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Protasco Bhd
[2020] MLRHU 1151 v. Pt Anglo Slavic Utama & Ors (Encl 407) pg 1
PROTASCO BHD
v.
PT ANGLO SLAVIC UTAMA & ORS (ENCL 407)
High Court Malaya, Kuala Lumpur

Liza Chan Sow Keng JC
[Suit No: WA-22NCC-362-09/2014]
10 September 2020
Case(s) referred to:

Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Berhad
[1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969 (refd)
Boey Oi Leng (Trading as Indah Reka Construction and Trading) v. Trans
Resources Corporation Sdn Bhd [2001] 4 MLRH 274; [2002] 1 CLJ 405; [2001] 4
AMR 4807 (refd)
Boo Are Ngor (p) v. Chua Mee Liang (p) (sued as a public officer of Kim Leng
Tze Temple) [2009] 2 MLRA 579; [2009] 6 MLJ 145; [2009] 6 CLJ 617 (refd)
Cassell & Co Ltd v. Broome & Anor [1972] 1 All ER 801 (refd)
CC Ng & Brothers Sdn Bhd v. Government of State of Pahang [1984] 1 MLRA
546; [1985] 1 MLJ 347; [1985] CLJ (Rep) 45 (refd)
Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 1 MLRA 98; [2001] 4
MLJ 346; [2001] 2 CLJ 321; [2001] 3 AMR 2609 (refd)
Dato' Zahari Sulaiman v. Geneva Sdn Bhd [2010] 3 MLRH 208; [2011] 6 CLJ 219
(refd)
Datuk Ir Che Amran Mohd Yusoff v. Yayasan Melaka & Ors [2003] 1 MLRH 54;
[2003] 1 CLJ 767 (refd)
Daud Mohamad & 8 Ors v. Genneva Malaysia Sdn Bhd (KLHC Suit No:
22NCVC-1490-12/2012) (refd)
Eng Mee Yong v. Letchumanan [1979] 1 MLRA 143; [1979] 2 MLJ 212 (refd)
Gabriel Peter & Partners (suing as a firm) v. Wee Chang Jin [1998] 1 SLR 374
(refd)
Genneva Malaysia Sdn Bhd v. Abdul Ghani Sher Mohd [2017] MLRHU 1271;
[2018] 5 CLJ 472 (refd)
Genneva Malaysia Sdn Bhd v. Tio Jit Hong & Ors [2020] MLRAU 85; [2020] 4
CLJ 449 (refd)
Hartecon JV Sdn Bhd & Anor v. Hartela Contractors Ltd [1995] 2 MLRA 505;
[1996] 2 MLJ 57; [1997] 2 CLJ 104; [1996] 2 AMR 1457 (refd)
Kerajaan Malaysia v. Mat Shuhaimi Shafiei [2018] 2 MLRA 185; [2018] 2 MLJ
133; [2018] 3 CLJ 1; [2018] 1 AMR 837 (refd)
Lim Hui Jin v. CIMB Bank Bhd & Ors [2018] 5 MLRA 59; [2018] 6 MLJ 724;
[2018] 8 CLJ 327 (refd)
Malayan Banking Berhad v. Gan Kong Yam [1975] 1 MLRA 663; [1972] 1 MLJ
32 (refd)
Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v.
Fawziah Holdings Sdn Bhd [2006] 1 MLRA 666; [2006] 4 MLJ 113; [2006] 3 CLJ
177; [2006] 3 AMR 725 (refd)
Protasco Bhd
pg 2 v. Pt Anglo Slavic Utama & Ors (Encl 407) [2020] MLRHU 1151
Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v. Karambunai Resorts
Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1995] 2 MLRA
166; [1996] 1 MLJ 309; [1996] 1 CLJ 257; [1996] 1 AMR 162 (refd)
Periasamy Sinnappen v. Public Prosecutor [1996] 1 MLRA 277; [1996] 2 MLJ
557; [1996] 3 CLJ 187; [1996] 2 AMR 2511 (refd)
PP v. Kuala Dimensi Sdn Bhd & Ors [2019] 6 MLRA 637; [2018] 6 MLJ 37;
[2019] 3 CLJ 650; [2018] 5 AMR 789 (refd)
PP v. Sham Bokhari (FC) [2018] 1 MLRA 357; [2018] 2 MLJ 401; [2018] 1 CLJ
305; [2017] 8 AMR 533 (refd)
PP v. Dato' Zainal Abidin Md Nor & Ors [2019] MLRHU 699 (refd)
Raja Zainal Abidin Raja Haji Tachik & Ors v. British-American Life & General
Insurance Bhd [1993] 1 MLRA 372; [1993] 3 MLJ 16; [1993] 3 CLJ 606; [1993] 2
AMR 2073 (refd)
Reebook International Ltd v. Royal Corporation [1991] 2 MLRH 454; [1989] 1
MLJ 209; [1991] 4 CLJ 1074 (refd)
Sim Kie Chon v. Superintendent Of Pudu Prison & Ors [1985] 1 MLRA 167;
[1985] 2 MLJ 385; [1985] CLJ (Rep) 293 (refd)
Superintendent of Pudu Prison & Ors v. Sim Kie Chon [1986] 1 MLRA 131;
[1986] 1 MLJ 494; [1986] CLJ (Rep) 256 (refd)
Technointan Holding Sdn Bhd v. Tetuan Tan Kim & Teh Hong Jet [2006] 3
MLRH 78; [2007] 1 MLJ 163; [2006] 7 CLJ 541 (refd)
Tetuan Khana & Co v. Saling Lau Bee Chiang & Ors and Other Appeals [2018] 6
MLRA 157; [2019] 3 MLJ 258; [2019] 1 CLJ 501 (refd)
Tractors Malaysia v. Tio Chee Hing [1975] 1 MLRA 106; [1975] 2 MLJ 1; [1993]
4 AMR 572 (refd)
Tuan Haji Ishak Ismail v. Leong Hup Holdings Bhd & Other Appeals [1995] 2
MLRA 198; [1996] 1 MLJ 661; [1996] 1 CLJ 393; [1996] 1 AMR 300 (refd)
UMNO Bahagian Pekan v. PP [2020] 1 MLRH 725; [2020] 9 MLJ 362; [2020] 2
CLJ 272; [2020] 1 AMR 391 (refd)
Young v. Bristol Aeroplane Co Ltd [1944] KB 718 (refd)
Zi Publications Sdn Bhd & Anor v. Jabatan Agama Islam Selangor & Ors [2020]
MLRAU 182; [2020] 6 AMR 7 (refd)
Legislation referred to:

Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful
Activities Act 2001, ss 50(1), 54(3), 55, 56, 60, 61(1)
Companies Act 1965, ss 132, 131
Internal Security Act 1960, s 57(1)
Interpretation Acts 1948 and 1967 (consolidated and revised 1989) s 17A
Penal Code, ss 181, 420
Rules Of Court 2012, O 18 r 19(1)(b), (c), (d)
Rules of the High Court 1980, O 18 r 19(1)(b), (c), (d)
Counsel:
For the plaintiff: S Sivaneindiren (Peter Skelchy & Joycelyn Teoh with him); M/s
Cheah Teh & Su
For the 2nd & 3rd defendants: Dato' Sri Gopal Sri Ram (Alfirdaus Sharul Naing,
Protasco Bhd
Chelvakumar Thrujaram, Margaret Tan, Yasmeen Soh, R Jayasingam, Atiqah

Adena and Ng Keng Yang with him); M/s B H Lawrence & Co
[Order accordingly.]
Case Progression:
High Court: [2019] MLRHU 186
High Court: [2015] MLRHU 818
JUDGMENT
Liza Chan Sow Keng JC:
Introduction
[1] Enclosure 407 is the 2nd and 3rd Defendants' application made pursuant to
O 18 r 19 (1) (b) and/or (c) and/or (d) of the Rules of Court 2012 and/or the
inherent jurisdiction of the Court that the action as against the 2nd and 3rd
Defendants be struck out and for costs.
Background
[2] The Plaintiff is a publicly listed company. The 2nd and 3rd defendants are
former directors of the Plaintiff.
[3] On 22 September 2014, the Plaintiff instituted this action alleging that the
2nd and 3rd Defendants had fraudulently caused the Plaintiff to enter into a
transaction to acquire shares from the 1st Defendant in a company which
through its group of companies, reportedly owned rights to develop and
produce oil and gas in Indonesia. The Plaintiffs cause of action against the 2nd
and 3rd Defendants is grounded on breach of fiduciary duties as directors of
the Plaintiff, deceit, fraud, conspiracy to defraud/injure and contravention of
ss 132 and 131 of the Companies Act 1965 ('CA'). The Plaintiff further pleads
that as a consequence of the 2nd and 3rd Defendants' involvement in the
acquisition, it has suffered loss and damage in the sum of USD27 million. As
such, it contends that the amended and restated sale and purchase between
itself and the 1st Defendant is null and void or illegal.
[4] For the purpose of this judgment, I need only to set out in summary the
relief claimed by the Plaintiff against the 2nd and 3rd Defendants as contained
in its statement of claim:
(i) compensate the Plaintiff in equity for the breach of fiduciary duties;
(ii) account to the Plaintiff for the monies misappropriated by them;
(iii) account to the Plaintiff for secret profits received by them;
(iv) hold all such sums received as constructive trustees in favour of

the Plaintiff;
Protasco Bhd
(v) reconstitute those assets held on trust for the Plaintiff;
(vi) damages for fraud and conspiracy; and
(vii) general damages, aggravated and exemplary damages.
[5] In essence, the 2nd and 3rd Defendants is to compensate the Plaintiff losses
in the sum of USD27,000,000 suffered due to their actions.
[6] The case has a long history. Part of this history includes a police report
made by the Plaintiff against all 3 Defendants on the same day as the suit was
filed premised on the allegations in the suit.
[7] Based on the contents of a police investigation paper, the Plaintiff obtained
on 1 April 2016 an ad interim Mareva injunction on 1 April 2016 against the
2nd and 3rd Defendants over their assets and properties up to a value
RM60,000,000. On 11 April 2018 parties entered into a consent order for a
Mareva injunction for like amount.
[8] Arising from police investigations, both the 2nd and 3rd Defendants were
arrested and charged under ss 181, and 420 of the Penal Code and s 131(1) of
the Companies Act 1965; the 3rd Defendant was also charged under s 409 of
the Penal Code ("the criminal charges").
[9] Pursuant to s 50(1) of the Anti-Money Laundering, AntiTerrorism

Financing and Proceeds of Unlawful Activities Act 2001 ("AMLA 2001"),
both the 2nd and 3rd Defendants had freezing and seizure orders made with
regard to their assets and properties culminating in a forfeiture of property
application made by the Public Prosecutor pursuant to s 56(1) AMLA 2001.
[10] The Public Prosecutor withdrew the criminal charges following a

representation made by both the 2nd and 3rd Defendants. Unhappy with the
discharge not amounting to an acquittal ordered, the 2nd and 3rd Defendants
filed an application to the High Court of Malaya at Shah Alam and were
acquitted of all the criminal charges on 28 March 2019.
[11] The High Court ordered the release of the assets belonging to the 2nd and
3rd Defendants after the Public Prosecutor withdrew the forfeiture application
on 29 November 2018.
[12] Enclosure 407 was filed on 20 September 2019 by the 2nd and 3rd
Defendants.
[13] For ease of reference, the chronology of events that had transpired
prepared by the Plaintiff and which is not disputed is produced.
Protasco Bhd
Protasco Bhd
Protasco Bhd
Protasco Bhd
Protasco Bhd
2nd And 3rd Defendants' Contentions
[14] The 2nd and 3rd Defendants' argued that forfeiture proceedings under s
56 AMLA 2001 are civil proceedings and relied on PP v. Sham Bokhari [2018]
1 MLRA 357; [2018] 2 MLJ 401; [2018] 1 CLJ 305; [2017] 8 AMR 533 (FC),
PP v. Kuala Dimensi Sdn Bhd & Ors [2019] 6 MLRA 637; [2018] 6 MLJ 37;
[2019] 3 CLJ 650; [2018] 5 AMR 789 (COA) and UMNO Bahagian Pekan v.
PP [2020] 1 MLRH 725; [2020] 9 MLJ 362; [2020] 2 CLJ 272; [2020] 1 AMR
391.
[15] The principal arguments asserted by the 2nd and 3rd Defendants to justify
their striking out application are hinged in short on:
(i) the subject matter of the forfeiture proceedings being civil in nature
overlaps with the present action;
(ii) The present action and the AMLA proceedings are not distinct
actions - the allegations and facts relied upon by the Plaintiff in the
Protasco Bhd
present suit are founded on the same subject matter as follows:
(a) the present suit and the AMLA freezing, seizure and
forfeiture proceedings against the 2nd and 3rd Defendants'
properties under ss 40, 50 and 56 AMLA 2001 were
predicated on the same allegations of cheating and breach of
fiduciary duties by the 2nd and 3rd Defendants;
(b) the subject matter of the reliefs sought by the Plaintiff,

particularly on tracing and accounting of all the assets and
properties received and/or obtained by both the 2nd and 3rd
Defendants as a result of the said breaches, involve assets and
properties that were the subject matter of the Freezing and
seizure orders under ss 44 and 50 of AMLA 2001;
(c) part of the assets sought by the Plaintiff in its Mareva

injunction application is also the subject matter of the
Forfeiture Application by the Public Prosecutor under s 56(1)
of the AMLA;
(iii) The Plaintiff ought to have entered appearance in the Forfeiture

Proceedings as a bona fide third party pursuant to s 61(1) of AMLA to
claim for the same properties and assets, and/or other reliefs against
the 2nd and 3rd Defendants but opted to maintain this parallel suit for
the same purpose; thus it is barred from pursuing the present suit on
grounds of estoppel by conduct due to its failure or refusal to enter
appearance as well as challenge the return of properties and assets to
the 2nd and 3rd Defendants and cited Nana Ofori Atta li, Omanhene of
Akyem Abuakwa and another v. Nana Abu Bonsra II as Adansehene,
and as representing the stool of Adanse, and another (PC) [1957] 3 All
WER 559; which was cited with approval by the COA in Tradium Sdn
Bhd v. Zain Azahari bin Zainal Abidin & Anor [1995] 2 MLRA 304;
[1995] 1 MLJ 668; [1996] 2 CLJ 270.
(iv) The doctrine of res judicata operates against the maintenance of

the present suit as the High Court through Collin Lawrence Sequerah
J had on 29 November 2018 ordered the release and return of the
properties and assets to the 2nd and 3rd Defendants;
(v) Even if the reliefs sought by the Plaintiff is not exclusive to the
properties and assets of the 2nd and 3rd Defendants but includes
declarations concerning the 2nd and 3rd Defendants' fiduciary duties,
the present suit is still caught by issue estoppel in its amplified and
wider sense and constructive res judicata - in support, cited Asia
Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 1
MLRA 611; [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3 AMR 2559
and Hartecon JV Sdn Bhd & Anor v. Hartela Contractors Ltd [1995] 2
MLRA 505; [1996] 2 MLJ 57; [1997] 2 CLJ 104; [1996] 2 AMR 1457
and PP v. Dato' Zainal Abidin Md Nor & Ors [2019] MLRHU 699, in
the later case, the court had granted specific orders to preserve the
Protasco Bhd
bank's legal rights as charge over the immovable property; and
(vi) The Plaintiff did not have the mandatory consent of the Public
Prosecutor to maintain and/or continue this action under s 54(3) of
AMLA 2001 and thus the claim is liable to be struck out - Genneva
Malaysia Sdn Bhd v. Abdul Ghani Sher Mohd [2017] MLRHU 1271;
[2018] 5 CLJ 472; Daud bin Mohamad & 8 Ors v. Genneva Malaysia
Sdn Bhd (KLHC Suit No: 22NCVC-1490-12/2012).
Some Principles On The Law On Striking Out
[16] As the application to strike out is made under O 18 r 19(1), I propose to

set it out for convenience:
19. Striking out pleadings and endorsements (O 18 r 19)
(1) The Court may at any stage of the proceedings order to be struck
out or amended any pleading or the endorsement, of any writ in the
action, or anything in any pleading or in the endorsement, on the
ground that-
(a) it discloses no reasonable cause of action or defence, as the

case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the

action; or
(d) it is otherwise an abuse of the process of the Court, and

may order the action to be stayed or dismissed or judgment to
be entered accordingly, as the case may be.
[17] In an application under this provision of the 2012 rules, I am guided by a

catenation of cases on the subject. The court will only strike out a claim in a
plain and obvious case or that the claim is obviously unsustainable - Bandar
Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Berhad [1993] 1
MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969 where the
Supreme Court clearly held at p 43 and 44:
The principles upon which the court acts in exercising its power under
any of the four limbs of O 18 r 19(1) of the Rules of the High Court
1980 are well settled. If is only in plain and obvious cases that recourse
should be had to the summary process under this rule... and this
summary procedure can only be adopted when it can be clearly seen
that a claim or answer is on the face of it 'obviously unsustainable'...
....
Protasco Bhd
This court as well as the court below is not concerned at this stage
with the respective merits of the claims But what we have to consider
is whether the counterclaim discloses some cause of action and,
likewise, whether the defence to counterclaim raises a reasonable
defence. It has been said that so long as the pleadings disclose some
cause of action or raise some question fit to be decided by the judge,
the mere fact that the case is weak and not likely to succeed at the trial
is no ground for the pleadings to be struck out (see Moore v. Lawson
and Wenlock v. Moloney & Ors).
[18] In Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v. Karambunai
Resorts Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1995] 2
MLRA 166; [1996] 1 MLJ 309; [1996] 1 CLJ 257; [1996] 1 AMR 162, Siti
Norma JCA (as her ladyship then was) explained the approach when dealing
with an application under O 18 r 19(1) of the Rules of the High Court 1980:
The discretionary power to dismiss an action summarily under O 18 r

19 and under the inherent jurisdiction of the court is a drastic power
which should only be exercised in plain and obvious cases, as the
effect of the exercise of such a power is to shut out the plaintiff
altogether from pursuing his claim. (See Tractors (M) Bhd v. Tio Chee
Hina H9751 2 MLJ 1.) Whether a case is plain or obvious does not
depend upon the length of time it takes to argue the case, but that
when the case is argued on the affidavit evidence available, it becomes
plain and obvious that the case has no chance of success. (See Mckay
& Anor v. Essex Area Health Authority & Anor [1982] 2 QB 1166;
[1982] 2 All ER 771; [1982] 2 WLR 890.)
When a question of law becomes an issue, this in itself will not

prevent the court from granting the application, for as long as
the court is satisfied that the issue of law is unarguable and
unsustainable, it may proceed to determine that question. (See
Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLRA
190; [1992] 1 MLJ 400; [1992] 1 CLJ (Rep) 14) Likewise,
where the affidavit evidence discloses a dispute of facts, such
facts must be analysed and if they are found to be inconsistent
with undisputed contemporary documents or inherently
improbable in themselves, the court is entitled to reject those
facts and proceed upon the undisputed contemporaneous
documentary evidence.
[19] The Federal Court in the case of CC Ng & Brothers Sdn Bhd v.
Government of State of Pahang [1984] 1 MLRA 546; [1985] 1 MLJ 347; [1985]
CLJ (Rep) 45 per Se ah FJ exhorted:
The inherent power to dismiss an action summarily without

permitting the plaintiff to proceed to trial is a drastic power. It should
be exercised with the utmost caution [per Lord Diplock in Tractors
Malaysia v. Tio Chee Hing [1975] 1 MLRA 106; [1975] 2 MLJ 1;
Protasco Bhd
[1993] 4 AMR 572. In Lawrance v. Norreys [1890] 15 App Cas 210,

219 Lord Herschell said words to the same effect that "It cannot be
doubted that the Court has an inherent jurisdiction to dismiss an
action which is an abuse of the process of the Court. It is a jurisdiction
which ought to be very sparingly exercised and only in very
exceptional cases. I do not think its exercise would be justified merely
because the story told in the pleadings was highly improbable, and one
which it was difficult to believe could be proved."
[Emphasis Added]
[20] The judgment of Eusoffe Abdoolcader SCJ in Superintendent of Pudu

Prison & Ors v. Sim Kie Chon [1986] 1 MLRA 131; [1986] 1 MLJ 494 at pp
498-499; [1986] CLJ (Rep) 256 is authoritative:
There is moreover the inherent jurisdiction of the court in cases where

res judicata is not strictly established, and where estoppel per rem
judicata has not been sufficiently pleaded, or made out, but
nevertheless the circumstances are such as to render any reagitation of
the questions formally adjudicated upon a scandal and an abuse, the
court will not hesitate to dismiss the action, or stay proceedings
therein, or strike out the defence thereto, as the case may require. It
would suffice in this regard to refer to the judgment of the Privy
Council delivered by Lord Wilberforce in Brisbane City Council and
another v. Attorney General for Queensland [1979] AC 411 at p 425:
The second defence is one of ' res judicata '. There has, of
course, been no actual decision in litigation between these
parties as to the issue involved in the present case, but the
appellants invoke this defence in its wider sense, according to
which a party may be shut out from raising in a subsequent
action an issue which he could, and should, have raised in
earlier proceedings. The classic statement of this doctrine is
contained in the judgment of Wilgram V-C in Henderson v.
Henderson [1843] 3 Hare 100 and its existence has been
reaffirmed by this Board in Hoystead v. Commissioner of
Taxation [1926] AC 155. A recent application of it is to be
found in the decision of the Board in Yat Tung Investment Co
Ltd v. Dao Heng Bank Ltd [1975] AC 581. It was, in the
judgment of the Board, there described in these words:
... there is a wider sense in which the doctrine may be

appealed to, so that it becomes an abuse of process to
raise in subsequent proceedings matters which could
and therefore should have been litigated in earlier
proceedings.
[21] In exercising utmost caution so as not to deprive the Plaintiff from its day
in court, this court in considering the 'bound to fail' or 'obviously
unsustainable' or that the fact that the case is 'weak and not likely to succeed at
Protasco Bhd
the trial is no ground for the pleading to be struck out' tests is entitled where
the application does not concern limb (a) of O 18 r 19(1), to examine not just
the statement of claim but the affidavit evidence critically as was done by the
Privy Council in Tractors Malaysia v. Tio Chee Hing [1975] 1 MLRA 106;
[1975] 2 MLJ 1; [1993] 4 AMR 572.
[22] I hasten to add that the decision in Tractors Malaysia to examine the
affidavit evidence critically was followed by the former Supreme Court in the
case of Raja Zainal Abidin Raja Haji Tachik & Ors v. British-American Life &
General Insurance Bhd [1993] 1 MLRA 372; [1993] 3 MLJ 16; [1993] 3 CLJ
606; [1993] 2 AMR 2073 in a judgment dated 29 July 1993 delivered by Peh
Swee Chin, SCJ sitting with Abdul Hamid Omar, LP and Mohamed
Dzaiddin, SCJ. In the Bandar Builder case (supra), a judgment dated 20 days
earlier on 9 July 1993 delivered by Mohamed Dzaiddin, SCJ sitting with
Abdul Hamid Omar, LP and Eusoff Chin, SCJ, the former Supreme Court,
however, held that the Court should not embark on a minute protracted
examination of the evidence.
[23] In my respectful view, where there is manifestly conflict in decisions of

the same apex court, the principles in Young v. Bristol Aeroplane Co Ltd
[1944] KB 718 offers guidance, that the latter decision should prevail suffice to
say that it is trite that the court should not examine the evidence in such a way
as to amount to conduct a trial on the conflicting material affidavit evidence. I
am also mindful of the pronouncement of the Privy Council in Eng Mee Yong
v. Letchumanan [1979] 1 MLRA 143; [1979] 2 MLJ 212:
Although in the normal way it is not appropriate for a judge to attempt

to resolve conflicts of evidence on affidavit, this does not mean that he
is bound to accept uncritically, as raising a dispute of fact which calls
for further investigation, every statement on an affidavit however
equivocal, lacking in precision, inconsistent with undisputed
contemporary documents or other statements by the same deponent,
or inherently improbable in itself it may be. in making such order on
the application as he "may think just" the judge is vested with a
discretion which he must exercise judicially. It is for him to determine
in the first instance whether statements contained in affidavits that are
relied upon as raising a conflict of evidence upon a relevant fact have
sufficient prima facie plausibility to merit further investigation as to
their truth.
[24] I now move on to consider the issues in the application, namely:
(i) whether this action is caught by constructive res judicata, cause of

action estoppel, issue estoppel and abuse of court process due to the
Plaintiffs failure to avail itself of remedies under s 60 and 60(1) of
AMLA 2001;
(ii) whether failure to obtain consent of the Public Prosecutor pursuant

to s 54(3) AMLA 2001 bars this action;
Protasco Bhd
(iii) whether the 2nd and 3rd Defendants' delay in filing the striking
out application is fatal.
I propose to deal with the 3rd issue first.
Is The 2nd And 3rd Defendants' Delay In Filing The Striking Out Application
Fatal?
[25] In Boo Are Ngor (p) v. Chua Mee Liang (p) (sued as a public officer of Kim
Leng Tze Temple) [2009] 2 MLRA 579; [2009] 6 MLJ 145; [2009] 6 CLJ 617,
the Federal Court said:
[8] it is our view that O 18 r 19(1) of the RHC 1980 does not specify a
time limit during which a party may apply to the court to strike out a
pleading. But the application should be made promptly and as a rule
before the close of the pleadings. The court, however, may allow an
application to be made even after the pleadings are closed. But such an
application must be refused after the action has been set down for trial
(see the case of Bank Bumiputra Malaysia Berhad & Anor v. Lorrain
Esme Osman & Ors [1986] 1 MLRH 458; [1987] 2 MLJ 633; [1987]
CLJ (Rep) 472). Since the second suit has not been set down for trial,
the defendant in the present case in our view can still apply to strike
out the second suit on the ground of abuse of the process of the court.
[Emphasis Added]
[26] Notwithstanding that the trial in this matter has started 18 months ago on
18 February 2019, with the Plaintiff having called its first witness, it is my
respectful view that the very words in O 18 r 19(1) "The Court may at any
stage of the proceedings order to be struck out or amended.." appears not to
handcuff this Court from considering the striking out application at this stage if
it is a fit and proper case to do so.
[27] However, I have no wish to impinge upon the doctrine of stare decisis,
where a decision by a higher court constitutes a binding precedent on a lower
court. I am duty bound and in fact stare decisis demands that I observe the
decision of the Federal Court in Boo Are Ngor.
[28] I ought to explain my reverence to precedents of the courts superior to this

court.
[29] To appreciate the fundamental importance of fidelity to the doctrine of

stare decisis, allow me to refer io Cassell & Co Ltd v. Broome & Anor[1972] 1
All ER 801 (cited with approval by the Federal Court in Metramac Corp Sdn
Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v. Fawziah Holdings Sdn
Bhd [2006] 1 MLRA 666; [2006] 4 MLJ 113; [2006] 3 CLJ 177; [2006] 3 AMR
725) where Lord Hailsham said at p 809:
Protasco Bhd
The fact is, and I hope it will never be necessary to say so again, that,
in the hierarchical system of courts which exists in this country, it is
necessary for each lower tier, including the Court of Appeal, to accept
loyally the decisions of the higher tiers. Where decisions manifestly
conflict, the decision in Young v. Bristol Aeroplane Co Ltd [1944] 2 All
ER 293 offers guidance to each tier in matters affecting its own
decisions. It does not entitle it to question considered decisions in the
upper tiers with the same freedom. Even this House, since it has taken
freedom to review its own decisions, will do so cautiously. That this is
so is apparent from the terms of the declaration of 1966 itself where
Lord Gardiner LC said:
Their Lordships regard the use of precedent as an

indispensable foundation upon which to decide what is the
law and its application to individual cases. It provides at least
some degree of certainty upon which individuals can reiy in
the conduct of their affairs, as well as a basis for orderly
development of legal rules.
[30] As such, it is unarguable that decisions of the Federal Court must be

followed and such decisions of the Federal Court can only be reviewed by
another panel of the Federal Court as for eg in 2010, Zaki Azmi CJ in Tan
Ying Hong v. Tan Sian San [2010] 1 MLRA 1; [2010] 2 MLJ 1; [2010] 2 CLJ
269 stated that the error in the Federal Court's case of Adorna Properties v.
Boonsoom Boonyanit [2000] 1 MLRA 869; [2001] 1 MLJ 241; [2001] 2 CLJ
133; [2001] 1 AMR 665 was obvious and blatant, thus, affirming Gopal Sri
Ram JCA's decision in Boonsoom Boonyanit v. Adorna Properties [1997] 1
MLRA 209; [1997] 2 MLJ 62; [1997] 3 CLJ 17; [1997] 2 AMR 1813.
[31] In Periasamy Sinnappen v. Public Prosecutor [1996] 1 MLRA 277; [1996] 2

MLJ 557 at p 582; [1996] 3 CLJ 187; [1996] 2 AMR 2511, Gopal Sri Ram
JCA (as he then was) recognised the importance of conforming with the
doctrine of stare decisis. His Lordship said forcefully:
Lastly, the learned appellate judge did not sufficiently address his
mind to the decision in Khoo Hi Chiang. We find the cavalier fashion
in which he approached the judgment of a five-member bench of the
Supreme Court in a case which was an authority binding upon him to
be quite appalling. We are convinced that the learned appellate judge
ought not to have brushed it aside as he did.
We may add that it does not augur well for judicial discipline when a
High Court judge treats the decision of the Supreme Court with little
or no respect in disobedience to the well-entrenched doctrine of stare
decisions.
We trust that the occasion will never arise again when we have to
remind High Court judges that they are bound by all judgments of this
court and of the Federal Court and they must, despite any misgivings
a judge may entertain as to the correctness of a particular judgment of
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either court, apply the law as stated therein.
[32] In the present case, not only has the matter been set down for trial, but the
delay is more serious - the case has remained in the Court's docket for well-
nigh 6 years as the chronology at para 13 has made evident and the trial in fact
has commenced. On these 2 grounds alone, following Boo Are Ngor , the
striking out application which was filed on 20 September 2019, 7 months after
trial has commenced is a non starter. Worse when there is no explanation for
such delay.
[33] Delay in filing a striking out application is not to be countenanced as it is

anthithetical to the very process of a summary procedure for justice to be
dispensed in cases that are plain and obvious and in the process, eliminate
unendurable delays in the law, thus saving costs and time. Delay invariably
scandalizes the fundamental ethos of the court process. Even Shakespeare
hundreds of years ago, wrote about the law's delay:
For who would bear the whips and scorns of time, The oppressor's
wrong, the proud man's contumely, The pangs of despised love, the
law's delay...,"
Shakespeare's Hamlet: Act 3 Scene 1
[34] Charles Dickens too was inspired to write about the spectacular delay of
the chancery court system in the fictional case of Jarndyce v. Jarndyce in his
novel "Bleak House":
This is the Court of Chancery, which has its decaying houses and its
blighted lands in every shire, which has its worn-out lunatic in every
madhouse and its dead in every churchyard, which has its ruined
suitor with his slipshod heels and threadbare dress borrowing and
begging through the round of every man's acquaintance, which gives
to monied might the means abundantly of wearying out the right,
which so exhausts finances, patience, courage, hope, so overthrows
the brain and breaks the heart, that there is not an honorable man
among its practitioners who would not give-who does not often give--
the warning, "Suffer any wrong that can be done you rather than come
here!"
[35] For completeness's sake, I will also address the rest of the 2nd and 3rd
Defendant's grounds for striking out.
Whether The Plaintiff's Claim Is Barred By Constructive Res Judicata, Cause

Of Action Estoppel, Issue Estoppel And Abuse Of Court Process
[36] In the instant application, learned counsel for the 2nd and 3rd Defendants
argued that arising from the Plaintiff's failure to make a claim as a bona fide
third party in the forfeiture proceedings pursuant to s 61 of AMLA 2001 due to
the decision of the Public Prosecutor to withdraw the Forfeiture application,
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the subsequent release of assets to the 2nd and 3rd Defendants on 29

November 2018 as well as withdrawal of charges arising from the Plaintiff's
police report ending in an outright acquittal on 28 March 2019 for the criminal
charges, constructive res judicata, cause of action estoppel and issue estoppel
applies to bar the Plaintiff from proceeding with the present action.
[37] The 2nd and 3rd Defendants stressed that the present action is a collateral
attack on the Attorney General's decision not to prosecute the 2nd and 3rd
Defendants and as such is an abuse of court process as the Plaintiff ought to
seek a judicial review against the decision of the Attorney General and relied
on the cases of:
(i) Peguam Negara Malaysia v. Chin Chee Kow (as secretary of Persatuan
Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another
appeal [2019] 3 MLRA 183; [2019] 3 MLJ 443; [2019] 4 CLJ 561;
[2019] 3 AMR 625 which recently held that the exercise of discretion
by the Attorney General is renewable; and
(ii) Superintendent of Pudu Prison & Ors v. Sim Kie Chon [1986] 1
MLRA 131; [1986] 1 MLJ 494; [1986] CLJ (Rep) 256 where at p 497
it was stated:
The respondent by these proceedings is in our view in effect

attempting to circuitously challenge the exercise by His
Majesty of his powers of clemency in this case under art 42 of
the Constitution which he is expressly precluded from doing
by virtue of the provisions of art 32(1) of the Constitution
which stipulate that His Majesty shall not be liable to any
proceedings whatsoever in any court. The High Court of
Australia in Horwitz v. Connor [1908] 6 CLR 38 40 held (at p
40) that no court has jurisdiction to review the discretion of
the Governor in Council in the exercise of the prerogative of
mercy, and a similar attitude toward the royal prerogative of
mercy was adopted by the English Court of Appeal in
Hanratty v. Lord Butler of Saffron Walden [1971] 115 SJ 386;
The Times May 13. In relation to the question of the
amenability of a prerogative power to judicial review we think
that the enlightened approach is that this would be dependent
on its nature or subject matter, and we find support for this
view in the decision of the House of Lords in Council of Civil
Service Unions & Ors v. Minister for the Civil Service [1985] AC
374 where Lord Scarman in his speech (at p 407) says that it
can be said with confidence the exercise of a prerogative
power is subject to review if the subject matter in respect of
which it is exercised is justiciable, that is to say, if it is a matter
upon which the court can adjudicate, and again in the speech
of Lord Roskill (at p 418) where he refers to examples of
prerogative powers which he did not think could properly be
made the subject of judicial review, such as inter alia that
relating to the prerogative of mercy, because their nature and
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subject matter are such as not to be amenable to the judicial

process.
[38] To digress a little, in Sim Kie Chon's case, the respondent was tried,
convicted on a charge under s 57(1) of the Internal Security Act 1960 and
sentenced to death by the High Court at Kuala Lumpur on June 14, 1983. His
appeal to the Federal Court was dismissed. Thereafter his application for
clemency to His Majesty the Yang di- Pertuan Agong was rejected. He then
commenced an action on July 2, 1985 against the first and third appellants and
the Pardons Board, Malaysia for declarations impugning the rejection of
clemency on the ground of discrimination in breach of art 8 of the
Constitution. Hashim J. initially granted a stay of execution of the sentence
but this was later lifted and the action struck out on an application by the
defendants thereto. An application for a stay and appeal against that decision
were heard together and dismissed by the Supreme Court on July 23, 1985.
See Sim Kie Chon v. Superintendent Of Pudu Prison & Ors [1985] 1 MLRA 167;
[1985] 2 MLJ 385; [1985] CLJ (Rep) 293.
[39] The respondent then instituted another suit against the first three
appellants three weeks later. His application for a stay of execution of the
sentence was refused but the Yang di-Pertuan Agong in the exercise of the
powers of clemency vested in him granted a respite pending the final disposal
of his appeal. The first three appellants applied to strike out the second
appellant as a party and to set aside the action as an abuse of the process of the
court. Hashim J. dismissed the application and such decision was reversed on
appeal on among others that the exercise of prerogative of mercy by Yang di-
Pertuan Agong is non - justiciable and on the grounds of res judicata where the
judgment of Eusoffe Abdoolcader, SCJ held:
There is more over the inherent jurisdiction of the Court in cases

where res judicata is not strictly established, and where estoppel per
rem judicatam has not been sufficiently pleaded, or made out, but
nevertheless the circumstances are such as to render any re-agitation of
the questions formally adjudicated upon a scandal and an abuse, the
Court will not hesitate to dismiss the action, or stay proceedings
therein, or strike out the defence thereto, as the case may require. It
would suffice in this regard to refer to the judgment of the Privy
Council delivered by Lord Wilberforce in Brisbane City Council and
Myer Shopping Centres Pty. Ltd v. Attorney-General for Queensland
[1979] AC 411 (at p 425):
The second defence is one of ' res judicata '. There has, of
course, been no actual decision in litigation between these
parties as to the issue involved in the present case, but the
appellants invoke this defence in its wider sense, according to
which a party may be shut out from raising in a subsequent
action an issue which he could, and should, have raised in
earlier proceedings. The classic statement of this doctrine is
contained in the judgment ofWigram V-C in Henderson v.
Henderson [1843] 3 Hare 100 and its existence has been
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reaffirmed by this Board in Hoystead v. Commissioner of

Taxation [1926] AC 155. A recent application of it is to be
found in the decision of the Board in Yat Tung Investment Co
Ltd v. Dao Heng Bank Ltd [1975] AC 581. It was, in the
judgment of the Board, there described in these words:
... there is a wider sense in which the doctrine may be

appealed to, so that it becomes an abuse of process to
raise in subsequent proceedings matters which could
and therefore should have been litigated in earlier
proceedings', (p 590).
The attempt by way of the instant proceedings to re-litigate and re-

open the earlier action clearly reflects the appositeness of the caption
suggested for this matter in the prelude to this judgment and would
appear to us to be as clear an instance of an abuse of the process of the
Court as one can find within the connotation thereof enunciated in the
speech of Lord Diplock in Hunter v. Chief Constable of the West
Midlands Police and Ors [1982] AC 529 (at p 542).
[40] The 2nd and 3rd Defendants1 counsel asserted that ss 60 and 61 of the
AMLA 2001 provided a specific remedy which should have been pursued by
the Plaintiff in the forfeiture proceedings. Where there is a specific remedy
available, this court must decline relief, citing:
(a) Electrical Industry Workers Union v. Registrar of Trade Unions &

Anor [1975] 1 MLRA 411; [1976] 1 MLJ 177 FC;
(b) Wilkinson v. Barking Corporation [1948] 1 KB 721;
(c) Manggai v. Government of Sarawak [1970] 1 MLRA 344; [1970] 2

MLJ 41.
[41] Counsel for the 2nd and 3rd Defendants posited that the Plaintiff's civil
and commercial rights are co-existent with the criminal complaint. As such,
the Attorney General's withdrawal of the criminal charges and forfeiture
proceedings has a bearing on the civil proceedings.
[42] Counsel for the 2nd and 3rd Defendants further contended that abuse of
process can take place at commencement of an action or can happen after
commencement of an action because of subsequent events that make
maintaining an action an abuse of court process. In rounding up his
submissions, he quoted the judgment of Ahmad Maarop CJ (Malaya) in
Kerajaan Malaysia v. Mat Shuhaimi Shafiei [2018] 2 MLRA 185; [2018] 2 MLJ
133; [2018] 3 CLJ 1; [2018] 1 AMR 837:
[29] At this juncture, it is opportune to add that in the Government of

Malaysia v. Dato Chong Kok Lim [1973] 1 MLRH 318; [1973] 2 MLJ
74, the wider rule of res judicata as expanded in Henderson which
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sometimes is referred to constructive res judicata , was succintly

explained by Sharma J at p 76 in the following manner:
The rule is that a matter which might and ought to have been
made a ground of attack or defence becomes a matter which
was constructively in issue. A matter which might and ought
to have been made a ground of attack or defence in the former
application but which was not alleged as such a ground of
attack or defence is for the purposes of the plea of res judicata
deemed to have been a matter directly and substantially in
issue in the former application, that is to say, though it may
not have been actually directly and substantially in issue it is
still regarded as, having been constructively, directly and
substantially in issue. There can be no distinction between a
claim that was actually made and a claim which might and
ought to have been made. The plea of res judicata applies,
except in special cases, not only to points on which the court
was actually required by the parties to form an opinion and to
pronounce its judgment thereupon but to every point which
properly belonged to the subject of litigation and which the
parties exercising reasonable diligence might have brought
forward at the time. It is only where the plea which is sought
to be raised in the subsequent proceedings was not available to
the party at the time of the previous proceedings that the
decision cannot be constructively res judicata . The rule of
constructive res judicata is really a rule of estoppel.
[35] Lord Bingham referred to Hunter, and several authorities which

explored the forms of the abuse of the process doctrine which had its
root in Henderson v. Henderson to demonstrate the development of the
doctrine in recent years, at the end of which His Lordship made the
following crucial speech on the issue at p 31 which contained
instructive approach in considering whether there is an abuse of the
process:
But Henderson v. Henderson abuse of process, as now

understood, although separate and distinct from cause of
action estoppel and issue estoppel, has much in common with
them. The underlying public interest is the same: that there
should be finality in litigation and that a party should not be
twice vexed in the same matter. This public interest is
reinforced by the current emphasis on efficiency and economy
in the conduct of litigation, in the interests of the parties and
the public as a whole. The bringing of a claim or the raising of
a defence in iater proceedings may, without more, amount to
abuse if the court is satisfied (the onus being on the party
alleging abuse) that the claim or defence should have been
raised in the earlier proceedings if it was to be raised at all. I
would not accept that it is necessary, before abuse may be
found, to identify any additional element such as a collateral
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attack on a previous decision or some dishonesty, but where

those elements are present the later proceedings will be much
more obviously abusive, and there will rarely be a finding of
abuse unless the iater proceeding involves what the court
regards as unjust harassment of a party, it is, however, wrong
to hold that because a matter could have been raised in earlier
proceedings it should have been, so as to render the raising of
it in iater proceedings necessarily abusive. That is to adopt too
dogmatic an approach to what should in my opinion be a
broad, merits-based judgment which takes account of the
public and private interests involved and also takes account of
all the facts of the case, focusing attention on the crucial
question whether, in all the circumstances, a party is misusing
or abusing the process of the court by seeking to raise before it
the issue which could have been raised before. As one cannot
comprehensively list all possible forms of abuse, so one cannot
formulate any hard and fast rule to determine whether, on
given facts, abuse is to be found or not. Thus while I would
accept that lack of funds would not ordinarily excuse a failure
to raise in earlier proceedings an issue which could and should
have been raised then, I would not regard it as necessarily
irrelevant, particularly if it appears that the lack of funds has
been caused by the party against whom it is sought to claim.
While the result may often be the same, it is in my view
preferable to ask whether in all the circumstances a party's
conduct is an abuse than to ask whether the conduct is an
abuse and then, if it is, to ask whether the abuse is excused or
justified by special circumstances. Properly applied, and
whatever the legitimacy of its descent, the rule has in my view
a valuable part to play in protecting the interests of justice...
[43] The Plaintiff's counsel argued that the striking out application does not
hold water. The Plaintiff asserted:
(i) A construction of s 54 and 56 of the AMLA 2001 and the effect of

the provisions therein undisputedly reveal that the said AMLA 2001
provisions have no application whatsoever on the Plaintiff's claim and
cannot in law form the basis of an application to strike the Plaintiff's
said claim;
(ii) The Plaintiff's present pleaded claim is a sustainable, separate and

distinct civil claim from the criminal charges and/or forfeiture
proceedings under AMLA 2001. The reliefs claimed by the Plaintiff is
not for the assets and properties of the 2nd and 3rd Defendants seized
under AMLA 2001 that was commenced against the 2nd and 3rd
Defendants;
(iii) The forfeiture application was withdrawn by the Public Prosecutor

without it being heard and/or adjudicated by the High Court. None of
the issues pleaded by the Plaintiff in the civil action herein was
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adjudicated upon by the High Court in the forfeiture proceedings;
(iv) The 2nd and 3rd Defendants were acquitted from criminal charges
by the High Court at a case management without trial and/or the
hearing of evidence. Again, none of the issues pleaded by the Plaintiff
in the civil action herein were adjudicated upon by the criminal court.
Therefore, the criminal convictions and/or discharge are irrelevant for
the purposes of the present civil proceedings. The acquittal order has
no bearing on the present civil action.
[44] In my view, it is imperative to note that the Plaintiffs claim against the
2nd and 3rd Defendants is based on breach of fiduciary duties as directors of
the Plaintiff and for conspiracy to defraud. In this regard, the statement of
claim in:
(i) paragraphs 39 to 44 describes the representations made to the board

of directors of the Plaintiff favouring the amended and restated sale
and purchase agreement and urging the Board to complete the
proposed acquisition;
(ii) paragraphs 45 to 48 sets out the deception practised on the Plaintiff

into parting with USD27 million;
(iii) paragraphs 50 to 59 details the fraud and deception;
(iv) paragraphs 60 to 65 enumerates the breaches of duties as directors

of the Plaintiff with para 63 asserting that the losses of usd27 million
resulted from the breach of fiduciary duties; and
(v) paragraphs 66 to 67 details the conspiracy to defraud /injure the

plaintiff.
[45] I am inclined to agree with the Plaintiff's submission that the 2nd and 3rd
Defendants' striking out application is premised on a misconception and
misapplication of the effect and ambit of the provisions of ss 54(3), 56(1), 60
and 61 of AMLA 2001.
[46] For starters, the list of assets and properties of the 2nd and 3rd Defendants
that were seized under s 50(1) of AMLA 2001 between January 2015 to May
2015 are:
(a) 2nd Defendant
1) CDS Account (Account No: 079-001-055315899)
2) CDS Account (Account No: 076-001-055361141 (M0680)
3) CDS Account (Account No: 051-001-033645839

(ZTE0577)
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4) Maybank Islamic Bank (Account No: 162311616872)
5) Maybank Banking Berhad (Account No: 514196572869)
(b) 3 rd Defendant
1) CIMB Bank Berhad (Account No:

12460001143057/8003146490)
2) HSBC Bank Malaysia Berhad (Account No:

316123231132)
3) CIMB Islamic Bank Berhad (Account No: 5800059751)
4) CDS Account (Account No: 076-001-056607088 and 087-

011055670533 (DM1762)
[47] Prior AMLA 2001, financial crimes were dealt with under the Penal
Code, the Companies Act 1965, and the Dangerous Drugs (Forfeiture of
Property) Act 1988 and the Anti Corruption Act 1997.
[48] The very purpose of AMLA is stated in its preamble - "An Act to provide
for the offence of money laundering, the measures to be taken for the
prevention of money laundering and terrorism financing offences and to
provide for the forfeiture of property involved in or derived from money
laundering and terrorism financing offences, as well as terrorist property,
proceeds of an unlawful activity and instrumentalities of an offence, and for
matters incidental thereto and connected therewith."
[49] I think it is significant to note here the clear underlying object of AMLA
2001.
[50] Section 17A of the Interpretation Acts 1948 and 1967 (consolidated and
revised 1989) ('the Interpretation Acts') reads:
In the interpretation of a provision of an Act, a construction that

would promote the purpose or object underlying the Act (whether that
purpose or object is expressly stated in the Act or not) shall be
preferred to a construction that would not promote that purpose or
object.
[51] Section 56 of AMLA 2001 reads:
56. Forfeiture of property where there is no prosecution.

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(1) Subject to s 61, where in respect of any property seized under this
Act there is no prosecution or conviction for an offence under
subsection 4(1) or a terrorism financing offence, the Public Prosecutor
may, before the expiration of twelve months from the date of the
seizure, or where there is a freezing order, twelve months from the
date of the freezing, apply to a judge of the High Court for an order of
forfeiture of that property if he is satisfied that such property is-
(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-
(a) the subject-matter or evidence relating to the commission

of an offence under subsection 4(1) or a terrorism financing
offence;
(b) terrorism property;

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(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.
[52] Sections 60 and 61 of AMLA respectively deal with property seized and
sets out the procedure for claims by bona fide third parties and is cast as
follows:
60. Release of property seized
(1) Where property has been seized under this Act, an investigating
officer other than the investigating officer who effected the seizure,
may at any time before it is forfeited under this Act, with the consent
of the Public Prosecutor release such property to such person as the
Public Prosecutor determines to be lawfully entitled to the property if
the Public Prosecutor is satisfied that such property is not liable to
forfeiture under this Act or otherwise required for the purpose of any
proceedings under the Act, or for the purpose of any prosecution
under any other law, and in such event neither the officer effecting the
seizure, nor the Federal Government, or any person acting on behalf
of the Federal Government, shall be liable to any proceedings by any
person if the seizure and release had been effected in good faith.
(2) The officer effecting any release of any property under subsection
(1) shall make a record in writing in respect of such release, specifying
in the record in detail the circumstances of, and the reason for, such
release, and he shall send a copy of such record to the Public
Prosecutor.
(3) For the purpose of subsection (1), the Public Prosecutor may give
any direction of an ancillary or consequential nature, or which may be
necessary, for giving effect to, or for the carrying out of, such release of
property.
61. Bona fide third parties
(1) The provisions in this Part shall apply without prejudice to the
rights of bona fide third parties.
(2) The court making the order of forfeiture under subsection 28L(1) or
s 55 or the judge to whom an application is made under subsection
28L(2) or 56(1) shall cause to be published a notice in the Gazette
calling upon any third party who claims to have any interest in the
property to attend before the court on the date specified in the notice
to show cause as to why the property shall not be forfeited.
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(3) A third party's lack of good faith may be inferred, by the court or
an enforcement agency, from the objective circumstances of the case.
(4) The court or enforcement agency shall return the property to the
claimant when it is satisfied that-
(a) the claimant has a legitimate legal interest in the property;
(b) no participation, collusion or involvement with respect to

the offence under subsection 4(1) or Part IVA, or a terrorism
financing offence which is the object of the proceedings can be
imputed to the claimant;
(c) the claimant lacked knowledge and was not intentionally

ignorant of the illegal use of the property, or if he had
knowledge, did not freely consent to its illegal use;
(d) the claimant did not acquire any right in the property from
a person proceeded against under circumstances that give rise
to a reasonable inference that any right was transferred for the
purpose of avoiding the eventual subsequent forfeiture of the
property; and
(e) the claimant did all that could reasonably be expected to

prevent the illegal use of the property.
[53] I agree with the Plaintiff's submission that the 2nd and 3rd Defendants'
contention that the Plaintiff had not availed itself to the specific relief as
provided under ss 60 and 61 of AMLA 2001 of a bona fide third party making
a claim to the assets seized is untenable in law.
[54] In this case, it must be appreciated that the Plaintiff's pleaded claim
against the 2nd and 3rd Defendants relates to breach of fiduciary duties, as
directors of the Plaintiff and for conspiracy to defraud. The claims do not
pertain to the seized property of the 2nd and 3rd Defendants. In addition, the
Forfeiture Application was withdrawn by the Public Prosecutor on 29
November 2018 even before the said application was heard and/or
adjudicated upon by the High Court.
[55] As such, it is absolutely unrealistic and erroneous for the 2nd and 3rd
Defendants to argue that the Plaintiff must avail itself of this specific remedy to
make a third party claim when there was no order made by the High Court for
publication of Gazette under s 61(2) of AMLA 2001 to call upon any third
party who claims to have any interest on the property to attend before the
Court to show cause as to why the property should not be forfeited.
[56] In Zi Publications Sdn Bhd & Anor v. Jabatan Agama Islam Selangor & Ors
[2020] MLRAU 182; [2020] 6 AMR 7, where a seizure under AMLA 2001
was challenged by way of judicial review, the CA considered s 50(1) of AMLA
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and opined:
[24] Thus it is clear to us that the seizure challenged by the appellant

in its judicial review application was an act done by the respondents1
officers in the exercise of a function in relation to a criminal
investigation for an offence under Act 606. In our view such an
exercise of power in the course of a criminal investigation is not open
to review under O 53 of the RHC. To hold otherwise would, to our
mind, be exposing the criminal investigative process of all law
enforcement agencies in the country to constant judicial review which
surely could not have been the intention of Parliament. A balance has
to be struck between the right of disgruntled persons such as the
appellant, to seek redress in the form of damages for the alleged
wrongful seizure of its property and the duty of the investigative
agency through its officers to bring wrongdoers to face justice by
arresting them and collecting, in the course of investigation, whatever
evidence against them. In this connection the need to conduct prompt
and unimpeded criminal investigation is well recognised by the Court
(see Ooi Ah Phua v. Officer-in-charge Criminal Investigation,
Kedah/Perlis [1975] 1 MLRA 75; [1975] 2 MLJ 198, Hashim bin Saud
v. Yahaya bin Hashim & Anor [1977] 1 MLRA 283; [1977] 2 MLJ 116,
Datuk Seri Ahmad Said Hamdan, Ketua Suruhanjaya, Suruhanjaya
Pencegah Rasuah Malaysia & Ors v. Tan Boon Wah [2010] 1 MLRA
568; [2010] 3 MLJ 193; [2010] 6 CLJ 142). If decisions made and
actions taken in the process of criminal investigation pursuant to the
power given by law, such as the impugned seizure in this case are
amenable to judicial review, then criminal investigative machinery
may not function smoothly and efficiently as it should be. In this
regard, we would approve the decision on similar point made by the
Kuala Lumpur High Court in City Growth Sdn Bhd & Anor v. The
Government of Malaysia [2005] 2 MLRH 685; [2006] 1 MLJ 581;
[2005] 7 CLJ 422. In this case, the applicants sought leave to
commence proceedings under O 53 r 3 of the RHC for an order of
certiorari to quash an order dated 5 July 2004 made by the Deputy
Public Prosecutor which was served on Hong Leong Bank Bhd and
EON Bank Bhd The orders sought to effect a seizure of, inter alia,
movable property in the banking accounts of the applicants pursuant
to s 50(1) of the Anti-Money Laundering, Anti-Terrorism Financing
and Proceeds of Unlawful Activities Act 2001 ('AMLA'). The crucial
question for determination of the Court was whether the said orders of
the Deputy Public Prosecutor pursuant to s 50(1) of AMLA was
reviewable by way of judicial review. In his judgment, dismissing the
application for leave for an order of certiorari Raus J (as His Lordship
then was) said:
[11] From the above, it can be seen that the deputy public
prosecutor's order was in pursuant to s 50(1) of AMLA.
Section 50(1) of AMLA is in the following words:
(1) Where the Public Prosecutor is satisfied on

Protasco Bhd
information given to him by an investigation officer

that any movable property, including any monetary
instrument or any accretion to it, which is the subject-
matter of an offence under subsection 4(1) 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 law or
rule of law, after consultation with Bank Negara
Malaysia, the Securities Commission or the Labuan
Offshore Financial Services Authority, as the case
may be, by order direct the financial institution not to
part with, deal in, or otherwise dispose of such
property or any part of it until the order is revoked or
varied.
[12] Looking at the order of the deputy public prosecutor as

well as the provision of s 50(1) of AMLA, I am of the view
that the order of the deputy public prosecutor is not reviewable
under O 53 of the RHC. To me, s 50(1) of AMLA is part and
parcel of the investigation process into an offence under s 4(1)
of the AMLA. It appears that in order to facilitate the
investigation into the offence of money laundering, the law
has provided with the public prosecutor the power to assist the
investigating officer. Clearly, s 50(1) of AMLA was enacted to
enable the public prosecutor or his Deputy to make an order
of seizure of movable properties in the possession of the
financial institutions by ordering the financial institutions not
to part, deal in, or otherwise dispose of such property or any
part of it until the order is revoked or varied. Thus, by issuing
the said orders the deputy public prosecutor was merely
exercising a function under AMLA.
[13] It has been said before that not all decisions and action of
a public officer is reviewable by the court. In R v. Sloan [1990]
1 NZLR 474, Justice Hardie Boys said:
...it is not every decision made under statutory

authority that is subject to judicial review. A decision
must go beyond what is merely administrative or
procedural... or the exercise of a function rather than a
power... Quite plainly, the conclusions reached by the
inspector here are of this kind and so are not
reviewable. To hold otherwise would, as Mr Neave
submitted, open up the investigation process of all law
enforcement agencies to constant judicial review; and
that cannot have been the intention of Parliament.
[14] Similarly, in Ahmad Azam bin Mohamed Salleh & Ors v.

Jabatan Pembangunan Koperasi Malaysia & Ors [2004] 6
MLRH 212; [2004] 4 MLJ 86, I held that the public officers
Protasco Bhd
exercising a function under the Co-Operative Societies Act

1993, is not reviewable under O 53 of the RHC.
[15] Likewise in this case, the order of the deputy public

prosecutor under s 50(1) of AMLA is also not reviewable.
This must be so, otherwise if all decisions and action of public
authority of this nature are amendable to court's review, then
the government machinery may not be able to function
smoothly. The investigation process of all law enforcement
agencies will be open to constant judicial review. To borrow
the words of Justice Hardie Boys in R v. Sloan 'that cannot
have been the intention of Parliament'.
[16] It is submitted by learned counsel for all applicants that

the issuing of the s 50(1) order, the deputy public prosecutor
has crippled their business and has further failed to appreciate
that the said orders would subject them and its directors and
officers to liabilities resulting from their inability to utilize its
funds. But as stated earlier, the s 50(1) order is to secure the
evidence for the purpose of criminal prosecution under s 4(1)
of AMLA. It is not an administration decision but a decision
in relation to criminal investigation. Thus, the rights of all
applicants in the four cases lies in the criminal, as well as civil
law and not in an administration action. The deputy public
prosecutor was performing his duties under s 50(1) of AMLA
and cannot be made accountable byway of judicial review.
[25] Similarly in the present appeal, the seizure was made in the
course of a criminal investigation of an offence under Act 606
pursuant to the powers conferred under the Act. Such seizure clearly is
not amenable to judicial review. The Appellant was not without
redress. It could have filed a private law writ action for damages.
Indeed, s 48 of Act 606 provides for a cause of action for recovery of
damages if a seizure is made without reasonable cause.
[Emphasis Added]
[57] As clearly explained in the above case, under s 50(1) of the AMLA 2001,
the Public Prosecutor as part of his functions in the investigative process into
whether an offence under s 4(1) of the AMLA has been committed is entitled
to make an order of seizure of movable properties in the possession of the
financial institutions belonging to persons such as the 2nd and 3rd Defendants
here.
[58] Section 55 provides for the forfeiture of any property seized under the Act
by the court where upon prosecution, an offence is proven under subsection
4(1) whilst s 56 AMLA 2001 provides that where there is no prosecution or
conviction of an offence under s 4(1) or a terrorism financing offence, the
Court subject to s 61 may order seized property to be forfeited upon the
application of the Public Prosecutor before the expiration of 12 months from
Protasco Bhd
the date of the freezing order or seizure order. Section 56(3) expressly provides
for the release of the property to the person from whom it was seized upon the
expiration of 12 months from the seizure.
[59] In my view, s 55, and s 56 of AMLA 2001 are an adjunct to and part of
the role of the Public Prosecutor and when read together with s 50(1), s 55 and
s 56 are a corollary to the investigation process.
[60] As pertains this action, I am of the view that the Public Prosecutor in
deciding to withdraw the Forfeiture Application was merely exercising a
function under AMLA 2001 as part of the investigation process and following
Zi Publications Sdn Bhd & Anor v. Jabatan Agama Islam Selangor & Ors, the
exercise of such a function as part of the investigation process is not amenable
to judicial review. Section 60 and 61 in my judgment, are clearly not stand
alone provisions and have to be read with the other provisions in AMLA 2001
dealing with freezing, seizure and forfeiture.
[61] As such, the 2nd and 3rd Defendants' contention that the Plaintiff has a
specific remedy available to it under s 60 and 61 under the forfeiture
proceedings by way of a judicial review fails and with it the arguments on
constructive res judicata, cause of action estoppel, issue estoppel and abuse of
court process.
[62] I also find merits in the Plaintiff's argument that:
(i) its present action is a distinct civil claim in contradistinction from

the criminal charges and/or forfeiture proceedings brought by the
Public Prosecutor under the AMLA 2001 provisions;
(ii) the Forfeiture Application was withdrawn by the Public Prosecutor

on 29 November 2018 prior to the same being heard and/or
adjudicated upon by the High Court. As the Forfeiture Application
was withdrawn by the Public Prosecutor, none of the issues pleaded by
the Plaintiff in the present civil action was adjudicated upon by the
High Court in the Forfeiture Application,
(iii) the 2nd and 3rd Defendants on 28 March 2019 were acquitted by
the Shah Alam High Court without there being a trial. None of the
issues pleaded by the Plaintiff in the present civil action were
adjudicated upon by the criminal court,
(iv) the principles of res judicata simply do not bite as none of the
issues pleaded herein have been adjudicated upon by a previous court
of law;
(v) it is germane to note that different standards of proofs apply to civil

and criminal proceedings. In a criminal trial, in order to convict, the
prosecution must lead evidence in order to prove the guilt of the
accused beyond reasonable doubt. The standard of proof in civil cases
is one of balance of probabilities.
Protasco Bhd
[63] The Plaintiff's citation of 2 cases are apt and useful and I gratefully
reproduce the submission in summary below:
(i) Reebook International Ltd v. Royal Corporation [1991] 2 MLRH

454; [1989] 1 MLJ 209; [1991] 4 CLJ 1074 which considered the
applicability of the doctrine of res judicata after acquittal in a criminal
case to a civil action. The Singapore High Court held:
(1) Three essential conditions must be present before the plea

of res judicata and issue estoppel can be successfully raised.
First, there must have been a final judgment or decision in the
previous case; second, there must be an identity of subject
matter or issue in the former and in the present litigation; and
third, there must be identity of parties in both cases.
(2) There was no dispute that in so far as the matter prayed for
in the criminal motion was concerned, a final judgment was
given by the High Court to quash the search warrants because
the complaints disclosed no offence, followed by two
consequential orders.
.........
(5) The question of different standards of proof is clearly a

material consideration in regard to issue estoppel. The
institution of the present civil action, where different standards
of proof prevailed, was not an abuse of the process of the court
and could not give rise to a plea of issue estoppel.
(6) The condition of an identity of subject matter or issue in

the former and the present litigation was clearly not satisfied
in the present case.
....
(8) There was no merit on the plea of res judicata or issue

estoppel and there was nothing to preclude Reebok
International from commencing the present suit. Neither did
the commencement of such an action amount to an abuse of
the process of the court.
(ii) Datuk S Nallakaruppan & Ors v. Datuk Seri Anwar Ibrahim and
Other Appeals [2015] 5 MLRA 471; [2015] 4 MLJ 34; [2015] 6 CLJ
425 where the Court of Appeal held:
A judgment in a criminal case could not be used as a proof of

a fact in issue in a civil case for claim for damages. As to the
appellant's defence of justification, the High Court was right to
hold that s 43 of the Evidence Act 1950 barred them from
Protasco Bhd
relying on the judgment, order or decree of another court

proceeding, more so, a criminal proceeding.
Consent By Public Prosecutor Necessary For Maintaining This Action?
[64] Section 54 of AMLA reads:
54. Dealing with property after seizure to be void
(1) Where any property has been seized under this Act, and so long as
such seizure remains in force, any dealing effected by any person or
between any persons in respect of such property, except any dealing
effected under this Act by an officer of a public body in his capacity as
such officer, or otherwise by or on behalf of the Federal Government,
or the Government of a State, or a local authority or other statutory
authority, shall be null and void, and shall not be registered or
otherwise be given effect to by any person or authority.
(2) Subsection (1) shall be in addition to and not in derogation of

subsection 51(3) and (4).
(3) For so long as a seizure of any property under this Act remains in
force, no action, suit or other proceedings of a civil nature shall be
instituted, or if it is pending immediately before such seizure, be
maintained or continued in any court or before any other authority in
respect of the property which has been so seized, and no attachment,
execution or other similar process shall be commenced, or if any such
process is pending immediately before such seizure, be maintained or
continued, in respect of such property on account of any claim,
judgment or decree, regardless whether such claim was made, or such
judgment or decree was given, before or after such seizure was
effected, except at the instance of the Federal Government or the
Government of a State, or at the instance of a local authority or other
statutory authority, or except with the prior consent in writing of the
Public Prosecutor.
[65] It was argued by the 2nd and 3rd Defendant that this action cannot be
maintained as the Plaintiff had not obtained the consent of the Public
Prosecutor pursuant to s 54(3) of AMLA as confirmed in exhibit OKA-2 and
relied on the decisions of Vazeer Alam Mydin Meera JC (now JCA) in Daud
Bin Mohamad & 8 ors v. Genneva Malaysia Sdn Bhd & 4 ors in Kuala Lumpur
High Court Civil Suit No: 22NCVC-1490-12/2012) and Lau Bee Lan J (now
JCA) in Genneva Malaysia Sdn Bhd v. Abdul Ghani Sher Mohd [2017]
MLRHU 1271; [2018] 5 CLJ 472.
[66] The Plaintiff on the other hand contended such consent is unnecessary
and relied on the decision of Mohd Ariff J (later JCA) in Dato' Zahari Sulaiman
v. Geneva Sdn Bhd [2010] 3 MLRH 208; [2011] 6 CLJ 219 amongst others.
[67] It has been said that these three High Court cases have given conflicting
Protasco Bhd
interpretations in regard to the scope of s 54(3) AMLA 2001.
[68] To put things in perspective, I find it necessary to embark on a brief

analysis of the scope of s 54(3) which was considered in the 3 High Court cases
to show that ultimately, the 2nd and 3rd Defendants contention that the
Plaintiff's action is obviously unsustainable is deeply flawed.
[69] In Daud Bin Mohamad & 8 Ors v. Genneva Malaysia Sdn Bhd & 4 Ors
(Kuala Lumpur High Court Civil Suit No:22NCVC-1490-12/2012) Vazeer
Alam Mydin Meera JC (now JCA) held in the following relevant passages:
[6] The 1st Defendant's main argument is that this suit is statutorily
barred, as the prior written consent of the Public Prosecutor pursuant
to s 54(3) AMLA has not been obtained. Counsel for the 1st, 2nd, 3rd
and 5th Defendants ("Defendants' claim counsel") submits that the
lack of consent is fatal to the Plaintiffs' claim herein as such a claim is
prohibited under s 54(3) of AMLA. I find merit in that submission for
the following reason.
[7] Now, s 44(1) and (2) of AMLA states that:
(1) Subject to s 50, where an enforcement agency, having the

power to enforce the law under which a serious offence is
committed, has reasonable grounds to suspect that an offence
under subsection 4(1) or a terrorism financing offence has
been, is being or is about to be committed by any person, it
may issue an order freezing any property of that person or any
terrorist property, as the case may be, wherever the property
may be, or in his possession, under his control or due from
any source to him.
(2) An order under subsection (1) may include-
(a) an order to direct that the property, or such part of

the property as is specified in the order, is not to be
disposed of, or otherwise dealt with, by any person,
except in such manner and in such circumstances, if
any, as are specified in the order; and
(b) an order to authorise any of its officers to take

custody and control of the property, or such part of
the property as is specified in the order if the
enforcement agency is satisfied that the circumstances
so require.
[8] The 1st Defendant has produced an order dated 1 October 2012
issued by the Bank Negara Malaysia under s 44 of AMLA ("the 1st
Order") (pp 7174 of Bundle I) freezing the monies of the 1st
Defendant's bank accounts. This would include CIMB Bank Account
Number 14560000662104 of the 1st Defendant into which the
Protasco Bhd
Plaintiffs allege having paid or deposited their monies ("the CIMB

Account"), which monies they now claim under this suit. The 1st
Order also restrains the 1st Defendant from disposing or dealing with
any of its property. I agree with submissions of Defendants' counsel
that the 1st Order under s 44 of AMLA has the effect of freezing the
monies in all the 1st Defendant's bank accounts and is prohibited from
making any payment out of any of its bank accounts. The 1st Order
was valid for a period of 90 days from the date of the Order.
[9] Subsequently, a further order was issued on 18 December 2012 by

the Public Prosecutor under the provisions of s 50(1) of AMLA (pp 75-
77 of Bundle I) freezing the monies in the 1" Defendant's bank
accounts including the CIMB Account. Section 50(1) of AMLA reads:
(1) Where the Public Prosecutor is satisfied on information

given to him by an investigating officer that any movable
property, including any monetary instrument or any accretion
to it, which is the subject-matter of an offence under
subsection 4(1) or a terrorism financing offence or evidence in
relation to the commission of such offence or which is terrorist
property, is in the possession, custody or control of a financial
institution, he may, notwithstanding any other law or rule of
law, after consultation with Bank Negara Malaysia, the
Securities Commission or the Labuan Offshore Financial
Services Authority, as the case may be, by order direct the
financial institution not to part with, deal in, or otherwise
dispose of such property or any part of it until the order is
revoked or varied.
...............
[11] There is specific reference in both the 1st and 2nd Orders to the
CIMB Account. In the 1st Order that reference is found in the
Attachment to the order where the CIMB Account is specifically
referred as being affected by the Order. And in the 2nd Order it is
found in the body of the Order itself. It would be useful to reproduce
the relevant part of the 2nd Order for ease of reference.
To:
CIMB ISLAMIC BANK BERHAD
Head Office Kuala Lumpur
WHEREAS I, ANSELM CHARLES FERNANDIS, Deputy

Public Prosecutor being satisfied on the information given to
me by HUSEIN BIN ZAKARIA Investigating officer that the
moveable property including any monetary instrument or any
accretion to it, as set out below:
Protasco Bhd
...
(vi) GENNEVA MALAYSIA SDN BHD (BUSINESS REG

NO s92s76-A) Current Account No 14560000662104...
is the subject matter of an offence under subsection 4(1) of the

Anti Money Laundering and Anti-Terrorism Financing Act
2001 (the Act) or evidence in relation to the commission of
such offence.
NOW PURSUANT to subsection 50(1) of the Act, it is hereby

ordered that you, your employee or your agent are not to part
with, deal in, or otherwise dispose of such property or any part
of it until this Order is otherwise revoked or varied.
TAKE NOTICE THAT failure to comply with this Order is

an offence under the Act.
Dated: 18 December 2012 (Signed)
Deputy Public Prosecutor
[12] From a reading of s 54 of AMLA it is clear that so long as a

seizure of any property under this AMLA remains in force, no
action/suit or other proceedings of a civil nature shall be instituted, or
if it is pending immediately before such seizure, be maintained or
continued in any court or before any other authority in respect of the
property which has been so seized. At the time of institution of this
suit and the trial of the action, the 2nd Order was still subsisting and
therefore, the freezing of the 1st Defendant's CIMB Account was
effective and in force.
[13] The Plaintiffs have not obtained the requisite prior consent of the
Public Prosecutor, as required under s 54(3) of AMLA. As such I find
that the institution of this suit is contrary to the prohibition under the
said s 54(3) of AMLA and the action cannot be maintained.
[Emphasis Added]
[70] In Genneva Malaysia Sdn Bhd v. Abdul Ghani Sher Mohd [2017] MLRHU
1271; [2018] 5 CLJ 472, Lau Bee Lan J (now JCA) referred to the case of
Daud Bin Mohamad & 8 Ors v. Geneva Malaysia Sdn Bhd & 4 Ors (supra) and
held as follows-
[47] With respect I am persuaded by the Defendant's argument that

the Plaintiffs claim is premature and/or statute-barred for non-
compliance of s 54(3) of the AMLATFA as the Plaintiff has not
obtained the Public Prosecutor's consent to file this suit and its reliance
on the decision of Vazeer Alam Mydin Meera JC (as he then was) in
Protasco Bhd
the case of Daud Bin Mohamad & 8 Ors v. Geneva Malaysia Sdn Bhd &
4 Ors, KLHC Civil Suit No: 22NCVC-1490-12/2012 dated 30 April
2014. My reasons are these.
[48] I find the Plaintiffs submission that its claim is not against the
seized assets but is for a breach of contract is with respect
misconceived. It is my finding that there is no established contract.
What the Plaintiff is in fact seeking (though not pleaded in that
manner) is for the refund of the money which according to SP4 was
deposited by the Plaintiff into the Defendant's bank account. CIMB
Account no: 14560000662104. The Orders dated 1 October 2012
under s 44 AMLATFA and Order dated 18 December 2012 under s 50
AMLATFA showed that the monies in the CIMB Account have been
frozen and have been seized. This will become apparent when I refer
to the relevant parts of Vazeer JC's judgment in Daud Bin Mohamad's
case.
[49] In my view the Defendant's reliance on Daud Bin Mohamad's

case is appropriate as the facts of the present case is somewhat similar
to the former. In Daud Bin Mohamad's case (supra) the plaintiffs were
customers of the 1st defendant and had entered into individual
contracts to invest in a gold investment scheme operated by the 1st
defendant. 2nd to 3rd defendants were directors of the 1st defendant.
The 1st defendant marketed and promoted the gold investment
scheme as being syariah compliant. The plaintiffs alleged that they
have individually paid monies to the 1st defendant to purchase the
gold and invest in the scheme and that the gold was never delivered to
them. The plaintiffs, amongst others, are seeking the refund of the
monies they allege that they have paid to the 1st defendant and monies
worth for the gold that they surrendered as part of the renewal of their
investment with the 1st defendant."
[Emphasis Added]
[71] In Dato' Zahari Sulaiman v. Geneva Sdn Bhd [2010] 3 MLRH 208; [2011] 6
CLJ 219, the Plaintiff sold a used gold coin to the Defendant for a sum of
RM647.400.00 to be paid by instalments. The Defendant paid only
RM23,400.00. The Defendant failed to pay the balance sum of RM624,000.00.
The Plaintiff sued the Defendant for the outstanding sum of RM624,000.00.
The Plaintiff was then served with a seizure order under s 50(1) of AMLA
2001 and the Defendant's monies in several bank accounts were seized.
Premised on the seizure in accordance with the AMLA provisions, the
Defendant applied to strike out the Plaintiff's claim premised on s 54(3) of
AMLA 2001. Mohamad Arif Yusof J (later JCA) held:
Section 54, it is to be observed, is headed "Dealing with property after

seizure to be void." It is obvious from this heading, and from the
contents of the Section, that the reference to action, suit or proceeding
of a civil nature has to be related to the property seized, in our case the
numerous banking accounts of the various Banks seized. Section 54(3)
Protasco Bhd
cannot be read the way the Defendant wants it to be read, for to do so

will interfere with the general fundamental right of a citizen to resort
to court process and access to justice for the determination of his
dispute. See eg Kekatong Sdn Bhd v. Danaharta Urus Sdn Bhd [2003] 1
MLRA 338; [2003] 4 MLJ 409; [2003] 3 CLJ 378; [2003] 4 AMR 384
(Court of Appeal) for an express recognition of access to justice as a
fundamental right. Such an outcome cannot be made dependent
merely as an incidental interpretation of this statutory provision. If it is
to be excluded, it will require clearer words that those appearing in s
54(3). Such a reading of the statutory provision will be in keeping with
the common law principle of statutory interpretation that requires
courts to interpret statutes so as not to interfere with vested rights,
unless the statute clearly states so. It will also be in line with s 17A of
our Interpretation Act which requires courts to adopt a purposive
interpretation and adopt an interpretation that will promote the
purposes and objects of the statute rather than the reverse. Therefore,
with all respect due, the Defendant's argument is untenable. Section
54(3), as presently worded, cannot be reasonably interpreted as
imposing a general restraining order on all suits, actions or
proceedings as against all litigants or potential litigants, and
irrespective of the properties seized. To read this provision as
imposing a kind of restraining order on legal process generally will, in
my view, fall foul of s 17A of the Interpretation Act.
[72] Significantly however, the Court of Appeal in Genneva Malaysia Sdn Bhd
v. Tio Jit Hong & Ors [2020] MLRAU 85; [2020] 4 CLJ 449 at para 60 of the
judgment approved of Mohamad Arif Yusof J (later JCA)'s construction of s
54(3) AMLA:
[60] Be that as it may, having referred to the cases cited related to the
issue, we were more inclined to agree with Mohamad Arif Yusof J in
Dato' Zahari Sulaiman v. Genneva Sdn Bhd (supra) which in our view is
the correct interpretation of s 54(3). His Lordship in allowing
summary judgment to be entered explained that s 54(3) of AMLA
cannot be read the way the defendant wants it to be read, for to do so
will interfere with the general fundamental right of a citizen to resort
to court process and access to justice for the determination of his
dispute. Section 54(3), as presently worded, cannot be reasonably
interpreted as imposing a general restraining order on all suits, actions
or proceedings as against all litigants or potential litigants, and
irrespective of the properties seized. To read this provision as
imposing a kind of restraining order on legal process generally will, in
my view, fall foul of s 17A of the Interpretation Act.
[73] In my view, a close reading of Lau Bee Lan J (now JCA)'s judgment in
Genneva Malaysia Sdn Bhd v. Abdul Ghani Bin Sher Mohamad in fact makes it
manifest and quite plain that both Her Ladyship and His Lordship Vazeer
Alam Mydin Meera JC (as he then was) in Daud Bin Mohamad's case in fact
approved of Mohamad Arif Yusof J (later JCA)'s construction of s 54(3):
Protasco Bhd
[51] I find the dicta of Mohamad Arif Yusoff J in the case of Dato'
Zahari Sulaiman (supra) relied on by the learned Counsel for the
Plaintiff which is referred to in paras 45 and 46 above has been
considered by Vazeer JC at para 14 of His Lordship's judgment. I
agreed with the view expressed at para 15 by the learned JC-
[15] I agree with the view of my learned brother that s 54(3)

AMLA cannot be read as imposing a general restrain (sic) on
legal process. The restrained (sic) must be confined to the
property seized. On the facts of that case, it is not clear if the
monies being claimed by the plaintiff therein were paid into
the various bank accounts that were seized or frozen.
However, in the context of the facts of the case before me
now, there is evidence that the monies alleged to have been
paid by the plaintiffs and now claimed bv the plaintiffs were
paid into the CIMB Account, which is frozen under the 2nd
Order. Therefore, it relates to properties seized or frozen bv
order of the Deoutv Public Prosecutor. In the premise, the
very subject of the present claim is covered under the 2nd
Order, and as such. I am of the opinion that the clear
stipulation of s 54(3) of AMLA requiring the prior written
consent of the Public Prosecutor becomes operational. The
Plaintiffs would have to seek the prior written consent of the
Public Prosecutor before instituting this action. Alternatively,
the Plaintiffs could avail themselves of the provisions of s
60(1) of AMLA to seek a return of their monies in the CIMB
Account.
[Emphasis Added]
[74] The findings in the cases of Genneva Malaysia Sdn Bhd v. Abdul Ghani Bin
Sher Mohamad and Daud Bin Mohamad are distinguishable as the 2 cases were
decided on the basis that the very monies the respective plaintiff sought in the
2 suits were the monies that were frozen which is not the case in the present
action. The present action against the 2nd and 3rd Defendants is a claim for
breach of fiduciary duties as directors of the Plaintiff and for conspiracy to
defraud.
[75] The Plaintiff's counsel correctly highlighted another Court of Appeal

decision which makes the scope of s 54(3) crystal clear - the case of Tetuan
Khana & Co v. Saling Lau Bee Chiang & Ors and Other Appeals [2018] 6 MLRA
157; [2019] 3 MLJ 258; [2019] 1 CLJ 501 where the Court of Appeal speaking
through Hasnah Hashim JCA (Now FCJ) held;
(1) .............
(2) The 27 condominiums did not belong to Kanawagi but to the trust
since they were purportedly bought by Kanawagi as a trustee for the
benefit of the trust. The properties were also the subject matter of
injunctions ordered by the High Court which still remained in force.
Protasco Bhd
As such, the properties did not fall within the ambit of the notice of
seizure issued to Kanawagi under the AMLA. Based on a reasonable
and purposive interpretation of s 54(3) of the AMLA, read together
with s 17A of the Interpretation Acts 1948 and 1967, s 54(3) of the
AMLA could not be interpreted the wav the defendants wanted it to
be interpreted, that is. that the plaintiffs were barred from continuing
with Suit 106 and Suit 228 in the light of the notice of seizure. The
purpose of the AMLA was to provide measures to prevent money
laundering and terrorism financing offences - to prevent an accused
from dealing with assets or property procured through money
laundering or unlawful activities. The instant appeals, however,
involved the enforcement of the trust and the allegation that the
trustees had mismanaged the trust. The relevant provisions of the
AMLA had to be interpreted in line with the purpose and objective of
that Act as defined in its preamble. Hence, in the instant case, the
High Court had jurisdiction to hear both Suit 228 and Suit 106 (see
paras 53 & 56-58).
[Emphasis Added]
[76] I agree with the Plaintiff that a plain interpretation of s 54 means it

prohibits firstly, any dealing with property forming the subject matter of a
seizure under the Act. Secondly, whilst seizure of any property remains in
force it prohibits the institution, maintenance and continuation of any claim in
relation to the subject matter of the seizure without prior consent in writing of
the Public Prosecutor; and thirdly, the provisions are property specific and not
party specific and as such, the Plaintiff does not need the consent of the Public
prosecutor to maintain the present action.
[77] Lim Hui Jin v. CIMB Bank Bhd & Ors [2018] 5 MLRA 59; [2018] 6 MLJ
724; [2018] 8 CLJ 327 is another Court of Appeal case that fortifies my
decision that there is no statutory bar to the present action under s 54(3)
AMLA 2001 as the seizure of the 2nd and 3rd Defendant's bank accounts do
not remain in force.
[78] In Lim Hui Jin's case, the appellant's mother was investigated for money
laundering offences under s 4(1) of the Act. In the course of investigations, the
appellant's bank account was frozen on under s 44(1) of the Act. The
appellant's mother, but not the appellant, was charged with offences under the
Act. The appellant commenced proceedings seeking the release of the monies
and all the accrued interest in his bank account. One of the grounds in
opposition raised by the respondents was that the Freezing Order and Seizure
Order could not be reviewed by the Court in a civil proceeding by virtue of s
54(3) of the Act. The High Court dismissed his action. On appeal, the Court
Of Appeal in allowing the appeal amongst others, ruled that s 54(3) did not
apply to the case because the condition in the operative words "For so long as
a seizure of any property under this Act remains in force" was not satisfied.
The Seizure Order was no longer in force as it had expired by the time the
appellant commenced proceedings in the High Court for the release of his
bank account. The Court of Appeal elucidated on 2 scenarios:
Protasco Bhd
(i) If there is any prosecution for an offence under the Act, s 55 allows
the Court to make an order for the forfeiture of property if the offence
is proved against the accused, or if the offence is not proved against
the accused, where the Court is satisfied that the accused is not the
true and lawful owner of the property and that no other person is
entitled to the property as a purchaser in good faith and for valuable
consideration; or
(ii) If there is no prosecution for an offence under the Act, the Court
may order seized property to be forfeited upon the application of the
Public Prosecutor under s 56 before the expiration of 12 months from
the date of the freezing order or seizure order. This provision also
expressly provides for the release of the property to the person from
whom it was seized upon the expiration of 12 months from the date of
the seizure.
[79] Likewise in the present case, it was also argued by the Plaintiff that even if
assuming the damages sought for the breach of fiduciary duties against the 2nd
and 3rd Defendants are the monies in the accounts (which it argued
vehemently they were not), with the withdrawal of forfeiture proceedings and
the monies in the accounts released by the High Court, the statutory bar in s
54(3) does not exist anymore.
[80] Unsurprisingly, counsel for the Plaintiff was wholly dismissive of the 2nd
and 3rd Defendants' line of arguments on the relevant provisions of AMLA
2001 and politely termed their arguments as "astonishing".
[81] I find it unnecessary to say more. Suffice to say that I agree with the
Plaintiff entirely and l find that the 2nd and 3rd Defendants' interpretation of s
54 AMLA 2001 paid regard to the letter and not its intention.
[82] That being the position, in my judgment, having regard to the facts and
circumstances of this case, the Plaintiff do not need the consent of the Public
Prosecutor to proceed with this action.
[83] That is not all. I am also of the view whether there has been in fact a
breach of fiduciary duties, fraud, deception or non disclosure of facts are
matters which can only be decided after trial. This court further assumes what
is stated in the Statement of Claim is true - Tuan Haji Ishak Ismail v. Leong Hup
Holdings Bhd & Other Appeals [1995] 2 MLRA 198; [1996] 1 MLJ 661 at 679;
[1996] 1 CLJ 393; [1996] 1 AMR 300.
[84] Having therefore given careful consideration to the history of this

unfortunate saga, and the discretion invested in this court in deciding an
application of this nature which discretion is to be exercised judicially and not
arbitrarily or capriciously, it is difficult to accept the line of arguments by the
2nd and 3rd Defendants that the action is scandalous, frivolous and vexatious
or an abuse of the process of the court.
Protasco Bhd
[85] 'Scandalous' in the context of O 18 r 19(1)(b), is taken to mean wholly

unnecessary and irrelevant and not just unpleasant allegations: see eg Boey Oi
Leng (Trading as Indah Reka Construction and Trading) v. Trans Resources
Corporation Sdn Bhd [2001] 4 MLRH 274; [2002] 1 CLJ 405; [2001] 4 AMR
4807 (HC).
[86] 'Frivolous' or 'vexatious' means that the pleadings are obviously

unsustainable: see eg Boey Oi Leng (Trading as Indah Reka Construction and
Trading) v. Trans Resources Corporation Sdn Bhd [2001] 4 MLRH 274; [2002] 1
CLJ 405; [2001] 4 AMR 4807 and Datuk Ir Che Amran Mohd Yusoff v.
Yayasan Melaka & Ors [2003] 1 MLRH 54; [2003] 1 CLJ 767. Technointan
Holding Sdn Bhd v. Tetuan Tan Kim & Teh Hong Jet [2006] 3 MLRH 78;
[2007] 1 MLJ 163; [2006] 7 CLJ 541; an action raised with no prospect of
success to embarrass or annoy the other party to the action.
[87] In the case of Malayan Banking Berhad v. Gan Kong Yam [1975] 1 MLRA
663; [1972] 1 MLJ 32 Raja Azlan Shah, J (as HRH then was) had made the
following observation:
No precise legal definition can be found as yet, as to the meaning of

'no reasonable defence1 or 'frivolous or vexatious' or 'tending to delay
the fair trial or the action', but as can be observed a pleading will not
be struck out under this rule 'unless it is not only demurrable but
something worse than demurrable', that is, such that no legitimate
amendment can save it from being demurrable: per Chitty J, in
Republic of Peru v. Peruvian Guano Co.
[88] As for the meaning of 'an abuse of the process of the court' reference is
made to the case of Gabriel Peter & Partners (suing as a firm) v. Wee Chang Jin
[1998] 1 SLR 374 at p 384:
The term 'abuse of the process of the Court', in O 18 r 19(1) (d), has
been given a wide interpretation by the Courts. It includes
considerations of public policy and the interests of justice. This term
signifies that the process of the Court must be used bona fide and
properly and must not be abused. The Court will prevent the improper
use of its machinery. It will prevent the judicial process from being
used as a means of vexation and oppression in the. process of
litigation. The categories of conduct rendering a claim frivolous,
vexatious or an abuse of process are not closed and will depend on all
relevant circumstances of the case. A type of conduct which has been
judicially acknowledged as an abuse of process is the bringing of an
action for a collateral purpose... if an action was not brought bona fide
for the purpose of obtaining relief but for some other ulterior or
collateral purpose, it might be struck out as an abuse of the process of
the Court.
31. Gopal Sri Ram JCA (as he then was) in the case of Malaysia
Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku
Mohamed [1998] 1 MLRA 67; [1998] 2 MLJ 425; [1998] 2 CLJ 340, at
Protasco Bhd
352; [1998] 2 AMR 1666 said this in regard to the doctrine of abuse of
process):
Every person who is aggrieved by some wrong he considers

done him is at liberty to invoke the process of the court.
Equally may a litigant invoke the process to enforce some
claim which he perceives he has against another. When
however, the process of the court is invoked, not for the
genuine purpose of obtaining the relief claimed, but for a
collateral purpose, for example, to oppress the defendant, it
becomes an abuse of process. Where the court's process is
abused, the proceedings complained of may be stayed, or if it
is too late to grant a stay, the party injured may bring an
action based on the tort of collateral abuse of process.
[89] The Supreme Court in Raja Zainal Abidin Raja Haji Tachik & Ors v.
British-American Life & General Insurance Bhd [1993] 1 MLRA 372; [1993] 3
MLJ 16; [1993] 3 CLJ 606; [1993] 2 AMR 2073 pronounced that the court has
an inherent jurisdiction to prevent an abuse of its process (SC).
[90] Indeed, Gopal Sri Ram, JCA (as he then was)'s judgment in the Court of
Appeal case of Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 1
MLRA 98; [2001] 4 MLJ 346, at 356, 357 and 358; [2001] 2 CLJ 321; [2001] 3
AMR 2609 reminded that the res judicata doctrine is based on case law and
should not be applied indiscriminately so as to cause an injustice.
[91] In my view, upon a careful scrutiny of the Plaintiff's statement of claim, it

cannot be said to be so hopeless or unsustainable to be struck out but instead
the Plaintiff ought to be given its day in court by way of a full trial to meet the
ends of justice otherwise it will be inimical to what is just and reasonable.
[92] Having decided that the 2nd and 3rd Defendants have no basis to stifle the
Plaintiffs claim summarily, I do not find it necessary to deal with the Plaintiff's
argument on whether the 2nd and 3rd Defendants by having agreed to a
consent order to a Mareva injunction in this action after being granted a
discharge of the criminal charges is approbating and reprobating at the same
time.
[93] I therefore dismiss the 2nd and 3rd Defendants' application made under O
18 r 19(1) (b) and/or (c) and/or (d) of the Rules of the High Court 1980 with
costs of RM25,000 subject to allocator.
[94] In writing this judgment, I hasten to state that I have relied considerably
on the parties' counsel's meticulous research and submission which I find to be
of great use and thank them for their assistance to the court.

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Protasco Bhd

High Court Malaya, Kuala Lumpur

Case(s) referred to:

Legislation referred to:

Chelvakumar Thrujaram, Margaret Tan, Yasmeen Soh, R Jayasingam, Atiqah

Liza Chan Sow Keng JC:

(ii) account to the Plaintiff for the monies misappropriated by them;

(iii) account to the Plaintiff for secret profits received by them;

(iv) hold all such sums received as constructive trustees in favour of

(v) reconstitute those assets held on trust for the Plaintiff;

(vi) damages for fraud and conspiracy; and

(vii) general damages, aggravated and exemplary damages.

[9] Pursuant to s 50(1) of the Anti-Money Laundering, AntiTerrorism

[10] The Public Prosecutor withdrew the criminal charges following a

2nd And 3rd Defendants' Contentions

present suit are founded on the same subject matter as follows:

(b) the subject matter of the reliefs sought by the Plaintiff,

(c) part of the assets sought by the Plaintiff in its Mareva

(iii) The Plaintiff ought to have entered appearance in the Forfeiture

(iv) The doctrine of res judicata operates against the maintenance of

bank's legal rights as charge over the immovable property; and

Some Principles On The Law On Striking Out

[16] As the application to strike out is made under O 18 r 19(1), I propose to

19. Striking out pleadings and endorsements (O 18 r 19)

(a) it discloses no reasonable cause of action or defence, as the

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the

(d) it is otherwise an abuse of the process of the Court, and

[17] In an application under this provision of the 2012 rules, I am guided by a

The discretionary power to dismiss an action summarily under O 18 r

When a question of law becomes an issue, this in itself will not

The inherent power to dismiss an action summarily without

[1993] 4 AMR 572. In Lawrance v. Norreys [1890] 15 App Cas 210,

[20] The judgment of Eusoffe Abdoolcader SCJ in Superintendent of Pudu

There is moreover the inherent jurisdiction of the court in cases where

... there is a wider sense in which the doctrine may be

[23] In my respectful view, where there is manifestly conflict in decisions of

Although in the normal way it is not appropriate for a judge to attempt

[24] I now move on to consider the issues in the application, namely:

(i) whether this action is caught by constructive res judicata, cause of

(ii) whether failure to obtain consent of the Public Prosecutor pursuant

I propose to deal with the 3rd issue first.

[28] I ought to explain my reverence to precedents of the courts superior to this

[29] To appreciate the fundamental importance of fidelity to the doctrine of

Their Lordships regard the use of precedent as an

[30] As such, it is unarguable that decisions of the Federal Court must be

[31] In Periasamy Sinnappen v. Public Prosecutor [1996] 1 MLRA 277; [1996] 2

either court, apply the law as stated therein.

[33] Delay in filing a striking out application is not to be countenanced as it is

Shakespeare's Hamlet: Act 3 Scene 1

Whether The Plaintiff's Claim Is Barred By Constructive Res Judicata, Cause

the subsequent release of assets to the 2nd and 3rd Defendants on 29

The respondent by these proceedings is in our view in effect

subject matter are such as not to be amenable to the judicial

There is more over the inherent jurisdiction of the Court in cases

reaffirmed by this Board in Hoystead v. Commissioner of

... there is a wider sense in which the doctrine may be

The attempt by way of the instant proceedings to re-litigate and re-

(a) Electrical Industry Workers Union v. Registrar of Trade Unions &