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Prosecution against director of company at Syariah Court

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COMPANY LAW
Corporate personality – Prosecution against director of company at Syariah Court – Whether company could assume religion of shareholders – Whether Syariah Criminal Offences (Selangor) Enactment 1995 (‘SCOE’) only applicable to natural persons professing religion of Islam – Whether company could be prosecuted under SCOE

ZI Publications Sdn Bhd & Anor v Jabatan Agama Islam Selangor & Ors
[2020] 9 CLJ 774, Court of Appeal
- see the grounds of judgment here

Facts The first appellant had published a book entitled ‘Allah, Kebebasan dan Cinta: Keberanian Untuk Menyelaraskan Kebebasan Dengan Iman’ (‘the book’). The Mufti of Selangor extended his review to the Enforcement Division of the Selangor State Islamic Religious Affairs Department (‘JAIS’) and Jabatan Mufti Negeri Selangor that the book was not academic in nature and the discussions presented in the book contravened the true Islamic precepts. An official order by the Deputy Minister of Home Affairs was issued prohibiting the printing, importing, producing, reproducing, publishing, sale, issue, circulating, distributing, or possessing of the book, as well as its original English version. Based on a search warrant, the employees, officers, and the agents of the first respondent had raided, searched, seized, and confiscated 180 copies of the book from the first appellant’s office, and then arrested the second appellant and brought him to the JAIS office and an attendance bond was issued to him for the purpose of prosecution of the second appellant at the Syariah Court. The second appellant then filed an application for judicial review at the Federal Court to declare that section 16[1] of the SCOE as invalid, but was dismissed. However, the appellants pursued the issue on the constitutionality of the impugned section at the High Court but it was dismissed. The Court of Appeal ordered the matter to be sent back to the High Court for the substantive hearing of the judicial review but was dismissed. Hence, this appeal.

Issue Whether company could be prosecuted under SCOE?

Held The Court of Appeal held that the first appellant was a separate legal entity from its shareholders being a private company with limited liability incorporated under the Companies Act 1965. Thus, it could not assume the religion of its shareholders and the SCOE was only applicable to natural persons professing the religion of Islam unless there are express provisions in law to impose liability on a company or any other ‘artificial’ persons. Hence, the act of the first respondent in prosecuting the second appellant was wrong and was clearly an attempt to overcome the legal inability to prosecute the first appellant for a crime under the SCOE.

ZUL RAFIQUE & partners
{13 November 2020}