The standard of proof for property forfeiture under the Anti-Money Laundering Act is the civil standard of balance of probabilities, not beyond reasonable doubt.

[1] This is an appeal by the Public Prosecutor ('the appellant') against the decision of the Court of Appeal which set aside the order of forfeiture against the properties of the respondent, made by the Kuala Lumpur High Court pursuant to s 56(1) of the Anti-Money Laundering, Anti-Terrorism Financing And Proceeds Of Unlawful Activities Act 2001 ("the Act").

Brief Facts

[2] On 3 November 2011, the appellant filed a criminal application by way of a Notice of Motion for an order of forfeiture of the properties of the respondent and two others, pursuant to s 56(1) of the Act and for a notice to be published in the Gazette pursuant to s 61(2) of the Act calling upon any third party who has interest in the said properties to attend on the date as specified in the Gazette to show cause as to why the said properties should not be forfeited.

[3] Section 56 (1) of the Act states:

"... where in respect of any property frozen or seized under this Act there is no prosecution or conviction for an offence under subsection (4)(1) or a terrorism financing offence, the Public Prosecutor may, before the expiration of twelve months from the date of the freeze or seizure, apply to a judge of the High Court for an order of forfeiture of that property if he is satisfied that such property had been obtained as a result of or in connection with an offence under subsection 4(1) or a terrorism financing offence, as the case may be, or is terrorist property."

[4] In this case, there was no prosecution for an offence under s 4(1) of the Act. The properties had earlier been seized pursuant to orders of seizure made under ss 45(1) and 50(1) of the Act.

[5] By the said application, the appellant sought an order of forfeiture of the following properties of the respondent:

(a) A sum of RM7,274.60 in investment Account No: A80054198 with CIMB Bank Berhad Kuala Lumpur;

(b) A motorcycle BMW R 1200 RT bearing Registration No: WSX54;

(c) A motorcycle, Harley Davidson Sportster - XL 883N bearing Registration No: WTY54;

(d) A motorvan, Hyundai Starex TQ 2.5 GLS(A) bearing Registration No: WTM54; and

(e) A motorvan, Toyota Hilux Double Cab 2.5 AT bearing Registration No WSH 854.

(collectively called "the properties")

[6] The appellant's application was supported by the affidavits affirmed by a Deputy Public Prosecutor and two senior police officers, namely Deputy Superintendent Amran bin Yaakob ('the investigation officer') and Deputy Superintendent Ku Ismail bin Ku Awang. Both officers filed lengthy affidavits supported by voluminous exhibits. The other two respondents, namely Simathari a/l Somenaidu and Sharafaizan binti Abdul Samad, did not appear at the hearing to contest the application and the High Court thereupon ordered their properties to be forfeited to the government. The case before us is only between the appellant and the respondent. No third party made any claim to the properties. The respondent did not file any affidavit in reply. He elected to contest the application in person, by giving evidence on oath denying that the properties were acquired out of proceeds of an unlawful activity by showing, albeit unconvincingly, that they were acquired through legitimate sources of income including salary and loans from financial institutions. He also called three witnesses to testify on his behalf. In rebuttal, the appellant called three witnesses including the investigation officer, DSP Amran bin Yaakob. Thus, the decision of the High Court against the respondent was based on affidavit evidence as well as oral testimony of witnesses.

[7] The crux of the appellant's case was that the properties had been obtained out of the proceeds of an unlawful activity. The phrase 'unlawful activity' is defin