SALMAN AHMAD CHOWDHURY v Pendakwa Raya (BA-43-10-05/2025)

In a letter dated 6 May 2025, the Applicants, Salman Ahmad Chowdhury ("Salman") and Agensi Pekerjaan Insight Alliance Sdn Bhd ("the agent"), involving two different criminal case numbers before the Session Court (PATI), applied to this Court to exercise its revisionary power to revise the learned Session's Court Judge's (SCJ) decision dated 16 February 2025 particularly on an order made by the SCJ to forfeit the moneys amounting to RM723,000.00 which the prosecution tendered in the trial and the SCJ marked it as exhibit P36.

Having perused the letter and the documents tendered as exhbits before the SCJ, the Court decided to hear the application in open Court. The Court then heard the revision application and dismissed it on the ground that there was no procedural error that warranted the Court to exercise its revisionary power.

Dissatisfied with the Court's decision, counsel from Tetuan Shahrul Hamidi & Haziq filed the appeal on behalf of Salman on 28 May 2025.

Hence, the decision of this Court.

Based on the Applicant's letter dated 6 Mei 2025, the facts disclosed in the letter state that Salman was an illegal immigrant employed by the Agent, who was Salman's employer.

Salman was charged in contravention of Regulation 39 of the Immigration Regulations 1963 for failing to comply with the employment pass by working at a place other than the one allowed in the pass, which is punishable under the Regulation.

The charge preferred against Salman states as follows: “Bahawa kamu, pada 17.01.2024 jam lebih kurang 1142hrs, di sebuah premis pejabat yang beralamat di 67-A, Jalan Mamanda 1, Taman Ampang Point, 68000 Ampang, di dalam daerah Hulu Langat di dalam negeri Selangor Darul Ehsan, sebagai seroang warganegara Bangladesh dan pemegang pasport Bangladesh bernombor EL0110001 telah dikeluarkan Pas Lawatan Kerja Sementara (PLKS) pada 14.07.2023 yang berlaku sehingga 26.07.2024 sebagai Pekerja Pencucian di Rakan Ikhlas Services Sdn. Bhd. Seperti di cetakan pengesahan JIM. Walaubagaimanapun, kamu didapati tanpa sebab-sebab yang munasabah telah melanggar syarat-syarat pas tersebut kerana didapati bekerja di tempat kejadian. Dengan itu, kamu telah melakukan kesalahan di bawah Peraturan 39(b) Peraturan-Peraturan Imigresen 1963 yang mana sekiranya disabitkan boleh dihukum di bawah Peraturan yang sama. Hukuman : Denda tidak melebihi RM1,000 atau penjara tidak lebih enam (6) bulan atau kedua-duanya.”

Salman pleaded guilty and the SCJ imposed a fine of RM400, in default two months' imprisonment. Salman paid the fine. Following the guilty plea, the SCJ further ordered that Salman be deported to his home country, and Exhibit P36 was forfeited to the Government in accordance with section 407(2) of the Criminal Procedure Code and the forfeiture order is final upon expiry of the period for appeal.

At the time the Court heard the revision application, Salman had already been deported. Salman did not file any appeal against the SCJ's orders, specifically in respect of the order to forfeit exhibit P36. In light of that, the SCJ's decision was final.

While the Agent was charged with an offence under Section 55B of the Immigration Act 1959, the charge preferred against the Agent states as follows: “Bahawa kamu, pada 17.01.2024 jam lebih kurang 1142hrs, di 67A-Jalan Mamanda 1, Taman Ampang Point, 68000 Ampang, dalam daerah Hulu Langat, dalam Negeri Selangor Darul Ehsan, sebagai majikan didapati telah mengambil kerja seramai satu(01) orang imigran haram iaitu : 1. Salman Ahmad Chowdhury (L-30.09.1993) W/negara : Bangladesh. Ppt No.: EL0110001 yang tidak memiliki suatu pas yang sah. Dengan itu, kamu telah melakukan kesalahan di bawah Seksyen 55B(1) Akta Imigresen 1959/63 Pind.2022 sekiranya disabitkan boleh dihukum di bawah Seksyen 55B(1) dari Akta yang sama. Hukuman : Denda tidak kurang RM10,000 tetapi tidak lebih daripada RM50,000 atau penjara tidak lebih dua belas (12) bulan atau kedua-duanya bagi setiap satu imigran haram yang diambil bekerja.”

The Agent pleaded guilty, and the SCJ imposed a fine of RM10,000.00, in default two months imprisonment, which the Agent paid. The Agent did not file an appeal against the SCJ's order.

The crux of the issue before this Court was the SCJ's order (exhibit P36) in Salman's case. Salman's counsel's main contention was that there was no nexus between the offence for which the SCJ convicted Salman and the Agent with Exhibit P36. The counsel strongly urged this Court to follow the Court of Appeal's decision in Guan Hin Enterprise (M) Sdn Bhd & Ors v PP [2015] MLJU 2199.

On the other hand, the learned Deputy Public Prosecutor (DPP) argued that the SCJ was correct in making the forfeiture order as a consequence of Salman pleading guilty to the offence. The Federal Counsel relied on section 407(2) of the CPC and the Federal Court decision in PP v Chu Beow Hin [1982] CLJ (Rep) 288. ANALYSIS AND FINDING OF THE HIGH COURT ON THE REVISION

This is a review application made under section 325 of the Criminal Procedure Code (CPC), and the Court also referred to sections 31 and 35 of the Courts of the Judicature Act 1964 (Revised 1972).

As a starting point regarding the High Court's power of revision, the Supreme Court in Liam Kwai Wah & Anor v PP [1987] 2 MLJ 69, where Abdul Hamid CJ had this to say regarding the power of revision of the High Court as follows: "(1) The High Court's power sitting in revision is discretionary and it must therefore be exercised judicially and within the limits and in the spirits of the legislation.

... The power of revision is to be used sparingly and should remain a discretionary power to be exercised primarily for the purpose of correcting a miscarriage of justice."

As such, the High Court's discretionary power must be exercised prudently and within the parameters and essence of the legislation.

Coming back to the critical issue at hand, both parties did not dispute that the SCJ made the forfeiture order according to section 407(2) of the CPC. The crux of the issue was whether the SCJ had correctly exercised the discretion to order forfeiture of exhibit P36 under section 407(2) of the CPC. The Court also noted that, based on sections 407A(1) and 407A(2)(d) of the CPC, the SCJ is further empowered to order the disposal of the cash money (exhibit P36).

This Court must refer to the records of the proceeding before the SCJ, which may shed some light on the facts relevant to exhibit P36. The documents revealed that, based on the Ampang police report no. 1521/24 (exhibit P3) led by Syed Mohamad Hanafi bin Syed Othman, a senior officer from the Immigration Department (JIM), raided a premise at no. 67A, Jalan Mamanda 1, Taman Dato' Ahmad Razak, 50450 Ampang, Selangor (location no. 1), together with a team of twelve officers from JIM. JIM conducted the raid as part of

From the search by the raiding officers, they found Salman (B1), who was sitting on a chair near a table, was working in room no. 1, writing a receipt on a receipt book, suspected of being intended to be issued for a client after receiving payment from the client. Together, found in the room were – B2 – Emon Ahmed B3 – Bisws Sagor B4 – Heni Ratnawati B2 and B4 admitted to the raiding team that they were working as cleaners. While B3 confessed to the team that he went to the premises to meet Salman to extend his working pass, which had expired.

Further investigation with Salman and a search of room no. 1 revealed that the raiding team found five (5) Bangladesh passports, along with cash amounting to RM8,800, on table no. 1. Additionally, the raiding team also found thirty-three (33) Bangladesh passports in closet no. 1. Salman also informed the raiding team that the company's money was kept in a safe deposit box, and Salman led the team to another search on (location no. 2) the first floor of – 67-C, Jalan Mamanda 1, Taman Dato Ahmad Razali 50450 Ampang Selangor.

Salman then led the team to a safe deposit box, where Salman opened it using the keys kept. The team later found RM723,000.00 in cash, which they seized. The team arrested Salman together with B2, B3 and B4.

Now, the cash of RM723,000.00 is the subject matter of dispute. The counsel argued that there was no nexus between the money and the charge preferred against Salman or the Agent – refer to paragraph 9(ii) of the counsel's review letter. To the Court, if the counsel's argument had any merit, it was quite perplexing as to who now owns the cash if the forfeiture order by the SCJ was wrong.

However, the Court is unable to agree with the counsel's contention. There is indeed a nexus between Salman and the disputed money, based on the police report (Exhibit P3). Furthermore, Salman admitted to all the exhibits tendered before the SCJ. By denying the forfeiture order, as counsel did, they were also questioning the guilty plea Salman had made before the SCJ, which the Court thought devoid of merit.

Regarding the case in Guan Hin Enterprise (M) Sdn Bhd & Ors v PP (supra) referred by the Applicant's counsel, this Court found that the facts and issues disputed in the case referred by the counsel were relatively different from the facts of the instant case essentially on the point that the money found in the cash deposit box at another premises (location no. 2) was illegal and not related to premise at location no. 1.

The facts of the case referred by the counsel involved the Money Services Business Act 2021, which does not contain a forfeiture order. An issue arose as to whether the money from the money-changing business was legitimate, as the company could not carry out its business without the money. As such, the case involved interpreting the word "property" under section 407, whether exhibit P15A-G was "property" within the context of section 407 of the CPC. The Court of Appeal held that since the money was not illegally obtained, the High Court was wrong to make the forfeiture order.

For the reasons stated above, the Court did not find any procedural error by the SCJ. Consequently, the Court dismiss the Applicant's review application. Bertarikh : 14 Julai 2025.