PUTRAJAYA (June 30): The withdrawal of charges against former Port Klang Authority (PKA) general manager Datin Paduka OC Phang should not be used as a reason to disallow the seizure of more than RM37 million in purported illegal proceeds from nine companies and individuals, the Federal Court was told today.
Submitting in the Port Klang Free Zone (PKFZ) forfeiture case appeal, Deputy Public Prosecutor (DPP) Faizah Mohd Salleh said the Court of Appeal judgment in the matter was wrong and may set a dangerous precedent to future forfeiture and money-laundering cases.
This, she said, is because the issue of Phang's charges being withdrawn was not argued in the High Court.
“No prosecution or conviction of the companies or individuals involved in the forfeiture proceedings is needed, as the government through the public prosecutor is only interested in recovering the money which was illegally obtained,” argued Faizah.
“All the prosecution needs to do is to convince the judge in the forfeiture proceedings that an offence of money-laundering has been committed on a proof of balance of probabilities.
“We (prosecution) say the High Court and the Court of Appeal had erred in their decision in dismissing our forfeiture case against them,” she added.
Faizah was submitting before a Federal Court bench led by Justice Datuk Vernon Ong Lam Kiat, and also comprising Justices Datuk Zabariah Mohd Yusof and Datuk Hasnah Mohammed Hashim.
The High Court had dismissed the prosecution's forfeiture application in November 2011. Upon appeal, the Court of Appeal had in July 2018 upheld the High Court's decision.
Phang, who was facing three counts of criminal breach of trust over payments worth RM254.85 million in relation to the PKFZ project, had her charges dropped in November 2016, and acquitted by the Sessions Court.
The nine respondents named in the forfeiture case are Kuala Dimensi Sdn Bhd (KDSB), who is the main contractor of the PKFZ project, along with Transhipment Megahub Bhd, Coastal Skyline Sdn Bhd, Wijaya Baru Aviation Sdn Bhd, Wijaya Baru Sdn Bhd, Wijaya Baru Construction Sdn Bhd, Bintulu MP Datuk Seri Tiong King Sing, Law Ka Hieng and Selangor Development Corporation (PKNS).
Tiong was formerly the KDSB chief executive officer.
The government is seeking to forfeit movable and immovable property that includes cash of RM37.8 million, plus a land in Pulau Lumut, Klang, owned by Coastal Skyline, a land in Kota Kinabalu, Sabah, owned by Wijaya Baru Sdn Bhd and two plots of land in Section 13, Shah Alam, belonging to PKNS that was sold to KDSB.
Another DPP, Hanim Rashid, told the Federal Court that the purported illegal transactions were made when PKA paid for two projects, namely a drainage and water supply work which was purportedly double charged by KDSB to PKA and a 33KV electrical system which was not built but was also charged.
She said this was verified by Tenaga Nasional Bhd, following a police report lodged by former PKA chairman Datuk Lee Hwa Beng.
“The illegal payments, which include the double claim totalling RM254.85 million that was paid by Phang to the respondents, [are] the subject of the forfeiture action,” she said.
Faizah further submitted that the contents of the affidavits of the investigating officers were not rebutted by the respondents.
Besides Faizah, DPPs Nahra Dollah and Allan Suman Pillai appeared for the prosecution.
Meanwhile, Porres Royan and Datuk Prem Ramachandran, the lawyers for the six companies involved in the forfeiture case, said all the payments were laid out based on agreements which had already drawn up.
The projects, they said, had long been completed and the government and PKA had already used the facility for years.
Prem further said that since the High Court’s decision, the movable and immovable assets had been returned to the companies and hence it was not proper for the prosecution to ask them now.
Tiong and Law were represented by lawyer Datuk K Kumaraendran.
Submitting for PKNS was lawyer Shamsul Sulaiman, who said the corporation should not be faulted for selling the two pieces of land as it would mean that it has to check on the source of the income of the buyers after payments were made on the properties.
“There must be connection between some crime and the proceeds of the crime. For this, I say the prosecution had failed to do so. Furthermore, nobody is interested in the scandal anymore,” he submitted.
Faizah, in her reply on the matter of items having been returned to the respondents, said the prosecution is making a submission that should the Federal Court allow the appeal, the court should order them to return an equivalent amount of the sum subject to a valuation done.
Justice Vernon fixed Sept 30 to deliver the apex court’s decision, saying the court has to scrutinise various documents.
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