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The Mechanics of AMLATFA

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“Money Laundering and AMLATFA 2001” The Mechanics of Anti-Money Laundering and Anti-Terrorism Financing Act 2001
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Page 1: The Mechanics of AMLATFA

“Money Laundering and AMLATFA 2001”

The Mechanics of Anti-Money Laundering and Anti-Terrorism

Financing Act 2001

Page 2: The Mechanics of AMLATFA

WHAT IS MONEY LAUNDERING?

- Money Laundering is a process to disguise illegal proceeds from their criminal origin so as to avoid suspicion of law enforcement and to prevent leaving a trail of incriminating evidence

- It is a process to make dirty money to appear “clean”

Page 3: The Mechanics of AMLATFA

3 STAGES IN MONEY

LAUNDERING

Page 4: The Mechanics of AMLATFA

PLACEMENT- the placement of money into the financial system

LAYERING- creating complex layers of financial

transactions designed to disguise illegal proceeds from their source

INTEGRATION- turning of illegal proceeds into ‘legitimate’ economy - to make them appear as ordinary and legitimate earnings

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Placement Stage Layering Stage Integration Stage

Cash paid into bank (sometimes with staff complicity or mixed with proceeds of legitimate business)Cash use to buy money order/bank draft/ traveler's cheque

Wire transfers abroad (often using shell companies or funds disguised as proceeds of legitimate business).

False loan repayments or payments of goods/materials - forged invoices used as cover for laundered money.

Cash exported/Using Money Changer/ Hawalah

Cash deposited in overseas banking system.Complex web of transfers (both domestic and international) makes tracing original source of funds virtually impossible.

Transfer back as loans or investment.

Cash used to buy high value goods, property or business assets.Cash used to buy businesses

Resale of goods/assets. Income from property or legitimate business assets appears “clean”.

Page 6: The Mechanics of AMLATFA

Scope of Money Laundering Problem

The International Monetary Fund has estimated that between 2% and 5% of global GDP per year is generated annually as the proceeds of crime (amount in the trillions of dollars USD).

Money laundering presents not only a problem for criminal justice systems but also has the capacity to destabilise financial institutions and the financial system.

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Money Laundering : International Action

In response to mounting concern over money laundering, the Financial Action Task Force on Money Laundering (FATF) was established by G 7 Summit held in Paris in 1989

In April 1990, FATF issued a set of 40 Recommendations which provide a comprehensive plan of action needed to fight against money laundering

In October 2001, FATF issued 8 Special Recommendations to deal with the area of terrorist financing and in October 2004 added the 9th Special Recommendation. (Known as the 40+9 Recommendations)

Page 8: The Mechanics of AMLATFA

The 40+9 Recommendations : 3 major areas1. Legal System – to make money

laundering and terrorism financing an offence & to confiscate/ forfeit proceeds of crime and terrorist property

2. Financial and Regulatory Framework – to prevent and detect money laundering i.e requirement of customer identification and due diligence, report keeping, reporting of suspicious transactions and establishment of Financial Intelligent Unit

3. Law enforcement – power to investigate, to freeze/restraint, to seized and international cooperation i.e mutual legal assistance and extradition

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Asia Pacific Group on Money Laundering (APG)

APG is an autonomous and collaborative international organisation founded in 1997 in Bangkok

APG is FATF associate member Malaysia is not a member of FATF but a

member of APG One of the APG’s key roles is to assess

compliance by APG member jurisdiction with the global AML/CFT standards (the 40+9 Recommendations)

Every member jurisdiction will be assessed through a Mutual Evaluation in every 5 years and the assessment report will be prepared, tabled and published.

Page 10: The Mechanics of AMLATFA

In line with international obligations, Malaysia

enacted the Anti Money Laundering Act 2001 (AMLA)

With effect from March 2007, AMLA was amended and accordingly renamed as the Anti Money Laundering and Anti Terrorism Financing Act 2001 (AMLATFA)

AMLATFA is the latest legislation in Malaysia for recovery of proceeds of crime – new approach in combating crime.

AMLATFA fortifies the earlier legislation Dangerous Drugs (forfeiture of property) Act

1988 Anti-Corruption Act 1997

Page 11: The Mechanics of AMLATFA

MONEY LAUNDERING UNDER THE AMLATFA

2001

Page 12: The Mechanics of AMLATFA

Objectives of AMLATFA 2001

to criminalized money laundering - the creation of the offence of money laundering i.e. criminalized any act of “dealing” with proceeds of crime;

to provide measures to be taken for the prevention and detection of money laundering & terrorism financing and

to provide mechanism for the seizure and forfeiture of proceeds of crime and terrorist property.

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Offence of Money Launderings.4(1) Any person who-

(a) engages in, or attempts to engage in; or

(b) abets the commission of,money laundering, commits an

offence and shall on conviction be liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or both.

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s.4(2) A person may be convicted of an offence under subsection (1) irrespective of whether there is a conviction in respect of a serious offence or foreign serious offence or that a prosecution has been initiated for the commission of a serious offence or foreign serious offence.

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s.3 - Interpretation“money laundering” means the act of a person who-(a) engages, directly or indirectly, in a transaction that involves proceeds of an unlawful activity;(b) acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes, uses, removes from or brings into Malaysia proceeds of an unlawful

activity; or

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(c) conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights, with respect to, or ownership of, proceeds of an unlawful activity;

where- (aa) as may be inferred from

objective factual circumstance, the person knows or has reason to believe, that the property is proceeds from any unlawful activity; or

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(bb) in respect of the conduct of a natural person, the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity;

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“proceeds of an unlawful activity” means any property derived or obtained, directly or indirectly, by any person as a result of any unlawful activity;

“unlawful activity” means any activity which is related, directly or indirectly, to any serious offence or any foreign serious offence

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“property” means movable or immovable property of every description, whether situated in or outside Malaysia and whether tangible or intangible and includes an interest in any such movable or immovable property;

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“serious offence” means-(a) any of the offences specified in

the Second Schedule;(b) an attempt to commit any of

those offences; or(c) the abetment of any those

offences;

(there are 248 offences from 36 Acts)

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Serious Offences(248 offences from 36 Acts)

proceeds

(a) (b) (c)

(money laundering offences)

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The Offence of Money Laundering

It is a stand alone offence A conviction for money laundering

offence can be had irrespective of a conviction for predicate offence or foreign serious offence or that a prosecution has been initiated for the commission of a predicate offence or foreign serious offence

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However proof of commission of the predicate offence or foreign serious offence is material i.e in proving the property is the proceeds of crime

Standard of proof ( whether the property is subject matter or has been used in the commission of an offence under s 4(1) – balance of probability – required in civil proceeding ( s 55(3))

Proof of Conviction (Predicate Offence)– s 76

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Prevention & Detection of Money Laundering Activities

Prevention – s.13 – record-keeping by reporting

institutions s.16 – identification of account

holder s.17 – retention of records s.18 – opening account in false name s.19 – compliance programme

Page 25: The Mechanics of AMLATFA

Detection s.14 – report by reporting

institutions Suspicious transactions Automatic reporting

s.23 – currency reporting at border

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s.14 – Report by reporting institutions

A reporting institution shall promptly report to the competent authority any transaction-

(a) exceeding the amount specified by the competent authority under subsection 13(1); and

(b) Where the identity of the persons involved, the transaction itself or any other circumstances concerning that transaction gives any officer or employee of the reporting institution reason to suspect that the transaction involves proceeds of an unlawful activity.

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s.23 – Currency reporting at border

(1) A person leaving or entering Malaysia with an amount in cash, negotiable bearer instruments or both, exceeding such value as the competent authority may prescribe by order published in the Gazette, shall declare to the competent authority may specify.

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Investigation & Prosecution (i) Power of investigation

Part V – s.29 – s.43 s.48 & s.49 s.67 & s.68

(ii) Freezing order s.44

(iii) Seizing order s.45 & s.46 – moveable property s.50 – moveable property in financial

institution s.51 – immoveable property s.52 - business

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(iv) Forfeiture Order Criminal forfeiture – s.55, s.59 & s.61 Forfeiture Where No Prosecution (Civil

Forfeiture – s.56 & s.61

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InvestigationInitiation of Investigation

(i) Suspicious Transaction Report (STR) – s.14 & s. 8(2)(c)

(ii) Report – (a) enforcement agency(b) any personNote : Enforcement Agency – body or agency responsible for the enforcement of the predicate/serious offence

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Purpose of Investigation

Gathering of evidence 1. For the purpose of prosecution of money

laundering2. For the purpose of forfeiture of property

which is subject matter of or have been used in the commission of money laundering or terrorism financing offence either under section 55 (criminal forfeiture) or section 56 (civil forfeiture)

3. For the purpose of getting a penalty order under s 55 (2) and pecuniary order s 59

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Power & Scope of Investigation

Recording Statement (s 32 & 72) and production of document, record, report etc

Asset tracing (s 32 & s 67) Financial Investigation (s48) i.e net

worth analysis and forensic accounting Asset Declaration (s49) Note : S 68 – evidence gathered

through predicate investigation – shall be deemed to be evidence gathered under AMLATFA

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Power to freeze any property (s 44)Power to freeze any property by LEAs for the purpose of investigation before effecting a seizure – s 44 : the most powerful provisions of AMLATFA

Power to seize propertyPower to seize any property which is the subject matter of the offence or evidence to the commission of such offence – s 45, 50, 51 & 52 Moveable property (s 45 & s 46) Moveable property in financial institution (s50) Immoveable property (s 51) Business (s 52)

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s.44 – Freezing of property(1) Subject to section 50, where an

enforcement agency, having the power to enforce the law under which a serious offence is committed, has reasonable grounds to suspect that an offence under subsection 4(1) has been is being or is about to be committed by any person, it may issue an order freezing any property of that person, wherever the property may be, or in his possession, under his control or due from any source to him.

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(5) An order made under subsection (1) shall cease to have effect after ninety days from the date of the order, if the person against whom the order was made has not been charged with an offence under this Act.

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ENFORCEMENT AGENCY

FREEZING ORDERON

PROPERTY

DIRECTION TO PERSON

S44(4)

ENFORCEMENT AGENCY

TO GIVE DIRECTIONS44(3)

AUTHORISE OFFICERTAKING CONTROL

AND CUSTODY OF PROPS44(2)(b)

NOT TO DEAL WITH PROPERTY

S44(2)(a)

NOT TO DISPOSEPROPERTY OR SUCH PART OF

PROPERTY s44(2) (a)

RESTRAINT FROMREMOVE OR SEND

OUT OF M’SIAS44(4)(b)

RESTRAINT PERSON FROMDEALING WITH

PROP s44(4)

MANNER OFADMINISTRATIONOF PROP s44(3)(c)

DISPOSAL OF PROPERTY FOR

SPECIFICPURPOSE s44(3)(b)

DURATION OF ORDER (UP TO 90

DAY) s44(5)

EXCEPT WITH TERMS ANDCONDITIONS

S44(2)(a)s.44

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s.45 – Seizure of movable property (1) In the course of an investigation into an offence under subsection 4(1), an investigating officer may, upon obtaining approval from an investigating officer senior in rank to him, seize any movable property which he has reasonable grounds to suspect to be the subject-matter of such offence or evidence relating to such offence.

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NOT APPROVED

MANNER OF EFFECTING SEIZURES46(1)

IF PROPERTY CAN BE REMOVEDPLACE UNDER CUSTODY &

PLACE AS IO MAY DETERMINE

DECISION OF SENIOR IO

SEEK APPROVAL TO SEIZE ANY MOVABLE PROPERTY FROM IO SENIOR IN RANK

APPROVED

IO EFFECTING SEIZURE PREPARES& SIGNS LIST OF ALL MOVABLE

PROPERTY AND PLACES TO BE FOUNDS45(2)

IO

IF NOTDESIRABLE TO REMOVELEAVE AT PREMISE AND PLACE

UNDER CUSTODY & PLACE AS IO MAY DETERMINE

s45

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S.50 – Seizure of movable property in financial institution(1) Where the Public Prosecutor is satisfied on information given to him by an investigating officer that any movable property, including any monetary instrument or any accretion to it, which is the subject-matter of an offence under subsection 4(1) or evidence in relation to the commission of such offence,

Page 40: The Mechanics of AMLATFA

is in the possession, custody or control of a financial institution, he may, notwithstanding any other law or rule of law, after consultation with Bank Negara Malaysia, the Securities Commission or the Labuan Offshore Financial Services Authority, as the case may be, by order direct the financial institution not to part with, deal in, or otherwise dispose of such property or any part of it until the order is revoked or varied.

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PUBLIC PROSECUTOR s50(1)

CONSULT RELEVANT SUPERVISORY

AUTHORITY OF FIs(BNM, SC, LOFSA)

IF FIs FAILS TO COMPLY WITH ORDERCOMMITS AN OFFENCE

PUNISHABLEUNDER s50(3)

AFTER CONSULTATION,PP MAY ISSUE

ORDER UNDER s50(1)

ORDER TO FIs:-• NOT TO PART WITH;

• DEAL IN; OR• DISPOSE

SUCH PROPERTY ORANY PART UNTIL

ORDER IS REVOKEDOR VARIED

s50(1)

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Case LawCity Growth Sdn Bhd & Anor v. The Government of Malaysia (2006) 1 MLJ 581“The order of the deputy public prosecutor is not reviewable under O 53 of the RHC. Section 50(1) of AMLA is part and parcel of the investigation process into an offence under s 4(1) of AMLA. In order to facilitate the investigation into the offence of money laundering, the law has provided with the Public Prosecutor the power to assist the investigating officer…Thus by issuing the said orders, the DPP was merely exercising a function under AMLA…Otherwise if all decisions and action of public authority of this nature are amendable to court’s review, then the government machinery may not be able to function smoothly. The investigation process of all law enforcement agencies will be opened to constant judicial review.”

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s.51- Seizure of immovable property

(1) Where the Public Prosecutor is satisfied on information given to him by an investigating officer that any immovable property, is the subject-matter of an offence under subsection 4(1) or evidence of the commission of such offence, such property may be seized, and the seizure shall be effected.

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(a) by this issue of a Notice of Seizure by the Public Prosecutor setting out the particulars of the immovable property which is seized in so far as such particulars are within his knowledge, and prohibiting all dealings in such immovable property;

(b) by publishing a copy of such Notice in two newspapers circulating in Malaysia, one of which shall be in the national language and the other in the English language; and

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(c) by serving a copy of such Notice on the Land Administrator or the Registrar of Titles, as the case may be .... of the area in which the immovable property is situated.

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IO GIVES DPP INFORMATION ON PROPERTY TO BE SEIZED

PROHIBTS ALL DEALINGS IN RESPECT OF IMMOVABLE PROPERTY

S51(3)

DPP’S DISCRETION

SERVES NOTICE ONLAND ADMINISTRATOR /

REGISTRARMALAYA/SABAH/SARAWAK

NOTICE OF SEIZUREIN 2 NEWSPAPER

BM & ENGLISH

DPP ISSUE NOTICEOF SEIZURE

MANNER OF SEIZURE

TO ENDORSE TERMS OF NOTICE ON TITLE

S51(2)

s.51

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s.52 – Special provisions relating to seizure of a business

(1) Where an enforcement agency has reason to believe that any business- (a) is being carried on by or on behalf of any person against whom prosecution for an offence under subsection 4(1) is intended to be commenced;(b) is being carried on by or on behalf of a relative an associate of such person;

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(c) is a business in which such person, or a relative or associate of his, has an interest which amounts to or carries a right to not less than thirty per centum of the entire

business; or(d) is a business over which such person or his relative or associate has management or effective control, either individually or together, the enforcement agency may seize the business in the manner provided under this Part or by an order in writing…

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the enforcement agency may seize the business in the manner provided under this part or by an order in writing-(aa) direct the extent and manner in which the business may be carried on;(bb) specify any person to supervise, direct or control the business, including its accounts, or to carry on the business or such part of it as may be specified;

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(cc) direct that all or any proportion of the proceeds or profits of the business be paid to Accountant-General and retained by him pending further directions in respect of it by the enforcement agency;(dd) prohibit any director, officer or employee or any other person from being in any manner involved in the business with effect from the date of the letter of prohibition; or

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(ee) direct that the premises where the business was carried on to be closed and, if necessary or expedient. Placed under guard or custody.

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Prosecution

s 93 – Instituted with PP’s written consent

s 91 – Joinder of charges : may be charged with and tried at one trial for any numbers of offences committed within any length of time

s 87 - Corporate liability & liability of any person acting in official capacity

s 92 – compoundable with the consent of PP – not exceeding 50% of the maximum fine

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Forfeiture For the recovery of proceeds of crime, AMLATFA

provides :a. Power to forfeit property at the end of criminal proceeding (s 55) or civil forfeiture proceeding (s56)b. Even if the accused is acquitted, the court is still empowered to forfeit the property seized provided that the court is satisfied :

i. the accused is not the true & lawful owner of the property

ii. No other person is entitled to the property as a purchaser in good faith for valuable consideration

Page 54: The Mechanics of AMLATFA

c. Where the proceeds of crime have been disposed off or cannot be traced, the court upon conviction shall order the accused to pay as penalty a sum equivalent to the value of such proceeds and such penalty shall be recoverable as a fine.

d. In respect of benefits derived by the accused from the commission of money laundering offence, the court may impose a pecuniary penalty order (s 59).

Page 55: The Mechanics of AMLATFA

Forfeiture

(1) Criminal forfeiture – s.55, s.59 & s.61

(2) Civil forfeiture – s.56 & s.61

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s.55 – Forfeiture of property upon prosecution for an offence

(1) Subject to section 61, in any prosecution for an offence under subsection 4(1), the court shall make an order for the forfeiture of any property which is proved to be the subject-matter of the offence or to have been used in the commission of the offence where-

Page 57: The Mechanics of AMLATFA

(a) the offence is proved against the accused; or

(b) the offence is not proved against the accused but the court is satisfied-(i) that the accused is not the true and lawful

owner of such property; and(ii) that no other person is entitled to the

property as a purchaser in good faith for valuable consideration.

Page 58: The Mechanics of AMLATFA

(2) Where the offence is proved against the accused but the property referred to in subsection (1) has been disposed of, or cannot be traced, the court shall order the accused to pay as a penalty a sum which is equivalent to, in the opinion of the court, the value of the property, and any such penalty shall be recoverable as a fine.

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(3) In determining whether the property is the subject – matter of an offence or has been used in the commission of an offence under subsection 4(1) the court shall apply the standard of proof required in civil proceedings.

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Provision as to sentences of fine

s.283CPC In every case of an offence in which the offender is sentenced to pay a fine the Court passing the sentence may, in its discretion, do all or any of the following things:

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(1) allow time for the payment of the fine;(2) direct payment of the payment of the fine;(3) issue a warrant for the levy of the amount by distress and sale of any property belonging to the offender;(4) direct that in default of payment of the fine the offender shall suffer imprisonment for a certain term….

-- If the offence is punishable with imprisonment – -- exceed 2 years – ¼ of the maximum term of - imprisonment

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s.56 – Forfeiture of property where there is no prosecution

(1) Subject to section 61, where in respect of any property frozen or seized under this Act there is no prosecution or conviction for an offence under subsection 4(1), the public prosecutor may, before the expiration of twelve month from the date of the freeze or seizure, apply to a judge of High Court for an order of forfeiture of that property if he is satisfied that such property had been obtained as a result of or in connection with an offence under subsection 4(1).

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s.56(3)-Any property that has been seized and in respect of which no application is made under subsection (1) shall, at the expiration of twelve months from the date of its seizure, be released to the person from whom it was seized.

s.56(4) - In determining whether or not the property has been obtained as a result of or in connection with an offence under subsection 4(1), the court shall apply the standard of proof required in civil proceedings.

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(3) In determining whether the property is the subject – matter of an offence or has been used in the commission of an offence under

subsection 4(1) the court shall apply the standard of proof required in civil proceedings.

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Right of Bone Fide Third Parties

s 61 Forfeiture ProceedingThe court making the order of forfeiture under s 55 or the Judge whom an application is made under sub section 56(1) shall cause to be published a notice in the Gazzette calling upon any third party who claims to have any interest in the property to attend before the court on the date specified in the notice to show cause as to why the property shall not be forfeited

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The property shall be return to the claimant when the court is satisfied that :(a) the claimant has a legitimate interest in the property(b) no participation, collusion or involvement with respect to the offence can be imputed to the claimant(c) the claimant lacked knowledge and was not intentionally ignorant of the illegal use of the property or if he had knowledge, did not freely consent to its illegal use

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(d) the claimant did not acquire any right in the property from a person proceeded against under circumstances that give rise to a reasonable inference that any right was transferred for the purpose of avoiding the eventual subsequent forfeiture of the property; and(e) the claimant did all that could reasonably be expected to prevent the illegal use of the property

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In the case of PP v Lau Kwai Thong, Judicial Commissioner Tuan Abang Iskandar held that the claimant has to prove on balance of probabilities all the requirement under that s 61 (4) i.e the section should be read conjunctively and not disjunctive.

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Report

Investigation

Freezing --------------------------------------Seizure(90 days) (9 months)

Criminal/Civils.55 / s.56

Forfeiture – s.61

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Evidential/Admissibility Provision

S 40 – evidence gathered (statement or real evidence) under s 32 shall be admissible as evidence notwithstanding any written law or rule of law to the contrary

S 71 – document or evidence gathered by PP or enforcement in exercise of his power under this Act, such document or copy of document or other evidence shall be admissible notwithstanding anything contrary in any written law

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s 72 – admissibility of statements by accused persons & the court may draw inferences from failure to mention fact which in the circumstances existing at the time he could reasonably have been expected to mention

s 73 – Admissibility of statements and documents of persons who are dead or cannot be traced etc

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Absconded Person

A person shall be treated as if he had been convicted of a serious offence if the person absconds in connection with a serious offence

A person shall be treated as if he had absconded if before or after the commencement date(a) An investigation for serious offence has been commenced against the person

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(b) the person (i) dies before proceedings in

respect of the offence were instituted, or if such proceedings were instituted, the person dies before he is convicted of the offence

(ii) at the end of the period of six months from the date on which the investigation was commenced against him, cannot be found, apprehended or extradited(Section 63)

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A forfeiture order may be made against an absconded person if the court is satisfied (i) on the balance of probabilities that the

person has absconded and(ii) having regard to all the evidence before the

court, that such evidence if unrebutted would warrant his conviction for the offence(Section 64)

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Forfeiture Upon Prosecution

• From 2004 - the end of 2007, the main focus of the Forfeiture of Property Unit is on the criminal proceeding.• To date, 95 prosecutions have been instituted and 15 cases completed

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Cases on Forfeiture

Upon ProsecutionIn the case of PP v Abd Khalid bin Hamid

Convicted on 5 charges and sentenced to 3 years imprisonment for each charge (concurrent)

Forfeiture – House & Vehicles (Proton Perdana V6 and Mercedes Benz)

In the case of PP v Ong Seh Sen Convicted and sentenced to 2 years imprisonment Forfeiture – RM314,724.79 Penalty Order – RM1 million (in default 12 months

imprisonment)

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Cases on Forfeiture Upon Prosecution

In the case of PP v Tan Khay Guan Convicted and sentenced to 3 years imprisonment Forfeiture - RM39,270.09 Penalty Order – RM19.3 million (in default 12 months

imprisonment)

In the case of PP v Mohd Faizal bin Hussin Convicted on 99 charges and sentenced to 12 years and 3

months imprisonment Forfeiture – Vehicle (Proton Perdana V6) Penalty Order - RM939,255.21 (in default 15 months

imprisonment)

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Cases on Forfeiture

Upon ProsecutionIn the case of PP v Mohd Norzli b. Mohd

SidekConvicted and sentenced to :(i) 2 years and 6 months imprisonment Penalty Order – RM60,000.00 (in default 12 months

imprisonment)(ii) 2 years and 6 months imprisonment Penalty Order – RM25,000.00 (in default 4 months

imprisonment)

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Cases on Forfeiture Upon Prosecution

In the case of PP v Nurul Huda bt. Hj. AhmadConvicted and sentenced to :(i) 3 charges - 2 years and 6 months imprisonment Penalty Order – RM40,000.00 (in default 3 months

imprisonment)(ii) 3 charges - 2 years and 6 months imprisonment Penalty Order – RM32,750.00 (in default 2 months

imprisonment)(iii) 3 charges - 2 years and 6 months imprisonment Penalty Order – RM45,000.00 (in default 3 months

imprisonment)(iv) 3 charges - 2 years and 6 months imprisonment Penalty Order – RM60,000.00 (in default 5 months

imprisonment)(v) 3 charges - 2 years and 6 months imprisonment Penalty Order – RM41,875.00 (in default 3 months

imprisonment)(vi) 3 charges - 2 years and 6 months imprisonment Penalty Order – RM25,000.00 (in default 2 months

imprisonment)

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Forfeiture Where There Is No ProsecutionSection 56

Forfeiture of property where there is no prosecution

(1) Subject to section 61, where in respect of any property frozen or seized under this Act there is no prosecution or conviction for an offence under subsection 4(1) , the Public Prosecutor may, before the expiration of twelve months from the date of the freeze or seizure, apply to a judge of the High Court for an order of forfeiture of that property if he is satisfied that such property had been obtained as a result of or in connection with an offence under subsection 4(1) .

(2) 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-

(a) that the property is the subject-matter of or was used in the commission of an offence under subsection 4(1) ; and

(b) that there is no purchaser in good faith for valuable consideration in respect of the property.

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Forfeiture Where There Is No Prosecution

Starting December 2007, the Forfeiture of Property Unit began initiating civil forfeiture proceedings

To date, 36 forfeiture proceedings filed and 22 concluded

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Cases on Forfeiture Where There Is No Prosecution

PP v Omar Yusof & Syarikat CNT Yusuf Sdn. Bhd. Forfeiture - RM949,190.58, USD5,000

- Boat (Kingfisher) & Furnitures(predicate offence – s.420 Penal Code)

PP v Jamin bin Ahmad & Mohd Yusof bin Abu Bakar Forfeiture - RM37, 053.80 (predicate offence – s.395 Penal Code)

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Cases on Forfeiture Where There Is No

Prosecution PP v Nicholas Baptist

Forfeiture - RM1,484,426.87 (predicate offence – s.420 Penal

Code)

PP v Latchimanan a/l Perumal & Keevhen Enterprise Forfeiture - RM171,280.00 (predicate offence – s.395 Penal Code)

Page 84: The Mechanics of AMLATFA

Cases on Forfeiture Where There Is No

Prosecution• PP v Kay Poh Koh & Ors.

Forfeiture – RM603,591.79 (predicate offence – s.392 Penal Code)

• PP v Chew Yew Loong & Ors. Forfeiture – RM8,803.04 (predicate offence – s.133 Custom Act 1967)

Page 85: The Mechanics of AMLATFA

Cases on Forfeiture Where There Is No

Prosecution• PP v Hitech Objective Enterprise &

Ors. Forfeiture – Aprilia RS 250GP1 Motorcycle

(predicate offence – s.25(1) BAFIA Act 1989)

• PP v Lau Kwai Thong Forfeiture - RM110,000.00 (predicate offence – s.409 Penal Code)

Page 86: The Mechanics of AMLATFA

Thank you

Muhammad Saifuddin bin Hashim Musaimi

Deputy Head of Forfeiture of Property & AMLA Unit

Attorney General’s ChambersMalaysia


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