Sept 2 decision on prosecution's appeal to forfeit RM192m from Umno and others

PUTRAJAYA (July 28): The Court of Appeal has fixed Sept 2 to deliver its decision on the prosecution's appeal to forfeit RM192 million from central Umno, RM300,000 from Wanita MCA and RM1.05 million from Umno Kedah — all in relation to funds from 1Malaysia Development Bhd (1MDB) said to have been utilised or paid by former prime minister Datuk Seri Najib Razak.

Besides the above, the prosecution is also appealing against the Kuala Lumpur High Court's decision to dismiss its forfeiture claim against Habib Jewels Sdn Bhd for RM100,000, K&Z Enterprise Sdn Bhd (RM138,359.60), Perano Sdn Bhd (RM337,634.78), Binsabi Sdn Bhd (RM827,25) and Hatatex Trading (RM111,590).

Meanwhile, Umno Pahang is appealing against the prosecution's successful forfeiture of RM2.48 million from its account by the prosecution.

All these forfeiture actions filed by the Malaysian Anti-Corruption Commission in 2019 are part of the 40 plus individuals and entities named as recipients of monies from Najib.

Justice Datuk Abdul Karim Abdul Jalil, who led the three-member bench, thanked the parties for their submissions today which had to be done online owing to the Covid-19 pandemic, and said the bench will reserve its decision for about a month.

“There are some interesting issues raised regarding the provisions under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activity Act 2001 (AMLATFPUA).

“We fixed the date [for] the delivery of the decision on Sept 2,” he said.

Sitting with Justice Abdul Karim were Justices Datuk Hadhariah Syed Ismail and Datuk Abu Bakar Jais.

Today's hearing was a continuation of the last hearing on March 18, which had to be cut short following an emergency faced by one of the judges. The previous hearing was done in open court, unlike today's hearing.

Deputy public prosecutors Saifuddin Hashim Musaimi and Kamal Bahrin Omar appeared for the prosecution. They maintained that the prosecution and government are entitled to the proceeds from unlawful activity.

Besides this, Saifuddin further argued that the court can consider imposing pecuniary penalty under Section 59 of the AMLATFPUA.

He added that the business entities should have known or checked that the cheques which they had received were from legitimate sources.

However, Justice Hadhariah asked how can that be so as the transactions happened a long time ago whereas the civil forfeiture was only brought in 2018.

Central Umno, represented by Datuk Hariharan Tara Singh and Tania Scivetti, told the court that the amount sought by the prosecution had been used up as they were deposited in 2012 and 2013 while the amounts which the prosecution had frozen are funds from 2017 that are from legitimate means.

“The prosecution has to show that the amount that they want to seize at present is from the illegal proceeds which they claimed,” Hariharan said.

“We say that the amount which is frozen is from 2017 funds which come from legitimate sources and hence, the prosecution and the government has no right to forfeit it, as that fund in question is not from illegitimate means,” he added.

Similarly, Datuk Ben Chan, who represented Wanita MCA, informed the court the amount the prosecution wanted to seize are from sales of property done in 2018 whereas the amount that Najib gave in 2011 and 2012 had already been used up.

Umno Kedah's counsel G Nadaraja also put up the same submissions showing Umno Kedah's financial records.

Counsel Thevini Nayagam for Perano and K&Z Enterprise told the bench that the funds sought were for payments of purchases of tudungs (head scarfs) from Perano and t-shirts from K&Z Enterprise.

“We do not know at that time the cheques were issued by Najib as there was no name stated on the cheques which we had received. These are bona fide legal purchases and it would be wrong for the prosecution to seize the money that was paid some time ago for valid purchases made as we showed the invoices,” she said.

Habib Jewels counsel Gooi Yang Shuh made similar arguments while Binsabi, which supplied tents for functions and was represented by Mohd Khalid Tajudin, said the invoice was billed to Najib's private secretary, the late Datuk Po'ad Jelani, for the Prime Minister's Department (PMD).

However, Saifuddin argued against Binsabi that if the purchases were made by PMD for an official function, the cheque should come from the National Accountancy Department and not a personal cheque, and the bench took note of it. 

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