Pendakwa Raya v Jj Power Groups Enterprise & 32 Others (WA-44-79-05/2018)

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) 3

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 (NO. K/P: 560222-07-5266) 4

HNG CHUN CHEAT

QUAH LI CHUAN

JIM LIM HENG HAI

HO GIAO HOONG

HO GIAO YEN

ALVIN CHONG YEW KUAN

TAN SIEW KHIM (NO. K/P: 770305-07-6016) … RESPONDENTS JUDGMENT Introduction [1] This is an application dated 04.05.2018 (Enclosure 1) by the Public Prosecutor under section 56(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“AMLATFPUAA”) to forfeit the properties seized from the 1st to 33rd respondents. This application was first 5 heard before me on 21.06.2019 after it was transferred from another High Court. After the application was served, the following respondents entered into a settlement, respectively, with the Public Prosecutor:

a settlement between the applicant and the 18th respondent on 11.03.2019; and

a settlement between the applicant and the 19th respondent on 21.06.2019. [2] In the meantime, the following respondents did not file any affidavits in response to the present application and neither are they represented in the present application:

the 21st respondent;

the 22nd respondent; 6

the 29th respondent; and

the 33rd respondent. [3] On 21.06.2019, this Court allowed for a notice under section 61(2) of the AMLATFPUAA to be published in the Gazette. On 13.09.2019, the third party notice was published the Gazette vide P.U.(B) 441/2019. Two firms of solicitors responded to the third party notice and stake a claim as third parties. On 20.09.2019, this Court has ordered for the present application against the respondents under section 56(1) of the AMLATFPUAA and the third party claims under section 61 of the AMLATFPUAA to be heard together. Background facts [4] In the present application, an investigation into the case was triggered by a police report lodged by one Tan Kai Lin vide Bukit Gambir Report No. 780/17 on 25.04.2017. On 06.01.2017, he invested RM4,700.00 in the JJ Poor to Rich (JJPTR) scheme 7 through the 6th respondent’s CIMB Bank Account No.

For the first 3 months, he received investment returns in the sum of RM840.00 per month. [5] Later, on 25.04.2017, he learnt from his social media account that it was reported in the news that the JJPTR scheme was not a licensed investment and there was an element of money laundering involved. He then lodged a police report vide Bukit Gambir Report No. 780/17 on the same day. A few days later, someone claiming to be from JJPTR contacted him to return him the balance sum of RM2,180.00 he had earlier invested. There were also other individuals claiming to be from JJPTR who pressured him to withdraw the police report. Fearing for his safety and that of his family, he withdrew the police report. [6] Acting on the police report lodged by Tan Kai Lin, ASP Rastam Affandi bin Md Ramli (“ASP Rastam”) carried out an investigation. In his investigation, ASP Rastam found that the two companies were incorporated at the instructions of the 23rd 8 respondent, namely PCP Global Tech Sdn Bhd (5th respondent) and L & L Property Ventures Sdn Bhd (6th respondent). Although the names of Lim Seong Woei and Lim Sing Chuan appear as directors for the companies, both of them merely provided the 23rd respondents with copies of their respective identity cards for the purposes of incorporation of the companies. Both of them also pre-signed all blank cheques for the companies. All company documents and the pre-signed blank cheques were kept by the 23rd respondent. [7] In his investigations, ASP Rastam also found that Tan Kai Lin’s investment sum of RM4,700.00 was remitted into the 6th respondent’s CIMB Bank Berhad account. Apart from that, there were also frequent remittances into the 6th respondent’s CIMB Bank Berhad account which ASP Rastam suspected to be made by numerous investors in the JJPTR scheme. ASP Rastam concluded that there is a case of cheating under section 420 of the Penal Code in that the JJPTR scheme deceived the investors into believing that it is licensed to carry out trading in foreign 9 currencies and accepted from them deposits for investments with a promised monthly rate of returns at the rate of 20% despite not having the required license under section 10 of the Financial Services Act 2013. ASP Rastam later handed over the investigations to Inspector Sopawan a/p Kin (“Inspector Sopawan”) for further investigations in relation to the offence of money laundering. [8] Several statements under section 32 of the AMLATFPUAA have been recorded from the respondents, acquaintances of the respondents, individuals who were officers and employees of the respondent companies, investors and agents for the JJPTR scheme. Inspector Sopawan also confirmed that a number of police reports have been lodged by several investors in the JJPTR scheme. Chronologically, they are as follows:

Bukit Mertajam Report No. 5024/17 dated 27.04.2017 lodged by Tan Hai Khim in respect of the sum of 10 RM9,200.00 remitted into the account of Richway

Bukit Mertajam Report No. 5079/17 dated 28.04.2017 lodged by Ooi Sin Di in respect of the sum of RM3,960.00 remitted into the account of Yow Chin Hiang and further sums of RM4,200.00 and RM9,400.00 remitted into the account of the 3rd respondent;

Bukit Raja Report No. 3554/17 dated 12.05.2017 lodged by Lim Meng Hock in respect of the sum of RM51,700.00 and a further sum of RM4,70.00 remitted into the account of the 5th respondent;

Bukit Mertajam Report No. 5910/17 dated 19.05.2017 lodged by Goo Chee Horng in respect of the sum of RM2,350.00 and a further sum of RM35,250.00 remitted into the account of the 5th respondent; 11

Perai Report No. 2848/17 dated 20.05.2017 lodged by Ln Kai Jung in respect of the sum of USD1,000.00 remitted into the account of the 5th respondent and a further sum of USD1,000.00 remitted by her husband into the account of the 5th respondent;

Seberang Jaya Report No. 4826/17 dated 20.05.2017 lodged by Hoo Long Pin in respect of the sum of RM470.00 remitted into the account of JJPTR;

Jelutong Report No. 3192/17 dated 20.05.2017 lodged by Tan Sew Hoon in respect of the sum of RM2,350.00 and a further sum of RM2,350.00 remitted into the account of the 6th respondent;

Sg Nibong Report No. 3377/17 dated 20.05.2017 lodged by Ong Vee Kong in respect of the sum of RM94,000.00; 12

Sg Bakap Report No. 1445/17 dated 22.05.2017 lodged by Piragasam a/l Madhu in respect of the sum of RM1,410.00 remitted into the account of the 5th respondent and a further sum of RM920.00 remitted into the account of Richway Green Ventur;

Pulau Tikus Report No. 1845/17 dated 22.05.2017 lodged by Teng Poh Lay in respect of the sum of RM4,700.00 remitted into the account of the 6th respondent;

Central Report No. 1986/17 dated 22.05.2017 lodged by Chin Meng Hwa @ Ch’ng Soon Kheng in respect of the sum of RM4,700.00;

Jelutong Report No. 3227/17 dated 22.05.2017 lodged by Ewe Soo Leng in respect of the sum of RM4,700.00 remitted into the account of the 3rd respondent; 13

Jelutong Report No. 3254/17 dated 23.05.2017 lodged by Ooi Wei Ping in respect of the sum of RM4,700.00;

Kuang Report No. 2410/17 dated 28.05.2017 lodged by Teh Lian Hing in respect of the sum of RM4,700.00 remitted into an account in favour of the 6th respondent and a further sum of RM4,700.00 remitted by his wife into an account in favour of the 6th respondent;

Jinjang Report No. 11210/17 dated 28.05.2017 lodged by Yeoh Kian Lai in respect of the sum of RM4,700.00 remitted into the account of the 5th respondent;

Bandar Baru Report No. 1331/17 dated 30.05.2017 lodged by Chia Han Jun in respect of the sum of RM2,520.00 remitted into the account of the 3rd respondent and a further sum of RM6,580.00 remitted into the account of the 5th respondent; 14

Setapak Report No. 8558/17 dated 02.06.2017 lodged by Alan Wong in respect of the sum of RM4,700.00 remitted into the account of the 6th respondent;

Jelutong Report No. 4062/17 dated 27.06.2017 lodged by Chen Chih Cheng in respect of the sum of

Jelutong Report No. 4405/17 dated 13.07.2017 lodged by Fok Chee Youn in respect of the sum of RM4,700.00 remitted into the account of the 5th respondent. [9] In her investigations, Inspector Sopawan found that the various bank accounts of the respondents have been used to accept deposits for the purpose of investment as well as to accept remittances of returns of investment in the JJPTR scheme. Certain bank accounts of the respondents running the JJPTR scheme have also been used to purchase a property at Taman 15 Kledang Pertama, Menglembu, Perak, a Volkswagen Beetle No. PMU 7926 and a Honda Accord No. PME 7926. Remittances were also made from the bank accounts of the 6th respondent to the bank account of the 17th respondent for gambling excursions packages at the casino at Genting Highlands. The subject matter of the application [10] The Public Prosecutor filed an application under section 56(2) of the AMLATFPUAA for an order to forfeit certain properties belonging to the respondents. In the application, the Public Prosecutor sought to forfeit the following properties: 1st respondent

cash in the sum of RM10,474,589.00 and any of its accruals in the 1st respondent’s current account No. 13700024431 at the Hong Leong Bank Berhad, Salak South branch, Kuala Lumpur which was seized on 04.08.2017; 16 2nd respondent

cash in the sum of RM16,423.34 and any of its accruals in the 2nd respondent’s current account 5300102610 at the Hong Leong Bank Berhad, Pulau Tikus branch, Penang which was seized on 04.08.2017;

cash in the sum of RM318,602.48 and any of its accruals in the 2nd respondent’s current account No. 20713000033183 at the RHB Bank Berhad, Sungai Dua branch, Penang which was seized on 04.08.2017; 3rd respondent

cash in the sum of RM42,247.42 and any of its accruals in the 3rd respondent’s current account 20703700059250 at the RHB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 17 4th respondent

cash in the sum of RM1,375,862.40 and any of its accruals in the 4th respondent’s current account No. 33700015969 at the Hong Leong Islamic Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 5th respondent

cash in the sum of RM151,605.08 and any of its accruals in the 5th respondent’s current account No. 8008091851 at the CIMB Bank Berhad, Menara BHL branch, Penang which was seized on 04.08.2017;

cash in the sum of RM2,220.81 and any of its accruals in the 5th respondent’s current account No. 2201008627 at the Hong Leong Islamic Bank Berhad, Penang branch, which was seized on 04.08.2017; 18 6th respondent

cash in the sum of RM8,037.19 and any of its accruals in the 6th respondent’s current account No. 8008058953 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 7th respondent

cash in the sum of RM29,062.63 and any of its accruals in the 7th respondent’s current account 507433384393 at the Malayan Banking Berhad, Wisma Jelutong branch, Penang which was seized on 04.08.2017; 8th respondent

cash in the sum of RM8,451.76 and any of its accruals in the 8th respondent’s current account 507424629800 at the Malayan Banking Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 19 9th respondent

cash in the sum of RM1,174.03 and any of its accruals in the 9th respondent’s current account 557429061557 at the Malayan Islamic Banking Berhad, Queensbay Mall branch, Penang which was seized on 04.08.2017; 10th respondent

cash in the sum of RM178,633.17 and any of its accruals in the 10th respondent’s current account No. 8008058410 at the CIMB Bank Berhad, Serdang Perdana branch which was seized on 04.08.2017; 11th respondent

cash in the sum of RM60,885.37 and any of its accruals in the 11th respondent’s current account 8008422918 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 20 12th respondent

cash in the sum of RM100,280.84 and any of its accruals in the 12th respondent’s current account No. 557054610973 at the Malayan Islamic Banking Berhad, Komtar branch, Penang which was seized on 04.08.2017; 13th respondent

cash in the sum of RM5,230.52 and any of its accruals in the 13th respondent’s current account 507424629817 at the Malayan Banking Berhad, Queensbay Mall branch, Penang which was seized on 04.08.2017; 14th respondent

cash in the sum of RM15,958.60 and any of its accruals in the 14th respondent’s current account 21 8008100684 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 15th respondent

cash in the sum of RM1,463,723.06 and any of its accruals in the 15th respondent’s current account No. 3811952206 at the Public Islamic Bank Berhad, Pulau Tikus branch, Penang which was seized on 04.08.2017; 16th respondent

cash in the sum of RM325,763.61 and any of its accruals in the 16th respondent’s current account No. 33700015880 at the Hong Leong Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 17th respondent

cash in the sum of RM6,710,422.13 and any of its accruals in the 17th respondent’s current account No. 22 506061506051 at the Malayan Banking Berhad, Genting Highland branch which was seized on 04.08.2017; 18th respondent (a settlement between the applicant and the 18th respondent was recorded on 11.03.2019)

cash in the sum of RM55,113.43 (oral amendment by applicant was allowed on 21.06.2019) and any of its accruals in the 18th respondent’s current account No. 501075020487 at the Malayan Banking Berhad, Kota Tinggi branch, Johor which was seized on 04.08.2017; 19th respondent (a settlement between the applicant and the 19th respondent was recorded on 21.06.2019)

cash in the sum of RM83,080.62 (oral amendment by applicant was allowed on 21.06.2019) and any of its accruals in the 19th respondent’s current account No. 564306013027 at the Malayan Islamic Banking Berhad, 23 Jalan 222 branch, Petaling Jaya which was seized on 04.08.2017; 20th respondent

cash in the sum of RM902,089.19 and any of its accruals in the 20th respondent’s current account No. 23400017061 at the Malayan Banking Berhad, Bandar Botanic branch, Klang which was seized on 04.08.2017; 21st respondent (no affidavit filed and not represented)

cash in the sum of RM4,238.46 and any of its accruals in the 21st respondent’s current account 8008385411 at the CIMB Bank Berhad, Labuan branch which was seized on 04.08.2017; 22nd respondent (no affidavit filed and not represented)

cash in the sum of RM18,367.06 and any of its accruals in the 22nd respondent’s current account No. 8008149641 at the CIMB Bank Berhad, Wisma Ria 24 branch, Sungai Petani, Kedah which was seized on 04.08.2017;

cash in the sum of RM37,562.07 and any of its accruals in the 22nd respondent’s current account No. 20212260041 at the RHB Bank Berhad, Sungai Petani branch, Kedah which was seized on 04.08.2017; 23rd respondent

cash in the sum of RM2,748.92 and any of its accruals in the 23rd respondent’s savings account No. 7058486798 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017;

cash in the sum of RM10,330.25 and any of its accruals in the 23rd respondent’s savings account No. 5004581001 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 25

cash in the sum of RM247.83 and any of its accruals in the 23rd respondent’s savings account 157438033498 at the Malayan Islamic Banking Berhad, Jelutong branch, Penang which was seized on 04.08.2017;

cash in the sum of RM50,710.52 and any of its accruals in the 23rd respondent’s current account 8008091851 at the Malayan Islamic Banking Berhad, Jelutong branch, Penang which was seized on 04.08.2017;

cash in the sum of RM69,140.42 and any of its accruals in the 23rd respondent’s savings account No. 10703700453116 at the RHB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017;

cash in the sum of RM27,872.86 and any of its accruals in the 23rd respondent’s current account 26 33700012254 at the Hong Leong Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017;

cash in the sum of RM155,773.78 and any of its accruals in the 23rd respondent’s savings account No. 000010206202 at the Permodalan Nasional Berhad through the ASNB agent at the Malayan Banking Bank Berhad, Sungai Pinang branch which was seized on 04.08.2017;

the property held under PN 349428, Lot 339405, Mukim Hulu Kinta, Daerah Kinta, Perak bearing the address of No. 5, Kledang Pertama 3, Taman Kledang Pertama, 31450 Menglembu, Perak belonging to the 23rd respondent which was seized on 04.08.2017;

a Volkswagen Beetle 1.4TSI Dune, Engine No: CZD391060, Chassis No: WVWZZZ16ZGM626491 27 bearing registration number PMU 7926 belonging to the 23rd respondent which was seized on 04.08.2017;

a Honda Accord 2.0VTI-L(A), Engine No: R20Z63826209, Chassis No: PMHCR1640ED806289 bearing registration number PME 7926 belonging to the 23rd respondent which was seized on 04.08.2017;

cash in the sum of RM20,936.00 belonging to the 23rd respondent which was seized on 09.06.2017; 24th respondent

cash in the sum of RM22,145.67 and any of its accruals in the 24th respondent’s savings account No. 7059962862 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017;

cash in the sum of RM10,603.75 and any of its accruals in the 24th respondent’s savings account No. 28 7059962862 at the Malayan Banking Berhad, Wisma Jelutong branch, Penang which was seized on 04.08.2017; 25th respondent

cash in the sum of RM65,220.49 and any of its accruals in the 25th respondent’s savings account No. 7077116827 at the Malayan Banking Bank Berhad, Penang Times Square branch, Penang which was seized on 04.08.2017; 26th respondent

cash in the sum of RM98,246.17 and any of its accruals in the 26th respondent’s savings account No. 7022909712 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 29 27th respondent

cash in the sum of RM12,796.00 and any of its accruals in the 27th respondent’s current account 557399103975 at the Malayan Islamic Banking Berhad, Relau branch, Penang which was seized on 04.08.2017; 28th respondent

cash in the sum of RM79,345.22 and any of its accruals in the 28th respondent’s savings account No. 7064173696 at the CIMB Bank Berhad, Jelutong branch, Penang which was seized on 04.08.2017; 29th respondent (no affidavit filed and not represented)

cash in the sum of RM100,000.00 and any of its accruals in the 29th respondent’s savings account No. 157081340796 at the Malayan Islamic Banking Berhad, Balik Pulau branch, Penang which was seized on 04.08.2017; 30

cash in the sum of RM100,000.00 and any of its accruals in the 29th respondent’s current account No. 557081057726 at the Malayan Islamic Banking Berhad, Balik Pulau branch, Penang which was seized on 04.08.2017; 30th respondent

cash in the sum of RM95,457.43 and any of its accruals in the 30th respondent’s savings account No. 7058447224 at the CIMB Bank Berhad, Ayer Itam branch, Penang which was seized on 04.08.2017; 31st respondent

cash in the sum of RM76,707.12 and any of its accruals in the 31st respondent’s savings account No. 7022487743 at the CIMB Bank Berhad, Jalan Ayer Itam branch, Penang which was seized on 04.08.2017; 31 32nd respondent

cash in the sum of RM200,000.00 and any of its accruals in the 32nd respondent’s fixed deposit account No. 5005818951 at the CIMB Bank Berhad, Bukit Tinggi branch which was seized on 04.08.2017;

cash in the sum of RM100,364.88 and any of its accruals in the 32nd respondent’s savings account No. 7612449071 at the CIMB Bank Berhad, Plaza Azalea branch, Shah Alam, Selangor which was seized on 04.08.2017;

cash in the sum of RM40,201.95 and any of its accruals in the 32nd respondent’s savings account No. 8008424805 at the CIMB Bank Berhad, Bukit Tinggi branch, Penang which was seized on 04.08.2017; and 32 33rd respondent (no affidavit filed and not represented)

cash in the sum of RM15,813.75 and any of its accruals in the 33rd respondent’s savings account No. 6866553733 at the Public Bank Berhad, Simpang Ampat branch, Penang which was seized on 04.08.2017. The affidavits [11] The affidavits filed for and against the application are many and voluminous. Some of the affidavits appear in the e-filing system and given the appropriate enclosure numbers while others are not, perhaps due to some technical glitch. However, the respective learned counsels confirm that they have been duly filed. This Court is provided with hard copies of the same. The learned DPP confirms having been served with them and has no objections. In fact, the applicant has filed in the necessary replies. The affidavits filed on behalf of the applicant consist of three categories, namely by the DPP, by the investigating officer for the predicate offence (“I.O. Predicate”) and by the investigating 33 officer for the purposes of the forfeiture application under the AMLATFPUAA (“I.O. AMLATFPUAA”). The affidavits filed for and against the application which appear in the e-filing system are as follows:

affidavits of the DPP (Enclosure 2), I.O. Predicate (Enclosure 3) and I.O. AMLATFPUAA (Enclosure 4), for the applicant;

“Afidavit Jawapan (Responden Ke 18)” affirmed on 11.10.2018 by Chan Jian Chern (Enclosure 109), for the 18th respondent;

“Afidavit Jawapan Responden Ke 17” affirmed on 28.11.2018 by Lim Khek Keng (Enclosure 110), for the 17th respondent; 34

“Afidavit Jawapan Responden Ke 12” affirmed on 30.11.2018 by Khoo Boo Eam (Enclosure 111), for the 12th respondent;

“Afidavit Jawapan Responden Ke 12” affirmed on 30.11.2018 by Khoo Boo Eam (Enclosure 112), for the 12th respondent;

“Afidavit Balasan Kepada Afidavit Jawapan Responden Ke 17” of the DPP (Enclosure 113), for the applicant;

“Afidavit Balasan Kepada Afidavit Jawapan Responden Ke 18” of the DPP (Enclosure 114), for the applicant;

“Afidavit Lanjutan Responden Ke 17” affirmed on 28.02.2019 by Lim Khek Keng (Enclosure 116), for the 17th respondent; 35

“Afidavit Balasan Kepada Afidavit Responden 1” of the DPP (Enclosure 127), I.O. Predicate (Enclosure 128) and I.O. AMLATFPUAA (Enclosure 129), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 2” of the DPP (Enclosure 130), I.O. Predicate (Enclosure 131) and I.O. AMLATFPUAA (Enclosure 132), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 3” of the DPP (Enclosure 133), I.O. Predicate (Enclosure 134) and I.O. AMLATFPUAA (Enclosure 135), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 4” of the DPP (Enclosure 136), I.O. Predicate (Enclosure 137) and I.O. AMLATFPUAA (Enclosure 138), for the applicant; 36

“Afidavit Balasan Kepada Afidavit Responden 5” of the DPP (Enclosure 139), I.O. Predicate (Enclosure 140) and I.O. AMLATFPUAA (Enclosure 141), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 6” of the DPP (Enclosure 142), I.O. Predicate (Enclosure 143) and I.O. AMLATFPUAA (Enclosure 144), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 7” of the DPP (Enclosure 145), I.O. Predicate (Enclosure 146) and I.O. AMLATFPUAA (Enclosure 147), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 8” of the DPP (Enclosure 148), I.O. Predicate (Enclosure 149) 37 and I.O. AMLATFPUAA (Enclosure 150), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 9” of the DPP (Enclosure 151), I.O. Predicate (Enclosure 152) and I.O. AMLATFPUAA (Enclosure 153), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 11” of the DPP (Enclosure 154), I.O. Predicate (Enclosure 155) and I.O. AMLATFPUAA (Enclosure 156), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 12” of the DPP (Enclosure 157), I.O. Predicate (Enclosure 158) and I.O. AMLATFPUAA (Enclosure 159), for the applicant; 38

“Afidavit Balasan Kepada Afidavit Responden 13” of the DPP (Enclosure 160), I.O. Predicate (Enclosure 161) and I.O. AMLATFPUAA (Enclosure 162), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 14” of the DPP (Enclosure 163), I.O. Predicate (Enclosure 164) and I.O. AMLATFPUAA (Enclosure 165), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 15” of the DPP (Enclosure 166), I.O. Predicate (Enclosure 167) and I.O. AMLATFPUAA (Enclosure 168), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 16” of the DPP (Enclosure 169), I.O. Predicate (Enclosure 170) and I.O. AMLATFPUAA (Enclosure 171), for the applicant; 39

“Afidavit Balasan Kepada Afidavit Responden 20” of the DPP (Enclosure 172), I.O. Predicate (Enclosure 173) and I.O. AMLATFPUAA (Enclosure 174), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 23” of the DPP (Enclosure 175), I.O. Predicate (Enclosure 176) and I.O. AMLATFPUAA (Enclosure 177), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 24” of the DPP (Enclosure 178), I.O. Predicate (Enclosure 179) and I.O. AMLATFPUAA (Enclosure 180), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 25” of the DPP (Enclosure 181), I.O. Predicate (Enclosure 182) 40 and I.O. AMLATFPUAA (Enclosure 183), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 26” of the DPP (Enclosure 184), I.O. Predicate (Enclosure 185) and I.O. AMLATFPUAA (Enclosure 186), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 27” of the DPP (Enclosure 187), I.O. Predicate (Enclosure 188) and I.O. AMLATFPUAA (Enclosure 189), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 28” of the DPP (Enclosure 190), I.O. Predicate (Enclosure 191) and I.O. AMLATFPUAA (Enclosure 192), for the applicant; 41

“Afidavit Balasan Kepada Afidavit Responden 30” of the DPP (Enclosure 193), I.O. Predicate (Enclosure 194) and I.O. AMLATFPUAA (Enclosure 195), for the applicant;

“Afidavit Balasan Kepada Afidavit Responden 31” of the DPP (Enclosure 196), I.O. Predicate (Enclosure 197) and I.O. AMLATFPUAA (Enclosure 198), for the applicant; and

“Afidavit Balasan Kepada Afidavit Responden 32” of the DPP (Enclosure 199), I.O. Predicate (Enclosure 200) and I.O. AMLATFPUAA (Enclosure 201), for the applicant. The affidavits filed by other respondents against the application which do not appear in the e-filing system are as follows: 42

“Afidavit” affirmed on 27.12.2018 by Cornelius Michael for and on behalf of the 1st respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 2nd respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 3rd respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 4th respondent;

“Afidavit” affirmed on 20.12.2018 by Pang Chee Peng for and on behalf of the 5th respondent;

“Afidavit” affirmed on 20.12.2018 by Lim Seong Woei for and on behalf of the 6th respondent; 43

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 7th respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 8th respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 9th respondent;

“Afidavit” affirmed on 31.12.2018 by Lee Chong Pei for and on behalf of the 11th respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 13th respondent;

“Afidavit” affirmed on 27.12.2018 by Pang Chee Peng for and on behalf of the 14th respondent; 44

“Afidavit” affirmed on 27.12.2018 by Lim Sing Chuan for and on behalf of the 15th respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen for and on behalf of the 16th respondent;

“Afidavit” affirmed on 31.12.2018 by Ezham bin Azmi for and on behalf of the 20th respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Choong Sen, the 23rd respondent;

“Afidavit” affirmed on 27.12.2018 by Tan Kai Lee, the 24th respondent;

“Afidavit” affirmed on 18.12.2018 by Lee Thean Chye, the 25th respondent; 45

“Afidavit” affirmed on 27.12.2018 by Ooi Ah Sim, the 26th respondent;

“Afidavit” affirmed on 19.12.2018 by Hng Chun Cheat, the 27th respondent;

“Afidavit” affirmed on 27.12.2018 by Quah Li Chuan, the 28th respondent;

“Afidavit” affirmed on 20.12.2018 by Ho Giao Hoong, the 30th respondent;

“Afidavit” affirmed on 20.12.2018 by Ho Giao Yen, the 31st respondent; and

“Afidavit” affirmed on 27.12.2018 by Alvin Chong Yew Kuan, the 32nd respondent. 46 Claims by the third party [12] After the notice to third party was published in the Gazette vide P.U.(B) 441/2019, two firms of solicitors responded to the third party notice and stake a claim. They are Messrs. Asmah Shukri & Co. and Messrs. Jaya Prem Chambers. Both legal firms claim for the total sum of RM120,000.00 each in legal fees for jointly representing the 1st, 2nd, 4th, 5th, 11th, 15th, 16th, 20th, 23rd, 25th, 26th, 28th, 30th, 31st and 32nd respondents. The affidavits filed for and against the claim by the third parties are as follows:

“Afidavit Pihak Ketiga” affirmed on 04.10.2019 by Mohd Shukri bin Ahmad Mansor (Enclosure 208), for the third party;

“Afidavit Pihak Ketiga” affirmed on 07.10.2019 by Jaya Prem a/l Gopal Krishnan (Enclosure 209), for the third party; 47

“Afidavit Balasan Kepada Afidavit Pihak Ketiga Tetuan Asmah Shukri & Co.” of the DPP (Enclosure 210), for the applicant; and

“Afidavit Balasan Kepada Afidavit Pihak Ketiga Tetuan Jaya Prem Chambers” of the DPP (Enclosure 211), for the applicant. Brief deliberations Contention of the applicant [13] In support of the application, the learned DPP contends that the properties seized are the subject matter or evidence relating to the commission of a money laundering offence arising out of the predicate offence of cheating under section 420 of the Penal Code. The investigations carried out by the I.O. Predicate and the I.O. AMLATFPUAA show that the offence of cheating relates to the “investments” in the JJPTR scheme which is based on activities of unlicensed trading in foreign currencies. The investigations also show that the properties seized consist of 48 various deposits and remittances of monies in the JJPTR scheme including the purchase of a property and two vehicles using monies which emanated from or connected with the scheme. [14] The learned DPP submits that the police reports lodged by the individual investors show that after investing in the JJPTR scheme by depositing certain sums of money through the bank accounts of certain respondents on the promise of a monthly 20% rate of returns, they only received their “returns of investment” for a few months and then it stopped. The statements recorded under section 32 of the AMLATFPUAA from the respondents, acquaintances of the respondents, individuals who were officers and employees of the respondent companies, investors and agents for the JJPTR scheme further show that the 23rd respondent is the founder of the JJPTR scheme. [15] The 23rd respondent had masterminded the incorporation of a number of companies to perpetuate the scheme by fronting 49 certain retail businesses as a guise and disguising the “investors” as “members” of these businesses who get certain benefits. The 23rd respondent admitted in his statement that all the monies in the seized bank accounts of the companies involved in the JJPTR scheme are in fact monies collected from the “investors”. Contention of the 1st to 11th, 13th to 16th, 20th, 23rd to 28th and 30th to 32nd respondents [16] The learned counsels for the 1st to 11th, 13th to 16th, 20th, 23rd to 28th and 30th to 32nd respondents contend that the monies received in the relevant accounts were membership fees for legitimate businesses of the JJPTR and not deposits for investments in the JJPTR scheme. The learned counsels argue that the 23rd respondent was initially charged at the Magistrate’s Court Kuala Lumpur together with two others for an offence under section 420 of the Penal Code but the charge was later withdrawn. The 23rd respondent was in fact given a discharge not amounting to acquittal. In this regard, the applicant could not be said to have successfully established that the properties seized 50 were connected with the offence of money laundering premised on the offence of cheating under section 420 of the Penal Code. It is submitted that when the charge against the 23rd respondent was withdrawn, the applicant is deemed to have admitted that in fact, there is no predicate offence. [17] The learned counsels argue that the police report relied on in the affidavit of the DPP is not substantive evidence as the investigation has not started. Thus, it could not be the basis to show that an offence of cheating under section 420 of the Penal Code has been committed. The applicant relied heavily on statements recorded from the respondents. These statements are recorded under section 112 of the Criminal Procedure Code and section 32 of the AMLATFPUAA. The statements merely show the nature of business carried out by the respondents but not the element of an offence under section 420 of the Penal Code. These statements are only admissible at the trial of the respondents for purposes of cross-examination and impeachment but not in the present application. The learned 51 counsels made reference to section 72 of the AMLATFPUAA and submits that since there is no prosecution, these statements are inadmissible and must be excluded from consideration. [18] The learned counsels challenge the inclusion of the voluminous bank statements of the respondents’ bank accounts and contend that the bank statements themselves without any analysis or money-trail are of no assistance to support the applicant’s case. They could not show that the monies in these accounts are proceeds of the unlawful activity alleged to have taken place. [19] The applicant in his affidavits appears to be inconsistent as to the specific nature of the predicate offence. The affidavit of the DPP states that the predicate offence is cheating under section 420 of the Penal Code. The affidavits of the I.O. Predicate and the I.O. AMLATFPUAA state that the predicate offence are cheating under section 420 of the Penal Code, illegal deposit-taking under section 137 of the Financial Services Act 52 2013 and trading in foreign currencies with the additional offence in securities according to the I.O. AMLATFPUAA. The learned counsels submit that the predicate offence of cheating as deposed to by the DPP should be the one that matters since the conduct of prosecution is within his domain. However, since there is an order of discharge not amounting to acquittal in that regard, it must be taken that the applicant has failed to clearly prove the predicate offence. Contention of the 12th respondent [20] The learned counsel for the 12th respondent contends that there was no evidence to show that the monies in the bank account of the 12th respondent are the subject matter or evidence relating to the commission of an offence of money laundering under section 4(1)(a) of the Act. There was also no nexus between the 12th respondent and the offence of cheating involving the JJPTR scheme. In the affidavit affirmed by Khoo Boo Eam (Enclosures 111 and 112) as a director and shareholder of the 12th respondent, it was deposed that the 53 money which was deposited on 06.01.2017 was an investment meant to upgrade the business premises of the 12th respondent. The learned counsel for the 12th respondent maintains that at most, the only evidence is the statement of the 23rd respondent (Exhibit “SK – 58”) but that is hearsay and should not be taken into consideration. Contention of the 17th respondent [21] The learned counsel for the 17th respondent contends that it is a casino junket involved in the business of arranging for gambling excursions at the casino at Genting Highlands. The 17th respondent admitted having received a total of RM7,725,030.00 in 11 transactions from the 32nd respondent for gambling excursions. The 17th respondent had disbursed gambling chips for the 32nd respondent for the total sum of RM9,705,095.00 as follows:

gambling chips amounting to RM3,000,000.00 on 23.04.2017; 54

gambling chips amounting to RM565,000.00 on 06.05.2017;

gambling chips amounting to RM5,000,000.00 on 07.05.2017; and

gambling chips amounting to RM1,140,095.00 on 17.05.2017. [22] The learned counsel for the 17th respondent contends that the sum of RM7,725,030.00 deposited by the 32nd respondent in its account has been totally used up and in fact, the 32nd respondent owes the 17th respondent the sum of RM1,980,065.00. In the circumstances, the monies in the 17th respondent account which was seized are not part of the monies deposited by the 32nd respondent but belong to other customers of the 17th respondent. 55 Contention of the third parties [23] For the third parties, it is argued that both of them have satisfied the condition under paragraph (a) of section 61(4) of the Act as their claims are for legal fees for services rendered in representing the 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to 32nd respondents. Both the third parties’ claims also consist of the legal fees in representing the 23rd accused and the two other person in the criminal charges for the related offence of cheating under section 420 of the Penal Code. [24] The third parties contend that as far as the requirement under section 61(4) of the Act is concerned, only paragraph (a) is applicable to them and not the other requirements under paragraphs (b) to (e). The case of PP v. Venus Empire Enterprise & Ors. [2019] 1 LNS 908 is referred to in support of their contention. They contend that as lawyers, they have a legitimate legal interest in the seized property and that this Court ought to return the amount equivalent to their claim for legal fees. In the alternative, they contend that all the other requirements 56 under paragraphs (b) to (e) of section 61(4) of the Act too have been satisfied since their affidavits in that regard are not controverted to by the applicant in a reply. Analysis and findings [25] Section 56 of the AMLATFPUAA deals with forfeiture of property in cases where there is no prosecution or conviction for a money laundering offence or a terrorism financing offence. Under section 56(1) of the AMLATFPUAA, an application for the forfeiture of properties seized under the Act may be made by the Public Prosecutor before the expiration of 12 months from the date of the seizure. The application is subject to section 61 of the Act and in that regard, the requirement under section 61(2) for a notice to be published in the Gazette calling for any third party who claims to have an interest in the property to show cause why the property should not be forfeited must first be satisfied. (See: PP lwn. Taiko Fertiliser & Yang Lain [2019] 4 CLJ 480 CA; [2019] MLJU 88; [2019] MLRAU 36). 57 [26] There are no express procedures provided for under the AMLATFPUAA with regard to claims by a third party. (See: PP lwn. Raja Noor Asma Raja Harun [2013] 5 CLJ 656; [2013] 9 MLJ 181; [2013] MLRHU 393). Unlike ordinary third party proceedings where a claim for indemnity or contribution against a third party is dependent on the liability of the defendant, the position is somewhat different in the present application. If the third party can satisfy the conjunctive conditions under paragraphs (a) to (e) of section 61(4) of the Act, this Court shall return the seized property to the third party (See: Teh Tek Soon lwn PP [2015] 1 LNS1504 CA; [2015] MLRAU 433). [27] Essentially, it boils down to the single question of whether the property seized or any part of it as claimed by the third party, may be forfeited, irrespective of whether or not the applicant is successful in its application against the respondents. For that reason, I have at the onset ordered for the third party claims under section 61 of the Act to be heard together with the present application against the respondents under section 56(1) of the 58 Act. I also directed the third parties to file in their respective affidavits. [28] The application for forfeiture may be made by the Public Prosecutor only in respect of properties falling within any of the categories specified in paragraphs (a) to (d) of section 56(1). Section 56(1) of the AMLATFPUAA provides as follows:

“Forfeiture of property where there is no prosecution

Subject to section 61, where in respect of any property seized under this Act there is no prosecution or conviction for an offence under subsection 4(1) or a terrorism financing offence, the Public Prosecutor may, before the expiration of twelve months from the date of the seizure, or where there is a freezing order, twelve months from the date of the freezing, apply to a judge of the High Court for an order of forfeiture of that property if he is satisfied that such property is — 59

the subject-matter or evidence relating to the commission of such offence;

terrorist property;

the proceeds of an unlawful activity; or

the instrumentalities of an offence.”. It is thus pertinent to firstly consider whether the application complies with the requirements of section 56(1) of the AMLATFPUAA. Whether there is a prosecution or conviction for an offence under subsection 4(1) or a terrorism financing offence [29] It is not disputed that there is no prosecution or conviction under section 4(1) of the AMLATFPUAA or of a terrorism financing offence in respect of the seized properties. In his 60 affidavit (Enclosure 2) at paragraph 56, the DPP too confirmed that the Public Prosecutor decided not to proceed with any prosecution under section 4(1) of the AMLATFPUAA. In this context, I find that the condition under section 56(1) of the Act in this regard has been fulfilled. Publication of third party notice in the Gazette [30] On 21.06.2019, this Court allowed for a notice under section 61(2) of the AMLATFPUAA to be published in the Gazette. On 13.09.2019, the third party notice was published the Gazette vide P.U.(B) 441/2019. This requirement has thus been fulfilled. Whether the application is made before expiry of 12 months from the date of seizures [31] The seized properties consist of monies in various accounts, a property in Perak, a Volkswagen Beetle No. PMU 7926 and a Honda Accord No. PME 7926. Seizures of the properties were made on two dates, namely on 04.08.2017 and 61

09.06.2017. The present application was filed on 04.05.2018. Thus, I find that the present application has been made before expiry of the period of 12 months from the date of the respective seizures. [32] I shall now examine whether the applicant has satisfied the necessary requirements to have the seized properties forfeited. Under section 56 of the Act, the classifications of the properties for which an application subsection (1) may be made by the Public Prosecutor and the classifications of properties for which an order of forfeiture under subsection (2) may be made by the court are the same. Whether the applicant has satisfied the necessary conditions for the property to be forfeited [33] In considering an application under section 56(1) of the Act, it is the duty of this Court under subsection (2) to consider whether the applicant has provided sufficient evidence to show that the seized properties fall under any of the disjunctive 62 categories provided for under sub-paragraphs (i) to (iv) of section 56(2)(a) and that there is no purchaser in good faith for valuable consideration in respect of the properties pursuant to section 56(2)(b) of the Act. Section 56(2) of the AMLATFPUUA provides as follows:

“Forfeiture of property where there is no prosecution

The judge to whom an application is made under subsection (1) shall make an order for the forfeiture of the property if he is satisfied —

that the property is —

the subject-matter or evidence relating to the commission of an offence under subsection 4(1) or a terrorism financing offence; 63

(ii) terrorist property;

(iii) the proceeds of an unlawful activity; or

(iv) the instrumentalities of an offence; and

that there is no purchaser in good faith for valuable consideration in respect of the property. [34] In its application, the applicant takes the position that the seized properties fall within paragraph (a) of section 56(1) of the Act, namely, that they are the subject matter or evidence relating to the commission of an offence under section 4(1)(a) of the Act. The offence under section 4(1)(a) of the Act is one of money laundering. Section 4(1)(a) of the AMLATFPUAA provides as follows: “Offence of money laundering 64

(1) Any person who —

engages, directly or indirectly, in a transaction that involves proceeds of an unlawful activity or instrumentalities of an offence; ...”. [35] The crux of the applicant’s case is that the various properties seized from the respondents are the subject matter or evidence relating to the commission of the offence of money laundering under section 4(1)(a) of the AMLATFPUAA. It is also the applicant’s case that the predicate offence in the present application which is the constituent of the offence of money laundering is one of cheating under section 420 of the Penal Code. In determining whether the applicant has succeeded in proving that the various properties seized from the respondents are the subject matter or evidence relating to the commission of the offence of money laundering under section 4(1)(a) of the AMLATFPUAA, an analysis of the relationship between the 65 definitions of “unlawful activity”, “proceeds of an unlawful activity” and “serious offence” under section 3 of the Act is inevitable. For ease of reference, section 3 of the AMLATFPUAA defines “unlawful activity”, “proceeds of an unlawful activity” and “serious offence”, respectively, as follows:

“Interpretation

In this Act, unless the context otherwise requires — “unlawful activity” means —

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 66 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; “proceeds of an unlawful activity” means any property, or any economic advantage or economic gain from such property, within or outside Malaysia —

which is wholly or partly —

derived or obtained, directly or indirectly, by any person from any unlawful activity;

(ii) derived or obtained from a disposal or other dealings with the property referred to in subparagraph (i); or 67

(iii) acquired using the property derived or obtained by any person through any disposal or other dealings referred to in subparagraph (i) or (ii); or

which, wholly or partly, due to any circumstances such as its nature, value, location or place of discovery, or to the time, manner or place of its acquisition, or the person from whom it was acquired, or its proximity to other property referred to in subparagraph (a)(i), (ii) or (iii), can be reasonably believed to be property falling within the scope of subparagraph (a)(i), (ii) or (iii); “serious offence” means —

any of the offences specified in the Second Schedule; 68

an attempt to commit any of those offences; or

the abetment of any of those offences;”. [36] The offence of cheating under section 420 of the Penal Code falls under the category of “serious offence” as it is specified in the Second Schedule of the Act. Being a serious offence, the offence of cheating under section 420 of the Penal Code is an “unlawful activity”. Any property which is wholly or partly derived or obtained from the unlawful activity becomes “proceeds of an unlawful activity” and engaging in a transaction which involves the proceeds of an unlawful activity is an offence of money laundering under section 4(1)(a) of the Act. [37] The offence of cheating under section 420 of the Penal Code is made out of the following ingredients:

there was delivery of property by the complainant to any person; 69

the delivery of property was as a result of the inducement practiced on the complainant by the perpetrator;

the complainant had acted on the inducement in consequence of the deception practiced by the perpetrator;

the perpetrator had acted dishonestly in so inducing the complainant to part with the property; and

the complainant suffered losses in consequence of the deception by the perpetrator. (See: Loh Liang Gun & Anor. v. Public Prosecutor [2007] 4 CLJ 467 CA; [2007] 5 MLJ 159; [2007] 1 MLRA 621; [2007] 4 AMR 353). 70 [38] In determining whether the seized property relates to the offence 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. Section 56(4) of the AMLATFPUAA provides as follows:

“Forfeiture of property where there is no prosecution

In determining whether the property is —

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

terrorist property; 71

the proceeds of an unlawful activity; or

the instrumentalities of an offence, the court shall apply the standard of proof required in civil proceedings.”. Section 70 of the AMLATFPUAA reads as follows:

“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.”. 72 [39] The Federal Court in PP v. Awalluddin Sham Bokhari [2018] 1 CLJ 305 FC; [2018] 2 MLJ 401; [2018] 1 MLRA 357; [2017] 8 AMR 533 reiterated this position and observed that the standard of proof to be applied in an application for an order of forfeiture of property under section 56(1) of the AMLATFPUAA is that which is applicable in civil proceedings, namely, on the balance of probabilities. Delivering the judgment of the apex Court, His Lordship Abu Samah Nordin FCJ said — “[31] In an application for an order of forfeiture of property under s. 56(1) where there is no prosecution, the standard of proof to determine whether the property has been obtained as a result of or in connection with an offence under s. 4(1) is the standard of proof required in civil proceedings: See s. 56(4) of the Act. Any question of fact to be decided by the court in proceedings under the Act shall be decided on the balance of probabilities: See s. 70(1) of the Act.”. [40] In deciding whether or not the applicant succeeded in proving its case on the balance of probabilities, this Court will 73 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. [41] Between 27.04.2017 and 13.07.2017, there are a total of 19 police reports lodged by individuals who made investments in the JJPTR scheme after being lured with the promise of a monthly 20% returns but did not continue get their returns after two or three months. These police reports are collectively marked as Exhibit “SK – 2” in the affidavit of the I.O. AMLATFPUAA. 74 These individuals parted with their monies and made the investments in the JJPTR scheme believing that it was a true investment scheme in foreign currency whereas the JJPTR scheme is not licensed as such. As a result of the deception, these individuals suffered losses. [42] The statements recorded under section 32 of the AMLATFPUAA are annexed in the affidavit of the I.O. AMLATFPUAA as Exhibits “SK – 58”, “SK – 59”, “SK – 60”, “SK – 61”, “SK – 62”, “SK – 63”, “SK – 64”, “SK – 67”, “SK – 68”, “SK – 69”, “SK – 70”, “SK – 71”, “SK – 72”, “SK – 73”, “SK – 74” and “SK – 75” respectively. The apex Court in PP v. Awalluddin Sham Bokhari (supra.) has held that by virtue of section 40 of the AMLATFPUAA, statements recorded pursuant to this provision are admissible as evidence in any proceedings in relation to an offence or any matter under the Act or any offence under any other written law. It is thus pertinent to consider the conclusions arrived at by the I.O. AMLATFPUAA in the course of 75 her investigations after these statements were examined together with other information and documents. [43] In her affidavit, the I.O. AMLATFPUAA averred that she took into account all the police reports lodged by the individual investors, the statements of accounts of all the bank accounts seized, the issue document of title to the property in Perak and the statement (Exhibit “SK – 76” in the affidavit of the I.O. AMLATFPUAA) recorded from the Developer/Vendor for the property, Dataran Mahir (M) Sdn Bhd together with all the relevant documents, the statement (Exhibit “SK – 78” in the affidavit of the I.O. AMLATFPUAA) recorded from the Group Marketing Manager for Goh Brothers Motor in respect of sale of the Volkswagen Beetle No. PMU 7926 together with all the relevant documents and the statement (Exhibit “SK – 79” in the affidavit of the I.O. AMLATFPUAA) recorded from the sales supervisor Kah Motor Co. Sdn Bhd in respect of sale of the Honda Accord No. PME 7926 together with all the relevant documents. She had also verified with the Central Bank of 76 Malaysia and the Securities Commission Malaysia as to the validity of the JJPTR scheme. Checks with the Inland Revenue Board of Malaysia and the Employees Provident Fund were also made to verify whether the monies in the bank accounts seized consist of income and wages which could be properly accounted for. [44] In her affidavit, the I.O. AMLATFPUAA averred that her investigations concluded that the respondents were involved in accepting deposits for investments in the JJPTR scheme and the bank accounts of the 1st to the 33rd respondents were used in a number of remittances from the JJPTR scheme. The property in Perak and the two vehicles were purchased with monies which emanated from the JJPTR scheme. The JJPTR scheme was not licensed to carry on trading in foreign currencies as required by the Financial Services Act 2013. [45] On the other hand, the 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to 32nd respondents took an obviously contrary 77 position. Their respective affidavits contain substantially similar averments. In their respective affidavits, these respondents deny that the monies in the seized accounts are proceeds from an offence under section 420 of the Penal Code and aver that none of them were prosecuted for the alleged offence or in respect of the offence of illegal deposit-taking. They aver that there was no element of deception in the JJPTR scheme and that the investment scheme did not require any license from the Central Bank of Malaysia. They contend that the monies in the seized bank accounts are partly proceeds from legitimate business activities and that the property in Perak and the two vehicles were purchased using monies obtained from legitimate business activities. They challenge that the averments contained in the affidavits of the I.O. Predicate and I.O. AMLATFPUAA are purely hearsay and that the statements recorded under section 32 of the AMLATFPUAA were not voluntary. [46] The property in Perak and the two vehicles were registered under the name of the 23rd respondent only. In his 78 affidavit, the 23rd respondent himself did not challenge the fact that the property in Perak was purchased using monies from the JJPTR scheme. In respect of the two vehicles, it is interesting to note that apart from the 23rd respondent himself, even all the other respondents too, other than the 12th and the 17th respondents, in their respective affidavits claim that the two vehicles were purchased with monies obtained from legitimate business activities. It is observed that apart from averment of these facts, there are no contemporaneous documents exhibited in support those facts, especially one which could shed some light as to the earnings from the alleged legitimate business activities. [47] The learned counsel for the 12th respondent contends that there was no evidence to show that the monies in the bank account of the 12th respondent are the subject matter or evidence relating to the commission of an offence of money laundering under section 4(1)(a) of the Act. There was also no nexus between the 12th respondent and the offence of cheating 79 involving the JJPTR scheme. In the affidavit affirmed by Khoo Boo Eam (Enclosures 111 and 112) as a director and shareholder of the 12th respondent, it was deposed that the money which was deposited on 06.01.2017 was an investment meant to upgrade the business premises of the 12th respondent. The learned counsel for the 12th respondent maintains that at most, the only evidence is the statement of the 23rd respondent (Exhibit “SK – 58”) but that is hearsay and should not be taken into consideration. It is observed that there is no contemporaneous documents exhibited by the 12th respondent to show the fact of the alleged investment to upgrade its business premises. [48] The 17th respondent’s case is somewhat different. The 17th respondent is a casino junket involved in the business of arranging for gambling excursions at the casino at Genting Highlands. The 17th respondent received approval to operate as a Casino Programme Operator of Genting Malaysia Berhad vide the letter of approval dated 12.12.2015 issued by Genting 80 Malaysia Berhad. The 17th respondent earns its commission from Genting Malaysia Berhad at the rate of 0.1% of the gambling chip turnover. In its business, the 17th respondent will issue a cheque for a certain sum to be kept by Genting Malaysia Berhad and in turn, the 17th respondent will be entitled to gambling chips equivalent to the amount of the cheque on a 14 days credit terms. The 17th respondent will then disburse the gambling chips to its customers. If the 17th respondent did not make payment for the gambling chips at the end of the 14 days period, Genting Malaysia Berhad will encash the cheque. [49] In the present case, the 17th respondent received a total of RM7,725,030.00 in 11 transactions from the 32nd respondent. The RM7,725,030.00 was meant for the gambling excursions of 8 customers of the 32nd respondent. The 17th respondent had disbursed gambling chips for the 32nd respondent for the total sum of RM9,705,095.00 as follows: 81

gambling chips amounting to RM3,000,000.00 on 23.04.2017;

gambling chips amounting to RM565,000.00 on 06.05.2017;

gambling chips amounting to RM5,000,000.00 on 07.05.2017; and

gambling chips amounting to RM1,140,095.00 on 17.05.2017. [50] It is the 17th respondent’s case that the sum of RM7,725,030.00 deposited by the 32nd respondent in its account has been totally spent and used up and in fact, the 32nd respondent owes the 17th respondent the sum of RM1,980,065.00. The monies in the 17th respondent account which was seized are not part of the monies deposited by the 32nd respondent but belong to other customers of the 17th 82 respondent as evidenced by Exhibits “LKK – 7” and “LKK – 11” in its affidavit (Enclosure 110). [51] The monies which were deposited into the 17th respondent’s account amounted to RM7,725,030.00. The 17th respondent’s bank account was seized on 04.08.2017 whereas according to the 17th respondent, even as of 07.05.2017 the whole of the RM7,725,030.00 deposited by the 32nd respondent has already been spent on the third excursion to Genting Highlands. On the fourth excursion involving gambling chips worth RM1,140,095.00, the 32nd respondent was already in credit and owed the 17th respondent the total sum of RM1,980,065.00. [52] After examining the material facts together with the documents provided by the applicant, I find that on the balance of probabilities, the applicant 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 83 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. [53] I also find that the applicant has succeeded in establishing on the balance of probabilities that the properties seized from the 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to 32nd respondents and the 12th respondents are the subject matter of evidence relating to the commission of the offence of money laundering under section 4(1)(a) of the Act. I am also satisfied that on the evidence, there are no purchasers in good faith for valuable consideration in respect of the property seized. I am satisfied that the statements recorded under section 32 of the Act, the various statements of accounts, documentary evidence relating to the 84 purchase by the 23rd respondent of the property in Perak and the two vehicles substantially supports the assertions of material facts by the applicant and are consistent with the contention of the applicant. On the other hand, I find that the 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to 32nd respondents and the 12th respondents merely made bare averments in their respective affidavits without properly condescending into contemporaneous documents to support their averments. [54] In respect of the monies in the account of the 17th respondent, I am satisfied that the sum of RM6,710,422.13 and its accruals in the 17th respondent’s current account No. 506061506051 at the Malayan Banking Berhad, Genting Highland branch which was seized on 04.08.2017 could not have been the subject matter or evidence relating to the commission of an offence under section 4(1)(a) of the Act as envisaged by section 56(2)(a) of the Act. Since the monies deposited by the 32nd respondent in the bank account of the 17th respondent is clearly sequestered from monies of other customers, there is no 85 difficulty in finding that the monies remaining in the accounts of the 17th respondent are not part of the deposit made by the 32nd respondent. [55] Against the material factual assertions made by the 17th respondent, the applicant in the affidavit affirmed by the DPP (Enclosure 113) merely made sweeping denials and I am unable to find any affidavit affirmed by the I.O. Predicate or the I.O. AMLATFPUAA to refute the specific averments made by the 17th respondent. It is trite that material averments made in an affidavit must be rebutted by the adverse party and failure to do so risks the material facts being treated as having been admitted. (See: Alloy Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd [1986] CLJ Rep 45 SC; [1986] 1 MLJ 381; [1985] 1 MLRA 309 and Ng Hee Thoong v. Public Bank Bhd [1995] 1 CLJ 609 CA; [1995] 1 MLJ 281; [1995] 1 MLRA 48; [1995] 1 AMR 622). [56] In the circumstances, I find that the relevant subject matter or evidence is no longer in the bank account of the 17th 86 respondent, either wholly or partly. As such, it could not be the subject of a forfeiture application and this Court could not order for its forfeiture. The aim of section 56(2) of the Act is to forfeit the subject matter or evidence of the offence of money laundering and not just any property. To this end, I find that the applicant has failed in its application against the 17th respondent on the balance of probabilities. Whether the third parties have satisfied the conditions under section 61(4)(a) to (e) of the AMLATFPUAA to have the seized properties returned [57] The two third parties are the lawyers who represented the 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to 32nd respondents. The third parties’ claims are for legal fees for services rendered in representing the respondents concerned in the present application as well as in the criminal charges for the related offence of cheating under section 420 of the Penal Code which ended in their clients being discharged. 87 [58] In order for the third parties to succeed in their claim, they must show, on the balance of probabilities, that they have fulfilled all the conjunctive requirements under paragraphs (a) to (e) of section 61(4) of the Act. (See: Teh Tek Soon v. PP (supra.)) [59] I find that the relationship between the third parties and the respondents is in the nature of a contractual relationship between lawyers and clients. Non-payment of the legal fees constitute a debt due from the respondents to the third parties recoverable by legal proceedings. It is in the nature of a chose in action and had yet to crystallize into any legitimate legal interest in the property seized. It is contractually enforceable against the respondents themselves and not against the properties which were seized. As lawyers, their claims should lie against their respective clients personally and not against the seized properties unless they are already at least holding a lien against the properties. They do not have a legitimate legal interest in the seized properties to mount a claim to satisfy their legal fees. In such a circumstance, I hold the considered view that the third 88 parties have no legitimate legal interest in the properties which were seized within the meaning of paragraph (a) of section 61(4) of the AMLATFPUAA. Conclusion [60] Based on the aforesaid reasons, I hereby make the following orders:

that other than the property at prayer 1.19 of the application, I hereby allow the application in Enclosure 1 and order for the properties as per prayers 1.1 to 1.50 of the application with the exception of the properties under prayers 1.20 and 1.21 which have been the subject of an earlier settlement, to be forfeited pursuant to section 56(2) of the Act and pursuant to section 58 of the Act, become vested in the Federal Government; and

that the application in respect of prayer 1.19 is dismissed and all monies in the Malayan Banking 89 Berhad Account No. 506061506051 of the 17th respondent be hereby returned to the 17th respondent. Dated 13 April 2020. -sgd-AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. For the applicant: Harris Ong bin Mohd Jeffery Ong Deputy Public Prosecutor Attorney General’s Chambers For the following respondents: 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to 32nd. Jaya Prem a/l Gopal Krishnan (Messrs. Jaya Prem Chambers) together with Mohd Shukri bin Ahmad Mansor (Messrs. Asmah Shukri & Co.) For the 12th respondent: Ahmad Fariz bin Mohamed (Messrs. Ali & Fariz) For the 17th respondent: Hong Chee Keong Leena Ang binti Basil Ang (Messrs. Simon Hong)