Registered medical practitioners have the right to dispense Ivermectin under the Poisons Act 1952, which cannot be overridden by subsidiary legislation.

JUDGMENT

Collin Lawrence Sequerah JCA:

(A) Introduction

[1] This is an appeal by the Appellants against the decision of the High Court dated 24 March 2022 in dismissing their Originating Summons (OS) filed for certain declaration of their rights as medical practitioners pursuant to provisions of the Poisons Act 1952 and the Sale of Drugs Act 1952 and related subsidiary legislation.

(B) Background Facts

[2] The 1st Appellant is a qualified medical practitioner and registered under the Medical Act 1971 and was at all material times, a specialist consultant doctor at Mahkota Medical Centre Sdn Bhd, at No 3, Mahkota Melaka, Jalan Merdeka, 75000 Melaka.

[3] He is also the President of the Malaysian Association for the Advancement of Functional and Interdisciplinary Medicine ("MAAFIM") and brought this action on behalf of himself and all other members of MAAFIM.

[4] MAAFIM is a national association which is registered under the Societies Act 1966. Its members comprise medical registered practitioners with varied specialist qualifications in a diverse range of medical fields.

[5] The 2nd Appellant is a qualified and registered medical practitioner under the Medical Act 1971 and operates a clinic under the name and style of Klinik Medik at 9156 Jalan Bandar 4, Taman Melawati, 53100 Kuala Lumpur. He is also a member of MAAFIM.

[6] On 14 June 2021, a group of officers identifying themselves as officers of the Pharmaceutical Services Division from the Health Department of Selangor confiscated Ivermectin medicines from the 2nd Appellant's clinic.

[7] The Appellants then filed the instant OS asking for various declaratory orders which were dismissed by the High Court. Hence, this appeal.

(C) Parties Submissions

Appellants

[8] In the OS, the Appellants asked for the following reliefs (in Bahasa Malaysia):

"a. Pentafsiran peruntukan-peruntukan:

I. Akta Racun 1952 termasuk s 2, 12(1)(c), 18(1)(c), 19 dan 21(1) dan (2); dan

II.Peraturan-peraturan Racun 1952 termasuk Jadual Pertama Bahagian 1 Kategori B;

b. Satu Penentuan sama ada seorang pengamal perubatan adalah berhak untuk mendispens (dispense) Ivermectin sebagai suatu bahan ramuan kepada pesakit-pesakitnya di bawah Akta Racun 1952 dibaca bersama dengan Peraturan-peraturan Racun 1952;

c. Satu Penentuan sama ada seorang pengamal perubatan boleh mendispens Ivermectin kepada pesakit-pesakitnya bagi tujuan rawatan perubatan pesakit tersebut sahaja_dan selaras dengan s 19 Akta Racun 1952 Peraturan- peraturan Racun 1952;

d. Kos; dan

e. Lain-lain relif yang mana Mahkamah yang Mulia ini anggap sesuai, wajar dan adil 1 inter alia, bidang kuasa sedia ada Mahkamah yang Mulia ini."

[9] The English translation of the reliefs read as follows:

"a) The interpretation of the provisions of:

i. the Poisons Act 1952 including ss 2, 12 (1)(c), 18(1)(c), 19 and 21(1) and (2); and

ii. the Poison Regulations 1952 including the First Schedule Part 1 Category B.

b) A Determination of whether a registered medical practitioner is entitled to dispense Ivermectin as an ingredient to his or her patient under the Poisons Act 1952 read together with the Poison Regulations 1952.

c) A Determination of whether a registered medical practitioner can dispense Ivermectin to his or her patients for the purposes of the medical treatment of such patient only and in compliance with s 19 of the Poisons Act 1952 and the Poison Regulations 1952.

d) Declarations, as appropriate, ensuing from the determinations and interpretation as aforesaid.

e) Costs; and

f) Such further or other relief which this Honourable Court deems fit, appropriate and just to order under, inter alia, the inherent jurisdiction of this Honourable Court."

[10] The significance of setting out both the English and Bahasa Malaysia is with regard to the omission to plead in the Bahasa Malaysia version for the relief of "declarations as appropriate, ensuing from the determinations and interpretation as aforesaid" under prayer d) above.

[11] The Appellants submitted that the learned HCJ had er