Taman Buaya Langkawi Sdn Bhd v Pendakwa Raya (B-09-8-01/2020)

Content

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO. B-09-8-01/2020 ANTARA TAMAN BUAYA LANGKAWI SDN BHD … PERAYU (NO. SYARIKAT: 239964-D) DAN PENDAKWA RAYA … RESPONDEN (Dalam Mahkamah Tinggi Malaya di Shah Alam Dalam Negeri Selangor Darul Ehsan Rayuan Jenayah No. BA-42ES-2-05/2019 Antara Taman Buaya Langkawi Sdn Bhd .. Perayu Dan Pendakwa Raya … Responden) CORAM: KAMALUDIN BIN MD SAID, JCA RAVINTHRAN PARAMAGURU, JCA GUNALAN MUNIANDY, JCA 2 JUDGMENT Introduction [1] The appellant was charged under the Wildlife Conservation Act 2010 with three charges under section 125(d) before the Sessions Court. Another charge was preferred under section 10(b) of the International Trade in Endangered Species Act 2008. The instant appeal concerns the offences under the Wildlife Conservation Act 2010 (the WCA). Back ground facts [2] The appellant was issued a “Dealers Licence/Taxidermist” under the WCA. Section 125(d) of the Act criminalizes the breach of conditions stated in the said licence. It reads as follows:

Subsection

(1) The licensing officer may, after considering the application made under section 12, approve or refuse the application.

Subsection

(2) In the case of an application for a special permit, the licensing officer may approve the application only after obtaining the approval of the Minister.

Subsection

(3) Where an application for a licence, permit or special permit is approved, the licence, permit or special permit shall be granted upon payment of the prescribed fee.

Subsection

(4) A licence, permit or special permit may be granted subject to such conditions or restrictions as the licensing officer thinks fit to impose.

Subsection

(5) The decision of the licensing officer to grant or not to grant a licence, permit or special permit shall be communicated to the applicant by notice in writing as soon as practicable. (emphasis ours) Section 35 The Director General may, with the approval of the Minister, by order published in the Gazette, prescribe conditions with respect to the granting of licences, permits and special permits and without prejudice to the generality of the foregoing may in particular prescribe-

Subparagraph

(ii) part or derivative of wildlife which may be taken; 5

Subparagraph

(ii) each year or open season; and

Subparagraph

(iii) each State, in respect of each protected wildlife or any part or derivative of wildlife; and

Subsection

(1) A licensed dealer shall keep and maintain a record consisting of the following particulars:

Subsection

(2) Any licensed dealer who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding six months or to both. (emphasis ours) [6] The first argument of counsel for the appellant was that Condition No. 10 did not receive approval from the Minister and was not gazetted under section 35 of the WCA. Counsel submitted that section 35 empowers the Director General with the approval of the Minister to create subsidiary legislation to prescribe conditions for the granting of licences and permits. However, this was not done in respect of Condition No. 10 which was imposed by the licensing officer on the “Dealer’s licence/Taxidermist” that was issued to the appellant. Counsel for the appellant also argued that the Sessions Court and the High Court had rendered section 35 otiose because they held that section 14 gives a separate power to the licensing officer to impose conditions on the licence. He further submitted that the correct reading of section 14 is that the licensing officer can only impose conditions that are already provided in the WCA or conditions that are gazetted under section 35 pursuant to the power of the Director General and the Minister. In other words, the licensing officer cannot create a new condition and impose it on the licence that he issues. [7] On the other hand, learned DPP argued as follows. She submitted that the power of the licensing officer under section 14 is different from the power of the Director General under section 35. Section 14 is in respect of the power of the licensing officer to impose conditions on the licence that is granted to an applicant whereas 7 section 35 is in respect of conditions governing grant of licences. She also referred to other sections in the WCA that mandate the gazettement of various matters provided therein (see sections 34, 47,133 and 134). However, section 14 contains no such stipulation. [8] The second argument of counsel for the appellant is that the record that should be prepared and kept by the appellant under section 37 of the WCA is similar to the requirement in Condition No. 10. The difference is that there is no reference to the official “Buku Daftar” in section 37. It follows that Condition No. 10 is an additional condition that did not satisfy section 35 of the WCA. The response of the learned DPP is that Condition No. 10 is a separate condition that can be imposed under section 14. Our Decision [9] In our opinion, section 14 is a separate and independent provision that allows the licensing officer to impose conditions on the licence that he grants. The conditions are not necessarily conditions that had been enacted in a subsidiary legislation pursuant to the power of the Director General under section 35. We came to this conclusion based on the different language employed in respect of the purpose of the conditions in section 14 and section 35. Section 14 states that a licence “may be granted subject to such conditions as the licensing officer thinks fit to impose”. Thus, section 14 is operative at the time a licence is issued. This is the reason that the said conditions as in the case of the impugned Condition No. 10 were printed on the licence. On the other hand, section 35 says that the Director General with the approval of the Minister may prescribe “conditions with respect to the 8 granting of licences”. Furthermore, the same section provides that the said power is also in respect of regulation of the hunting season, types of wildlife that may be hunted, quota of licences and the like. Thus, the conditions under section 35 are linked to government policy and are more general in nature as they govern the granting of licences whereas section 14 provides for specific conditions that are imposed by the licencing officer on the licence that is granted. [10] In our opinion, there is nothing in the WCA that suggests that the conditions that can be imposed under the authority of section 14 are limited to conditions that are prescribed by the Director General under section 35. Such a reading would do violence to the plain language of section 14 which stands independently of any other provision. And as pointed out by the learned DPP, section 14 does not require the conditions imposed by the licensing officer to be gazetted. [11] We have also given anxious consideration to the argument of counsel for the appellant that section 35 would be rendered otiose if the licensing officer can impose ungazetted conditions on the licence. We find that such a fear is unfounded. As we said earlier, the conditions referred to in section 35 appear to be more general in nature to govern the granting of licences as opposed to conditions imposed on licenses that are actually granted. In fact, various subsidiary legislation under section 35 have been published in the Gazette to give effect to government policy in relation to wildlife hunting and quotas as we said earlier (see Wildlife Conservation (Quota of Licence) Order 2013, Wildlife Conservation (Hunting Prohibited Areas) Order 2013, Wildlife Conservation (Close Season) Order 2016 etc). 9 [12] In respect of the power of the licensing officer, counsel for the appellant also submitted that section 14 if read separately from section 35, would result in him having too much power. For good measure, counsel for the appellant recalled the words of Lord Acton that “power corrupts and absolute power corrupts absolutely”. Our short answer to that argument is that Parliament had in clear and unequivocal language given the power to the licensing officer to impose conditions on the licence that as he sees fit. Assuming that any condition that is imposed is plainly unreasonable or irrational, the judicial review process is available to any dealer such as the appellant to challenge it. But it is not the function of the court to find a way to restrict that power by reading into section 14 words that link it to section 35. For that reason, the second argument of counsel for the appellant that Condition No. 10 is a repeat of section 37 is also without any merit. It is a separate condition imposed on the licence under the authority of section 14. [13] For all the above reasons the appeal is dismissed and we order the trial to proceed in the Sessions Court. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Putrajaya Dated: 28th January 2022 10 Parties Appearing: For The Appellant: Tan Sri Muhammad Shafee Bin Abdullah Wee Yeong Kang [Messrs Shafee & Co] For The Respondent: Norzilati Izhani Binti Zainal @ Zainol Deputy Public Prosecutor Attorney General’s Chambers