the claimant did all that could reasonably be expected to prevent the illegal use of the property. Whether third parties’ claims can be adjudicated under s.61 before a forfeiture order is made [12] This is not the first time that this question has been raised in the Malaysian courts. It has come under the scrutiny of the court in several cases. In Thong Kian Oon & Ors v [2012] 8 CLJ 119, Ghazali Cha J stated: “Based on the evidence adduced by learned DPP, I am of the opinion that the evidence adduced is insufficient to satisfy me that the properties are the subject matter of or was used in the commission of an offence under sub-s. 4(1) of the Act. As such the application for the forfeiture order against all the respondents are dismissed. As such, notice under s. 61 of the Act is premature. Section 61 only comes into play when the court makes the order of forfeiture under s. 56 of the Act. Therefore, the application for forfeiture is dismissed and all the properties must be released immediately to the respondents respectively.” [13] In PP v Mohd Bakri Samsu & Anor [2016] 5 CLJ 824,’Noorin Badaruddin J opined the same view: “In the upshot, based on the affidavits and exhibits, this court found that the applicant failed to establish on balance of probabilities that the properties seized from the respondents were the subject matter of or was used in the commission of an offence under sub-s. 4(1) of the Act. As such the application for the forfeiture order was denied. Consequently, the notice under s. 61 of the Act is premature. Section 61 only comes into play when the court makes the order of forfeiture under s. 56 of the Act.” [14] Thereafter, in Azmi bin Osman v Public Prosecutor and another appeal [2016] 3 MLJ 98, this Court on the same issue explained as follows; “We agree with the learned SCJ that the prosecution had proven on the balance of probability that the properties in question are proceeds of an unlawful activity which constitutes the subject matter of the offence. As the SCJ was the court making the order of forfeiture under s 55 at the end of a prosecution that had resulted in a conviction of the accused, it was incumbent upon the SCJ to issue the third party notice under s 61 of the AMLATFA before any final order on forfeiture can be made in respect the said properties. We are in agree with the learned SCJ that the evidence led in this case would necessitate the giving of the notice to third parties by way of publication in the gazette who may then stake their claims by proving themselves to be bona fide owners of the seized monies, in which case the monies shall be returned to them. But if they fail to prove that they are entitled to the seized properties, then the monies shall be ordered to be forfeited to government revenue.... We agree with learned deputy that a forfeiture order is subject to giving prior notice to third parties as is clearly borne out in the wordings to s 55(1) of the AMLATFA itself. Indeed, in this case, no forfeiture order had been made by the learned SCJ and there is basis for her to issue the statutory notice in order to facilitate the process pertaining to the eventual forfeiture of the seized properties which are the subject-matter of the offence before her. We therefore see no merit in the complaint of the accused person in regard to the issue of the notice under s 61 of the AMLATFA. On account of the above, the appeal by the accused person against the order on the s 61 notice under AMLATFA is dismissed.” (emphasis added) [15] However, in PP v Taiko Fertiliser& Yang Lain [2019] 4 CLJ 480, this Court expressed a different view on the issue. There, the ('the prosecution') sought two orders, the first to publish a notice in the Gazette to call upon any third parties who claimed to have any interest in the seized moveable properties to appear before the court to show cause; and the second, the forfeiture of the moveable properties. The High Court only dealt with the forfeiture application and dismissed it. It did not deal with the prayer for an order to publish a notice in the Gazette. The prosecution appealed. [16] The prosecution submitted that the trial judge should not have heard the forfeiture application without first ordering for the notice in the Gazette to be published as mandated by s. 61(2) of the Act. The respondents argued that before the mechanism under s. 61(2) of the Act could be generated, the trial judge must first decide whether the prosecution's application for a forfeiture order under s. 56(1) of the Act bore any merits. In other words, the trial judge must first issue an order of forfeiture before the procedure under s. 61(2) of the Act could be exercised. The Court of Appeal rejected the respondent’s submission and explained: “Kami bersetuju dengan penghujahan TPR bahawa hanya satu isu sahaja yang harus kami tentukan dalam rayuan ini iaitu sama ada hakim bicara dikehendaki di bawah s.61(2) untuk mempertimbangkan terlebih dahulu permohonan untuk disiarkan satu notis dalam Warta sebelum mempertimbangkan sama ada harta-harta yang disenaraikan dalam notis usul berkenaan wajar dilucut hak atau tidak di bawah s. 56, AMLATFPUA 2001. Harus juga dicatatkan bahawa ungkapan "subject to s. 61 " di bawah s. 56(1) itu merujuk s. 61 secara keseluruhan dan bukan sekadar s. 61(2) sahaja. Berdasarkan kes Chandavarkar Sita Ratna Rao, supra, keseluruhan peruntukan s. 61 khususnya s. 61(2) hendaklah diberikan keutamaan terlebih dahulu. Keabsahan (validity) takrifan ini diperkukuhkan dengan penggunaan ungkapan "... the judge to whom an application is made under... s. 56(1) shall cause to be published a notice in the Gazette..." dalam s. 61(2) itu sendiri. Dalam hal ini, kami bersetuju dengan hujahan TPR bahawa dengan penggunaan perkataan "shall" dalam s. 61(2) itu menjadikannya satu kehendak yang wajib diikuti sebelum sesuatu perintah pelucuthakkan di bawah s.56 dibuat oleh hakim.” [17] Lastly, in the Federal Court case of Tetuan Wan Shahrizal, Hari & Co v Public Prosecutor [2023] 4 MLJ 1, Mary Lim FCJ observed: “In considering whether or not to grant the order of forfeiture, the High Court is mandatorily obliged under s 61(1) to cause to be published a notice in the Gazette ‘calling upon any third party who claims to have any interest in the property to attend before the Court on the date specified in the notice to show cause as to why the property shall not be forfeited’. This is regardless whether there is prosecution for an offence under the Act – see ss 55(1) and 56(1). However, it must not be over looked that the forfeiture proceedings are principally between the PP and the accused, Amar, as s 61 is only engaged where there are third parties laying some claim or interest in the properties seized. If there are none, the proceedings will proceed only between these two key players. This position must be properly appreciated because it appears to have been overlooked simply because the two applications, by PP and by the third parties, were heard together. Hence, in the proceedings at the High Court, affidavits were filed by Amar in protest of the forfeiture orders sought by the PP. I pause here to make this observation. As pointed out a moment ago, the PP must satisfy the High Court that the property is of any of the character or nature prescribed in s 56(1)(a) to (d). It is only upon satisfying the High Court that the property is liable to be forfeited and thereafter, the High Court deals with the rights or interests of any third parties. As held in Public Prosecutor v Kuala Dimensi Sdn Bhd & Ors, s 56 does not absolve the PP from proving on a balance of probabilities that the properties seized come under the purview of the Act and were procured or are the proceeds of an unlawful or illegal activity. The PP must prove on a balance of probabilities that the properties seized were procured in connection with the commission of the predicate offence or are of the character for which the order for seizure was issued. See also Public Prosecutor v Billion Nova Sdn Bhd & Ors [2016] MLJU 1823; [2016] 2 CLJ 763; [2016] AMEJ 0162.” (emphasis added) [18] The foregoing cases exemplify that no order for forfeiture can be made until the claims of third parties to the seized properties is heard, and to establish its rights to forfeiture, the prosecution must, first, prove that the properties it seeks to forfeit are forfeitable properties, namely, that they are the subject matter or evidence relating to the commission of the offence under s.4 (1) of the Act. [19] It is only upon the prosecution establishing that the seized properties are forfeitable properties, that the court enters a preliminary forfeiture order. And, it is only upon the making of the preliminary forfeiture order is the court required to publish the requisite notice in the Gazette under s.61 (2) of the Act to commence the ancillary proceedings to determine the rights of the third parties to the forfeited properties. This stands to reason as it cannot be gainsaid that it would be an absolute waste of judicial time if the forfeiture application and the claims of the third parties are heard simultaneously and, at the conclusion of the proceedings it is found that the properties are not forfeitable properties. [20] It bears mention that the government does not have a clear title to the property until the ancillary proceedings under s.61 is concluded. It is only upon the adjudication of the third parties claims, that the preliminary forfeiture order can be made final. [21] For the reasons given, we are unable to share the judge’s view that the sessions court ought to have proceeded with the ancillary proceedings in respect of the respondents claims on dismissing the forfeiture application. The learned judge erred in holding that the ancillary proceedings under section 61 is separate and independent from the forfeiture application. The mechanics of the ancillary proceedings must follow the procedure laid down in sections 55,56 and 61 of the Act. [22] We therefore allow the appeal and set aside the order of the High Court to remit the respondents claims to the sessions court and reinstate the respondents appeals. We further direct that the High Court first hears the prosecution’s appeal against the dismissal of its forfeiture application by the sessions judge. If the said appeal is dismissed and the decision of the Sessions Court if affirmed, it would follow that the respondents/Third Party Claimants’ appeals would fail without prejudice to the respondents/Third Party Claimants’ rights to institute separate civil proceedings against the appellant in respect of their respective legal rights to the properties in question. However, if the appeal is allowed, then the respondents claims would be remitted to the sessions judge for adjudication in accordance to the provisions of the Act. Dated: 4 January 2024 -Sgd- (S.M. KOMATHY SUPPIAH) Judge Court of Appeal Malaysia Putrajaya Counsel/ Solicitors For the Appellant: Gooi Soon Seng Choong Kak Sen & Belinda Low Siet Yan (with him) [Messrs Gooi & Azura & Associate] For the Respondent: Nik Azila Shuhada Tong Wei Hang & Ong Tze Xian (with her) (Messrs Shearn Delamore & Co.) Segeram Mathagan [Messrs. S. Mathavan & Nur Hafizah] Navinderan Subramaniam Komal Vijay Sheth [Messrs. Preakas & Partners]