Back
2022 MarsdenLR 1668
HIGH COURT MALAYA PENANG
PP – Appellant
Versus
MULTI ELECTRICAL SUPPLY & SERVICES & ORS – Respondent
[Criminal Application No: PA-44-33-07/2020]
A bank account is not an instrumentality of an offence under AMLFTA, and reliance on CGHA for establishing online gambling as a predicate offence was legally flawed.
Headnote:(A) Anti-Money Laundering, Financing of Terrorism and Proceeds of Unlawful Activity Act 2001 – Sections 3, 4B, 50, and 56 – Application for forfeiture of bank accounts and properties due to alleged unlawful gambling activities – Disputing Respondents argued that the predicate offence was not adequately proven, and the Application was legally flawed. (Paras 1-110)
(B)
Legal Status of Properties – It was determined that bank accounts are not 'property' or 'things' under AMLFTA and hence cannot be forfeited. The court clarified the requirements for establishing an instrumentality of an offence. (Paras 66-100)
(C)
Predicate Offence – Court found that reliance on Section 4B of the Common Gaming Houses Act 1953 was erroneous as it did not apply to online gambling, leading to a failure in the application. (Paras 77-100)
(D)
Conclusion – The court held that the Applicant did not meet the burden of proof, resulting in the dismissal of the forfeiture application. (Paras 107-110)
JUDGMENT
Introduction
[1] The Public Prosecutor ('Applicant') filed an application under s 56(1) of the Anti-Money Laundering, Financing of Terrorism and Proceeds of Unlawful Activity Act 2001 ('AMLFTA') by way of a Notice of Motion as appearing in encl 1. Essentially the Applicant prayed for this Court to grant an order under s 56(2) of AMLFTA for the forfeiture of monies in bank accounts and of certain movable and immovable properties belonging to the respective respondents named in the Notice of Motion ('Application').
[2] The Application is supported by the Affidavits of Syafinas binti Shabudin for the Applicant (Enclosure 2), Sarjan Mohd Fadzlee bin Mohd Khalid as the Predicate Offence Investigating Officer (Enclosure 3), and Inspector Sopawan A/P Kin as the AMLFTA Investigating Officer (Enclosure 8).
[3] The Application is premised on the grounds that: (a) each of the respondent had committed the predicate offence of participating in, receiving proceeds from and making payments for an unlawful activity of online gambling under s 4B of the Common Gaming Houses Act 1953 (' CGHA '); (b) that the respondents' bank accounts were used to receive unlawful proceeds arising from that unlawful activity and further, that the bank accounts and the properties (where it applied) were used as the instrumentalities of an offence as provided under s 56(1) of AMLFTA; and (c) that the said unlawful activity and the instruments of offence are also subject matter or evidence relating to commissioning of the offence of money laundering under s 4(1) of AMLFTA.
[4] As a precursor to this Application the Applicant had issued against each of respondents (with exception of respondents 102, 103, 105 and 106 against whom seizures of immovable and moveable property were also made) the relevant orders pursuant to s 50(1) of AMLFTA for the seizure of all monies in their respective bank accounts. (Enclosure 10 - exhibit SK-2).
[5] With respect to respondent 102, an order for seizure of a landed property known as (Lot 170) No 46 , Jalan Cinta Alam, Country Heights, 43000 Kajang, Selangor, held under title GRN 222387 Lot 21834, Bandar Country Heights, Daerah Kuala Langat, Negeri Selangor under s 51(1) of AMLFTA was obtained on 4 February 2020 (Enclosure 10-exhibit SK-3) ('Property'). With respect to respondents 103, 105 and 106, on 18 December 2019 the Predicate Investigating Officer had pursuant to s 45(2) of AMLFTA seized 2 vehicles from respondent 103, 1 vehicle from respondent 104, 1 vehicle from respondent 105 and 1 vehicle from respondent 106 ('Vehicles') (Enclosures 10-exhibit SK-4).
Status Of Respondents
[6] Since the date of the filing of the Application, all those respondents numbers 1, 2, 3, 5, 8, 10, 11, 12, 13, 16, 17, 18, 19, 20, 22, 23, 29, 30, 34, 36, 40, 44, 45, 47, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 62, 63, 64, 65, 72, 73, 74, 75, 80, 81, 82, 83, 84, 85, 88, 89, 90, 91, 92, 93, 94, 96, 97, 99, 100, 101, 103, 104, 105 and 106 had chosen to enter into settlement terms with the Applicant and the respective Orders were made on 31 March 2021, 20 April 2021, 22 September 2021, 13 October 2021, 10 December 2021 and 6 January 2022 (Enclosures 320, 321, 384, 390, 391 and 392). The Vehicles have been released to the relevant respondents as part of the terms of settlement.
[7] No settlement was reached between respondents 28, 35, 43, 68, 70 and 102 and for that reason these respondents continue to dispute the Application ('Disputing Respondents').
[8] As for respondents 4, 6, 7, 9, 14, 15, 21, 24, 25, 26, 27, 31, 32, 33, 37, 38, 39, 41, 42, 46, 48, 57, 60, 61, 66, 67, 69, 71, 76, 77, 78, 79, 86, 87, 95, and 98 no action was taken to dispute the Application ('Non Disputing Respondents').
Dispute By Disputing Respondents
[9] Each of the Disputing Respondents had filed their respective Affidavits in Reply to the affidavits in support of the Application as follows: (a) for Respondent 28: Enclosure 251; (b) for Respondent 35: Enclosur
