Back
2021 MarsdenLR 2850
HIGH COURT MALAYA KUALA LUMPUR
PP – Appellant
Versus
WONG SK HOLDINGS SDN BHD & ANOR – Respondent
[Criminal Application No: WA-44-98-05/2020]
A stay of proceedings in criminal or quasi-criminal cases requires exceptional circumstances; mere constitutional challenges do not suffice.
Headnote:(A) Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Sections 56, 63 and 64 – Challenge to constitutionality of sections – Application for stay of forfeiture pending challenge before Federal Court – Affidavits by the 2nd respondent deemed inadmissible for non-compliance with statutory requirements – Application dismissed. (Paras 1, 9, 21, 30, 32)
Facts of the case: Public Prosecutor's forfeiture application against respondents for shares of Bright Packaging Industries on grounds of alleged absconding by the 2nd respondent. (Paras 2, 3)
Findings of Court: The court ruled the 2nd respondent's affidavits inadmissible and emphasized the strong public interest in proceeding with the forfeiture application. (Paras 21, 30)
Issues: Whether Sections 63 and 64 of the AMLATFPUAA are constitutional and if sufficient grounds exist for a stay of proceedings. (Paras 9, 30)
Ratio Decidendi: Courts should dismiss applications for stay in proceedings absent exceptional circumstances, emphasizing the strong public interest and urgency of criminal proceedings. (Paras 30, 32)
Result: Application for stay dismissed.
JUDGMENT
(Enclosure 83)
Introduction
[1] On 8 May 2020 the Public Prosecutor filed an application (Encl 1) ("Forfeiture Application") against the respondents under s 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("AMLATFPUAA"). By a notice of motion (Encl 83) dated 9 September 2021, the 2nd respondent applied for the Forfeiture Application to be stayed pending the disposal of an application for leave before the Federal Court.
Brief Factual Background
[2] In the Forfeiture Application, the Public Prosecutor seeks to forfeit 5,792,000 shares ("Impugned Shares") of Bright Packaging Industries Berhad ("BPI") which were seized on 5 August 2019 on the basis of s 4(1) of the AMLATFPUAA. The 1st respondent is the majority shareholder of BPI and the 2nd respondent is one of the directors and shareholders of the 1st respondent.
[3] In the Forfeiture Application, the Public Prosecutor seeks to treat the 2nd respondent as if he is a person convicted of a serious offence by virtue of s 63 of the AMLATFPUAA. This is borne by the alleged fact that the 2nd respondent has absconded.
[4] The Public Prosecutor also seeks to rely on s 64 of the AMLATFPUAA for this Court to make an order of forfeiture upon satisfaction of the conditions under paragraphs (a) and (b). The application of s 64 of the AMLATFPUAA in the Forfeiture Application is consequent upon the successful application of s 63.
[5] On 18 August 2021 the 2nd respondent filed by an application by way of a notice of motion (Exhibit "RW - 1" in encl 84) before the Federal Court. The application is registered as case No: BKA-1- 08/2021(W). It is an application for leave to challenge the constitutionality of ss 63 and 64 of the AMLATFPUAA. According to the learned counsel it has been fixed for hearing on 5 January 2022.
[6] On 9 September 2021, the 2nd respondent filed the present application for a stay of proceedings. The application for a stay of proceedings is premised on a challenge to be mounted by the 2nd respondent before the Federal Court against the constitutionality of ss 63 and 64 of the AMLATFPUAA.
[7] During case management on 11 August 2021 after all affidavits have been exhausted, the Forfeiture Application was fixed for hearing on 21 October 2021. During case management on 15 September 2021, the present application was fixed for hearing on 4 October 2021.
The Application
[8] In the application for a stay of proceedings, the 2nd respondent prayed for the Forfeiture Application to be stayed pending the disposal of the application for leave before the Federal Court. Affidavits filed for and against the application are as follows:
(a) "Afidavit Sokongan Responden Ke - 2" (Encl 84) affirmed on 8 September 2021 in Jakarta, Indonesia before a notary public by Wong Shee Kai, the 2nd respondent,
(b) "Afidavit Jawapan" (Encl 89) affirmed on 24 September 2021 by Norazihah binti Asmuni for and on behalf of the Public Prosecutor, and
(c) "Afidavit Jawapan Responden Ke - 2" (Encl 90) affirmed on 27 September 2021 in Jakarta, Indonesia before a notary public by Wong Shee Kai, the 2nd respondent.
[9] The grounds for the application for stay of proceedings may be briefly stated as follows:
(a) Sections 63 and 64 of the AMLATFPUAA are unconstitutional as they violate arts 5 and 8 of the Federal Constitution because:
(i) Section 63 of the AMLATFPUAA enables the Court, for the purposes of the AMLATFPUAA, to treat a person as if he had been convicted of a serious offence if the person absconds in connection with a serious offence,
(ii) Section 64 of the AMLATFPUAA enables the Court to make an order of forfeiture where a person by reason of s 63 is treated as if he had been convicted of a serious offence if the conditions under paragraphs (a) and (b) of s 64 are satisfied,
(b) other than a civil action commenced against the 2nd respondent by the Companies Commission of Malaysia vide Suit No: WA-22NCC-171-05/2020, there has been no p
