Chan Eng Leong v Albany Bin Hamzah, DSP (WA-25-112-04/2021)

1.

CHONG BEE CHOO … APPLICANTS

1.

2.

3.

4.

GOH CHOON KIM … RESPONDENTS

This was an application for judicial review under Order 53 of the Rules of Court 2012 (‘RC 2012’) by the Applicants to challenge two Orders of Release of Property under sub-s 60(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of S/N WZAjchl3Q0ty/wu5jvrA Unlawful Activities Act 2001 [Act 613] (‘AMLA 2001’) dated 6.1.2021 issued by the 1st Respondent (‘R1’) with the consent of the Deputy Public Prosecutor (‘DPP’) and conveyed to the Applicants vide the letters signed by the 2nd Respondent (‘R2’) dated 8.1.2021 (‘Release Orders’). The properties in question are the Applicants’ share certificates for their respective shares in Global Tobacco Manufacturers (International) Sdn Bhd (‘Global Tobacco’), which were released to the 5th Respondent (‘R5’).

Initially only R1 to the 4th Respondent (‘R4’) were named as Respondents.

On 13.4.2021, leave to commence judicial review proceedings and a stay of the Release Orders until the disposal of the present application were allowed by the Court. Subsequently, a Notice of Hearing of Application for Judicial Review dated 21.4.2021 (encl. 12) was issued.

On 21.5.2021, R5 filed an application (encl. 18) for him to be heard in opposition and the application was allowed on 5.1.2022.

After having considered the cause papers and the oral and written submissions of the parties, I had, on 10.4.2026 dismissed the Applicants’ application for judicial review.

These are my full grounds of judgment.

According to the Statement under O. 53, r. 3(2) of the RC 2012 (encl. 5), the Applicants are individuals residing in Bayan Lepas, Penang and were the directors and shareholders of Global Tobacco with each of them owning 225,000 shares in Global Tobacco.

R1 is a Senior Investigating Officer holding the rank of Deputy Superintendent of Police and attached to the Anti-Money Laundering Unit of the Commercial Crime Division of Bukit Aman, Kuala Lumpur.

R2 is an Investigating Officer holding the rank of Inspector and attached to the same Unit as R1.

The 3rd Respondent (‘R3’) is the Government of Malaysia and R4 is a body corporate established under the Companies Commission of Malaysia Act 2001 [Act 614].

At the time of filing of the instant application, there was a pending shareholders dispute at Global Tobacco involving the Applicants on the one hand, and the “Goh Family” consisting of R5, Ong Ah Poh and Goh Kim Heong on the other hand. Ong Ah Poh is R5’s wife while Goh Kim Heong is R5’s nephew.

Chan Eng Leong (‘A1’) is a shareholder and director of Natural Transforms Sdn Bhd (‘NTSB’).

NTSB is a shareholder of Global Tobacco pursuant to a Share Sale Agreement dated 24.4.2019 which was entered into between Goh Kim Heong and NTSB.

Apart from Global Tobacco, NTSB is also a shareholder of GTM Emerald, GTM Prestij Sdn Bhd, GTM Land & Property, GTM Capital, GTM Marketing, GTM Timur and GTM Noble, having purchased shares of these companies from Goh Kim Heong.

On 7.8.2019, R5 sold 225,000 shares each to A1 and the 2nd Applicant (‘A2’). R5, together with his wife, Goh Choon Seng, the Applicants and NTSB entered into a Shareholders Agreement to regulate their relationship as shareholders and as regards certain aspects of the management and affairs of the company.

On 8.11.2019, Goh Kim Heong lodged a police report alleging that he did not sign the documents titled “Acknowledgement of Purchase Price” and that the signatures were forged.

On 16.12.2019, Ong Ah Poh issued a letter to the Board of Directors of Global Tobacco to convene an Extraordinary General Meeting (‘EGM’) to consider the resolutions that the Applicants be removed as directors of Global Tobacco and R5 and Goh Kim Heong to be appointed as Global Tobacco’s new directors.

R5 sent a Special Notice to the Board of Directors of Global Tobacco to propose similar resolutions as his wife.

Needless to say, following the shareholders’ dispute, numerous civil suits were filed in the Penang High Court between the feuding S/N WZAjchl3Q0ty/wu5jvrA parties. The Release Orders were issued Respondents in the midst of intense litigation. Further explanation as regards the various civil suits was provided by the Applicants in the Statement and Written Submission (see paragraphs 21 - 90, encl. 155).

For present purposes, the following facts are pertinent:

on 10.1.2020, R2 issued Freezing Orders under sub-s 44(1) of the AMLA 2001 to freeze the Applicants’ shares in Global

on 12.3.2020, R1 and R2 signed the Seizure Order under sub-s 45(2) of the AMLA 2001 to seize the Applicants’ share certificates. R2 issued letters dated 10.4.2020 to this effect to the Applicants; and

on 6.1.2021, with the consent of DPP Lee Keng Fatt (‘DPP Lee’), R1 issued the Release Orders.

The Applicants sought for, among other, the following reliefs:

an Order of Certiorari to quash and/ or set aside the decisions of R1 to R3 made by way of the Release Orders addressed to R4 for release of the share certificates registered in the name of A1 and A2 of 225,000 shares each in Global Tobacco to R5;

a declaration that the abovesaid decisions are illegal, null and void and of no effect;

an Order of Mandamus to compel R1 to R3 to release the share certificates seized from the Applicants to their respective registered owners as stated on the share certificates within seven days from the order being made or within four days from service of the sealed order;

an order to prohibit R4 from giving effect to the Release Orders and alternatively, if R4 has given effect to the Release Orders, R4 is to take all necessary steps to restore the Applicants’ rights back to their natural state as though the Release Orders were void ab initio; and

damages. The Legal Principles

The case authorities relied upon by the learned Federal Counsel (‘FC’) in submitting on the applicable legal principles are similar to the cases which were cited for the respondents in Mohammad Izzuddin bin Zulkifly v Suruhanjaya Pasukan Polis & Ors [2026] MLJU 1002 and Mohamad Sukry Tamsuri v. ACP Ng Siew Hiang & Ors [2026] MLRHU 989.

In Mohammad Izzuddin’s case, this Court had summarised the key legal principles in the following manner: “20. In Nor Azlinda bt Mohd Abdullah v Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif (JKTKBE) S/N WZAjchl3Q0ty/wu5jvrA Tabung Haji & Ors [2026] MLJU 580, this Court said: “33. The legal principles which can be discerned from the case authorities as cited by the parties in the instant application may be summarised as follows: High Court does not sit in its appellate jurisdiction, but rather, in its supervisory jurisdiction. The Court is more concerned with the decision-making process and not the decision itself. The Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. The Court is merely to quash the decision of the relevant authority, if required, and not to substitute the decision with what it thinks is the correct decision [see Harpers Trading (M) Sdn Bhd v National Union Of Commercial Workers [1991] 1 MLJ 417 (SC), Michael Lee Fook Wah v Menteri Sumber Tenaga Manusia Malaysia & S/N WZAjchl3Q0ty/wu5jvrA Anor [1998] 1 CLJ 227 (CA) and Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1 (FC)]; …”.

The renowned passage from the judgment by Lord Diplock in Council of Civil Service Unions & Ors. v. Minister for Civil Service [1985] 1 AC 374 at pp 410 and 411 on judicial review of administrative actions, and as adopted by the Federal Court in R Rama Chandran v The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145, reads: “Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”. By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be S/N WZAjchl3Q0ty/wu5jvrA decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the state is exercisable. By “irrationality” I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that expressly laid down in the legislative instrument by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice.” S/N WZAjchl3Q0ty/wu5jvrA [see too, Minister of Home Affairs, Malaysia v. Persatuan Aliran Kesedaran Negara [1990] 1 CLJ (Rep) 186 (SC)].

The well-established Wednesbury principle of reasonableness as explicated in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 specifies that a decision is unlawful where the decision-maker has –

taken into account matters which ought not to have been considered;

failed to take into account matters which ought to have been considered; or

reached a conclusion so unreasonable that no reasonable authority could ever have arrived at it.

In subsequent decisions by the Federal Court, we are reminded that not every case is amenable to the Rama Chandran approach and it all depends on the factual matrix and/ or the legal modalities of the case. In Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, it was held, among others, that: S/N WZAjchl3Q0ty/wu5jvrA “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.” (see too, Kumpulan Perangsang Selangor Selangor Bhd v Zaid Noh [1997] 1 MLJ 789, Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288 and Alam Venture Sdn Bhd & Anor v. Abdul Aziz Abdul Majid & Ors [2015] 5 CLJ 1).”.

On the part of the Applicants, they similarly relied on the explication in R Rama Chandran’s case (supra) as well as subsequent cases such as Dato’ Seri Dr Ahmad Zahid bin Hamidi, Menteri Dalam Negeri Kementerian Dalam Negeri & Ors v Soo Lina & Ors (for and on behalf of the Sarawak Society For People’s S/N WZAjchl3Q0ty/wu5jvrA Aspiration (SAPA)) [2018] 2 MLJ 738 and Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ

209.

R5 emphasised the distinction between the appellate and supervisory jurisdiction of this Court, namely that, in hearing the instant application, this Court acts in a supervisory capacity and must confine its enquiry to whether any errors of law had been committed, any disproportionate measures were imposed or there were any flaws in procedure in the impugned process. The Court does not perform an appellate function in reviewing the findings of the governmental authority or any other entity discharging a public function (see Mohan Singh v. Attorney-General [1987] 1 SLR 398, Pahang South Union Omnibus Co Bhd v. The Minister of Labour & Manpower & Anor [1981] CLJ Rep 74, Salak Land Development Sdn Bhd v. Pentadbir Tanah Kuala Langat & Ors [2015] 4 CLJ 506 and Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1).

Based on the Statement, the Applicants sought to challenge the Release Orders on the grounds of illegality, irrationality and procedural impropriety as follows:

Illegality S/N WZAjchl3Q0ty/wu5jvrA R1 to R3 have acted in violation of the Applicants’ right to ownership of the share certificates under Article 13 of the Federal Constitution without them being heard and no compensation was given for the loss of the share certificates.

Irrationality R1 to R3 failed to appreciate the fact that the Applicants were the registered shareholders for the shares as was apparent from the face of the share certificates. Their decision to release the share certificates to R5, who was not named in the share certificates, was so unreasonable that no reasonable authority could ever have come to it. Furthermore, R1 to R3 did not provide any reason for the decision.

Procedural impropriety There was a duty on R1 to R3 to afford an opportunity to the Applicants to be heard before making any decision adverse to their proprietary rights.

R1 to R3 submitted that the application should be dismissed by the Court because the Release Orders were made in accordance with the law and were not amenable to judicial review, and the S/N WZAjchl3Q0ty/wu5jvrA Applicants’ challenge was statutorily barred by immunity clauses and devoid of merit.

In particular, it was contended that –

there is no express provision in sub-s 60(1) of the AMLA 2001 which imposes a legal duty on the part of R1 and/ or the DPP to afford an opportunity to be heard to the Applicants prior to the issuance of the Release Orders (see Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777 and Iszuree Ibrahim v. Majlis Mesyuarat Kerajaan Negeri Pulau Pinang & Ors and Another Case [2016] 3 CLJ 955);

the Release Orders were made in accordance with sub-s 60(1) of the AMLA 2001, which was enacted by a competent legislature i.e. Parliament in the exercise of its legislative powers. Therefore, the Release Orders do not violate Article 13(1) of the Federal Constitution; and

Article 13(2) of the Federal Constitution is only applicable if the law provides for compulsory acquisition or use of property such as the Land Acquisition Act 1960 [Act 486]. Deprivation of property may take many forms. If Article 13(2) applies to all forms of deprivation of property, the framers of the Federal Constitution would have use the word “deprivation” instead of “compulsory acquisition or use” (see Government of Malaysia & Anor v Selangor Pilot Association [1977] 1 MLJ 133). Sub-s 60(1) of the AMLA 2001 does not provide for compulsory acquisition or use of S/N WZAjchl3Q0ty/wu5jvrA the seized property. Instead, it provides for the release of the seized property to such person(s) as the PP determines to be lawfully entitled to the property. The share certificates were released to R5 and were not compulsorily acquired and nor compulsorily used by R1 to R3. Therefore, Article 13(2) of the Federal Constitution is not applicable and the Release Orders do not violate the same.

R4 took the position that it will comply with any Order made by the Court relating to any matter concerning R4. Pursuant to s 60 of the AMLA 2001, R4 has no impediment in giving effect to the contents of the Release Orders. However, R4 has not effected any change to the shareholdings in Global Tobacco as the Release Orders have not been lodged and registered by the Company Secretary as provided under ss 51 and 102 of the Companies Act 2016 [Act 777].

The gist of R5’s submission is as follows:

there was a fundamental and glaring defect in the Applicants’ application as they failed to name the PP as a respondent;

there is nothing in any of the Applicants’ affidavits to show the Release Orders were effected mala fide. Hence, the Release Orders were made in good faith and R1 to R3 had acted within sub-s 60(1) of the AMLA 2001 and were statutorily immunized from any proceedings arising therefrom;

there is nothing in sub-s 60(1) of the AMLA 2001 which mandates the Applicants’ right to be heard in relation to the decision-making process of any release order; and

the present application involves the same facts and issues and similar evidence as in Judicial Review Application No. WA-25-113-04/2021 (‘JR 113’) and reported as Natural Transforms Sdn Bhd v Albany bin Hamzah, DSP & Ors (Goh Kim Heong, intervener) [2023] MLJU 2491. The prayers in JR 113 and the present case are also identical save as the details relating to the parties and shares. The main difference between JR 113 and the present suit is the parties involved. JR 113 was filed by NTSB, a vehicle used by A1 in which he is the director and shareholder and the shares were issued to Goh Kim Heong. On 5.9.2023, Wan Ahmad Farid J (as His Lordship then was) had dismissed JR 113. The applicant in JR 113 has filed an appeal against the High Court’s decision, but the appeal was stayed pending the outcome of the present application. As like cases should be treated alike, the present judicial review application should be dismissed. Moreover, the doctrine of issue estoppel precluded the Applicants from attempting to obtain a conflicting decision in respect of identical issues already determined against them in the earlier decision (see Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor [1975] AC 581 and Nanang International Sdn Bhd v The China Press Bhd [1999] 2 MLJ 681).

In my view, the present application falls to be decided on the issue which was raised by R1 to R3 in the oral submission and by R5 in both the oral and written submissions, namely the non-naming of the Public Prosecutor (‘PP’) and/ or the DPP as a respondent in the application.

Sub-s 60(1) of the AMLA 2001 reads: “Release of property seized Public Prosecutor release such property to such person as the Public Prosecutor determines to be lawfully entitled to the property if the Public Prosecutor is satisfied that such property is not liable to forfeiture under this Act or otherwise required for the purpose of any proceedings under the Act, or for the purpose of any prosecution under any other law, and in such event neither the officer effecting the seizure, nor the Federal Government, or any person acting on behalf of the Federal Government, shall be liable to any proceedings by any person if the seizure and release had been effected in good faith. …” S/N WZAjchl3Q0ty/wu5jvrA (emphasis added).

The Release Order in respect of A1’s share certificate (exhibit “CEL-19”, encl. 4) and signed by R1 and DPP Lee states as follows: “ANTI-MONEY LAUNDERING, ANTI-TERRORISM FINANCING AND PROCEEDS OF UNLAWFUL ACTIVITIES ACT 2001 [RELEASE OF PROPERTY UNDER SUBSECTION 60(1)]