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2024 MarsdenLR 924
COURT OF APPEAL PUTRAJAYA
GENNEVA SDN BHD – Appellant
Versus
DATO VENGADASALAM LETCHUMI KANDAN – Respondent
[Criminal Appeal Nos: W-09-200-05/2022 W-09-201-05/2022 W-09-202-05/2022 W-09-204-05/2022 & W-09-205-05/2022]
The prosecution must prove properties are forfeitable before adjudicating third-party claims under the Anti-Money Laundering Act.
Headnote:(A) Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act, 2001 – Sections 55 and 61 – Rights of third parties to adjudicate claims – The High Court remitted third parties' claims to the Sessions Court for adjudication after the forfeiture application was dismissed – The court held that the dismissal of the forfeiture application does not negate third parties' rights to have their claims adjudicated. (Paras 12, 18, 22)
(B) Forfeiture proceedings – The court clarified that no order for forfeiture can be made until the claims of third parties are heard, and the prosecution must prove that the properties are forfeitable before proceeding with the claims. (Paras 19, 21)
Facts of the case: The Public Prosecutor filed a forfeiture application under the Act, which was dismissed by the Sessions Court. The High Court remitted the claims of third parties for adjudication, leading to the current appeal. (Paras 2-4)
Findings of Court: The High Court erred in remitting the claims as the forfeiture application must be resolved first. (Paras 21-22)
Issues: Whether third parties' claims can be adjudicated under s 61 before a forfeiture order is made. (Paras 12, 18)
Ratio Decidendi: The court ruled that the prosecution must first establish that the properties are forfeitable before third-party claims can be adjudicated, emphasizing the procedural requirements under the Act. (Paras 19-21)
Result: Appeal allowed, High Court's order set aside. (Para 22)
JUDGMENT
Introduction
[1] The primary issue in these appeals concerns the rights of third parties to adjudicate their claims under s 61 of the Anti-Money Laundering, Anti-Terrorism, Financing And Proceeds Of Unlawful Activities Act, 2001 ("the Act").
Background facts
[2] In 2019, the Public Prosecutor filed an application for a forfeiture order under s 55 of the Act in respect of properties seized from the appellant and four others. Thereupon, the Sessions Court issued the statutory notice under s 61 of the Act by way of gazette calling upon third parties who claimed an interest in the said properties to show cause why the properties shall not be forfeited to the Government.
[3] The respondents in these appeals are the third parties who responded to the notice. Both the appellant and the respondents filed affidavits to contest the application.
[4] On 27 August 2021, the Sessions Court dismissed the forfeiture application by the Public Prosecutor. The learned sessions judge went on to hold that in view of the dismissal, s 61 does not empower her to adjudicate the respondents claims Dissatisfied, the prosecution and the respondents lodged their respective appeals to the High Court against the aforesaid decisions.
[5] On 29 April 2022, the High Court Judge ("the Judge") having considered the arguments found that the sessions judge had not decided on the respondents claims and did not specify in her decisions whether the said claims were allowed or dismissed.
[6] Consequently, in respect of the respondent's appeals the High Court:
a. exercised its revisionary powers under s 31 of the Courts of Judicature Act 1964 , and s 325 of the Criminal Procedure Code to remit the respondents' claims to the Sessions Court for adjudication; and
b. dismissed the respondent's appeals without prejudice to their right to re-file an appeal against the Sessions Court decision in respect of their claims
[7] In respect of the prosecution's appeal, the High Court stayed the prosecution's appeal until the respondent's claims are adjudicated by the Sessions Court.
[8] On 11 May 2022, the appellant lodged the instant appeal against the High Court decision to remit the respondents' claims to the Sessions Court for adjudication.
Submissions
[9] It is the appellant's contention that under s 61, the Court is required to adjudge the claims of third parties only if and when the prosecution succeeds in its forfeiture application. It says that as the prosecution's forfeiture application in the instant case was dismissed by the sessions judge, it was not incumbent upon the Court to deal with the respondents claims It argues that the Judge consequently erred in remitting the respondents claims to the Sessions Court for adjudication when the prosecution failed to prove that the subject matter of the forfeiture application are forfeitable properties.
[10] Conversely, the respondents contend that their claims are separate and independent of the prosecution's forfeiture application. They say that the opening words of s 61 makes it clear that the dismissal of the forfeiture application does not take away or detract from their rights to have their claims adjudicated by the Sessions Court.
Statutory Provisions
[11] Before we consider, the rival submissions before us, it is convenient to set out the statutory provisions relevant to the appeal. They are:
Section 55
"(1) Subject to s 61, in any prosecution for an offence under subsection 4(1) or a terrorism financing offence, the Court shall make and an order for the forfeiture of any property which is proved to be-
(a) The subject-matter or evidence relating to the commission of such offence;
(b) Terrorist property;
(c) The proceeds of an unlawful activity; or
(d) The instrumentalities of an offence,
Where-
(aa) the offence is proved against the accused; or
(bb) the offence is not proved against the accused but the Court is satisfied that-
(i) The accused is not the true and lawful owner of such property; and
(ii) No other per
