LEW CHA PAW v PUA YONG YONG (2009)
Fact of the case

Lew Cha Paw, one of the twelve plaintiffs, is residing at No. 3, Jalan Haruan, Batu 10 81300 Skudai, Johor. The defendants which are Pua Yong Yong and Pua Keng Siang, reside at house No. 4 located immediately next to the plaintiff’s residence. A chain-link fence coupled with zinc sheets separates the two houses.

Some misunderstandings arose between the plaintiffs and the defendants around February and March 2006. Subsequently the relationship between the plaintiffs and the defendants deteriorated to the extent that the one of the plaintiffs was charged and convicted for criminal intimidation against the defendants.

On 13 May 2006, the defendants installed five closed-circuit television (CCTV) cameras in their house. Four of the cameras are installed at the front porch while one is installed at the rear of the house. Out of these five CCTV cameras, only one CCTV camera which is camera number three located at the front porch is pointing directly at the plaintiffs’ house. This camera is attached to a nine feet pole which is about sixteen feet from the chain-link fence.

Disputing Issues that raised the case
The plaintiffs’ main complaint is that camera number three is directed and focused at and monitoring and capturing images of the plaintiffs’ front courtyard, and the camera at the rear of defendants’ house is directed and focused at and monitoring and capturing images of the rear portion of the plaintiffs’ house. As a result, the plaintiffs feel that they are being spied on and therefore their right to privacy have been infringed. Due to the defendants’ action, the plaintiffs were forced to put up zinc sheets along the chain-link fence to avert the defendants’ spying activities. The plaintiffs have been suffering emotional stress, strain and medical complications. The defendants’ action is a private nuisance as it amounts to unlawful interference with the plaintiffs’ use, comfort, enjoyment and interest over their house.

Consequently, the plaintiffs are claiming for RM500,000.00 in damages, exemplary and or punitive damages to be assessed, an injunction prohibiting the defendants from installing a CCTV camera directed the plaintiffs’ house, an order that the defendants remove, dismantle or destroy the cameras pointed at the plaintiffs’ house, and costs.

Decision of the Court and Rational of the Judgement

This case raises the important question of whether a person is entitled to carry out overt video surveillance on his neighbour’s property. This question is particularly pertinent today due to the popular utilisation of CCTV cameras and other sophisticated surveillance devices available in the market. The plaintiffs’ claim for private nuisance has not been made out as they have failed to show that the CCTV cameras have interfered with, disturbed or annoyed them in the enjoyment of their occupation of their house.

The plaintiffs’ other complaint relates to breach of privacy. The right to privacy is a fundamental human right. On the unusual facts of this case, the right to privacy consists of the plaintiffs’ right to private and family life and home. This is a basic right and need which everyone cherishes and holds dear. In holding the balance between privacy and safety, the Court must strike in favor of privacy in the particular circumstances of this case. The fact that one of the plaintiffs has been convicted for criminal intimidation against the defendants is no justification to put the plaintiffs under continuous intrusive video surveillance. Both the plaintiffs and the defendants are private individuals. Subjecting the plaintiffs to continuous overt surveillance is demeaning to the plaintiffs. The fact shows that the rule of law has prevailed and as such there is no justification for the defendants to carry on video surveillance on the plaintiffs. In the result, the right to privacy of the plaintiffs should be protected.

For the reasons above, the Court gives judgment for the plaintiff as follows:

* An order directing the defendants to forthwith dismantle and remove camera number three. * An injunction to restrain the defendants from installing any CCTV camera which points into or which is directed at the plaintiff’s house. * No order as to costs.

Critics on the Judgement
Based on the case, we highly support the decision of the court. It is because the court holds the full concentration on people’s privacy. The plaintiff claimed that one of the cameras is point to their front courtyard. They feel uneasy and stress with the installation of the camera. They feel that they are being spied on and therefore their right to privacy have been infringed. Even the defendants claimed that they install the CCTV for security and safety purpose, they did not have right to interrupt other’s privacy.
In this case, the defendant declared its intention is that the plaintiff’s main goal is camera number three. Conduct surveillance outrageous acts against the plaintiff brings with it the implied threat that the results of the monitoring which can be used for bad purposes to the interests of the plaintiff. In fact, this is clearly calculated to undermine the plaintiff's dignity, self-esteem, comfort and privacy. The defendant continued to put the plaintiff acts under the supervision of a blatant show of the plaintiff's failure to respect the dignity and autonomy.
Apart from that, the court also gives judgement for plaintiffs which no order as to costs. Based on the case fact, the plaintiff also claiming RM500,000.00 beside remove the camera that point to their house. The Court seems that did not entertain for the claiming. In our opinion, it may due to the amount that slightly huge for this type of case. The court just order the defendants to remove the camera that point to plaintiffs house.

REFERENCES

Leong, F. C. (2010, Marh 10). Lew Cha Paw Vs Pua Yong Yong. Retrieved from FooChengLeong.com: http://foongchengleong.com/2011/04/lew-cher-phow-lew-cha-paw-ors-v-pua-yong-yong-anor/
Leong, F. C. (2011, February 21). Right to Privacy in Malaysia: Do we have it? Retrieved from LoyarBurok: http://www.loyarburok.com/2011/02/21/right-to-privacy-in-malaysia-do-we-have-it/
Leong, F. C. (2012, March 19). My Neighbour Is Spying On Me! Retrieved from LoyarBurok: http://www.loyarburok.com/2012/03/19/neighbour-spying-me/