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2024 MarsdenLR 1206
HIGH COURT MALAYA KUALA LUMPUR
WAN AHMAD FARID WAN SALLEH, J
ROSLI DAHLAN – Appellant
Versus
DATUK AHMAD TERRIRUDIN MOHD SALLEH & ORS – Respondent
[Judicial Review Application No: WA-25-139-04/2024]
The exercise of discretion under s 50 of AMLA is subject to judicial review in appropriate circumstances, particularly in cases alleging mala fide, but mere allegations of false information do not establish such mala fide.
Headnote:(A) Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Section 50 - Judicial review of Seizure Order issued by Deputy Public Prosecutor - The court found that the exercise of discretion under s 50 is amenable to judicial review in appropriate circumstances, particularly where mala fide is alleged. (Paras 67(a) and 67(b))
(B) Jurisdiction of the Court - The court emphasized the importance of not interfering with ongoing investigations unless there is clear evidence of mala fide. (Paras 67(c) and 67(f))
Facts of the case:
The Applicant challenged the Seizure Order issued under s 50 of AMLA, claiming wrongful actions by PDRM and alleging mala fide in the freezing and seizure of his bank accounts. (Paras 9-12)
Findings of Court:
The court ruled that while the investigative process is generally not subject to judicial review, it can be challenged if mala fide is established. The court found no evidence of mala fide against the DPP. (Paras 67(a) and 67(c))
Issues: Whether the investigative actions of enforcement agencies are amenable to judicial review and under what circumstances. (Paras 49(a) and 49(b))
Ratio Decidendi: The court held that the DPP's discretion under s 50 is not unfettered and must be exercised lawfully, but mere allegations of false information do not suffice to prove mala fide. (Paras 67(e) and 67(f))
Result: Application for leave to commence judicial review refused. (Para 68)
The Parties
[1] The Applicant is a senior advocate & solicitor and a founding partner of the legal firm M/s Rosli Dahlan Saravana Partnership.
[2] The 1st putative Respondent is the Attorney General of Malaysia. Pursuant to art 145 of the Federal Constitution, read together with s 376 of the Criminal Procedure Code (" CPC "), the 1st putative Respondent has the authority and responsibility over the 2nd putative Respondent in the exercise of his powers as the Deputy Public Prosecutor.
[3] The 2nd putative Respondent is the Deputy Public Prosecutor ("DPP"), who had issued a Seizure Order purportedly under s 50 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("AMLA") against the Applicant.
[4] The 3rd putative Respondent is the Inspector General of Police and has authority and responsibility under the Police Act 1967 ("Police Act") over the 4th to 7th putative Respondents in the exercise of their powers as officers of the Money Laundering Crime InvestigationTeam ("AMLA Team"), Secretariat of the Inspector General of Police("UKPN").
[5] The 8th putative Respondent is the Royal Malaysia Police ("PDRM") and the enforcement agency under the Police Act, which is responsible for the maintenance of law and order, the preservation of peace and security of Malaysia, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence.
[6] The 9th putative Respondent is the Government of Malaysia.
The Factual Background
[7] This is an application for leave for judicial review.
[8] The factual background of the case as reflected in the Statement in Encl 3 and the affidavit in support of this application in Encl 2 ("AIS-2") is as follows.
[9] On 29 December 2023, the Applicant filed a Judicial Review Application No WA-25-420-12/2023 ("JR No 420") against PDRM, the Immigration Department of Malaysia ("JIM") and their officers. The application in JR No 420 was to challenge, inter alia, the conduct of the respondents therein, which led to the alleged wrongful arrest, remand, freezing of all bank accounts and travel ban issued against the Applicant ("1st JR").
[10] The challenge in the 1st JR was against the purported mala fide actions, decisions and omissions of PDRM, JIM and their officers. The procedural improprieties raised in the 1st JR are as follows:
(a) The PDRM had purportedly orchestrated a false nexus between the Applicant and Police Report No 4381/23 by Air Asia against i-Serve based on an incident in 2018, which has been classified as fraud under s 420 of the Penal Code.
(b) At all material times, the Applicant insisted that he is not related in any way whatsoever to the alleged criminal offence, if at all, as reflected in the Police Report No 4381. In any event, the Applicant was not even named in the said Police Report No 4381.
(c) Based on Police Report No 4381, the PDRM had arrested the Applicant on 26 October 2023 at around 10:00 p.m., which, according to the Applicant, had adversely affected, oppressed and prejudiced him ("Arrest").
(d) The Applicant asserted that his Arrest was orchestrated.
(e) During his Arrest, the Applicant notified the arresting officers of his Obstructive Sleep Apnea (OSA) condition. If he were to be detained overnight, the Applicant would need his CPAP machine. This was denied and according to the Applicant, he had suffered from recurring acute bronchitis and breathlessness as a result of the denial.
(f) The Applicant was not examined nor was any statement recorded from him that night.
(g) At the Magistrates Court in Jalan Sultan Abdul Halim the next day, the PDRM failed to obtain a 7-day remand order. Despite the Magistrate ordering that the Applicant be released the same evening, the PDRM continued to detain the Applicant without any investigation/examination being done.
(h) Instead, the Applicant was brought to Menara KPJ, where a group of reporters were on standby to
