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2021 MarsdenLR 1442
COURT OF APPEAL PUTRAJAYA
TEO CHEE KONG – Appellant
Versus
PP – Respondent
[Criminal Appeal Nos: S-06A-5-01/2018 S-06A-7-01/2018 S-06A-8-01/2018 S-06A-13-04/2018 S-06A-14-04/2018 & S-06A-18-06/2018]
A stay of execution in criminal proceedings is granted only under special circumstances; strong public interest favors expediting the trial process.
Headnote:(A) Courts of Judicature Act 1964 – Section 89 – Anti-Money Laundering and Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Section 56 – Application for stay of execution following Conditional Forfeiture Orders granted against the applicant's property based on overlapping charges – Court reaffirmed that an appeal shall not operate as a stay unless the court orders so, and the applicant failed to prove special circumstances for the stay. (Paras 15, 16, 21, 32)
(B) The court held that strong public interest exists in prosecuting serious criminal offenses and that criminal processes should not be interrupted by interlocutory proceedings. (Para 33)
Facts of the case: The applicant sought a stay on a Court of Appeal order affirming a High Court's prohibitory order on the applicant's property following charges for money laundering. The application was dismissed for lack of merit. (Paras 1, 4, 40)
Findings of Court: The court found no merit in the applicant's submissions that the appeal would be rendered nugatory and reinforced the importance of expeditious resolution of criminal proceedings. (Para 40)
Issues: The primary issue was whether special circumstances existed to warrant a stay of proceedings in light of an ongoing criminal trial. (Para 30)
Ratio Decidendi: The court concluded that the applicant failed to establish that not granting a stay would cause irreparable harm, adhering to the established principle that public interest favors proceeding with criminal trials without undue interruptions. (Para 33)
Result: Application dismissed.
JUDGMENT
Prelude
[1] The Applicant filed a Notice of Motion pursuant to s 89 of the Courts of Judicature Act 1964 (CJA 1964) and rr 78 and 137 of the Rules of Federal 1995 (ROFC 1995) for an order of Stay of the Court of Appeal Order dated 23 November 2020 ("the said COA Order") which affirmed the High Court Prohibitory Order dated 13 December 2017 pending the disposal of the Applicants' appeal in the Federal Court Criminal Appeal vide the appeal No 05(L)-18-01/2021(S) and 5 other appeals.
[2] After scrutinizing the written submission submitted by counsels for Applicant and Respondent and their respective oral submissions, it is the unanimous decision of the Court of Appeal that there are no merits in the Applicants' application. We handed our reasoning hereinbelow.
The Salient Procedural Facts
[3] It is pertinent to appreciate the background facts before this Motion.
[4] The Applicant had explained the background facts in its written submission. We reproduce the background facts based on the written submission.
[5] On 11 July 2017, the Respondent had filed an application vis-a-vis the forfeiture of property without prosecution under s 56 of the Anti-Money Laundering and Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA 2001) in the High Court against the Applicant's monies in 67 bank accounts.
[6] In the meantime, the Respondent also filed a separate forfeiture proceeding in the High Court against 65 pieces of lands in Sabah which were held by the Applicant vide the High Court Criminal Application No BK1-44(A)-30/8-2017.
[7] Conditional Forfeiture Orders ("the said Conditional Forfeiture Orders) dated 13 December 2017 were granted by the High Court against both the bank accounts and the lands.
[8] 2 hours after the delivery of the said Conditional Forfeiture Orders, at the same day, the Applicant was charged with a total of 146 accounts of charges in the Sessions Court pursuant to s 4(1)(a) & (b) of AMLA which overlapped with the same assets in the banks and lands.
[9] Sequel to the institution of the 146 accounts of charges against the Applicant, the Applicant applied to the High Court for reference of 12 constitutional questions to the Federal Court pursuant to s 84 of the CJA 1964.
[10] The said application was dismissed by the High Court on 6 June 2018 ("S 84 HC Order").
[11] Dissatisfied with the decision, the Applicant filed an appeal against the said Conditional Forfeiture Order and s 84 HC Order to the Court of Appeal.
[12] In the Court of Appeal, the Court had made 2 findings:
1.1 That the Conditional Forfeiture Order be set aside and both forfeiture of land and bank accounts be remitted back to High Court for re-hearing by another High Court judge; and
1.2 The dismissal of s 84 HC Order be affirmed.
("the COA Decision")
[13] Being dissatisfied with the COA decision, the Applicant filed an appeal to Federal Court. The appeal is yet to be heard.
[14] Meanwhile, the applicant filed the present stay application to stay the Court of Appeal order dated 23 November 2020 which affirmed the High Court's prohibitory order pending the disposal of the Appellant's appeal in the Federal Court.
The Law On Stay Of Proceeding
[15] The law on stay of proceeding is trite and settled. Reference can be seen in a plethora of authorities, amongst others are, Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Sebausaha Makmur Bhd, , Sharma Kumari a/p Oam Parkash v. PP ; and Pendakwa Raya v. Tetuan Wan Shahrizal, Hari & Co & Public Islamic Berhad.
[16] In Kosma Palm Oil (supra), Augustine Paul JCA (as he then was) held that:
"(1) An appeal shall not operate as a stay of execution unless the Court so orders. The paramount consideration governing an application for a stay of execution is that the appeal to this Court, if successful, should not be rendered nugatory. If upon balancing all the relevant factors, this Court comes to the conclusion that an appeal would be rendered nugatory without the grant of a stay or other inter
