[2020] 1 LNS 997 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(COMMERCIAL DIVISION)
[SUIT NO. WA-22NCC-362-09/2014]

BETWEEN

PROTASCO BHD
[Company No.: 548078-H] … PLAINTIFF

AND

1. PT ANGLO SLAVIC UTAMA

[Company Registration No.: 09.03.1.46. 80564)

2. TEY POR YEE

[NRIC No.: 760202-14-5147]

3. OOI KOCK AUN

[NRIC No.: 670307-07-5561] ... DEFENDANTS

GROUNDS OF JUDGMENT

Introduction

[1] Enclosure 407 is the 2 nd and 3 rd Defendants' application made

pursuant to Order 18 Rule 19 (1) (b) and/or (c) and/or (d) of the Rules of
Court 2012 and/or the inherent jurisdiction of the Court that the action as
against the 2 nd and 3 rd Defendants be struck out and for costs.

Background

[2] The Plaintiff is a publicly listed company. The 2 nd and 3 rd

defendants are former directors of the Plaintiff.

[3] On 22 September 2014, the Plaintiff instituted this action alleging

that the 2 nd and 3 rd Defendants had fraudulently caused the Plaintiff to
1
[2020] 1 LNS 997 Legal Network Series

enter into a transaction to acquire shares from the 1 st Defendant in a

company which through its group of companies, reportedly owned rights
to develop and produce oil and gas in Indonesia. The Plaintiff's cause of
action against the 2 nd and 3 rd Defendants is grounded on breach of
fiduciary duties as directors of the Plaintiff, deceit, fraud, conspiracy to
defraud/injure and contravention of section 132 and section 131 of the
Companies Act 1965 ('CA'). The Plaintiff further pleads that as a
consequence of the 2 nd and 3 rd Defendants' involvement in the
acquisition, it has suffered loss and damage in the sum of USD27 million.
As such, it contends that the amended and restated sale and purchase
between itself and the 1st Defendant is null and void or illegal.

[4] For the purpose of this judgment, I need only to set out in summary
the relief claimed by the Plaintiff against the 2nd and 3rd Defendants as
contained in its statement of claim:

(i) compensate the Plaintiff in equity for the breach of fiduciary

duties;

(ii) account to the Plaintiff for the monies misappropriated by

them;

(iii) account to the Plaintiff for secret profits received by them;

(iv) hold all such sums received as constructive trustees in favour

of the Plaintiff;

(v) reconstitute those assets held on trust for the Plaintiff;

(vi) damages for fraud and conspiracy; and

(vii) general damages, aggravated and exemplary damages.

[5] In essence, the 2nd and 3rd Defendants is to compensate the

Plaintiff losses in the sum of USD27,000,000 suffered due to their
2
[2020] 1 LNS 997 Legal Network Series

actions.

[6] The case has a long history. Part of this history includes a police
report made by the Plaintiff against all 3 Defendants on the same day as
the suit was filed premised on the allegations in the suit.

[7] Based on the contents of a police investigation paper, the Plaintiff

obtained on 01.04.2016 an ad interim Mareva injunction on 01.04.2016
against the 2 nd and 3 rd Defendants over their assets and properties up to a
value RM60,000,000. On 11.04.2018 parties entered into a consent order
for a Mareva injunction for like amount.

[8] Arising from police investigations, both the 2 nd and 3 rd Defendants

were arrested and charged under section 181, and 420 of the Penal Code
and section 131(1) of the Companies Act 1965; the 3 rd Defendant was
also charged under section 409 of the Penal Code ("the criminal
charges").

[9] Pursuant to section 50(1) of the Anti-Money Laundering, Anti-

Terrorism Financing and Proceeds of Unlawful Activities Act 2001
("AMLA 2001"), both the 2 nd and 3 rd Defendants had freezing and seizure
orders made with regard to their assets and properties culminating in a
forfeiture of property application made by the Public Prosecutor pursuant
to section 56 (1) AMLA 2001.

[10] The Public Prosecutor withdrew the criminal charges following a

representation made by both the 2 nd and 3 rd Defendants. Unhappy with the
discharge not amounting to an acquittal ordered, the 2 nd and 3 rd
Defendants filed an application to the High Court of Malaya at Shah
Alam and were acquitted of all the criminal charges on 28.3.2019.

[11] The High Court ordered the release of the assets belonging to the
2 nd and 3 rd Defendants after the Public Prosecutor withdrew the forfeiture
application on 29.11.2018.
3
[2020] 1 LNS 997 Legal Network Series

[12] Enc. 407 was filed on 20.9.2019 by the 2 nd and 3 rd Defendants.

[13] For ease of reference, the chronology of events that had transpired
prepared by the Plaintiff and which is not disputed is produced.

NO. DATE EVENT(S)

1. 22.09.2014 Plaintiff (PB) filed Civil Action at the Kuala Lumpur High Court

against 1 st Defendant (PT ASU), 2 nd Defendant (TPY) and 3 rd

Defendant (OKA)

2. 28.10.2014 TRY and OKA filed Statement of Defence

3. Jan 2015-May Freezing and Seizure Orders made under Section 50(1) AMLA

2015 2001 in relation to TPY and OKA's assets and properties

4. 09.10.2015 Forfeiture Application filed by the Public Prosecutor (DPP)

pursuant to Section 56(1) AMLA 2001 at the Kuala Lumpur High

Court

5. 15.01.2016 TPY being charged at the Kajang Sessions Court under Sections

181, 409 and 420 of the Penal Code (1 st Criminal Charges)

6. 03.02.2016 OKA being charged at the Kajang Sessions Court under Sections

181 and 420 of the Penal Code (1 st Criminal Charges)

7. 25.02.2016 Civil Action against PT ASU is stayed pending arbitration

proceedings between PB and PT ASU at KLRCA

8. 25.03.2016 TPY & OKA filed an application to stay proceedings against

themselves (i) pending outcome of the arbitration proceedings

between PB and PT ASU; (ii) pending outcome of the criminal

proceedings at Kajang Sessions Court

4
[2020] 1 LNS 997 Legal Network Series

9. 29.03.2016 PB filed Notice of Application (Ex-Parte) for Mareva Injunction

against TPY & OKA [En. 158]

10. 01.04.2016 Ad Interim Order for Mareva Injunction granted against TPY &
OKA until final disposal of En. 158 -RM60million

11. 19.05.2016 TPY & OKA filed 1 st Expungement application to expunge En. 159

(ie, PB's affidavit in support of Mareva Injunction) **PB only

served with Notice of Application. No supporting affidavit.

12. 11.07.2016 OKA being charged at the Kajang Sessions Court under Section

131(1) of the Companies Act 1965 (2 nd Criminal Charges)

13. 11.07.2016 TPY being charged at the Kajang Sessions Court under Sec tion

131(1) of the Companies Act 1965 (2 nd Criminal Charges)

14. 17.08.2016 TPY & OKA's 1st Expungement application were struck out with no

order of costs and with liberty to file afresh

15. 20.12.2016 Kuala Lumpur High Court granted a Stay of

16. 26.01.2017 TRY filed 2 nd Expungement application via En. 215 to expunge
certain paragraphs and documents in En. 158 (ie, cause papers of

Forfeiture Proceedings)

17. 06.02.2017 OKA filed 2 nd Expungement application via En. 218 to expunge
certain paragraphs and documents in En. 158 (i.e. cause papers of

Forfeiture Proceedings)

18. 26.09.2017 Discharge Not Amounting to an Acquittal ordered by the Kajang

Sessions Court (upon DPP's application) ("DNAA")

19. 25.10.2017 En. 215 & 218 (Expungement Applications) dismissed by YA

Tuan Azizul Azmi bin Adnan. TRY & OKA consented not to appeal

5
[2020] 1 LNS 997 Legal Network Series

against the dismissal of their Expungement Applications (Consent

Order dated 11.04.2018)

20. 29.01.2018 High Court Order for a Stay of Proceedings lifted by the Court of
Appeal - Civil Action against TPY and OKA to proceed for trial

expeditiously

21. 08.02.2018 TPY and OKA applied at the Shah Alam High Court for an outright
acquittal of the criminal charges

(**as alleged in paragraph 13 of Tey Por Yee's Affidavit (ENG)

without any supporting documents)

22. 30.03.2018 Case Management before YA Tuan Azizul Azmi bin Adnan - Trial

dated fixed on 18-28 February 2019 and 1 March 2019

23. 11.04.2018 Consent Order entered between PB, TPY and OKA

24. 11.04.2018 Mareva Injunction Order obtained against TPY & OKA

25. 07.05.2018 TPY & OKA filed an application to Amend their Statement of

Defence allowed by the High Court

26. 25.06.2018 TPY & OKA's application to Amend their Statement of Defence

allowed by the High Court (with no objection by P B)

27. 25.06.2018 High Court allowed PB's application under Bankers' Books
(Evidence) Act 1949 ("BBEA") for an order to inspect and take

copies of all entries in the books of the Bank (1st BBEA Order)

28. 29.11.2018 DPP withdrew the Forfeiture Application; Assets and properties

seized returned back to TPY and OKA respectively

29. 07.12.2018 TPY & OKA filed an application to Re-amend their Amended

Statement of Defence

6
[2020] 1 LNS 997 Legal Network Series

30. 07.01.2019 High Court allowed PB's 2 nd application under Bankers' Books

(Evidence) Act 1949 ("BBEA") for an order to inspect and take

copies of all entries in the books of the Bank (2 nd BBEA Order)

31. 10.01.2019 TPY & OKA's application to Re-amend their Amended Statement

of Defence allowed by the High Court with costs of RM20.000.00

to be paid to PB

32. 18.02.2019 1 st Day Full Trial against TPY and OKA commenced - PB started

its case by calling its first witness. Objection raised by TPY &

OKA on admissibility of the banking documents obtained by PB

under Bankers' Books (Evidence) Act 1949 (1st BBEA Order and

2nd BBEA Order) to be tendered as evidence at trial. Trial

adjourned to be continued on 18-29 November 2019.

33. 28.03.2019 Outright Acquittal ordered by the High Court at Shah Alam

34. 18.09.2019 Hearing of the appeals filed at the Court of Appeal in relation to

matters related to application under Bankers' Books (Evidence) Act

1949

35. 20.09.2019 TPY & OKA filed Striking Out Application

36. 30.09.2019 Continued Hearing of the appeals filed at the Court of Appeal in

relation to matters related to application under Bankers' Books

(Evidence) Act 1949

37. 11.11.2019 Case Management before YA Tuan Azizul Azmi bin Adnan - This
action will be heard before a new Judge. Previous trial dates on 18 -

29 November 2019 is vacated. New trial dates fixed on 3-14

August 2020

38. 07.02.2020 Case Management before YA Puan Wong Chee Lin - Previous trial

7
[2020] 1 LNS 997 Legal Network Series

dates on 3 - 14 August 2020 is vacated. New trial dates fixed on

18, 19, 21, 24 - 28 August 2020 and 1, 2 and 4 September 2020.

39. 06.03.2020 Decision of the appeals filed at the Court of Appeal in relation to
matters related to application under Bankers' Books (Evidence) Act

1949 -Court of Appeal allowed TRY & OKA's appeals -documents

obtained by PB under 1st BBEA Order and 2 nd Order are

inadmissible.

40. 21.05.2020 Case Management before Deputy Registrar Puan Siti Faraziana binti

Zainuddin - Previous trial dated fixed on 18, 19, 21, 24 - 28 August

2020 and 1, 2 and 4 September 2020 is vacated pending the disposal

of matters related to application under Bankers' Books (Evidence)

Act 1949.

41. 29.07.2020 Hearing of the Striking Out Application Case Management of the

Main Action

42. 25.08.2020 Hearing of the application for leave to appeal to the Federal Court -

matters related to the application under Bankers' Books (Evidence)

Act 1949

2 nd and 3 rd Defendants' contentions

[14] The 2 nd and 3 rd Defendants' argued that forfeiture proceedings

under s. 56 AMLA 2001 are civil proceedings and relied on PP v Sham
Bokhari (FC) [2018] 1 CLJ 305, PP v. Kuala Dimensi Sdn Bhd & ors
(COA [2018] 6 MLJ 37 and UMNO Bahagian Pekan v. PP [2020] 2 CLJ
272)

[15] The principal arguments asserted by the 2 nd and 3 rd Defendants to

justify their striking out application are hinged in short on:

(i) the subject matter of the forfeiture proceedings being civil in

8
[2020] 1 LNS 997 Legal Network Series

nature overlaps with the present action;

(ii) The present action and the AMLA proceedings are not
distinct actions - the allegations and facts relied upon by the
Plaintiff in the present suit are founded on the same subject
matter as follows:

(a) the present suit and the AMLA freezing, seizure and
forfeiture proceedings against the 2 nd and 3 rd
Defendants' properties under section 40, 50 and 56
AMLA 2001 were predicated on the same allegations of
cheating and breach of fiduciary duties by the 2 nd and
3 rd Defendants;

(b) the subject matter of the reliefs sought by the Plaintiff,

particularly on tracing and accounting of all the assets
and properties received and/or obtained by both the 2 nd
and 3 rd Defendants as a result of the said breaches,
involve assets and properties that were the subject
matter of the Freezing and seizure orders under section
44 and 50 of AMLA 2001;

(c) part of the assets sought by the Plaintiff in its Mareva

injunction application is also the subject matter of the
Forfeiture Application by the Public Prosecutor under
section 56(1) of the AMLA ;

(iii) The Plaintiff ought to have entered appearance in the

Forfeiture Proceedings as a bona fide third party pursuant to
section 61(1) of AMLA to claim for the same properties and
assets, and/or other reliefs against the 2 nd and 3 rd Defendants
but opted to maintain this parallel suit for the same purpose;
thus it is barred from pursuing the present suit on grounds of

9
[2020] 1 LNS 997 Legal Network Series

estoppel by conduct due to its failure or refusal to enter

appearance as well as challenge the return of properties and
assets to the 2nd and 3rd Defendants and cited Nana Ofori
Atta II, Omanhene of Akyem Abuakwa and another v Nana
Abu Bonsra II as Adansehene, and as representing the stool
of Adanse, and another (PC) [1957] 3 All WER 559; which
was cited with approval by the COA in Tradium Sdn Bhd v
Zain Azahari bin Zainal Abidin & Anor [1995] 1 MLJ 668

(iv) The doctrine of res judicata operates against the maintenance

of the present suit as the High Court through Collin Lawrence
Sequerah J had on 29.11.2018 ordered the release and return
of the properties and assets to the 2 nd and 3 rd Defendants;

(v) Even if the reliefs sought by the Plaintiff is not exclusive to

the properties and assets of the 2 nd and 3 rd Defendants but
includes declarations concerning the 2 nd and 3 rd Defendants'
fiduciary duties, the present suit is still caught by issue
estoppel in its amplified and wider sense and constructive res
judicata - in support, cited Asia Commercial Finance (M)
Berhad v. Kawai Teliti Sdn Bhd [1995] 3 MLJ 189 and
Hartecon JV Sdn Bhd & Anor v. Hartela Contractors Ltd
[1996] 2 MLJ 57 and Public Prosecutor v. Dato' Zainal
Abidin bin Md nor & Ors [2019] 1 LNS 821, in the later case,
the court had granted specific orders to preserve the bank's
legal rights as charge over the immovable property ; and

(vi) The Plaintiff did not have the mandatory consent of the
Public Prosecutor to maintain and/or continue this action
under section 54(3) of AMLA 2001 and thus the claim is
liable to be struck out - Genneva Malaysia Sdn Bhd v. Abdul
Ghani Sher Mohd [2018] 5 CLJ 472; Daud bin Mohamad & 8

10
[2020] 1 LNS 997 Legal Network Series

Ors v. Genneva Malaysia Sdn Bhd (KLHC Suit No. 22NCVC-

1490-12/2012).

Some principles on the law on striking out

[16] As the application to strike out is made under O 18 r 19(1), I

propose to set it out for convenience:

19. Striking out pleadings and endorsements (O. 18 r. 19)

(1) The Court may at any stage of the proceedings order to

be struck out or amended any pleading or the
endorsement, of any writ in the action, or anything in
any pleading or in the endorsement, on the ground that -

(a) it discloses no reasonable cause of action or

defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial

of the action; or

(d) it is otherwise an abuse of the process of the

Court,

and may order the action to be stayed or dismissed or judgment to

be entered accordingly, as the case may be.

[17] In an application under this provision of the 2012 rules, I am

guided by a catenation of cases on the subject. The court will only strike
out a claim in a plain and obvious case or that the claim is obviously
unsustainable - Bandar Builder Sdn Bhd & Ors v. United Malayan
Banking Corporation Berhad [1993] 3 MLJ 36 where the Supreme Court
clearly held at p 43 and 44:

11
[2020] 1 LNS 997 Legal Network Series

The principles upon which the court acts in exercising its power
under any of the four limbs of O 18 r 19(1) of the Rules of the
High Court 1980 are well settled. If is only in plain and obvious
cases that recourse should be had to the summary process under
this rule ... and this summary procedure can only be adopted when
it can be clearly seen that a claim or answer is on the face of it
'obviously unsustainable'...

This court as well as the court below is not concerned at this stage
with the respective merits of the claims. But what we have to
consider is whether the counterclaim discloses some cause of action
and, likewise, whether the defence to counterclaim raises a
reasonable defence. It has been said that so long as the pleadings
disclose some cause of action or raise some question fit to be
decided by the judge, the mere fact that the case is weak and not
likely to succeed at the trial is no ground for the pleadings to be
struck out (see Moore v Lawson and Wenlock v. Moloney & Ors).

[18] In Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v .
Karambunai Resorts Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn
Bhd) & Ors [1996] 1 MLJ 309 , Siti Norma JCA ( as her ladyship then
was) explained the approach when dealing with an application under O 18
r 19(1) of the Rules of the High Court 1980:

The discretionary power to dismiss an action summarily under O 18

r 19 and under the inherent jurisdiction of the court is a drastic
power which should only be exercised in plain and obvious cases,
as the effect of the exercise of such a power is to shut out the
plaintiff altogether from pursuing his claim. (See Tractors (M) Bhd
v Tio Chee Hing [1975] 2 MLJ 1.) Whether a case is plain or
obvious does not depend upon the length of time it takes to argue
12
[2020] 1 LNS 997 Legal Network Series

the case, but that when the case is argued on the affidavit evidence
available, it becomes plain and obvious that the case has no chance
of success. (See Mckay & Anor v. Essex Area Health Authority &
Anor [1982] 2 QB 1166; [1982] 2 All ER 771; [1982] 2 WLR 890.)

When a question of law becomes an issue, this in itself will

not prevent the court from granting the application, for as
long as the court is satisfied that the issue of law is
unarguable and unsustainable, it may proceed to determine
that question. (See Bank Negara Malaysia v. Mohd Ismail &
Ors [1992] 1 MLJ 400) Likewise, where the affidavit
evidence discloses a dispute of facts, such facts must be
analysed and if they are found to be inconsistent with
undisputed contemporary documents or inherently improbable
in themselves, the court is entitled to reject those facts and
proceed upon the undisputed contemporaneous documentary
evidence.

[19] The Federal Court in the case of CC Ng & Brothers Sdn Bhd v.
Government of State of Pahang [1985] 1 CLJ 235; [1985] CLJ (Rep) 45;
[1985] 1 MLJ 347 per Seah FJ exhorted:

The inherent power to dismiss an action summarily without

permitting the plaintiff to proceed to trial is a drastic power. It
should be exercised with the utmost caution [per Lord Diplock in
Tractors Malaysia Bhd v. Tio Chee Hing [1975] 2 MLJ 1. In
Lawrance v. Norreys (1890) 15 App Cas 210, 219 Lord Herschell
said words to the same effect that "It cannot be doubted that the
Court has an inherent jurisdiction to dismiss an action which is an
abuse of the process of the Court. It is a jurisdiction which ought to
be very sparingly exercised and only in very exceptional cases . I do
not think its exercise would be justified merely because the story

13
[2020] 1 LNS 997 Legal Network Series

told in the pleadings was highly improbable, and one which it was
difficult to believe could be proved", (emphasis added).

[20] The judgment of Eusoffe Abdoolcader SCJ in Superintendent of

Pudu Prison & Ors v. Sim Kie Chon [1986] 1 MLJ 494 at pp 498-499 is
authoritative:

There is moreover the inherent jurisdiction of the court in cases

where res judicata is not strictly established, and where estoppel
per rem judicata has not been sufficiently pleaded, or made out, but
nevertheless the circumstances are such as to render any reagitation
of the questions formally adjudicated upon a scandal and an abuse,
the court will not hesitate to dismiss the action, or stay proceedings
therein, or strike out the defence thereto, as the case may require. It
would suffice in this regard to refer to the judgment of the Privy
Council delivered by Lord Wilberforce in Brisbane City Council
and another v. Attorney General for Queensland [1979] AC 411 at
p 425:

The second defence is one of 'res judicata'. There has, of

course, been no actual decision in litigation between these
parties as to the issue involved in the present case, but the
appellants invoke this defence in its wider sense, according to
which a party may be shut out from raising in a subsequent
action an issue which he could, and should, have raised in
earlier proceedings. The classic statement of this doctrine is
contained in the judgment of Wilgram V-C in Henderson v.
Henderson (1843) 3 Hare 100 and its existence has been
reaffirmed by this Board in Hoystead v. Commissioner of
Taxation [1926] AC 155. A recent application of it is to be
found in the decision of the Board in Yat Tung Investment Co
Ltd v. Dao Heng Bank Ltd [1975] AC 581. It was, in the

14
[2020] 1 LNS 997 Legal Network Series

judgment of the Board, there described in these words:

... there is a wider sense in which the doctrine may be

appealed to, so that it becomes an abuse of process to raise in
subsequent proceedings matters which could and therefore
should have been litigated in earlier proceedings.

[21] In exercising utmost caution so as not to deprive the Plaintiff from

its day in court, this court in considering the 'bound to fail' or 'obviously
unsustainable' or that the fact that the case is 'weak and not likely to
succeed at the trial is no ground for the pleading to be struck o ut’ tests is
entitled where the application does not concern limb (a) of Order 18 r
19(1), to examine not just the statement of claim but the affidavit
evidence critically as was done by the Privy Council in Tractors
Malaysia v. Tio Chee Hing [1975] 2 MLJ 1.

[22] I hasten to add that the decision in Tractors Malaysia to examine

the affidavit evidence critically was followed by the former Supreme
Court in the case of Raja Zainal Abidin bin Raja Haji Tachik & Ors v.
British-American Life & General Insurance Bhd [1993] 3 MLJ 16 in a
judgment dated 29 July 1993 delivered by Peh Swee Chin, SCJ sitting
with Abdul Hamid Omar, LP and Mohamed Dzaiddin, SCJ. In the Bandar
Builder case (supra), a judgment dated 20 days earlier on 9 July 1993
delivered by Mohamed Dzaiddin, SCJ sitting with Abdul Hamid Omar,
LP and Eusoff Chin, SCJ, the former Supreme Court, however, held that
the Court should not embark on a minute protracted examination of the
evidence.

[23] In my respectful view, where there is manifestly conflict in

decisions of the same apex court, the principles in Young v. Bristol
Aeroplane Co Ltd [1944] KB 718 offers guidance, that the latter decision
should prevail suffice to say that it is trite that the court should not
examine the evidence in such a way as to amount to conduct a trial on the
15
[2020] 1 LNS 997 Legal Network Series

conflicting material affidavit evidence. I am also mindful of the

pronouncement of the Privy Council in Eng Mee Yong v. Letchumanan
[1979] 2 MLJ 212:

Although in the normal way it is not appropriate for a judge to

attempt to resolve conflicts of evidence on affidavit, this does not
mean that he is bound to accept uncritically, as raising a dispute of
fact which calls for further investigation, every statement on an
affidavit however equivocal, lacking in precision, inconsiste nt with
undisputed contemporary documents or other statements by the
same deponent, or inherently improbable in itself it may be. In
making such order on the application as he "may think just" the
judge is vested with a discretion which he must exercise ju dicially.
It is for him to determine in the first instance whether statements
contained in affidavits that are relied upon as raising a conflict of
evidence upon a relevant fact have sufficient prima facie
plausibility to merit further investigation as to their truth.

[24] I now move on to consider the issues in the application, namely:

(i) whether this action is caught by constructive res judicata,

cause of action estoppel, issue estoppel and abuse of court
process due to the Plaintiff's failure to avail itself of remedies
under section 60 and 60(1) of AMLA 2001;

(ii) whether failure to obtain consent of the Public Prosecutor

pursuant to section 54(3) AMLA 2001 bars this action;

(iii) whether the 2 nd and 3 rd Defendants' delay in filing the striking

out application is fatal.

I propose to deal with the 3rd issue first.

16
[2020] 1 LNS 997 Legal Network Series

Is the 2 nd and 3 rd Defendants' delay in filing the striking out

application fatal?

[25] In Boo Are Ngor (p) v. Chua Mee Liang (p) (sued as a public
officer of Kim Leng Tze Temple) [2009] 6 MLJ 145, the Federal Court
said:

[8] It is our view that O 18 r 19(1) of the RHC 1980 does not
specify a time limit during which a party may apply to the court to
strike out a pleading. But the application should be made promptly
and as a rule before the close of the pleadings. The court, however,
may allow an application to be made even after the pleadings are
closed. But such an application must be refused after the action has
been set down for trial (see the case of Bank Bumiputra Malaysia
Berhad & Anor v. Lorrain Esme Osman & Ors [1987] 2 MLJ 633;
[1987] CLJ (Rep) 472). Since the second suit has not been set down
for trial, the defendant in the present case in our view can still
apply to strike out the second suit on the ground of abuse of the
process of the court, (emphasis added)

[26] Notwithstanding that the trial in this matter has started 18 months
ago on 18.2.2019, with the Plaintiff having called its first witness, it is
my respectful view that the very words in Order 18 r 19 (1) "The Court
may at any stage of the proceedings order to be struck out or amended .."
appears not to handcuff this Court from considering the striking out
application at this stage if it is a fit and proper case to do so.

[27] However, I have no wish to impinge upon the doctrine of stare

decisis, where a decision by a higher court constitutes a binding
precedent on a lower court. I am duty bound and in fact stare decisis
demands that I observe the decision of the Federal Court in Boo Are
Ngor.

17
[2020] 1 LNS 997 Legal Network Series

[28] 1 ought to explain my reverence to precedents of the courts superior

to this court.

[29] To appreciate the fundamental importance of fidelity to the doctrine

of stare decisis, allow me to refer to Cassell & Co Ltd v. Broome & Anor
[1972] 1 All ER 801 (cited with approval by the Federal C ourt in
Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn
Bhd) v. Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113) where Lord
Hailsham said at p 809:

The fact is, and I hope it will never be necessary to say so again,
that, in the hierarchical system of courts which exists in this
country, it is necessary for each lower tier, including the Court of
Appeal, to accept loyally the decisions of the higher tiers. Where
decisions manifestly conflict, the decision in Young v. Bristol
Aeroplane Co Ltd [1944] 2 All ER 293 offers guidance to each tier
in matters affecting its own decisions. It does not entitle it to
question considered decisions in the upper tiers with the same
freedom. Even this House, since it has taken freedom to review its
own decisions, will do so cautiously. That this is so is apparent
from the terms of the declaration of 1966 itself where Lord
Gardiner LC said:

Their Lordships regard the use of precedent as an indispensable

foundation upon which to decide what is the law and its application
to individual cases. It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs, as
well as a basis for orderly development of legal rules.

[30] As such, it is unarguable that decisions of the Federal Court must

be followed and such decisions of the Federal Court can only be reviewed
by another panel of the Federal Court as for eg, in 2010, Zaki Azmi CJ in
Tan Ying Hong v. Tan Sian San [2010] 2 MLJ 1, [2010] 2 CLJ 269 stated
18
[2020] 1 LNS 997 Legal Network Series

that the error in the Federal Court's case of Adorna Properties v.

Boonsoom Boonyanit [2001] 1 MLJ 241; [2001] 2 CLJ 133 was obvious
and blatant, thus, affirming Gopal Sri Ram JCA's decision in Boonsoom
Boonyanit v. Adorna Properties [1997] [1997] 2 MLJ 62; [1997] 3 CLJ
17.

[31] In Periasamy s/o Sinnappen v. Public Prosecutor [1996] 2 MLJ 557

at p 582, Gopal Sri Ram JCA (as he then was) recognised the importance
of conforming with the doctrine of stare decisis. His Lordship said
forcefully:

Lastly, the learned appellate judge did not sufficiently address his
mind to the decision in Khoo Hi Chiang. We find the cavalier
fashion in which he approached the judgment of a five-member
bench of the Supreme Court in a case which was an authority
binding upon him to be quite appalling. We are convinced that the
learned appellate judge ought not to have brushed it aside as he did.

We may add that it does not augur well for judicial discipline when
a High Court judge treats the decision of the Supreme Court with
little or no respect in disobedience to the well-entrenched doctrine
of stare decisions.

We trust that the occasion will never arise again when we have to
remind High Court judges that they are bound by all judgments of
this court and of the Federal Court and they must, despite any
misgivings a judge may entertain as to the correctness of a
particular judgment of either court, apply the law as stated therein.

[32] In the present case, not only has the matter been set down for trial,
but the delay is more serious - the case has remained in the Court's docket
for well-nigh 6 years as the chronology at paragraph 13 has made evident
and the trial in fact has commenced. On these 2 grounds alone, following

19
[2020] 1 LNS 997 Legal Network Series

Boo Are Ngor, the striking out application which was filed on 20.9.2019,
7 months after trial has commenced is a non starter. Worse when there is
no explanation for such delay.

[33] Delay in filing a striking out application is not to be countenanced

as it is anthithetical to the very process of a summary procedure for
justice to be dispensed in cases that are plain and obvious and in the
process, eliminate unendurable delays in the law, thus saving costs and
time. Delay invariably scandalizes the fundamental ethos of the court
process. Even Shakespeare hundreds of years ago, wrote about the law's
delay:

For who would bear the whips and scorns of time, The oppressor's
wrong, the proud man's contumely, The pangs of despised love, the
law's delay,...."

Shakespeare's Hamlet: Act 3 Scene 1

[34] Charles Dickens too was inspired to write about the spectac ular
delay of the chancery court system in the fictional case of Jarndyce v.
Jarndvce in his novel "Bleak House":

This is the Court of Chancery, which has its decaying houses and
its blighted lands in every shire, which has its worn-out lunatic in
every madhouse and its dead in every churchyard, which has its
ruined suitor with his slipshod heels and threadbare dress
borrowing and begging through the round of every man's
acquaintance, which gives to monied might the means abundantly
of wearying out the right, which so exhausts finances, patience,
courage, hope, so overthrows the brain and breaks the heart, that
there is not an honorable man among its practitioners who would
not give--who does not often give-the warning, "Suffer any wrong
that can be done you rather than come here!"

20
[2020] 1 LNS 997 Legal Network Series

[35] For completeness's sake, I will also address the rest of the 2 nd and
3 rd Defendant's grounds for striking out.

Whether the Plaintiff's claim is barred by constructive res judicata,

cause of action estoppel, issue estoppel and abuse of court process

[36] In the instant application, learned counsel for the 2 nd and 3 rd

Defendants argued that arising from the Plaintiff's failure to make a claim
as a bona fide third party in the forfeiture proceedings pursuant to section
61 of AMLA 2001 due to the decision of the Public Prosecutor to
withdraw the Forfeiture application, the subsequent release of assets to
the 2 nd and 3 rd Defendants on 29.11.2018 as well as withdrawal of
charges arising from the Plaintiff's police report ending in an outright
acquittal on 28.03.2019 for the criminal charges, constructive res
judicata, cause of action estoppel and issue estoppel applies to bar the
Plaintiff from proceeding with the present action.

[37] The 2 nd and 3 rd Defendants stressed that the present action is a

collateral attack on the Attorney General's decision not to prosecute the
2 nd and 3 rd Defendants and as such is an abuse of court process as the
Plaintiff ought to seek a judicial review against the decision of the
Attorney General and relied on the cases of:

(i) Peguam Negara Malaysia v. Chin Chee Kow (as secretary of

Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng
Thuan) and another appeal [2019] 3 MLJ 443 which recently
held that the exercise of discretion by the Attorney General is
reviewable; and

(ii) Superintendent of Pudu Prison v. Sim Kie Chon [1986] 1 CLJ

548 where at pg 497 it was stated:

The respondent by these proceedings is in our view in

effect attempting to circuitously challenge the exercise
21
[2020] 1 LNS 997 Legal Network Series

by His Majesty of his powers of clemency in this case

under article 42 of the Constitution which he is
expressly precluded from doing by virtue of the
provisions of article 32(1) of the Constitution which
stipulate that His Majesty shall not be liable to any
proceedings whatsoever in any court. The High Court of
Australia in Horwitz v. Connor (1908) 6 CLR 38 40
held (at page 40) that no court has jurisdiction to review
the discretion of the Governor in Council in the
exercise of the prerogative of mercy, and a similar
attitude toward the royal prerogative of mercy was
adopted by the English Court of Appeal in Hanratty v.
Lord Butler of Saffron Walden (1971) 115 SJ 386; The
Times May 13. In relation to the question of the
amenability of a prerogative power to judicial review
we think that the enlightened approach is that this
would be dependent on its nature or subject matter, and
we find support for this view in the decision of the
House of Lords in Council of Civil Service Unions &
Ors v. Minister for the Civil Service [1985] AC 374
where Lord Scarman in his speech (at page 407) says
that it can be said with confidence the exercise of a
prerogative power is subject to review if the subject
matter in respect of which it is exercised is justiciable,
that is to say, if it is a matter upon which the court can
adjudicate, and again in the speech of Lord Roskiil (at
page 418) where he refers to examples of prerogative
powers which he did not think could properly be made
the subject of judicial review, such as inter alia that
relating to the prerogative of mercy, because their
nature and subject matter are such as not to be

22
[2020] 1 LNS 997 Legal Network Series

amenable to the judicial process.

[38] To digress a little, in Sim Kie Chart's case, the respondent was
tried, convicted on a charge under section 57(1) of the Internal Securit y
Act, 1960 and sentenced to death by the High Court at Kuala Lumpur on
June 14, 1983. His appeal to the Federal Court was dismissed. Thereafter
his application for clemency to His Majesty the Yang di-Pertuan Agong
was rejected. He then commenced an action on July 2, 1985 against the
first and third appellants and the Pardons Board, Malaysia for
declarations impugning the rejection of clemency on the ground of
discrimination in breach of article 8 of the Constitution. Hashim J.
initially granted a stay of execution of the sentence but this was later
lifted and the action struck out on an application by the defendants
thereto. An application for a stay and appeal against that decision were
heard together and dismissed by the Supreme Court on July 23, 1985. Se e
[1985] 2 MLJ 385.

[39] The respondent then instituted another suit against the first three
appellants three weeks later. His application for a stay of execution of the
sentence was refused but the Yang di-Pertuan Agong in the exercise of
the powers of clemency vested in him granted a respite pending the final
disposal of his appeal. The first three appellants applied to strike out the
second appellant as a party and to set aside the action as an abuse of the
process of the court. Hashim J. dismissed the application and such
decision was reversed on appeal on among others that the exercise of
prerogative of mercy by Yang di-Pertuan Agong is non -justiciable and
on the grounds of res judicata where the judgment of Eusoffe
Abdoolcader, SCJ held:

There is more over the inherent jurisdiction of the Court in cases

where res judicata is not strictly established, and where estoppel
per rem judicatam has not been sufficiently pleaded, or made out,

23
[2020] 1 LNS 997 Legal Network Series

but nevertheless the circumstances are such as to render any re -

agitation of the questions formally adjudicated upon a scandal and
an abuse, the Court will not hesitate to dismiss the action, or stay
proceedings therein, or strike out the defence thereto, as the case
may require. It would suffice in this regard to refer to the judgment
of the Privy Council delivered by Lord Wilberforce in Brisbane
City Council and Myer Shopping Centres Pty. Ltd. v. Attorney -
General for Queensland [1979] AC 411 (at p. 425):

The second defence is one of 'res judicata'. There has, of

course, been no actual decision in litigation between these
parties as to the issue involved in the present case, but the
appellants invoke this defence in its wider sense, according to
which a party may be shut out from raising in a subsequent
action an issue which he could, and should, have raised in
earlier proceedings. The classic statement of this doctrine is
contained in the judgment of Wigram V-C in Henderson v.
Henderson [1843] 3 Hare 100 and its existence has been
reaffirmed by this Board in Hoystead v. Commissioner of
Taxation [1926] Ac 155. A recent application of it is to be
found in the decision of the Board in Yat Tung Investment Co.
Ltd. v. Dao Heng Bank Ltd. [1975] AC 581. It was, in the
judgment of the Board, there described in these words:

... there is a wider sense in which the doctrine may be

appealed to, so that it becomes an abuse of process to raise in
subsequent proceedings matters which could and therefore
should have been litigated in earlier proceedings', (p. 590).

The attempt by way of the instant proceedings to re-litigate and re-

open the earlier action clearly reflects the appositeness of the
caption suggested for this matter in the prelude to this judgment

24
[2020] 1 LNS 997 Legal Network Series

and would appear to us to be as clear an instance of an abuse of the

process of the Court as one can find within the connotation thereof
enunciated in the speech of Lord Diplock in Hunter v. Chief
Constable of the West Midlands Police and Ors. [1982] AC 529 (at
page 542).

[40] The 2 nd and 3 rd Defendants' counsel asserted that section 60 and 61

of the AMLA 2001 provided a specific remedy which should have been
pursued by the Plaintiff in the forfeiture proceedings. Where there is a
specific remedy available, this court must decline relief, citing:

(a) Electrical Industry Workers Union v. Registrar of Trade

Union s & Anor[1976] 1 MLJ 177, FC;

(b) Wilkinson v. Barking Corporation [1948] 1 KB 721;

(c) Manggai v Government of Sarawak [1970] 2 MLJ 41.

[41] Counsel for the 2 nd and 3 rd Defendants posited that the Plaintiffs
civil and commercial rights are co-existent with the criminal complaint.
As such, the Attorney General's withdrawal of the criminal charges and
forfeiture proceedings has a bearing on the civil proceedings.

[42] Counsel for the 2 nd and 3 rd Defendants further contended that abuse
of process can take place at commencement of an action or can happen
after commencement of an action because of subsequent events that make
maintaining an action an abuse of court process. In rounding up his
submissions, he quoted the judgment of Ahmad Maarop CJ (Malaya) in
Kerajaan Malaysia v. Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133:

[29] At this juncture, it is opportune to add that in the Government

of Malaysia v. Dato Chong Kok Lim [1973] 2 MLJ 74, the wider
rule of res judicata as expanded in Henderson which sometimes is
referred to constructive res judicata, was succintly explained by
Sharma J at p 76 in the following manner:
25
[2020] 1 LNS 997 Legal Network Series

The rule is that a matter which might and ought to have been
made a ground of attack or defence becomes a matter which
was constructively in issue. A matter which might and ought
to have been made a ground of attack or defence in the former
application but which was not alleged as such a ground of
attack or defence is for the purposes of the plea of res
judicata deemed to have been a matter directly and
substantially in issue in the former application, that is to say,
though it may not have been actually directly and
substantially in issue it is still regarded as, having been
constructively, directly and substantially in issue. Th ere can
be no distinction between a claim that was actually made and
a claim which might and ought to have been made. The plea
of res judicata applies, except in special cases, not only to
points on which the court was actually required by the parties
to form an opinion and to pronounce its judgment thereupon
but to every point which properly belonged to the subject of
litigation and which the parties exercising reasonable
diligence might have brought forward at the time. It is only
where the plea which is sought to be raised in the subsequent
proceedings was not available to the party at the time of the
previous proceedings that the decision cannot be
constructively res judicata. The rule of constructive res
judicata is really a rule of estoppel.

[35] Lord Bingham referred to Hunter, and several authorities

which explored the forms of the abuse of the process doctrine
which had its root in Henderson v. Henderson to demonstrate the
development of the doctrine in recent years, at the end of which His
Lordship made the following crucial speech on the issue at p 31
which contained instructive approach in considering whether there
is an abuse of the process:
26
[2020] 1 LNS 997 Legal Network Series

But Henderson v. Henderson abuse of process, as now

understood, although separate and distinct from cause of
action estoppel and issue estoppel, has much in common with
them. The underlying public interest is the same: that there
should be finality in litigation and that a party should not be
twice vexed in the same matter. This public interest is
reinforced by the current emphasis on efficiency and
economy in the conduct of litigation, in the interests of the
parties and the public as a whole. The bringing of a claim or
the raising of a defence in later proceedings may, without
more, amount to abuse if the court is satisfied (the onus being
on the party alleging abuse) that the claim or defence should
have been raised in the earlier proceedings if it was to be
raised at all. I would not accept that it is necessary, before
abuse may be found, to identify any additional element such
as a collateral attack on a previous decision or some
dishonesty, but where those elements are present the later
proceedings will be much more obviously abusive, and there
will rarely be a finding of abuse unless the later proceeding
involves what the court regards as unjust harassment of a
party. It is, however, wrong to hold that because a matter
could have been raised in earlier proceedings it should have
been, so as to render the raising of it in later proceedings
necessarily abusive. That is to adopt too dogmatic an
approach to what should in my opinion be a broad, merits-
based judgment which takes account of the public and private
interests involved and also takes account of all the facts of
the case, focusing attention on the crucial question whether,
in all the circumstances, a party is misusing or abusing the
process of the court by seeking to raise before it the issue
which could have been raised before. As one cannot

27
[2020] 1 LNS 997 Legal Network Series

comprehensively list all possible forms of abuse, so one

cannot formulate any hard and fast rule to determine whether,
on given facts, abuse is to be found or not. Thus while I
would accept that lack of funds would not ordinarily excuse a
failure to raise in earlier proceedings an issue which could
and should have been raised then, I would not regard it as
necessarily irrelevant, particularly if it appears that the lack
of funds has been caused by the party against whom it is
sought to claim. While the result may often be the same, it is
in my view preferable to ask whether in all the circumstances
a party's conduct is an abuse than to ask whether the conduct
is an abuse and then, if it is, to ask whether the abuse is
excused or justified by special circumstances. Properly
applied, and whatever the legitimacy of its descent, the rule
has in my view a valuable part to play in protecting the
interests of justice ...

[43] The Plaintiff's counsel argued that the striking out application does
not hold water. The Plaintiff asserted:

(i) A construction of section 54 and 56 of the AMLA 2001 and

the effect of the provisions therein undisputedly reveal that
the said AMLA 2001 provisions have no application
whatsoever on the Plaintiff's claim and cannot in law form the
basis of an application to strike the Plaintiff's said claim;

(ii) The Plaintiff's present pleaded claim is a sustainable, separate

and distinct civil claim from the criminal charges and/or
forfeiture proceedings under AMLA 2001. The reliefs
claimed by the Plaintiff is not for the assets and properties of
the 2nd and 3rd Defendants seized under AMLA 2001 that
was commenced against the 2nd and 3rd Defendants;

28
[2020] 1 LNS 997 Legal Network Series

(iii) The forfeiture application was withdrawn by the Public

Prosecutor without it being heard and/or adjudicated by the
High Court. None of the issues pleaded by the Plaintiff in the
civil action herein was adjudicated upon by the High Court in
the forfeiture proceedings;

(iv) The 2 nd and 3 rd Defendants were acquitted from criminal

charges by the High Court at a case management without trial
and/or the hearing of evidence. Again, none of the issues
pleaded by the Plaintiff in the civil action herein were
adjudicated upon by the criminal court. Therefore, the
criminal convictions and/or discharge are irrelevant for the
purposes of the present civil proceedings. The acquittal order
has no bearing on the present civil action.

[44] In my view, it is imperative to note that the Plaintiff's claim against

the 2 nd and 3 rd Defendants is based on breach of fiduciary duties as
directors of the Plaintiff and for conspiracy to defraud. In this regard, the
statement of claim in:

(i) paragraphs 39 to 44 describes the representations made to the

board of directors of the Plaintiff favouring the amended and
restated sale and purchase agreement and urging the Board to
complete the proposed acquisition;

(ii) paragraphs 45 to 48 sets out the deception practised on the

Plaintiff into parting with USD27 million;

(iii) paragraphs 50 to 59 details the fraud and deception;

(iv) paragraphs 60 to 65 enumerates the breaches of duties as

directors of the Plaintiff with para 63 asserting that the losses
of usd27 million resulted from the breach of fiduciary duties;
and
29
[2020] 1 LNS 997 Legal Network Series

(v) paragraphs 66 to 67 details the conspiracy to defraud /injure

the plaintiff.

[45] I am inclined to agree with the Plaintiff's submission that the 2 nd

and 3 rd Defendants' striking out application is premised on a
misconception and misapplication of the effect and ambit of the
provisions of Section 54(3), 56(1) , Section 60 and Section 61 of AMLA
2001.

[46] For starters, the list of assets and properties of the 2 nd and 3 rd
Defendants that were seized under Section 50(1) of AMLA 2001 between
January 2015 to May 2015 are:

(a) 2 nd Defendant

1) CDS Account (Account No. :079-001-055315899)

2) CDS Account (Account No. :076-001-055361141)

(M0680)

3) CDS Account (Account No. :051-001-033645839)

(ZTE0577)

4) Maybank Islamic Bank (Account No. :162311616872)

5) Maybank Banking Berhad (Account No.

:514196572869)

6) CDS Account (Account No.:076-001-056339864)

7) CDS Account (Account No.:076-001-055361141)

(b) 3 rd Defendant

1) CIMB Bank Berhad (Account

No.:12460001143057/8003146490)
30
[2020] 1 LNS 997 Legal Network Series

2) HSBC Bank Malaysia Berhad (Account

No.:316123231132)

3) CIMB Islamic Bank Berhad (Account No.:5800059751)

4) CDS Account (Account No.:076-001-056607088 and
087-011-055670533) (DM1762)

[47] Prior AMLA 2001, financial crimes were dealt with under the Penal
Code, the Companies Act 1965, and the Dangerous Drugs (Forfeiture of
Property) Act 1988 and the Anti Corruption Act 1997.

[48] The very purpose of AMLA is stated in its preamble – “An Act to
provide for the offence of money laundering, the measures to be taken for
the prevention of money laundering and terrorism financing offences and
to provide for the forfeiture of property involved in or derived from
money laundering and terrorism financing offences, as well as terrorist
property, proceeds of an unlawful activity and instrumentalities of an
offence, and for matters incidental thereto and connected therewith. ”

[49] I think it is significant to note here the clear underlying object of

AMLA 2001.

[50] Section 17Aof the Interpretation Acts 1948 and 1967 (consolidated
and revised 1989) ('the Interpretation Acts') 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 or
object.

[51] Section 56 of AMLA 2001 reads:

56. Forfeiture of property where there is no prosecution.

31
[2020] 1 LNS 997 Legal Network Series

(1) Subject to section 61, where in respect of any property seized

under this Act there is no prosecution or conviction for an offence
under subsection 4(1) or a terrorism financing offence, the Public
Prosecutor may, before the expiration of twelve months from the
date of the seizure, or where there is a freezing order, twelve
months from the date of the freezing, apply to a judge of the High
Court for an order of forfeiture of that property if he is satisfied
that such property is -

(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.

(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 -

(i) the subject-matter or evidence relating to the

commission of an offence under subsection 4(1)
or a terrorism financing offence;

(ii) terrorist property;

(iii) the proceeds of an unlawful activity; or

(iv) the instrumentalities of an offence; and

(b) that there is no purchaser in good faith for valuable

consideration in respect of the property.
32
[2020] 1 LNS 997 Legal Network Series

(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.

(4) In determining whether the property is -

(a) the subject-matter or evidence relating to the

commission of an offence under subsection 4(1) or a
terrorism financing offence;

(b) terrorism property;

(c) the proceeds of an unlawful activity; or

(d) the instrumentalities of an offence,

the court shall apply the standard of proof required in civil

proceedings.

[52] Section 60 and 61 of AMLA respectively deal with property seized

and sets out the procedure for claims by bona fide third parties and is cast
as follows:

60. Release of property seized

(1) 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, with the consent of the Public
Prosecutor release 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
33
[2020] 1 LNS 997 Legal Network Series

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.

(2) 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.

(3) For the purpose of subsection (1), the Public Prosecutor

may give any direction of an ancillary or consequential
nature, or which may be necessary, for giving effect to,
or for the carrying out of, such release of property.

61. Bona fide third parties

(1) The provisions in this Part shall apply without prejudice

to the rights of bona fide third parties.

(2) The court making the order of forfeiture under

subsection 28L(1) or section 55 or the judge to whom
an application is made under subsection 28L(2) or 56(1)
shall cause to be published a notice in the Gazette
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.

34
[2020] 1 LNS 997 Legal Network Series

(3) A third party's lack of good faith may be inferred, by

the court or an enforcement agency, from the objective
circumstances of the case.

(4) The court or enforcement agency shall return the

property to the claimant when it is satisfied that -

(a) the claimant has a legitimate legal interest in the

property;

(b) no participation, collusion or involvement with

respect to the offence under subsection 4(1) or
Part IVA, or a terrorism financing offence which
is the object of the proceedings 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;

(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.

[53] I agree with the Plaintiff's submission that the 2nd and 3rd
Defendants' contention that the Plaintiff had not availed itself to the
specific relief as provided under section 60 and 61 of AMLA 2001 of a
35
[2020] 1 LNS 997 Legal Network Series

bona fide third party making a claim to the assets seized is untenable in
law.

[54] In this case, it must be appreciated that the Plaintiff's pleaded claim
against the 2 nd and 3 rd Defendants relates to breach of fiduciary duties, as
directors of the Plaintiff and for conspiracy to defraud. The claims do not
pertain to the seized property of the 2 nd and 3 rd Defendants. In addition,
the Forfeiture Application was withdrawn by the Public Prosecutor on
29.11.2018 even before the said application was heard and/or adjudicated
upon by the High Court.

[55] As such, it is absolutely unrealistic and erroneous for the 2 nd and 3 rd

Defendants to argue that the Plaintiff must avail itself of this specific
remedy to make a third party claim when there was no order made by the
High Court for publication of Gazette under Section 61(2) of AMLA
200149 to call upon any third party who claims to have any interest on
the property to attend before the Court to show cause as to why the
property should not be forfeited.

[56] In Zi Publications Sdn Bhd & Anor v. Jabatan Agama Islam

Selangor & Ors [2020] MLJU 938, where a seizure under AMLA 2001
was challenged by way of judicial review, the CA considered s 50(1) of
AMLA and opined:

[24] Thus it is clear to us that the seizure challenged by the

appellant in its judicial review application was an act done by
the respondents' officers in the exercise of a function in relation
to a criminal investigation for an offence under Act 606. In our
view such an exercise of power in the course of a criminal
investigation is not open to review under Q 53 of the RHC. To
hold otherwise would, to our mind, be exposing the criminal
investigative process of all law enforcement agencies in the country
to constant judicial review which surely could not have been the
36
[2020] 1 LNS 997 Legal Network Series

intention of Parliament. A balance has to be struck between the

right of disgruntled persons such as the appellant, to seek redress in
the form of damages for the alleged wrongful seizure of its propert y
and the duty of the investigative agency through its officers to
bring wrongdoers to face justice by arresting them and collecting,
in the course of investigation, whatever evidence against them. In
this connection the need to conduct prompt and unimpeded criminal
investigation is well recognised by the Court (see Ooi Ah Phua v.
Officer-in-charge Criminal Investigation, Kedah/Perlis [1975] 2
MLJ 198, Hashim bin Saud v. Yahaya bin Hashim & Anor [1977] 2
MLJ 116, Datuk Seri Ahmad Said Hamdan, Ketua Suruhanjaya,
Suruhanjaya Pencegah Rasuah Malaysia & Ors v. Tan Boon Wah
[2010] 3 MLJ 193). If decisions made and actions taken in the
process of criminal investigation pursuant to the power given by
law, such as the impugned seizure in this case are amenable to
judicial review, then criminal investigative machinery may not
function smoothly and efficiently as it should be. In this regard, we
would approve the decision on similar point made by the Kuala
Lumpur High Court in City Growth Sdn Bhd & Anor v. The
Government of Malaysia [2006] 1 MLJ 581. In this case, the
applicants sought leave to commence proceedings under O 53 r 3 of
the RHC for an order of certiorari to quash an order dated 5 July
2004 made by the Deputy Public Prosecutor which was served on
Hong Leong Bank Bhd and EON Bank Bhd. The orders sought to
effect a seizure of, inter alia, movable property in the banking
accounts of the applicants pursuant to s 50(1) of the Anti -Money
Laundering, Anti-Terrorism Financing and Proceeds of Unlawful
Activities Act 2001 ('AMLA'). The crucial question for
determination of the Court was whether the said orders of the
Deputy Public Prosecutor pursuant to s 50(1) of AMLA was
reviewable by way of judicial review. In his judgment, dismissing

37
[2020] 1 LNS 997 Legal Network Series

the application for leave for an order of certiorari, Raus J (as His
Lordship then was) said:

[11] From the above, it can be seen that the deputy public
prosecutor's order was in pursuant to s 50(1) of AMLA.
Section 50(1) of AMLA is in the following words:

(1)Where the Public Prosecutor is satisfied on

information given to him by an investigation 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, 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.

[12] Looking at the order of the deputy public prosecutor as

well as the provision of s 50(1) of AMLA, I am of the view
that the order of the deputy public prosecutor is not
reviewable under O 53 of the RHC. To me, s 50(1) of AMLA
is part and parcel of the investigation process into an offence
under s 4(1) of the AMLA. It appears that 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. Clearly, s 50(1)
of AMLA was enacted to enable the public prosecutor or his

38
[2020] 1 LNS 997 Legal Network Series

Deputy to make an order of seizure of movable properties in

the possession of the financial institutions by ordering the
financial institutions not to part, deal in, or otherwise dispose
of such property or any part of it until the order is revoked or
varied. Thus, by issuing the said orders the deputy public
prosecutor was merely exercising a function under AMLA.

[13] It has been said before that not all decisions and action
of a public officer is reviewable by the court. In R v. Sloan
[1990] 1 NZLR 474, Justice Hardie Boys said:

... it is not every decision made under statutory

authority that is subject to judicial review. A decision
must go beyond what is merely administrative or
procedural ... or the exercise of a function rather than a
power... Quite plainly, the conclusions reached by the
inspector here are of this kind and so are not
reviewable. To hold otherwise would, as Mr Neave
submitted, open up the investigation process of all law
enforcement agencies to constant judicial review; and
that cannot have been the intention of Parliament.

[14] Similarly, in Ahmad Azam bin Mohamed Salieh & Ors

v. Jabatan Pembangunan Koperasi Malaysia & Ors [2004] 4
MLJ 86, I held that the public officers exercising a function
under the Cooperative Societies Act 1993, is not reviewable
under O 53 of the RHC.

[15] Likewise in this case, the order of the deputy public

prosecutor under s 50(1) of AMLA is also not reviewable.
This must be so, 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
39
[2020] 1 LNS 997 Legal Network Series

function smoothly. The investigation process of all law

enforcement agencies will be open to constant judicial
review. To borrow the words of Justice Hardie Boys in R v.
Sloan 'that cannot have been the intention of Parliament'.

[16] It is submitted by learned counsel for all applicants that

the issuing of the s 50(1) order, the deputy public prosecutor
has crippled their business and has further failed to appreciate
that the said orders would subject them and its directors and
officers to liabilities resulting from their inability to utilize its
funds. But as stated earlier, the s 50(1) order is to secure the
evidence for the purpose of criminal prosecution under s 4(1)
of AMLA. It is not an administration decision but a decision
in relation to criminal investigation. Thus, the rights of all
applicants in the four cases lies in the criminal, as well as
civil law and not in an administration action. The deputy
public prosecutor was performing his duties under s 50(1) of
AMLA and cannot be made accountable by way of judicial
review.

[25] Similarly in the present appeal, the seizure was made in the
course of a criminal investigation of an offence under Act 606
pursuant to the powers conferred under the Act. Such seizure
clearly is not amenable to judicial review. The Appellant was not
without redress. It could have filed a private Jaw writ action for
damages. Indeed, s 48 of Act 606 provides for a cause of action for
recovery of damages if a seizure is made without reasonable cause,
(emphasis added)

[57] As clearly explained in the above case, under section 50(1) of the
AMLA 2001, the Public Prosecutor as part of his functions in the
investigative process into whether an offence under section 4(1) of the

40
[2020] 1 LNS 997 Legal Network Series

AMLA has been committed is entitled to make an order of seizure of

movable properties in the possession of the financial institutions
belonging to persons such as the 2nd and 3rd Defendants here.

[58] Section 55 provides for the forfeiture of any property seized under
the Act by the court where upon prosecution, an offence is proven under
subsection 4(1) whilst section 56 AMLA 2001 provides that where there
is no prosecution or conviction of an offence under section 4(1) or a
terrorism financing offence, the Court subject to section 61 may order
seized property to be forfeited upon the application of the Public
Prosecutor before the expiration of 12 months from the date of the
freezing order or seizure order. Section 56(3) expressly provides for the
release of the property to the person from whom it was seized upon the
expiration of 12 months from the seizure.

[59] In my view, section 55, and section 56 of AMLA 2001 are an

adjunct to and part of the role of the Public Prosecutor and when read
together with section 50(1), section 55 and section 56 are a corollary to
the investigation process.

[60] As pertains this action, I am of the view that the Public Prosecutor
in deciding to withdraw the Forfeiture Application was merely exercisin g
a function under AMLA 2001 as part of the investigation process and
following Zi Publications Sdn Bhd & Anor v. Jabatan Agama Islam
Selangor & Ors, the exercise of such a function as part of the
investigation process is not amenable to judicial review. Section 60 and
61 in my judgment, are clearly not stand alone provisions and have to be
read with the other provisions in AMLA 2001 dealing with freezing,
seizure and forfeiture.

[61] As such, the 2 nd and 3 rd Defendants' contention that the Plaintiff has
a specific remedy available to it under section 60 and 61 under the
forfeiture proceedings by way of a judicial review fails and with it the
41
[2020] 1 LNS 997 Legal Network Series

arguments on constructive res judicata, cause of action estoppel, issue

estoppel and abuse of court process.

[62] I also find merits in the Plaintiff's argument that:

(i) its present action is a distinct civil claim in contradistinction

from the criminal charges and/or forfeiture proceedings
brought by the Public Prosecutor under the AMLA 2001
provisions;

(ii) the Forfeiture Application was withdrawn by the Public

Prosecutor on 29.11.2018 prior to the same being heard
and/or adjudicated upon by the High Court. As the Forfeiture
Application was withdrawn by the Public Prosecutor, none of
the issues pleaded by the Plaintiff in the present civil action
was adjudicated upon by the High Court in the Forfeiture
Application,

(iii) the 2 nd and 3 rd Defendants on 28.03.2019 were acquitted by

the Shah Alam High Court without there being a trial. None
of the issues pleaded by the Plaintiff in the present civil
action were adjudicated upon by the criminal court,

(iv) the principles of res judicata simply do not bite as none of

the issues pleaded herein have been adjudicated upon by a
previous court of law;

(v) it is germane to note that different standards of proofs apply

to civil and criminal proceedings. In a criminal trial, in order
to convict, the prosecution must lead evidence in order to
prove the guilt of the accused beyond reasonable doubt. The
standard of proof in civil cases is one of balance of
probabilities.

42
[2020] 1 LNS 997 Legal Network Series

[63] The Plaintiff's citation of 2 cases are apt and useful and I gratefully
reproduce the submission in summary below:

(i) Reebook International Ltd v. Royal Corporation [1989] 1

MLJ 209 which considered the applicability of the doctrine of
res judicata after acquittal in a criminal case to a civil action.
The Singapore High Court held:

(1) Three essential conditions must be present before the

plea of res judicata and issue estoppel can be
successfully raised. First, there must have been a final
judgment or decision in the previous case; second, there
must be an identity of subject matter or issue in the
former and in the present litigation; and third, there
must be identity of parties in both cases.

(2) There was no dispute that in so far as the matter prayed

for in the criminal motion was concerned, a final
judgment was given by the High Court to quash the
search warrants because the complaints disclosed no
offence, followed by two consequential orders.

…..

(5) The question of different standards of proof is clearly a

material consideration in regard to issue estoppel. The
institution of the present civil action, where different
standards of proof prevailed, was not an abuse of the
process of the court and could not give rise to a plea of
issue estoppel.

(6) The condition of an identity of subject matter or issue

in the former and the present litigation was clearly not
satisfied in the present case.
43
[2020] 1 LNS 997 Legal Network Series

…..

(8) There was no merit on the plea of res judicata or issue

estoppel and there was nothing to preclude Reebok
International from commencing the present suit. Neither
did the commencement of such an action amount to an
abuse of the process of the court.

(ii) Datuk S Nailakaruppan & Ors v. Datuk Seri Anwar bin

Ibrahim and other appeals [2015] 4 MLJ 34 where the Court
of Appeal held:

A judgment in a criminal case could not be used as a

proof of a fact in issue in a civil case for claim for
damages. As to the appellant's defence of justification,
the High Court was right to hold that section 43 of the
Evidence Act 1950 barred them from relying on the
judgment, order or decree of another court proceeding,
more so, a criminal proceeding.

Consent by Public Prosecutor necessary for maintaining this action?

[64] Section 54 of AMLA reads:

54. Dealing with property after seizure to be void

(1) Where any property has been seized under this Act, and
so long as such seizure remains in force, any dealing
effected by any person or between any persons in
respect of such property, except any dealing effected
under this Act by an officer of a public body in his
capacity as such officer, or otherwise by or on behalf of
the Federal Government, or the Government of a State,
or a local authority or other statutory authority, shall be
44
[2020] 1 LNS 997 Legal Network Series

null and void, and shall not be registered or otherwise

be given effect to by any person or authority.

(2) Subsection (1) shall be in addition to and not in

derogation of subsection 51(3) and (4).

(3) For so long as a seizure of any property under this Act

remains in force, no action, suit or other proceedings of
a civil nature shall be instituted, or if it is pending
immediately before such seizure, be maintained or
continued in any court or before any other authority in
respect of the property which has been so seized, and no
attachment, execution or other similar process shall be
commenced, or if any such process is pending
immediately before such seizure, be maintained or
continued, in respect of such property on account of any
claim, judgment or decree, regardless whether such
claim was made, or such judgment or decree was given,
before or after such seizure was effected, except at the
instance of the Federal Government or the Government
of a State, or at the instance of a local authority or other
statutory authority, or except with the prior consent in
writing of the Public Prosecutor.

[65] It was argued by the 2 nd and 3 rd Defendant that this action cannot be
maintained as the Plaintiff had not obtained the consent of the Public
Prosecutor pursuant to section 54(3) of AMLA as confirmed in exhibit
OKA-2 and relied on the decisions of Vazeer Alam Mydin Meera JC
(now JCA) in Daud Bin Mohamad & 8 ors. v. Genneva Malaysia Sdn Bhd
& 4 ors in Kuala Lumpur High Court Civil Suit No. 22NCVC -1490-
12/2012) and Lau Bee Lan J (now JCA) in Genneva Malaysia Sdn Bhd v.
Abdul Ghani Bin Sher Mohamad [2018] 5 CLJ 472, [2017] MLJU 1819.

45
[2020] 1 LNS 997 Legal Network Series

[66] The Plaintiff on the other hand contended such consent is

unnecessary and relied on the decision of Mohd Ariff J (later JCA) in
Dato' Zahari Sulaiman v. Geneva Sdn Bhd [2011] 6 CLJ 219 amongst
others.

[67] It has been said that these three High Court cases have given
conflicting interpretations in regard to the scope of section 54(3) AMLA
2001.

[68] To put things in perspective, I find it necessary to embark on a brief

analysis of the scope of section 54(3) which was considered in the 3 High
Court cases to show that ultimately, the 2 nd and 3 rd Defendants'
contention that the Plaintiff's action is obviously unsustainable is deeply
flawed.

[69] In Daud Bin Mohamad & 8 ors. v. Genneva Malaysia Sdn Bhd & 4
ors. (Kuala Lumpur High Court Civil Suit No. 22NCVC-1490-12/2012)
Vazeer Alam Mydin Meera JC (now JCAJ held in the following relevant
passages:

[6] The 1st Defendant's main argument is that this suit is

statutorily barred, as the prior written consent of the Public
Prosecutor pursuant to section 54(3) AMLA has not been obtained.
Counsel for the 1st, 2nd, 3rd and 5th Defendants ("Defendants'
claim counsel") submits that the lack of consent is fatal to the
Plaintiffs' claim herein as such a claim is prohibited under section
54(3) of AMLA. I find merit in that submission for the following
reason.

[7] Now, section 44(1) and (2) of AMLA states that:

(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
46
[2020] 1 LNS 997 Legal Network Series

suspect that an offence under subsection 4(1) or a

terrorism financing offence has been, is being or is
about to be committed by any person, it may issue an
order freezing any property of that person or any
terrorist property, as the case may be, wherever the
property may be, or in his possession, under his control
or due from any source to him.

(2) An order under subsection (1) may include -

(a) an order to direct that the property, or such part of

the property as is specified in the order, is 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;

and

(b) an order to authorise any of its officers to take

custody and control of the property, or such part
of the property as is specified in the order if the
enforcement agency is satisfied that the
circumstances so require.

[8] The 1st Defendant has produced an order dated 1.10.2012

issued by the Bank Negara Malaysia under section 44 of AMLA
("the 1st Order") (pages 71-74 of Bundle I) freezing the monies of
the 1st Defendant's bank accounts. This would include CIMB Bank
Account Number 14560000662104 of the 1st Defendant into whi ch
the Plaintiffs allege having paid or deposited their monies ("the
CIMB Account"), which monies they now claim under this suit.
The 1st Order also restrains the 1st Defendant from disposing or

47
[2020] 1 LNS 997 Legal Network Series

dealing with any of its property. I agree with submissions of

Defendants' counsel that the 1st Order under section 44 of AMLA
has the effect of freezing the monies in all the 1st Defendant's bank
accounts and is prohibited from making any payment out of any of
its bank accounts. The 1st Order was valid for a period of 90 days
from the date of the Order.

[9] Subsequently, a further order was issued on 18.12.2012 by

the Public Prosecutor under the provisions of section 50(1) of
AMLA (pages 75-77 of Bundle I) freezing the monies in the 1"
Defendant's bank accounts including the CIMB Account. Section
50(1) of AMLA reads:

(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 a terrorism financing offence or evidence
in relation to the commission of such offence or which is
terrorist property, 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.

……..

[11] There is specific reference in both the 1st and 2nd Orders to
the CIMB Account. In the 1st Order that reference is found in the
Attachment to the order where the CIMB Account is specifically
48
[2020] 1 LNS 997 Legal Network Series

referred as being affected by the Order. And in the 2nd Order it is

found in the body of the Order itself. It would be useful to
reproduce the relevant part of the 2nd Order for ease of reference.

To:

CIMB ISLAMIC BANK BERHAD

Head Office Kuala Lumpur

WHEREAS. I, ANSELM. CHARLES. FERNANDIS, Deputy

Public Prosecutor being satisfied on the information given to
me by HUSEIN BIN ZAKARIA Investigating officer that the
moveable property including any monetary instrument or any
accretion to it, as set out below:

…..

(vi) GENNEVA MALAYSIA SON BHD (BUSINESS REG.

NO. s92s76-A) Current Account No. 14560000662104 ...

is the subject matter of an offence under subsection 4(1) of

the Anti Money Laundering and Anti-Terrorism Financing
Act 2001 (the Act) or evidence in relation to the commission
of such offence.

NOW PURSUANT to subsection 50(1) of the Act, it is hereby

ordered that you, your employee or your agent are not to part
with, deal in, or otherwise dispose of such property or any
part of it until this Order is otherwise revoked or varied.

TAKE NOTICE THAT failure to comply with this Order is an

offence under the Act.

Dated: 18 December 2012 (Signed)

49
[2020] 1 LNS 997 Legal Network Series

Deputy Public Prosecutor

[12] From a reading of section 54 of AMLA it is clear that so long

as a seizure of any property under this AMLA remains in force, no
action/suit or other proceedings of a civil nature shall be instituted,
or if it is pending immediately before such seizure, be maintained
or continued in any court or before any other authority in respect of
the property which has been so seized. At the time of institution of
this suit and the trial of the action, the 2nd Order was still
subsisting and therefore, the freezing of the 1st Defendant's CIMB
Account was effective and in force.

[13] The Plaintiffs have not obtained the requisite prior consent of
the Public Prosecutor, as required under section 54(3) of AMLA.
As such I find that the institution of this suit is contrary to the
prohibition under the said section 54(3) of AMLA and the action
cannot be maintained.(emphasis added)

[70] In Genneva Malaysia Sdn Bhd v Abdul Ghani Bin Sher Mohamad
[2018] 5 CLJ 472, [2017] MUU 1819, Lau Bee Lan J (now JCA) referred
to the case of Daud Bin Mohamad & 8 Ors. v. Geneva Malaysia Sdn Bhd
& 4 Ors (supra) and held as follows -

[47] With respect I am persuaded by the Defendant's argument that

the Plaintiffs claim is premature and/or statute-barred for non-
compliance of s.54(3) of the AMLATFA as the Plaintiff has not
obtained the Public Prosecutor's consent to file this suit and its
reliance on the decision of Vazeer Alam Mydin Meera JC (as he
then was) in the case of Daud Bin Mohamad & 8 Ors. v . Geneva
Malaysia Sdn Bhd & 4 Ors., KLHC Civil Suit No. 22NCVC-1490-
12/2012 dated 30/4/2014. My reasons are these.

[48] I find the Plaintiffs submission that its claim is not against

50
[2020] 1 LNS 997 Legal Network Series

the seized assets but is for a breach of contract is with respect

misconceived. It is my finding that there is no established contract.
What the Plaintiff is in fact seeking (though not pleaded in that
manner) is for the refund of the money which according to SP4 was
deposited by the Plaintiff into the Defendant's bank account , CIMB
Account no: 14560000662104. The Orders dated 1/10/2012 under
s.44 AMLATFA and Order dated 18/12/2012 under s.50
AMLATFA showed that the monies in the CIMB Account have
been frozen and have been seized. This will become apparent when
I refer to the relevant parts of Vazeer JC's judgment in Daud Bin
Mohamad's case.

[49] In my view the Defendant's reliance on Daud Bin Mohamad's

case is appropriate as the facts of the present case is somewhat
similar to the former. In Daud Bin Mohamad's case (supra) the
plaintiffs were customers of the 1st defendant and had entered into
individual contracts to invest in a gold investment scheme operated
by the 1st defendant. 2nd to 3rd defendants were directors of the 1st
defendant. The 1st defendant marketed and promoted the gold
investment scheme as being syariah compliant. The plaintiffs
alleged that they have individually paid monies to the 1st defendant
to purchase the gold and invest in the scheme and that the gold was
never delivered to them. The plaintiffs, amongst others, are seeking
the refund of the monies they allege that they have paid to the 1st
defendant and monies worth for the gold that they surrendered as
part of the renewal of their investment with the 1st defendant."
(emphasis added)

[71] In Dato' Zahari Sulaiman v. Geneva Sdn Bhd [2011] 6 CLJ 219, the
Plaintiff sold a used gold coin to the Defendant for a sum of
RM647.400.00 to be paid by instalments. The Defendant paid only
RM23.400.00. The Defendant failed to pay the balance sum of
51
[2020] 1 LNS 997 Legal Network Series

RM624.000.00. The Plaintiff sued the Defendant for the outstanding sum
of RM624.000.00. The Plaintiff was then served with a sei zure order
under Section 50(1) of AMLA 2001 and the Defendant's monies in
several bank accounts were seized. Premised on the seizure in accordance
with the AMLA provisions, the Defendant applied to strike out the
Plaintiff's claim premised on Section 54(3) of AMLA 2001. Mohamad
Arif Yusof J (later JCA) held:

Section 54, it is to be observed, is headed "Dealing with property

after seizure to be void." It is obvious from this heading, and from
the contents of the Section, that the reference to action, suit or
proceeding of a civil nature has to be related to the property seized,
in our case the numerous banking accounts of the various Banks
seized. Section 54(3) cannot be read the way the Defendant wants it
to be read, for to do so will interfere with the general fundamental
right of a citizen to resort to court process and access to justice for
the determination of his dispute. See eg, Kekatong Sdn Bhd v
Danaharta Urus Sdn Bhd [2003] 4 AMR 384 (Court of Appeal) for
an express recognition of access to justice as a fundamental right.
Such an outcome cannot be made dependent merely as an incidental
interpretation of this statutory provision. If it is to be excluded, it
will require clearer words that those appearing in Section 54(3).
Such a reading of the statutory provision will be in keeping with
the common law principle of statutory interpretation that requires
courts to interpret statutes so as not to interfere with vested rights,
unless the statute clearly states so. It will also be in line with
Section 17A of our Interpretation Act which requires courts to
adopt a purposive interpretation and adopt an interpretation that
will promote the purposes and objects of the statute rather than the
reverse. Therefore, with all respect due, the Defendant's argument
is untenable. Section 54(3), as presently worded, cannot be
reasonably interpreted as imposing a general restraining order on
52
[2020] 1 LNS 997 Legal Network Series

all suits, actions or proceedings as against all litigants or potential

litigants, and irrespective of the properties seized. To read this
provision as imposing a kind of restraining order on legal process
generally will, in my view, fall foul of Section 17A of the
Interpretation Act.

[72] Significantly however, the Court of Appeal in Genneva Malaysia

Sdn Bhd v Tio Jit Hong & Ors [2020] MLJU 175 at paragraph 60 of the
judgment approved of Mohamad Arif Yusof J (later JCA)'s construction
of S54 (3)AMLA:

[60] Be that as it may, having referred to the cases cited related to

the issue, we were more inclined to agree with Mohamad Arif
Yusof J in Dato' Zahari Sulaiman v. Genneva Sdn Bhd (supra)
which in our view is the correct interpretation of section 54 (3). His
Lordship in allowing summary judgment to be entered explained
that section 54(3) of AMLA cannot be read the way the defendant
wants it to be read, for to do so will interfere with the general
fundamental right of a citizen to resort to court process and access
to justice for the determination of his dispute. Section 54(3), as
presently worded, cannot be reasonably interpreted as imposing a
general restraining order on all suits, actions or proceedings as
against all litigants or potential litigants, and irrespective of the
properties seized. To read this provision as imposing a kind of
restraining order on legal process generally will, in my view, fall
foul of S.17A of the Interpretation Act.

[73] In my view, a close reading of Lau Bee Lan J (now JCA)'s

judgment in Genneva Malaysia Sdn Bhd v. Abdul Ghani Bin Sher
Mohamad in fact makes it manifest and quite plain that both Her
Ladyship and His Lordship Vazeer Alam Mydin Meera JC ( as he then
was) in Daud Bin Mohamad's case in fact approved of Mohamad Arif

53
[2020] 1 LNS 997 Legal Network Series

Yusof J (later JCA)'s construction of S54(3):

[51] I find the dicta of Mohamad Arif Yusoff J in the case of Dato'
Zahari Sulaiman (supra) relied on by the learned Counsel for the
Plaintiff which is referred to in paras 45 and 46 above has been
considered by Vazeer JC at para 14 of His Lordship's judgment. I
agreed with the view expressed at para 15 by the learned JC -

[15] I agree with the view of my learned brother that section

54(3) AMLA cannot be read as imposing a general restrain
(sic) on legal process. The restrained (sic) must be confined
to the property seized. On the facts of that case, it is not
clear if the monies being claimed by the plaintiff therein were
paid into the various bank accounts that were seized or
frozen. However, in the context of the facts of the case before
me now, there is evidence that the monies alleged to have
been paid by the plaintiffs and now claimed by the plaintiffs
were paid into the CIMB Account, which is frozen under the
2 nd Order. Therefore, it relates to properties seized or frozen
by order of the Deputy Public Prosecutor. In the premise, the
very subject of the present claim is covered under the 2 nd
Order, and as such. I am of the opinion that the clear
stipulation of section 54(3) of AMLA requiring the prior
written consent of the Public Prosecutor becomes operational.
The Plaintiffs would have to seek the prior written consent of
the Public Prosecutor before instituting this action.
Alternatively, the Plaintiffs could avail themselves of the
provisions of section 60(1) of AMLA to seek a return of their
monies in the CIMB Account. (Emphasis added)

[74] The findings in the cases of Genneva Malaysia Sdn Bhd v. Abdul
Ghani Bin Sher Mohamad and Daud Bin Mohamad are distinguishable as

54
[2020] 1 LNS 997 Legal Network Series

the 2 cases were decided on the basis that the very monies the respective
plaintiff sought in the 2 suits were the monies that were frozen which is
not the case in the present action. The present action against the 2 nd and
3 rd Defendants is a claim for breach of fiduciary duties as directors of the
Plaintiff and for conspiracy to defraud.

[75] The Plaintiff's counsel correctly highlighted another Court of

Appeal decision which makes the scope of section 54(3) crystal clear -the
case of Tetuan Khana & Co v. Saling bin Lau Bee Chiang & Ors and
other appeals [2019] 3 MLJ 258 where the Court of Appeal speaking
through Hasnah Hashim JCA ( Now FCJ) held;

(1) …..

(2) The 27 condominiums did not belong to Kanawagi but to the

trust since they were purportedly bought by Kanawagi as a trustee
for the benefit of the trust. The properties were also the subject
matter of injunctions ordered by the High Court which still
remained in force. As such, the properties did not fall within the
ambit of the notice of seizure issued to Kanawagi under the AMLA.
Based on a reasonable and purposive interpretation of s 54(3) of the
AMLA, read together with s 17A of the Interpretation Acts 1948
and 1967. s 54(3) of the AMLA could not be interpreted the way
the defendants wanted it to be interpreted, that is. that the plaintiffs
were barred from continuing with Suit 106 and Suit 228 in the light
of the notice of seizure. The purpose of the AMLA was to provide
measures to prevent money laundering and terrorism financing
offences — to prevent an accused from dealing with assets or
property procured through money laundering or unlawful activities.
The instant appeals, however, involved the enforcement of the trust
and the allegation that the trustees had mismanaged the trust. The
relevant provisions of the AMLA had to be interpreted in line with

55
[2020] 1 LNS 997 Legal Network Series

the purpose and objective of that Act as defined in its preamble.

Hence, in the instant case, the High Court had jurisdiction to hear
both Suit 228 and Suit 106 (see paras 53 & 56-58). (emphasis
added)

[76] I agree with the Plaintiff that a plain interpretation of section 54

means it prohibits firstly, any dealing with property forming the subject
matter of a seizure under the Act. Secondly, whilst seizure of any
property remains in force it prohibits the institution, maintenance and
continuation of any claim in relation to the subject matter of the seizure
without prior consent in writing of the Public Prosecutor; and thirdly, the
provisions are property specific and not party specific and as such, the
Plaintiff does not need the consent of the Public prosecutor to maintain
the present action.

[77] Lim Hui Jin v. CIMB Bank Bhd & Ors [2018] 6 MLJ 724 is another
Court of Appeal case that fortifies my decision that there is no statutory
bar to the present action under section 54(3) AMLA 2001 as the seizure
of the 2 nd and 3 rd Defendant's bank accounts do not remain in force.

[78] In Lim Hui Jin's case, the appellant's mother was investigated for
money laundering offences under section 4(1) of the Act. In the course of
investigations, the appellant's bank account was frozen on under section
44(1) of the Act. The appellant's mother, but not the appellant, was
charged with offences under the Act. The appellant commenced
proceedings seeking the release of the monies and all the accrued interest
in his bank account. One of the grounds in opposition raised by the
respondents was that the Freezing Order and Seizure Order could not be
reviewed by the Court in a civil proceeding by virtue of section 54(3) of
the Act. The High Court dismissed his action. On appeal, the Court Of
Appeal in allowing the appeal amongst others, ruled that section 54(3)
did not apply to the case because the condition in the operative words

56
[2020] 1 LNS 997 Legal Network Series

"For so long as a seizure of any property under this Act remains in force"
was not satisfied. The Seizure Order was no longer in force as it had
expired by the time the appellant commenced proceedings in the High
Court for the release of his bank account. The Court of Appeal elucidated
on 2 scenarios:

(i) If there is any prosecution for an offence under the Act,

section 55 allows the Court to make an order for the forfeiture
of property if the offence is proved against the accused, or if
the offence is not proved against the accused, where the Court
is satisfied that the accused is not the true and lawful owner
of the property and that no other person is entitled to the
property as a purchaser in good faith and for valuable
consideration; or

(ii) If there is no prosecution for an offence under the Act, the

Court may order seized property to be forfeited upon the
application of the Public Prosecutor under section 56 before
the expiration of 12 months from the date of the freezing
order or seizure order. This provision also expressly provides
for the release of the property to the person from whom it was
seized upon the expiration of 12 months from the date of the
seizure.

[79] Likewise in the present case, it was also argued by the Plainti ff that
even if assuming the damages sought for the breach of fiduciary duties
against the 2 nd and 3 rd Defendants are the monies in the accounts (which
it argued vehemently they were not), with the withdrawal of forfeiture
proceedings and the monies in the accounts released by the High Court,
the statutory bar in section 54(3) does not exist anymore.

[80] Unsurprisingly, counsel for the Plaintiff was wholly dismissive of

the 2 nd and 3 rd Defendants' line of arguments on the relevant provisions of
57
[2020] 1 LNS 997 Legal Network Series

AMLA 2001 and politely termed their arguments as "astonishing".

[81] I find it unnecessary to say more. Suffice to say that I agree with
the Plaintiff entirely and I find that the 2 nd and 3 rd Defendants'
interpretation of section 54 AMLA 2001 paid regard to the lette r and not
its intention.

[82] That being the position, in my judgment, having regard to the facts
and circumstances of this case, the Plaintiff do not need the consent of
the Public Prosecutor to proceed with this action.

[83] That is not all. I am also of the view whether there has been in fact
a breach of fiduciary duties, fraud, deception or non disclosure of facts
are matters which can only be decided after trial. This court further
assumes what is stated in the Statement of Claim is true - Tuan Haji
Ishak bin Ismail v. Leong Hup Holdings Bhd & other appeals [1996] 1
ML/667, at 679.

[84] Having therefore given careful consideration to the history of this

unfortunate saga, and the discretion invested in this court in deciding an
application of this nature which discretion is to be exercised judicially
and not arbitrarily or capriciously, it is difficult to accept the line of
arguments by the 2 nd and 3 rd Defendants that the action is scandalous,
frivolous and vexatious or an abuse of the process of the cour t.

[85] 'Scandalous' in the context of O 18 r 19(1)(b), is taken to mean

wholly unnecessary and irrelevant and not just unpleasant allegations: see
eg, Boey Oi Leng (Trading as Indah Reka Construction and Trading) v.
Trans Resources Corporation Sdn Bhd [2001] 4 AMR 4807 (HC).

[86] ‘Frivolous’ or ‘vexatious’ means that the pleadings are obviously

unsustainable: see eg, Mohamed Nazri, Boey Ai Leng v. Trans Resources
Corporation Sdn Bhd [2002] 1 CLJ 405 and Datuk Ir Che Amran Mohd
Yusoff v. Yayasan Melaka & Ors [2003] MLJU 7. Technointan Holding
58
[2020] 1 LNS 997 Legal Network Series

Sdn Bhd v. Tetuan Tan Kim & Teh Hong Jet [2007] 1 MLJ 163; an action
raised with no prospect of success to embarrass or annoy the other party
to the action.

[87] In the case of Malayan Banking Berhad v. Gan Kong Yam [1972] 1
MLJ 32 Raja Azlan Shah, J (as HRH then was) had made the following
observation :

No precise legal definition can be found as yet, as to the meaning

of ‘no reasonable defence’ or ‘frivolous or vexatious’ or ‘tending to
delay the fair trial or the action’, but as can be observed a pleading
will not be struck out under this rule ‘unless it is not only
demurrable but something worse than demurrable’, that is, such that
no legitimate amendment can save it from being demurrable: per
Chitty J, in Republic of Peru v. Peruvian Guano Co.

[88] As for the meaning of 'an abuse of the process of the court'
reference is made to the case of Gabriel Peter & Partners (suing as a
firm) v. Wee Chang Jin [1998] 1 SLR 374 at p. 384:

The term ‘abuse of the process of the Court’, in Order 18 rule 19(1)
(d), has been given a wide interpretation by the Courts. It includes
considerations of public policy and the interests of justice. This
term signifies that the process of the Court must be used bona fide
and properly and must not be abused. The Court will prevent the
improper use of its machinery. It will prevent the judicial process
from being used as a means of vexation and oppression in the
process of litigation. The categories of conduct rendering a claim
frivolous, vexatious or an abuse of process are not closed and will
depend on all relevant circumstances of the case. A type of conduct
which has been judicially acknowledged as an abuse of process is
the bringing of an action for a collateral purpose... if an action was
not brought bona fide for the purpose of obtaining relief but for
59
[2020] 1 LNS 997 Legal Network Series

some other ulterior or collateral purpose, it might be struck out as

an abuse of the process of the Court.

31. Gopal Sri Ram JCA (as he then was) in the case of Malaysia
Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku
Mohamed [1998] 2 CLJ 340, at 352 said this in regard to the
doctrine of abuse of process ):

Every person who is aggrieved by some wrong he considers done

him is at liberty to invoke the process of the court. Equally may a
litigant invoke the process to enforce some claim which he
perceives he has against another. When however, the process of the
court is invoked, not for the genuine purpose of obtaining the relief
claimed, but for a collateral purpose, for example, to oppress the
defendant, it becomes an abuse of process. Where the court's
process is abused, the proceedings complained of may be stayed, or
if it is too late to grant a stay, the party injured may bring an action
based on the tort of collateral abuse of process.

[89] The Supreme Court in Raja Zainai Abidin bin Raja Haji Tachik &
Ors v. British-American Life & General Insurance Bhd [1993] 3 MLJ 16
pronounced that the court has an inherent jurisdiction to prevent an abuse
of its process (SC).

[90] Indeed, Gopal Sri Ram, JCA (as he then was)'s judgment in the
Court of Appeal case of Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd
[2001] 4 MLJ 346, at 356, 357 and 358 reminded that the res judicata
doctrine is based on case law and should not be applied indiscrimi nately
so as to cause an injustice.

[91] In my view, upon a careful scrutiny of the Plaintiff's statement of

claim, it cannot be said to be so hopeless or unsustainable to be struck out
but instead the Plaintiff ought to be given its day in court by way of a full

60
[2020] 1 LNS 997 Legal Network Series

trial to meet the ends of justice otherwise it will be inimical to what is

just and reasonable.

[92] Having decided that the 2 nd and 3 rd Defendants have no basis to

stifle the Plaintiff's claim summarily, I do not find it necessary to deal
with the Plaintiff's argument on whether the 2 nd and 3 rd Defendants by
having agreed to a consent order to a Mareva injunction in this action
after being granted a discharge of the criminal charges is approbating and
reprobating at the same time.

[93] I therefore dismiss the 2 nd and 3 rd Defendants' application made

under O 18 r 19 (1) (b) and/or (c) and/or (d) of the Rules of the High
Court 1980 with costs of RM25,000 subject to allocator.

[94] In writing this judgment, I hasten to state that I have relied

considerably on the parties' counsel's meticulous research and submission
which I find to be of great use and thank them for their assistance to the
court.

Dated : 10 SEPTEMBER 2020

(LIZA CHAN SOW KENG)

Judicial Commissioner
High Court of Malaya at
Kuala Lumpur

COUNSEL:

For the Plaintiff – S.Sivaneindiren, Peter Skelchy, Joycelyn Teoh; M/s.

Cheah Teh & Su

For the 2 nd and 3 rd Defendants –Gopal Sri Ram, Alfirdaus Sharul Naing,
Chelvakumar Thrujaram, Margaret Tan, Yasmeen Soh, R Jayasingam,
Atiqah Adena, Ng Keng Yang; M/s B H Lawrence & Co

61
[2020] 1 LNS 997 Legal Network Series

CASES REFFERED TO:

PP v. Sham Bokhari (FC) [2018] 1 CLJ 305

PP v. Kuala Dimensi Sdn Bhd & ors (COA [2018] 6 MLJ 37)

UMNO Bahagian Pekan v. PP [2020] 2 CLJ 272

Nana Ofori Atta II, Omanhene of Akyem Abuakwa and another v . Nana
Abu Bonsra II as Adansehene, and as representing the stool of Adanse,
and another (PC) [1957] 3 All WER 559

Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995]
3MLJ 189

Hartecon JV Sdn Bhd & Anor v. Hartela Contractors Ltd [1996] 2 MLJ
57

Public Prosecutor v. Dato' Zainal Abidin bin Md nor & Ors [2019] 1
LNS 821

Genneva Malaysia Sdn Bhd v. Abdul Ghani Sher Mohd [2018] 5 CLJ 472

Daud bin Mohamad & 8 Ors v. Genneva Malaysia Sdn Bhd (KLHC Suit
No. 22NCVC-1490-12/2012).

Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation
Berhad [1993] 3 MLJ 36

Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v Karambunai
Resorts Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn Bhd) & Ors
[1996] 1 MLJ 309

CC Ng & Brothers Sdn Bhd v. Government of State of Pahang [1985] 1

CLJ 235; [1985] CLJ (Rep) 45; [1985] 1 MLJ 347

62
[2020] 1 LNS 997 Legal Network Series

Superintendent of Pudu Prison & Ors v. Sim Kie Chon [1986] 1 MLJ 494

Tractors Malaysia v Tio Chee King [1975] 2 MLJ 1

Raja Zainal Abidin bin Raja Haji Tachik & Ors v. British-American Life
& General Insurance Bhd [1993] 3 MLJ 16

Young v. Bristol Aeroplane Co Ltd [1944] KB 718

Eng Mee Yong v. Letchumanan [1979] 2 MLJ 212

Boo Are Ngor (p) v. Chua Mee Liang (p). (sued. as. a. public.officer of
Kim Leng Tze Temple) [2009] 6 MLJ 145

Cassell & Co Ltd v. Broome & Anor [1972] 1 All ER 801

Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn

Bhd) v. Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113

Periasamy s/o Sinnappen v. Public Prosecutor [1996] 2 MLJ 557

Peguam Negara Malaysia v. Chin Chee Kow (as secretary of Persatuan

Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another
appeal [2019] 3 MLJ 443

Electrical Industry Workers Union v. Registrar of Trade Unions & Anor

[1976] 1 MLJ 177, FC

Wilkinson v. Barking Corporation [1948] 1 KB 721

Manggai v. Government of Sarawak [1970] 2 MLJ 41

Kerajaan Malaysia v. Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133

Zi Publications Sdn Bhd & Anor v. Jabatan Agama Islam Selangor & Ors
[2020] MLJU 938

63
[2020] 1 LNS 997 Legal Network Series

Reebook International Ltd v. Royal Corporation [1989] 1 MLJ 209

Datuk S Nallakaruppan & Ors v. Datuk Seri Anwar bin Ibrahim and
other appeals [2015] 4 MLJ 34

Dato’ Zahari Sulaiman v. Geneva Sdn Bhd [2011] 6 CLJ 219

Genneva Malaysia Sdn Bhd v. Tio Jit Hong & Ors [2020] MLJU 175

Tetuan Khana & Co v. Saling bin Lau Bee Chiang & Ors and other
appeals [2019] 3 MLJ 258

Lim Hui Jin v. CIMB Bank Bhd & Ors [2018] 6 MLJ 724

Tuan Haji Ishak bin Ismail v. Leong Hup Holdings Bhd & other appeals
[1996] 1 MLJ 661

Boey Oi Leng (Trading as Indah Reka Construction and Trading) v .

Trans Resources Corporation Sdn Bhd [2001] 4 AMR 4807

Mohamed Nazri, Boey Ai Leng v. Trans Resources Corporation Sdn Bhd

[2002] 1 CLJ 405

Datuk Ir Che Amran Mohd Yusoff v. Yayasan Melaka & Ors [2003]
MLJU 7.

Technointan Holding Sdn Bhd v. Tetuan Tan Kim & Teh Hong Jet [2007]
1 MLJ 163

Malayan Banking Berhad v. Can Kong Yam [1972] 1 MLJ 32

Gabriel Peter & Partners (suing as a firm) v. Wee Chang Jin [1998] 1
SLR 374

Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 4 MLJ 346

64
[2020] 1 LNS 997 Legal Network Series

LEGISLATION REFFERED TO:

Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of

Unlawful Activities Act 2001, ss. 50(1), 54(3), 55, 56, 60, 61(1)

Interpretation Acts 1948 and 1967 (consolidated and revised 1989) ss.
17A of the

Rules Of Court 2012O. 18 rule 19(1) (b), (c), and (d)

65