属下非法拍照，雇主要负责？

• 上诉人（A）针对第一被告（1D），第二被告（2D），第三被告（3D）和第四被告（4D）提起诉讼。

1D：RELA成员（Angkatan Relawan Rakyat Malaysia）

2D：RELA总干事

3D：吉隆坡Jabatan Agama Islam Wilayah Persekutuan总裁（JAWI）

4D：马来西亚政府

案情：

1. 晚上11.30左右，A在2D和3D官员的联合行动中，在一家俱乐部被逮捕。A与其他被捕的人一起被捕并关在卡车里。
2. A要求2D和3D的人员允许她使用厕所，但是被拒绝。她被责骂并告诉她在卡车上小便。
3. A让她的朋友们用披肩给她围起来，让她小便。当A正在小便中，1D打开卡车的门，冲进来，拉下披肩，并在A蹲着的位置，拍了A的照片。卡车里的人都看着她，A被羞辱了。
4. 1D在刑事法典第509条文，被控侵犯隐私。1D认罪。他被定罪并被判处四个月监禁。
5. A声称她的隐私被侵犯，导致她被羞辱，精神受创伤和严重的精神折磨。她跟1D，2D，3D和4D索赔RM5,000,000。
6. 法庭判1D必须付RM100,000给A。2D，3D和4D不承担任何责任。
7. 针对2D，3D和4D（234D），A向上诉法院提出上诉。 1D没有上诉。

法庭宣判：

1. 1D在现场是以官方身份进行的。除了作为RELA成员，也是马来西亚政府的一名雇员，他还是专门协助JAWI进行行动。 1D是负责由15名JAWI和5名RELA官员组成的小组。
2. 因此，1D并不是自己而出现在那边，而是出于官方的指示。
3. 他不仅是在RELA的直接监督和指示，他的职责是确保参与行动的官员的安全，并负责监督那些被捕者。
4. 由于他在拍摄非法照片的时后，是他在执行的工作的中，所以他拍摄照片的行为与他的职责密切相关。
5. 234D有替代责任。因此，必须与1D共同承担责任。

• The appellant (A) had filed an action against the first defendant (1D), second defendant (2D), third defendant (3D) and fourth defendant (4D).

1D: a member of the RELA (Angkatan Relawan Rakyat Malaysia)

2D: the Director General of RELA

3D: the Director of the Jabatan Agama Islam Wilayah Persekutuan, Kuala Lumpur (JAWI)

4D: the Government of Malaysia.

Facts

1. At about 11.30 p.m, A was arrested at a club in a joint operation by officers of 2D and 3D. A together with other people arrested, were put into a truck.
2. A had requested from officers of 2D and 3D permission to use the toilet but was disallowed. She was scolded and told to urinate in the truck.
3. She asked her friends to circle her with a shawl so that she could pee. When A was urinating, 1D opened the door of the truck, rushed in, pulled down the shawl and took numerous photos of A in a squatting position urinating. A was humiliated when everyone looked at her.
4. 1D was charged under Section 509, Penal Code for invasion of privacy and pleaded guilty. He was convicted and sentenced to four months imprisonment.
5.  A claimed that her privacy had been invaded, resulting in her humiliation, trauma and serious mental anguish. She claimed general, aggravated and exemplary damages of RM5,000,000 from 1D, 2D, 3D and 4D.
6. A’s claim for general, aggravated and exemplary damages was awarded in the sum of RM100,000.00 against 1D only. 2D, 3D and 4D is held not liable.
7. A appealed to Court of Appeal against 2D, 3D and 4D (234D). 1D didn’t appeal.
8. In this appeal the question is whether the use of the camera by the 1D was “so closely connected with the acts that he was authorised to that, for the purposes of liability of the Government as his employer, his wrongful use may fairly and properly be regarded as made by him while acting in the ordinary course of employment”. If the wrongful act is not so connected then the employer is not responsible.

Held:

1. 1D’s presence on the scene was on an official capacity. Apart from being a RELA member, and thus an employee of the Government of Malaysia, he was also there to specifically assist JAWI carry out its operation. 1D was incharge of a group of fifteen JAWI and five RELA officers.
2. Therefore, 1D was not there on his own volition but on instruction.
3. He not only was under the direct supervision and direction of RELA, with his duties of ensuring the security of those who participated in the exercise, and to keeping an eye over those arrested.
4. As he took the unauthorized photographs, whilst in the course of the work or employment for which he was instructed to carry out, at a time when the operation was in progress, his act of snapping the photographs was so closely connected to his duties.
5. 2D, 3D and 4D is vicariously liable. Thus, liable jointly and severally with 1D.
6. The evidence of snapping the photographs being so closely connected to his duties not only was overwhelming.

Source: Maslinda bt Ishak v Mohd Tahir bin Osman & Ors [2009] MLJU 778

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