Arunkumar A/L Mariappan v Inspektor Nur Akmal Bin Amran (JB-25-4-04/2025)

INSPEKTOR NUR AKMAL BIN AMRAN

2.

3.

PEGUAM NEGARA MALAYSIA … RESPONDEN-RESPONDEN GROUNDS OF JUDGEMENT

This is an application by the Applicant for leave to commence judicial review proceedings against the decision of the Respondents in forfeiting the properties seized by the police under section 32(1)(c) of the Dangerous Drugs (Forfeiture of Property) Act 1988 (“the Act”).

Brief facts that led to this application: - “The Applicant was arrested under the Dangerous Drugs (Special Preventive Measures) Act 1985 (LLPK), effective 2.10.2024. A “Notis Mengenai Penyitaan Harta” (notice) was given to the Applicant while he was in the IPD Larkin lockup, Johor Bahru, on 6.10.2024. Applicant’s wife also informed him that she had received several “Notis Mengenai Penyitaan Harta”. The Applicant contended that he mistakenly assumed that his wife had also received the notice issued in his name, which he had stored in the lockup locker. The Applicant’s wife had submitted a written claim to the seized properties through a law firm within the stipulated period. However, the Applicant did not do so. The Applicant was released on 24.3 2025 and subsequently filed this application.”

The prayers sought are as follows: - “1. Bahawa Pemohon diberikan kebenaran di bawah Aturan 53 Kaedah 3(7) Kaedah-Kaedah Mahkamah 2012 untuk pelanjutan masa memfailkan permohonan ini (sekiranya perlu);

Bahawa pelanjutan masa diberikan untuk memohon membuat tuntutan untuk harta-harta alih di bawah notis mengenai penyitaan harta yang bertarikh 1hb Oktober 2024 di bawah Seksyen 25(2) Akta Dadah Berbahaya (Perlucuthakan Harta) 1988;

Bahawa Pemohon diberikan kebenaran untuk memohon Perintah Certiorari untuk dialihkan ke Mahkamah yang Mulia ini untuk tujuan ianya dibatalkan keputusan oleh Responden-Responden untuk melucuthak dengan serta merta harta-harta alih Pemohon yang disita di bawah Notis Mengenai Penyitaan Harta yang bertarikh 01/10/2024 di bawah Seksyen 32(1) Akta Dadah Berbahaya (Pelucuthakan Harta) 1988;

Bahawa Pemohon diberi kebenaran untuk memohon Perintah Mandamus untuk mengarahkan Responden-Responden untuk merujuk tuntutan-tuntutan Pemohon ke Mahkamah Sesyen untuk keputusan;

Bahawa Pemohon diberi kebenaran untuk memohon Perintah Mandamus untuk mengarahkan Responden-Responden untuk memulangkan harta-harta alih Pemohon yang telah disita dan dilucuthak;

Satu Deklarasi bahawa keputusan Responden-Responden untuk melucuthak harta-harta alih yang disenaraikan dan dinyatakan sebagai “E3”, “E13” sehingga “E69” adalah tidak sah di sisi undang-undang dan/atau merupakan penyalahgunaan kuasa Responden-Responden;

Apa-apa Perintah selanjutnya atau lain-lain relif yang berbangkit atau sebaliknya sebagaimana Mahkamah Yang Mulia ini anggap sesuai dan wajar; dan

Tiada perintah bagi kos.”

It is the contention of the Applicant here that he is aggrieved by the decision of the Respondents and that the threshold requirement for leave for judicial review is very low based on judicial authorities. However, the Federal Counsel who appeared for the Respondents argued that eventhough the threshold requirement is low for leave for judicial review to be allowed, it is still not sufficient to fulfil the test set by judicial authorities. In this respect, she argued that the exercises of function or power in relation to criminal investigation processes are not amenable to judicial review.

The application was dismissed on the following grounds: - a) Criminal investigation or enquiry not open to Judicial

Law enforcement agencies are vested with the power to seize and forfeit a person’s property upon fulfillment of some conditions. The said requirements are enumerated in sections 25 and 32 of the said Act. The provisions highlight that the seizure is only made when an enforcement agency has commenced an investigation against the person, and there is reasonable ground to suspect that the movable properties are the subject matter of an offence under the Act. These are part and parcel of a criminal investigation process. As such, it is not amenable to judicial review.

Even though the threshold requirement is low for leave for judicial review to be allowed, the fact that the decision of the Respondents aggrieve the Applicant is not sufficient to fulfil the test set by judicial authorities. In Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114, the Court of Appeal stipulated as follows: - “[33] A court hearing a judicial review application must determine whether ‘prima facie there is a genuine case for review’. It is accepted that the threshold requirement is low, for leave will only be refused where an application is: i) frivolous and vexatious or hopeless; ii) made by busybodies with misguided or trivial complaints of administrative errors; iii) misconceived; iv) unarguable or groundless; v) where there is a more appropriate alternative procedure; or vi) where an application for judicial review is an inappropriate procedure.”

There is a plethora of cases that have decided that the exercises of function or power in relation to criminal investigation processes are not amenable to judicial review.

Let me begin by stating the law in respect of an application of leave for judicial review against investigative powers. The law can be traced in the judgment of the High Court in City Growth Sdn Bhd & Anor v The Government of Malaysia [2006] 1 MLJ 581. In that case, the applicants sought leave to commence judicial review under O 53 r 3 of the then Rules of the High Court 1980 (‘the RHC’) for an order of certiorari to quash an order dated 5 July 2004 made by the deputy public prosecutor and served on Hong Leong Bank Bhd and EON Bank Bhd (‘the said orders’). The said orders purport to affect a seizure of, inter alia, movable property in the banking accounts of the applicants pursuant to s 50(1) of the then Anti-Money Laundering Act 2001 (‘the then AMLA’). The crucial question that needed determination was whether the said orders of the DPP pursuant to s 50(1) of the then AMLA were decision reviewable by way of judicial review.

The High Court held that the order of the DPP is not reviewable under O 53 of the RHC. Section 50(1) of the then AMLA is part and parcel of the investigation process into an offence under s 4(1) of the same. In order to facilitate the investigation into the offence of money laundering, the law has provided the public prosecutor the power to assist the investigating officer.

The proposition in City Growth was affirmed by the Federal Court in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2018] supp MLJ 16 (FC). In that case, the enforcement officers from the Ministry of Domestic Trade and Consumer Affairs raided a factory of the appellant - a manufacturer of video compact discs - and seized machinery and equipment under the Optical Discs Act 2000 (‘the ODA’). The appellant applied for judicial review for an order of mandamus to compel the second respondent to return the seized machines and equipment. The Federal Court, after having referred to City Growth, reiterated that such an exercise of power in the course of a criminal investigation was not open to judicial review under O 53 of the ROC.

More to the point to the facts of the instant case, the Federal Court in Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349 (FC) referred to both City Growth and Empayar Canggih and held that the actions or decisions of a public authority, such as the MACC, in the exercise of its powers in the course of criminal investigation or enquiry were not open to judicial review. Abu Samah Nordin FCJ, in delivering the judgment of the apex court, referred to s 30(1)(a) of the MACC Act and further held as follows: - “Therefore, the answer to the question posed to this court is that the exercise of legitimate power, namely, the issuance of the notice pursuant to s 30(1)(a) of the Act by the first appellant through the third appellant is not amenable to judicial review. The notice was issued in order to assist the appellants in the investigation of a corruption offence under s 16(b) of the Act. To hold otherwise, would expose the criminal investigative processes of all law enforcement agencies to constant judicial review.”

Recently, in the case of Dr Che Abdul Daim bin Hj Zainuddin & Ors v Suruhanjaya Pencegahan Rasuah Malaysia & Anor [2024] 11 MLJ 683, Wan Ahmad Farid J (as he then was) had dismissed leave to commence judicial review proceeding on the grounds, among others, that the exercise of powers in the course of criminal investigation or enquiry were not open to judicial review. The Right Honorable Chief Justice of Malaysia summarized his findings in a paragraph [77] as follows: - “[77] For the reasons aforesaid, my findings are as follows:

as a general rule, an exercise of power in the course of a criminal investigation is not open to judicial review under O 53 of the ROC;

however, one way the applicants may challenge the criminal investigation is to establish the existence of mala fide; Latheefa Beebi Koya;

mere suspicion of mala fide or even an allegation of intimidation is insufficient;

on the facts as affirmed in AIS3, the applicants have failed to establish mala fide on the part of the investigation officers of MACC;

as to the allegation that the notices issued by the MACC are unlawful, the adoption of a different interpretation of the law by the MACC does not amount to an error of law that is amenable to judicial review.”

The Court of Appeal (W-01 (IM)-176-03/2024) affirmed the above decision of the High Court on 9.5.2024.

The rationale for the above decision being it would open the room for the public to challenge every exercise of such functions and jurisdictions, leading to much chaos and public disorder. This is also against the public interest. (case: Khor Peng Chai & Ors v. Bank Negara Malaysia & Anor [2012] 4 CLJ 987).

In the present case, there are also no allegations of mala fide against the respondents in any of their affidavits in support of the application. b) Criminal offences within the purview of the Criminal

The seizure and forfeiture of the Applicant’s properties have become the subject matter of criminal charges, rendering any complaint relating to those properties to be within the criminal court jurisdiction. The seizure and forfeiture of the Applicant’s properties were made pursuant to the Act, which is an act that relates to criminal offences that are within the purview of the criminal courts. c) No decision, action or omission committed by the

First and foremost, the properties were seized and forfeited according to a statutory law, namely the Dangerous Drugs Act (Forfeiture of Property) 1988. As what has been admitted by the Applicant in his affidavit in support, the Applicant had a misunderstanding with his wife, thinking that his wife had made an application to claim the properties belonged to him. Following the Applicant’s clear ignorance, the properties legally seized had been legally forfeited pursuant to section 32 of the Act. The Applicant had signed the akuan terima that confirmed on his acceptance of the Notis Penyitaan Harta but failed to claim the properties within the stipulated time as provided under the law. The Respondents had carried out their respective duties imposed by law in terms of the seizure and forfeiture of the Applicant’s properties. As such, there is nothing to compel the Respondents to refer the Applicant’s claim over the seized and forfeited properties to the Sessions Court of criminal jurisdiction for a decision and at the same time to compel the Respondents to return the moveable properties seized and forfeited when it was done in accordance to the strict statutory requirements and came as consequences of the Applicant’s failure to claim the properties. As such, the relief of mandamus prayed for is misconceived because it lies only where the Applicant has a legal right to compel the performance of a duty provided by statute. (case: Permodalan Negeri Selangor Bhd v Menteri Kewangan Malaysia [2024] MLJU 723). Similarly, the Court in Karpal Singh Ram Singh v. Ketua Hakim Negara [2011] 4 CLJ 179, held that there must be, under the law, some duty cast upon the public officer before an order of mandamus can be made. If the public officer does not carry out his duty, the court will call upon him to perform that duty by an order of mandamus. To compel the Respondents to refer Applicant’s claim over the seized and forfeited properties to the Sessions Court for a decision, and at the same time to compel the Respondents to return the properties seized and forfeited, is beyond the four corners of the Act and illegal, as there are no such duties prescribed under the law.

Premised on the foregoing, this court finds that there is no decision, action, or omission by the Respondents that is being challenged. Accordingly, the application is dismissed. There shall be no order as to costs. Dated 15th April 2026 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Applicant : G.K. Sritharan with Tan Meng Khong Messrs G.K. Sritharan & Co. For the Respondents : Izzatul Nawwarah binti Idrus Peguam Persekutuan