AntaraBidara Prisma Sdn Bhd(No. Syarikat : 525793 – K) … Perayu/Penghutang PenghakimanDanPerusahaan Otomobil National Sdn Bhd(No. Syarikat : 100995 – U) … Responden/Pemiutang PenghakimanDanCimb Bank Berhad(No. Syarikat : 13491 – P) … Garnisi

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR PERMOHONAN UNTUK PERLAKSANAAN NO: 37G – 35 – 09/2014 (GUAMAN SIVIL NO: 22IP-1049-2008)

 

ANTARA

 

BIDARA PRISMA SDN BHD

 

(No. Syarikat : 525793 – K) … Perayu/

 

Penghutang Penghakiman

 

DAN

 

PERUSAHAAN OTOMOBIL NATIONAL SDN BHD (No. Syarikat : 100995 – U) … Responden/

 

Pemiutang Penghakiman

 

DAN

 

CIMB Bank Berhad

 

(No. Syarikat : 13491 – P) … Garnisi

 

Grounds of Decision

 

Azizah Nawawi, J:

 

Introduction

 

[1] This is an appeal by the Appellant/Judgment Debtor (‘JD’) against the decision of the learned Senior Assistant Registrar (‘SAR’) in granting a Garnishee Order absolute dated 26.11.2014 in favour of the Respondent/Judgment Creditor (‘JC’) pursuant to Order 49 Rules of Court 2012 (‘ROC 2012’).

 

[2] Apart from granting the Garnishee Order absolute, the SAR had also ordered that the same is conditional upon the proceedings in the Anti – Money Laundering And Anti – Terrorism Financing Act

 

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2001 (‘AMLATFA”) proceedings in the Session Court in case number 62-522-2009.

 

Findings of the Court

 

[3] It is not in dispute that after several legal battles, the JD was ordered to pay the JC the sum of RM260,322.57 as damages with interest at 5% per annum and costs in the sum of RM184,800.00. It is not in dispute that the said sum remained outstanding.

 

[4] Upon a notice to show cause under Order 49 ROC 2012, the Garnishee (‘CIMB’) filed an affidavit affirmed by Dzanifah Abdul Jani to confirm that the JD has a current account with CIMB with a balance sum of RM769,121.33. Dzanifal also confirms that the said account was subject to a Notice under section 44(1) of AMLATFA dated 10.9.2007.

 

[5] The section 44(1) Notice expired 90 days after the date of its issuance. Thereafter, an Order under section 50(1) was issued by the Deputy Public Prosecutor (‘DPP’) to CIMB, directing CIMB “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”. The property involved is the RM769,113.16 in the current account of the JD. The basis for section 50(1) Order is because the property is the “subject matter of an offence under subsection 4(1) of the AMLATFA or evidence in relation to the commission of such offence”.

 

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[6] I am of the considered opinion that the purpose of section 50(1) of AMLATFA is to secure and to preserve the subject matter of an offence under subsection 4(1) or to secure and to preserve the evidence in relation to the commission of such offence, for the purpose of criminal prosecution under subsection 4(1) of AMLATFA. Hence, the issuance of the order dated 28.11.2007 by the DPP is to secure and preserve the evidence for the purpose of criminal prosecution under subsection 4(1) of AMLATFA.

 

[7] Indeed, a criminal prosecution was initiated in the Session Court and the said sum of RM769,121.33 was the subject matter of the criminal trial. On 4.6.2014, the Session Court decided to acquit and discharge the accused person but made an order for forfeiture of the said sum of RM769,121.33 under section 55(1) of AMLATFA. The Session Court also issued a Notice to Third Parties, and the Notice was gazette in the Government Gazette on 18.7.2014 pursuant to section 61(2) of AMLA 2001. The said Notice reads:

 

“ANTI – MONEY LAUNDERING AND ANTO TEERORISM FINANCING ACT 2001 NOTICE TO THIRD PARTY

 

IN exercise of the powers conferred by subsection 61(2) of the Anti – Money Laundering and Anti – Terrorism Financing Act 2001(Act 613), a notice is given to any third party who claims to have any interest in the property specified in the Schedule which is the subject matter in the charge against Segaran a/l S. Mathavan (NRIC No. 641210-01-5527), to attend before Session Court 14, Kuala Lumpur on 6 August 2014 at 9am to show cause as to why the property shall not be forfeited.

 

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SCHEDULE

 

Cash totaling RM769,113.16 and any accretion to it in the current account of Bidara Prisma Sdn Bhd at CIMB Bank Berhad, Empire Gallery Subang jaya, Petaling Jaya, Selangor Darul Ehsan, account number 1224-00009505-05-4.”

 

[8] Pursuant to the said Notice, both the JD and the JC have filed their respective claim to the said sum in the CIMB account in the Session Court. During the hearing of this appeal, the proceeding before the Session Court under section 61 of AMLATFA was still pending.

 

[9] At the same time, the JC has commenced execution proceedings against the JD to recover the amount owing, through this garnishee proceedings. For the purpose of granting a Garnishee Order absolute, I do not find anything wrong with the decision of the learned SAR, as it is not in dispute that the JD has RM769,121.33 in its current account with the Garnishee CIMB. It is also not in dispute that the said sum is subject to the AMLATFA order. It is also not in dispute that the same amount is the subject matter of the AMLATFA proceedings in the Session Court. And because of the AMLATFA proceedings in the Session Court, the learned SAR has further ordered that the Garnishee Order absolute is conditional upon the findings of the AMLATFA proceedings in the Session Court in case number 62-522-2009

 

[10] In Labtec Sdn Bhd v Resilient Construction Sdn Bhd [1992] 2 MLJ 853, the Court held that there is no issue of granting a garnishee order absolute which is subject to a mareva injunction. As such, I find that there is nothing wrong in the decision of the

 

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SAR to grant the same subject to the outcome of the AMLATFA proceedings.

 

[11] However, it is the submission of the JD that the monies in the CIMB account is no longer the property of the JD as the said sum has been forfeited under section 55 of AMLATFA 2001. The said monies are now the property of the Government of Malaysia and therefore the granting of the Garnishee Order absolute is bad in law.

 

[12] It is not in dispute that the RM769,121.33 was subject to a forfeiture order granted by the Session Court under section 55(1). Therefore, the issue here is whether the sum of RM769,121.33 in the CIMB account has been forfeited and is already the property of the Government of Malaysia upon the issuance of the order of forfeiture under section 55 of AMLATFA. If the said sum is already vested in the Government of Malaysia, then there is no longer any monies to be garnished by the JC.

 

[13] Section 55 of AMLATFA reads:

 

“55. Forfeiture of property upon prosecution for an offence.

 

(1) Subject to section 61, …the Court shall make an order for the forfeiture of any property which is proved to be the subject matter of the offence …”

 

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[14] Section 55(1) is subject to section 61, which reads:

 

[15]

 

“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 section 55 or the judge to whom an application is made under subsection 56(1) may 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….”

 

Section 61(2) was considered by Justice Kamardin Hashim in Pendakwa Raya lwn Raja Noor Asma bt Raja Harun [2013] 9 MLJ 181, where His Lordship said at page 188:

 

“[15] Apa yang diperuntukkan oleh s 61(2) AMLATFA selepas warta dikeluarkan mengenai harta – harta tersebut adalah bahawa mana-mana pihak ketiga yang bona fide mempunyai kepentingan atau hak terhadap harta-harta tersebut bolehlah hadir (attend) ke mahkamah yang berkenaan pada tarikh yang ditetapkan untuk menunjuk sebab mengapa harta – harta tersebut tidak boleh dilucuthakkan kepada Kerajaan Malaysia…” (emphasis added)

 

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[16] Since s. 55(1) is subject to section 61, then the forfeiture order is subject to any bona fide claims by third parties. The third parties are required “to show cause as to why the property shall not be forfeited’ to the Government of Malaysia. Therefore, from the gazette notification itself, it is clear that the property has not been vested in the Government of Malaysia. The property will only be vested in the Government of Malaysia once the proceedings in section 61 have been completed, with the Session Court granting the application by the bona fide third parties or forfeiting the funds concerned. As such I do not agree with the JD’s contention that the garnishee decree nisi order is a nullity as the funds were no longer with the garnishees, CIMB but was already vested in the Government of Malaysia.

 

[17] At this juncture, I also take note of the averment of the JC, in an affidavit affirmed by Lai Ah Fatt on 18.11.2014, where the deponent said in paragraph 5(a):

 

“ (a) Semasa tunjuk sebab pada 6.8.2014 dalam Kes tersebut, kaunsel Penghutang Penghakiman Encik Jude C. Raj, telah memberitahu Mahkamah Sesyen Kuala Lumpur bahawa pihak Pemiutang Penghakiman sepatutnya memulakan prosiding garnisi untuk mendapatkan Wang dan bukannya menuntut di dalam Kes tersebut;’ (emphasis added)

 

[18] The JD did not file any affidavit to dispute the above facts. Therefore, I agree with the JC that the JD cannot blow hot and cold by insisting (during the AMLATFA proceedings in the

 

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Session Court) that the proper mode is for the JC to take garnishment proceedings; yet during the garnishment proceedings, submitted that there is no legal basis for the garnishment as the monies in CIMB has been forfeited.

 

[19] Added to that, the SAR has granted a conditional order, that the garnishment order will be subject to the outcome of the AMLATFA proceedings before the Session Court. As such, I find that the parties have not been prejudiced by the orders made by the SAR.

 

[20] In the premise, the appeal is dismissed with cost of RM5,000.00.

 

(AZIZAH HAJI NAWAWI) JUDGE

 

HIGH COURT MALAYA (Commercial Division) KUALA LUMPUR

 

Dated: 25 November 2015

 

For the Appellant/Judgement Debtor : DP Vijayandran

 

Messrs DP Vijandran Associates Kuala Lumpur

 

For the Respondent/Judgment Creditor : LL Lee and Yeoh Jit Wei

 

Messrs Tay & Partners Kuala Lumpur

 

For the Garnisi : Sharifah Alliana

 

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