Legislative intent behind Section 53 AMLATFPUA — Hafiz Hassan
MAY 25 — The High Court on Friday dismissed the prosecution’s bid for a prohibition order (PO) on approximately RM544 million allegedly owned by Toh Puan Na’imah Abdul Khalid, her son, and seven others in bank accounts in Singapore.
High Court Judge Mohd Arief Emran Arifin made the ruling after finding that the prosecution had failed to satisfy the threshold of Section 53 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activity Act 2001(AMLATFPUA).
“Hence, the application is dismissed,” the judge ruled.
The dismissal of the prosecution’s bid for the PO may be contrasted with the grant of a PO in the case of Public Prosecutor v Tarek Obaid & Ors decided in March 2025 against two bank accounts in the United Kingdom (UK) allegedly related to the 1MDB-PetroSaudi Joint Venture.
In that case, the Public Prosecutor (PP) applied for a PO against the respondents pursuant to Section 53 AMLATFPUA to prohibit the respondents from dealing with certain sums of money held in two bank accounts outside Malaysia.
The first account was maintained at Natwest Bank in London, United Kingdom. The second account was maintained at Barclays Bank in the UK.
The PP took the position that the monies in both accounts were the subject matter or evidence relating to the commission of the offence of money laundering under Section 4(1) AMLATFPUA.
Based on investigations, the PP was satisfied that the respondents should be restrained from dealing with the monies under a prohibition order issued pursuant to Section 53(1) AMLATFPUA.
The respondents objected to the application on the grounds, among others, that:
(a) the funds held in the escrow account did not constitute proceeds related to an offence under Section 4(1) AMLATFPUA;
(b) there was no direct or indirect link to 1MDB as there was no transaction involving 1MDB and that the business operations were independent of any alleged wrongdoing associated with 1MDB;
(c) the funds were not tainted by illegality and did not fall within the scope of the AMLATFPUA.
High Court Judge Ahmad Shahrir (now Court of Appeal Judge) ruled if the funds were demonstrably linked to an offence under Section 4(1) AMLATFPUA, the PO sought by the PP was justified.
According to the learned judge, Section 4(1) criminalised a broad range of activities involving the proceeds of unlawful activity.
These included engaging in transactions that involved such proceeds and acquiring, receiving, possessing or using them.
If funds were fraudulently misappropriated from 1MDB, then any revenues generated from the funds were linked to an offence under the provision.
The fact that the business operations were lawful economic activities did not override the critical finding that the operations were established, at least in part, using funds that could be traced to the fraudulent misappropriation of 1MDB assets.
Consequently, the learned judge ruled that the statutory requirements for a PO under Section 53 AMLATFPUA had been met.
On the nature of an application under Section 53, the learned judge said:
“It is necessary to emphasise that an application under [Section 53 AMLATFPUA] is a preliminary measure intended to maintain the status quo while further legal proceedings are pursued. This provision serves as an interim safeguard to prevent the dissipation of assets that may ultimately be subject to forfeiture.
“A prohibition order issued under this section does not constitute a final adjudication of the rights of the parties. Instead, it functions as a protective mechanism to ensure that potentially illicit assets remain within the court’s jurisdiction until the appropriate legal determinations are made.
On the legal threshold under Section 53, the learned judge said:
“Given the interim nature of a prohibition order under [Section 53], the legal threshold for granting such an order is lower than that required for a final forfeiture order. The court is not required to establish, beyond a reasonable doubt, that the subject property is linked to an offence.
“Instead, the court need only be satisfied, on the balance of probabilities, that the property falls within one of the statutory categories set out in [Section 53(1)] AMLATFPUA. If the applicant is able to demonstrate, through evidence, that the subject property is more likely than not to be linked to an offence, it is mandatory for the court to issue the prohibition order as prescribed by [Section 53(2)].”
It must be minded that the primary objective of a PO is to prevent the dissipation of assets that may be subject to future forfeiture. It is a preventive measure, not a punitive sanction.
The PO ensures that property suspected of being linked to unlawful activity remains available for potential recovery under subsequent legal proceedings.
The legislative intent behind Section 53 AMLATFPUA is to prevent circumvention of forfeiture provisions by restricting dealings with assets suspected to be the proceeds of crime.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
المصدر: Malay Mail
