Trespass – Whether inspection on restaurant premises is lawful or conducted with mala fide (bad intention).

JMJ Food & Beverages Sdn Bhd v Mohamad Zukrillah Ismail & Ors [2016] 4 CLJ 368

• The JMJ Food and Beverages [JMJ] was the owner of a restaurant known as the Tandoor Grill (‘the restaurant’), a non-halal restaurant as it served alcoholic drinks as well.
• The ingredients used for cooking, however, were sourced from certified halal suppliers.
• JMJ displayed a banner on the wall of the restaurant which stated that from 10 July 2013 to 7 August 2013, it would be serving Ramadhan buffet and brochures to this effect were made avail-able to customers.
• Following a letter of complaint received by the Jabatan Agama Islam Perak (‘JAIPk’) in relation to the halal status of the restaurant, a raid was conducted on 24 July 2013.
• The inspection was conducted by three government agencies including the Ministry of Domestic Trade and Consumerism, JAIPk and the Department of Islamic Development Malaysia (‘JAKIM’) [AGENCIES].
• The brochures and the banner advertising about the Ramadhan buffet were seized from the restaurant.
• The AGENCIES asserted that since it did not possess a halal certificate, the banner and the bro-chures were likely to mislead or confuse Muslims into thinking that the restaurant was somehow halal.
• The entire raid/operation was televised and screened. The owner of the restaurant was investi-gated and subsequently prosecuted for an offence under the Trade Descriptions Act 2011 (‘the Act’).
• The prosecution was successful and JMJ then appealed.
• The issues for consideration in this appeal were;i. whether the AGENCIES had trespassed into JMJ’s restaurant; and ii. whether the inspection was carried out mala fide where the AGENCIES entry and pres-ence amounted to trespass.

• There was no unjustifiable intrusion by the AGENCIES as they had entered the restaurant under the legal power conferred by the Trade Descriptions Act 2011.
• The words reflected in the banner and brochures, and offered in the month of Ramadhan would definitely attract Muslim patrons, thus implying that the food served was halal when in fact the restaurant was certified as a non-halal outlet.
• As there were possibilities of confusion that could arise from JMJ’s act, the AGENCIES had a stat-utory duty to conduct further investigation as provided under the Trade Descriptions Act 2011.
• Therefore, the inspection was done on valid grounds and on the exercise of a function under the Act.
• Although JMJ had argued that the AGENCIES knew of the halal/non halal status of the restaurant, there is still a necessity to confirm it by the best evidence of physical inspection of the restaurant before any action could be taken.
• Thus, the AGENCIES could not be accused of committing trespass since the inspection was car-ried out in accordance with the law.
• In addition, JMJ carries the burden to prove mala fide. JMJ would have to show improper or bad motive to succeed.
• JMJ had questioned the issue of the necessity to carry out the inspection during the peak lunch hour and the presence of the large number of media personnel during the inspection. However, these two factors do not suffice as mala fide.