Public health considerations take precedence over economic interests in judicial review applications, especially in matters involving regulatory enforcement.

Introduction

[1] The applicant seeks leave of the court for the following orders:

(a) an order of certiorari to move into this Honourable court for the purposes of quashing the decision of the respondent dated 21 January 2010 which, inter alia , refuses the applicant's declaration of 18 January 2010, (pursuant to reg. 8A(1)(b) of the Control of Tobacco Product Regulations 2004 , as amended by the Control of Tobacco Product (Amendment) (No. 2) Regulations 2009 ) of the retail selling price for their new tobacco product (ie, the L&M 21's tobacco product);

(b) an order of mandamus directed at the respondent to recognize and give effect to the applicant's declaration of 18 January 2010 (pursuant to reg. 8A(1)(b) of the Control of Tobacco Product Regulations 2004 , as amended by the Control of Tobacco Product (Amendment) (No. 2) Regulations 2009 ) of the retail selling price for their new tobacco product (ie, the L&M 21's tobacco product);

(c) an Order of Prohibition to restrain and/or prohibit the respondent from acting on the decision dated 21 January 2010 which, inter alia , refuses the applicant's declaration of 18 January 2010 (pursuant to reg. 8A(1)(b) of the Control of Tobacco Product Regulations 2004 , as amended by the Control of Tobacco Product (Amendment) (No. 2) Regulations 2009 ) of the retail selling price for their new tobacco product (ie, the L&M 21's tobacco product);

(d) that there be a stay of the respondent's decision dated 21 January 2010 which, inter alia , refuses the appellant's declaration of 18 January 2010 (pursuant to reg. 8A(1)(b) of the Control of Tobacco Product Regulations 2004 , as amended by the Control of Tobacco Product (Amendment) (No. 2) Regulations 2009 ) of the retail selling price for their new tobacco product (ie, for L&M 21's tobacco product);

(e) all other necessary and consequential orders or directions, as deemed fit by this Honourable court; and

(f) costs of and incidental to this application be costs in the cause.

[2] On 2 September 2010, leave was granted for prayers (a), (b) and (f). Prayers (c) and (d) were refused. The applicant dissatisfied with the order of refusal of prayers (c) and (d).

Facts Of The Case

[3] A brief discussion of the relevant facts is necessary to place this application into proper context.

[4] On 14 July 2009, the applicant decided to introduce a new line of tobacco products ie, the L&M 21's tobacco products.

[5] The applicant submitted an application to the respondent for packaging and labeling approval (per "The Guidelines on Labeling and Graphic Health Warning") dated 29 August 2008 issued by the Ministry of Health under the said Regulations as amended by the Control of Tobacco Product (Amendment) Regulations 2008 on 8 October 2009. The respondent approved the said application on 21 October 2009.

[6] Next, the applicant was informed by the Minister of Health, vide his letter dated 21 December 2009 that there was to be fresh amendments to the said regulations ie, by way of the said Control of Tobacco Product (Amendment) (No. 2) Regulations 2009 which, inter alia , required the applicant to submit in a written declaration of their retail selling prices for each of their tobacco products, including their new tobacco products.

[7] The amendments to the said regulations came into effect on 1 January 2010.

[8] On 18 January 2010, the applicant had made the requisite written declaration of the recommended retail selling price of RM7.80 for their new tobacco products (which were to be