The Public Prosecutor must prove on the balance of probabilities that properties sought for forfeiture are connected to predicate offences under the AMLATFA, failing which the application must be dismissed.

Hasnah Mohammed Hashim FCJ:

[1] The principal issue in this appeal is whether the Public Prosecutor (PP) can forfeit the property seized pursuant to the Anti-Money Laundering, Anti- Terrorism Financing Act 2001 (AMLATFA).

[2] The properties and monies were seized throughout the period between 25 November 2009 until 25 October 2010 on the basis that the properties and monies were procured from proceeds of unlawful activity under s 4 AMLATFA. The legal battle in respect of the subject matter of this appeal began in 2010 when the PP filed the notice of motion on 23 November 2010, two days before the expiry of the time period prescribed, to move the High Court to forfeit the properties and monies of the respondents pursuant to s 56(1) of the AMLATFA on the basis that the properties and monies were procured illegally as a result of or in connection with an offence under s 4(1) of the AMLATFA. The prosecution contended that the seized properties and monies were procured in connection with the commission of series of offences under ss 409 and 420 of the Penal Code (PC) (the predicate offences) by the accused, namely, Datin Paduka Phang Oi Choo (OC Phang), who was at that time the Managing Director of Lembaga Pelabuhan Klang (LPK), Law Jenn Dong, the Project Director of Kuala Dimensi Sdn Bhd, the 1st Respondent (Kuala Demensi), Bernard Tan Seng Swee, an architect from BTA Architect, and one Stephen bin Abok.

[3] On 4 November 2011 the learned High Court Judge dismissed the notice of motion filed by the PP pursuant to s 56(1) AMLATFA to forfeit the seized properties belonging to the respondents and ordered the properties and monies to be released to the respective respondents as the PP failed to prove that the seized properties were procured as a result of or in connection with an offence under s 4(1) of the AMLATFA as required under s 56(1) of the same Act. Dissatisfied, the PP appealed against the decision of the High Court and, on 13 November 2014 the Court of Appeal dismissed the PP's appeal as the properties and monies sought to be forfeited have been released to the respondents by virtue of the High Court Order dated 4 November 2011. Furthermore, there was no stay or preservation order which means that the substratum of the appeal was no longer in existence thus rendering the appeal academic.

[4] The PP appealed to the Federal Court on 28 March 2017. The Federal Court allowed the PP's appeal and ordered for the appeal to be remitted to the Court of Appeal to be heard on its merits. A different panel of the Court of Appeal heard the appeal on merits and dismissed the appeal and affirmed the High Court's order.

[5] Dissatisfied with the Court of Appeal's decision, the PP appealed to this Court. We heard the oral submissions of the respective counsel for the parties. As we needed time to consider the submissions of the parties and the records of appeal, we had indicated to parties that we will inform them of our decision once we are ready to do so. This is our decision and our reasons for having so decided.

The Properties

[6] The properties and monies seized from the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents sought to be forfeited by the PP are as described below:

(a) The monies in the sum of RM30,929,360.00 in an Account No 1554190773 belonging to Kuala Dimensi and the 2nd respondent at OSK Investment Bank Berhad, Level 7, Plaza OSK Jalan Ampang, 50450 Kuala Lumpur, seized on 25 November 2009;

(b) The monies in the sum of RM48,897.93 in a Current Account No 2-14231-0003375-8 belonging to Kuala Dimensi at RHB Bank Berhad, Ground & Mezzanine Floor, Plaza OSK Jalan Ampang, 50450 Kuala Lumpur, seized on 25 November 2009;

(c) The monies in the sum of RM6,683.66 in a Current Account No 10-002-001611-0 belonging to Kuala Dimensi at Affin Bank Berhad, Ground Floor, Menara Affin, No 80, Jalan Raja Chulan, 50200 Kuala Lumpur, which was seized on 8 January 2010;

(d) The monies in the sum of RM25,965.71 in a Current Account No 00