The prosecution failed to establish a connection between the seized property and the alleged customs offense, thereby invalidating the forfeiture of the funds under AMLATFPUA.

JUDGMENT

Suraya Othman JCA:

[1] The Respondent (Public Prosecutor) alleged that the 1st Appellant (Simplex Sdn Bhd) had committed an offence under s 135(1)(g) of the Customs Act 1967 (Act 235) by under-declaring the value of the kitchen equipment ie Manitowoc Ice Machine, Taylor Soft Serve Freezer, Manitowoc half-dice, Menu-master oven and Manitowoc ice dispenser (hereinafter collectively referred to as "said goods") imported from the period of January 2010 until December 2011 and thereby the 1st Appellant had fraudulently evaded the customs duties and taxes imposed on the said goods at the time of import. The Respondent then on 23 September 2014 seized RM390,932.70 from the 1st Appellant's Maybank Berhad current account no 014280-402164 (the seized property) which the Respondent alleged were the proceeds of the unlawful activity or offence committed from the period of January 2010 until December 2011. The Respondent then made an application to the High Court pursuant to s 56(1) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUA) [Act 613] to forfeit the seized property.

[2] The learned High Court Judge allowed the Respondent/Applicant's application made under s 56(1) Act 613 to forfeit the seized property of RM 390,932.70 and any accretion to it held in the Maybank Berhad current account number 014280-402164 belonging to the 1st Appellant.

[3] Dissatisfied, the 1st Appellant appealed against the decision of the learned High Court Judge. We heard submissions from both parties and after perusing through the Appeal Records, we found merits in the appeal. Unanimously, we allowed the appeal. The decision of the learned High Court Judge was set aside. Herein below are our grounds.

Background

[4] By way of a Notice of Motion under s 56(1) Act 613 dated 24 June 2015, the Respondent/ Applicant moved the High Court for the orders as follows:

(i) to publish a notice in a Gazette calling upon any third party who claims to have any interest in the property to attend before the Court to show cause as to why the property shall not be forfeited; and

(ii) to forfeit the seized property of RM390,932.70 and any accretion to it held in the Maybank Berhad current account number 014280-402164 belonging to the 1st Appellant.

[5] The relevant affidavits filed by the Respondent/Applicant and the Appellants respectively in relation to the application are as follows:

(i) 'Afidavit' by Mohd Farez bin Rahman affirmed on 22 June 2015 (p 4-7 Jilid 3A);

(ii) 'Afidavit Prediket' by Lim Kee Yee affirmed on 22 June 2015 (p 8-31 Jilid 3A);

(iii) 'Afidavit AMLATFPUAA' by Mohd Samsol bin Md. Muzer affirmed on 22 June 2015 (p 2469-2482 Jilid 3 N A);

(iv) 'Afidavit Jawapan Responden-responden (1)' by Lim Chee Son @ Lim Chee Song affirmed on 30 July 2015 (p 2763-2799 Jilid 3 O A);

(v) 'Afidavit Jawapan (1) Pegawai Penyiasat Pertama' by Lim Kee Yee affirmed on 2 November 2015 (p 3323-3326 Jilid 3 P);

(vi) 'Afidavit Jawapan (1) Pegawai Penyiasat Kedua' by Mohd Samsol bin Md. Muzer on 2 November 2015 (p 3328-3334 Jilid 3 P);

(vii) 'Afidavit Jawapan Responden-responden (2)' affirmed on 18 November 2015 (p 3336-3351 Jilid 3 P);

(viii) 'Afidavit Jawapan (2) Pegawai Penyiasat Pertama' by Lim Kee Yee affirmed on 23 March 2016 (p 3352-3355 Jilid 3 P);

(ix) 'Afidavit Jawapan (2) Pegawai Penyiasat Kedua' by Mohd Samsol bin Md. Muzer on 23 March 2016 (p 3357-3362 Jilid 3 P).

[6] On 4 August 2016 pursuant to s 61 of Act 613, the Respondent caused a notice to be published in a Gazette P.U.(B) 352 calling upon any third party who claims to have any interest in the property to attend before the Court to show cause as to why the seized property shall not be forfeited.

[7] On 9 September 2016, the 1st Appellant filed an affidavit, affirmed by one Choong Weng Cheng, asserting its claim on the seized property deposing the reasons as to why the said property ought not to be forfeited.

Decision Of The High Court

[8] The learned High Court Judge had all