Pendakwa Raya v 1. ) SYAFWANA TRADING 2. ) SITI MURNI BINTI ABU HASSAN 3. ) HALIMAH BINTI BAKAR

Case Significance

Confirms that a forfeiture application under subsection 56(1) of Act 613 seeks a final order, so supporting affidavits must strictly comply with Order 41 rule 5(1); affidavits sworn before the predicate affidavit they rely on are hearsay and cannot sustain the application.

This High Court decision concerns an application by the Public Prosecutor (Pendakwa Raya) to forfeit property to the Federal Government under subsection 56(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Akta Pencegahan Pengubahan Wang Haram, Pencegahan Pembiayaan Keganasan dan Hasil daripada Aktiviti Haram 2001, Act 613). The property in question was a sum of RM277,771.31 held in a bank account of a trading business, seized in connection with a predicate offence of cheating investigated under section 420 of the Penal Code. The respondents raised a preliminary objection (bantahan awal) directed at the supporting affidavits. Their point was that the affidavit of the Deputy Public Prosecutor and the affidavit of the anti-money-laundering investigating officer, each of which referred to the alleged facts establishing the predicate offence, had been affirmed before the predicate supporting affidavit itself was affirmed. Because those affidavits relied on facts contained in an affidavit that did not yet exist when they were sworn, the respondents argued that they were hearsay (bersifat dengar cakap) and inadmissible. The court accepted the objection. It held that an application under subsection 56(1) is not an interlocutory application, and that the resulting order is a final order (final order), so that the requirement in Order 41 rule 5(1) of the Rules of Court, confining affidavits to facts the deponent can prove of his own knowledge, must be strictly complied with. Finding that the prosecution's affidavits were unsupported because they rested on a predicate affidavit that had not been affirmed when they were sworn, the court allowed the respondents' preliminary objection and dismissed the forfeiture application, though it granted a stay of execution pending appeal because the seized property was the subject matter of the application. The judgment is significant for insisting on strict affidavit compliance in final forfeiture applications under Act 613.