The Court of Appeal has dismissed the prosecution’s appeal to forfeit millions of ringgit belonging to Umno, Wanita MCA and six other entities.
The prosecution was appealing against the decision of the Kuala Lumpur High Court in dismissing its application to forfeit RM192,965,413.61 belonging to Umno as well as funds belonging to Wanita MCA (RM300,000), Perano Sdn Bhd, a company that sells hijabs, and Binsabi Sdn Bhd which supplies tents (RM337,634.78 and RM827,250 respectively); Habib Jewels Sdn Bhd (RM100,000); K&Z Enterprise Sdn Bhd (RM138,359.60); the Kedah Umno Liaison Committee (RM1.05 million) and Hattatex Trading (RM111,590).
A three-member bench comprising justice Abdul Karim Abdul Jalil, Hadhariah Syed Ismail and Abu Bakar Jais also allowed an appeal by the Pahang Umno Liaison Committee against a High Court decision on Jan 9 last year allowing the prosecution to forfeit RM2,479,300.18 seized from the committee.
“The court found that the trial judge had erred and disregarded the facts that the money had been spent and was no longer available, and that the money seized was from other sources and was lawful money.
“Accordingly, we allow the appellant’s appeal (Umno Pahang) and set aside the High Court’s order,” Hadhariah said when reading out the brief judgment in a virtual proceeding today.
The money, seized by the Malaysian Anti-Corruption Commission (MACC), was allegedly linked to the 1MDB fund scandal.
Hadhariah said the unlawful activities, in this case, were the unlawful activities committed by former prime minister Najib Razak in relation to the 1MDB funds, and that the prosecution’s case was that the money received by the respondents from Najib was from 1MDB, constituting an offence committed by Najib under Section 23 of the MACC Act 2009 (the predicate offences).
“The learned High Court judge found that the affidavit affirmed by the investigating officer on the predicate offences of Section 23 merely disclose the movements of the monies deposited and transferred out of Najib’s accounts and certain other entities and there is no sufficient averment to establish the monies received from Najib were unlawful activities,” Hadhariah said.
The judge also said that even if the money received from Najib was from unlawful activities, the High Court had correctly ruled that it could not be simply forfeited because the respondents had averred that the money given by Najib between 2012 and 2013 had already been spent after a period of five years and that the money seized in 2018 was from other lawful sources.
“The prosecution did not challenge the respondents’ averment. It is very unlikely that the money in the respondents’ accounts seized in 2018 was derived from the cheque issued by Najib.
“The prosecution did not identify specifically which money in the respondents’ accounts was actually the proceeds from the unlawful activities,” she said.
On the appeal in relation to the political parties, Hadhariah said the court found no reason to disturb the finding of fact made by the High Court judges.
“Based on the evidence, the judges concluded that the court was not satisfied under Section 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 that the monies sought to be forfeited were evidence or subject matter relating to an offence for unlawful activities.
“We find no good reason to disturb the finding of fact made by the learned High Court judges. Accordingly, we dismiss the prosecution’s appeal,” she said.
On the appeal in relation to the business entities, Hadhariah said the court agreed with the judges that the monies received from Najib were payment for services rendered by the respondents (business entities) to him.
“The respondents supported their case with documentary proof such as invoices. The respondents had no knowledge and no reason to suspect that the monies they received from Najib were the proceeds of unlawful activities.
“We therefore dismiss the prosecution’s appeal against the respondents and affirm the order of the High Court,” she added.
The prosecution was conducted by deputy public prosecutors Muhammad Saifuddin Hashim Musaimi, Kamal Baharin Omar, Samihah Rhazali, Nik Haslinie Hashim, Mahadi Abdul Jumaat, Maziah Mohaide, Abdul Rashid Sulaiman and Farah Yasmin Salleh.
Hariharan Tara Singh and Syazwani Mohd Zawawi appeared for Umno; Ben Chan and Syazwani Mahmud represented Wanita MCA; Thevini Nayagam and Habizan Rahman represented Perano and K&Z Enterprise; G Nadaraja represented the Kedah Umno Liaison Committee; Mohd Khalil Tajuddin appeared for Binsabi; Syed Azimal Amir Syed Abu Bakar appeared for Pahang Umno; Mohd Shukri Ahmad Mansor appeared for Hattatex and Khoo Guan Huat represented Habib Jewels.
On June 21, 2019, MACC filed civil forfeiture applications against 41 people and entities, including Umno, to recover RM270 million allegedly taken from 1MDB.
MACC’s then-chief commissioner, Latheefa Koya, said the funds were allegedly transferred from Najib’s personal Ambank account.