Dynamic Environ Sdn. Bhd. v Peguam Negara Malaysia (JA-25-34-12/2025)

DIRECTOR GENERAL OF MARINE, MARINE DEPARTMENT MALAYSIA 3 2.

MALAYSIAN MARITIME ENFORCEMENT AGENCY …RESPONDENTS GROUNDS OF DECISION (Application for Leave to Commence Judicial Review) Introduction

This is an application by the Applicant for leave to commence judicial review proceedings pursuant to Order 53 Rule 3(1) of the Rules of Court 2012 ("ROC 2012") to challenge the second detention order dated 17.9.2025 issued against the vessel "SERI MAYAA".

The Attorney General ("AG") appeared in his capacity under Order 53 Rule 3(3) of the ROC 2012 as guardian of the public interest and raised preliminary objections by way of the Attorney General's Objection Submissions (Enclosure 6). The Applicant filed its Written Submissions (Enclosure 8) in reply.

This Court has considered the written submissions of both parties and now delivers its decision. Background

The material facts, which are not in dispute at this stage, are as follows –

(a) The Applicant is the owner of the vessel "SERI MAYAA";

(b) On 14.7.2025, the vessel was detained by the 3rd Respondent (Malaysian Maritime Enforcement Agency, "MMEA") for an alleged failure to notify the Director of Marine of its activities in Malaysian waters as required under section 491B of the Merchant Shipping Ordinance 1952 ["Ord. 70/1952"];

(c) On 22.7.2025, the 3rd Respondent expressly approved a sea trial for the purpose of assessing the vessel's mechanical condition, subject to conditions including reporting requirements;

(d) The Applicant pleaded guilty to a charge under section 491B of the Ord. 70/1952 and a fine of RM25,000.00 was imposed and paid on 28.8.2025. In my judgment, the exact characterisation of the payment, whether as a compound under the Ordinance or as a court-imposed fine following conviction, is a matter that may bear on the functus officio argument at the substantive stage. For present purposes it is sufficient that the Respondents accepted the payment as concluding the first prosecution;

(e) Following the sea trial, the vessel anchored at coordinates Latitude 1°32.6733' North, Longitude 104°25.1380' East, which coordinates were notified to the 1st and/or 3rd Respondents through the Applicant's then agent;

(f) On 2.9.2025, the Applicant notified the Respondents that the vessel was suffering from a mechanical breakdown and was incapable of free navigation;

(g) On 4.9.2025, the 3rd Respondent issued a Conditional Release Letter in respect of the vessel. However, this letter was not served on the vessel’s Master or on the Applicant directly but was transmitted only to the Applicant’s former agent;

(h) On 15.9.2025, the Respondents’ officers boarded the vessel;

(i) On 17.9.2025, a second detention order was issued on the ground that the vessel had deviated 16 kilometres from its approved anchorage. The Applicant contends that the vessel had in fact drifted only 0.72 nautical miles (approximately 1.33 kilometres) owing to mechanical failure and prevailing sea conditions and not by any unauthorised navigation;

(j) A second prosecution was thereafter commenced, founded upon the same factual substratum; and

(k) At all material times after 28.8.2025, the vessel remained in the custody and control of the Respondents. The Applicant did not at any time regain possession of the vessel. Analysis

Two principal issues arise from the AG’s preliminary objections –

(a) Whether the second detention order dated 17.9.2025 is amenable to judicial review; and

(b) Whether the objection concerning vicarious liability of the 2nd Respondent ought to be determined at the leave stage. The Leave Threshold

It is well established that the threshold at the leave stage is low. In WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 MLJ 296, the Federal Court held that leave ought to be granted if the application is not thought of as frivolous and if, upon leave being granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome.

Similarly, the Court of Appeal in Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 explained that the High Court should not go into the merits at the leave stage. Its role is confined to determining whether the application for leave is frivolous. 7 8. In Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 3 MLJ 228, Supreme Court observed that the learned Judicial Commissioner had gone further than the leave stage and embarked upon substantial issues on the merits and that this was not the correct approach. The guiding principle is that the applicant must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application.

Applying the leave threshold as explained above, my analysis and findings are as follows – Issue 1 : Whether the Second Detention Order is Amenable to Judicial Review

In its written submission, the AG submits that the detention order issued under section 504(1) of Ord. 70/1952 forms part of the investigative machinery under section 122 of Ord. 70/1952 and is therefore not amenable to judicial review. The AG relies on the Federal Court decisions in Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349 and Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2018] Supp MLJ 16.

I acknowledge and respect the principle established in Suruhanjaya Pencegahan Rasuah Malaysia & Ors and Empayar Canggih Sdn Bhd that the exercise of a function in the course of a criminal investigation is, as a general rule, not open to judicial review. However, it is equally significant that both decisions recognise an exception where mala fide or bad faith is established.

The AG further relies on Lembaga Minyak Sawit Malaysia & Anor v Innovans Palm Industries Sdn Bhd [2023] 2 MLJ 742 and Arab Malaysian Merchant Bank Bhd & Anor v Tan Giap How and another appeal [2019] 5 MLJ 364 in support of the investigative-immunity rule. Both decisions are distinguishable on their facts. Lembaga Minyak Sawit Malaysia & Anor concerned the relationship between seizure of evidence and ongoing prosecution, where the Court of Appeal held that the magistrate was the proper forum for forfeiture or release. Arab Malaysian Merchant Bank Bhd & Anor concerned an EPF investigative-prosecutorial decision following an investigation. Neither addresses the question presently before this Court, namely the legality of a fresh detention order issued after the original prosecution had been concluded by acceptance of payment. I find that the mala fide exception recognised in Suruhanjaya Pencegahan Rasuah Malaysia & Ors applies to all of the AG's authorities in this line.

I find that the Applicant does not challenge the investigative process itself. What is challenged is the legality, propriety and constitutionality of the specific act of issuing the second detention order. The distinction between the investigative process and the lawfulness of a specific enforcement measure has been recognised in a line of recent authorities.

In I-Serve Online Mall Sdn Bhd & Ors v Bank Negara Malaysia & Ors [2022] MLJU 2952, the High Court distinguished Empayar Canggih Sdn Bhd and held that the legality of a freezing order is quite separate from the criminal investigative process and that a challenge to the legality of such an order could proceed without exposing or interfering with the investigation papers. The Court stated– “The legality of the Freezing Orders is quite separate from the investigation papers”.

In Rosli bin Dahlan v IG Tan Sri Razarudin bin Husain @ Abd Rashid (Ketua Polis Negara PDRM) & Ors [2024] 11 MLJ 381, the High Court rejected a similar preliminary objection that investigative measures under AMLA were immune from judicial review. Where allegations of mala fide, ultra vires, abuse of power and procedural impropriety had been pleaded, the Court held that the applicant had crossed the leave threshold. The Court observed – “The facts set out above have demonstrated mala fide and a serious abuse of power. If such abuse of power by the executive bodies is without legal restraint, there would be dictatorship and it becomes the duty of the courts to intervene”.

The Court of Appeal in ZI Publications Sdn Bhd & Anor v Jabatan Agama Islam Selangor & Ors [2018] 5 MLJ 814 drew a clear distinction between the law itself and the enforcement of such law, holding – “The validity of the impugned section did not automatically render the enforcement action of the respondents under the impugned section valid. It was for the High Court to determine whether or not the action taken by the respondents was valid in accordance with the impugned section”.

It is appropriate to note that the AG cites a later decision in the same ZI Publications litigation reported at [2020] 9 CLJ 774 for the proposition that the search and seizure carried out in that case were not amenable to judicial review. The two decisions are distinguishable. The [2018] 5 MLJ 814 decision on which this Court relies addresses the principled distinction between the validity of a law and the validity of its enforcement, which arises at the leave stage. The [2020] 9 CLJ 774 decision was reached after substantive hearing of the merits of the search and seizure on the particular facts of that case. They occupy different stages of the same dispute and the proposition adopted in this judgment, that enforcement action under a valid law is itself amenable to judicial scrutiny, is consistent with both.

In Datuk Kapten (B) Muhammad Suhaimi Yahya (sebagai pegawai awam pertubuhan yang didaftarkan sebagai Parti Peribumi Bersatu Malaysia) & Anor v Tan Sri Dato’ Sri Hj Azam bin Baki (Ketua Pesuruhjaya Suruhanjaya Pencegahan Rasuah Malaysia) & Ors [2023] MLJU 1298, the High Court likewise rejected the contention that measures taken in the course of criminal investigations were immune from judicial review, recognising the progressive development of judicial review in Malaysia and holding that coercive executive measures touching upon property and liberty are amenable to judicial scrutiny where triable issues are raised.

Applying the above authorities to the present case, I am satisfied that the Applicant has raised several serious and arguable issues –

(a) Whether the Respondents had become functus officio following the payment and acceptance of the fine on 28.8.2025 in respect of the same offence;

(b) Whether there existed any new factual basis capable of lawfully justifying the issuance of a second detention order;

(c) Whether the second detention order amounted to double jeopardy contrary to Article 7(2) of the Federal Constitution;

(d) Whether the Respondents acted unreasonably or mala fide in light of their knowledge of the vessel’s mechanical incapacity and its approved anchorage coordinates; and

(e) Whether there was procedural impropriety in the failure to serve the Conditional Release Letter on the Master or the Applicant.

On the functus officio contention, the Applicant pleads that acceptance by the Respondents of the fine paid on 28.8.2025 exhausted their statutory powers in respect of the same factual substratum, with the consequence that no further detention order could lawfully be issued in respect of the same alleged offence under section 491B of the Ord. 70/1952. In my judicial view, whether this proposition is ultimately correct is plainly a matter for substantive hearing. At the leave stage, it suffices to observe that the proposition is at least arguable on the authorities and that the AG's submission (Enclosure 6) does not directly engage with it.

On the constitutional contention under Article 7(2) of the Federal Constitution, the Applicant pleads that a second detention order and second prosecution founded on the same factual substratum amount to double jeopardy. I observed that the AG's written submission in Enclosure 6 does not directly address Article 7(2) of the Federal Constitution. I am of the view that constitutional questions of this character are characteristically suitable for substantive hearing rather than summary disposal at the leave stage.

The procedural impropriety contention regarding non-service of the Conditional Release Letter dated 4.9.2025 carries a constitutional dimension under Article 5 of the Federal Constitution. The Applicant pleads that the Conditional Release Letter was transmitted only to a former agent and not served on the Master or the Applicant directly, with the consequence that the Applicant was deprived of knowledge of the conditional release while the vessel remained under continuous custody. Whether this amounts to deprivation of property without due process is a matter for substantive hearing.

These issues are neither frivolous nor vexatious. They raise important questions of public law concerning the limits of statutory detention powers, as well as constitutional questions under Articles 5, 7(2) and 8 of the Federal Constitution. These are matters that can only be properly determined at the substantive hearing after leave is granted. On this point, I make two observations on the AG's reliance on Aman Palestin Bhd v. Tan Sri Dato' Sri Hj Azam Baki & Ors [2024] 10 CLJ 978. First, that decision itself acknowledges the exception where mala fide is shown. The Applicant has pleaded mala fide, and whether it is made out is a matter for the substantive hearing. Second, the AG characterises the impugned detention order as a “temporary, preservatory measure” akin to a freezing order under section 44(1) of AMLATFPUAA. On the Applicant's pleaded case, however, the second detention order is not preservatory but a fresh exercise of statutory power issued after the original prosecution had concluded by acceptance of payment. Whether this characterisation is correct is itself a triable issue.

I further note that even if the two-stage threshold propounded in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 were to be applied, the Applicant has sufficiently set out the legal grounds for challenge (first stage) and has adduced adequate prima facie proof (second stage) through the Affidavit in Support, which sets out the material facts concerning the payment of the fine, the Conditional Release Letter, the notification of the vessel’s mechanical breakdown and the actual condition and position of the vessel at the material time. Issue 2 : Vicarious Liability of the 2nd Respondent

As to the AG’s objection that the Applicant’s claim of vicarious liability against the 2nd Respondent is superfluous and unsustainable, this Court agrees that this is essentially a procedural issue and is not one which ought to bar the grant of leave.

Whether the 2nd Respondent may be held vicariously liable for the acts and omissions of the 1st and 3rd Respondents is a matter which can and should be determined at the substantive hearing. At this stage, it is sufficient that the Applicant has put forward a coherent and arguable basis for naming the 2nd Respondent. Court’s Decision

For the reasons set out above, this Court is satisfied that –

(a) the Applicant’s application is not frivolous or vexatious;

(b) the Applicant has demonstrated an arguable case warranting a substantive hearing;

(c) the subject matter of the challenge is prima facie amenable to judicial review; and

(d) the AG’s preliminary objections do not succeed in barring the grant of leave at this stage.

Accordingly, this Court orders as follows –

(a) Leave is hereby granted to the Applicant to commence judicial review proceedings in respect of the second detention order dated 17.9.2025; and

(b) Costs are reserved to the substantive hearing. Dated : 17 April 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Applicant : : Bhavanash Sharma together with Veenay Jit Singh Messrs. Bhavanash Sharma Solicitor for the Respondents : : Senior Federal Counsel, Shahidah Nafisah binti Leman Attorney General’s Chambers, Civil Division, Putrajaya