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2021 MarsdenLR 3768
COURT OF APPEAL PUTRAJAYA
BADAN PERHUBUNGAN UMNO NEGERI PAHANG – Appellant
Versus
PP & OTHER APPEALS – Respondent
[Criminal Appeal Nos: W-05-11-01-2020 W-05-67-02-2020 W-05-68-02-2020 W-05-591-12-2019 W-05-592-12-2019 W-05-94-02-2020 W-05-95-02-2020 W-05-13-01-2020 & W-05-117-03-2020]
Prosecution must prove a direct link between seized funds and unlawful activities to justify forfeiture under the relevant Act.
Headnote:(A) Anti Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Section 56(1) – Forfeiture applications against various entities for alleged proceeds of unlawful activity linked to former Prime Minister's actions – The prosecution failed to prove that the monies were proceeds of crime due to lack of evidence connecting funds to alleged offences and the respondents' claims of legitimate use. (Paras 70-90)
(B) Requirement of proof – Prosecution must establish that seized funds are proceeds of unlawful activities – Merely showing money transferred is insufficient without linking it to criminal activity. (Paras 79-89)
Facts of the case: Various respondents received substantial sums from the former Prime Minister and argued these funds were legitimate reimbursements for goods and services provided, while the prosecution claimed they were proceeds from unlawful activities involving the misappropriation of 1MDB funds.
Findings of Court: The court found insufficient evidence to link the seized funds directly to any unlawful activity or to prove the predicate offence had occurred. The mere existence of funds in respondents' accounts by itself was ruled inadequate for forfeiture.
Issues: Determining whether the funds in the respondents' accounts were proceeds of an unlawful activity and if the application for forfeiture met the legal standards required.
Ratio Decidendi: For forfeiture to proceed, the prosecution must thoroughly demonstrate a clear link between the monies and criminal behaviour, which was not established in this case.
Result: Appeals dismissed.
JUDGMENT
Introduction
[1] There are nine appeals. The appeals are:
(i) W-05-11-01-2020 between Badan Perhubungan UMNO Negeri Pahang v. Public Prosecutor;
(ii) W-05-67-02-2020 between Public Prosecutor v. Pertubuhan Kebangsaan Melayu Bersatu;
(iii) W-05-68-02-2020 between Public Prosecutor v. Wanita MCA;
(iv) W-05-591-12-2019 between Public Prosecutor v. Badan Perhubungan UMNO Negeri Kedah & 4 Ors;
(v) W-05-592-12-2019 between Public Prosecutor v. Habib Jewels Sdn Bhd;
(vi) W-05-94-02-2020 between Public Prosecutor v. Binsabi Sdn Bhd;
(vii) W-05-95-02-2020 between Public Prosecutor v. Perano Sdn Bhd;
(viii) W-05-13-01-2020 between Public Prosecutor v. K & Z Enterprise Sdn Bhd; and
(ix) W-05-117-03-2020 between Public Prosecutor v. Hattatex Trading.
[2] These appeals arose from the prosecution's nine Notice of Motions for Forfeiture Applications under s 56(1) of the Anti Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (the Act).
[3] From the nine appeals, eight appeals are by the prosecution against the dismissal of the forfeiture application and one appeal is by Badan Perhubungan UMNO Negeri Pahang against the order of the High Court allowing forfeiture.
[4] All nine appeals were heard together as they raised a common issue ie whether the monies in the respondents' bank account were the subject matter or evidence relating to the commission of an offence under subsection 4(1) of the Act or the proceeds of an unlawful activity under s 23 of the Malaysian Anti Corruption Commission (MACC) Act 2009.
[5] For ease of reference, the appeals are divided into three groups as follows:
(i) Group One: Badan Perhubungan UMNO Negeri Pahang;
(ii) Group Two: Political Entity (Pertubuhan Kebangsaan Melayu Bersatu, Wanita MCA and Badan Perhubungan UMNO Negeri Kedah);
(iii) Group Three: Business Entity (Habib Jewels, Binsabi, Perano, K & Z Enterprise and Hattatex).
The Prosecution's Nine Forfeiture Applications
[6] As a brief background, the nine Notice of Motions had the following common features:
(i) All Notice of Motions were filed on 19 June 2019.
(ii) Each application is supported by the following affidavits:
a. Affidavit of the Deputy Public Prosecutor, Allan Suman;
b. Affidavit of the investigating officer for the predicate offence, Nur Aida binti Ariffin; and
c. Affidavit of the investigating officer under the Act, Nurul Huda binti Abdul Rahman or Woon Yee Nee.
(iii) In all nine cases, the property sought to be forfeited were monies in the respondents' bank account;
(iv) The monies in the respondents' bank account were freezed on 25 June 2018 and seized on 21 September 2018;
(v) The prosecution alleges the seized monies were the subject matter or evidence relating to the commission of an offence under subsection 4(1) of the Act or the proceeds of an unlawful activity;
(vi) The unlawful activity refers to the unlawful activity committed by Dato' Seri Mohamad Najib bin Tun Abdul Razak (DSN) under s 4(1) of the Act and also s 23 of the Malaysian Anti Corruption Commission (MACC) Act 2009;
(vii) The prosecution alleges DSN had abused his position as the Chairman of the Board of Advisors of 1 Malaysia Development Berhad (1 MDB) and as the Finance Minister and had caused a huge sum of monies to be transferred from 1 MDB's funds to his personal bank account for his own use. DSN, then transferred out the monies to various third party including the respondents herein.
(viii) The prosecution alleges during the period from 2011 to 2014, DSN has transferred or paid out monies from his personal account and deposited them into the respondents' bank account. The prosecution alleges these monies were proceeds of unlawful activity alleged against DSN.
(ix) The prosecution alleges the monies remaining in the respondents' bank account which were sought to be forfeited is part of the monies transferred or paid out by DSN to the respondents' bank account and thus were proceeds of the unlawful activity.
(x) It is common knowl
