Teo Chee Kong v Pendakwa Raya (S-06A-8-01/2018)

In the High Court, the Respondent herein, applied to forfeit the Appellant’s assets or pieces of lands as listed in the Notice of Motion dated 4.8.2017 (the “said Notice of Motion”) pursuant to S.56(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“AMLATFPUAA”). The particulars and purchase value of the pieces of land are as follows:- NO TITLE

CL TITLE NO :015414874 REGISTER MEMO MC1108010073, SETTLEMENT ROAD, DAERAH KOTA KINABALU RM750,000.00 2. CL TITLE NO:015414829 REGISTER MEMO NO MC1211010717, REGISTER MEMO NO MC1211010718 & REGISTER MEMO NO MC 1211010719 SETTLEMENT ROAD, DAERAH KOTA KINABALU SABAH RM583,333.00 3. NATIVE TITLE NO:013071942, REGISTER MEMO NO.011002962, KG KIAN SOM, INANAM, DAERAH KOTA KINABALU SABAH RM10,000.00 4 FIELD REGISTER TITLE NO:214027362, REGISTER MEMO NO 2110010270 KG MA’ANG DAERAH

NATIVE TITLE NO:213106542, REGISTER MEMO NO 2110010272, KG LIMBANAK DAERAH RM100,000.00 6. FIELD REGISTER TITLE NO:214022929, REGISTER MEMO NO 2110010274, KG MARANG DAERAH RM300,000.00 7. FIELD REGISTER TITLE NO 214022938, REGISTER MEMO NO 2110010026, KG MARANG, DAERAH RM700,000.00 8. NATIVE TITLE NO:213018681, REGISTER MEMO NO 2110009042 KG LAMPASAN DAERAH RM750,000.00 9. NATIVE TITLE NO 213038692 (NO LAMA) 263038697 (NO BARU), REGISTER MEMO NO 2110014095, KG TENGGELAN, DAERAH RM457,380.00 10. NATIVE TITLE NO 213038718 (NO LAMA) 263038713 (NO BARU), REGISTER MEMO NO 2110014094 KG TENGGELAN, DAERAH RM152,460.00 11. NATIVE TITLE NO 213001908 (NO LAMA) 263001903 (NO BARU), REGISTER MEMO NO 2110014096, KG TERAWI BUIT, DAERAH RM295,315.02 12. NATIVE TITLE NO 213179769 (NO LAMA) 263179764 (NO BARU), REGISTER MEMO NO 210014092, KG BUIT, DAERAH PENAMPANG SABAH

NATIVE TITLE NO 213179741 (NO LAMA) 263179746 (NO BARU) REGISTER MEMO NO 2110014093, KG BUIT, DAERAH PENAMPANG RM73,028.34 14. NATIVE TITLE NO 213001846 (NO LAMA) 263001841 (NO BARU) REGISTER MEMO NO 2110014097, DAERAH PENAMPANG SABAH RM411,642.00 15. NATIVE TITLE NO :023210531 REGISTER MEMO NO 21020407, KG MANDAHAN, DAERAH PAPAR RM35,000.00 16. NATIVE TITLE NO :023131142 REGISTER MEMO NO 21016516, KG LANAS, DAERAH PAPAR SABAH RM1,000,000.00 17. NATIVE TITLE NO :173188586 REGISTER MEMO NO 171001918, KG RM8,000.00 18. NATIVE TITLE NO :173191118 REGISTER MEMO NO 171001922, KG RM8,000.00 19. NATIVE TITLE NO :173188577 REGISTER MEMO NO 171001914, KG RM8,000.00 20 NATIVE TITLE NO :173188639 REGISTER MEMO NO 171001912, KG RM8,000.00 21 NATIVE TITLE NO :173191163 REGISTER MEMO NO 171001910, KG

NATIVE TITLE NO :173188568 REGISTER MEMO NO 171001920, KG RM8,000.00 23. NATIVE TITLE NO :173188648 REGISTER MEMO NO 171001916, KG RM8,000.00 24. NATIVE TITLE NO :173188595 REGISTER MEMO NO 171002252, KG RM7,000.00 25. NATIVE TITLE NO :173188611 REGISTER MEMO NO 171002259, KG RM3,000.00 26. NATIVE TITLE NO :173188602 REGISTER MEMO NO 171001908, KG RM10,000.00 27. NATIVE TITLE NO :173191136 REGISTER MEMO NO 171004205, KG RM15,000.00 28. NATIVE TITLE NO :173195992 REGISTER MEMO NO 171005887, KG LEMBAH PORING, DAERAH RM15,000.00 29. NATIVE TITLE NO :173196542 REGISTER MEMO NO 171015776, KG PIMPING, DAERAH BEAUFORT RM5,000.00 30. NATIVE TITLE NO :173244847 REGISTER MEMO NO 171015497, KG BAMBANGAN, DAERAH BEAUFORT

NATIVE TITLE NO :173245915 REGISTER MEMO NO 171014539, KG RM6,000.00 32. NATIVE TITLE NO :173224121 REGISTER MEMO NO 171004213, KG RM2,600.00 33. NATIVE TITLE NO :173231680 REGISTER MEMO NO 171004207, KG RM3,000.00 34. NATIVE TITLE NO :173231699 REGISTER MEMO NO 171004209, KG RM3,000.00 35. NATIVE TITLE NO :173204978 REGISTER MEMO NO 171003300, KG RM6,000.00 36. NATIVE TITLE NO :173205028 REGISTER MEMO NO 171003302, KG RM6,000.00 37. NATIVE TITLE NO :173218678 REGISTER MEMO NO 171004212, KG RM6,000.00 38 NATIVE TITLE NO :173218767 REGISTER MEMO NO 171002460, KG RM8,000.00 39 NATIVE TITLE NO :173218687 REGISTER MEMO NO 171003298, KG RM6,000.00 40 NATIVE TITLE NO :173191396 REGISTER MEMO NO 171002458, KG LEMBAH PORING, DAERAH RM6,000.00 41 NATIVE TITLE NO :173238689 REGISTER MEMO NO 171012221, KG BOMBANGAN, DAERAH BEAUFORT RM20,000.00 42 NATIVE TITLE NO :173217331 REGISTER MEMO NO 171002249, KG RM5,000.00 43. NATIVE TITLE NO :173217297 REGISTER MEMO NO 171002257, KG RM9,000.00 44. NATIVE TITLE NO :173217288 REGISTER MEMO NO 171002245, KG RM7,500.00 45 NATIVE TITLE NO :173217279 REGISTER MEMO NO 171002247, KG RM7,500.00 46. NATIVE TITLE NO :173217251 REGISTER MEMO NO 171002254, KG RM5,000.00 47 NATIVE TITLE NO :173184828 REGISTER MEMO NO 171012011, KG PUSAK MEMBAKUT, DAERAH RM72,500.00 48. NATIVE TITLE NO :173178428 REGISTER MEMO NO 171001994, KG

NATIVE TITLE NO :174043460 REGISTER MEMO NO 171001928, KG RM10,000.00 50. NATIVE TITLE NO :173178437 REGISTER MEMO NO 171001993, KG RM5,000.00 51 NATIVE TITLE NO :173127734 REGISTER MEMO NO 173127734, KG MAGANG, DAERAH BEAUFORT RM10,000.00 52. NATIVE TITLE NO :173042629 REGISTER MEMO NO 171003810, KG BINGKULAS, DAERAH BEAUFORT RM12,000.00 53. NATIVE TITLE NO :173068669 REGISTER MEMO NO 171012008, KG MEMBAKUT DAERAH BEAUFORT RM20,000.00 54. NATIVE TITLE NO :173161352 REGISTER MEMO NO 171005608, KG MEMBAKUT DAERAH BEAUFORT RM10,000.00 55. NATIVE TITLE NO :1732177429 REGISTER MEMO NO 171005610, KG TRUSAN MEMBAKUT DAERAH RM15,000.00 56. NATIVE TITLE NO :173079082 REGISTER MEMO NO 171004755, KG MAWAO DAERAH BEAUFORT RM12,000.00 57. NATIVE TITLE NO :173064205 REGISTER MEMO NO 171012152, KG SAGAWANMEMBAKUT DAERAH

NATIVE TITLE NO :173066978 REGISTER MEMO NO 171004775, KG GALA KOTA KLIAS DAERAH RM20,000.00 59. NATIVE TITLE NO :173063575 REGISTER MEMO NO 171004774, KG MANDANGAN KOTA KLIAS DAERAH RM4,000.00 60 NATIVE TITLE NO :173126399 REGISTER MEMO NO 171013891, KG LUMAT DAERAH BEAUFORT SABAH RM271,750.00 61. NATIVE TITLE NO :173063584 REGISTER MEMO NO 1711011193, KG SAGA SAGA KOTA KLIAS RM22,000.00 62 NATIVE TITLE NO :173173227 REGISTER MEMO NO 171011783, RM60,000.00 63. NATIVE TITLE NO :173173236 REGISTER MEMO NO 171011783, RM120,000.00 64. NATIVE TITLE NO :193030812 REGISTER MEMO NO 191004672, DAERAH SIPITANG SABAH RM880,000.00 65 NATIVE TITLE NO :193069760 REGISTER MEMO NO 191004306, DAERAH SIPITANG SABAH RM360,000.00 TOTAL

On 13/12/2017, the learned High Court Judge (“the learned HCJ”) after hearing the Respondent’s Notice of Motion dated 4.8.2017 granted inter alia the following orders:-

The Appellant, being aggrieved appealed. Hence this appeal before us which we heard and unanimously partially allowed for the following reasons.

The parties herein shall be referred to their respective capacities before us.

The learned HCJ’s grounds for forfeiture are inter alia as follows:- [a] “… In between 2005 and 2016, the projects granted by JANS Kota Kinabalu amounted toRM1,100,587,614.97. Out of that amount, the respondents received RM211,683,115.88 after 10.75% deducted for JANS allocation (“The Scheme”) Investigations led to discovery of 65 pieces of land belonging to the respondent amount more than RM8 million.” – lines 119- 122 at page 1277 of ROA Vol 7; [b] “… there were no evidence to show his ‘sufficient income’ contribute to the 65 transactions over the period of 11 years …” – lines 177-178 at pate 1280 of ROA Vol 7; [c] “… the scheme started from 2005. To establish the monies received or used are the proceeds of unlawful activity the IO revealed there were consistent transactions of land purchase between the year of 2005- 2016… . Altogether there were 65 transactions over the period of 11 years amounting to RM8 million which is not proportional to the anticipated saving of his government income. His reason earlier of receiving proceeds from family business does not hold water as there were no solid evidences tendered …” – lines 182-190 at pages 1280 of ROA Vol. 7; [d] “… since he does not declare all these acquired properties (although the allegations starts from 2005) and the fact that his income cannot accumulate this much properties, it is safe to infer that these properties relates to the proceeds of an unlawful activity under subsection 4(1) of the Act.” – lines 201-205 at page 1281 of ROA Vol 7; [e] “… the fact that he did not deny getting involved in the said scheme ie, getting percentage from contractors is the very reason why the applicant brought an action against him under s 56(1) of the AMLATFPUAA because the respondent had engaged directly and indirectly in the scheme that he knew it was unlawful” – lines 214-218 at page 1282 of ROA Vol 7; and [f] “.it could be inferred by failure to provide or show that what family business he was involved with, the accused knows or has reason to believe, that the monies are proceeds from an unlawful activity” – lines 221-223 at pages 1282 of ROA Vol 7

Before us, the Appellant contends as follows:-

The Appellant’s 10 grounds of appeal are as set out in the 2nd amended Petition of Appeal (refer to page 2-3 in Exhibit “TEO1” of the AIS) which are briefly as follows:-

The Appellant contended that all the 10 grounds can be consolidated into 3 main grounds namely:-

It is trite law that the specific finding of facts by the learned HCJ as a trier of facts should not be disturbed by an appellate court such as this Court herein unless that finding was plainly wrong: See Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857 (FC) paras 41–48;

We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. In the case of Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 where the Court of Appeal held as follows: “ ….. an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” (Emphasis is mine)

Reference is also made to the decision of the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 where the Federal Court held that the test of "insufficient judicial appreciation of evidence" adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence.

In Mohd Yusri bin Mangsor & Anor v. Public Prosecutor [2014] 7 CLJ 897; Mohd Zawawi Salleh JCA (as he then was) said: "[4] We have heard learned counsel for the appellants and learned deputy public prosecutor (DPP) at some length. We have also scrutinized the records available before us. We are mindful that this is a factual based appeal. It is trite that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, there are exceptions. Where:

(a) the judgment is based upon a wrong premise of fact or of law;

(b) there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

(c) the trial judge has completely overlooked the inherent probabilities of the case;

(d) that the course of events affirmed by the trial judge could not have occurred;

(e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

(f) the trial judge had so fundamentally misdirected himself that one may safely sat that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion, then an appellate court will intervene to rectify that error so that injustice is not occasioned, then an appellate court will intervene to rectify that error so that injustice is not occasioned (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149 (CA); Sivalingam a/l Periasamy v. Periasamy & Anor [1996] 4 CLJ 545; [1996] 3 AMR 3506; [1995] 3 MLJ 395; [1996] 4 CLJ 545 (CA))."

Bearing in mind, the above principles distilled from the above authorities, we will now c o n s i d e r the Plaintiff’s appeal.

From our perusal of the Grounds of Judgment of the learned Trial Judge, we also of the considered view that the learned HCJ had misdirected herself on the procedural steps required under Sections 56 and 61 of AMLATFPUAA, in that, the learned HCJ ordered that the Third Party Notice be issued only after the Conditional Forfeiture Order was made. It is clear that in the scheme of AMLATFPUAA, there is no provision for the granting of a Conditional Forfeiture Order before the issuance of the Third Party Notice. In the premises, the learned HCJ has exceeded her jurisdiction.

In the event, an appellate court cannot deduce the judge's reason for his conclusion in a case, it will set aside the conclusion and either direct a retrial or make finding of fact itself: Privy Council in Smith v. Molyneaux [2016] UKPC 35, paragraph 37 approved and followed by the Court of Appeal in paragraph [27] in Boniface Lobo Robert V Lobo & Anor v. Tribunal Pengurusan Strata, Putrajaya & Ors. [2019] 1 LNS 680.

Section 60 of the Courts of Judicature Act 1964 on the "Powers of the Court of Appeal" provides as follows:

Retrials are governed by inter alia the following legal principles such as:

In the entire circumstances of the present appeal, we are of the considered opinion that as this case involved affidavit evidences, it is better in the interest of justice and the integrity of the system of administration of justice that the case be remitted for a re-trial before a different High Court Judge.

Hence, in view of the learned HCJ’s misdirection, we unanimously order that the Conditional Forfeiture Order and the issuance of the Third Party Notice as ordered by the learned High Court judge on 13th December 2017, be set aside. We further order that the case be reheard afresh before another High Court Judge. Thus this Appeal is allowed in part. Dated: 16th February, 2022 sgd LEE HENG CHEONG Judge Court of Appeal Malaysia For the Appellant: Roland Cheng (Ram Singh, Kimberly Ye Wan Chuin & Michele Yee with him) [Messrs. Roland Cheng & Co] For the Respondents: Allan Suman Pillai (DPP Mohd Sophian bin Zakaria with him) Deputy Public Prosecutor Attorney General’s Chambers