JMJ Food & Beverages Sdn Bhd v Mohamad Zukrillah Bin Ismail & Ors [2016] MLJU 1499

Court of Appeal (Putrajaya)

Inspection of the Premise – Trespass

2.     The inspection was carried out by a total of three government agencies, namely the Tenth, Eleventh, and Thirteenth Respondents, in addition to Jabatan Agama Islam, Perak (JAIPk).

3.     During the inspection, they found a banner at the restaurant displaying the following phrases:

“Selamat Berbuka Puasa! Buffet Ramadhan 2013”

“Nikmati Juadah Berbuka Puasa Bersama Tandoor Grill Sepanjang Ramadhan Ini”

4.     Additionally, there were brochures placed on the counter with the words: “Selamat Berbuka Puasa” Ramadhan Buffet.

5.     The Ministry of Domestic Trade And Consumer Affairs (KPDNKK) seized the banner and brochures.

6.     The restaurant was not recognised as halal because it had no halal certificate.

7.   The restaurant owner underwent investigation and was charged with an offence under the Trade Description Act 2011 (Act 730). Nevertheless, the legal proceeding have not yet concluded.

(a)  Section 40 (1) of the Trade Description Act 2011 (Act 730) provides that –

“40.  Power to enter premises and inspect and seize goods and documents

(1) Any Assistant Controller may, at all reasonable hours exercise the following powers:

(a)  he may, for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only for dwelling;

(b)  if he has reasonable cause to believe that an offence under this Act has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed;

(c)  he may seize and detain any goods or documents which he has reason to believe may be required as evidence in proceedings for an offence under this Act;

(d)  he may, for the purpose of exercising his powers under this subsection to seize goods, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made under this Act are duly observed, require any person having authority to do so to break open any container or open any vending machine and, if that person does not comply with the requirement, he may do so himself.”

(b)  While Section 42 of Act 730 provides that-

“42.  Power of entry and search and seizure without a warrant

If the Assistant Controller is satisfied upon information received that he has reasonable cause to believe that by reason of delay in obtaining a search warrant under section 41 the investigation would be adversely affected or evidence of the commission of an infringement or offence is likely to be tampered with, removed, damages or destroyed, the Assistant Controller may enter the premises and exercise in, upon and in respect of the premises all the powers referred to in section 41 in as full and ample a manner as if he were authorised to do so by a warrant issued under that section.”

(c)  Trespass of land is defined in the book of Clerk & Lindsell on Torts (Seventeenth Edition) (Clerk & Lindsell) as any unjustifiable intrusion by one person upon the land in the possession of another.

(d)  In the case of Oakfield Enterprise Sdn Bhd v Tenaga Nasional Berhad [1998] MLJU 70 had referred definition regarding the trespass of land from the book of Clerk and Lindsell.

(e)  In the case of Azizah bte Zainal Abidin & 5 Ors v Dato Bandar Kuala Lumpur [1999] 2 AMR 1779, the court referred to the definition of trespass ab initio from Winfield & Jalowicz on Tort in which trespass ab initio happens when any person with the authority of law abuses his authority; therefore, that person will subsequently commit a trespass.  Hence, his action from the beginning will, in certain circumstances, be deemed to be a trespass.

(f)    The Court also referred to the case of Oakfield Enterprise Sdn Bhd v Tenaga Nasional Bhd [1998] MLJU 70, in which in this case, the judge was of the view that the entry of Lembaga Letrik Negara (LLN) to the land was not a trespass because LLN had entered the land by the authority of law under the Electricity Act 1949.   The purpose of the LLN entering the said land was to put the erection of the pylons on the land; hence there was nothing to show that the LLN or Tenaga Nasional Berhad had subsequently abused that authority.

(g)  Furthermore, LLN did not used its statutory powers to justify committing in such wrongful actions. Therefore, since the initial entry was not wrongful and was done under the authority of the law, the Appellant did not allege any misconduct or misuse of authority by LLN or TNB. Consequently, it cannot be considered trespass, and no damages have occurred.

(h)    The Appellant contended that while it could be accepted that the Respondent initially entered the restaurant lawfully to conduct an inspection regarding its status, their hidden intention of seizing the brochures and banners, based on the belief that the phrases or expressions written on them could mislead or confuse Muslims, would essentially transform their entry into a trespass from the very beginning.

(i)       It was also supported by the fact that no expert witness was called to provide evidence to establish that the Muslims were indeed misled; hence, the action could transform the Respondent’s initial entry into a trespass from the beginning.

(j)     However, the Court held that the Respondent had not committed any trespass on the Appellant’s restaurant since the operation was aimed at inspecting the restaurant premise after receiving a complaint from JAIPk.   Three government agencies collaborated in carrying out such inspection.

(k)   The Court was of the view that even though it is true that SP1 (presumably a person or authority) prohibited the Respondents from entering the premises, the law, specifically Section 40 of the Trade Descriptions Act 2011, however grants the Assistant Enforcement Officer of KPDNKKP the authority to enter and conduct inspections.

(l)     Thus, the claim made by the Respondent’s witness, stating that SP1 was permitted to enter the premise, was supported by the examination of the presented CCTV footage.  The CCTV footage clearly shows that SP1 did not exhibit any behaviour or actions to prevent the Respondents from conducting the inspection.

(m)  Therefore, the question of whether the First to Ninth Respondents committed trespass when entering to conduct the inspection should be answered in the negative.

(n)  The Court found that the learned Judicial Commissioner had not misdirected the law and facts.

Key Take Away

2.     However, with regard to the inspection by the authority, it is not included as a trespass since the person or the authority who conducts the inspection will be justified or governed under the relevant law or statute.