Rosalind Tan Kheng Suan v Peguam Negara Malaysia (P-01(A)-73-02/2023)

This is an appeal filed by Rosalind Tan Kheng Suan (“the appellant”) who was the applicant at the court below in a judicial review application. The appellant sought for an order of certiorari to quash four Notices (release of property seized) dated 3.9.2021 (“the Notices of Release”) which were issued by the 5th respondent, who was the investigating officer (“the IO”), with the consent of the 2nd respondent, who was the Deputy Public Prosecutor (“the DPP”), pursuant to s. 60(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“AMLATFPUAA” / “Act 613”). In effect, the appellant sought to quash the decisions of the IO and the DPP in issuing the Notices of Release and the instructions therein (hereinafter collectively referred to as “the decision”).

On 30.1.2023, the learned High Court judge dismissed the appellant’s judicial review application with costs of RM5,000.00. Dissatisfied with the decision of the learned High Court judge, the appellant filed an appeal to the Court of Appeal. After having considered the submissions, orally and in writing, of the parties’ respective counsels, this Court now set out the reasons for our decision which appears below.

The appellant was investigated by the police for allegedly having committed the offence of criminal breach of trust pursuant to a police Page 5 of 36 report lodged against the appellant by her former employer, Penang Medical College Sdn. Bhd. (“PMC”).

During the course of police investigations, the Deputy Public Prosecutor, Harris Ong Bin Mohd Jeffery Ong, was satisfied that four accounts and other accounts kept and maintained by the appellant with CIMB Islamic Bank Berhad (“CIMB”) were the subject matter of an offence under subsection 4(1) of Act 613, or evidence in relation to the commission of such offence or terrorist property or the proceeds of an unlawful activity or the instrumentalities of an offence. Hence, the said Deputy Public Prosecutor exercised his power under s. 50(1) of Act 613 to issue four separate seizure orders (all dated 8.12.2020) (“the seizure orders”) and ordered that all the accounts, including the four accounts, be seized by the investigating officer, and further ordered that CIMB not to part with, deal in, or otherwise dispose of such movable property or any accretion to it, in whole or in part until the seizure orders were otherwise varied or revoked.

The four accounts which are the subject matter of dispute in the judicial review application are stated as below (“the four accounts”): Account Number Amount (RM) 7019380040 / 07120010499520 (Saving

Account) 75 8008696602 (Current Account) 279,520.75 5800302774 (Fixed Return Income Account) 101,546.64 5003604936 – 0024 & 0026 (Fixed Deposit) 303,903.07 685,209.21 Page 6 of 36 [6] Whilst the police investigations were ongoing, PMC filed a civil action against the appellant via civil suit No. PA-22NCVC-31-02/2021 (“Suit 31”) at the High Court of Penang to recover from the appellant the sum of RM4,331,400.81. On 22.2.2021, PMC obtained a Mareva Injunction order against the appellant’s assets, and the four accounts were, among others, listed as part of the items to be frozen in the Mareva Injunction order. [7] After the seizure orders were issued, the appellant was not charged with any criminal offence. On or around 21.12.2021, the appellant was notified by CIMB in writing that pursuant to the Notices of Release issued by the Royal Police of Malaysia (“PDRM”), CIMB was instructed to release a total sum of RM685,209.21 from the four accounts to PMC. CIMB acted according to the instruction as per the Notices of Release. CIMB did not notify the appellant prior to the release of the said sum to PMC. The said Notices of Release were dated 3.9.2021. The appellant’s complaints [8] The appellant was aggrieved by the decision of the IO and DPP in that the appellant was not notified of the Notices of Release before they were issued, nor was the appellant extended a copy of the Notices of Release after they were issued. The appellant has been deprived of her right to challenge the Notices of Release in addition to being deprived of her right to the money kept in CIMB. The appellant also complained that she was not accorded the right to be heard before a decision was made for issuance of the Notices of Release by the IO, with the consent of the DPP, on 3.9.2021. The appellant also complained that since there was a Mareva Injunction in place, therefore, the Notices of Release could not Page 7 of 36 take effect, and CIMB ought to have resolved the conflicting instructions before releasing the money to PMC. The appellant mounted her judicial review application based on the above complaints and challenged the validity of the issuance of the Notices of Release by the IO which were issued with the consent of the DPP. At the High Court [9] The learned High Court judge concluded that there was no statutory obligation imposed on the respondents to give any notice to the appellant before the issuance of the Notices of Release to CIMB. The learned High Court judge remarked, “in the absence of any express provision in the law regarding such duty, such an implication cannot be simply read into law.” The learned High Court judge said that there could not be a breach of duty where none existed in law. [10] The learned High Court judge also found that the respondents could not be said to have deprived the appellant of the right to be heard (in an inquiry in court), when no such right existed in the law. The learned High court judge referred to s. 60 of Act 613. The learned High Court judge opined that “the right to an inquiry is not specifically provided in section 60 of AMLA”, and his Lordship further stated that “in the absence of any provision concerning the mode of inquiry or right to be heard in section 60 of AMLA, no question of failure to observe the principles of natural justice can arise.” The learned High Court judge opined that the legal maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) applied in the construction of s. 60 compared to ss. 55 and 56 of Act 613. Page 8 of 36 [11] With regard to the complaint that there was a Mareva Injunction order in place before the issuance of the Notices of Release, the learned High Court judge opined that s. 54(3) of Act 613 “overrides” the effect of the Mareva Injunction order because it states that “during the effective period of the seizure orders and so long as such seizure remains in force and until the issuance of the Notices of Release, no action, suit or other proceedings of a civil nature shall be instituted, maintained or continued in respect of the seized money except with the prior written consent of the Public Prosecutor.” [12] Lastly, the learned High Court judge found that the judicial review application ought to have been served to PMC and to other named parties (the former President and current President of PMC) as mentioned in the appellant’s supporting affidavit, because their interests were affected in the judicial review application. [13] The learned High Court judge was satisfied that the Notices of Release were not tainted with illegality, irrationally, unreasonableness or procedural impropriety. Hence, the appellant’s judicial review application was dismissed. Finding and analysis of this Court [14] Before this Court, the appellant raised several grounds of appeal. The main complaint is that the learned High Court judge erred in law (and fact) when his Lordship failed to apply the rules of natural justice, particularly the principle of audi alteram partem (hear the other side or right to be heard), while considering the case in its entirety. The appellant also complained that his Lordship erred in law in applying the maxim Page 9 of 36 expressio unius est exclusio alterius in the interpretation of s. 60 of Act RM800,000.00 that went into the appellant’s accounts was given by Stephen Doughty and David L. Whitford as that fact ought to have been determined in Suit 31, not in the judicial review application. Lastly, the appellant also complained that the learned High Court judge erred in holding that the judicial review application was defective because it was not served to the interested parties, such as PMC and the former President and the current President of PMC. [15] Besides the above grounds of appeal, two pertinent issues were raised in the course of submission. First, this Court raised a question law which reads as follows: “Whether the Public Prosecutor's determination under section 60(1) of Act 613 ("the Act") that a third party is lawfully entitled to money which was seized from the bank account of a person ("the person") under the Act, but not forfeited under the Act, without giving the person prior notice that the seized monies are to be given to the third party and without giving the person the right to be heard, is unconstitutional because this violates the fundamental right to property under Article 13(1) of the Federal Constitution?” [16] Second, the respondents raised a jurisdictional challenge. The respondents averred that the Notices of Release were issued pursuant to Page 10 of 36 a decision made in a criminal matter or in a criminal proceeding, therefore, a civil court has no jurisdiction to hear the matter. In other words, the judicial review application was flawed, and the civil court has no jurisdiction to hear the appellant’s complaint. This challenge was not raised before the High Court at the leave stage for the judicial review application or at the substantive hearing of the judicial review application. The respondents’ challenge was raised for the first time before this Court at this appeal stage. The jurisdictional challenge [17] This Court will first deal with the jurisdictional challenge. It is trite law that a challenge to a court’s jurisdiction could be raised at any stage of the proceeding, including at an appeal stage. Further, a court has “the inherent jurisdiction to set aside orders or judgments that are null and void on grounds of want of jurisdiction whether at appellate stage or otherwise (see Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1, p. 11, FC; Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, FC). [18] The respondents’ counsel submitted that from the onset the proceeding was a criminal investigation under s. 4(1) of Act 613, and clearly, it involved a criminal offence under the regime of criminal law, not a civil wrong under a civil law. Therefore, the proceeding was purely a criminal matter in nature. The decision was made pursuant to s. 60(1) of the same Act 613 which arose from criminal investigations in a criminal proceeding and as such the proceeding and the exercise of power, i.e., the decision made, were clearly within the jurisdiction of a criminal court, not a civil court. Hence, the appellant’s application for a judicial review Page 11 of 36 under Order 53 Rule 2(4) of the Rules of Court (“RoC”) is misplaced. The decisions of the IO and DPP could not be subject to review by a civil court. [19] The respondents’ counsel cited numerous authorities in support of the respondents’ contention, namely the apex court decisions in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2018] Supp MLJ 16, FC, and Government of Malaysia v Lim Kit Siang & Anor case [1988] 1 CLJ (Rep) 63, SC, and High Court decisions in Dato’ Seri Anwar bin Ibrahim v Mohamad Hanafiah bin Hj Zakaria & Ors [2010] 2 MLJ 271, HC, Tengku Jaffar bin Tengku Ahmad v Karpal Singh [1993] 3 MLJ 156, HC, and Tan Sri Eric Chia v Peguam Negara [2005] 5 CLJ 450, HC. [20] This Court has meticulously examined the factual matrix of the cases cited by the respondents’ counsel, and finds that there is a striking similarity in those cases. In Empayar Canggih (supra), the challenge was directed at a decision of the authority to seize the subject matter of a criminal investigation. The decision to seize the subject matters was part of an exercise of a potential criminal prosecution in a criminal investigation. The apex court held that “an exercise of power in the course of a criminal investigation is not open to review under O. 53 of the RHC. To hold otherwise would, to our mind, be exposing the criminal investigation process of all law enforcement agencies in the country to constant judicial review which surely could not have been the intention of parliament.” [21] In Lim Kit Siang (supra), the issue was whether an alleged criminal wrong ought to be tried in a civil court by the civil process. The apex court Page 12 of 36 then posed the question whether the respondent’s application (Lim Kit Siang’s application) was an invitation to the civil court to exercise criminal jurisdiction? The apex court went on to state that “it is unacceptable that criminal law should be enforced by means of civil proceedings for a declaration when the court’s power to grant that remedy is only at the discretion of the Court. Jurisdiction of a criminal Court is fixed and certain....” [22] In Dato’ Seri Anwar bin Ibrahim (supra), the applicant sought a declaratory order for a written statement made under s. 51A(1)(c) of the Criminal Procedure Code to be declared null and void, and further an order of certiorari to nullify and set aside the said statement. The judicial review application was made in the course of a criminal prosecution against the applicant. The High Court held that “it is an abuse of process to seek aid of the civil court to review the written statement and to direct the first respondent to issue a new written statement. The civil court has no jurisdiction to review any act of the public prosecutor undertaken in the discharge of his obligations under the CPC. Any challenge ought to be raised in the criminal court exercising its criminal jurisdiction.” [23] In Tengku Jaffar bin Tengku Ahmad (supra), one of the issues before the civil court was that a complaint was related to alleged criminality, i.e., seditious libel which degraded a ruler or sultan. As such, the court held that “issues which relate to alleged criminality do not come within the purview of a civil court as otherwise the civil court might be accused of intruding into the domain of the criminal court.” [24] In Tan Sri Eric Chia (supra), there was an on-going criminal proceeding in the Sessions Court, and the Attorney General exercised his Page 13 of 36 prerogative and power under s. 8 of the Mutual Assistance in Criminal Matters Act 2002 to make a request to the judicial authority in Geneva and Zurich, Switzerland to record the taking of oral evidence of witnesses and the production of documents for the purpose of using the said evidence and/or documents in the trial at the Sessions Court. The applicant sought in the civil court for an order of certiorari to quash the respondent’s request to the judicial authority. The real question was whether the act of the respondent in invoking s. 8 of the said Act in the midst of the criminal trial could be construed as an intrusion and interference with the judicial powers of the Sessions Court exercising its criminal jurisdiction. The High Court found the request made under s. 8 of the said Act was indeed a decision within the requirements and meaning of O. 53 of the then Rules of the High Court 1980 (“RHC”). However, the High Court found that the act of the respondent in recording the oral evidence of witnesses and the production of documents in the criminal trial was not amenable for review by the civil court. The High Court held that “any challenge by the applicant to the prosecution’s attempt to adduce the evidence recorded in Geneva and Zurich, Switzerland should be made to the Sessions Court Judge” in the criminal trial. The High Court further held that “to accede to the applicant’s application will tantamount to this court (the civil court) to interfering with the jurisdiction of the Sessions Court (in the criminal proceeding).” [25] This Court is acutely aware of the legal propositions enunciated in the above cases. However, there is a striking similarity found in those cases, namely there was either an on-going criminal investigation or an on-going criminal proceeding, or the subject matter of complaint involves determination of criminal elements in a criminal offence, and it was on this Page 14 of 36 basis that the courts held that the proper forum to deal with such complaints was the criminal court. [26] This Court observes that in Tan Sri Eric Chia (supra), the High Court in fact acknowledged that the exercise of s. 8 of the Mutual Assistance in Criminal Matters Act 2002 and the decision made therein by the Attorney General were within the purview of O. 53 r 2(4) of the then RHC. A decision of such nature was in fact reviewable in a civil court. That decision was an exercise of power that was administrative in nature, even though the statement and documents to be acquired were for use in a criminal proceeding. Insofar as the admissibility of the statement and documents were concerned, the court found that they had to be dealt with by the criminal court, not the civil court. [27] In the present case, although at the time the seizure of the appellant’s money was made on the basis that there was a criminal investigation for a criminal offence under s. 4(1) of Act 613, that basis subsequently disappeared when the money in the four accounts was no longer subject to or liable for forfeiture or otherwise required for the purpose of any proceedings under the Act 613. There was no prosecution against the appellant, unlike those cases cited by the respondents’ counsel. When the IO and DPP made their decisions under s. 60(1) of Act 613, they were not making any decision in furtherance of or pursuant to an investigation of a criminal offence or a criminal proceeding. The decision to release the money in the four accounts, was in fact an exercise of an administrative power, not a decision made in a criminal proceeding or pursuant to a criminal investigation. Therefore, this Court opines that the decision of the IO and DPP was in the nature of an administrative decision, and therefore, amenable to judicial review by a civil court. Page 15 of 36 [28] This Court is of the view that the decision of the IO and DPP potentially has the effect of depriving the right of the appellant to her property which is entrenched in Article 13 of the Federal Constitution – Rights to property. This brings us to the legal question raised by this Court. A constitutional question of law [29] To recap, the question raised by this Court for submission by the parties is reproduced below: “Whether the Public Prosecutor's determination under section 60(1) of Act 613 ("the Act") that a third party is lawfully entitled to money which was seized from the bank account of a person ("the person") under the Act, but not forfeited under the Act, without giving the person prior notice that the seized monies are to be given to the third party and without giving the person the right to be heard, is unconstitutional because this violates the fundamental right to property under Article 13(1) of the Federal Constitution?” [30] Article 13(1) of the Federal Constitution reads as follows: “(1) No person shall be deprived of property save in accordance with law.” [31] The law in question, which is the crux of the dispute in the appeal, is s. 60 of Act 613, and it is reproduced as below: Page 16 of 36 “60 Release of property seized

Where property has been seized under this Act, an investigating officer other than the investigating officer who effected the seizure, may at any time before it is forfeited under this Act, release with the consent of the Public Prosecutor such property to such person as the Public Prosecutor determines to be lawfully entitled to the property if the Public Prosecutor is satisfied that such property is not liable to forfeiture under this Act or otherwise required for the purpose of any proceedings under the Act, or for the purpose of any prosecution under any other law, and in such event neither the officer effecting the seizure, nor the Federal Government, or any person acting on behalf of the Federal Government, shall be liable to any proceedings by any person if the seizure and release had been effected in good faith.

The officer effecting any release of any property under subsection (1) shall make a record in writing in respect of such release, specifying in the record in detail the circumstances of, and the reason for, such release, and he shall send a copy of such record to the Public Prosecutor.

For the purpose of subsection (1), the Public Prosecutor may give any direction of an ancillary or consequential Page 17 of 36 nature, or which may be necessary, for giving effect to, or for the carrying out of, such release of property.” [32] The constitutional question of law was raised by this Court because this Court was concerned that s. 60(1) of Act 613 appears to allow the Public Prosecutor to determine the legal right to the property “lawfully entitled to the property” that had been seized from a person (who was the legal owner) and to consent to the release of the property to a third party without affording the person (the legal owner) due process of law. Thus, it is relevant to ask - was it the intention of the Parliament to remove the power of the court to determine an individual’s right to property, which right is entrenched in the Federal Constitution, and to confer such power into the hands of the Public Prosecutor? This Court is of the view that this could not have been the intention of Parliament. What then is the intention of s. 60(1) of Act 613? To answer that, it becomes necessary to examine the scheme of the law in relation to powers to deal with property involved in a criminal investigation under the Act 613. Freezing, seizure and forfeiture [33] Part VI of Act 613 deals with freezing, seizure and forfeiture of property. Sections 44 and 44A deal with freezing of property. Sections 45, 46, 50, 51, 52, 52A, 54, 60 deal with seizure of property, and sections 55, 56, 56A, 58, 59, 61, 62 deal with forfeiture of property (see also s. 28L). Section 57 is a general provision dealing with the validity of a freezing, seizure and sale order. Below is a table summarizing the various provisions dealing with freezing, seizure and forfeiture of property. Page 18 of 36 Freezing 44 Freezing of property 44A Variation or revocation or order to freeze property Seizure 45 Seizure of movable property 46 Further provisions relating to seizure of movable property 50 Seizure of movable property in financial institution 51 Seizure of immovable property 52 Special provisions relating to seizure of a business 52A Expiry of seizure order 54 Dealing with property after seizure to be void 60 Release of property seized Forfeiture 28L Forfeiture of detained cash or bearer negotiable instruments 55 Forfeiture of property upon prosecution for an offence 56 Forfeiture of property where there is no prosecution 56A Forfeiture order not to be affected by acquittal 58 Vesting of forfeited property in the Federal Government 59 Pecuniary orders (in reference to proceedings under s 55 or 56) 61 Bona fide third parties 62 Disposition of forfeited property [34] Act 613 provides no legal definition for the words “forfeiture”, “seizure” and “freezing”. According to Stroud’s Judicial Dictionary, 11th Ed, “forfeit” means “not only an actual taking away of property on breach of a condition, but also the doing or suffering a thing which creates a liability to such a deprival (Re Levt, 30 Ch D. 119).” It also states “forfeit” would Page 19 of 36 seem to involve the idea of permanent loss or liability thereto. To put it simply, a person would lose his legal right to the property forfeited. [35] The ordinary and natural meaning of “seizure”, according to Stroud’s Judicial Dictionary, 11th Ed, means “a forcible taking possession”. Jowitt’s Dictionary of English Law, 6th Ed, explains that “seizure” is sometimes a species of execution in the law of procedure, and that “seizure also take place when goods are confiscated as a punishment for smuggling or carrying contraband of war”. It further states “in international law, seizure means the provisional detention of ships or cargo by a belligerent, subject to confirmation by a prize court, as distinct from capture.” Stroud’s Judicial Dictionary, 11th Ed, explains that “seizure” is not equivalent to, but is less exigent than, “capture”, as the latter word involves the idea of keeping what has been seized.” Therefore, in its ordinary sense, “seizure” denotes a person’s right of possession to his property has been removed, in that the property is forcibly taken away, but it falls short of removing his proprietary right to the property. [36] There is no legal definition for the word “freeze” or “freezing”. In its ordinary or literal meaning, it simply means to solidify something. The phrase “freezing of property”, figuratively, means to preserve the property, the property becomes immobile, or the property is prevented from being dealt with. In s. 44(2) of Act 613, a freezing order may include “an order to direct that the property…not to be disposed of, or otherwise dealt with, by any person, except in such manner and in such circumstances, if any, as are specified in the order.” Basically, “freezing” in Act 613 means to maintain the status quo of the property, subject to an order to deal with it if the circumstances so require, such as “the property is liable to speedy decay or deterioration”. Page 20 of 36 [37] The use of the different definitions discussed above demonstrates that the scheme of the law (Act 613) anticipated different circumstances in which a person’s property can be subjected to the law, and also differing degrees of legal effect to the legal rights of a person’s property that has been forfeited, seized, or frozen. This observation is supported by the examination of the provisions relating to legal ownership after a property is forfeited or after the lifting or revocation of a freezing order. Legal ownership of a forfeited property [38] A property can be forfeited under the Act 613 in two scenarios. First, when there is a prosecution for an offence under s. 4(1) or a terrorism financing offence (see s. 55 of Act 613). Second, when there is no prosecution or conviction for an offence under subsection 4(1) or a terrorism financing offence (see s. 56 of Act 613). [39] In the first scenario, the forfeiture is through an application to the court, and the court, if satisfied, shall make an order for the forfeiture of any property which is proved to be (a) the subject-matter or evidence relating to the commission of such offence; (b) terrorist property; (c) the proceeds of an unlawful activity; or (d) the instrumentalities of an offence, and where –(aa) the offence is proved against the accused; or (bb) the offence is not proved against the accused but the court is satisfied that (i) the accused is not the true and lawful owner of such property; and (ii) no other person is entitled to the property as a purchaser in good faith for valuable consideration (see s. 55(1) of Act 613). Page 21 of 36 [40] In the second scenario, an application to a judge of the High Court is necessary for an order of forfeiture of that property if the public prosecutor is satisfied that such property is (a) the subject-matter or evidence relating to the commission of such offence; (b) terrorist property; [41] Section 58(1) of Act 613 provides that “where any property is forfeited under this Act, the property shall vest in the Government free from any right, interest or encumbrance of any person except a right, interest or encumbrance which is held by a purchaser in good faith for valuable consideration and which is not otherwise null and void under any provision of this Act.” Clearly, when a property is forfeited under s. 55 or 56 (or 28L) of Act 613, the legal ownership of the property shall be vested in the Government. Hence, the previous owner of the said property shall no longer possess or retain a legal or ownership right over the said forfeited property. [42] From the above, it is clear that for a person to be deprived of his right to property, such taking away or removing of the legal right of a person over his ownership of a property has to be ultimately determined by a court of law, and not administratively through the decision of any institution, agency or public prosecutor. [43] This Court observes that even for a property that has been forfeited under Act 613, the law recognizes the right of any third party claiming to have interest in the forfeited property to attend before the court on the date specified in the notice (a notice in the Gazette) to show cause as to why the property should not be forfeited (see s. 61(2) of Act 613). Hence, Page 22 of 36 the claim of ownership by a third party to a forfeited property has to be determined by the court of law. [44] This Court further observes that s. 56(3) of Act 613 provides that if any property has been seized, but there is no application to the court for an order of forfeiture, at the expiration of 12 months from the date of its seizure, such property shall be released to the person from whom it was seized. This provision explicitly recognizes the right of ownership of the said property remains with the person from whom the property was seized. [45] To sum up the above, from our reading of the provisions of Act 613 as a whole, it is the court who has the power to remove or deprive an individual’s right to property. Thus, the power to determine the legal ownership of a forfeited property is in the hands of the court, not the investigating officer or a public prosecutor. If there is no forfeiture of a seized property, upon the expiration of the seizure order, the property is required to be returned to the person from whom the property was seized. The investigation officer or public prosecutor has no power or authority to determine to whom the said property belongs. Legal ownership of a frozen property [46] As for a freezing order, it has a validity period of only 90 days from the date of issuance of the order, if the person against whom the order was made has not been charged with an offence under the Act or terrorism financing offence, as the case may be (see s. 44(5) of Act 613). A freezing order does not remove or deprive a person’s legal ownership of the frozen property. It just prevents a person from disposing or dealing with the Page 23 of 36 property. Therefore, a freezing order can be issued by an enforcement agency, it does not require an order from the court. However, if a property that is subject to a freezing order is to be forfeited under s. 56 of Act 613 (forfeiture of property where there is no prosecution), then it is necessary for a court order to be obtained. [47] Once a freezing order is no longer in force, the person whose property was frozen is free to dispose or deal with the property. His/her legal right to property is not affected in any way. However, a freezing order could have the effect of taking custody and control of the property and an order to authorize any of the officers to sell any frozen moveable property (by public auction or in such other manner as may be practicable) if the enforcement agency is of the opinion that the property is liable to speedy decay or deterioration (see s. 44(c) of Act 613). In the event a property is sold there would be an order to authorize the officers to hold the proceeds of the sale (subject to deduction of cost and expenses of the maintenance and sale of the property sold). The proceeds (or the balance of the proceeds) ought to be held for the benefit of the person whose property was frozen because he/she remains as the rightful owner of the said proceeds (or the balance of the proceeds). [48] A freezing order may be varied or revoked where such property is not liable to seizure under the Act or an application is made by the person named or described in the order, i.e., the person from whom the property was frozen (see s. 44A of Act 613). When a freezing order is revoked, the property shall be released to the person named or described in the order, i.e., the person from whom the property was frozen (see s. 44A (5) of Act 613). There is no issue of determination of the legal ownership of a frozen property upon the revocation of a freezing order because the legal Page 24 of 36 ownership of the unfrozen property remains intact with the person from whom the property was frozen. [49] In summary, a freezing order does not remove or take away the legal ownership of the person’s property, unless a forfeiture order is issued by the court. Upon the lifting or revocation of a freezing order, the frozen property would revert to the person from whom the property was frozen. Legal ownership of a seized property [50] As stated earlier, based on the provisions in Act 613 relating to forfeiture and freezing of property, clearly that it is only the court who can take away one’s right to property through the process of law. An officer, investigating officer or a public prosecutor cannot take away a person’s right to property. When the legal right to property is not legally removed, the property will revert to the person from whom the property was taken away. It is not for an investigating officer or a public prosecutor to determine who the property belongs to. However, when it comes to a property that is seized under s. 45, 50 or 51 of Act 613, the provisions relating to the legal entitlement to the seized property appears to be opaque and questionable. [51] Section 45 deals with the general power and procedure for seizure of a movable property; whereas, s. 51 deals with seizure of an immovable property. When a movable property which is liable to seizure is in the possession, custody or control of a financial institution, then s. 50 shall apply (which is the relevant provision in this case). Page 25 of 36 [52] There are two general provisions dealing with the power of seizure, namely s. 46 and 52. Section 46 deals with general power relating to seized property, such as removing the movable property from the possession, custody or control of the person from whom it is seized and placing it under the custody of such person, and at such place, as the investigating officer may determine. Section 52 deals with seizure of businesses. [53] Section 50 relates to seizure of movable property in financial institution. In the present case, the seizure orders were issued pursuant to s. 50 of Act 613. The seizure orders stated: “NOW PURSUANT to subsection 50(1) of the Act, it is hereby ordered that such movable property, or any accretion to it be seized by the investigating officer / that you, your agent or your employee are not to part with, deal in, or otherwise dispose of such movable property or any accretion to it, in whole or in part until this Order is otherwise varied or revoked.” [54] Section 52A of Act 613 provides when a seizure order will expire. First, a seizure order shall cease to have effect after the expiration of twelve months from the date of the seizure order. Second, if there is a freezing order issued before the issuance of the seizure order, then the seizure order shall cease to have effect after twelve months from the date of the freezing order, not from the date of the seizure order. In both scenarios, the person against whom the order was made must not been charged with an offence under the Act. [55] In the present case, the seizure orders were dated 8.12.2020, and there was no prior freezing order, therefore, the seizure orders would have ceased to have effect on 8.12.2021. Before the seizure orders could Page 26 of 36 expire, the IO, with the consent of the DPP, decided to invoke s. 60 of the Act 613 to release the seized property (the four accounts). [56] Section 60 of Act 613 stipulates two requirements. First, the seized property must not be forfeited. Secondly, such property is not liable to forfeiture or otherwise required for purpose of any proceeding, or for the purpose of any prosecution under any other law. Upon the satisfaction of the two requirements, then the investigating officer (other than the investigating officer who effected the seizure) can release the seized property to such person that the public prosecutor determines to be lawfully entitled to the property. Before the release, the public prosecutor must give his/her consent to the release and he/she must determine the person who is lawfully entitled to the property to be released. The conundrum is this – why is the determination of “lawful entitlement” of a seized property left in the hands of the investigating officer and/or the public prosecutor when the property is not liable for forfeiture. [57] As explained in the earlier part of this judgment (i) only the court of law can determine a person’s legal right to property; (ii) only the court of law can remove a person’s legal right to property; (iii) both freezing order and seizure order do not remove a person’s legal right to the property after the property has been frozen or seized. It would be inconsistent with these legal propositions if s. 60(1) of Act 613 is construed in its literal sense as empowering the public prosecutor (and the investigating officer), without going through a proper process of law, to determine the person who has “lawful entitlement” to the seized property, especially if such person includes a third party from whom the property was not even seized. Page 27 of 36 [58] In our view, a literal interpretation of s. 60(1) would be inconsistent with s. 56(3) of Act 613. The latter states that “any property that has been seized and in respect of which no application is made under sub (1) [application to the High Court for an order of forfeiture] shall, at the expiration of twelve (12) months from the date of its seizure, be released to the person from whom it was seized.” Clearly, when there is no application to the High Court for forfeiture of the seized property, upon expiry of the seizure order (as per s. 52A of Act 613), the property has to be returned to the person from whom the property was seized. The provision in s. 56(3) for the authority to return the seized property to the person from whom it was seized makes perfect sense. If s. 60 is interpreted literally, this means that at any time, before the seized property is forfeited or before the expiry of the seizure order, the investigating officer, with the consent of the public prosecutor, may determine who is lawfully entitled to the property, without even the need to seek validation from the court of law. [59] This Court declines the invitation to embark upon a literal reading of s. 60(1) of Act 613 as it goes against all the fundamental principles of law. First, it goes against the fundamental civil liberty in relation to a person’s right to property. The person from whom the property was seized is deprived of his/her right to property through an administrative decision made by a public prosecutor, not through the court of law. The public prosecutor’s decision is made not in furtherance of or pursuant to a criminal investigation or criminal proceeding. Therefore, it is an administrative decision made within the purview of civil law that involves determination of legal right in which the determination ought to be made by the court of law. No person or institution can deprive a person’s right to property in the absence of a criminal wrong, other than the court of law Page 28 of 36 who is conferred with the power to determine a person’s right to property by the Federal Constitution which is the supreme law of the land. [60] Secondly, as postulated above, a seizure order is nothing more than “taking possession” of a property, as opposed to a forfeiture order. A forfeiture order takes away the right of a person to a property; whereas a seizure order or freezing order does not take away the right of ownership of a person to the property. Therefore, it is fundamentally wrong in law to construe s. 60(1) as allowing a public prosecutor to determine who is lawfully entitled to the property when the right of ownership is never removed from the owner from whom the property is seized. [61] Thirdly, it is contrary to the principles of natural justice for a person not to be accorded with a right to be heard when his right (to property) may be taken away, unless he possesses no such right. In the present case, the four accounts that were seized were clearly the appellant’s accounts kept with CIMB. Therefore, it could not be correct in law for the public prosecutor to arbitrarily determine that PMC was lawfully entitled to the money without affording the appellant a right to be heard before making his decision. Therefore, if s. 60(1) of Act 613 is construed in its literal sense, it would violate, disregard and oust the fundamental principles of natural justice. [62] Based on the above analysis, this Court is of the considered view that in the event the court takes the literal approach to interpret s. 60(1) of Act 631, then it would violate the fundamental liberty of a person’s right to property as enshrined in Article 13(1) of the Federal Constitution, and render the constitutional guarantee ineffectual. Page 29 of 36 A purposive and harmonious approach to interpretation [63] In Detik Ria Sdn Bhd v Prudential Corporation Holdings Ltd & Anor [2025] 4 CLJ 159, p. 196, the Federal Court held as follows (emphasis added): “[29] Previously, the approach adopted by the courts was to adopt the English common law approach of utilising the literal construction first, and only if an ambiguity arose, would the courts turn to the purposive approach. Further, a literal approach was applied as amounting to a reference to solely the precise text of the phrase or sentence or section in issue. Such an approach is not, with the greatest respect, the ideal mode of construction to be adopted. First, in light of the existence of s. 17A of the Interpretation Acts 1948 and 1967, the statute-prescribed approach necessarily outflanks the common law approach, as a matter of law. And s. 17A prescribes an approach that takes into account the purpose and object of the law in construing the text in issue. Therefore, all construction should take into account the purpose and object of the legislation in question. This in turn means adopting a construction that is holistic in that it interprets not only the section in issue but also how the section interacts with the rest of the legislation. Ultimately, the construction to be adopted should resonate with the purpose and objective of the legislation and harmoniously so with the rest of the statute, in principle. Page 30 of 36 [30] Second, a literal approach in itself does not prescribe reading the exact words and applying them without taking into account the rest of the section or the legislation as a whole. In short, even a literal approach envisages taking into consideration the context in which the subject words are utilised, such that the ultimate interpretation is consonant with the section or legislation and not repugnant to it. A grammarian approach is not to be adopted. [31] In Bursa Malaysia Securities Bhd v. Mohd Afrizan Husain [2022] 4 CLJ 657, it was explained that law should be read contextually and not literally or solely premised on the text alone. In the case of Dato’ Azizan Abd Rahman & Ors v. Concrete Parade Sdn Bhd & Ors And Other Appeals [2024] 5 CLJ 193 (‘Concrete Parade’), the court stated that it is necessary to determine the underlying intent and purpose of the section which is consonant with an Act as a whole in order to arrive at a legally coherent and correct construction of the provisions under study. The Federal Court in Concrete Parade also stated that this may be achieved by studying the legislative history of the section.” [64] This Court, guided by the decision of the apex court and applying s. 17A of the Interpretation Acts 1948 and 1967 which reads “in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose of object,” opines that s. 60(1) has to be construed holistically in resonance with the purpose and objective of Act 613 and harmoniously with the rest of the statute. Therefore, s. 60(1) Page 31 of 36 has to be read in harmony with ss. 45, 50, 56 of Act 613, whilst keeping in mind Article 13(1) of the Federal Constitution and the fundamental principles of natural justice. [65] Section 45 is a general power of seizure of movable property;

Notis Pelepasan Harta (Wang) bertarikh 3.9.2021 diberi kepada CIMB Bank Berhad / CIMB Islamic Bank Berhad / CIMB Investment Bank Berhad berkaitan wang dalam akaun simpanan Pemohon akaun No. 7019380040/07120010499520 bagi jumlah 238.75:

(ii) Notis Pelepasan Harta (Wang) bertarikh 3.9.2021 diberi kepada CIMB Bank Berhad / CIMB Islamic Bank Berhad / CIMB Page 35 of 36 Investment Bank Berhad berkaitan wang dalam akaun simpanan Pemohon akaun No. 8008696602 bagi jumlah RM279,520.75;

(iii) Notis Pelepasan Harta (Wang) bertarikh 3.9.2021 diberi kepada CIMB Bank Berhad / CIMB Islamic Bank Berhad / CIMB Investment Bank Berhad berkaitan wang dalam akaun simpanan Pemohon akaun No. 5800302774 bagi jumlah RM101,546.64;

(iv) Notis Pelepasan Harta (Wang) bertarikh 3.9.2021 diberi kepada CIMB Bank Berhad / CIMB Islamic Bank Berhad / CIMB Investment Bank Berhad berkaitan wang dalam akaun simpanan tetap Pemohon akaun No. 5003604936 – 0024 & 0026 bagi jumlah RM303,903.07.” [76] This Court further orders costs of RM20,000.00 to the appellant (as costs here and below). Date: 29.8.2025 -sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Page 36 of 36 Counsel(s) for the appellant: Ang Khoon Cheong (Noorlaili Binti Aziz with him) Tetuan CP Ang & Co. Counsel(s) for the respondents: Muhammad Bin Sinti / Aliza Jamaluddin Senior Federal Counsel The Attorney General’s Chambers.