The Federal Court discussed its view on the position of law under the Amendment Act, Anti-Money Laundering and Anti-Terrorism Financing (Amendment) Act 2014 (“the AMLATEPUA”) which was in effect from 1 September 2014.
There were freezing orders under Section 44 of AMLATEPUA issued on 2nd February 2015 and 12th February 2015, inter alia, against the accounts which belongs to the Appellants by the investigation officer of the Royal Malaysia Police.
Subsequently, on 13th March 2015, orders to seize movable properties were issued by the investigating officer against the first, thirteenth, eighteenth and nineteenth Appellants’ vehicles at the High Court and the Court of Appeal.
Initially, the freezing and seizure orders were issued on grounds that the investigating officer had reasonable suspicion that the seized and frozen properties were subject matters of a criminal offence under Section 4(1) of AMLATEPUA.
Further, a Notice of Seizure of Moveable Properties in the Financial Institutions under Section 50 of the AMLATEPUA was issued by the Deputy Public Prosecutor to disallow those financial institution from dealing with such frozen properties under Section 44 of the AMLATEPUA.
On 15th February 2016, the Appellants then applied for the release of the freezing and seizure orders against their accounts and vehicles on the ground that the orders ceased to have effect by virtue of Section 52A since the Appellants were never charge with an offence under the AMLATEPUA within 12 months from the date of freezing and seizure orders.
Unfortunately, it was argued and replied by the Attorney General’s Chambers that the frozen and seized properties of the Appellants could not be released as there were applications for the issuance of warrants of arrest against the Appellants by the Public Prosecutor.
The Appellants then file a notice of motion to dismiss the warrants of arrest issued and cancel the freezing and seizure orders made against their banking accounts, savings in the Lembaga Tabung Haji and other savings belonging to the applicants including the frozen vehicles under the Respondents’ orders. However, the said motion was dismissed by the High Court and the Appellants made an appeal to the Court of Appeal.
The Court of Appeal however, dismissed the Appellant’s appeal, retained and affirmed the decision of the High Court. Hence, the appeal by the Appellants in the High Court.
Questions of Law before the Federal Court
Whether the Court of Appeal was correct in dismissing the appeal against the decision of the High Court in dismissing the appellants’ notice of motion.
Whether the Freezing and Seizure orders have reached its limitation period.
Whether there was an application for forfeiture by the Public Prosecutor under Section 56 of AMLATEPUA.
Whether the Court of Appeal’s decision was against the clear and mandatory provisions of Section 56(1) of the AMLATEPUA and Section 57 of the Evidence Act 1950.
Decision of the Federal Court
The Federal Court allowed the appeal by the Appellants and set aside decisions of the Court of Appeal and the High Court. Zawawi Mohd Salleh FCJ in delivering judgment of the court states as follows: -
It was clear that there were no charges against the Appellants for an offence under Section 4(1) of the AMLATEPUA or a terrorism financing offence. Further, no application has been made by the prosecution under Section 56 of the AMLATEPUA for an order for forfeiture of the properties. He further highlighted that the delay by the prosecution in prefer charges against the Appellants and applying to the High Court contravened Article 5(1) of the Federal Constitution i.e. the right of an accused person for a fair trial within a reasonable period. In addition, Court of Appeal’s justification to justify the delay by taking judicial notice that investigations ought to be conducted from all angles was inappropriate and unreasonable.
His Lordship also stressed on the provisions of Section 52A and 56(3) of the AMLATEPUA in order to balance the wide powers of the enforcement agency and the need to protect the rights of possession and peaceful enjoyment of the property guaranteed under Article 13 of the Federal Constitution since the freezing and seizure of the properties could only be made on the ground ‘if the enforcement agency has reasonable ground to suspect that an offence’.
Under Section 52A of the AMLATEPUA, a person will be considered as ‘prosecuted’ when the court has the knowledge of the said offence. In this case, it can be seen that there was no warrant of arrest applied and/or issued to prosecute the Appellants. Thus, the Appellants were not ‘prosecuted’ within the period provided under the provision and the freezing and seizure orders issued ceased to have effect as the 12 months period had expired without any charges against the Appellants.
The decision of the Court of Appeal was also against the clear and mandatory provisions of the law as the burden of duty of the enforcement agency and the prosecution is not something that could be taken judicial notice of by the court and could not be made a ground for setting aside the mandatory requirement of Section 56(1) of the AMLATEPUA. Further, Section 57 of Evidence Act 1950 has listed the instances which allows court to take judicial notice. In the appeal below, the Court of Appeal made an inference where the ‘Appellants had taken advantage of the shortcomings of the systems used by the financial institutions to transfer the monies into their account’ was not based on any evidence adduced before the court.
For these reasons, it was held that the Respondents had breached the rules of natural justice by depriving the appellants the opportunity to be heard under the common law before a decision affecting their rights were made. Hence, the appeal is allowed and the High Court and Court of Appeal decisions were dismissed.
In the event where a person’s property is being frozen and seized, whilst at the same time there was no prosecution made against him within the twelve (12) months of limitation period of its freezing and seizure orders, and when no application for forfeiture of property under Section 56 was made by the Public Prosecutor, the seized property shall be released to the person against whom his property was seized.
The right of an accused person for a fair trial within a reasonable period is guaranteed under the Federal Constitution and was protected under this case. Similarly, this case reflects the importance of natural justice in order to prevent an accused from being deprived of the opportunity to be heard under the common law.
It is important to note that the above principles are similar and were applied by the Malaysian court when deciding on the same issue in the recent decided case of Lim Hui Jin v. CIMB Bank Bhd & Ors  8 CLJ 327 (COA).
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