JUDGMENT

Faiza Tamby Chik J:

1.The respondent/plaintiff has made a claim against the appellant/defendant at the Kuala Lumpur Sessions Court for damages for invasion of privacy rights alleged to have been committed by the appellant against the respondent. The appellant has filed an application pursuant to O. 14 r. 21(1)(a) of the Subordinate Courts Rules 1980 on 4 July 2000 to strike out the respondent's summons and statement of claim dated 2 February 2000 on the basis that the summons and statement of claim discloses no reasonable cause of action against the appellant. The appellant's application was heard by the Kuala Lumpur Sessions Court on 21 June 2001 and was dismissed with costs. This is the appellant's appeal against the whole of the Kuala Lumpur Sessions Court Judge's decision delivered on 21 June 2001 which dismissed the appellant's application with costs.

2.The background of the case is that on or about 1995, the staffs and agents of the appellant have taken a photograph of a group of kindergarten's pupils (including the respondent at an open area outside the kindergarten ("the said photograph")). The said photograph was said to be published in an advertisement in "The Star" newspaper on 21 July 1999 and "Sin Chew Jit Poh" on 22 July 1999 which carried the theme "Bonus Link Share Your Points" ("the said advertisement"). The respondent has made a claim against the appellant on the ground that the appellant's action in supplying the said photograph for the purpose of advertisement was said to have invaded the privacy of the respondent. The causes of action pleaded by the respondent in the statement of claim is as follows: (a) invasion of privacy, and (b) breach of confidence. The appellant has filed an application to strike out the summons and statement of claim on the ground that the summons and statement of claim discloses no reasonable cause of action and thus, ought to be struck out because privacy rights pleaded by the respondent is not recognised under Malaysian laws; and/or the respondent has not satisfied all the elements for the causes of action which he relied upon.

Section 3 of the Civil Law Act 1956 provides as follows:

3. Application of UK common law, rules of equity and certain statutes.

(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall:

(a) in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7th day of April 1956.

The English Common Law pertaining to privacy rights is stated in Halsbury's Laws of England, 4th edn (vol. 45) at p. 631, para 1383 which reads as follows:

1383. Infringement of privacy

A person does not commit a tort merely because he unreasonably invades the personal privacy of another; however, a recognised existing tort may served to protect privacy in particular circumstances. If a newspaper maliciously publishes information about a person's distant criminal past an action in defamation may lie. It is a trespass to enter a person's home without permission or to install a secret eavesdropping device. If a photographer sells to the national press a copy of a wedding photograph of someone who is now an object of public interest he might be sued for infringement of copyright. Persistent harassment by telephone calls could amount to an actionable nuisance.

If the facts do not fall within the boundaries of an existing tort then no action lies. To fly an aircraft over the plaintiff's house in order to photograph it is not actionable; nor is it libel to write that a well-known public figure keeps pornographic paedophilic material, if the statement were true. Using a telescopic camera to photograph activities in the plaintiff's bedroom does not meet the requirements of the tort of nuisance, and so is not actionable. To place a listening device in a hotel bedroom in order to record the guests' intimate conversation affords no action in trespass to the gues