The prosecution must prove on a balance of probabilities that seized assets are proceeds of unlawful activity without linking every transaction to the predicate offence.

JUDGMENT

Ravinthran Paramaguru JCA:

Introduction

[1] This is an appeal against the decision of the High Court that allowed the application of the Public Prosecutor to forfeit monies in bank accounts belonging to Liew Ket Boh, Kenny Liew Ket Weng (Kenny Liew) and two others, namely Centrowest Trading and Sun Construction. The application was made under s 56(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (the AMLATFPUAA). Centrowest Trading and Sun Construction did not contest the application of the Public Prosecutor. Liew Ket Boh and Kenny Liew opposed the application. The High Court allowed the application of the Public Prosecutor. Now, Liew Ket Boh and Kenny Liew who were the third and 4th respondents in the High Court have appealed against the forfeiture order made against the monies in their seized bank accounts.

Affidavit Evidence Of The Public Prosecutor

[2] The brief background facts summarized from the grounds of decision of the learned High Court Judge and the affidavits filed by the Public Prosecutor are as follows.

[3] One Ferdinand Fascol complained that he lost the money that he had invested in a scheme initiated by an entity known as Grow Asia Capital Ventures (Grow Asia). He was led to believe that Grow Asia was involved in the business of exporting durians to China. He deposited a sum of RM12,000.00 into a current account under the name of Carousel Capital. Initially, he received a "return" on his "investment" but subsequently the payments ceased and he was unable to recover his deposit. He lodged a police report stating that he was cheated.

[4] The police officer appointed to investigate the police report was Sarjan Zairey Lee. He is the predicate offence investigating officer. He investigated the case under s 420 of the Penal Code. The Public Prosecutor did not charge anyone with a criminal offence at the conclusion of the investigation. Forfeiture proceedings were instituted instead.

[5] Sarjan Zairey Lee filed a lengthy affidavit to support the forfeiture application. Sarjan Zairey Lee confirmed in his affidavit that Ferdinand Fascol deposited RM12,000.00 on 9 November 2018 into a numbered account with CIMB Bank Berhad under the name of Carousel Capital. Ferdinand was promised a daily return of RM720.00 for a period of 78 days for his investment of RM12,000. However, Ferdinand only received a total of RM3,600.00 for the period 12 November 2018 to 15 November 2018. He did not receive the promised returns or the balance of his deposit.

[6] Sarjan Zairey Lee also discovered that 29 other complainants had lodged similar police reports in respect of their supposed investments in Grow Asia. The said complainants' police reports are exhibited in the affidavit of Sarjan Zairey Lee. The monies of these investors were deposited into the account of Carousel Capital and another account under the name of Grow Asia with CIMB bank. Sarjan Zairey Lee discovered that the bank accounts of Carousel Capital and Grow Asia received deposits of various sums of money from "investors" during the second half of 2018.

[7] Sarjan Zairey Lee also discovered that Grow Asia was issued with a business registration licence by the Dewan Bandaran Kota Kinabalu (DBKK). It was registered under the name of one Wilton Sikin (Wilton). The monies from these two accounts were subsequently transferred to the Ambank account of Centrowest Trading and the Hong Leong Bank account of Sun Construction. On the same day, ie 30 November 2018, the CIMB accounts of Carousel Capital and Grow Asia were closed.

[8] The Centrowest Trading and Sun Construction trading licenses issued by DBKK were registered in the name of Muhammad Jazrul bin Abdul Aziz (Jazrul). In his s 112 Criminal Procedure Code ( CPC ) statement, Wilton said that Jazrul wanted to use his name for the trading licence of Grow Asia and promised him a "commission". The apparent reason for using Wilton's name was to shield Jazrul's employer from being accou