan Penilaian Kesan Kepada Alam Sekeliling (PKAS) Projek tersebut,
atau untuk membuat representasi mengenainya (iii) dalam melaksanakan Projek tersebut, perayu bertanggungan
untuk mematuhi kehendak-kehendak Akta Kualiti Alam Sekeliling 1974 ('Akta'), terutama s. 34 Anya, tetapi gagal
berbuat demikian. Responden dengan itu memohon kepada Mahkamah Tinggi untuk mengisytiharkan tak sah
Perintah Kualiti Alam Sekeliling (Aktiviti yang Ditetapkan) (Penilaian Kesan kepada Alam Sekeliling) (Pindaan) 1995
('Printah Pindaan'), dan untuk satu perisytiharan bahawa Ekran Berhad, syarikat yang dilantik untuk melaksanakan
Projek tersebut, hendaklah mematuhi Akta. Ianya jelas bahawa dalam bertindak sedemikian, responden bertindak
secara bersendirian dan samasekali tidak mewakili lain-lain anak negeri.

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Tidak dinafikan bahawa (i) untuk maksud rayuan-rayuan di sini wujud dua undang-undang berasingan berhubung
dengan alam sekeliling, iaitu, Akta yang terpakai kepada Malaysia keseluruhannya dan Ordinan Sumber Asli
(Sarawak Cap 84) ('Ordinan') yang terpakai kepada Negeri Sarawak (ii) s. 34A Akta mencipta satu kesalahan dan
menjadikan sesiapa yang melanggarnya bertanggungan secara jenayah (iii) Melalui Perintah Kualiti Alam Sekeliling
(Aktiviti yang Ditetapkan) (Penilaian Kesan kepada Alam Sekeliling) 1987 ('Perintah 1987'), Ketua Pengarah diberi
kuasa untuk membuat garispanduan berhubung mana-mana laporan PKAS yang dihantar kepadanya, dan antara
garispanduan yang telah beliau keluarkan adalah bahawa laporan sedemikian boleh diperolehi oleh orang awam
(iv) Melalui Perintah Pindaan, yang mempunyai kesan kebelakangan, Perintah 1987 telah dijadikan tidak terpakai
di Sarawak yang berakibat garispanduan yang dikeluarkan oleh Ketua Pengarah, bermula 1 September 1994, tidak
berkuatkuasa di negeri itu.

Hakim perbicaraan yang bijaksana, membenarkan permohonan, memutuskan (i) Undang-undang yang terpakai
ialah Akta dan bukannya Ordinan (ii) responden mempunyai hak kukuh kepada laporan PKAS, dan oleh itu telah
dinafikan keadilan prosedur bilaman laporan tersebut tidak diberikan kepada mereka (iii) Perintah Pindaan adalah
tak sah dan batal kerana kesan kebelakangannya.

Perayu merayu dan menghujah bahawa Hakim yang bijaksana adalah silap dalam membuat keputusannya kerana
(i) kedudukan undang-undang adalah ditentukan oleh Ordinan dan bukan Akta (ii) oleh kerana inilah keadaannya,
soal penafian keadilan prosedur tidak berbangkit oleh kerana sungutan berhubung penafian itu adalah didasarkan
kepada penegasan bahawa Akta adalah terpakai (iii) responden tiada locus standi substantif untuk memohon relif
perisytiharan berkenaan. Isu utama yang timbul ialah (i) samada Akta terpakai kepada Projek (ii) samada
responden mempunyai locus standi di atas relif yang dipohon.

Diputuskan: Oleh Gopal Sri Ram HMR

[1] Terma 'alam sekeliling' adalah satu konsep yang berbagai-muka dan berbagai-dimensi yang mana maksudnya
adalah bergantung kepada konteks di mana ia digunakan.

[2] Dalam konteks hubungan antara Persekutuan dan Negeri sepertimana yang tertera dalam Undang-undang
tertinggi, Parlimen adalah dianggap sebagai tidak mencerobohi perkara-perkara yang terletak dalam bidangkuasa
perlembagaan sesebuah Negeri di dalam Persekutuan. Prinsip pentafsiran yang timbul ekoran dari ini ialah bahawa
Mahkamah, bilamana menentukan skop undang-undang Persekutuan dan undangundang Negeri berhubung
sesuatu perkara, haruslah mempastikan bahawa enakmen-enakmen badan-badan perundang tersebut dibaca
sedemikian cara supaya tidak timbul apa-apa ketidakselarasan atau percanggahan diantaranya.

[2a] Menggunapakai prinsip-prinsip pentafsiran yang sudah lama diterimapakai, ianya jelas bahawa kedua-dua
Parlimen dan Dewan Perundangan Negeri Sarawak mempunyai kuasa bersama untuk membuat undang-undang
untuk mengawal penghasilan, pembekalan dan pengagihan kuasa, termasuk kuasa hidro-elektrik. Dalam kes
semasa, tempat di mana kuasa tersebut akan dijanakan adalah tanah dan air dan ini adalah 'alam sekeliling' ke atas
mana Projek tersebut akan memberikan kesan.

[3] Oleh kerana 'alam sekeliling' berkenaan, berdasarkan butiran 2(a) Senarai II dan butiran 13 Senarai IIIA (di
dalam Jadual Sembilan), terletak sepenuhnya dalam bidang perundangan dan perlembagaan Negeri Sarawak,
Negeri tersebut haruslah mempunyai kuasa otoritatif untuk mengawal, melalui undang-undang, penggunaannya
mengikut cara yang mereka fikirkan wajar. Oleh yang demikian, statut yang mengawal alam sekeliling berkaitan
dengan Projek adalah Ordinan dan bukannya Akta.

[4] Oleh kerana Akta tidak terpakai kepada Projek, ianya mengikut bahawa responden tidak mempunyai apa-apa
hak kukuh di bawahnya. Dengan itu soal samada Perintah Pindaan itu sah atau pun tidak adalah sama sekali tidak
relevan dan kedua-dua deklarasi sepatutnyalah ditolak.

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[4a] Walau apa pun, Perintah Pindaan tersebut dibuat dan diterbitkan bukan untuk meruntuhkan asas
permohonan responden seperti yang mereka sangkakan, tetapi adalah untuk menerangkan dengan sejelas-
jelasnya bahawa Perintah 1987, atas sebab-sebab perlembagaan, tidak terpakai kepada Sarawak. [5] Pendekatan
yang diambil oleh Hakim perbicaraan yang bijaksana tidak memperdulikan doktrin persekutuan yang telah pun
menjadi akar-umbi Perlembagaan Persekutuan. Oleh kerana Hakim Yang bijaksana menggunakan pendekatan yang
salah, keputusannya bahawa Akta terpakai kepada Projek adalah satu salah arahan yang serius. Alasan ini sahaja
sudah cukup untuk menuntut pengakasan penghakiman.

[6] Responden juga tidak mempunyai locus standi substantif dan relif yang dipohon seharusnya ditolak kerana (i)
responden cuba menguatkuasakan hukuman jenayah, penguatkuasaan yang mana adalah merupakan budibicara
sepenuhnya Peguam Negara (ii) Guaman di sini bukanlah satu guaman perwakilan dan responden tidak mengalami
apa-apa kerugian atau kecederaan yang istimewa melebihi dari apa yang di alami oleh lain-lain anaknegeri yang
terlibat (iii) Walaupun responden telah dilucutkan kehidupan mereka di bawah Fasal 5(1) Perlembagaan
Persekutuan, pelucutan tersebut adalah mengikut undang-undang, dan responden, dengan itu, tidak mengalami
apa-apa kecederaan yang memerlukan suatu remedi.

Oleh Mokhtar Sidin HMR (menyetujui)

[1] Alam sekeliling secara bersendirian adalah sesuatu yang abstrak. Ia mempunyai dimensi yang berbagai dan
dengan itu boleh dikaitkan dengan apa sahaja yang melingkungi manusia. Alam sekeliling hanya wujud bilamana ia
memberi kesan kepada sesuatu yang berbentuk fizikal, atau pun faktor-faktor biologi dan sosial. Alam sekeliling
yang terjejas, dengan itu, mestilah dilihat dengan apa ianya berkait.

[2] Membaca Fasal 73 hingga 77 Perlembagaan Persekutuan, ianya jelas bahawa Badan Perundangan Negeri boleh
membuat undang-undang berhubung dengan perkara-perkara yang disenaraikan di dalam Senarai Negeri atau
Senarai Bersama sepertimana yang dibentang oleh Jadual Kesembilan ataupun dimana perkara tersebut tidak
disenaraikan dalam mana-mana senarai dalam Jadual Kesembilan. Selain dari itu, Negerinegeri Sabah dan Sarawak
diberi senarai tambahan sepertimana yang terkandung dalam Senarai III yang mana adalah tambahan kepada
Senarai Bersama bagi Negeri-negeri Sabah dan Sarawak. Peruntukan relevan yang memberikan kuasa ini ialah Fasal
95B(1).

[3] Alam sekeliling tidak termuat dalam mana-mana senarai dan ianya kelihatan bahawa kedua-dua Parlimen
Persekutuan dan Dewan Perundangan Negeri adalah berkompeten untuk membuat undang-undang berhubung
kesan alam sekeliling. Tidak ada percanggahan dalam perkara ini kerana seseorang harus melihat kepada aktiviti
dimana kesan alam sekeliling tersebut ditujukan. Sekiranya aktiviti yang disungutkan itu berada dalam Senarai
Negeri maka Ordinan akan terpakai dan sekiranya aktiviti tersebut dalam Senarai persekutuan maka Akta akan
terpakai.

[4] Dalam kes semasa, aktiviti-aktivit yang disungutkan adalah berkait dengan perkara-perkara dalam Senarai
Negeri. Undang-undang yang wajar dipakai, dengan itu, adalah Ordinan dan bukannya Akta. Responden, dengan
kerana itu, tidak mempunyai kausa untuk bertindak disebabkan sungutan mereka adalah berdasarkan s. 34A Akta.
Ianya mengikut bahawa Hakim yang bijaksana adalah silap dalam memutuskan bahawa responden mempunyai hak
kukuh atau hak terakru untuk memohon perisytiharan.

[5] Walaupun wujud peruntukan di dalam Akta dan Ordinan supaya PKAS dikemukakan untuk diluluskan oleh
Ketua Pengarah atau Lembaga mengikut mana yang terpakai, tidak ada peruntukan samada dalam Akta mahupun
Ordinan yang menyarankan supaya laporan tersebut disebarkan kepada umum. Walau apa pun, Garispanduan
yang dibuat oleh Ketua Pengarah tidak mempunyai kuatkuasa undang-undang. Ketidakpatuhan terhadapnya,
dengan itu, tidak akan membatalkan Projek ataupun membuka ruang kepada satu perisytiharan.

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[6] Hakim yang bijaksana juga telah tersilap apabila beliau memberi pertimbangan kepada kerosakan yang
menimpa harta benda responden. Sungutan responden hanyalah bahawa mereka tidak diberikan laporan PKAS
dan bahawa mereka tidak diberikan peluang untuk mengemukakan pendapat mereka. Mereka langsung tidak
memplid bahawa mereka telah mengalami kerugian sepertimana yang diulas oleh Hakim yang bijaksana.

[7] Oleh kerana s. 34A tidak memberikan apa-apa hak kepada responden untuk mereka dibekalkan dengan laporan
PKAS, ianya tidak memberi apa-apa makna samada Perintah Pindaan itu sah atau pun tidak. Walau apa pun,
Perintah Pindaan tersebut tidak lebih dari satu penjelasan semata-mata. Fakta menunjukkan bahawa setelah
menyedari bahawa Perintah 1987 telah menyentuhi aktiviti-aktiviti yang dikhaskan untuk Negeri, Menteri telah
membuat pindaan untuk menjelaskan bahawa Perintah tersebut tidak terpakai kepada Negeri Sarawak kerana
Sarawak mempunyai undang-undang sendiri berhubung aktiviti-aktiviti tersebut.

[8] Seksyen 34A memperuntukkan satu hukuman bagi apa-apa perlanggaran di bawahnya dan tidak
memperuntukkan remedi sivil. Dengan keadaan yang demikian, peraturan amnya ialah tindakan guaman tidak
boleh dibuat oleh individu-individu persendirian untuk menguatkuasakan peruntukan tersebut, samada melalui
injunksi atau melalui perisytiharan atau pun untuk gantirugi. Di atas fakta, pengecualian kepada peraturan am ini
adalah tidak terpakai, terutamanya kerana responden tidak mengalami apa-apa kerugian istimewa berbanding
dengan lain-lain orang dikawasan tersebut. Ianya juga jelas bahawa Kerajaan telah pun memberi pampasan kepada
orang-orang ini. Samada pampasan tersebut mencukupi atau pun tidak tindakan yang diambil oleh responden
bukanlah satu remedi yang tepat.

[Rayuan-rayuan dibenarkan.]

Cases referred to:

Kajing Tubek & Ors v. Ekran Bhd & Ors [1996] 3 CLJ 96 (refd)
Mamat bin Daud & Ors v. Government of Malaysia [1988] 1 MLJ 119 (refd)
State of Bombay v. Narottamdas AIR [1951] SC 69 (foll)
JC Waghmare & Ors v. The State of Maharashtra AIR [1978] Bom 119 (foll)
Bank of New South Wales v. The Commonwealth [1948] 76 CLR 1 (foll)
Public Prosecutor v. Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (refd)
The Commonwealth of Australia & Anor v. The State of Tasmania & Ors [1983] 158 CLR 1 (refd)
Flast v. Cohen [1968] 392 US 83 (cit)
Valley Forge College v. Americans United [1982] 454 US 464 (cit)
Tan Sri Othman Saat v. Mohamed bin Ismail [1982] 2 MLJ 177 (refd)
Government of Malaysia v. Lim Kit Siang [1988] 1 CLJ 63
Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 (refd)
Ibeneweka v. Egbuna [1964] 1 WLR 219 (refd)
Kong Chung Siew & 2 Ors v. Ngui Kwong Yaw & 3 Ors [1992] 4 CLJ 2013 (refd)
Director of Public Works v. Ho Po Sang [1961] 2 All ER 721 (refd)
Environmental Quality Act 1974, ss. 1(1), 2, 34A
Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, para 13(b)
Federal Constitution, arts. 4(4), 5(1), 8(1), 128
Natural Resources Ordinance 1949, s. 11A
Other source referred to:
The Declaratory Judgment, Zamir, 2nd edn

Counsel:

For the appellants - Gani Patail SFC (Nur Aini Zulkiflee & Abu Bakar Jais withhim) For the respondents - Gurdial
Singh Nijar (Meenakshi Raman, M Thayalan & JessicaBinwani with him); M/s Meena, Thayalan & PartnersCivil
Appeal W-01-165-96 For the appellants - JC Fong, State Attorney-General, Jabatan Peguam Besar NegeriSarawak
For the respondents - Gurdial Singh Nijar (Meenakshi Raman, M Thayalan & JessicaBinwani with him); M/s Meena,

7
Thayalan & PartnersCivil Appeal No. W-02-341-96 For the appellants - Muhammad Shafee Abdullah (Oh Choong
Ghee & Cheong WeeWong with him); M/s Shafee & Co For the respondents - Gurdial Singh Nijar (Meenakshi
Raman, M Thayalan & JessicaBinwani with him); M/s Meena, Thayalan & Partners

[Appeals allowed.]

[Rayuan-rayuan dibenarkan.]

8
 PP v. TA HSIN ENTERPRISE SDN BHD
HIGH COURT SABAH & SARAWAK, KUCHING
MUHAMMAD KAMIL AWANG J
[CRIMINAL APPEAL NO: 42-02-98-11]
14 AUGUST 1998

CONSTITUTIONAL LAW: Legislation - Federal legislation - Whether applies in Sarawak - Environmental Quality Act
1974 - Consideration of Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors & Other Appeals -
Whether construction of dams and discharge of effluents in inland waters precluded from Act

STATUTORY INTERPRETATION: Construction of statutes - Whether court could restrict application of Act in view of
express provision

The appellant appealed against the order of the Sessions Court discharging the respondent, not amounting to an
acquittal. The respondent, without a license and contrary to s. 25 of the Environmental Quality Act 1974 ('the Act'),
was found to have discharged effluents into the inland waters in Sarawak in excess of the amount prescribed under
reg. 8(1)(b) of the Environmental Quality (Sewage and Industrial Effluents) Regulations 1979.

The Sessions Court judge held that based on the Court of Appeal decision in Ketua Pengarah Jabatan Alam Sekitar
& Anor v. Kajing Tubek & Ors and Other Appeals ('the Bakun case'), the Act did not apply. This was because the
discharge of waste from the respondent's factory was within the State of Sarawak.

Held:

[1] Section 1(1) of the Act expressly states that the Act is applicable to the whole of Malaysia. Generally, the court
has no power to restrict the application of an Act of Parliament contrary to its express provision that it shall apply
to the whole of Malaysia, save in cases where such application is qualified by an amending Act or Order.

[2] The Bakun case applied in the circumstances peculiar to that case. The construction of dams were excluded
from the purview of the Act by an Amendment Order of 1995 made pursuant to s. 4A of the Act.

[3] The subject matter in this case was concerned mainly with the discharge of waste into the inland waters
without a licence contrary to s. 25 of the Act. There was no evidence to show that the power under the Act had
been ousted or precluded by any order. There was also no specific provision being made or provided for under the
Sarawak Ordinance.

[4] The respondent's activity was within Sarawak but was not precluded from the operation of the Act. The Bakun
case does not propose a total ban on all activities. It is specifically applicable in cases of construction of dams in the
State of Sarawak. It is a fallacy to think that the inland waters in the State of Sarawak are excluded and that the Act
is not applicable.

[Appeal allowed.]

Cases referred to:

Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors And Other Appeals [1997] 4 CLJ 253 (dist)
Trustees of the Kheng Chiu Tin Hou Kong & Burial Ground v. Collector of Land Revenue (Housing & Development
Board) [1992] 1 SLR 425 (cit)

Legislation referred to:

Environmental Quality Act 1974, ss. 1(1), 4A, 25, (1), (3), 51
Environmental Quality (Sewage & Industrial Effluents) Regulations 1979, reg. 8(1)(b)

9
 MALAYSIAN VERMICELLI MANUFACTURERS (MELAKA) SDN BHD V. PP
HIGH COURT MALAYA, MELAKA
AHMAD MAAROP JC
[CRIMINAL APPEAL NO: 42-1-2001]
23 JULY 2001

CONSTITUTIONAL LAW: Legislature - Federal and State laws - Scope of applicability - Laws on the environment -
Breach - Discharge of effluent into inland waters - Environmental Quality (Sewage and Industrial Effluents)
Regulations (the 'Regulations') - True purpose and nature of the Regulations - Competence of the Federal
Government to make the Regulations - Whether affected by accidental transgression into entries of the State List
by the Regulations - Applicability of Environmental Quality Act 1975(the 'EQA') - Whether Regulations and s. 25 of
the EQA are applicable and enforceable in Malacca - Environmental Quality Act 1975, ss. 21, 25, 38& 51;
Environmental Quality (Sewage and Industrial Effluents) Regulations 2-20, paras 1, 2, 3 & 4, First Schedule; Federal
Constitution, arts. 74, 128, State List & Concurrent List in Ninth Schedule; Interpretation Acts 1948 & 1967, s. 17A

ADMINISTRATIVE LAW:Exercise of administrative powers - Whether Minister empowered to make regulations

under s. 51 of the Environmental Quality Act 1975subject to qualification that regulations must only be with
respect to matters enumerated in the Federal List - Whether Regulations were ultra vires the powers of the Minister
and not applicable to Malacca - Whether charge preferred against appellant valid - Ketua Pengarah Jabatan Alam
Sekitar & Anor v. Kajing Tubik & Ors.

STATUTORY INTERPRETATION:Construction of statutes - Whether para 4 of the First Schedule to the

Environmental Quality (Sewage and Industrial Effluents) Regulations to be read conjunctively or disconjunctively -
Legislative intent - Purpose and object of Regulations and EQA - Whether appellant exempted from the effects of
Regulations.

EVIDENCE:Appeal - Appeal against conviction and sentence - Whether Sessions Court judge had erred in
disallowing findings of facts and evidence of witnesses - Whether sentence passed by the Sessions Court judge was
grossly excessive, improper or unreasonable - Element of public interest - Evidence Act 1950, ss. 5, 105& 136

This is an appeal against the Sessions Court judge's decision to convict and sentence the appellant company to a
fine, in default of one year imprisonment on a charge of discharging effluent into inland waters ie, into the
Malacca river, contrary to reg. 8(1)(b) of the Environmental Quality (Sewage and Industrial Effluents)
Regulations (the 'Regulations') without a license, an offence under s. 25(1) of the Environmental Quality Act
1975(the 'EQA').

The appellant, here, raised the same arguments as those raised at the trial in the Malacca Sessions Court. Firstly,
the appellant argued that the applicability of the EQA to the State of Malacca (Malacca) was limited to those
matters enumerated in the Federal List; ie,List 1, Ninth Schedule to the Federal Constitution. It contended that the
Minister had the power to make regulations under s. 51 of the EQA, subject to the qualification that the
regulations must only be with respect to matters enumerated in the Federal List. This, as submitted, was because s.
51 of the EQA could only empower the making of subsidiary legislation on matters concerning which the Federal
Government had the legislative competence but not otherwise. The appellant further contended that since the
Regulations affected inland waters (which was within the legislative competence of the State), the Regulations
were ultra vires the powers of the Minister and were not applicable to Malacca. As such, the appellants argued
that no offence was validly created and the charge preferred against it could not stand. The appellant relied on
Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubik & Ors(the 'Bakun's case') to support its contention.

Secondly, the appellant contended that the Sessions Court judge had given the wrong interpretation to para 4 of
the first schedule to the Regulations in holding that the four conditions under all the sub-paras under para 4 should
be read conjunctively. The appellant argued that para 4, instead, should be read disjunctively. It concluded by

10
saying that if para 4 of the First Schedule is read disjunctively, no offence had been committed as the appellant
would be exempted from the effects of the Regulations.

Thirdly, the appellant contended that the Sessions Court judge had erred in disallowing DW2, a chemist, and DW3,
a Senior Environmental Consultant, to give evidence and that the ruling had prejudiced the appellant's defence.

Fourthly, the appellant's contention was that; as the pipe which was running from the appellant's factory to the
Malacca river was not visible, there was a possibility of other pipes being connected to the pipe which discharged
effluent into the said river.

Held:

[1]It is clear that the true nature and character of the Regulations is for the prevention, abatement and control of
pollution as well as the enhancement of the environment as declared by the long title to the EQA. The real purpose
of all these is the protection, promotion, maintenance and enhancement of the health of the public in general.
However, the Regulations are not legislation with respect to "water, that is to say water (including water supplies,
rivers and canal)". Further, the Regulations are in pith and substance a legislation with respect to: "public health,
sanitation and the prevention of diseases"; an entry in item 7 in the Concurrent List (List III in the Ninth Schedule to
the Federal Constitution).

[1b]As such, even though it is true that the environment in this case is within Malacca, but since the Regulations
are in pith and substance a legislation with respect to item 7 above, any accidental transgression by the
Regulations into the entries in item 6(c) and item 2 of the State List does not affect the competence of the Federal
Government to make the Regulations.

[1c]Applying the same principles, the purpose of s. 25 of the EQA too, are for the real aim of protection,
promotion, maintenance and enhancement of the health of the public in general. Therefore, s. 25 of the EQA is
also a law with respect to: "public health, sanitation and the prevention of diseases"; under item 7 of the
Concurrent List. Moreover, since, s. 25 also creates an offence and its punishment in respect of legislation made by
the Federal Government, it is also covered by entry in item 4(h) in the Federal List, ie, "creation of offences in
respect of any matters included in the Federal List or dealt with by Federal Law". In this respect, the Regulations
and s. 25 of the EQA are applicable and enforceable in Malacca. The charge preferred against the appellant is
therefore valid.

[2]Following the scheme and manner in which para 1, 2 and 3 have been written, if the law maker had intended
sub-para (1) to (4) of para 4 to be read disjunctively, thus creating four more separate and independant sets of
circumstances having independant force and effect, and each providing a complete exemption, then, the four sub-
paras of para 4 would instead have been written in the form of four more paragraphs. There would then be seven
paragraphs under the first schedule instead of the present four.

[2b]To interpret the sub-paragraphs under para 4 disjunctively as contended by the appellant would lead to
unsatisfactory and absurd consequences. The interpretation advocated by the appellant would not promote the
true object and purpose of the Regulations and the EQA. Hence, it is concluded that the sub-paragraphs under para
4 of the first schedule are to be given conjunctive reading and therefore, the appellant is not exempted from the
effects of the Regulations.

[3]In this instance, the offence was alleged to have been committed on 27 November 1996. The sample of effluent
discharged from the appellant factory, which constituted the basis for the charge was taken by the prosecution on
the same date. DW2's evidence showed that the sample of effluent analysed by him was taken by DW3 between
12 August 1997 to 23 August 1997, ie, eight months after the alleged offence. Hence, there is no indication how

11
the samples taken by DW3 much later after the alleged offence would be relevant. Therefore, the ruling of the
judge in disallowing the evidence of DW2 and DW3 could not be faulted.

[4]On the evidence available, when investigations were carried out at the appellant's factory, the factory was in
operation while the pipe which emanated from the factory ran continuously to the bank of the Malacca river and
was notably discharging effluent into the river. Evidently, there was no other pipe connected to the said pipe.
Further the pipe did not appear broken or faulty in any way so as to permit outside contaminants to seep through
the said pipe thereby affecting the concentration and contents of the effluent running through the pipe.

[5]The element of public interest was foremost in the learned Sessions Court judge's mind in assessing sentence.
The offence with which the appellant was charged was serious. Thus, the sentence passed by the Sessions Court
judge was not grossly excessive, improper or unreasonable having regards to the nature of the offence and the
circumstances of the case.

[Appellant's conviction and sentence affirmed; appeal dismissed.]

Case(s) referred to:

Aik Meng v. Chang Ching Chuen [1995] 3 CLJ 639(refd)
Becke v. Smith [1836] 2 M & W 191(refd)
Browne v. Dunn [1893] 6R 67 (refd)
Chua Beow Huat v. PP [1968] 1 LNS 24; [1970] 2 MLJ 29 (refd)
Dato' Mohamed Hashim Shamsuddin v. Attorney General Hong Kong [1986] 1 CLJ 377; [1986] CLJ (Rep) 89(foll)
Emperor v. Dahayabhai AIR [1941] Bom 273 (refd)
Grannal v. Marrickville Margarine Proprietary Ltd [1954-55] 93 CLR 55 (refd)
Huddart, Parker & Co, Proprietary Ltd v. Moorehead [1908] 8 CLR 331 (refd)
JC Waghmare & Ors v. The State of Maharastra AIR [1978] Bom 119 (foll)
Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubik & Ors [1997] 4 CLJ 253(dist)
Leaw Mei Lee v. Attorney General & Ors [1967] 1 LNS 77; [1967] 2 MLJ 62 (foll)
Lee Chin Hock v. PP [1972] 1 LNS 64; [1972] 2 MLJ 30 (refd)
Lim Moh Joo v. PP [1970] 1 LNS 65; [1970] 2 MLJ 113 (foll)
Muthusamy v. PP [1947] 1 LNS 71; [1948] 14 MLJ 57 (foll)
PP v. Dato' Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215(foll)
PP v. Datuk Harun Idris & Ors [1976] 1 LNS 19; [1976] 2 MLJ 116 (refd)
PP v. Hambali [1968] 1 LNS 101; [1968] 2 MLJ 156 (refd)
PP v. Pua Thian Kang [1971] 1 LNS 114; [1971] 2 MLJ 149 (refd)
PP v. Ta Hsin Enterprise Sdn Bhd [1998] 4 CLJ Supp 241(refd)
PP v. Yap Kok Meng [1974] 1 LNS 127; [1974] 1 MLJ 108 (refd)
Sevaraman Nair v. Menteri Dalam Negeri Malaysia & Anor [2000] 7 CLJ 140(refd)
State of Bombay v. Narotamdas All ER [1947] PC 60 (refd)
Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481(refd)
Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 2 CLJ 707(refd)
Yeong Peng Wah v. Bahal Singh [1961] 1 LNS 156; [1961] 27 MLJ 316 (refd)

Legislation referred to:

Control of Rent Ordinance 1956, s. 12(1), (a)-(n)
Drug Dependants (Treatment and Rehabilitation) Act 1983, s. 6(1)(a)
Evidence Act 1950, ss. 5, 105, 136
Environmental Quality Act 1974, ss. 21, 25(1), (3), 34, 34A, 38, 51(1)
Environmental Quality (Sewage and Industrial Effluents) Regulations, regs. 2-20, paras 1, 2, 3, 4(1), (2), (3), (4), First
Schedule, (vii)-(xvii), Third Schedule
Federal Constitution, arts. 74(1), 128, List I, items 4(h), 8(i), (1), List II, items 2(a), 6(c), List III, item 7, List IIIA, item
13, Ninth Schedule

12
Interpretation Acts 1948 & 1967, s. 17A
For the appellant - J Amardas; M/s KP Ng & Amardas
For the respondent - Anselam Charles Fernandis DPP . Reported by Raja Vishnu Sivarajah
[2010] 4 CLJ 499  [2009] 1 LNS 1232

RAMLAH MUKADIS v. KETUA PENGARAH ALAM SEKELILING & ANOR

HIGH COURT MALAYA, JOHOR BAHRU
VERNON ONG LAM KIAT JC
[CIVIL SUIT NO: (MT-1) 22-245-2001]
20 NOVEMBER 2009

ADMINISTRATIVE LAW: Exercise of administrative powers - Decision - Application for renewal of approval rejected
by Department of Environment - Applicant blatantly failed to comply with certain conditions - Whether rejection
was done unreasonably or in bad faith

ADMINISTRATIVE LAW: Exercise of administrative powers - Legitimate expectation - Application for renewal of
approval rejected by Department of Environment - Applicant blatantly failed to comply with certain conditions -
Absence of prior complaints, warnings or inquiries against applicant - Whether applicant entitled to legitimate
expectation that approval will be renewed

CIVIL PROCEDURE: Estoppel - Res judicata and issue estoppel - Whether res judicata must be pleaded - Earlier
action for order of certiorari to quash decision of Department of Environment dismissed - Whether present action
seeking damages based on same decision of Department of Environment is res judicata

EVIDENCE: Presumption - Adverse inference - Evidence Act 1950, s. 114(g) - Failure to produce documents - Blanket
request made by plaintiff for all letters without stating materiality - No order for discovery or production of
documents - Whether evidence withheld or suppressed - Explanation given for non-production of documents -
Whether proper to draw adverse inference

The plaintiff was a trader and exporter of lead acid batteries scrap. On 20 July 1998 the first defendant ('DOE')
approved the plaintiff's application for the export of lead acid batteries scrap ('the approval'). The approval was
valid from 20 July 1998 to 30 June 1999. On 2 June 1999 the DOE issued a show cause letter to the plaintiff asking
the plaintiff to show cause why the approval should not be suspended on the grounds of non-compliance of some
of the conditions of the approval. On 14 June 1999 the plaintiff replied to the show cause letter admitting that they
did not comply with the conditions because they considered the conditions as mere formalities and asking for the
approval to be renewed. On 2 July 1999 the DOE rejected the plaintiff's application for renewal of the approval.
The plaintiff's appeal was rejected by the DOE. The plaintiff then applied to the KL High Court vide Originating
Motion R2-25-85-1999 ('the KL Action') for inter alia, an order of certiorari to quash the DOE's decision and for an
order directing the DOE to approve the plaintiff's application to renew the approval. The KL Action was dismissed.
As such, the plaintiff filed the present writ action contending that the 1 st defendant's refusal to renew the approval
was unreasonable and that the plaintiff's legitimate expectation of the licence being renewed had been wrongfully
denied by the DOE. The plaintiff claimed damages of RM2,252,880. The plaintiff also complained that the DOE
failed and refused to produce certain documents she had asked for and therefore attempted to invoke an adverse
presumption under s. 114(g) Evidence Act 1950.

Held (dismissing the claim with costs):

(1) The onus was on the plaintiff to show that in rejecting the plaintiff's application for the renewal of the approval
the DOE had acted unreasonably or had acted in bad faith. The Director General of DOE (DW1) testified that the
conditions which were imposed in the approval were in accordance with the intent and purposes of the

13
Environmental Quality Act 1974 and the Basel Convention on the Control of Trans-boundary Movements of
Hazardous Wastes and their Disposal. The conditions were not mere formalities. The conditions were the basis for
giving the approval in the first place. The plaintiff never objected to the conditions imposed in the approval. (paras
18 & 19)

(2) DW1 had applied her mind to the material facts and evidence before her when she decided not to renew the
approval and when she decided to reject the plaintiff's appeal. The DOE's decision not to renew the approval was
not unreasonable. (para 21)

(3) There was no evidence to show that the DOE had agreed to waive compliance of any of the conditions of the
approval. The fact that there were no prior complaints, warnings or inquiries held against the plaintiff could not be
equated with acquiescence on the part of the DOE. Further, this fact could not preclude the DOE from taking
action against the plaintiff for non-compliance of the conditions at any later date. On the contrary, the plaintiff had
flouted the conditions blatantly. In the absence of any agreement, understanding, or arrangement, it could not be
said that the DOE had committed itself to the plaintiff to renew the approval. As the first question was answered
in the negative it followed that there was nothing for the DOE to have acted unlawfully in respect of its
commitment as there was no commitment in the first place. The plaintiff's contention that it had a legitimate
expectation was without any basis. (para 24)

(4) Even if the plaintiff had a legitimate expectation, DW1 had acted reasonably in exercising her discretion not to
renew the approval. There was uncontroverted evidence to show that all the five conditions were breached by the
plaintiff. The plaintiff treated the conditions as mere formalities. When asked to show cause the plaintiff's reply
skirted the issues. (para 25)

(5) Illustration (g) of s. 114 is not mandatory, but depends on the circumstances of the case and, particularly, in the
materiality of the documents or witnesses not produced. In this case there was no order for discovery or
production of the documents. Other than mere speculation or conjecture, there was no evidence to show that the
DOE withheld or suppressed evidence. The DOE responded to the plaintiff's request for the documents giving
various reasons for their non production; some of the documents were privileged, whilst the others could not be
identified for lack of particulars. Further, the plaintiff had made a blanket request for all letters without stating the
materiality of the documents sought. Thus, it was not proper to draw an adverse inference merely on account of
the failure to obtain the documents. (para 26)

(6) Unlike an ordinary estoppel which should be pleaded, the court has the inherent jurisdiction to dismiss an
action by applying the doctrine of res judicata, which is an estoppel based on public policy, even if it has not been
pleaded, as public policy requires that there should be finality in litigation. (para 29)

(7) The cause of action in both the KL Action and in the present suit were founded on the alleged
unreasonableness of the two decisions made by DOE. As the KL Action has been dismissed, it followed that the
parties were no longer permitted to litigate once more the res judicata. The bringing of the present suit for a
different set of reliefs did not detract from the fact that the same cause of action was being reasserted. (para 31)

Case(s) referred to:-

Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 SC (refd)
Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223(refd)
Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 (refd)
Berry v. British Transport Commission [1961] 3 WLR 450 (refd)
Council of Civil Services Union & Ors v. Minister for the Civil Service [1985] AC 374 (refd)
Darahman Ibrahim & Ors v. Majlis Mesyuarat Kerajaan Negeri Perlis & Ors [2008] 4 CLJ 538 CA (refd)

14
Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19 CA (refd)
Lee Kwan Woh v. PP [2009] 5 CLJ 631 ; [2009] CLJ JT(3) FC (refd)
Leonard Lim Yaw Chiang v. Director of Jabatan Pengangkutan Jalan Negeri Sarawak & Anor [2009] 6 CLJ 280 HC
(refd)
Minister of Labour, Malaysia v. Chan Meng Yuen [1992] 4 CLJ 1808; [1992] 1 CLJ (Rep) 216 SC (refd)
Schmidt v. Secertary of State for Home Affairs [1969] 2 Ch 149 (refd)
Tan Teck Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 CA (refd)

Legislation referred to:-

Environmental Quality Act 1974, s. 34B
Environmental Quality (Schedule Wastes) Regulations 1989, regs. 10, 11, 12

15
[2008] 8 CLJ 116  

PP v. COCOLIN INDUSTRIES SDN BHD

HIGH COURT SABAH & SARAWAK, KUCHING
[CRIMINAL APPEAL NO: 42-14-2007-II]
HAMID SULTAN ABU BACKER JC
8 AUGUST 2007

CRIMINAL LAW: Environmental Quality Act 1974 - Section 31(1) - Failure to comply with directive issued - Non-
installation and operation of control equipment to reduce water pollution - Whether proper notice was served on
the respondents - Whether evidence showed respondent received notice - Whether respondent had not complied
with the terms stated in notice

The prosecution herein appealed against the decision of the Sessions Judge who acquitted and discharged the
respondent at the close of the prosecution's case. The respondent was charged under s. 31(1) of the
EnvironmentalQuality Act 1974 (EQA 1974) and punished under s. 31(3) of the same. The complaint against the
respondent was that the Assistant Environment Control Officer (PW5) had inspected the respondent's premise and
found that the effluent from the premise was channeled into two ponds. The two ponds were not functioning
effectively to treat the effluent. In consequence of the inspection, PW1 confirmed that a notice dated 11 October
2001 was issued under s. 31 of EQA 1974 to instruct the respondent to install and operate controlled equipment to
reduce water pollution from the premise within three months from said letter. PW5 had confirmed that the said
notice was received by the respondent based on the fact that the respondent had written a letter referring to the
date in exh. P1 on the respondent's own letterhead. PW5 further said that on 7 March 2002 he went to inspect the
respondent's premise to check whether the notice was complied with. Upon inspection he did not find any change
to the existing system, and the respondent had not installed controlled equipment to reduce the water pollution. In
consequences of non-compliance, the said charge was preferred. The respondent's defence was two fold in that (i)
no proper notice was served according to the law and (ii) the respondent by having two ponds for effluent
treatment was in compliance with the law as the respondent had such controlled equipment installed and
operated. It was the appellant's contention that the Sessions Court Judge had erred in law and in fact when she,
inter alia, held at one breath that the accused had not received the notice issued and yet in another breath opined
that the accused had complied with the requirement of the notice.

Held (allowing appellant's appeal):

(1) The sine qua non to prosecute a charge under s. 31(1) EQA 1974 is that the prosecution must show that notice
was served and the respondent had notification of the said notice. Strict compliance of the mode of service is
essential to ensure that the accused is fully aware of what he is required to do. On the facts of the case herein,
though there was no clear evidence to show the manner it was served, there was unchallenged evidence that the
respondent had received such a notice, as evidenced by exh. P6. Thus, exh. P6 corroborated the evidence of PW5
who had explained the manner the notice was served. (para 7)

(2) There was clear evidence from PW5 that the respondent had not complied with the terms stated in the notice.
Section 31(1) is a strict liability offence where the burden of proof is on the respondent to show that they have
installed and operated controlled equipment or additional controlled equipment to reduce water pollution within
three months from the date of the said notice. This could only be achieved on the facts of this case at the defence
stage. (para 8)

16
[Setting aside judgment of Sessions Court Judge and directing Sessions Court to call for defence.]

Legislation referred to:

Environmental Quality Act 1974, ss. 2, 31(1), (3), 39(1)
Evidence Act 1950, ss. 4, 45, 46

Counsel:
For the appellant - Fazillah Begum Abdul Ghani
For the respondent - Jacob Wong; M/s Nawi, Wong & Partners
Reported by Suhainah Wahiduddin

[Allowed appellant's appeal.]

17
 [2005] 2 CLJ 157

LAM ENG RUBBER FACTORY (M) SDN BHD v. PENGARAH ALAM SEKITAR, NEGERI KEDAH DAN PERLIS & ANOR
COURT OF APPEAL, PUTRAJAYA
[CIVIL APPEAL NO: K-01-44-1995]
GOPAL SRI RAM JCA, ABDUL AZIZ MOHAMAD JCA, MOHD GHAZALI YUSOFF JCA
18 FEBRUARY 2005

ADMINISTRATIVE LAW: Exercise of Administrative powers - License to operate rubber factory - Licence yearly
issued since 1940 refused in 1994 - Appeal against refusal rejected by Director of Department of Environment -
Whether Director had jurisdiction to reject appeal - Whether jurisdiction with appeal board - Environment Quality
Act 1974, s. 36

ADMINISTRATIVE LAW: Exercise of Administrative powers - License to operate rubber factory - Licence yearly
issued since 1940 refused in 1994 - Whether applicant had legitimate expectation to have licence regularly issued

The appellant operated a rubber factory in Sungai Petani, Kedah that was in operation since 1940. Each year the
appellant applied for and obtained a licence from the local authority. In 1974 when the Environment Quality Act
1974 ('EQA') had come into force, the appellant was required to obtain and did obtain the requisite licence from
the Department of the Environment Kedah pursuant to the provisions of the said Act. In 1994, the first respondent
(the Director of Environment for Kedah and Perlis) informed the appellant that the 1994 licence could not be
issued since the appellant's land was not converted from agricultural to industrial use. The appellant responded
and submitted that there was no such necessity in view of the judgment of KC Vohrah J in originating motion no.
32-33-1987. In that judgment between the appellant herein and the State Director, Kedah and the Land
Administrator Kuala Muda, Sungai Petani, Kedah, it was held that there was no necessity for the appellant to apply
for a change of land user. The appellant also submitted that it was unlawful for the first respondent not to issue
the appellant the said licence. It so followed that with the issue of the 1994 licence yet to be resolved, the first
respondent conscientiously applied for the 1995 licence. That application was refused on the ground that the area
surrounding the factory had become a residential area and so it was unsuitable for the appellant to carry on
operations there. The appellant appealed to the appeal board created by the EQA. However, the first respondent
rejected the appeal and that led to the appellant's application in the High Court for certiorari to quash the first
respondent's decision. The High Court, however, dismissed the application on the ground that since the appellant
had no licence for the year 1994, they had carried on their factory illegally and therefore had no legitimate
expectation to have a licence for 1995. Hence, this appeal.
Held (allowing the appeal):

Per Gopal Sri Ram JCA

[1] It was wrongful conduct of the first respondent that led the appellant having had no licence for 1994. The first
respondent had informed the appellant that the 1994 licence was not forthcoming unless the condition of land use
was altered. That objection was of no consequence in the light of KC Vohrah's ruling in the said judgment. So the
appellant was legitimately entitled to have the licence issued to it. Even though Parliament had conferred upon the
first respondent the power or discretion to decide whether to issue the licence or not, the law required him to
exercise this power or discretion fairly, justly and without misdirecting himself on the law or the facts. (pp 162 g-h
& 163 a)
[2] Each and every member of the public has a legitimate expectation to have his or her written communication to
a government department looked into and dealt with in a timeous, courteous and efficient manner. There must be
a response within a reasonable time. Otherwise it will be a case of poor administration. The law does not sanction
poor administration. (p 164 e-f)

18
[3] For many years the motto of the civil service administration has been & Cekap, Bersih dan Amanah & (Clean,
efficient and trustworthy). It is the duty of the judicial arm of government, ie, the courts, to ensure good
administration by the due observance of this motto on a case by case basis. Otherwise members of the public who
are adversely affected by a breach of the spirit and the intendment of the motto in question will be left without
resort to administrative justice. (pp 164 h & 165 a)

[4] The first respondent had no jurisdiction to deal with the appellant's appeal. The EQA vested the appellate
power in the appeal board and not in the first respondent. His act was ultra vires the EQA. (p 165 b-c)

Per Abdul Aziz Mohamad JCA:

[1] The decision of the first respondent that the appeal could not be considered was obviously unlawful. The
appellant's appeal, being a matter within the jurisdiction of the appeal board, was not for the first respondent to
decide that the appeal could not be considered. It was for the appeal board to decide the fate of the appeal. (p 166
c-d)

[Appeal remitted to appeal board under s. 36 EQA.]

[Bahasa Malaysia Translation Of Headnotes

Perayu mengusahakan sebuah kilang getah di Sungai Petani, Kedah sejak 1940. Setiap tahun perayu memohon dan
memperolehi lesen bagi perniagaannya itu dari pihak berkuasa tempatan. Pada tahun 1974, dengan
berkuatkuasanya Akta Kualiti Alam Sekeliling 1974 ('EQA'), perayu diminta supaya memohon kepada, dan telah
pun memohon dan diberikan lesen berkenaan oleh Jabatan Alam Sekitar Kedah di bawah Akta tersebut. Pada
tahun 1994, responden pertama (Pengarah Alam Sekitar Kedah dan Perlis) memberitahu perayu bahawa lesen bagi
tahun 1994 tidak boleh dikeluarkan oleh kerana tanah perayu belum ditukar syarat dari pertanian kepada
kegunaan industri. Perayu membalas bahawa keperluan sedemikian tidak berbangkit mengambil kira keputusan KC
Vohrah H dalam usul pemula no. 32-33-1987. Dalam kes tersebut yang melibatkan perayu di sini dengan Pengarah
Alam Sekitar Negeri, Kedah dan Pentadbir Tanah Kuala Muda, Sungai Petani, Kedah, ianya diputuskan bahawa
adalah tidak perlu bagi perayu untuk memohon pertukaran syarat penggunaan tanah. Perayu menambah bahawa
adalah salah bagi responden untuk enggan mengeluarkan lesen tersebut kepadanya. Namun begitu, apa yang
berlaku ialah, semasa isu lesen tahun 1994 masih belum selesai, perayu memohon lesen untuk tahun 1995.
Permohonan tersebut telah ditolak atas alasan bahawa kawasan sekitar kilang telah menjadi kawasan kediaman
dan kerana itu adalah tidak sesuai bagi perayu meneruskan operasinya di situ. Perayu merayu ke lembaga rayuan
yang ditubuhkan di bawah EQA. Rayuan telah ditolak oleh responden pertama sekaligus menyebabkan perayu
memohon ke Mahkamah Tinggi untuk perintah certiorari bagi membatalkan keputusan responden pertama itu.
Mahkamah Tinggi, bagaimanapun, menolak permohonan atas alasan bahawa, oleh kerana perayu tidak memiliki
lesen pada tahun 1994, mereka telah mengusahakan kilang secara haram dan kerana itu tidak mempunyai harapan
sah untuk mendapat lesen bagi tahun 1995. Ini membangkitkan rayuan semasa oleh perayu.
Diputuskan (membenarkan rayuan):
Oleh Gopal Sri Ram HMR
[1] Kegagalan perayu mendapat lesen bagi tahun 1994 adalah berpunca dari salah laku responden pertama.
Responden pertama memberitahu perayu bahawa lesen bagi 1994 tidak akan dikeluarkan kecuali syarat
penggunaan tanah ditukar. Bantahan ini tidak mempunyai apa-apa erti mengambil kira keputusan KC Vohrah
dalam kes yang berkaitan. Maka perayu adalah berhak untuk diberikan lesen. Walaupun Parlimen memberi kuasa
atau budibicara kepada responden pertama untuk memutuskan sama ada untuk mengeluarkan lesen ataupun
tidak, undang-undang mengkehendakinya supaya melaksanakan kuasa atau budibicara tersebut secara adil serta
tanpa menyalah-arahkan dirinya di sisi fakta atau undang-undang.
[2] Setiap ahli masyarakat mempunyai harapan sah supaya setiap komunikasi bertulisnya kepada jabatan kerajaan
diambil perhatian dan tindakan dengan cepat, tertib dan efisyen. Harus ada jawapan dalam masa yang munasabah.
Jika tidak ia akan menjadi suatu kes kelemahan pentadbiran dan undang-undang tidak memberi sanksi kepada
pentadbiran yang lemah.
[3] Sejak bertahun-tahun, moto pentadbiran perkhidmatan awam adalah & Cekap, Bersih dan Amanah &. Maka
menjadi tanggungjawab cabang kehakiman kerajaan, yakni mahkamah-mahkamah, untuk mempastikan suatu

19
pentadbiran yang berwibawa dan mematuhi moto ini atas dasar kes ke kes. Jika tidak, keadilan pentadbiran tidak
akan terbuka kepada orang ramai yang terjejas oleh pelanggaran semangat dan tujuan moto.
[4] Responden pertama tidak mempunyai bidang kuasa untuk bertindak atas rayuan perayu. EQA memberikan
kuasa mendengar rayuan kepada lembaga rayuan dan bukan kepada responden pertama. Oleh itu, tindakan
responden pertama adalah ultra vires EQA.
Oleh Abdul Aziz Mohamad HMR:
[1] Keputusan responden pertama bahawa rayuan tidak boleh dipertimbang adalah jelas salah. Rayuan perayu,
sebagai perkara yang termasuk dalam bidang kuasa lembaga rayuan, tidak seharusnya diputuskan oleh responden
pertama dengan mengatakan bahawa ianya tidak perlu dipertimbangkan. Tanggungjawab menentukan nasib
rayuan adalah terletak pada lembaga rayuan.

[Rayuan dikembalikan ke lembaga rayuan di bawah s. 36 EQA.]

Case(s) referred to:

Laker Airways Ltd v. Department of Trade [1977] QB 643 (refd)
Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 CLJ 183 (Rep) [1988] 1
CLJ 276 ; [1988] 3 MLJ 204 (refd)
Menteri Sumber Manusia v. Association of Bank Officers, Peninsular Malaysia [1999] 2 CLJ 471 [1999] 2 MLJ 337
(refd)
Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 (refd)
Savrimuthu v. PP [1986] 1 LNS 24 [1987] 2 MLJ 173 (refd)

Legislation referred to:

Environmental Quality Act 1974, ss. 18(1),
Environmental Quality Act 1974, ss. 35(1)(a),
Environmental Quality Act 1974, ss. 36

Counsel:
For the appellant - Ghazi Ishak (B Jayasingam with him); M/s Ghazi & Lim
For the respondents - Suzana Atan SFC
[Appeal from High Court, Alor Setar; Originating Motions No: 25-11-1995]
Reported by Usha Thiagarajah

[Allowed the appeal.]

20
[2003] 1 LNS 24  

TENGGARA GUGUSAN HOLIDAYS SDN BHD v. PP

HIGH COURT [KUALA TERENGGANU]
NIK HASHIM NIK AB RAHMAN, J
CRIMINAL APPEAL NO: 42-14-2000
28 JANUARY 2003

Criminal Law - Environmental Quality Act 1974

The appellant was convicted and fined RM20,000.00 for constructing 100 units of coastal chalets with more than
80 rooms, a prescribed activity (the project) without a report of assessment on the impact on the environment
(the E.I.A. report) submitted to and approved by the Director General of Environmental Quality under section 34A
of the Environmental Quality Act 1974 (the Act), read together with Order 17(a) of the Environmental Quality
(Prescribed Activities) (Environmental Impact Assessment) Order 1987.
- Whether the provisions of section 34A(2) and (6) are mandatory in their terms.
- Whether 'any person' under section 34A of the Act include the appellant, a body corporate.
- Whether the appellant was rightly convicted for constructing the project, even though the appellant was not the
owner of the project, and the E.I.A. report was subsequently approved after the completion of the project.

Legislation referred to:-

1. EnvironmentalQuality Act 1974 (Act 127), s. 34A(2), (6), (8).
2. Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, Schedule, Order
17(a)
3. Interpretation Acts 1948, 1967 (Act 388) s. 3.
Counsel:-
For the Appellant - Hasnan Hamzah
For the Public Prosecutor - Yaacub Haji Chik

In the High Court Malaya, Kuala Terengganu

(Criminal Appeal No: 42-14-2000)

Between
Tenggara Gugusan Holidays Sdn Bhd ... Appellant
And
Public Prosecutor ... Respondent

JUDGMENT

1. The appellant company, Tenggara Gugusan Holidays Sdn Bhd, was convicted and fined RM20,000.00 and in
default of payment of fine to 1 year of imprisonment by the Sessions Court Judge Kuala Terengganu for carrying
out construction of coastal resort facilities with more than 80 rooms, a prescribed activity (the project), without a
report of assessment on the impact on the environment (the E.I.A. report) submitted to and approved by the
Director General of Environmental Quality under section 34A of the Environmental Quality Act 1974 (Act 127) (the
Act), read together with Order 17(a) of the Environmental Quality (Prescribed Activities) (Environmental Impact
Assessment) Order 1987 (the Order). The sentence was stayed pending appeal. The charge reads:-

21
"Bahawa kamu pada 14 September 1996 jam lebih kurang 10.00 pagi bertempat di lot-lot 989, 1659, 1660, 2376,
3167 dan 4111, Kampung Pulau Kerengga, Mukim Pulau Kerengga, Daerah Marang, di Negeri Terengganu Darul
Iman, didapati telah siap menjalankan pembinaan pembangunan tambahan kompleks peranginan Marang Resort
& Safaris pada tahun 1995 yang mengandungi 100 unit chalet di kawasan pantai. Di dalam pembinaan kemudahan-
kemudahan tempat peranginan tersebut yang mempunyai lebih daripada 80 bilik di kawasan pantai adalah tanpa
terlebih dahulu mendapat kelulusan Laporan Penilai Kesan Kepada Alam Sekeliling atau Environmental Impact
Assessment (EIA) daripada Ketua Pengarah Kualiti Alam Sekeliling. Pembinaan pembangunan projek ini adalah
merupakan aktiviti di dalam Jadual 17(a), Perintah Kualiti Alam Sekeliling (Aktiviti Yang Ditetapkan) (Penilaian
Kesan Kepada Alam Sekeliling) 1987 (P.U.(A) 362/87).

Dengan ini kamu telah melakukan suatu kesalahan di bawah seksyen 34A(6) Akta Kualiti Alam Sekeliling, 1974
(Pindaan) 1985 (Akta A 636) dan boleh dihukum di bawah seksyen 34A(8), Akta Kualiti Alam Sekeliling, 1974
(Pindaan) 1996 (Akta A 953)."

2. The facts were not in dispute. On 14 September 1996, a team of Environmental Quality Officers, led by SP1,
visited the project known as Marang Resort & Safaris at Kampong Pulau Kerengga, Marang and they found there
were 100 units of coastal chalets with more than 80 rooms at the site. The chalets were constructed by the
appellant and were completed in 1995. It was in evidence that the E.I.A. report was prepared by a team of
consultants led by SP3 and was completed only on 8 July 1996 and submitted to the Director General on 13 July
1996 and was approved on 29 October 1996. It is thus clear from the facts that the E.I.A. report was approved well
after the completion of the project.

3. In his appeal against the conviction, learned counsel for the appellant argued that the appellant was not liable
for the offence as the company was only carrying out the project on behalf of its owner, Marang Resort & Safaris.
And the words "Any person" under section 34A (6) refers to the owner and not to the appellant, which was only
the developer of the project. The appellant, however, abandoned the appeal against the sentence.

4. After hearing the parties, I, on 15 January 2003 dismissed the appeal and affirmed both the conviction and
sentence and ordered the appellant to pay the fine forthwith.

5. The issue before the Court was whether the appellant was rightly convicted.

6. In considering the appeal, the following provisions are relevant which need to be noted. They are:-

(i) Section 34A (2) of the Act states:-

"Any person intending to carry out any of the prescribed activities shall, before any approval for the carrying out of
such activity is granted by the relevant approving authority, submit a report to the Director General. The report
shall be in accordance with the guidelines prescribed by the Director General and shall contain an assessment of
the impact such activity will have or is likely to have on the environment and the proposed measures that shall be
undertaken to prevent, reduce or control the adverse impact on the environment."

(ii) Section 34A(6) provides:-

"Any person intending to carry out a prescribed activity shall not carry out such activity until the report required
under this section to be submitted to the Director General has been submitted and approved."

(iii) And section 34A(8) states:-

"Any person who contravenes this section shall be guilty of an offence and shall be liable to a fine not exceeding
one hundred thousand ringgit or to imprisonment for a period not exceeding five years or to both and to a further

22
fine of one thousand ringgit for every day that the offence is continued after a notice by the Director General
requiring him to comply with the act specified therein has been served upon him."

(Emphasis added)

7. There are many activities which require the submission of the E.I.A. report to the Director General before any
approval for the carrying out of such activities could be granted, and these activities are prescribed as prescribed
activities in the Schedule to the Order, which came into force on the 1st April 1988. The relevant order in this case
is order 17(a) which is now reproduced:-

"17. RESORT AND RECREATIONAL DEVELOPMENT:-

(a) Construction of coastal resort facilities or hotels with more than 80 rooms.

(b) ......................

(c) ......................

(d) ......................

8. The prescribed activity in the present case was the construction of more than 80 coastal chalets by the
appellant. Section 34A(2) is mandatory in its terms by reason of the word 'shall' in the section. So also is section
34A(6). Section 34A(2) imposes a duty on any person intending to carry out any of the prescribed activities to
submit an E.I.A. report before any approval for the carrying out of such activities is granted, and such report must
contain an assessment of the impact of the prescribed activity will have on the environment and the proposed
measures to be taken in order to prevent, reduce or control the adverse impact on the environment. Unless and
until such report is submitted and approved by the Director General, no person will be allowed to carry out such
activity.

9. In this case, even though the E.I.A. report was subsequently approved by the Director General, the appellant
could not escape from being liable for the offence as section 34A under which the appellant was charged states
very clearly that any person, which includes the appellant by virtue of section 3 of the Interpretation Acts 1948 and
1967 (Act 388) which defines a 'person' to include a body of persons, corporate or unincorporate, who carries out
the prescribed activity prescribed under order 17(a) of the Order without first submitting the E.I.A. report to and
approved by the Director General, is guilty of an offence under section 34A (8) of the Act. What was in dispute in
the instant case was who carried out the prescribed activity. In this case, it was the appellant developer and not
the owner Marang Resort & Safaris, which carried out the prescribed activity by constructing the 100 chalets
without first submitting the E.I.A. report to and approved by the Director General. Ownership is not the ingredient
of the offence. Thus, in my judgment, the appellant was rightly convicted by the Sessions Court

23
[1998] 4 CLJ SUPP 515  

QUEK GIN HONG v. PP

HIGH COURT MALAYA, MELAKA
SURIYADI HALIM OMAR J
[CRIMINAL APPEAL NO: 42-17-1997]
24 AUGUST 1998

CRIMINAL LAW: Conviction - Validity of conviction - Open burning offence - Power and conduct of prosecution by
Director General - Environmental Quality Act 1974 s. 44 - Whether power of prosecution exclusive domain of Public
Prosecutor - Federal Constitution, Art. 145(3) - Whether written authorisation from Public Prosecutor required -
Criminal Procedure Code, s. 377(b) (3) - Whether new amendment to s. 44 of the 1974 Act applied - Whether an
offence existed under reg. 12 of Environmental Quality (Clean Air) Regulations 1978 - Whether s. 422 of Criminal
Procedure Code applied to save invalid prosecution

CONSTITUTIONAL LAW: Fundamental liberties - Conviction of accused - Whether prosecution of accused was ultra
vires the Federal Constitution - Whether constitutional rights of accused infringed

WORDS AND PHRASES: Sanction and consent - Meaning of

The accused was charged and convicted for committing an offence without licence under s. 22(1) of the
Environmental Quality Act 1974 ('the 1974 Act') for allowing the open burning of combustible materials contrary

to the conditions acceptable under reg. 12 of the Environmental Quality (Clean Air) Regulations 1978 ('the
1978 Regulations'). The accused was, thereafter, sentenced to six months imprisonment. Pursuant to s. 305 of the
Criminal Procedure Code ('CPC'), the accused filed a notice of appeal against the excessive severity of the sentence
after which he requested for a revision in spite of having filed the appeal.

In this instance, the main issue for consideration was whether there was a legal prosecution, and the court had to
determine the following:

(1) whether s. 44 of the 1974 Act which provided for the power and conduct of the prosecution was ultra vires the
Federal Constitution (2) whether there was a written ground to prosecute from the Public Prosecutor ('PP')
pursuant to s. 377 of the CPC; and (3) whether reg. 12 of the 1978 Regulations under which the accused was
charged with created an offence.

Held:

[1] The route taken by the accused was not improper as once an appeal had been lodged, the accused was not
prevented from contending that the conviction was illegal by requesting for a revision.

[2] Section 44 of the 1974 Act which provides for the power and conduct of the prosecution endows the Director
General ('DG') with powers at par with the PP. However, the power of prosecution is the exclusive domain of the
PP and as such, s. 44 is inconsistent with Art. 145(3) of the Federal Constitution. Further, Art. 145(3) is
supplemented with s. 376 of the Criminal Procedure Code. Therefore, by virtue of Art. 4 of the Federal
Constitution, s. 44 of the 1974 Act is void for inconsistency and ultra vires the Federal Constitution.

[3] Section 377 of the CPC provides that the Attorney General may authorise certain officers to conduct the
prosecution. On the premise that the DG is not conferred with the power to institute or conduct any prosecution,

24
then he is powerless to delegate authority or for any one else to prosecute on his behalf. On that account any
documented authorisation emanating from the DG is worthless and will not validate any shortcomings in the want
of authority to prosecute.

[3a] The new amendment to s. 44 which states that no prosecution shall be instituted without the consent in
writing of the PP will bring in line the 1974 Act with Art. 145(3) of the Federal Constitution and s. 376 of the CPC.
However, the amendment has yet to come in force and as such the present s. 44 still applies.

[3b] Any consent from the PP will entail deep consideration by the latter as compared to a sanction. A sanction is
an order directing the prosecution of a certain person to the authorities concerned who are responsible for
initiating prosecution in the locality in question.

[4] Section 422(a) of the CPC was inapplicable to save the instant invalid prosecution as it anticipated some form of
error, omission or irregularity in a sanction or consent that was earlier issued. Section 422(b) was also inapplicable
as s. 129 of the CPC which lays down certain offences that require the sanction of the PP is silent as to the
requirement of sanction for other specific acts. Within the 1974 Act, there is no provision that requires a sanction
similar to that of s. 129 of the CPC. The want of a sanction does not vitiate a conviction, unless there is evidence
that a failure of justice had occasioned. In this instance, there was a failure of justice as the PP never had the
opportunity to peruse the file much to the chagrin of the accused who had been deprived of his constitutional
right.

[5] In light of the above, injustice had occurred when: (1) the prosecuting officer of the Environmental Quality
Department did not possess the written authorisation from the PP pursuant to s. 377(b)(3) of the CPC. The letter of
authorisation pursuant to s. 377(b) is not of the same strength and quality as a sanction pursuant to s. 129 of the
CPC which requires due consideration by the PP; (2) the PP was totally oblivious to the prosecution and never had
the opportunity to peruse and decide on the viability of the prosecution; (3) the prosecution was initiated pursuant
to a provision ultra vires the Federal Constitution; and (4) the regulation the accused was charged under, ie, reg.
12, did not create an offence. This is a provision that lays down factors for the subjective consideration of the DG
prior to the granting of any license.

[6] Based on the case of Repco Holdings Bhd v. PP, as no authorisation was obtained from the PP, the prosecution
of the instant case was therefore illegal.

[Accused acquitted and discharged.]

Cases referred to:

Abdul Hamid v. PP [1956] 22 MLJ 231 (refd)
Hassan Bin Ishak v. PP [1948-1949] MLJ Supp 179 (cit)
Kyohei Hosoi v. PP [1998] 1 CLJ 1063 (cit)
Lyn Hong Yap v. PP [1956] 22 MLJ 226 (cit)
Mohd Dalhar Bin Redzwan & Anor v. Datuk Bandar, Dewan Bandaraya Kuala Lumpur [1955] 1 MLJ 645 (cit)
Ng Song Luak v. PP [1985] 1 CLJ 365 (cit)
Periasamy & Anor v. PP [1993] 3 CLJ 46 (cit)
PP v. Chua Chor Kian [1998] 1 MLJ 167 (cit)
Repco Holdings Bhd v. PP [1997] CLJ 1 (foll)
Rex v. Retnam [1934] MLJ 6 (cit)
R Metz 11 Cr App R 164 (cit)
Salleh And Husin v. Rex [1908] SSLR vol X, 27 (refd)

25
Legislation referred to:

Criminal Procedure Code, ss. 129, (3), 135, 305, 376, 377, (b), (b)(3), 422, (a), (b)
EnvironmentalQuality Act 1974, s. 44
Environmental Quality (Clean Air) Regulations 1978, reg. 12 Federal Constitution, arts. 4, 145(3)

Counsel:
For the accused - Low Kian Boon; M/s JA Nathan & Co For the prosecution - Anselm Charles Fernandis; State Legal
Adviser's ChambersReported by Usha Thiagarajah
[Accused acquitted and discharged.]

26
 PUBLIC PROSECUTOR v. PENGURUS, MBF BUILDING SERVICES SDN BHD
HIGH COURT MALAYA, KUALA LUMPUR
KC VOHRAH J
[1998] CLJ JT(1)
3 DECEMBER 1997

CONSTITUTIONAL LAW: Legislation - Constitutionality - Whether absence of provision in Act providing for sanction
or consent of Attorney General to institute criminal proceedings invalidates Act - Federal Constitution, art. 145(3) -
Environmental Quality Act 1974, ss. 25, 37

CRIMINAL PROCEDURE: Prosecution - Public Prosecutor - Control and direction of criminal prosecutions - Whether
Public Prosecutor is the sanctioning authority - Exercise of discretion by Public Prosecutor - Whether exercise of
discretion has to be manifested to court before court can take cognisance of offence - Criminal Procedure Code, s.
376

This was a transmission of the record of proceedings of a criminal matter before the Sessions Court to the High
Court pursuant to s. 30(1) of the Courts of Judicature Act 1964. The defendant was charged in the Sessions Court
with two offences under ss. 25 and 37 of the Environmental Quality Act 1974 ('the EQA') respectively. At the trial,
counsel for the defendant objected to the proceedings on a preliminary point, ie, that no prosecution could be
initiated against the defendant as the EQA has no provision for the sanction of the Attorney General ('the A-G') to
institute proceedings for offences under the EQA. The defendant contended that such a provision would be
necessary so as to provide a nexus between the EQA and art. 145(3) of the Federal Constitution; that it would be
unconstitutional to allow a person other than the A-G to institute such proceedings; and that the Director General
of Environmental Quality has no power to institute such proceedings. Hence, the only issue that fell for
determination before the instant court was: whether, in the absence of a provision in the EQA stating that no
prosecution for any offences under the EQA may be instituted except with the sanction or consent of the A-G,
there can be any institution of proceedings for an offence under the EQA.

Held:

[1] The effect of Criminal Procedure Code is that the sanctioning authority is the Public Prosecutor; the Public
Prosecutor is invested with the control and direction of criminal prosecutions. Parliament may require that the
exercise of the power by the Public Prosecutor to institute proceedings be shown to the court before the court
takes cognisance of an offence. An example of the exercise of discretion vested in the A-G is through a sanction by
the Public Prosecutor. Where there is a requirement for an example of the exercise of discretion by the Public
Prosecutor expressed in law for the institution of a particular offence, it has to be manifested to the court before
the court can take cognisance of such an offence.

[2] All laws of the Federation have to be read subject to the supreme law of the Federation, ie, the Federal
Constitution; any law passed which is inconsistent with the Federal Constitution shall, to the extent of the
inconsistency, be void.

27
[2a] Thus, it would be otiose to express art. 145(3) of the Federal Constitution as a provision in the EQA (in relation
to the offences created under the EQA ) as any provision in the EQA which is inconsistent with art. 145(3) of the
Federal Constitution would in the first place be invalidated.

[2b] Parliament may choose to require the exercise of discretion vested in the A-G under art. 145(3) of the Federal
Constitution in respect of certain offences, and for such exercise to be manifested either through his sanction or
with his consent or through his written authorisation before a court takes cognisance of the offences.

In respect of the EQA, Parliament has chosen not to so require.

Consequently, the lack of a provision in the EQA providing for a sanction by the A-G or his consent to institute
proceedings for offences under the EQA does not invalidate the EQA.

Cases referred to:

PP v. Choy Kok Kuan 3 MC 200 (refd)
PP v. Datuk Harun Idris & Ors [1976] 2 MLJ 116 (refd)
PP v. Lim Shui Wang [1978] 1 LNS 155 ; [1979] 1 MLJ 65 (refd)
Repco Holdings Bhd v. Public Prosecutor [1997] 4 CLJ 740; [1997] CLJ JT(15) (refd)

Legislation referred to:

Courts of Judicature Act 1964, ss. 30(1), (2), (3), 84
Criminal Procedure Code, ss. 129, 376(1), (3), (4)
Dangerous Drugs Act 1952, s. 39B(3)
Environmental Quality Act 1974, ss. 25(3), 37(1), (2)
Federal Constitution, art. 4(1), 128(2), 145(3)
Internal Security Act 1960, s. 80
Law Reform (Marriage and Divorce) Act 1980, s. 43
Poisons Act 1952, s. 34
Prevention of Corruption Act 1971, s. 26
Securities Commission Act 1993, s. 39
Securities Industries Act 1983, s. 126(1)
Women and Girls' Protection Act 1973, s. 31

Counsel:
For the prosecution - Stanley Augustin & Hasila Awang, DPPs For the defendant - Teh Beng Boon; M/s Heng &
Mogan

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[1984] 1 LNS 126  

DUNLOP MALAYSIAN INDUSTRIES BHD v. PUBLIC PROSECUTOR

HIGH COURT [SEREMBAN]
CRIMINAL APPEAL NO 67 OF 1983
PEH SWEE CHIN, J
31 MAY 1984

Peh Swee Chin J

This appeal involves a pollution offence under section 25(1) of the Environmental Quality Act, 1974 in which the
sole defendant, a corporation registered under the Companies Act, 1965, was fined $10,000/-on its plea of guilty.
The matter did not end there, for the learned Magistrate further sentenced to one (1) day's imprisonment, one
Zubir bin Abdul Rauf (the factory manager of the defendant/corporation), who represented the defendant at the
heating and against this order of one day's imprisonment an appeal was lodged.

The order appealed from appears to have been so highly irregular that it was not surprising that learned counsel
for the appellant, in his submission, took the Court through the rules of natural justice and the articles of the
Federal Constitution dealing with the fundamental liberty of a person.

The learned Magistrate however relied, for this remarkable state of affairs, on para. 20 of the Third Schedule
referred to in section 99A of the Subordinate Courts Act, 1948.

Section 99A reads as follows:-

"99A. In amplification and not in derogation of the powers conferred by this Act or inherent in any court, and
without prejudice to the generality of any such powers, every Sessions Court and Magistrates Court shall have the
further powers and jurisdiction set out in the Third Schedule."

Para. 20 of the Third Schedule reads as follows:-

"20. Power, where any corporation is guilty of any act or omission which, if it were an individual, would render it
liable to arrest or commitment, to order the arrest of or commit any officer of the corporation who caused or
wilfully permitted or contributed to the act or omission, and also to fine the corporation."

Read literally, para. 20 may indeed mean the way it had meant to the learned Magistrate. Such literal reading
would however, in the circumstances of the case, lead to a result totally unjust and repugnant to all our notions of
justice for Encik Zubir was jailed, (though for only one day), when he was not a defendant, neither was he charged
with the offence in question and he had, unmistakably, represented the defendant/corporation in appearing in
court and pleading guilty to the offence. Such a literal reading, therefore, could not be adopted as Parliament
could not have intended such a totally unjust result or gross injustice.

29
Such a result aforesaid could not have been intended by Parliament, if one is to adopt a purposive approach in
interpreting para. 20. This approach was explained by Lord Diplock in Kammins Ballrooms Co Ltd v Zenith
Investments (Torquay) Ltd [1971] AC 850, 880. The Subordinate Courts Act, 1948, must have been clearly intended
to define the limits of jurisdiction and powers of various classes of Subordinate Courts. It is certainly not a statute
of criminal law administration. I use the expression of "criminal law" to include statutory offences.

The powers set out in the Third Schedule can obviously be exercised only in the manner or in such manner as may
be prescribed by a writtenlaw other than the Act itself. Thus, for example, para. 20 of the Third Schedule
empowers the Subordinate Courts to enlarge time etc. for any proceedings. It would be equally wrong for any
magistrate to invoke this paragraph on his own motion to extend such time regardless of the Limitation Act, 1953
which has been validly relied on. Para. 20 therefore shall be read as being subject to the modification, that the
arrest or committal mentioned therein shall be according to any manner as may be prescribed by any writtenlaw
other than the Subordinate Courts Act, 1948.

In the light of what is stated above, the learned Magistrate had therefore wholly misapplied the law or para. 20 of
the said Third Schedule. The appeal must therefore be allowed and the sentence of one day's imprisonment set
aside.

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 PP v. Manager, MBf Building Services Sdn. Bhd.[1998] 1 CLJ 678

(3 December 1997).

T he defendant was charged with two offences under the Environmental Quality Act 1974. The Defendant
objected to the proceedings on a preliminary point that no prosecution could be had against the defendant
because the Act did not contain a provision providing for a sanction by the Attorney General to institute
proceedings for offences under the Act. It was argued that the defendant could not be prosecuted for the offences
as the Director General of Environmental Quality had no power to institute such proceedings. In other words,
there should be a provision in the Act for either the sanction or consent of the Attorney General to institute
criminal proceedings, otherwise it would allow a person other than the Attorney General to institute such
proceedings and that is unconstitutional.

KC Vohrah J (as he then was) held that the lack of a provision in the Act providing for sanction by the Attorney
General or his consent to institute proceedings for offences under the Act did not invalidate the Act.

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32
[1992]  3 CLJ  786 (Rep)  [1992] 4 CLJ 2299

WOON TAN KAN & ORS. v. ASIAN RARE EARTH SDN. BHD.
HIGH COURT MALAYA, IPOH
PEH SWEE CHIN SCJ
[CIVIL SUIT NO. 185 OF 1985]
11 JULY 1992

CIVIL PROCEDURE: Quia timet injunction - Damage substantial and imminent - When should be given.

TORT: Nuisance - Private nuisance - Substantial interference with the enjoyment of land - Proof of actual damage
not required - Presumption of damage - Negligence not an essential element - Injunction proper remedy for
nuisance - Escape of radon gases constitute danger to health - Biological effect of ionising radiation - Damage to
ovum and sperm cells - Long term effects - Cancer, congenital defects, mental retardation - Damage to DNA in the
human cell - Balancing the interest of the parties - Whether the licence issued under the Atomic Licensing Act 1984
entitled the defendants to commit the nuisance.

TORT: Negligence - Whether actual damage must co-exist with negligence to give rise to cause of action.

TORT: Rule in Rylands v. Fletcher - Collection and storage of monazite in defendants' plant - Escape of radon gas -
Damage essential to constitute cause of action - Whether Rule applied.

WORDS AND PHRASES: Meaning of "Imminent."

The plaintiffs residents of Bukit Merah village, sued the defendants, principally for an injunction to restrain the
defendant company (ARE) from operating and continuing to operate its factory, alleging that its activities produced
dangerous radioactive gases harmful to Bukit Merah residents.

They based their claim in negligence, the rule in Rylands v. Fletcher, and nuisance, and sought various declarations,
damages and injunctions.

The defendant's plant, situated near the village, commenced operation in 1982 under the authority of the Ministry
of Health and the Radioactive Substances Act 1974, authorising the handling of radioactive materials. The
manufacturing licence was obtained from the Ministry of Trade and Industry. Under the Atomic Energy Licensing
Act 1984, the Atomic Energy Licensing Board was responsible for radiation protection standards, licensing,
inspecting and enforcing. The ARE plant was closed on 5 November 1985 under the orders of the Atomic Energy
Licensing Board and resumed operations again on 2 February 1987 after obtaining approvals from the said board.
The plant processed monazite, which contains six (6) per cent of thorium and thorium is radioactive and such
thorium is doubled after the monazite was processed by the defendant's plant. Monazite also contained other
radioactive substances such as uranium, and radium, though in smaller quantities. The processing of monazite has
as its purpose the obtaining of "rare earths" chemical compounds of great utility.

The by-products of processing monazite are thorium hydroxide which is radioactive and lead. When thorium
decays, it produces inter alia, thoron gas (radon 220) and with uranium, it is radon gas (radon 222). The thorium,

33
radon and thoron and the products into which they decay all give off radiations of the alpha or gamma variety,
which could cause harmful biological effect on human cells.

Voluminous evidence was adduced by the parties, including the testimony of expert witnesses, which was often
conflicting and contradictory.

The plaintiffs claimed that radiation and dangerous gases escaped from the plant to the area where they were
living, causing serious biological damages including cancer.

The defendants denied the escape of radiation and dangerous gases and claimed that their activities were safe and
did not enhance the background radiation in the area. The presence of radiation was attributed to natural
phenomena. The defendants denied that their activities caused increased incidence of leukaemia, miscarriages,
pre-natal and post-natal deaths and child illnesses and lead in blood among the residents of Bukit Merah.

ARE also contended that it was licensed to handle and store radioactive substances by virtue of licences issued
under the Atomic Energy Licensing Act 1984.

Held:

[1] The processing of monazite at the defendants' factory produced dangerous radioactive materials, including
radon gases which are dangerous to health and would cause very serious injuries in the long term. The radon gases
that escaped inevitably from the operation of the plant in its simple and open factory did enhance the background
radiation to an unacceptable level. The production process failed to trap any of these radioactive radon gases.

[2] The radiation measured by the plaintiffs' expert witnesses were accepted as more probable on a balance of
probabilities as the radiation level readings of the defence expert witness did not make any sense and defied
common sense.

[3] Between May 1982 and November 1985 the waste of the ARE's processing including thorium hydroxide, a by-
product, was not stored or kept away in a sufficiently safe manner. However, the plaintiffs have failed to prove on
a balance of probabilities that the defendants' had not exercised a sufficient amount of care towards them in
regard to the operation of are after 5 February 1987. As there was no evidence of actual loss or damage which
were directly attributed to the negligence of ARE before 1985, the claim based on negligence was dismissed as
actual damage must co-exist with negligence.

[4] The claim based on rule in Rylands v. Fletcher also did not succeed, as the rule like other torts such as
negligence, cannot be maintained when damage has not been suffered, even though the radon gases which were
dangerous to health did escape from ARE's plant and monazite had been brought, collected and kept there at the
ARE's premises for processing.

[5] However, the plaintiffs were entitled to a quia timet injunction, which is an exception to the above rule. In quia
timet injunction no actual damage need to be proved and the damage need not be "imminent" as understood in
everyday usage. An action can be filed and will be entertained by the Court for this type of injunction before actual
damage had happened, that is, before a complete cause of action was completed. All that was required was that
there should be some practical certainty of substantial damage and that it was imminent.

[6] In the instant case, there was a high probability that the dangerous radon gases that escaped into the
atmosphere would cause very serious injuries to large number of people and the biological damage to human cells
was irreparable. Such injuries would only be palpable and visible to the doctors in the future. The injuries, though
not imminent, in the ordinary sense of the word, but the magnitude of such injuries involving a large number of
people was mind-boggling. The terms of the injunction, inter alia, were:

34
(a) That the defendants were not entitled to operate their factory and keep their toxic and radioactive waste upon
its land at Bukit Merah.

(b) That the defendants be restrained from operating the factory, producing, storing and keeping its toxic and
radioactive waste upon its said land. Their activities caused the escape of radioactive gases and rays into the
neighbouring land occupied by the plaintiffs.

(c) That the defendants remove all the toxic waste and radioactive waste as soon as possible to their permanent
storage facility at Belanja, Perak.

(d) That a stay of injunction be granted for 14 days to enable the defendants to comply with the injunctions.

[7] The plaintiffs had succeeded in establishing the tort of private nuisance. In an action for private nuisance, proof
of actual damage, physical or financial or personal injury was not required. Negligence was also not an essential
element in nuisance (Wagon Mound No. 2 [1967]). The expert evidence showed that the level of radioactive gases
in Bukit Merah had increased considerably thereby posing long-term health hazards to the residents. Thus there
was a substantial interference with the comfort of the plaintiffs in the enjoyment of their land and as such they
reasonably constituted an annoyance to the plaintiffs. Damage is presumed once the nuisance was established,
that is, with regard to the substantial interference with enjoyment of their land, viz. their health was being affected
harmfully, insidiously, significantly or to substantial degree. Upon such proof of annoyance, an injunction may be
suitably considered though no pecuniary compensation may be awarded.

[8] Although the ARE plant had been situated in an industrial area, and therefore the character of the
neighbourhood was relevant, the release of dangerous radioactive gases endangered the lives of the people and
upon balancing of the interests of ARE and those of the plaintiffs, the interests of the plaintiffs prevailed.

[9] The licence granted to operate the factory under the Atomic Energy Licensing Act 1984 could not entitle the
defendants to commit nuisance when such lawful acts were not confined within the defendant's land. Further the
defendant's factory was not performing a statutory duty but was only granted licence to manufacture the rare
earth commercially.

[Application for injunctions allowed.]

Cases referred to:

Rylands v. Fletcher (not foll)
Suffolk River Catchman Board v. Kent [1941] AC 74 (foll)
Read v. Lyons [1947] AC 156 (refd)
White v. Mellin [1845] AC 154 (refd)
Earl of Ripon v. Hobart [1834] 3 My & K 169 (refd)
Hooper v. Roger [1975] Ch D 43 (foll)
Rapier v. London Tramways [1893] 2 Ch 588 (refd)
Crump v. Lambert [1807] LR 3 Eq 409 (refd)
St. Helans Smelting Co. v. Topping [1805] 11 HLC 642 (refd)
Newman v. Real Estate Debenture Co. [1940] 1 All ER 131 (refd)
Wagon Mound No. 2 [1967] 1 AC 643 (refd)
Barnford v. Turnley [1862] 3 B & S 62 (refd)
Miller v. Jackson [1977] QB 966 (refd)
Hooi Wee Thim v. Pacific Tin Consolidated Corp. [1966] 2 MLJ 240 (refd)
Green v. Chelsea Waterworks Co. [1894] 70 LT 547 (foll)
Longhurst v. Metropolitan Water Board [1948] 2 All ER 834 (foll)
Charing Cross Electricity Co. v. Hydraulic Power Co. [1914] 3 KB 772 (refd)

35
Counsel:
For the plaintiffs - G.S. Nijar (Mohideen Abdul Kadir and Meenakshi Ramman with him); M/s. Meena Thayalan &
Partners. For the defendant - P.S. Gill (C.P. Mehendran with him); M/s. Cheang Lee & Ong

36