Rosmah’s tax-related charges bad in law - Lawyer

Rosmah's counsel Datuk Firoz Hussein Ahmad Jamaluddin argued that five out of the 17 charges faced by the former prime minister's wife ought to be dismissed because there are no proceeds of an unlawful activity generated by the non-declaration of income tax to even begin with.

"Hence, it can never be a predicate offence on its own. We emphasise that simply failing to file a tax return or provide notice of chargeability should not be considered as generating proceeds from unlawful activities.

"It is a general impossibility that the mere non-declaration of income tax in itself can generate the proceeds of an unlawful activity," said Firoz Hussein in his submissions on Rosmah's application to quash the money laundering and tax evasion charges against her before Justice K. Muniandy.

On Oct 4, 2018, Rosmah, 72, was charged with five counts of allegedly engaging in money laundering by failing to furnish a return on the RM7,097,750 income deposited into her bank account, which she was required to do under the Income Tax Act 1967.

The offences were allegedly committed at the Inland Revenue Board at the Government Building Complex Jalan Tuanku Abdul Halim here on May 1 of each year between 2014 and 2018.

Firoz Hussein further argued there is no unlawful activity and no unlawful proceeds that resulted from the failure to file a tax return.

"The failure to file returns is an omission, it is not a transaction. If that is the case, then thousands of Malaysians who don't file their tax returns would be committing money laundering offences even though their income was legitimately earned. Was the Anti-Money Laundering Act established to catch those who don't file their tax returns?" he asked.

The lawyer also highlighted that the charges faced by his client were an abuse of the court process which has diminished Rosmah's quality of life which is a facet of the right protected under Article 5(1) of the Federal Constitution.

"Due to the case, Rosmah had to pay legal fees and bail amounting to RM1 million, attend court dates for legal matters and constantly worry about her charge and defence which might result in her being sentenced to imprisonment, thereby affecting her mental health," he said.

Firoz Hussein contended that Section 85 of the Anti-Money Laundering, Anti-Terrorism Financing, and Proceeds of Unlawful Activities Act (AMLATFPUAA), which grants the Minister of Finance the power to add a predicate offence to the Act's second schedule is ultra vires and argued that the inclusion of Section 112 of the Income Tax Act, which addresses the failure to furnish returns, in the second schedule is unconstitutional.

In response to Firoz Hussein's submission on this contention, Deputy Public Prosecutor Ahmad Akram Gharib countered that Section 85 of AMLATFPUAA was very much constitutional because it technically means that those who don't declare their tax returns can enjoy the proceeds of unlawful activity.

Ahmad Akram is set to continue his submissions when hearing resumes on Nov 12.

Apart from the five tax-related charges, Rosmah also faces 12 counts of engaging directly in transactions involving proceeds of unlawful activity by causing RM7,097,750 to be deposited into her bank account.

She allegedly committed the offences at the Affin Bank Berhad branch at Bangunan Getah Asli Jalan Ampang here between Dec 4, 2013 and June 8, 2017, and at the Inland Revenue Board at Government Building Complex, Jalan Tuanku Abdul Halim here between May 1, 2014 and May 1, 2018.

Eight charges were framed under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act (AMLTAFA) 2001 while the rest of the charges were under Section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA) 2001.

-- BERNAMA