Abdul Mudtalib bin Ismail v Pendakwa Raya (W-05-231-05/2019)

CPO RESOURCES

ABDUL MUTALIB BIN ISMAIL

MUHAMMD ZAIDI BIN ABDUL MUDTALIB

THREE BEATY ENTERPRISE (NO. PENDAFTARAN PERNIAGAAN SA0017492-V) 3

NURUL SYAMSUL BINTI MAT REJAB @ ABD RAZAK

NURRUL WAHYUNI

GOH KONG WEE (NO PASPOT: E6502349L) …RESPONDENTS CORAM: KAMALUDIN BIN MD SAID, JCA AZIZAH BINTI NAWAWI, JCA AHMAD NASFY BIN HAJI YASIN, JCA GROUNDS OF JUDGMENT Introduction [1] This is an appeal by the Appellant, being Respondent No. 2 in the High Court, against the order made by the High Court on 24.4.2019 which allowed the Public Prosecutor’s application vide a Notice dated 26.4.2018, inter alia, for an order of forfeiture of specific assets belonging to each of the Respondents. 4 [2] The 1st, 3rd, 4th and 7th Respondents in the High Court did not file any objection to the Notice. Only Respondent No. 2, the Appellant before us, Respondent No. 5 and 6 have contested the Notice. [3] In the Notice by the Public Prosecutor, it sought to forfeit the following properties of the Appellant: - a. Cash amounting to RM53,000.00 seized on 27.4.2017; b. Cash amounting to RM850,000.00 seized on 27.4.2017; c. Cash amounting to Rupiah 18,000, 000.00 seized on 27.4.2017; d. Cash amounting to RM100,000.00 seized on 27.4.2017; [4] Having heard the arguments of the parties, the learned High Court Judge had allowed the Public Prosecutor’s application and made the order of forfeiture of all the properties. [5] Dissatisfied, the Appellant appealed to us. We heard the appeal and had unanimously dismissed the same. We now give our reasons. The Petition of Appeal and the Constitutional Point. [6] In his Petition of Appeal, the Appellant had alluded to two grounds upon which he contends that the appeal must be allowed. Those two grounds are stated in paragraph 4 of the Petition. For 5 convenience, they are as follows (in the original language as they are couched): -

(i) Yang Arif Hakim Bicara Yang Bijaksana telah terkhilaf apabila Yang Arif Hakim Bicara Yang Bijaksana telah memutuskan bahawa Responden telah melepasi beban pembuktian dalam membuktikan kesemua harta yang dimohon untuk dilucutkan dalam Notis Usul bertarikh 26.4.2018 adalah hasil daripada kesalahan predikat di bawah seksyen 420 Kanun Kesiksaan; dan

(i) be signed – either by the appellant himself or his advocate;

(a) law or

(b) fact or

(c) mixed fact and law that the High Court had erred. 7 [11] We have included (c) above as we are of the considered view that the word “or” appearing between the words “of law” and “of fact” should be read as “and/or”. That will then produce the harmonious result (see Adler v George [1964] 2 QB 7), as often times, there will be a great mixture of facts and law in the decision appealed from and that there is no need to clearly demarcate between pure question of law on the one hand and pure question of fact on the other hand. [12] It is to be noted too that apart from defining the constituent elements of a valid petition of appeal, section 53(2) of the Court of Judicature Act 1964 also provides a consequential impact of not properly condescending to particulars of the alleged error(s) made by the High Court: that the appellant “shall” not be permitted to rely on any other grounds not stated in the petition. [13] Now generally, the auxiliary word “shall” will be interpreted to produce an imperative requirement. In the case of Datuk Seri Anwar Ibrahim v Tun Dr. Mahathir Mohamad [2010] 1 CLJ 444, this Court speaking through Abdul Malik Ishak JCA had the following to say: - We observe that the word "shall" appears in s. 8 of the National Language Acts 1963/1967 (Act 32). Likewise, the word "shall" also appear in r. 18(1) and r. 101 of the Rules of the Court of Appeal 1994. It is quite obvious that the use of the word "shall" raises a presumption that the particular provision is imperative (State of U.P. v. Manbodhan Lal Srivastava, and Manbodhan Lal Srivastava v. State of U.P., AIR [1957] SC 912, at p. 917; State of Uttar Pradesh and Others v. Babu Ram Upadhya, AIR [1961] SC 751, at p. 765; M/s. Sainik Motors, Jodhpur and Others v. State of 8 Rajasthan, AIR [1961] SC 1480, at p. 1485; and Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee and others, AIR [1976] SC 263, at p. 267), and it is also ordinarily mandatory. It is also correct to say that when a statute uses the word "shall", prima facie it is mandatory. And once it is held to be mandatory, the failure to comply with it will invalidate anything done under the statute. [14] However it must be emphasized that the task of the court will not stop at making prima facie conclusion but in the words of Lord Campbell in the case of the Liverpool Borough Bank v. Turner (1860) 30 LJ Ch 379: - "No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed." That statement was echoed by Lord Penzance in Howard v Bodington

(i) that the properties seized by the Respondent were proceed of the unlawful activity under section 4(1) of the AMLATFUAA;

(i) the subject-matter or evidence relating to the commission of an offence under subsection 4(1) or a terrorism financing offence;

(i) date of seizure; or

(a) the pre-condition to making the application;

(b) the time within which the application for the forfeiture must be made;

(c) the determination of the legal status of the property;

(d) the standard of proof. [27] We are therefore in agreement with the following view expressed by another division of this Court in PP v Kuala Dimesi Sdn Bhd & Ors [2019] 3 CLJ 650: - 16 [39] As can be seen, before the amendment under AMLATFA, the PP may seize the property under sub-s. 56(1) solely on the ground that if he is satisfied that such property had been obtained as a result of or in connection with an offence under sub-s. 4(1) or a terrorism financing offence, or is a terrorist property. The amended s. 56(1) under AMLATEPUA retained these conditions in the new s. 56(1)(a) and (b) and added two more conditions for seizure that is, if such property is (c) the proceeds of an unlawful activity or (d) the instrumentalities of an offence. It is to be noted that s. 56(1)(a) of AMLATEPUA uses different terminology. Instead of "had been obtained as a result of or in connection with" (as in AMLATFA), the new terminology used is "the subject-matter or evidence relating to the commission of" such offence. [40] Similarly, previously before the amendment, under AMLATFA, a judge to whom an application is made under sub-s. (2), shall only make an order for forfeiture of the property if he is satisfied that the property is the subject-matter of or was used in the commission of an offence under sub-s. 4(1) or a terrorism financing offence or is a terrorist property. The amended s. 56(2) under AMLATEPUA retained these conditions in the news. 56(2)(a)(i) and (ii) and added two more conditions for forfeiture, that is, if the property is (iii) the proceeds of an unlawful activity or (iv) the instrumentalities of an offence. [41] It would seem that the two new conditions added by the amendment (under AMLATEPUA) in allowing the property to be seized or forfeited respectively on the basis that the property is the proceeds of an unlawful activity or the instrumentalities of an offence, has made the burden thrust upon the PP and the judge lighter or easier in that they are given a further choice under which category the property can be seized or forfeited. Previously under AMLATFA, the PP may only seize property solely on the grounds that if such property had been obtained as a result of or in 17 connection with an offence under sub-s. 4(1) and the judge likewise, shall only order for forfeiture solely on the ground that if the property is the subject-matter or was used in the commission of an offence under sub-s. 4(1). But with the amendment under AMLATEPUA there are four categories available and the last two categories, especially category (c), that the property is the proceeds of an unlawful activity has departed the emphasis of seizure and forfeiture from the attachment of guilt or otherwise on any person under s. 4(1) to the emphasis on the legal status of the property itself. See this court's case of Noor Ismahanum Mohd Ismail v. PP [2018] 10 CLJ 597, Criminal Appeal No. S-05- 39-01-2016. [28] Following from the above we are in agreement with the learned High Court Judge that the requirements under section 56(1) read with section 61 of the AMLATFUAA have been met. In paragraphs 72 to 85 of the written grounds the learned High Court Judge had considered the status of the property and came to the conclusion that the properties were acquired from the proceed of unlawful activity. [29] We have also carefully considered the record of appeal and satisfied ourselves that the evidence presented before the High Court showed an overwhelming evidence that the properties were indeed acquired not from lawful means, but from the proceeds of unlawful activity. We note especially the following: -

(i) that the evidence showed that the Appellant was the mind and brain behind an activity that was sought to be passed off as a lawful activity that deals with crude palm oil and hence the enterprise underlying this 18 activity was named CPO Resources: that acronym, in all probability refers to crude palm oil;

(v) it is not in dispute too that the Appellant was charged under section 420 of the Penal Code being the predicate offence. [30] It must be mentioned too that apart from the evidence stated above, there were statements taken by the Investigating Officer. These statements were taken from the other respondents. They were taken under the enabling provision of section 32 of the AMLATFUAA. They were taken from, among others the Respondent No, 3, 4 and 5 named 20 in the court below. The Appellant in the written submission identified these Respondents as follows: - a. Respondent 3 – son of the Appellant; b. Respondent 4 – the proprietor of a business connected to the Appellant; c. Respondent 5- ex-wife of the Appellant. [31] There is no doubt that in short, these statements, according to the submission of learned counsel for the Appellant, laid the blame entirely on pointed fingers the Appellant. But what is sought to be emphasized is that these statements have been improperly relied on by the learned High Court Judge. We will now direct our mind to this aspect. The Admissibility of Section 32 Statements. [32] On this issue learned counsel submitted that first, the Prosecutor’s case is premised entirely on the statements given by Respondents No. 3, 4 and 5. We have shown in the earlier paragraphs on the evidence presented by the Prosecutor. Thus, there is no merit in this contention. [33] Second, it was contended that the learned Judge had erred in failing to exercise caution in evaluating the statements, especially so when there was a clear absence of other evidence apart for the 21 statements alone. This submission too is without merit on the same reason as we have stated earlier in that that there were evidence before the High Court. [34] Third, it was argued that the statements taken under section 32 could only be safely relied upon if there were other independent evidence which tend to corroborate the statements. In support of this contention learned counsel for the Appellant had cited the case of PP v Awaluddin Bin Sham Bokhari [2018] 1 CLJ 305 and sought to impress upon us that there the court had admitted the section 32 statements only when there were “numerous records and documents which were exhibited in the affidavit”. We must say at once that we disagree with this proposition. In our considered judgment, a proper reading of the case does not yield the proposition as being advanced by learned counsel. It is clear therefore that there is nothing in the case which could be construed as laying down a principle that corroboration is a priority for the statements under section 32 to be admitted or relied upon. That interpretation will tantamount to placing a requirement not contemplated by the AMLATFUAA. It must be reiterated that in PP v Awaluddin Bin Sham Bokhari [2018] 1 CLJ 305 the Federal Court in no uncertain term, had stated that by virtue of section 40, the statements recorded under section 32 will be admissible notwithstanding any written law to the contrary. The following passages are relevant: - [22] Section 32 of the Act confers wide powers on the investigation officer in investigating an offence of money laundering or terrorism financing 22 offence. He may order any person whom he believes to be acquainted with the facts and circumstances of the case to:

(a) attend before him for examination;

(b) produce before him any property, record, report or document; or

(c) furnish to him a statement in writing made on oath or affirmation. Any person who disobeys the order of the investigation officer commits an offence. [23] The investigation officer is empowered to administer an oath or affirmation to the person being examined. The person being examined shall be legally bound to answer all the questions and to state the truth save that he may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture. [24] The admissibility of the record of examination of any person or any property, record, report or document obtained by the investigation officer is governed by s. 40 of the Act. The section overrides any written law or rule of law to the contrary. It states:

The record of an examination under paragraph 32(2)(a), any property, record, report or document produced under paragraph 32(2)(b) or any statement under paragraph 32(2)(c) shall, notwithstanding any written law or rule of law to the contrary, be admissible as evidence in any proceedings in any court for, or in relation to, an offence or any other matter under this Act or any offence under any other written law, regardless whether such proceedings are against the person who was examined, or who produced the property, record, report or 23 document, or who made the written statement on oath or affirmation, or against any other person. [35] Thus, in our judgment there is no merit in the contention of the Appellant on this point. We have carefully considered the statements, including exhibit “JE-10”, “JE-14” and “JE-27” to be statements that could be properly admitted and relied upon by the learned Judge in making the assessment and disposing the application by the Public Prosecutor under section 56 of the AMLATFUAA. [36] In short, we find no fault in the manner in which the learned Judge had evaluated the evidence before him. We too have given the matter careful consideration and had arrived at the same conclusion. [37] Learned counsel had complained that the Appellant had been prejudiced by the reliance on the section 32 statements and thus by relying on the case of Gooi Ching Ang v PP [1999] 1 MLJ 507 the court must retain the discretion to reject evidence that had been unfairly obtained against an accused person. We find this submission to be misconceived. First, Gooi Ching Ang (supra) was decided based entirely on a different set of factual matrix. Second, the decision relates to the admissibility of different kind of evidence. Third and more importantly, section 40 of the AMLATFUAA does not admit the possibility that the court retain some kind of discretion to reject the admissibility of section 32 statements. 24 [38] There is yet another matter that we must mention. It is this. There is no suggestion by the Appellant that the statements were obtained not in accordance with law, or that they were improperly or illegally obtained. The Appellant too was never denied the opportunity to controvert the statements under section 32. Indeed, following Noor Ismahanum Mohd Ismail v PP [2018] 10 CLJ 597 the burden shifts to the Appellant to show that the properties were obtained lawfully and that the forfeiture application has no basis in law. In the present case the Appellant has failed to discharge this evidential burden. In fact, a proper evaluation would establish the position asserted by the Public Prosecutor. Conclusion. [39] For the reasons adumbrated above the appeal must fail. Accordingly, the appeal stands dismissed. Dated: 10th September 2020 sgd AHMAD NASFY HJ YASIN Judge Court of Appeal Malaysia Putrajaya 25 Counsel/Solicitors For the Appellant: Encik Mohd Haziq Dhiyauddin Encik Aiman Abdul Rahman (messrs. Shahrul Hamidi & Haziq (Shah Alam) For the Respondent Dato’ Mohd Dusuki Mokhtar Puan Faizah binti Mohd Salleh Puan Nahra binti Dollah Puan Suriantiazila Mohamad (Attorney General’s Chambers)