Punishment under Subsidiary Legislation & Hugging and Kissing Case :p

Hi guys,

Some of my classmates ask me "what are the max penalty / punishment that can be imposed by the subsidiary legislation?" this is the answer:-

Section 27 of the Interpretation act 1948 and 1967, confers a general power to the delegated subsidiary to impose penalty by fine not exceeding RM 1,000 and Imprisonment not more than 6 months. This is howver subject to the power delegated by the parent statute. The Parent statute may confer powers on the delegated subsidiary to imposed higher punishment"

Given example would be section 132(2) of the Commodities Trading Act 1985, which gives power to the delegated subsidiary to imposed fine not exceeding RM 5,000 or imprisonment up to 12 months, or both for breach of specified provisions in the regulation.

Secondly for the case of couple holding hand, kissing and hugging at the KLCC garden, I finally remembered the  name of the case. It was Ooi Kean Thong & Siow Ai Wei v DPP 2006 [FC]. They were convicted under  section 8(1) of Park (Federal Territory) 1981. The issue was whether section 8(1) of Park (Federal Territory) 1981 (delegated subsidiary) is ultra vires section 102 of the Local Government Act 1976 (parent statute) and the effect is that the Applicants have been deprived of their constitutional right of freedom and whether the charge against them is contrary to Article 5(1) of the Constitution.). The charge was challenged on the ground of substantive ultra vires and unconstitutionality.

Section 102 of the parent act gives power to the S/L in the scope of - “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”. The S/L acting under this section imposed a provision for offend for any act in the scope of “behaving in a disorderly manner”. The court held that kissing and hugging is within the meaning of “behaving in a disorderly manner” and the S/L had not acted outside the power confers to them. The by-law under the S/L is within the scope of section 102 and therefore cannot be held ultra vires the parent act. 

For the second issue whether, the by-law is unconstitutional in regards of sect 5 and 8, FC? The by-law is only applicable within the compound of the klcc park. As the keeper of the park, DBKL can guard they territory with such by-law. If a person doesn’t want to be bound to such regulation, it is his choice to not enter the park. The court held that, there was no infringement of personal liberties and therefore the by-law cannot be said to be unconstitutional. 

~~~Till Next Time...~~ Da~~~