AIDA BINTI TENGAH v Pendakwa Raya

Case Significance

Illustrates the forfeiture regime under section 41 of the Malaysian Anti-Corruption Commission Act 2009 and appellate restraint where the Sessions Court and High Court have concurrently found the statutory conditions for forfeiting property connected with corruption to be satisfied.

This Court of Appeal decision concerns an appeal against a forfeiture order (perintah pelucuthakan) made in respect of property said to be connected with corruption. The appellant appealed against the decision of the High Court at Kuala Terengganu which had upheld a forfeiture order originally made by the Sessions Court in respect of a grey Proton X70 motor car bearing registration number TBJ 8228, the order having been made under seksyen 41(1) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (section 41(1) of the Malaysian Anti-Corruption Commission Act 2009). The factual background, which was largely undisputed, concerned investment dealings involving a state foundation and its wholly owned subsidiary, and the appellant's connection to the vehicle sought to be forfeited. The issues before the court concerned the burden of proof in forfeiture proceedings under the Act, the weight to be given to the evidence of the investigating officer, and the extent to which the satisfaction of the Public Prosecutor (kepuasan Pendakwa Raya) and the consideration of the court govern the making of a forfeiture order where no person is convicted of the underlying offence. Forfeiture under this regime does not depend on a conviction; it turns instead on the court being satisfied, on the evidence tendered, that the property is the subject matter of or evidence relating to an offence under the Act. Having heard the submissions of both parties and scrutinised the appeal record with care, the court was not persuaded that the concurrent findings of the Sessions Court and the High Court were wrong, or that the courts below had misdirected themselves on the burden of proof. The court dismissed the appeal and affirmed the forfeiture, ordering that the grey Proton X70 bearing registration number TBJ 8228 hendaklah dilucuthakkan kepada Kerajaan Malaysia (be forfeited to the Government of Malaysia). The judgment is a useful illustration of the operation of the forfeiture regime under section 41 of the Malaysian Anti-Corruption Commission Act 2009 and of appellate restraint where two courts below have concurrently found the statutory conditions for forfeiture to be satisfied.