The appellant failed to prove that seized funds were proceeds of unlawful activity as required under AMLATFA, resulting in dismissal of the forfeiture application.

Introduction

[1] This appeal is directed against the decision of the learned judge of the High Court at Miri delivered on 29 September 2014 dismissing the notice of motion filed by the Public Prosecutor (the appellant) on 18 September 2013. The notice of motion sought an order of the learned judge that monies in 24 accounts belonging to the respondents in various banks in Labuan and Miri, seized under s 50(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) ("the AMLATFA") be forfeited pursuant to s 56(1) thereof.

Summary Of Facts

[2] Before we go more closely into the material facts, we would start off by pointing out that there are 24 bank accounts, not 25 as stated by the learned judge in his judgment, from which the appellant sought the order of the learned judge to forfeit the various sums deposited therein. This minor error was, in our finding, attributable to the error in para 1 of the notice of motion wherein after subpara "(ix)", roman numeral "(x)" was erroneously stated as roman numeral (xi) ending in the result with the wrong subpara number "(xxv)" being stated therein when it should have been "(xxiv)".

[3] The notice of motion is supported by the following affidavits:

a. affidavit of Deputy Public Prosecutor Noor Zalizan binti Lazarous affirmed on 18 September 2013 (the first affidavit);

b. affidavit of the investigating officer Superintendent of Customs Ahmad bin Talib affirmed on 18 September 2013 (the second affidavit);

c. affidavit of the investigating officer Superintendent of Customs Ahmad bin Talib affirmed on 18 September 2013 (the third affidavit);

d. affidavit in reply of Deputy Public Prosecutor Noor Zalizan binti Lazarous affirmed on 4 December 2013 (the fourth affidavit);

e. affidavit in reply of the investigating officer Superintendent of Customs Ahmad bin Talib affirmed on 4 December 2013 (the fifth affidavit);

f. affidavit in reply TPR II affirmed by Deputy Public Prosecutor Noor Zalizan binti Lazarous on 18 February 2014 (the sixth affidavit); and

g. affidavit in reply (IV) of the investigating officer affirmed by the investigating officer Superintendent of Customs Ahmad bin Talib on 18 February 2014 (the seventh affidavit).

[4] The respondents filed three affidavits opposing the application, viz:

a. affidavit in opposition affirmed by Toh Kah Ming on 31 October 2013;

b. affidavit in reply ii to affidavit in reply ii affirmed by Toh Kah Ming on 11 December 2013; and

c. affidavit in reply ii affirmed by Toh Kah Ming on 11 December 2013.

It is noteworthy that the second deponent of the appellant's affidavits, namely the Superintendent of Customs, Ahmad bin Talib, was the investigating officer of the case involving the respondents in connection with an offence of knowingly concerned in a fraudulent evasion of customs duty under s 135(1) (g) of the Customs Act 1967 (Act 235) which, as the appellant seeks to show in due course, is a predicate offence underlying the money laundering offence under s 4(1) of the AMLATFA.

[5] On 21 September 2012, the appellant, by an order issued pursuant to s 50(1) of the AMLATFA, directed the investigating officer to seize various sums of money amounting to RM1,340,737.10 in the respondents' 24 bank accounts. As can be seen from the first affidavit, the appellant was satisfied that the sums seized were related to an offence of money laundering and more specifically, the offence of engaging in a transact