Forfeiture/Seizure in Malaysian Legislation Part 2

Act Section Reference

Section 56 : Forfeiture of Property where there is no prosecution

Anti-Money
Laundering, (1) Subject to section 61, where in respect of any property seized
Anti- under this Act there is no prosecution or conviction for an offence
Terrorism under subsection 4(1) or a terrorism financing offence, the Public
Financing Prosecutor may, before the expiration of twelve months from the
and Proceeds date of the seizure, or where there is a freezing order, twelve
of Unlawful months from the date of the freezing, apply to a judge of the High
Activities Court for an order of forfeiture of that property if he is satisfied
(‘AMLA/AM that such property is—
LATFUAA’) (a) the subject-matter or evidence relating to the commission of
such offence;
(b) terrorist property;
(c) the proceeds of an unlawful activity; or
(d) the instrumentalities of an offence.

(2) The judge to whom an application is made under subsection

(1) shall make an order for the forfeiture of the property if he is
satisfied—
(a) that the property is
(i) the subject-matter or evidence relating to the commission
of an offence under subsection 4(1) or a terrorism financing
offence;
(ii) terrorist property;
(iii) the proceeds of an unlawful activity; or
(iv) the instrumentalities of an offence; and

(b) that there is no purchaser in good faith for valuable

consideration in respect of the property.

(3) Any property that has been seized and in respect of which no
application is made under subsection (1) shall, at the expiration of
twelve months from the date of its seizure, be released to the
person from whom it was seized.

(4) In determining whether the property is— Act A1467.

(a) the subject-matter or evidence relating to the commission of an
offence under subsection 4(1) or a terrorism financing offence;
(b) terrorist property;
(c) the proceeds of an unlawful activity; or
(d) the instrumentalities of an offence, the court shall apply the
standard of proof required in civil proceedings.

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 Section 28L: Forfeiture of detained cash or bearer negotiable
instruments

(1) Subject to section 61, in any prosecution for an offence

under this Part, the court shall make an order for the forfeiture of
the cash, bearer negotiable instruments or any other thing which is
proved to be the subject-matter or evidence relating to the
commission of the offence as it considers appropriate
notwithstanding that no person may have been convicted of such
offence.

(2) Subject to section 61, where in respect of any cash, bearer

negotiable instrument or anything used in the commission of an
offence seized under this Part there is no prosecution or conviction
for an offence under this Part, the Public Prosecutor shall, before
the expiration of twelve months from the date of the seizure,
apply to a judge of the High Court for an order of forfeiture of the
cash, bearer negotiable instrument or thing, as the case may be, if
he is satisfied that the cash, bearer negotiable instrument or thing
is the subjectmatter or evidence relating to the commission of such
offence.

(3) The judge to whom an application is made under subsection (2)

shall make an order for the forfeiture of the cash, bearer negotiable
instrument or any other thing used in the commission of an
offence if he is satisfied that the cash, bearer negotiable instrument
or thing is the subject-matter or evidence relating to the
commission of an offence under this Part.

Section 33(4): Seizure of movable property

Malaysian Where any movable property liable to seizure under subsection (2)
Anti- is in the possession, custody or control of a financial institution,
Corruption subsections (1), (2) and (3) shall not apply and the provisions of
Commission section 37 shall apply thereto.
Act 2009
(‘MACC’) Section 37: Order not to part with, deal in, movable property in
financial institution, etc.

(1) Where the Public Prosecutor is satisfied on information given

to him by an officer of the Commission that any movable
property, including any monetary instrument or any accretion
thereto, which is the subject matter of an offence under this Act or
evidence in relation to the commission of such offence, is in the
possession, custody or control of a financial institution, he may,
notwithstanding any other written law or rule of law, by order
direct the financial institution not to part with, deal in, or
otherwise dispose of such property or any part thereof until the
order is revoked or varied.

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(1a) An officer of the Commission shall forthwith notify Bank
Negara Malaysia, the Securities Commission or the Labuan
Financial Services Authority, as the case may be, of any order
made under subsection (1).

(2) A financial institution or any agent or employee of a financial

institution shall not, on account of such compliance, be liable to
any prosecution under or by virtue of any law or to any
proceeding or claim by any person under or by virtue of any law
or under or by virtue of any contract, agreement, or arrangement,
or otherwise.

(3) A person who fails to comply with an order of the Public

Prosecutor under subsection (1) commits an offence and shall on
conviction be liable to a fine not exceeding two times the amount
which was paid out in contravention of the Public Prosecutor’s
order or fifty thousand ringgit, whichever is the higher, and to
imprisonment for a term not exceeding two years.

Section 40: Forfeiture of property upon prosecution for an

offence

(1) In any prosecution for an offence under this Act, the court shall
make an order for the forfeiture of any property which is proved
to be the subject matter of the offence or to have beenused in the
commission of the offence where—

(a) the offence is proved against the accused; or

(b) the offence is not proved against the accused but the court is
satisfied—
(i) that the accused is not the true and lawful owner of such
property; and
(ii) that no other person is entitled to the property as a purchaser
in good faith for valuable consideration.

(2) Where the offence is proved against the accused but the
property referred to in subsection (1) has been disposed of, or
cannot be traced, the court shall order the accused to pay as a
penalty a sum which is equivalent to the amount of the
gratification or is, in the opinion of the court, the value of the
gratification received by the accused, and any such penalty shall
be recoverable as a fine.

Section 34: Further provisions relating to seizure of movable

property

(5) Where an order of forfeiture is made by the court in respect

of property returned under paragraph (3)(b), such forfeiture shall

be effected by forfeiting the security furnished by the person to

whom the property was returned.

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(3b) When any movable property, including any movable
property referred to in subsection (6), has been seized under this
Act, an officer of the Commission of the rank of Superintendent or
above, other than the officer who effected the seizure, may at his
discretion—

return the movable property to the owner thereof, or to the person

from whose possession, custody or control it was seized, or to
such person as may be entitled thereto, with liberty for the person
to whom the movable property is so returned to dispose of the
property, such return being subject to security being furnished in
an amount not less than an amount which represents the open
market value of such property on the date on which it is so
returned.

Section 40: Forfeiture of property upon prosecution for an

offence

(1) In any prosecution for an offence under this Act, the court shall
make an order for the forfeiture of any property which is proved
to be the subject matter of the offence or to have been used in the
commission of the offence where—

(a) the offence is proved against the accused; or

(b) the offence is not proved against the accused but the court is
satisfied—
(i) that the accused is not the true and lawful owner of such
property; and
(ii) that no other person is entitled to the property as a purchaser
in good faith for valuable consideration.

(2) Where the offence is proved against the accused but the
property referred to in subsection (1) has been disposed of, or
cannot be traced, the court shall order the accused to pay as a
penalty a sum which is equivalent to the amount of the
gratification or is, in the opinion of the court, the value of the
gratification received by the accused, and any such penalty shall
be recoverable as a fine.

Section 41: Forfeiture of property where there is no prosecution

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for an offence

(1) Where in respect of any property seized under this Act there is
no prosecution or conviction for an offence under this Act, the
Public Prosecutor may, before the expiration of eighteen months
from the date of the seizure, apply to a Sessions Court Judge for an
order of forfeiture of that property if he is satisfied that such
property had been obtained as a result of or in connection with an
offence under this Act.

(2) The Judge to whom an application is made under subsection

(1) shall cause to be published a notice in the Gazette calling upon
any person who claims to have an interest in the property to
attend before the Court on a date specified in the notice, to show
cause as to why the property should not be forfeited.

(3) Where the Judge to whom an application is made under

subsection (1) is satisfied—

(a) that the property is the subject matter of or was used in the
commission of an offence under this Act; and
(b) there is no purchase in good faith for valuable consideration
in respect of the property, he shall make an order for the forfeiture
of the property.

(4) Property in respect of which no application is made under

subsection (1) shall, at the expiration of eighteen months from the
date of its seizure, be released to the person from whom it was
seized.