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SDN BHD V. PP HIGH COURT MALAYA, MELAKA AHMAD

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SDN BHD V. PP HIGH COURT MALAYA, MELAKA AHMAD Current Law Journal 74 Supplementary Series [2001] 7 CLJ a MALAYSIAN VERMICELLI MANUFACTURERS (MELAKA) SDN BHD v. PP b HIGH COURT MALAYA, MELAKA AHMAD MAAROP JC [CRIMINAL APPEAL NO: 42-1-2001] 23 JULY 2001 c 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 d 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, e 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 f Quality Act 1975 subject 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 g 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 h 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 - i Evidence Act 1950, ss. 5, 105 & 136 Malaysian Vermicelli Manufacturers [2001] 7 CLJ (Melaka) Sdn Bhd v. PP 75 This is an appeal against the Sessions Court judge’s decision to convict and a 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’). b 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 c 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 d 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 e 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 f be read conjunctively. The appellant argued that para 4, instead, should be read disjunctively. It concluded by 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. g 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 h possibility of other pipes being connected to the pipe which discharged effluent into the said river. i Current Law Journal 76 Supplementary Series [2001] 7 CLJ a 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, b 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 c 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 d 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 e 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 f 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 g 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 h 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. i Malaysian Vermicelli Manufacturers [2001] 7 CLJ (Melaka) Sdn Bhd v. PP 77 [2b] To interpret the sub-paragraphs under para 4 disjunctively as contended a 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 b 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 c 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 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. d [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 e 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 f 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. g [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.
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