AZMI BIN ALANG AHMAD (menyaman untuk dirinya sendiri dan dalam kapasiti perwakilannya untuk dan bagi manfaat keseluruhan kelas orang-orang yang telah mendepositkan wang kepada MGSB Berhad) v SITI WAKI'AH BINTI MOHD NOR (yang dituntut dalam kapasiti rasmi sebagai Pegawai Penyiasat di bawah Jabatan Perisikan Kewangan Dan Penguatkuasaan (FIED) Bank Negara Malaysia) (WA-21NCvC-109-10/2022)

SITI WAKI’AH BINTI MOHD NOR (yang dituntut dalam kapasiti rasmi sebagai Pegawai Penyiasat di bawah Jabatan Perisikan Kewangan dan

2.

DATO’ SERI AMAR SINGH ISHAR SINGH (yang dituntut dalam kapasiti rasmi sebagai

TAN SRI ACRYL SANI ABDULLAH SANI 02/01/2025 15:41:12 WA-21NCvC-109-10/2022 Kand. 82 S/N tvbq1nET9Eyl6kmpiNdU9w (yang dituntut dalam kapasiti rasmi sebagai Ketua

5.

6.

KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT Introduction [1] There were three striking-out applications filed in this civil suit, one of which was the one filed by the 1st Defendant. The 1st Defendant works for the 2nd Defendant Bank Negara Malaysia and had had filed her striking-out application (Enclosure 38) separately from the 2nd Defendant’s application (Enclosure 40). The 3rd, 4th, 5th, 6th and 7th Defendants filed a joint application to strike out the Plaintiff’s to strike out his claim. The subject matter of my Grounds here is just the 1st Defendant’s application (Enclosure 38). [2] The 1st Defendant, one Siti Waki’ah Binti Mohd Nor, is an Investigation Officer in the Financial Intelligence and Enforcement Department of the 2nd Defendant, i.e. Bank Negara Malaysia. She was sued in her official capacity. I decided to allow the 1st Defendant’s application (Enclosure 38) because it was plain and obvious that the Plaintiffs’ claim against her was frivolous, vexatious, and an abuse of process of court. S/N tvbq1nET9Eyl6kmpiNdU9w Background Facts [3] The Plaintiff has filed this civil suit for himself and also as a Class Action on behalf of persons named in a list marked as “Lampiran A”, who are allegedly persons who had deposited money with MGSB Berhad. “Lampiran A” contained 72 names, with the Plaintiff’s name listed first. The Plaintiff and those 71 other persons shall hereinafter be referred to as “the Plaintiff and his comrades”. [4] In essence, the Plaintiff and his comrades are suing the Defendants in this civil suit to try to recover the monies that they had respectively deposited with a company by the name of MGSB Berhad. From the narrative in the lengthy Statement of Claim, the Plaintiff and his comrades are victims of a scam. The Plaintiff’s claim against the Defendants [5] The Plaintiff has amended his lengthy Statement of Claim twice. His Re-amended Statement of Claim contains 85 paragraphs. The narrative is about a person by the name of Hisyamuddin, presumably the mastermind, being a director of the said MGSB Berhad together with Nur Ain Aliana binti Mat Azmi, Ahmad Zalimi Bin Mohd Ali and Halimatun Saadiah binti Che Omar. [6] It was further pleaded by the Plaintiff that the said Hisyamuddin and other directors of the said MGSB Berhad had allegedly used misrepresentation about three projects to induce the Plaintiff and his comrades to invest in MGSB Berhad. Those three investment projects were pleaded to have been for the import and export of coconuts, a development project in Pulau Sirandah, Indonesia and a Go Public Initial S/N tvbq1nET9Eyl6kmpiNdU9w Public Offering in Indonesia. The Plaintiff and his comrades pleaded that there were four bank accounts operated by MGSB and they had jointly deposited a total of RM4,249,000.00 into those accounts. [7] The first event of concern to the Plaintiff and his comrades occurred on 15th September 2017 when a raid was conducted on the premises of the said MGSB Berhad following some reports and preliminary investigation. The said raid was led by the 2nd Defendant Bank Negara Malaysia and assisted by officers from the 5th Defendant Polis DiRaja Malaysia, the National Revenue Recovery Enforcement Team (“NRRET”) under the Attorney-General’s Chambers and the Companies Commission. [8] Following the said raid, those four directors of MGSB Berhad were arrested and remanded for being involved in taking money deposits illegally. The Plaintiff further pleaded that 54 bank accounts of MGSB Berhad and cash in Ringgit Malaysia and foreign currencies were seized under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. [9] The Plaintiff and his comrades pleaded that they were aggrieved by the decision of the Defendants in releasing part of the seized funds. Their pleadings could be summarised as follows:

that the Defendants jointly and/or separately have deliberately abused the power vested in them and/or committed torts of misfeasance as public servants;

The Defendants, jointly and/or separately, knew and were fully aware, at all material times, that as civil servants and enforcement S/N tvbq1nET9Eyl6kmpiNdU9w officers involved in the joint raid operation, they have a responsibility to safeguard and protect the money and/or confiscated assets belonging to MGSB Limited. [10] The prayers of the Plaintiff, inter alia, are for:

A declaration that the Defendants jointly and/or severally committed the tort of misfeasance;

A declaration that the Defendants jointly and/or severally breached their statutory duty and were negligent;

An order for the Defendants jointly and/or severally to provide written clarifications and explanations with all related documents regarding the position and actual amount of money seized and/or money in the account belonging to MGSB and/or any money during the joint raid conducted by the Defendants against MGSB, within 21 days from the date the judgment is given;

An order for the Defendants to release and/or return part of the seized money and/or money in the account belonging to MGSB amounting to RM5,110,800.00 and/or any other amount determined by the Court to the Plaintiff and people in the class action, through solicitors Messrs. Faizal Rahman & Co.;

In the alternative, an order for the Defendants to release and/or return part of the seized money and/or money in the account belonging to MGSB amounting to RM 4,249,000.00 which is the capital paid by the Plaintiff and people in the class action and/or any amount other determined by the Court to the Plaintiff and people in the class action, through the solicitors Messrs. Faizal Rahman & Co; S/N tvbq1nET9Eyl6kmpiNdU9w

In the alternative, an order for the Defendants to release and/or return part of the seized money and/or money in the account belonging to MGSB amounting to RM 851,000.00 which is the profit promised to the Plaintiff and/or any other amount determined by the Court to the Plaintiff and the people in the class action through the solicitors Messrs. Faizal Rahman & Co;

General damages;

Aggravated damages;

Exemplary damages and/or punitive damages;

interest at 5% p.a. on damages to be awarded from The 1st Defendant’s Striking-out Application [11] The grounds stated in support of the 1st Defendant’s application were as follows:

The 1st Defendant has legal immunity pursuant to Section 87 of the Central Bank of Malaysia Act 2009, where no action, suit, prosecution or other proceeding shall lie or be brought, instituted, or maintained in any court or before any other authority against any officer or employee of the 2nd Defendant (Bank Negara Malaysia);

(ii) The 1st Defendant is also protected under Section 77 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for the same reason, that is, the 1st Defendant has carried out her duties according to the orders that were received by her;

(iii) The Plaintiff's action against the 1st Defendant does not reveal any reasonable cause of action because the 1st Defendant is only an officer of the 2nd Defendant who carries out her duties according S/N tvbq1nET9Eyl6kmpiNdU9w to the instructions of the 2nd Defendant and also based on the procedure and provisions of the law;

(iv) The Plaintiff's action against the 1st Defendant is humiliating, frivolous and vexatious because the Plaintiff should not apply for private legal remedies regarding the 1st Defendant's decision, which was implemented based on statutory powers;

The Plaintiff's action is an abuse of court process because the Plaintiff has failed to obtain any compensation from Civil Suit No. WA-22NCVC-562-09/2018 which he filed against MGSB Berhad and its directors. [12] As for the Plaintiff’s allegations about the amount of money frozen, the 1st Defendant disclosed as follows:

The sum was found in the accounts of MGSB Berhad and related entities that were frozen was RM701,054.00 and there was never any sum of RM56,468,498.29 as claimed by the Plaintiff. The amount of RM56,468,498.29 stated in the charge sheet against MGSB Berhad as based on investigation records and not the amount found or seized. After further investigation, it was found that only RM8,943.61 in two bank accounts out of the RM701,054.00 belonging to MGSB were the “barang kes”, i.e. to be tendered as the exhibits for the AMLA and Predicate case charges.

From the date when the bank accounts of MGSB Berhad and its related entities were frozen on 15th September 2017 till 22nd August 2019, which was the date when MGSB Berhad and its directors pleaded guilty in the Kajang Sessions Court, the relevant “barang kes” continued to be frozen, i.e. not released. S/N tvbq1nET9Eyl6kmpiNdU9w

The release of the money in MGSB Berhad’s bank accounts were based on the provisions of the law and following the instructions of the Attorney General's Chambers after investigation has been carried out. It was not in conflict with any investigation or action of the 5th Defendant as alleged by the Plaintiff. Analysis of the Law and Facts [13] Various allegations were pleaded against the Defendants but for the purpose of sustaining his claim against the 1st Defendant, the Plaintiff must be able to justify naming the 1st Defendant SITI WAKI’AH BINTI MOHD NOR as a defendant in this civil suit. [14] For the purpose of determining whether the Plaintiff and his comrades have a sustainable claim against the 1st Defendant, it is not necessary to delve into the details of their allegations. It is only necessary to determine if they have pleaded facts and adduce evidence in the Plaintiff’s affidavit-in-reply that would entitle them to name the 1st Defendant SITI WAKI’AH BINTI MOHD NOR as a defendant in this civil suit – since they have named Bank Negara Malaysia as the 2nd Defendant. [15] I agree with the submission of learned counsel for the 1st Defendant that there is no causal link between the alleged loss of the Plaintiff and his comrades with the 1st Defendant. She did not receive any money from the Plaintiff and his comrades. They had willingly paid money to MGSB Berhad and the said Hisyamuddin. The 1st Defendant was only carrying out her duty in investigating MGSB Berhad’s activities by following instructions from the 2nd Defendant and/or the Public Prosecutor. S/N tvbq1nET9Eyl6kmpiNdU9w [16] There is no doubt that the 1st Defendant, as an officer and employee of Bank Negara, is covered by the legal immunity conferred upon all officers and employees of Bank Negara Malaysia by Section 87 of the Central Bank of Malaysia Act 2009, which reads as follows: “No action, suit, prosecution or other proceeding shall lie or be brought, instituted, or maintained in any court or before any other authority against

any officer or employee of the Bank;

any person lawfully acting on behalf of the Bank, or on behalf of any such officer or employee, in his capacity as a person acting on such behalf; or

any person appointed pursuant to this Act, for or on account of, or in respect of, any act done or statement made or omitted to be done or made, or purporting to be done or made, in pursuance or in execution of, or intended pursuance or execution of, this Act, any order in writing, direction, instruction, notice or other thing issued under this Act: Provided that such act or such statement was done or made, or was omitted to be done or made, in good faith.” [17] Since the seizure/freezing of cash and bank accounts was made under the Anti-Money Laundering And Anti-Terrorism Financing Act 2001, the 1st Defendant was, as a matter of undisputed fact, just one of the officers of the competent authority or the relevant enforcement agency that were involved in the multi-agency raid on MGSB Berhad. [18] As it was an enforcement action under AMLA, it means that Section 77 of the Anti-Money Laundering And Anti-Terrorism Financing Act 2001 (“AMLA”) is another provision of the law that the 1st Defendant is entitled to rely on as an immunity umbrella. It reads: S/N tvbq1nET9Eyl6kmpiNdU9w “No action, suit, prosecution or other proceedings shall lie or be brought, instituted, or maintained in any court or before any other authority against-

the competent authority or the relevant enforcement agency;

any director or officer of the competent authority or the relevant enforcement agency, either personally or in his official capacity; or

… , for or on account of, or in respect of, any act done or statement made or omitted to be done or made, or purporting to be done or made or omitted to be done or made, in pursuance of or in execution of, or intended pursuance of or execution of, this Act or any order in writing, direction, instruction or other thing issued under this Act if such act or statement was done or made, or was omitted to be done or made, in good faith.” [19] Though both Section 87 of the Central Bank of Malaysia Act 2009 and Section 77 of AMLA contain a proviso that the 1st Defendant must have acted or omitted to act, in good faith for immunity to be applicable, there was no evidence about the 1st Defendant’s conduct as an investigating officer involved in the raid and investigation of MGSB Berhad, as having lacked good faith. She appeared to have been named as a co-defendant simply because she was the investigating officer. General averments of misfeasance are insufficient to justify naming an investigating officer as a co-defendant with her department. [20] I find that the immunity conferred by Section 77 of AMLA, to officers of the competent authority or the relevant enforcement agency that were involved in enforcing AMLA, is wider than that under Section 87 of the Central Bank of Malaysia Act 2009, in that the said Section 77 expressly S/N tvbq1nET9Eyl6kmpiNdU9w S/N tvbq1nET9Eyl6kmpiNdU9w Counsel for the Plaintiff: Fatima Zulaikha Binti Ahmad Bashri SOLICITORS FOR THE PLAINTIFF: MESSRS FAIZAL RAHMAN & CO. Advocates & Solicitors No. 25-2, Block A, Platinum Walk, Jalan Langkawi 2, Danau Kota, Setapak, 53300 KUALA LUMPUR Counsel for the 1st & 2nd Defendants: Dato’ Kevin Sathiaseelan, Leng Wie Mun (Sovitra Sukahut with him) SOLICITORS FOR THE 1st & 2nd DEFENDANTS: MESSRS KEVIN & CO. Advocates & Solicitors 16-6 & 16-3A, Menara 1 Mont’ Kiara, No. 1, Jalan Kiara, Mont’ Kiara, 50480 KUALA LUMPUR Counsel for the 3rd – 7th Defendants: Siti Syakimah Binti Ibrahim SOLICITORS FOR THE 3rd – 7th DEFENDANTS: JABATAN PEGUAM NEGARA Aras 6, Bahagian Guaman (Civil Division), No. 45, Persiaran Perdana, Presint 4, Pusat Pentadbiran Kerajaan Persekutuan, 62100 PUTRAJAYA S/N tvbq1nET9Eyl6kmpiNdU9w LEGISLATION REFERRED TO:

Section 77 of The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 2. Section 87 Central Bank of Malaysia Act 2009 S/N tvbq1nET9Eyl6kmpiNdU9w