ISMAIL HOLDINGS SDN BHD 1. AIN ARJUNA BINTI AZIZ ZAMAN 2. KEMENTERIAN PERDAGANGAN DALAM NEGERI DAN HAL EHWAL PENGGUNA NEGERI SEMBILAN 3. KEMENTERIAN PERDAGANGAN DALAM NEGERI DAN HAL EHWAL PENGGUNA 4. KERAJAAN MALAYSIA

Pihak-pihak: Bagi Pihak Perayu : Normah Mohamad Desa Tetuan Normah Desa & Co. Bagi Pihak Responden : Mohammad Sallehuddin bin Md Ali Jabatan Peguam Negara DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN NO.: BA-25-15-03/2021 Dalam perkara mengenai surat permohonan Pemohon bertarikh 22.1.2021 dan Borang permohonan bertarikh 8.2.2021 Dan Dalam Perkara Mengenai surat Responden Kedua bertarikh 26.3.2021 Dan Dalam Permohonan suatu Permohonan untuk Perintah Certiorari Dan Dalam Perkara mengenai Seksyen 5A Akta Kawalan Bekalan 1961 Dan Dalam Perkara mengenai Jadual 1, Akta Mahkamah Kehakiman 1964 1 Dan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 ANTARA ISMAIL HOLDINGS SDN BHD (No. Syarikat: 900648-V) …PEMOHON DAN 1. AIN ARJUNA BINTI AZIZ ZAMAN 2. KEMENTERIAN PERDAGANGAN DALAM NEGERI DAN HAL EHWAL PENGGUNA NEGERI SEMBILAN 3. KEMENTERIAN PERDAGANGAN DALAM NEGERI DAN HAL EHWAL PENGGUNA 4. KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT [1] There is before me an application for leave to apply for judicial review under O 53 of the Rules of Court, 2012 (“ROC”) [2] The judicial review application is against the direction made by the 2nd respondent to inter alia compel the director of the applicant, one 2 Dato’ Sri Ismail bin Abdur Rahman (“Dato’ Sri Ismail”), to give evidence or otherwise for his statement to be recorded by the 2nd respondent. [3] The 2nd respondent’s direction was in the purported exercise of power in the course of an investigation under s 8(1) of the Control of Supplies Act 1961 (“CSA”). [4] As is the requirement of O 53 r 3(3), the applicant had lodged a copy of the statements and affidavits relating to the judicial review to the Attorney General's Chambers. The Attorney General (“AG”) is objecting to this application for leave. [5] The brief factual background of the case by the applicant that leads to this application is as follows. By an agreement dated 8.8.2017, Boustead Petroleum Marketing Sdn Bhd (“Boustead”) had appointed the applicant as its dealer to carry on exclusively the sale by retail of motor fuel products at a service station to be operated by the applicant (“the petrol station”). [6] A dispute had arisen, resulting in the termination of the said agreement, which is now subject to multiple ongoing legal actions at the Shah Alam High Court. As a result of the termination of the said agreement, the applicant had issued a letter dated 22.1.2021 to the putative 2nd respondent informing that it would close the operation of the petrol station on 29.1.2021. 3 [7] In response thereto, the putative 2nd respondent wrote to the applicant vide a letter dated 27.1.2021, which inter alia reads as follows: Walaubagaimanapun, menurut Akta Kawalan Bekalan 1961 dan Peraturan-Peraturan Kawalan Belakan 1974 pihak pengusaha stesen minyak diwajibkan untuk menjalankan operasi perniagaan bagi memastikan tiada halangan kepada mana-mana orang bagi mendapatkan bekalan. Oleh itu pihak YBhg Dato’ Sri perlu memberikan pemakluman beserta justifikasi yang munasabah kepada pihak ibu pejabat KPDNHEP serta meyakinkan kepada pihak PKPNDHEP Negeri Sembilan bagi permohonan penutupan stesen bagi mengelakkan dari sebarang kesulitan kepada pengguna kelak. [8] The putative 2nd respondent had issued a further letter dated 10.2.2021 insisting that the applicant was obliged to carry on with the operation of the petrol station until otherwise decided by the putative 2nd respondent. The said letter also indicated that action would be taken against the applicant if it fails to comply with the direction to carry on with the operation of the business. [9] After a few exchanges of letters between the applicant, its solicitors and the putative 2nd respondent, the putative 2nd respondent on 3.3.2021 directed the applicant to operate the petrol station within 14 days thereof. The applicant could not accede to the said direction 4 in view of a Court’s ruling for the status quo in respect of the petrol station to be maintained. The letter dated 8.3.2021 states as follows: Untuk makluman Tuan, pada hari ini Mahkamah telah mengarahkan pihak BHP dan pihak kami untuk memastikan status quo bagi Stesen Minyak tersebut dipatuhi sementara menanti pelupusan permohonan injunksi pihak BHP. [10] The putative 2nd respondent then issued a notice in writing on 26.3.2021 requiring Dato’ Sri Ismail to present himself at the office of the putative 2nd respondent in Seremban (“the said requisition”) in respect of an ongoing investigation under the CSA. [11] The said requisition, made under s 8(1) of the CSA, is now the subject matter of this application for leave for judicial review. [12] In the application for the judicial review, the applicant is seeking an order of certiorari to quash the said requisition. [13] The applicant also seeks a declaration of the failure of the putative 1st and 2nd respondents to reply to the applicant’s letter 22.1.2021 and a further failure of the putative 1st and 2nd respondents to decide in respect of the applicant’s application in a Form dated 8.2.2021 contravenes the law, ultra vires and therefore invalid. The AG’s Objection 5 [14] The AG’s objection to the application for leave is mainly on the basis that the said requisition made in the course of an investigation under s 8(1) of the CSA is not amenable to judicial review. The learned Federal Counsel (“FC”) referred me to the judgment of the Federal Court in Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349 FC. The aforesaid case carries the proposition that the actions or decisions of a public authority in the exercise of its powers in the course of criminal investigation or enquiry were not open to judicial review. [15] The same proposition can also be seen in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2014] MLJU 1869 FC. The analysis [16] Let us begin at the beginning. What is the purpose of s 8(1) of the CSA? In my view, the exercise of power under s 8(1) is to establish if an offence has been committed under the CSA. Subsection (3) of s 8 even empowers the putative 2nd respondent to impound and detain any book or document produced in compliance with any requisition if, in his opinion, it “contains evidence of the commission of an offence” under the CSA. [17] So, what does this entail? It simply means that the said requisition issued under s 8(1) of the CSA was to assist the putative 2nd respondent in investigating a possible offence under the CSA. 6 Criminal investigations should not be amenable to judicial review. In delivering the judgment of the Federal Court in Latheefa Beebi Koya, Abu Samah Nordin FCJ, after having referred to Empayar Canggih, held as follows: It was held in that case that an exercise of power in the course of a criminal investigation is not open to judicial review under O 53 of the RHC. To hold otherwise would be exposing the criminal investigative process of all law enforcement agencies in the country to constant judicial review which surely could not have been the intention of Parliament. [18] The next issue that has to be addressed is what would be the legal implication of ignoring the said requisition under s 8(1) of the CSA? The answer, I believe, can be found in s 8(4)(a) of the CSA which states inter alia any person who contravenes or fails to comply with subsection (2) or obstructs or impedes the “Controller or any supplies officer in the lawful exercise of any of his powers shall be guilty of an offence”. The refusal of the applicant through its director, Dato’ Sri Ismail, to comply with the said requisition would constitute an offence under s 8(4) of the CSA. The granting of the leave would mean that the applicant is allowed to challenge the said requisition with impunity. This cannot be done. This Court will not allow itself to be used as an instrument for the commission of any offence. This application for leave is frivolous. [19] In any event, it is my considered view that the exercise of the power under s 8(1) of the CSA by the putative 2nd respondent is not an 7 administrative decision that can be reviewed under O 53 of the ROC. It is an exercise of a statutory function and was part of an investigative process towards a possible criminal prosecution under the CSA. To allow an application of this nature would set a precedent and open the floodgates that would practically put criminal investigative processes of all law enforcement agencies to a halt. [20] In the circumstances, the application for judicial review is misplaced and frivolous since the statutory power exercised by the putative 2nd respondent is not amenable to judicial review; Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 CA. [21] The application for leave is therefore refused. Tarikh: 07 Oktober 2021. (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Shah Alam. 8