PP v JJ Power Gropus Enterprise & Ors [2020] 1 LNS 298 (High Court)

(12.04.2020)

1. In the present application, an investigation into the case was triggered by a police
report lodged by one Tan Kai Lin vide Bukit Gambir Report No. 780/17 on
25.04.2017.

2. On 06.01.2017, he invested RM4,700.00 in the JJ Poor to Rich (JJPTR) scheme

through the 6th respondent's CIMB Bank Account No. 8008058953.

3. For the first 3 months, he received investment returns in the sum of RM840.00
per month.

4. On 25.04.2017, he learnt from his social media account that it was reported in
the news that the JJPTR scheme was not a licensed investment and there was
an element of money laundering involved.

5. He then lodged a police report vide Bukit Gambir Report No. 780/17 on the same
day.

6. A few days later, someone claiming to be from JJPTR contacted him to return
him the balance sum of RM2,180.00 he had earlier invested.
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7. There were also other individuals claiming to be from JJPTR who pressured him
to withdraw the police report. Fearing for his safety and that of his family, he
withdrew the police report.

8. Acting on the police report lodged by Tan Kai Lin, ASP Rastam Affandi bin Md
Ramli ("ASP Rastam") carried out an investigation.

9. In his investigation, ASP Rastam found that the two companies were
incorporated at the instructions of the 23 rd respondent, namely PCP Global Tech
Sdn Bhd (5th respondent) and L & L Property Ventures Sdn Bhd (6 th respondent).

10. Although the names of Lim Seong Woei and Lim Sing Chuan appear as directors
for the companies, both of them merely provided the 23 rd respondents with
copies of their respective identity cards for the purposes of incorporation of the
companies. Both of them also pre-signed all blank cheques for the companies.

11. All company documents and the pre-signed blank cheques were kept by the
23rd respondent.

12. In his investigations, ASP Rastam also found that Tan Kai Lin's investment sum
of RM4,700.00 was remitted into the 6 th respondent's CIMB Bank Berhad
account.
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13. Apart from that, there were also frequent remittances into the 6 th respondent's
CIMB Bank Berhad account which ASP Rastam suspected to be made by
numerous investors in the JJPTR scheme.

14. ASP Rastam concluded that there is a case of cheating under section 420 of the
Penal Code in that the JJPTR scheme deceived the investors into believing that
it is licensed to carry out trading in foreign currencies and accepted from them
deposits for investments with a promised monthly rate of returns at the rate of
20% despite not having the required license under section 10 of the Financial
Services Act 2013.

15. ASP Rastam later handed over the investigations to Inspector Sopawan a/p Kin
("Inspector Sopawan") for further investigations in relation to the offence of
money laundering.

16. Several statements under section 32 of the AMLATFPUAA have been recorded

from the respondents, acquaintances of the respondents, individuals who were
officers and employees of the respondent companies, investors and agents for
the JJPTR scheme. Inspector Sopawan also confirmed that a number of police
reports have been lodged by several investors in the JJPTR scheme.

17. In her investigations, Inspector Sopawan found that the various bank accounts of
the respondents have been used to accept deposits for the purpose of
investment as well as to accept remittances of returns of investment in the
JJPTR scheme. Certain bank accounts of the respondents running the JJPTR
scheme have also been used to purchase a property at Taman Kledang
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Pertama, Menglembu, Perak, a Volkswagen Beetle No. PMU 7926 and a Honda
Accord No. PME 7926. Remittances were also made from the bank accounts of
the 6th respondent to the bank account of the 17 th respondent for gambling
excursions packages at the casino at Genting Highlands.

18. In this case, he seized properties consist of monies in various accounts, a

property in Perak, a Volkswagen Beetle No. PMU 7926 and a Honda Accord No.
PME 7926. Seizures of the properties were made on two dates, namely on
04.08.2017 and 09.06.2017. 

19. There was also no prosecution for any money laundering offence.

20. The Applicant then made an application to forfeit the properties under Section 56
(1) AMLA 2001.

21. Apart from the Respondents, third parties claim has been made by two firm of
solicitors who had represented fifteen (15) of the Respondents jointly.

22. On the procedure applicable to both forfeiture and third party proceedings, the
Court held as follows at pages 31-32:-

Section 56 of the AMLATFPUAA deals with forfeiture

of property in cases where there is no prosecution or
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conviction for a money laundering offence or a

terrorism financing offence. Under section 56(1) of
the AMLATFPUAA, an application for the forfeiture of
properties seized under the Act may be made by the
Public Prosecutor before the expiration of 12 months
from the date of the seizure. The application is
subject to section 61 of the Act and in that regard, the
requirement under section 61(2) for a notice to be
published in the Gazette calling for any third party
who claims to have an interest in the property to show
cause why the property should not be forfeited must
first be satisfied. (See: PP lwn. Taiko Fertiliser &
Yang Lain [2019] 4 CLJ 480 CA; [2019] MLJU 88;
[2019] MLRAU 36).

There are no express procedures provided for under

the AMLATFPUAA with regard to claims by a third
party. (See: PP lwn. Raja Noor Asma Raja Harun
[2013] 5 CLJ 656; [2013] 9 MLJ 181; [2013] MLRHU
393). Unlike ordinary third party proceedings where a
claim for indemnity or contribution against a third
party is dependent on the liability of the defendant,
the position is somewhat different in the present
application. If the third party can satisfy the
conjunctive conditions under
paragraphs (a) to (e) of section 61(4) of the Act, this
Court shall return the seized property to the third
party (See: Teh Tek Soon lwn. PP [2015] 1 LNS
1504;CA; [2015] MLRAU 433).

Essentially, it boils down to the single question of

whether the property seized or any part of it as
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claimed by the third party, may be forfeited,

irrespective of whether or not the applicant is
successful in its application against the respondents.
For that reason, I have at the onset ordered for the
third party claims under section 61 of the Act to be
heard together with the present application against
the respondents under section 56(1) of the Act. I also
directed the third parties to file in their respective
affidavits.

23. The burden of proof in forfeiture proceedings is on a balance of probabilities

according to the High Court at page 40:-

In deciding whether or not the applicant succeeded in

proving its case on the balance of probabilities, this
Court will consider, based on the affidavit evidence,
how likely are certain facts which form the basis for
the applicant's application. If after weighing the
evidence the Court believes that such facts point to
probabilities which by reasonable conclusion supports
the applicant's contention and are probable in light of
the circumstances of the case in its entirety, the
applicant is said to have succeeded in establishing its
case on the balance of probabilities. On the other
hand, if the facts as proved by the evidence led by
the applicant give rise to a set of inferences from
which the degree of probabilities in favour of the
application and the respondent's case are equal, the
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applicant, who bears the burden to prove its case on

the balance of probabilities, must fail.

24. On the merits of the application, the High Court firstly at page 45 held that an
offense of cheating has been proven under Section 420 Penal Code by the
Applicant :-

After examining the material facts together with the

documents provided by the applicant, I find that on
the balance of probabilities, the applicant succeeded
in establishing the existence of the predicate offence
of cheating under section 420 of the Penal Code. The
ingredient of deceit which is central to the offence of
cheating is obviously present. Wrongful losses were
occasioned to the investors and the 23 rd respondents
and the related companies fronting the JJPTR
scheme had made wrongful gains. The police reports
lodged by the individual investors coupled with the
statements recorded under section 32 of the Act are
the basis and sufficient for this Court to conclude that
the applicant has succeeded in showing the
commission of the predicate offence of cheating
under section 420 of the Penal Code on the balance
of probabilities.
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25. The High Court further held at pages 45-46 that the properties seized were
subject matter of a money laundering offence with there being no purchasers in
good faith for valuable consideration in respect of the property seized.

26. As for the 17th Respondent, the High Court at pages 45-46 was of the view that
the monies deposited into his account was clearly separate from others. The
Applicant had also failed to rebut the assertions made by the 17 th Respondent
with their replies being a mere denial not to forget that the monies which the
Applicant sought to forfeit is no more in the 17 th Respondent’s account thus being
unable to be part of the forfeiture application.

In respect of the monies in the account of the

17th respondent, I am satisfied that the sum of
RM6,710,422.13 and its accruals in the
17th respondent's current account No. 506061506051
at the Malayan Banking Berhad, Genting Highland
branch which was seized on 04.08.2017 could not
have been the subject matter or evidence relating to
the commission of an offence under section 4(1)(a) of
the Act as envisaged by section 56(2)(a) of the Act.
Since the monies deposited by the 32nd respondent in
the bank account of the 17 th respondent is clearly
sequestered from monies of other customers, there is
no difficulty in finding that the monies remaining in the
accounts of the 17th respondent are not part of the
deposit made by the 32nd respondent.

Against the material factual assertions made by the

17th respondent, the applicant in the affidavit affirmed
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by the DPP (Enclosure 113) merely made sweeping

denials and I am unable to find any affidavit affirmed
by the I.O. Predicate or the I.O. AMLATFPUAA to
refute the specific averments made by the
17th respondent. It is trite that material averments
made in an affidavit must be rebutted by the adverse
party and failure to do so risks the material facts
being treated as having been admitted. (See: Alloy
Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd
[1986] CLJ Rep 45 SC; [1986] 1 MLJ 381; [1985] 1
MLRA 309 and Ng Hee Thoong v. Public Bank Bhd
[1995] 1 CLJ 609 CA; [1995] 1 MLJ 281; [1995] 1
MLRA 48; [1995] 1 AMR 622).

In the circumstances, I find that the relevant subject

matter or evidence is no longer in the bank account of
the 17th respondent, either wholly or partly. As such, it
could not be the subject of a forfeiture application and
this Court could not order for its forfeiture. The aim
of section 56(2) of the Act is to forfeit the subject
matter or evidence of the offence of money
laundering and not just any property. To this end, I
find that the applicant has failed in its application
against the 17th respondent on the balance of
probabilities.

27. As such, with the exception of the 17 th Respondents and other Respondents who
had entered into separate settlements with the Applicant, the remaining
properties were forfeited to the Government of Malaysia.
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28. The High Court also at pages 47-48 dismissed the Third Party Claims as the
solicitors who are claiming their legal fees have no legitimate interests over the
seized properties and their claim lies against their respective clients and not
against the seized properties:-

The two third parties are the lawyers who represented

the 1st to 11th, 13th to 16th, 20th, 23rd to 28th & 30th to
32nd respondents. The third parties' claims are for
legal fees for services rendered in representing the
respondents concerned in the present application as
well as in the criminal charges for the related offence
of cheating under section 420 of the Penal
Code which ended in their clients being discharged.

 In order for the third parties to succeed in their claim,

they must show, on the balance of probabilities, that
they have fulfilled all the conjunctive requirements
under paragraphs (a) to (e) of section 61(4) of the
Act. (See: Teh Tek Soon v. PP (supra. ))

 I find that the relationship between the third parties

and the respondents is in the nature of a contractual
relationship between lawyers and clients. Non-
payment of the legal fees constitute a debt due from
the respondents to the third parties recoverable by
legal proceedings. It is in the nature of a chose in
action and had yet to crystallize into any legitimate
legal interest in the property seized. It is contractually
enforceable against the respondents themselves and
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not against the properties which were seized. As

lawyers, their claims should lie against their
respective clients personally and not against the
seized properties unless they are already at least
holding a lien against the properties. They do not
have a legitimate legal interest in the seized
properties to mount a claim to satisfy their legal fees.
In such a circumstance, I hold the considered view
that the third parties have no legitimate legal interest
in the properties which were seized within the
meaning of paragraph (a) of section 61(4) of the
AMLATFPUAA.