T3 Dental Sdn. Bhd. v 1. ) yang Dipertua Majlis Bandaraya Shah Alam (BA-25-144-12/2024)

YANG DIPERTUA

MAJLIS BANDARAYA SHAH ALAM ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosure 6)

On 12.3.2025, the Applicant was granted leave to file an application for judicial review against the Respondents.

Enclosure 6 is the Applicant’ substantive application for –

a declaration that the Applicant, a dental clinic does not need a licence from the Respondents for the sign board; and

(ii) an order of certiorari to quash the 2nd Respondents’ compounds issued against them.

After considering the cause papers and submissions by the parties, this Court dismissed the Applicant’ application. The following are the reasons for the decision. Background facts

The facts leading to this application are as follows. The Applicant is a dental clinic duly registered under section 27 Private Healthcare Facilities and Services 1998 (Act 586) and subject to the Dental Act 2018 (Act 804). The Applicant is managed by dental doctors who have been issued practising certificates under Act 804.

The 2nd Respondent is the local authority for Shah Alam. On 6.11.2024, the 2nd Respondent issued 3 compounds to the Applicant for contravention of section 7 Undang-Undang Kecil Iklan (MBSA) 2007(Advertisement By-laws) (By-law 7), which require them to obtain licences for their signages.

The Applicant contend that they are exempt from obtaining this licence as they are subject to the supervision under Act 804 and/or Act 586.

The Applicant referred to the Ministry of Housing and Local Government’s directive dated 30.9.2020 (Directive) wherein the Ministry referred to the minutes of meeting of the National Council for Local Authority dated 4.12.1982 (National Council Minutes) and reminded all local authorities that professionals were exempted from obtaining premise licences required under section 102(s) Local Government Act 1976 (Act 171).

Signages for dental clinics are regulated under Act 804 and the Malaysian Dental Council’s (MDC) Guidelines and Provisions for Public Information.” (MDC Guidelines).

Legal firms are similarly exempted from local authorities’ by-laws for signages as they are regulated by the Legal Profession Act 1976 (Act 166). The High Court granted an order of certiorari to quash compounds issued to a legal firm in YH Boo & Paetners (satu firma) v. Yang Dipertua Majlis Perbandaran Kajang & 1 lagi in Permohonan untuk Semakan Kehakiman No: BA-25-51-08/2023 on 25.7.2024 for unlicensed signages.

In yet another case involving a legal firm in Johor Bahru, the Majlis Perbandaran Johor Bahru entered into a consent order whereby the compounds issued to the legal firm were withdrawn.

The Applicant maintains that the 2nd Respondent was acting illegally, irrationally and without regard to procedural propriety in issuing the compounds.

The Respondents agreed that the Applicant was exempt from a premise licence but contended that they still required a licence for their signboards.

The Applicant has a licence for one signboard but had put up 2 other signages without licence and the compound were issued for these signages. Act 804 and the MDC Guidelines only governed the content of the signages and the Applicant was still required to comply with local authorities’ by-laws.

Circa 2012, the Respondents required operations offices (pejabat urusan) of businesses including clinics and legal firms to obtain licensing. The Respondents received complaints from the Bar Council and Malaysia Medical Association who asked for a review this licensing requirements.

Following a series of meetings, the 2nd Respondent then decided that clinics operating within the Shah Alam City limits were not required to obtain a licence for their operations offices for clinics but were still required to obtain advertisement licences for their signages.

Legal firms, however, were given exemptions from obtaining both licences as the Bar Council had already regulated legal firms’ signages.

The Respondents denied the Applicant’s averments that they had acted illegally, irrational and committed procedural impropriety in issuing the compounds. Submissions Ultra vires

The Applicant referred to section 102(c) Act 171 which empowers the 2nd Respondent to regulate, licence, restrict, prevent or remove the exhibition of advertisements.

In support of their submissions that the Applicant’s signages are not advertisements which are limited to commercial advertisements for promotional and commercial purposes. (Commissioners of Inland Revenue v. Maxse [1919] 1 KB 647 at 657, Chairman, M.P Electricity Board v. Shiv Narayanan and anor, Supreme Court of India Appeal (Civil) 1065 of 2000 at 6).

The Applicant also referred to –

Badan Peguam Malaysia v. Datuk Bandar Kuala Lumpur [2013] 10 CLJ 130 (Badan Peguam Malaysia), Komathy Suppiah J (as Her Ladyship then was) held at 141 – S/N Qg7QBi08Vkab8GsZe4hgFg “Applying the purposive approach mandated in s. 17A of the Interpretation Act in interpreting the provision, it is clear that the By-Law was enacted out of the realistic recognition that there is a need to regulate commercial advertisements which carry an element of trade and commerce to promote business and derive/earn profits. This purpose is achieved by requiring those who are desirous of displaying commercial advertisements to apply for a licence. This interpretation is consistent with s. 102 of the LGA that requires that By-Laws enacted by local authorities must be for the purpose of promoting good order and government within the jurisdiction of the defendant.” and

(ii) Projek Lebuhraya Usahasama Bhd v. Majlis Perbandaran Subang Jaya [2016] 9 CLJ 238, Asmabi Mohamad JCA held at 251 – “The signboards which the respondent claimed as advertisements are, in fact, signboards which indicate locations and demarcate lanes. These signboards are purely for reason of directing road users into the correct lane. As these signboards are not promotional boards for any commercial gains, these signboards are excluded from the definition of “advertisement” under Sel PU89 (see exhs. A-5, A-6 of encl. 3).” S/N Qg7QBi08Vkab8GsZe4hgFg

The Applicant submitted that they and other medical professionals are not commercial enterprises and therefore cannot be classified as “trade, business or industry” as provided under section 102(c) Act 171.

The Respondent on the other hand referred to the definitions of “iklan”, “iklan bercahaya”, “iklan tidak bercahaya” and “papan tanda” in the Advertisement By-laws and submitted that the signages and banners put up by the Applicant are advertisements.

The Respondent pointed out that the High Court decision in Badan Peguam Malaysia was reversed by the Court of Appeal in Datuk Bandar Kuala Lumpur v. Badan Peguam Malaysia [2015] 7 CLJ 301 (DBKL).

The Applicant argued that section 102(c) Act 171 does not apply to them as they are governed by Act 804 and the MDC Guidelines.

The Applicant argued that the principles of generalia specialia derogant applies and therefore the specific guidelines issued by the MDC must prevail over By-Law 7. (House Buyer Tribunal & Anor v. Unique Creations Sdn Bhd and other appeals [2014] 3 MLJ 850 at 856).

This is also consistent with the directive issued by the stand taken by the National Council for Local Government as evident from the minutes of the meeting held on 4.12.1982.

The Respondent submitted that the directive was only in relation to premise licences under section 102(s) Act 171 and the Applicant was now seeking to extend that directive to cover By-law 7.

They argued that the MDC guidelines did not have the force of law and was merely administrative in nature. The principle of generalia specialia derogant did not apply. (Syed Noor Azman bin Syed Md Kamal & 2 Ors v. Pengarah Tanah dan Galian Negeri Perak & 2 Ors (High Court Taiping No: AB-24NCVC-10- 01/2025) at para [42] and Majlis Angkatan Tentera Malaysia v. Mohd Nurul Aimi bin Mohd Basri [2019] 2 MLJ 433 at 445 (Majlis

The legal profession was exempt from By-law 7 as they were governed by Legal Profession (Publicity Rules 2001), a law enacted under the Legal Profession Act 1976 (Act 166).

The Respondent also referred to the MDC Guidelines which require the dental practitioners to adhere to the regulations set by the local authorities. S/N Qg7QBi08Vkab8GsZe4hgFg Analysis and findings Principles of law

Judicial review is a process by which the High Court oversees the actions and decisions of public bodies including local authorities, to ensure that they act lawfully, fairly and reasonably.

Local authorities, when exercising their statutory and discretions powers must comply with the principles of administrative law.

This Court was mindful that these proceedings were not to examine the merits of the Respondent’s decision regarding the licencing of advertisements within its city limits but rather whether they interpreted and acted within the law. If they did not, then the Respondent’s decision would be quashed.

This Court examined of the provisions of the various statutes, the MDC Guidelines, the National Council Minutes and the Directive to understand the statutory framework governing the advertisements within the Respondent’s city limits.

Section 102 Act 171 provides – “In addition to the powers of making by-laws expressly or impliedly conferred upon it by any other provisions of this Act S/N Qg7QBi08Vkab8GsZe4hgFg every local authority may from time to time make, amend and revoke by-laws in respect of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the inhabitants or for the good order and government of the local authority area and in particular in respect of all or any of the following purposes:

…

to regulate, license, restrict, prevent or remove the exhibition of advertisements; …”

The Respondent made the Advertisement By-laws in exercise of these general powers. In particular, By-law 7 reads – “seorang pun boleh mempamerkan iklan tanpa lesen yang dikeluarkan oleh pihak berkuasa melesen di bawah undang-undang kecil ini.”

The relevant words regarding advertisements and signages are defined in by-law 2 Advertisement By-laws as follows – “Iklan” ertinya apa-apa pemberitahuan, pengumuman atau penerbitan yang dipamerkan, ditunjukkan atau didirikan bagi maksud memberitahu orang ramai mengenai apa-apa barang, keluaran, pengeluaran, tred, perniagaan, profesion, firma, perbadanan, organisasi, institusi, tempat, premis, peristiwa, aktiviti atau apa-apa perkara atau maklumat lain, di atas apa-apa papan dendeng, kekotak elektronik, papan, bumbung, dinding, pagar berpancang, pagar, pokok, rangka, plat, kain, S/N Qg7QBi08Vkab8GsZe4hgFg rintangan, tiang, tonggak, dawai, salutan atau mana-mana bahagiannya, di atas atau di dalam mana-mana bangunan, jalan atau tempat peranginan awam, tempat tumpuan awam, di atas mana-mana tanah, termasuklah tanda langit, belon, banting, sepanduk, poster, tanda arahan dan papan tanda tetapi tidak termasuk suatu iklan pilihan raya; “Iklan bercahaya” ertinya mana-mana iklan yang disinari daripada dalam struktur atau rangka iklan itu sendiri dengan lampu elektrik seperti lampu bebola, lampu kalimantang, lampu neon, lampu limpah atau apa-apa alat yang berada di luar struktur atau rangka iklan itu mengeluarkan cahaya pancaran ke arah iklan itu yang akan menyebabkan iklan itu dilihat dengan jelas pada waktu malam; “Iklan tidak bercahaya” ertinya apa-apa iklan selain iklan bercahaya; …… “Papan tanda” ertinya mana-mana papan yang menunjukkan nama atau cap dagangan berdaftar mana-mana orang, firma, perbadanan, pertubuhan, jenis tred, perniagaan atau profesion yang dijalankan oleh orang, firma, pertubuhan atau perbadanan itu;

The National Council Minutes read – “4.1.2 Oleh yang demikian tindakan hendaklah diambil oleh semua Penguasa Tempatan untuk mengecualikan semua badan profesion yang pada masa ini dikawal S/N Qg7QBi08Vkab8GsZe4hgFg oleh Akta-Akta masing-masin dari dikenakan lesen oleh pihak Peguam Tempatan. Disamping itu tindakan harus diambil untuk mengjaki semua undang kecil di bawah seksyen 102(s) Akta Kerajaan Tempatan 1976 yag telah dicadangkan. …”

The Directive provides – “2. Untuk makluman YBhg. Datuk/Dato’/Dr./Tuan/Puan, Mesyuarat Majlis Negara Bagi Kerajaan Tempatan Ke-27 (MNKT Ke-27) pada 4 Disember 1982 telah memutuskan supaya golongan professional yang dikawal di bawah akta masing-masing seperti arkitek, jurutera, peguam, doktor, juruukur tanah dan perancang dikecualikan daripada perlesenan premis di bawah Seksyen 102(s) Akta 171. Namun begitu, Jabatan ini menerima adual daripada badan professional yang memaklumkan bahawa masih terdapat Pihak Berkuasa Tempatan (PBT) yang mengenakan lesen premis kepada golongan professional.”

It is obvious that the National Council Minutes and the Directive were in relation to section 102(s) Act 171 which govern premise licences and does not in any way extend to advertisement licences.

Section 19 of Act 586 reads – “No private healthcare facility or service or health related facility or service shall publish any advertisement –

in a manner as to mislead the public on the type or the nature of the healthcare facilities or services or heath-related facilities provided; or

which is contrary to any direction on advertisement issued by the Director General.”

On the issue of signboards, billboard and banners, the MDC Guidelines provide they should all confirm to the regulations set by local authorities. Ultra vires

This Court read the judgments in the cases cited by parties. The Badan Peguam Malaysia/DBKL cases (supra) called for determination of whether the banners put up by the Bar Council were advertisements within the definition in By-law 2 Advertisements (Federal Territory) By-Laws 1982.

Abdul Wahab Patail JCA held at 307 – “It was submitted that the definition applied to commercial as well as non-commercial advertisements, on private property or otherwise, and therefore regardless whether the advertisement is commercial or not, an application for a permit must be made or alternatively an application for an exemption may be made. Counsel for the appellant, however, conceded that banners such as with “Welcome”, “Selamat Hari Raya”, “Selamat Tahun Baru Cina” or the like do not require that an application for a permit or for an exemption be made. That submission betrayed the inherent flaw in the submission. It would mean it is up to DBKL to decide in each and every case whether it would enforce the by-laws or not. In other than commercial advertisements, it leaves the public in a state of uncertainty and quandary whether it needs to obtain a permit or not. Worse, it opens the way to selective enforcement. An interpretation that results in making introducing selective enforcement is difficult to defend. The only other alternative without such an inherent flaw is the interpretation that the by-laws apply to commercial advertisements only. It is the DBKL that makes the by-laws. If the intention is that it is to be applied to non-commercial advertisements, then it is for the DBKL to amend the by-laws and to set out very clearly when an application for a permit or for an exemption has to be made and when they are unnecessary.”

The signboards and banner put up by the Applicant are not notifications put up in conjunction with a festival or event neither are they directional signboards indicating locations and demarcated lanes as in Projek Lebuhraya Usahasama Bhd v. Majlis Perbandaran Subang Jaya [2016] 9 CLJ 238.

They fall within the definition of By-Law 2 as they are put up for the purpose of bringing to the notice of the public the Applicant’s professional services. They are clearly advertisements which carry an element of trade and commerce to promote business and derive/earn profits. Generalia specialia non derogant

Generalia specialia non derogant (General things do not derogate from special things) is a cardinal principle of interpretation. It means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law.

The legal maxim means that general laws do not override or repeal specific laws. When there is a conflict between a general provision and a specific one, the specific rule prevails. This ensures that legislation designed to address a particular subject are not unintentionally displaced by broader, more general enactments. S/N Qg7QBi08Vkab8GsZe4hgFg (PP v. Chew Siew Luan [1982] 2 MLJ 119 and PP v. Chu Beow

The Court of Appeal in both Dr HK Fong Brainbuilder Pte Ltd v.SG-Maths Sdn Bhd & Ors [2021] 1 MLJ 549 and Majlis ATM were called upon to deliberate on guidelines had the force of law.

In the former, Lau Bee Lan JCA held at 566 – “.. there is a common denominator in both cases highlighted to us by the Plaintiff i.e. there is an enabling provision allowing the issuance of the “guidelines” in question. In Edwin Thomas (supra), the High Court held Practice Note No.1 of 1987, a set of guidelines has the force of law because it was issued under s.28 of the Industrial Relations Act 1967. On the other hand, in F&N Beverages Marketing (supra), the Guidelines for Carrying on Offshore Leasing Business in Labuan 2003 was held by the High Court to be made by the Lembaga Perkhidmatan Kewangan Labuan (respondent)

Franchise (Qualifications Of A Franchise Broker) Regulations 1999 (P.U.(A) 423 of 1999) made by the Minister pursuant to s.14(2) of the FA 1998; and

(ii) Franchise (Compounding of Offences) Regulations 1999 (P.U.(A) 424 of 1999) made by the Minister pursuant to s.41 of the FA 1998. In light of the above, with respect we make this observation that the submission on behalf of the Plaintiff that the Buku Panduan was issued by the Minister of Domestic Trade and Consumer Affairs pursuant to s.60 FA 1998 is misconceived.”

In the latter, Abdul Rahman Sebli JCA (as His Lordship then was) held at 445 – “What about the KKM guideline, does it have any force of law? With regret and with the greatest of respect to the panel of this court that decided Noor Shariful Rizal, we are unable to agree that the KKM guideline has the force of law. In the first place, unlike the army guideline, it was not made under any written law. The KKM guideline was merely a guideline issued by the Ministry of Health through a circular dated 3 September 2002 and signed by the Director General of the Ministry of Health. The fact that the KKM guideline makes references to the Dangerous Drugs Act 1952 as observed by this court in Noor Shariful Rizal does not clothe it with the force of law. … S/N Qg7QBi08Vkab8GsZe4hgFg It is patently clear that the purpose of the KKM guideline is to coordinate and update the procedure for the taking of urine samples in suspected drug abuse cases and as a guideline to the relevant agencies, including the armed forces. It was not meant to be a legal document having the force of law. For any guideline to have any force of law, it must be made pursuant to a power given by law. This is not the case with the KKM guideline”

The MDC Guidelines were issued for public information and its purpose was to - “(i) explain the obligations and responsibilities of healthcare advertisers;

(ii) describe advertising that is prohibited; and

(iii) outline the use of factual information in advertising.”

It is purely administrative in nature and does not have the force of law. Unlike the MDC Guidelines, the Legal Profession (Publicity Rules 2001) is a law enacted under Act 166. The precedents cited by the Applicant are irrelevant to their application.

This Court is in agreement with the Respondent that the maxim has no application in the present matter.