Delivering the court’s unanimous decision, Chief Justice Tengku Maimun Tuan Mat said there was no compelling reason for the apex court to disturb the findings of facts made by the lower courts.
Sitting with Tengku Maimun on the three-member panel were Justices Hasnah Hashim and Rhodzariah Bujang.
The bench also declined to answer four legal questions identified for deliberation when leave to appeal was allowed on Nov 24 last year.
Property owner Ranjan Paramalingam and tenant Jude Micory Lobijin were also ordered to pay RM70,000 in costs to the association.
In their suit, Ranjan and Lobijin had claimed that the scheme was a source of public and private nuisance and that it was in breach of the Personal Data Protection Act (PDPA).
The association had erected a guardhouse and boom gate under a guarded neighbourhood scheme and collected information of non-members and visitors who entered the area.
The duo claimed the scheme was an illegal security business and that the approval given by the Kuala Lumpur City Hall (DBKL) was unlawful.
They also said they ought to be entitled to travel within the guarded neighbourhood area without obstruction.
In January 2021, the High Court dismissed the suit and held that the approval granted by DBKL to the association for the scheme was based on guidelines issued by the housing and local government ministry (now known as local government development ministry).
Those findings were affirmed by the Court of Appeal in June last year.
Lawyer Bastian Vendargon, appearing for the appellants, today submitted that the scheme was illegal and unconstitutional.
“The right of citizens to move freely under the scheme as guaranteed under Article 9(2) of the Federal Constitution is being curtailed,” he said.
He said the scheme was illegal as it was not based on a law passed by Parliament.
“Community policing cannot be undertaken without any enabling positive legislation,” said Vendargon, who was assisted by Anne Vendargon.
He cited Rukun Tetangga and Rela as community policing endeavours which have the sanction of law.
He said the Private Agencies Act 1971 also prohibits security guards stationed in the scheme from exercising powers normally associated with police officers.
“The PDPA does not permit private agencies to collect the personal data of people entering the scheme,” he added.
Lawyer Fahri Azzat, who appeared for the association, submitted that the appeal should not be entertained as the claim had been dismissed based on factual findings.
He said the Court of Appeal dismissed the plaintiffs’ appeal because of defects in pleadings and for lack of proof.
“The plaintiffs failed to plead a cause of action in nuisance – both public and private – against the defendant,” said Fahri, who was assisted by Iqbal Harith Liang.
He said the defendant’s primary defences were that it had administrative approval from DBKL to carry out the scheme and the plaintiffs failed to prove their claims.