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2020 MarsdenLR 2598
HIGH COURT MALAYA IPOH
TAN HOO ENG – Appellant
Versus
TIMBALAN PENDAKWA RAYA & ORS – Respondent
[Originating Summons No: AA-24NCVC-196-05/2017]
The court upheld the validity of freezing and seizure orders under AMLATFA, determining that the lack of the Public Prosecutor's consent is not fatal to the charges, emphasizing compliance with constitutional provisions.
Headnote:(A) Anti-Money Laundering and Anti-Terrorism Financing Act 2001 – Sections 44(1), 50(1), 52A, and 56 – Appeal against freezing and seizure orders – Court found the freezing orders under s 44(1) and the seizure order under s 50(1) to be legally valid – It was determined the charges against the applicant had been appropriately initiated, and the enforcement of AMLATFA's provisions did not violate article 13 of the Federal Constitution – The retrospective effect of the amended Act was clarified based on the facts of the specific case of Lim Hui Jin – Failure to produce the Public Prosecutor's consent was not fatal as it can be cured under s 422 of the Criminal Procedure Code. (Paras 18, 26, 31, 46)
Facts of the case: Applicant challenged the validity of freezing orders issued in 2014 claiming they should have expired as no prosecution was initiated against her within 12 months based on newly enacted sections of AMLATFA.
Findings of Court: The freezing and seizure orders were valid as the applicant was charged under AMLATFA; s 52A and 56 did not apply retroactively.
Issues: The main issues included whether the freezing and seizure orders should have ceased due to the amendments in AMLATFA and whether the lack of consent from the Public Prosecutor invalidated the charges.
Ratio Decidendi: The court found that the legal provisions creating the freezing and seizure orders were constitutionally valid, and the enforcement measures were compliant with the law.
Result: Application dismissed.
JUDGMENT
Introduction
[1] This appeal before Your Lordships is against the order of this Court disallowing the application by the Applicant for this Court to declare that-
1.1 the Freezing Orders dated 30 April 2014 and 15 May 2014 issued against the Applicant under s 44(1) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 ("AMLATFA") (now known as and Proceeds of Unlawful Activities Act 2001, shall have no effect and shall be revoked;
1.2 the Seizure Order dated 24 July 2014 issued under s 50(1) of AMLATFA against the Applicant shall have no effect and shall be revoked; and
1.3 consequent to the issuance of the declarations sought as in paras 1.1 and 1.2, all accounts of the Applicant in CIMB and such other assets and properties of the Applicant listed in the Seizure Order dated 24 July 2014 shall be released immediately to the Applicant.
[2] I shall set out below the grounds that led to my decision.
Background
[3] The Applicant and one Lim Keck Eng owns 50% shareholding respectively in Syarikat Blue Star Moulding Sdn Bhd ("BSM"). Operational and Management issues pertaining to BSM are handled by the Appellant. Lim Keck Eng also owns 50% shareholding in another company, Syarikat Blue Star Sawmill Sdn Bhd ("BSS"). Both BSM and BSS are carrying out the business of wood processing since 2006 and shared storage and factory facilities.
[4] On 7 April 2014 Lim Keck Eng lodged police report Sg Senam No 002428/14 against the Applicant for the latter's alleged unauthorised sale of wood products belonging to BSM/BSS to various purchasers with sale invoices issued by and payment made to Syarikat Dyera-Tim Sdn Bhd ("DT"), a company where the Applicant was also a director and shareholder. The police report stated that the alleged transanctions that had been carried out by the Applicant for the period 2009-2013 amounted to approximately RM33 milion.
[5] Following the said police report, another police report, Sg Senam No 002950/14 dated 24 April 2014, was lodged by a police officer Muhammad Noorariff Shah bin Zainudin under s 4(1) AMLATFA.
[6] Consequent to the police report Sg Senam No 002950/14, a freezing order dated 30 April 2014, with a 90-day validity period commencing the date of issuance, was issued under s 44(1) AMLATFA ("Freezing Order dated 30 April 2014"), for "the total amount of money saved into CIMB Bank Bhd accounts" in the name of the Applicant as listed in Appendix A to the Freezing Order dated 30 April 2014.
[7] The Applicant's CIMB accounts as listed in Appendix A to the Freezing Order dated 30 April 2014 were as follows:
(i) 55 Fixed Deposit Accounts (Nos 50025720950001 - 50025720950055);
(ii) 1 Savings Account No 7031168993;
(iii) 2 Foreign Currency Accounts Nos 800005552440, 800009561931; and
(iv) 1 Current Account No 8004997963.
[8] The said Freezing Order dated 30 April 2014 was served on the Applicant on 7 May 2014 and on CIMB on 15 May 2014. (Refer Exhibit THE-3 to the Applicant's affidavit in support of this application affirmed on 2 May 2017).
[9] Subsequently, in connection with the same Report Sg Senam No 002950/14, a second freezing order dated 15 May 2014, with a 90-day validity period commencing the date of its issuance, was issued under s 44(1) AMLATFA for the Applicant's CIMB Current Account No 8004997963 ("Freezing Order dated 15 May 2014"). It appears to this Court that this same account had already been a subject of the Freezing Order dated 30 April 2014.
[10] On 24 July 2014, the Deputy Public Prosecutor issued a seizure order under s 50(1) AMLATFA ("Seizure Order dated 24 July 2014") against the Applicant's CIMB accounts as listed in the Annexure to the said Seizure Order as follows:
(i) 55 Fixed Deposit Accounts (Nos 50025720950001 - 50025720950055);
(ii) 1 Current Account No 8004997963; and
(iii) 1 investment account No RSP 15971.
[11] The said Seizure Order dated 24 July 2014 was served on the Applicant and CIMB on 25 July 2014. (Refer Exhibit THE-4 to the Applicant's affidavit in s
