JJ Power Groups Enterprise v Pendakwa Raya (05(L)-153-08/2022(W))

JJ POWER GROUPS ENTERPRISE (No. Pendaftaran Perniagaan: SA0402820H)

JJ GLOBAL NETWORK HOLDINGS BERHAD (No. Pendaftaran Perniagaan: 1160808P)

JJ GLOBAL NETWORK (No. Pendaftaran Perniagaan: PG0367100M)

UTOPIA ENTERTAINMENT SDN BHD (No. Pendaftaran Perniagaan: 1184928A)

PCP GLOBAL TECH SDN BHD (No. Pendaftaran Perniagaan: 1186276M)

L&L PROPERTY VENTURES SDN BHD (No. Pendaftaran Perniagaan: 118992T)

JJ GLOBAL RECIPE SDN BHD (No. Pendaftaran Perniagaan: 1173113X)

PENANG OLD WONG SDN BHD (No. Pendaftaran Perniagaan: 1186045V)

JTOM INTERNATIONAL SDN BHD (No. Pendaftaran Perniagaan: 1194844A)

HANSARD GROUP SDN BHD (No. Pendaftaran Perniagaan: 11849922X)

JOB CAFE SDN BHD (No. Pendaftaran Perniagaan: 1212175-D)

BABABLUE SDN BHD (No. Pendaftaran Perniagaan: 1186965U)

JJ GLOBAL CREATIVE ENTERPRISE (No. Pendaftaran Perniagaan: PG0395492A)

GOLDEN PHEONIX RESTAURANT (No. Pendaftaran Perniagaan: 002350264K)

TEAM V TEAM SDN BHD (No. Pendaftaran Perniagaan: 1184247D)

ALVIN CHONG YEW KUAN … APPELLANTS AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of the Court of Appeal of Malaysia

JJ Power Groups Enterprise (No. Pendaftaran Perniagaan: SA0402820-H)

JJ Global Network Holdings Berhad (No. Pendaftaran Perniagaan: 1160808-P)

JJ Global Network (No. Pendaftaran Perniagaan: PG0367100-M)

Utopia Entertainment Sdn Bhd (No. Pendaftaran Perniagaan: 1184928-A)

PCP Global Tech Sdn Bhd (No. Pendaftaran Perniagaan: 1186276-M)

L&L Property Ventures Sdn Bhd (No. Pendaftaran Perniagaan: 118992-T)

JJ Global Recipe Sdn Bhd (No. Pendaftaran Perniagaan: 1173113-X)

Penang Old Wong Sdn Bhd (No. Pendaftaran Perniagaan: 1186045-V)

JTOM International Sdn Bhd (No. Pendaftaran Perniagaan: 1194844-A)

Hansard Group Sdn Bhd (No. Pendaftaran Perniagaan: 11849922-X)

Job Cafe Sdn Bhd (No. Pendaftaran Perniagaan: 1212175-D)

Babablue Sdn Bhd (No. Pendaftaran Perniagaan: 1186965-U)

JJ Global Creative Enterprise (No. Pendaftaran Perniagaan: PG0395492-A)

Golden Pheonix Restaurant (No. Pendaftaran Perniagaan: 002350264-K)

Team V Team Sdn Bhd (No. Pendaftaran Perniagaan: 1184247-D)

Lee Choong Sen

Tan Kai Lee

Lee Thean Chye

Ooi Ah Sim

Hng Chun Cheat

Quah Li Chuan

Ho Giao Hoong

Ho Giao Yen

Alvin Chong Yew Kuan … Appellants And Public Prosecutor ... Respondent] [In the matter of the High Court of Malaya at Kuala Lumpur Criminal Application No: WA – 44 – 79 – 05/2018 In the Matter of Section 56 And Section 61 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [Act 613]; And In the Matter of Section 25 of the Court of Judicature Act 1964 [Act 91]. Between Public Prosecutor ... Applicant

And JJ Power Groups Enterprise (No. Pendaftaran: SA0402820-H)

JJ Global Network Holdings Berhad (No. Pendaftaran: 1160808-P)

JJ Global Network (No. Pendaftaran: PG0367100 – M)

Utopia Entertainment Sdn Bhd (No. Pendaftaran: 1184928-A)

PCP Global Tech Sdn Bhd (No. Pendaftaran: 186276-M)

L&L Property Ventures Sdn Bhd (No. Pendaftaran: 118992T)

JJ Global Recipe Sdn Bhd (No. Pendaftaran: 173113-X)

Penang Old Wong Sdn Bhd (No. Pendaftaran: 1186045-V)

JTOM International Sdn Bhd (No. Pendaftaran: 1194844-A)

Hansard Group Sdn Bhd (No. Pendaftaran: 11849922-X)

Job Cafe Sdn Bhd (No. Pendaftaran: 212175-D)

Silver Top Consulting Sdn Bhd (No. Pendaftaran: 1073155-T)

Babablue Sdn Bhd (No. Pendaftaran: 1186965-U)

JJ Global Creative Enterprise (No. Pendaftaran: PG0395492-A)

Golden Pheonix Restaurant (No. Pendaftaran: 002350264-K)

Team V Team Sdn Bhd (No. Pendaftaran: 1184247-D)

Double Win Entertainment Sdn Bhd (No. Pendaftaran: 1122601-X)

Mars Mobile Distribution Sdn Bhd (No. Pendaftaran: 857978-D)

SWT International Sdn Bhd (No. Pendaftaran: 893493-A)

IKIN Trading (No. Pendaftaran: 002425476-X)

WMS Capital Ltd (No. Pendaftaran: LL13333)

Only One International Sdn Bhd (No. Pendaftaran: 1195288W)

Lee Choong Sen

Tan Kai Lee

Lee Thean Chye

Ooi Ah Sim

Hng Chun Cheat

Quah Li Chuan

Jim Lim Heng Hai

Ho Giao Hoong

Ho Giao Yen

Alvin Chong Yew Kuan

Tan Siew Khim ... Respondents] CORAM: ABANG ISKANDAR BIN ABANG HASHIM, PCA MARY LIM THIAM SUAN, FCJ ABU BAKAR BIN JAIS, FCJ JUDGMENT Introduction [1] This appeal deals with a forfeiture of property by the Public Prosecutor (“PP”) where there is no prosecution or conviction for an offence of money laundering or a terrorism financing offence – a proceeding provided for under section 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activities Act 2001 (“AMLA 2001”). It was the basis of the PP’s application for forfeiture that the seized properties were “the subject-matter or evidence relating to the commission of an offence of money laundering under subsection 4(1)(a) of AMLA [section 56(1)(a) of AMLA]. Except for some monies that were ordered to be returned to the 17th respondent, the High Court granted the forfeiture of all other listed properties (with some variation/exception in respect of the monies seized from the 18th and 19th respondents which were subject to an earlier settlement). This decision was affirmed and upheld unanimously by the Court of Appeal. [2] Before us, out of twenty-four appellants, only four proceeded with the appeal. They are JJ Power Groups Enterprise, PCP Global Tech Sdn Bhd, Lee Choong Sen (“LCS”), and Alvin Chong Yew Kuan (collectively as “the Appellants”). The appeal by the rest of the appellants were thereby struck out. [3] At the start of the proceeding, we were informed that the Appellants intended to pursue with five out of six petitions of appeal, which they had categorised into two major issues. The first issue relates to the question of law on the standard of proof required to prove predicate offence in a forfeiture proceeding under section 56 of the AMLA 2001. The second issue concerns the findings of fact by the courts below on the offence of cheating under section 420 of the Penal Code vis-à-vis the nature of the investment which had been undertaken by the Appellants as being an unlicensed, hence illegal deposit taking. [4] Having read the cause papers including the judgments of the courts below, and both parties’ written submissions, and having heard oral submissions by all learned counsel, we unanimously dismissed the appeal and affirmed the findings and decisions of the courts below. Background facts and the antecedent proceedings [5] Police investigation was triggered following a police report lodged by one Tan Kai Lin regarding his investment in the JJ Poor to Rich scheme (“JJPTR”), a scheme that promised the investors with certain percentage of monthly rate of returns based on the deposits or investment made. Subsequently, about 19 other individuals had also filed similar reports disclosing the same modus operandi of JJPTR. [6] The investigation revealed that the investors were deceived into believing that the JJPTR was a licensed business of trading in foreign currencies, whereby, the investors were promised a monthly 20% rate of returns, despite there being no license obtained from the Central Bank of Malaysia for the kind of deposit taking or investment business undertaken. The investigation proceeded on the offence of cheating under the Penal Code and money laundering under the AMLA 2001. [7] In this case, there were various bank accounts of the 33 respondents which were found to have been used to accept deposits for the investment and to accept remittances of returns of investment in the JJPTR. Certain bank accounts had also been used to purchase a property in Perak, a Volkswagen Beetle and a Honda Accord. Remittances were also made to the bank account of the 17th respondent for gambling excursions packages at the casino at Genting Highlands (the monies seized from the 17th respondent were ordered to be returned, and not forfeited). [8] Police investigation also unveiled that LCS was the founder of the JJPTR and the mastermind of the incorporation of a number of companies to perpetuate the scheme by fronting certain retail businesses as a guise, thereby disguising the investors as members of these businesses for the benefits that they will obtain in the form of a monthly returns. [9] LCS was initially prosecuted with two others for cheating under section 420 of the Penal Code in the Kuala Lumpur Magistrate’s Court. That charge was however withdrawn, and LCS was subsequently given a discharge not amounting to an acquittal. This point was one of the major contentions propounded by the Appellants challenging the findings of the courts below on the point of predicate offence. They argued that the seized properties could not be said to have been connected with the offence of money laundering premised on the discharged offence of cheating under section 420 of the Penal Code. It was also argued that the courts below had applied the wrong standard of proof in relation to proving the said predicate offence. [10] As regards the forfeiture application by the PP, two firms of solicitors responded to the third-party notice issued, and claimed as third parties for the legal fees rendered in representing the respondents in the forfeiture proceeding and in defending against their prosecutions for the related offence of cheating under section 420 of the Penal Code which later ended in the respondents being discharged. This third-party claim was heard by the High Court together with the forfeiture application, but was dismissed. [11] On the PP’s forfeiture application, the High Court was satisfied that the listed properties (except those seized from the 17th respondent) were the subject-matter or evidence relating to the commission of an offence of money laundering under subsection 4(1)(a); and that there was no purchaser in good faith for valuable consideration in respect of those properties. As such, pursuant to section 56(2) of the AMLA 2001, and by virtue of section 58 of the same Act, the forfeited properties were ordered to be vested in the Federal Government. This judgment of the High Court can be found in Public Prosecutor V JJ Power Groups Enterprise & Ors [2020] MLJU 375. That decision was thereafter affirmed and upheld unanimously by the Court of Appeal. The written judgment of the Court of Appeal was unfortunately neither reported nor unreported. The standard of proving predicate offence - beyond reasonable doubt or on the balance of probabilities? [12] The High Court in this regard had ruled that “In determining whether the seized property relates to the offences of money laundering or terrorism financing and of any question of fact in proceedings under the AMLATFPUAA, the same standard of proof applies, namely on the balance of probabilities. This is provided for under sections 56(4) and 70 of the Act, respectively.” [13] That standard of proof was similarly applied in the High Court’s assessment of the PP’s evidence in respect of the existence of the predicate offence of cheating under section 420 of the Penal Code, which was viewed as a constituent element of money laundering in this case. The evidence examined includes the affidavits and the accompanying exhibits in the form of various police reports, recorded statements under section 32 of the AMLA 2001, statements of bank accounts, and all other documents relating to the landed property in Perak and the two vehicles. In the words of the High Court, it says: “[40] In deciding whether or not the applicant succeeded in proving its case on the balance of probabilities, this Court will consider, based on the affidavit evidence, how likely are certain facts which form the basis for the applicant’s application. If after weighing the evidence the Court believes that such facts point to probabilities which by reasonable conclusion supports the applicant’s contention and are probable in light of the circumstances of the case in its entirety, the applicant is said to have succeeded in establishing its case on the balance of probabilities. On the other hand, if the facts as proved by the evidence led by the applicant give rise to a set of inferences from which the degree of probabilities in favour of the application and the respondent’s case are equal, the applicant, who bears the burden to prove its case on the balance of probabilities, must fail.” [14] The application of this standard of proof on the balance of probabilities was affirmed and upheld by the Court of Appeal. In its judgment, the Court of Appeal agreed further with the view taken by the High Court that there was never any statement to the standard of proving predicate offence beyond reasonable doubt by the Court of Appeal in Public Prosecutor v Billion Nova Sdn Bhd & Ors [2016] MLJU 1823; [2016] 2 CLJ 763 (“Billion Nova”). [15] Before us, the Appellants persistently argued that the correct standard of proof to be applied in proving predicate offence is beyond reasonable doubt and not on the balance of probabilities. Reference was made primarily to the decision of the Court of Appeal in Simplex Sdn Bhd & Ors v Public Prosecutor [2021] MLJU 32; [2021] 4 CLJ 595 (“Simplex”), in particular paragraphs [20] to [27] of that case. [16] Essentially, the Appellants argued that based on Simplex, it is incumbent on the PP to establish, in any application for forfeiture of property, the existence of an exact predicate offence, and that, by virtue of section 70(2) of the AMLA 2001, that predicate offence must be proved beyond reasonable doubt. [17] Based on Simplex, it was contended that when the said predicate offence has been proved beyond reasonable doubt, only then the specific proceeds derived from that predicate offence which were used in the commission of an offence of money laundering, be proved on the balance of probabilities. The link between the proved predicate offence and the commission of money laundering was viewed to be crucial and a pre-requisite to forfeiture under section 56 of the AMLA 2001. [18] Importantly, the Court of Appeal in this appeal was argued to have fallen into error when it failed to consider Simplex, despite that case, having been argued in great detail. And that failure, according to the Appellants, was fatal based on the principle of stare decisis, or judicial precedent as was enshrined in Dalip Bhagwan Singh v PP [1998] 1 MLJ 1; [1997] 4 CLJ 645 (“Dalip Bhagwan Singh”). [19] In contrast to the Appellants’ position, the PP cited two cases decided by the Court of Appeal. They are Noor Ismahanum Mohd Ismail v Public Prosecutor [2019] 2 MLJ 536 (“Ismahanum”) and Mohd Ismail bin Syed Merah v Public Prosecutor and other appeals [2022] 3 MLJ 786 (“Syed Merah”). According to the PP, these two cases have clearly shown that the standard of proof required to prove the element of “proceeds of unlawful activity” is “on the balance of probabilities” as stipulated by sections 56(4) and 70(1) of the AMLA 2001. The “unlawful activity” in the present appeal was the offence of cheating under section 420 of the Penal Code, a listed offence in the Second Schedule of the AMLA 2001 which is defined as a “serious offence”. Our View [20] Before we proceed to state our view on the four cases cited by the parties, we find it appropriate to comment on the principle of stare decisis, which, according to the Appellants had not been observed by the Court of Appeal, and thus, it erred when it failed to follow the ruling made by Simplex on the point of proving predicate offence beyond reasonable doubt. [21] Having perused the judgment of the Court of Appeal, we find no reference that was made to Simplex. However, it does refer to Billion Nova, an earlier decision of the Court of Appeal, which was cited and referred to by the Appellants in the Court of Appeal. Billion Nova was, in the opinion of the Court of Appeal, an authority to show that the burden on the PP is to prove on the balance of probabilities, and not beyond reasonable doubt because the focus of the court in a forfeiture proceeding is on the legal status of the seized properties. [22] When this Court in Dalip Bhagwan Singh stated that “The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged generally to follow the decisions of the courts at a higher or the same level in the court structure…”, that duty is subject to certain exceptions, particularly, the Court of Appeal. The Court then referred to Young v Bristol Aeroplane Co Ltd [1944] KB 718 and stated about the three exceptions to the general rule that the Court of Appeal is bound by its own decisions or by decision of courts of co-ordinate jurisdiction. Firstly, a decision of Court of Appeal given per incuriam need not be followed. Secondly, when faced with a conflict of past decisions of Court of Appeal, or a court of co-ordinate jurisdiction, it may choose which to follow irrespective of whether either of the conflicting decisions is an earlier case or a later one. Thirdly it ought not to follow its own previous decision when it is expressly or by necessary implication, overruled by the apex court, i.e., the Federal Court. The Court further stated that “There are of course further possible exceptions in addition to the three exceptions in Young v Bristol Aeroplane when there may be cases the circumstances of which cry out for such new exceptions so long as they are not inconsistent with the three exceptions in Young v Bristol Aeroplane.” [23] In the present appeal, although the Court of Appeal does not mention Simplex, it however referred to Billion Nova and sections 56(4) and 70(1) of the AMLA 2001. It then expressed its view that based on Billion Nova, the standard of proof as applied by the High Court on the balance of probabilities, was the correct approach. We perceived that the Court of Appeal made that election based on its understanding of Billion Nova and both statutory provisions. In our considered view, the Court of Appeal cannot be said to be wrong simply because it decided to follow one decision over the other, provided a reasonable and justifiable explanation is given. Simplex versus other Court of Appeal cases [24] We have analysed Billion Nova [2016], Ismahanum [2019], Simplex [2021], and Syed Merah [2022], and found that except Syed Merah, all the other three cases dealt with the forfeiture of property under section 56 of the AMLA 2001. [25] Syed Merah is an appeal against the conviction and sentence for eight offences of money laundering under section 4(1)(a) of the AMLA

This case was relied on by the PP as an authority, alongside Ismahanum, that the element of unlawful activity is to be proved on the balance of probabilities in accordance with the provisions of ss 56(4) and 70(1) of the AMLA 2001. [26] In Syed Merah, the High Court applied the standard of “beyond reasonable doubt” to prove the offence of money laundering. However, in respect of proof of the element of “unlawful activity”, it applied the standard of “on the balance of probabilities”. This approach was affirmed on appeal as the Court of Appeal viewed it to be in accordance with the above provisions. Further the Court of Appeal was of the considered view that proof of unlawful activity per se does not prove the offence of money laundering under section 4(1) of the AMLA 2001 . [27] However, having perused and analysed Syed Merah, we do not think that the case is of significant relevance to be considered by us on determining the correct and applicable standard to prove predicate offence. Firstly because the nature of that case is not a forfeiture of property proceeding. It is an appeal against the conviction and sentence. On this point alone, the question of the applicable standard of proof differs. [28] Secondly, and most importantly, Syed Merah was subsequently reviewed by a different panel of the Court of Appeal. The review panel disagreed with the finding of the earlier panel on the question of proving the element of “unlawful activity” on the balance of probability based on sections 56(4) and 70(1) as that case is not a forfeiture proceeding but rather a prosecution of an offence, and therefore, by virtue of section 70(2) of the AMLA 2001 the applicable standard to prove every constituent element of the offence including the element of “unlawful activity” must be beyond reasonable doubt. Hence, the application of sections 56(4) and 70(1) by the earlier panel to prove the element of “unlawful activity” on the balance of probabilities in a prosecution of an offence under the AMLA 2001 was viewed to be inappropriate. [29] As regards the other three cases, namely Billion Nova, Ismahanum and Simplex, they were concerned with two common points of legal interest. Firstly, that they deal with the forfeiture of property under section 56 of the AMLA 2001; and secondly, that the element of “proceeds of unlawful activity” is to be proven on the balance of probabilities. [30] In fact, this Court had, in Public Prosecutor v Awalluddin bin Sham Bokhari [2018] 2 MLJ 401 (“Awalluddin”); and Public Prosecutor v Kuala Dimensi Sdn Bhd & Ors [2021] 2 MLJ 469 (“Kuala Dimensi”) affirmatively ruled that the standard of proof to determine whether the property has been obtained as a result of or in connection with an offence of money laundering under section 4(1) is the standard of proof required in civil proceedings, i.e., on the balance of probabilities. In Kuala Dimensi, this Court had specifically stated that: “[39] The provision of s 56 of the AMLATFA does not absolve the prosecution from proving on a balance of probabilities that the properties seized under the purview of the Act were procured as a result of or in connection with an illegal activity or transaction. The PP must be able to prove that the properties seized were procured in connection with the commission of the predicate offence.” [31] However, Simplex went on further to single out that predicate offence must first be proved beyond reasonable doubt. It ruled that it is only upon successful proof of that element that the “proceeds of an unlawful activity” be proved on the balance of probabilities. In other words, according to Simplex, there are two tiers of proof and two different standards of proof to be applied depending on what needs to be proven in a forfeiture of property under section 56 of the AMLA 2001. We shall, for clarity reproduce the relevant part of the judgment in Simplex in this respect. It held that: “[20] Having established the essence of money laundering, we pause to observe that section 56 when read together with section 4 of the Act establishes the necessity for the existence of a predicate offence. The predicate offence here is the offence under section 135(1)(g) of the Customs Act 1967. … [22] Section 70(2) recognizes that when it comes to proving the predicate offence, the burden on the prosecution must be beyond a reasonable doubt. [23] Once the predicate offence is proved beyond a reasonable doubt, it must then be proved, on a balance of probabilities, that the specific proceeds derived from the predicate offence, was used in the commission of an offence of money laundering… [24] This link between the predicate offence and the commission of money laundering is a pre-requisite to forfeiture as provided under section 56 of the Act 613. [25] The Court in determining whether the proceeds are from an unlawful activity under section 4 shall apply the standard of proof required in civil proceedings or as we know it, on a balance of probabilities… [26] It is therefore trite that the simple existence of an alleged, and as yet unproven, predicate offence is insufficient. The specific proceeds from the said predicate offence must be linked to the offence of money laundering which is crucial to establish the commission of an offence under section 4(1)(a) and this is a prerequisite to section 56(1) of the Act. [27] Following from the above, it is incumbent for the Respondent to make clear to this Court and the Appellants, in any application for forfeiture, the following elements:

the exact predicate offence, the evidence and basis upon which the commission of the offence has been established beyond reasonable doubt; …” [32] Based on the above ruling, the Court of Appeal was clearly basing its application of the standard of beyond reasonable doubt on section 70(2) of the AMLA 2001. Going by the reasoning in Simplex, it would mean that the PP must first prove this predicate offence of section 420 of the Penal Code beyond reasonable doubt, before proceeding on proving, on the balance of probabilities, the proceeds derived therefrom. [33] We must state that in comparison to Simplex, the Court of Appeal in Billion Nova while stating the importance of proving the element of “unlawful activity” as a pre-requisite in a forfeiture of property under section 56 of the AMLA 2001, however, did not specifically state the standard of beyond reasonable doubt as the required standard of proof. In its judgment, “on the balance of probabilities” had been the applicable standard of proof in evaluating the evidence presented in a forfeiture of property under section 56 of the AMLA 2001. Predicate offence is not “an offence under the Act or any subsidiary legislation under it” [34] We shall reproduce section 70 in its entirety as Simplex had grounded its ruling on proof of predicate offence beyond reasonable doubt based on section 70(2). Section 70 reads: Section 70. Standard of proof.

Any question of fact to be decided by a court in proceedings under this Act shall be decided on the balance of probabilities.

Subsection (1) shall not apply in relation to any question of fact that is for the prosecution to prove in any proceedings for an offence under this Act or any subsidiary legislation under it. [35] First and foremost, we must emphasise that nowhere in any of the provisions in the AMLA 2001 that the word “predicate offence” is used. Instead, it employs the word “unlawful activity” as a determining criterion of the legality or otherwise of the proceeds derived therefrom. “Unlawful activity”, and not predicate offence, is defined in a wider sense to mean “any activity which constitutes any serious offence or any foreign serious offence; or any activity which is of such a nature, or occurs in such circumstances, that it results in or leads to the commission of any serious offence or any foreign serious offence, regardless whether such activity, wholly or partly, takes place within or outside Malaysia [section 3(1) of the AMLA 2001]. This means, “serious offence” is an element in the definition of “unlawful activity”. Therefore, “unlawful activity” and “serious offence” are not equal or the same. [36] And “serious offence” is further defined to mean “any of the offences specified in the Second Schedule; an attempt to commit any of those offences; or the abetment of any of those offences” [section 3(1) of the AMLA 2001]. In the present forfeiture application, the “serious offence” involved was that of cheating under section 420 of the Penal Code. This offence is what is referred to in this present appeal as a predicate offence. In fact, the “serious offence” is what is commonly referred to as predicate offence. The question is, is “serious offence” or the predicate offence is what is meant by the phrase “an offence under this Act or any subsidiary legislation under it” in section 70(2) of the AMLA 2001 where the standard of beyond reasonable doubt is applied? [37] We hold that it is not. And this is where Simplex had gone into error in its interpretation of section 70(2). We are of the considered view that the offence of cheating under section 420 of the Penal Code which is a “serious offence” and which is referred to as the “predicate offence” is not an offence contemplated within the meaning of “an offence under this Act or any subsidiary legislation under it” in section 70(2) of the AMLA 2001, which provision that was used by Simplex as an authority to support its view that the standard of proof is beyond reasonable doubt. [38] The reason is this. Section 70 is a provision governing the standard of proof to be applied in proving any question of fact in proceedings under the AMLA 2001. Generally, “Any question of fact to be decided by a court in proceedings under this Act shall be decided on the balance of probabilities [section 70(1)]. However, this standard of proof is not applicable in relation to “any question of fact that is for the prosecution to prove in any proceedings for an offence under this Act or any subsidiary legislation under it.” The phrase “an offence under this Act or any subsidiary legislation under it” refers to an offence under the AMLA 2001 or under any of its subsidiary legislation. This means that in any prosecution of any offence under the AMLA, such as money laundering or terrorism financing, the standard of proof shall be beyond reasonable doubt. [39] The offence of cheating under section 420 of the Penal Code or any of the listed serious offences in the Second Schedule is/are not an offence/offences that is meant by “an offence under this Act or any subsidiary legislation under it”. Because those serious offences which are also predicate offences are offences under the respective relevant statutes, and not under AMLA. The predicate offence is not “an offence under this Act” within the meaning of section 70(2) of the AMLA 2001. [40] Secondly, section 56(4) of the AMLA 2001 had specifically stated that the court shall apply the standard of proof required in civil proceedings, i.e., on the balance of probabilities, in its determination, on the facts of this appeal, of whether the property is the subject-matter or evidence relating to the commission of money laundering. The clear and express statement of the required standard of proof requires no further interpretation, as was done by Simplex. [41] Furthermore, the application for forfeiture of proceeding under section 56 of the AMLA 2001 is specifically for a situation where there is no prosecution or conviction for an offence of money laundering or a terrorism financing offence. It is a forfeiture proceeding separate from any requirement for proof of a predicate offence beyond reasonable doubt. It is a special regime provided for under the AMLA 2001 that has not nexus with having to prove the predicate offence beyond reasonable doubt. [42] As such, when the Court of Appeal in Simplex ruled that the predicate offence must be proved beyond reasonable doubt in a forfeiture proceeding on the ground of section 70(2) of the AMLA 2001, we find that it has misread that provision for the reasons stated above. With due respect, it has fallen into legal error. [43] Just to be clear on this, the net effect of section 70(2) of the AMLA 2001, read in the totality of the legislative scheme, upon which it is premised, is this: that in a criminal proceeding undertaken by the prosecution, for an offence under the AMLA 2001 and its subsidiary legislation, the provisions stipulated under section 70(1) do not apply to the prosecution. The usual standard of proof applicable on the prosecution in a criminal proceeding is applicable. Thus, if one is prosecuted for an offence of money laundering under section 4(1) of the AMLA 2001 for instance, each and every element of that offence, including the element of “proceeds of an unlawful activity” must be proved beyond reasonable doubt. [44] To our mind, section 70(2) is there to reiterate the trite general principle of criminal jurisprudence pertaining to the standard of proof to be applicable. It may appear obvious to many but nonetheless, it may not. In that regard, section 70(2) has a purpose to be achieved and as is usual, Parliament does not act in vain. In our considered view therefore, section 70(2) is not intended to apply in the context of proving predicate offence in a forfeiture proceeding or to impose such burden and standard on the PP in this matter. [45] Another inevitable consequence of section 70(1) and section 70(2) of the AMLA 2001 read together on the applicable standard of proof to proceedings under section 56 of the AMLA 2001 must be that the standard of proof required to be discharged in establishing the incumbent essential ingredients under section 56 is one on the balance of probabilities. Section 56(1) is couched upon there being no prosecution or conviction under section 4(1) or for a terrorism financing offence. [46] As such, we found, with respect, that the Court of Appeal in Simplex has misinterpreted section 70(2) of the AMLA 2001 by imposing a standard of beyond reasonable doubt on proving predicate offence in a forfeiture proceeding – which is not a criminal prosecution type of action – a requirement which is not explicitly stated within the statutory language nor implied by its underlying purpose. We find that it has read into that provision, in the way it interpreted it, a requirement or condition, be it express or by necessary implication, which was not intended by Parliament. [47] As such, for the purpose of an application to forfeit any property where there is no prosecution or conviction under section 56 of the AMLA 2001, we hold that any question of fact, and every element to be proved shall be assessed and proved on the balance of probabilities [sections 56(4) and 70(1)]. There is no such thing, as Simplex suggested, a requirement of the two-tier level of proof and two different standards of proof in a forfeiture proceeding under section 56 of the AMLA 2001. JJPTR investment scheme & illegal deposit taking – an element of cheating? [48] The essence of the Appellants’ remaining four petitions deals with the findings of fact made by the courts below on the proved offence of cheating under section 420 of the Penal Code. [49] In this regard, the High Court found that the prosecution had proved, on the balance of probabilities, the offence of cheating under section 420 of the Penal Code where the seized properties were derived from. The exception was only in respect of the 17th Respondent, where the seized monies were not proven to be “proceeds of an unlawful activity” as they were monies from customers in the gambling excursions at the casino in Genting Highlands. [50] The evidence that was considered include 19 police reports, the statements recorded under section 32 of the AMLA 2001 (reference was made to Awalluddin on the admissibility of the said recorded statements), various bank accounts, documents relating to the two vehicles and the landed property, verification from the Central Bank of Malaysia and the Securities Commission Malaysia, to name a few – which are all in the exhibits attached to the relevant affidavits. And the conclusion made in this respect was this: “[52] After examining the material facts together with the documents provided by the applicant, I find that on the balance of probabilities, the applicant has succeeded in establishing the existence of the predicate offence of cheating under section 420 of the Penal Code. The ingredient of deceit which is central to the offence of cheating is obviously present. Wrongful losses were occasioned to the investors and the 23rd respondents and the related companies fronting the JJPTR scheme had made wrongful gains. The police reports lodged by the individual investors coupled with the statements recorded under section 32 of the Act are the basis and sufficient for this Court to conclude that the applicant has succeeded in showing the commission of the predicate offence of cheating under section 420 of the Penal Code on the balance of probabilities.” [51] The above findings were affirmed by the Court of Appeal. It held that the evidence clearly showed that there was the element of deception in the JJPTR investment scheme, and which was also unlicensed, hence, an illegal deposit taking. [52] The Appellants in this respect questioned the courts’ finding of unlicensed, thus illegal deposit taking as an element of cheating. The nature of JJPTR investment was, according to the Appellants did not require any license and the payment made was not “deposit” within the meaning of section 136 of the FSA 2013. Hence, unlicensed deposit taking was not, according to the Appellants, an element of cheating. In any event, according to the Appellants, the offence of cheating under section 420 of the Penal Code and unlicensed/illegal deposit taking under section 137 of the FSA 2013 are two different and separate offences. The evidence was argued to be lacking, especially when there was no forensic accounting conducted to show the money trail of the seized properties. [53] The PP on the other hand argued that the evidence with the documents presented were voluminous to show the deceit that took place in the JJPTR scheme. The recorded statements were not only taken from all the respondents but also from many other individuals including the officers and workers of the Appellants, their acquaintances, investors, and agents to the scheme. LCS, being the founder of JJPTR and the mastermind of the fronting companies had been inconsistent in his statements in the affidavits and the recorded statements given to the police. The Appellants had failed, according to the PP to show any documents or proof showing their source of income and finance to own the seized properties. Testing the fact-finding – the “plainly wrong” test [54] It is a well-established principle of law that in matters relating to the findings of fact based on the assessment and examination of the evidence, the Appellate Court will not disturb what the trial judge had so found unless such finding was “plainly wrong”. [55] This principle has been recently dealt with by this Court in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, where this Court, in reaffirming the application of the plainly wrong test has held, that in dealing with issues relating to the findings of fact based on evidence, “…The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” [56] In assessing the evidence, the court must be satisfied that all the ingredients or the elements to be proved, are proved on the required standard. This Court had, in Kuala Dimensi, indicated what and how the evidence in the forfeiture proceedings is measured. It says that: “[49] When applying the civil standard of proof on a balance of probabilities merely stating facts with scanty documentary evidence is insufficient. There must be more cogent documentary evidence to support the averments made and that all facts necessary to prove their case must be presented and are probably true.” [57] In so far as the authorities that were referred to us, Billion Nova and Kuala Dimensi provided clear examples of when and how the PP had failed in its application for forfeiture of properties under section 56 of the AMLA 2001, which was primarily due to the insufficient evidence to prove that the seized properties were proceeds of an unlawful activity. [58] In this regard, we have perused all the affidavit evidence and the accompanying exhibits and documents, and having considered the judgments of the courts below, the petitions and both parties submissions, we are not persuaded to agree with the Appellants’ contention that the High Court had been plainly wrong in his assessment of all the evidence presented before him on the balance of probabilities. Every finding he had made was sufficiently supported and reasonably justified by the evidence adduced before him. We do not find any cogent reason why we should, or how we could depart from his findings. Conclusion [59] We always remind ourselves, lest we forget, that the fundamental principle of statutory interpretation tells us that where the language of a statutory provision is clear and unambiguous, the courts, we included, must apply its plain and ordinary meaning. In such instances, the court's primary duty is to give effect to the expressed intention of Parliament (Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721). [60] The forfeiture of property proceedings as envisaged under section 56 of the AMLA 2001 is a special regime specifically provided for under the AMLA 2001 where there is no prosecution or conviction for an offence of money laundering or a terrorism financing offence. In proving each and every element in that proceeding, sections 56(4) and 70 of the AMLA 2001 impose no other standard, but a standard on the balance of probabilities. Having so ruled, and after a careful examination of the evidence, and the proper standard of proof to the facts of this appeal, we are not inclined to depart from the concurrent findings of fact made by the judges in the courts below. [61] In the upshot, we do not find any merits in this appeal, and we hereby affirm the decision of the Court of Appeal which affirmed the findings and decision of the High Court that the evidence had established, on the balance of probabilities that the seized properties were the subject matter or evidence relating to the commission of money laundering and were the proceeds of an unlawful activity. As such, this appeal by the four Appellants is dismissed. Dated: 23rd of June 2025 t.t ABANG ISKANDAR BIN ABANG HASHIM President of the Court of Appeal Malaysia Parties appearing: For the Appellants:

Mohd Shukri Bin Ahmad Mansor 2. Dato' G. Jaya Prem (Tetuan Asmah Shukri & Co.) For the Respondent: Norzilati Izhani binti Zainal @ Zainol, DPP (Attorney General’s Chambers) Cases referred:

Dalip Bhagwan Singh v PP [1998] 1 MLJ 1; [1997] 4 CLJ 645.

Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67.

Noor Ismahanum Mohd Ismail v Public Prosecutor [2019] 2 MLJ 536.

Mohd Ismail bin Syed Merah v Public Prosecutor and other appeals [2022] 3 MLJ 786.

Public Prosecutor v Awalluddin bin Sham Bokhari [2018] 2 MLJ 401.

Public Prosecutor v Kuala Dimensi Sdn Bhd & Ors [2021] 2 MLJ 469.

Public Prosecutor v Billion Nova Sdn Bhd & Ors [2016] MLJU 1823; [2016] 2 CLJ 763.

Simplex Sdn Bhd & Ors v Public Prosecutor [2021] MLJU 32; [2021]

Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4

Young v Bristol Aeroplane Co Ltd [1944] KB 718.