High Court dismisses MACC's forfeiture suit against Jakel Trading, Johor Bahru BN

Jakel Trading and Johor Bahru BN allegedly received the monies from former prime minister Datuk Seri Najib Tun Razak amounting RM628,314 and RM957,395.65 respectively.

Judicial Commissioner Datuk Ahmad Shahrir Mohd Salleh made the decision after considering the affidavits and submissions made by both prosecution and defence.

In his judgment for Jakel Trading, Ahmad Shahrir said it was not disputed that the company received payments in the total sum of RM628,314 in its Maybank Berhad current account from Najib's first and fourth AmIslamic Bank Berhad accounts, on July 27, 2011, Sept 8, 2011, and Aug 27, 2013.

He said, the transactions involved the proceeds of unlawful activity and completed the offence of money laundering under Section 4 (1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities (AMLATFPUA) 2001.

“The fact that Jakel Trading's account was overdrawn in April 2015 made it impossible for its account balance to be partly from payments made by Najib, let alone, wholly from it. In this regard I find that the applicant (MACC) has not succeeded to prove on the balance of probabilities that the sum of RM628,314 in Jakel Trading' s Maybank Berhad current account is the subject matter or evidence relating to the commission of the offence of money laundering,” he said.

Ahmad Shahrir said the total sum of RM628,314 were paid for goods sold and delivered in respect of purchases of various shirts and materials made by Najib and his representatives on July 5, 2011, and June 19, 2013, respectively.

He said the shirts and materials were delivered to the Prime Minister's Department and the payments received by Jakel Trading corresponded with the amount of the invoices for the purchases.

“The applicant itself portrays Jakel Trading as a legally registered business entity. Jakel Trading carries on business as traders and suppliers of, among others, clothing, curtains and textiles and fabric manufacturers. The nature of the items sold and delivered by Jakel Trading to Najib was consistent with the nature of its business.

“Now, one must not lose sight of the relevant timeline here, the payments that were received by Jakel Trading respectively whereas the case against Najib only made headlines in the year 2015. At the material time when Jakel Trading received the payments (on July 5, 2011, and June 19, 2013) how could it tell that 'something is rotten in the country of Denmark?' As a matter of perspective, even the investigating officer got a whiff of the alleged wrongdoings by Najib on May 17, 2018, as evidenced by the Malaysian Anti-Corruption Commission (MACC).

“In the absence of anything patently suspicious in the purchase transaction, Jakel Trading could not be said to have better information about the source of the payment compared with the investigation officer who ordinarily and professionally is relatively more resourceful in that respect,” he said.

For Johor Bahru BN, Ahmad Shahrir said, it was not disputed that the political party received in its Maybank Berhad the sum of RM1.5 million via AmIslamic Bank Berhad cheque dated April 29, 2013, and this cheque was issued from Najib's first account.

He said, the monies in Najib's first account were proceeds of the offence under Section 23 (1) of MACC Act and these monies were connected with the decisions and actions taken by Najib pertaining to the investments and business ventures of 1MDB.

“The first account thus consists of 'proceeds of an unlawful activity' as defined under Section 3 of AMLATFPUA. The cheques issued to Johor Bahru BN for the sum of RM1.5 million originated from Najib's first account. It was banked into the Maybank Berhad Premier Mudharabah account of Johor Bahru BN and this transaction involved the proceeds of unlawful activity and completed the offence of money laundering under Sec 4 (1) (a) AMLATFPUA.

“However, Johor Bahru BN categorically maintains that the sum of RM957,395.65 in its Maybank Berhad does not originate from the first account of Najib but came from BN and other contributions made between the months of January and June 2018. Unfortunately, there is no specific traverse made by the applicant against this specific challenge.

“In this regard, I find that the applicant has not succeeded in proving, on the balance of probabilities, that the sum of RM957,395.65 belonging to Johor Bahru BN is the subject matter or evidence relating to the commission of the offence of money laundering. It is the position of Johor Bahru BN that the sum of RM957,395.65 in its Maybank account consists of contributions,” he said.

Ahmad Shahrir added that the issue of whether there were a valid freezing and seizure orders has not escaped the attention of this court, where the applicant issued a freezing order dated June 25, 2018, and later issued a seizure order on Sept 21, 2018, and both orders were addressed to 'Maybank Berhad' whereas Johor Bahru BN maintains an Islamic account, namely the Maybank Berhad Premier Mudharabah account, not just any account.

He said, the proper bank to which both the freezing and seizure orders ought to be addressed to must be Maybank Islamic Berhad and not Malayan Banking Berhad, as the two are distinct entities and separately licensed as a financial institution.

“An application for forfeiture under Section 56 of the AMLATFPUA may only be made in respect of any property seized under the Act and a wrongly addressed seizure order does not make it a right, a correct and valid seizure order. The account on Johor Bahru BN in fact was never served with the freezing and seizure orders.

“The consequences of this is obviously disastrous to the application. In conclusion, I find that on the balance of probabilities, the applicant has not succeeded proving the requirement under Section 56 to have the sum of RM957,395.65 in the respondent's account forfeited," he said.

DPP Samihah Rhazali and Mahadi Abdul Jumaat told the court that they will file a formal application for a stay of execution, pending appeal, within 14 days from today.

Lawyers Thevini Nayagam and Habizan Habeeb Rahman representing Jakel Trading while Johor Bahru BN was represented by lawyer Datuk Syed Faisal Al-Edros Syed Abdullah Al-Edros.

In June last year, the MACC filed a civil forfeiture suit against 41 entities, comprising individuals, companies and political parties, under the Anti-Money Laundering and Anti-Terrorism Financing Act to recover about RM270 million believed to be linked to 1MDB.

The MACC believed the money was illegally transferred from Najib’s accounts.