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2021 MarsdenLR 2612
HIGH COURT MALAYA KUALA LUMPUR
GENTING MALAYSIA BERHAD – Appellant
Versus
PESURUHJAYA PERLINDUNGAN DATA PERIBADI – Respondent
[Application For Judicial Review: WA-25-83-02/2020]
The request for personal data by tax authority is unlawful without specific justification, infringing privacy rights protected under the Personal Data Protection Act.
Headnote:(A) Personal Data Protection Act 2010 – Section 4, 39(b)(ii), 45(2)(a)(iii) – Income Tax Act 1967 – Section 81 – Judicial review application filed to quash decisions of tax authority demanding personal data disclosure from applicant without consent, deemed unlawful. Court emphasized right to privacy under Federal Constitution and found Revenue's actions to be fishing expeditions lacking reasonable suspicion of misconduct (Paras 1-154).
(B) Right to privacy – Failure of Revenue to prove necessity of data disclosure for tax assessment – Court ruled general demands are unlawful, and statutory provisions must protect personal data specifically (Paras 63-100).
(C) Regulatory responsibilities – Commissioner and Deputy Commissioner's abdication of duty; their stance undermined by legal precedent prohibiting fishing expeditions (Paras 108-155).
(D) The court found that the personal data protection principles in the PDPA must prevail over general provisions of the ITA in light of the applicant's protection obligations under law (Paras 124-130).
JUDGMENT
[1] This is a judicial review application filed by the applicant for reliefs prayed for in its notice of application dated 7 February 2020.
[2] By this application, the applicant is seeking inter alia the following reliefs:
(i) an order of certiorari to quash the decision of the first and second respondent contained in the letter of the second respondent to the third respondent dated 8 November 2019 which was conveyed by the third respondent to the applicant vide the third respondent's electronic mail ("email") dated 12 November 2019 and the second respondent's letter dated 29 January 2020 (the "personal data decision") which purports to hold the applicant may/should disclose information in the applicant's possession pertaining to its customers which falls within the definition of "personal data" in s 4 of the Personal Data Protection Act 2010 (" PDPA ") to the third respondent pursuant to s 39(b)(ii) of the read together with s 81 of the Income Tax Act 1967 without obtaining prior consent of the customers;
(ii) a declaration that the personal data decision is invalid in law;
(iii) an order of certiorari to quash the decision of the third respondent in adopting and conveying the decision of the first and second respondents;
(iv) a declaration that the Director-General of Inland Revenue's ("DGIR") decision is invalid in law;
(v) a declaration that the assertions, claims and/or demands made by the third respondent in purporting to request or demand access to, or disclosure of, the personal data from the applicant purportedly pursuant to, among others, s 81 of the Income Tax Act 1967 (" ITA ") and/or ss 39(b)(i), 39(b)(ii) and/or 45(2)(a)(iii) of the PDPA (the "DGIR's demands") are invalid in law;
(vi) a declaration in that the third respondent is bound by and cannot disregard the provisions of the PDPA generally, and ss 39(b) and/or 45(2)(a) in particular, including the personal data protection principles enumerated in s 5(1) of the that protect the personal data (hereinafter referred to as "protection"), by purporting to request or demand access to, or disclosure of, such personal data from the applicant or to otherwise process such personal data until and unless the consent of the applicant's customers is obtained by the third respondent or the third respondent has demonstrated that there is reasonable suspicion that any specific, identified and/or identifiable customer had not complied with any material provision of the ITA relating to the assessment or collection of tax to warrant a disclosure of the personal data of that particular customer, and/or the third respondent has established that there is no real, actual and substantive prejudice against the purpose for which such personal data had been collected by the applicant to the satisfaction of the High Court as evidenced by an appropriate Court order for disclosure to the third respondent;
(vii) a declaration that Part V of the ITA generally, and s 81 of the in particular, do not entitle or empower the third respondent to disregard the protection that protects the personal data, by purporting to request or demand access to, or disclosure of, such personal data from the applicant, or to otherwise process such personal data, until and unless the consent of the applicant's customers is obtained by the third respondent or the third respondent has demonstrated that there is reasonable suspicion that any specific, identified and/or identifiable customer had not complied with any material provision of the relating to the assessment or collection of tax so as to warrant a disclosure of the personal data of that particular customer, and/or the third respondent has established that there is no real, actual and substantive prejudice against the purposes for which such personal data had been collected by the applicant to the satisfaction of the High Court as evidenced by an appropriate Court order for disclosure to the third respondent;
