Freezing of property
(1) Subject to section 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) has been, is being or is about to be committed by any person, it may issue an order freezing any property of that person, 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.
(3) The enforcement agency in making the order under subsection
(1) may give directions to the person named or described in the order as to—
(a) the duration of the order;
(b) the disposal of that property, for the purpose of—
(i) determining any dispute as to the ownership of or other interest in the property or any part of it;
(ii) its proper administration during the period of the order;
(iii) the payment of debts incurred in good faith due to creditors prior to the order;
(iv) the payment of money to that person for the reasonable subsistence of that person and his family; or
(v) the payment of the costs of that person to defend criminal proceedings against him; or
(c) the manner in which the property should be administered or dealt with.
(4) An order made under subsection (1) may direct that the person named or described in the order shall—
(a) be restrained, whether by himself or by his nominees, relatives, employees or agents, from selling, disposing of, charging, pledging, transferring or otherwise dealing with or dissipating his property;
(b) not remove from or send out of Malaysia any of his money or property; and
(c) not leave or be permitted to leave Malaysia and shall surrender any travel documents to the Director-General of Immigration within one week of the publication of the order.
(5) An order made under subsection (1) shall cease to have effect after ninety days from the date of the order, if the person against whom the order was made has not been charged with an offence under this Act.
(6) An enforcement agency shall not be liable for any damages or cost arising directly or indirectly from the making of an order under this section unless it can be proved that the order under subsection (1) was not made in good faith.
(7) Where an enforcement agency directs that frozen property be administered or dealt with, the person charged with the administration of the property shall not be liable for any loss or damage to the property or for the cost of proceedings taken to establish a claim to the property or to an interest in the property unless the court before which the claim is made finds that the person charged with the administration of the property has been negligent in respect of the administration of the property.
Seizure of movable property
(1) In the course of an investigation into an offence under subsection 4(1), an investigating officer may, upon obtaining approval from an investigating officer senior in rank to him, seize any movable property which he has reasonable grounds to suspect to be the subject-matter of such offence or evidence relating to such offence.
(2) A list of all movable property seized pursuant to subsection
(1) and of the places in which they are respectively found shall be prepared by the investigating officer effecting the seizure and signed by him.
(3) A copy of the list referred to in subsection (2) shall be served as soon as possible on the owner of such property or on the person from whom the property was seized.
(4) This section shall not apply to any movable property liable to seizure under subsection (2) which is in the possession, custody or control of a financial institution.
Further provisions relating to seizure of movable property
(1) Where any movable property is seized under this Act, the seizure shall be effected by removing the movable property from the possession, custody or control of the person from whom it is seized and placing it under the custody of such person, and at such place, as the investigating officer may determine.
(2) Where it is not practicable, or it is otherwise not desirable, to remove any property under subsection (1), the investigating officer may leave it at the premises in which it is seized under the custody of such person as he may determine for the purpose.
(3) Notwithstanding subsection (1), when any movable property, including any movable property referred to in subsection (6), has been seized under this Act, an investigating officer, other than the investigating officer who effected the seizure, upon obtaining approval from an investigating officer senior in rank to him, may—
(a) temporarily return the movable property to its owner, or to the person from whose possession, custody or control it was seized, or to such person as may be entitled to it, subject to such terms and conditions as may be imposed, and subject in any case, to sufficient security being furnished to ensure that the movable property shall be surrendered on demand being made by the investigating officer who authorised the release and that such terms and conditions, if any, shall be complied with; or
(b) return the movable property to the owner, or to the person from whose possession, custody or control it was seized, or to such person as may be entitled to the movable property, with liberty for the person to whom the movable property is so returned to dispose of the movable property, such return being subject to security being furnished in an amount which is not less than an amount which represents the open market value of that property on the date on which it is so returned.
(4) Where any person to whom movable property is temporarily returned under paragraph (3)(a) fails to surrender the movable property on demand or comply with any term or condition imposed under that paragraph—
(a) the security furnished in respect of such movable property shall be forfeited; and
(b) that person commits an offence and shall on conviction be liable to a fine of not less than two times the amount of the security furnished by him or to imprisonment for a term not exceeding two years or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
(5) Where an order of forfeiture is made by the court in respect of movable property returned under paragraph (3)(b), such forfeiture shall be effected by forfeiting the security furnished by the person to whom the property was returned.
(6) When any movable property seized under this Act consists of money, shares, securities, stocks, debentures or any chose-inaction in the possession or under the custody or control of any person other than the person against whom the prosecution is intended to be taken, the seizure shall be effected by an investigating officer serving an order on such person—
(a) prohibiting him from using, transferring, or dealing with such property; or
(b) requiring him to surrender the property to an investigating officer in the manner and within the time specified in the order.
(7) Where any movable property seized is liable to speedy decay or deterioration, or is property which cannot be maintained without difficulty, or which is not practicable to maintain, and which cannot be dealt with under subsection (3), an investigating officer may sell or cause the property to be sold and shall hold the proceeds of the sale, after deducting the costs and expenses of the maintenance and sale of the movable property, to abide by the result of any proceedings under this Act.
Advocates and solicitors to disclose information
(1) Notwithstanding any other law, a Judge of the High Court may, on application being made to him in relation to an investigation into any offence under subsection 4(1), order an advocate and solicitor to disclose information available to him in respect of any transaction or dealing relating to any property which is liable to seizure under this Act.
(2) Nothing in subsection (1) shall require an advocate and solicitor to comply with any order under that subsection to the extent that such compliance would disclose any privileged information or communication which came to his knowledge for the purpose of any pending proceedings.
Investigation powers in relation to a financial institution
(1) Notwithstanding the provisions of any other written law or any rule of law, the Public Prosecutor, if he is satisfied that it is necessary for the purpose of any investigation into an offence under subsection 4(1), may authorise in writing an investigating officer to exercise in relation to any financial institution specified in the authorisation all the powers of investigation set out in Part V and in subsection (2).
(2) An investigating officer authorised under subsection (1) may, in relation to the financial institution in respect of which he is so authorised—
(a) inspect and take copies of any book, record, report or document belonging to or in the possession, custody or control of the financial institution;
(b) inspect and take copies of any share account, purchase account, expense account or any other account of any person kept in the financial institution;
(c) inspect the contents of any safe deposit box in the financial institution; or
(d) request for any other information relating to any record, report, document, account or article referred to in paragraphs (a), (b) and (c).
(3) Notwithstanding anything in subsection (2), an investigating officer authorised under subsection (1) may take possession of any account, book, record, report, document, title, securities or cash to which he has access under that subsection where in his opinion—
(a) the inspection of them, the copying of them, or the taking of extracts from them, cannot reasonably be undertaken without taking possession of them;
(b) they may be interfered with or destroyed unless he takes possession of them; or
(c) they may be needed as evidence in any prosecution for an offence under subsection 4(1) or any other written law.
(4) Any person who wilfully fails or refuses to disclose any information or to produce any account, book, record, report, document or article under subsection (2) to the investigating officer authorised under subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
(5) Where any person discloses any information or produces any account, book, record, report, document or article to an investigating officer authorised under subsection (1), neither the first-mentioned person nor any other person on whose behalf or direction or as whose agent or officer the first-mentioned person may be acting shall, on account of such disclosure or production, be liable to any prosecution for any offence under any law, or to any proceedings or claim by any person under any law, or under any contract, agreement or arrangement, or otherwise.
Public Prosecutor’s powers to obtain information
(1) Notwithstanding any law or rule of law to the contrary, the Public Prosecutor, if he has reasonable grounds to believe, based on the investigation carried out under this Act, that an offence under subsection 4(1) has been committed, may by written notice—
(a) require any person suspected of having committed such offence;
(b) any relative or associate of the person referred to in paragraph (a); or
(c) any other person whom the Public Prosecutor has reasonable grounds to believe is able to assist in the investigation,
to furnish a statement in writing on oath or affirmation—
(aa) identifying every property, whether movable or immovable, whether in or outside Malaysia, belonging to him or in his possession, or in which he has any interest, whether legal or equitable, and specifying the date on which each
of the properties so identified was acquired and the manner in which it was acquired, whether by way of any dealing, bequest, devise, inheritance, or any other manner;
(bb) identifying every property sent out of Malaysia by him or on his behalf during such period as may be specified in the notice;
(cc) setting out the estimated value and location of each of the properties identified under subparagraphs (aa) and
(bb), and if any of such properties cannot be located, the reason for it;
(dd) stating in respect of each of the properties identified under subparagraphs (aa) and (bb) whether the property is held by him or by any other person on his behalf, whether it has been transferred, sold to, or kept with any person, whether it has been diminished in value since its acquisition by him, and whether it has been commingled with other property which cannot be separated or divided without difficulty;
(ee) setting out all other information relating to his property, business, travel, or other activities as may be specified in the notice; and
(ff) setting out all his sources of income, earnings or property.
(2) An officer of any financial institution, or any person who is in any manner or to any extent responsible for the management and control of the affairs of any financial institution, shall furnish a copy of all accounts, books, records, reports or documents relating to any person to whom a notice may be issued under subsection
(1).
(3) Every person to whom a notice is sent by the Public Prosecutor under subsection (1) shall, notwithstanding any law or rule of law to the contrary, comply with the terms of the notice within such time as may be specified in the notice, and any person who wilfully neglects or fails to comply with the terms of the notice commits an offence and shall on conviction be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
(4) Every person to whom a notice or direction is sent by the Public Prosecutor under this section shall be legally bound to state the truth and shall disclose all information which is within his knowledge, or which is available to him, or which is capable of being obtained by him.
(5) Where any person discloses any information or produces any accounts, books, records, reports or documents in response to a notice under subsection (1), such person, his agent or employee, or any other person acting on his behalf or under his direction, shall not, by reason only of such disclosure or production, be liable to prosecution for any offence under any law, or to any proceedings or claim by any person under any law or under any contract, agreement or arrangement, or otherwise.
(6) Subsection (5) shall not bar, prevent or prohibit the institution of any prosecution for any offence as provided by this section or the giving of false information in relation to any statement on oath or affirmation furnished to the Public Prosecutor pursuant to this section.
Seizure of movable property in financial institution
(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 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.
(2) A financial institution or any agent or employee of a financial institution shall not, on account of complying with an order of the Public Prosecutor under subsection (1), be liable to any prosecution under any law or to any proceedings or claim by any person under any law or under any contract, agreement, or arrangement, or otherwise.
(3) Any person who fails to comply with an order of the Public Prosecutor under subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding two times the amount which was parted with, dealt in or otherwise disposed of in contravention of the Public Prosecutor’s order or one million ringgit, whichever is the higher, or to imprisonment for a term not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
(4) In this section, “monetary instrument” includes the domestic currency or any foreign currency, travellers’ cheque, personal cheque, bank cheque, money order, investment security or negotiable instrument in bearer form or otherwise in such form that title to it passes upon delivery or upon delivery and endorsement.
Seizure of immovable property
(1) Where the Public Prosecutor is satisfied on information given to him by an investigating officer that any immovable property is the subject-matter of an offence under subsection 4(1) or evidence of the commission of such offence, such property may be seized, and the seizure shall be effected—
(a) by the issue of a Notice of Seizure by the Public Prosecutor setting out the particulars of the immovable property which is seized in so far as such particulars are within his knowledge, and prohibiting all dealings in such immovable property;
(b) by publishing a copy of such Notice in two newspapers circulating in Malaysia, one of which shall be in the national language and the other in the English language; and
(c) by serving a copy of such Notice on the Land Administrator or the Registrar of Titles, as the case may be, in Peninsular Malaysia, or on the Registrar of Titles or Collector of Land Revenue, as the case may be, in Sabah, or on the Director of Lands and Surveys or the Registrar responsible for land titles, as the case may be, in Sarawak, of the area in which the immovable property is situated.
(2) The Land Administrator, the Collector of Land Revenue, the Director of Lands and Surveys, the Registrar of Titles or the Registrar responsible for land titles, as the case may be, referred to in subsection (1) shall immediately upon being served with a Notice of Seizure under that subsection endorse the terms of the Notice of Seizure on the document of title in respect of the immovable property in the Register at his office.
(3) Where an endorsement of a Notice of Seizure has been made under subsection (2), the Notice shall have the effect of prohibiting all dealings in respect of the immovable property, and after such endorsement has been made no dealing in respect of the immovable property shall be registered, regardless whether it was effected before or after the issue of such Notice or the making of such endorsement.
(4) Subsection (3) shall not apply to a dealing effected by an officer of a public body in his capacity as such officer, or otherwise by or on behalf of the Federal Government of Malaysia or the Government of a State, or a local authority or other statutory authority.
(5) Any person who contravenes subsection (2) or (3) or does any act which results in, or causes, a contravention of subsection
(2) or (3) commits an offence and shall on conviction be liable to a fine not exceeding twice the value of the property in respect of which the Public Prosecutor’s order had been contravened, or one million ringgit, whichever is the higher, or to imprisonment for a term not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
(6) Where a Notice of Seizure has been issued under subsection
(1), a registered proprietor of the immovable property which is seized under such Notice, or any other person having any interest in such immovable property, who has knowledge of such Notice, and who knowingly enters into any agreement with any person to sell, transfer, or otherwise dispose of or deal with, the whole or any part of such immovable property, commits an offence and shall on conviction be liable to a fine not exceeding twice the value of such property, or one million ringgit, whichever is the higher, or to imprisonment for a term not exceeding one year or
to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
Special provisions relating to seizure of a business
(1) Where an enforcement agency has reason to believe that any business—
(a) is being carried on by or on behalf of any person against whom prosecution for an offence under subsection 4(1) is intended to be commenced;
(b) is being carried on by or on behalf of a relative or an associate of such person;
(c) is a business in which such person, or a relative or associate of his, has an interest which amounts to or carries a right to not less than thirty per centum of the entire business; or
(d) is a business over which such person or his relative or associate has management or effective control, either individually or together,
the enforcement agency may seize the business in the manner provided under this Part or by an order in writing—
(aa) direct the extent and manner in which the business may be carried on;
(bb) specify any person to supervise, direct or control the business, including its accounts, or to carry on the business or such part of it as may be specified;
(cc) direct that all or any proportion of the proceeds or profits of the business be paid to the Accountant-General and retained by him pending further directions in respect of it by the enforcement agency;
(dd) prohibit any director, officer or employee or any other person from being in any manner involved in the business with effect from the date of the letter of prohibition; or
(ee) direct that the premises where the business was carried on to be closed and, if necessary or expedient, placed under guard or custody.
(2) Where an order is made by an enforcement agency under subsection (1), it may include in the order, or may subsequently give any further direction orally or in writing of an ancillary or consequential nature, or which may be necessary, for giving effect to, or for the carrying out of, the order.
(3) An order under subsection (1) may at any time be varied or revoked by an enforcement agency and where it so varies or revokes the order, it 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 variation or revocation.
(4) Subject to subsection (5), neither the Federal Government nor any person shall, in consequence of any order under subsection
(1) be responsible for the payment of any money, dues, debts, liabilities or charges payable to any person in respect of the business, or in respect of any movable or immovable property owned, possessed, occupied or used, by any person in relation to the business.
(5) Where a person is carrying on any activities of the business in pursuance of an order under subsection (1), he shall be responsible for the payment of the wages of such employees of the business as are engaged in performing any work in relation to those activities for the period during which such person carries on those activities and such wages shall be paid out of the profits derived from such activities or, if there are no such profits or if such profits are insufficient, from the assets and the properties of the business.
(6) In this section—
(a) “wages” means the wages payable under the contract of employment between the employee and the business;
(b) “business” means any business registered under any written law providing for the registration of businesses and includes a corporation incorporated or registered under the Companies Act 1965 and an associate of that company as defined in section 3.
Prohibition of dealing with property outside Malaysia
Where the Public Prosecutor is satisfied that any property is the subject-matter of an offence under subsection 4(1) or was used in the commission of the offence, and such property is held or deposited outside Malaysia, he may make an application by way of an affidavit to a Judge of the High Court for an order prohibiting the person by whom the property is held or with whom it is deposited from dealing with the property.
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 subsections 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, judgement or decree, regardless whether such claim was made, or such judgement 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.
Forfeiture of property upon prosecution for an offence
(1) Subject to section 61, in any prosecution for an offence under subsection 4(1), the court shall make an order for the forfeiture of any property which is proved to be the subject-matter of the offence or to have been used in the commission of the offence where—
(a) the offence is proved against the accused; or
(b) the offence is not proved against the accused but the court is satisfied—
(i) that the accused is not the true and lawful owner of such property; and
(ii) that no other person is entitled to the property as a purchaser in good faith for valuable consideration.
(2) Where the offence is proved against the accused but the property referred to in subsection (1) has been disposed of, or cannot be traced, the court shall order the accused to pay as a penalty a sum which is equivalent to, in the opinion of the court, the value of the property, and any such penalty shall be recoverable as a fine.
(3) In determining whether the property is the subject-matter of an offence or has been used in the commission of an offence under subsection 4(1) the court shall apply the standard of proof required in civil proceedings.
Forfeiture of property where there is no prosecution
(1) Subject to section 61, where in respect of any property frozen or seized under this Act there is no prosecution or conviction for an offence under subsection 4(1), the Public Prosecutor may, before the expiration of twelve months from the date of the freeze or seizure, apply to a judge of the High Court for an order of forfeiture of that property if he is satisfied that such property had been obtained as a result of or in connection with an offence under subsection 4(1).
(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 the subject-matter of or was used in the commission of an offence under subsection 4(1); 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 or not the property has been obtained as a result of or in connection with an offence under subsection 4(1), the court shall apply the standard of proof required in civil proceedings.
Validity of freeze, seizure or sale
Where the freeze, seizure or sale of any property has been effected under this Act, the validity of such freeze, seizure or sale, or other form of disposal of such property, or of any destruction of the property in accordance with the provisions of this Act, in consequence of such freeze, seizure or sale, shall not be affected by any objection to it relating to the manner in which the freeze, seizure or sale was effected, or the place at which it was effected, or the person from whom it was effected, or the person to whom any notice of the freeze, seizure or sale was given, or omitted to be given, or any failure to conform to any procedural provision of this Act or of any other written law in effecting the freeze, seizure or sale.
Vesting of forfeited property in the Federal Government
(1) Where any property is forfeited under this Act, the property shall vest in the Government free from any right, interest or encumbrance of any person except a right, interest or encumbrance which is held by a purchaser in good faith for valuable consideration and which is not otherwise null and void under any provision of this Act.
(2) Where any person who holds any encumbrance to which the property is subject claims that he holds the encumbrance as a purchaser in good faith for valuable consideration and that the encumbrance is not otherwise null and void under any provision of this Act, and the Federal Government disputes such claim, the Public Prosecutor may apply to the Sessions Court to determine the question and the court shall determine the question after giving an opportunity to be heard to the person holding the encumbrance and hearing the reply of the Public Prosecutor to any representations which may be made before that court by the person holding the encumbrance.
(3) Where any property is vested in the Federal Government under subsection (1), the vesting shall take effect without any transfer, conveyance, deed or other instrument and where any registration of such vesting is required under any law, the authority empowered to effect the registration shall do so in the name of such public officer, authority, person or body as the Public Prosecutor may specify.
(4) Where the property vested in the Federal Government under subsection (1) is immovable property, the vesting shall upon production to the Registrar of Titles or the Land Administrator, in Peninsular Malaysia, or to the Registrar of Titles or the Collector of Land Revenue, in Sabah or the Registrar of Titles or the Director of Lands and Surveys, as the case may be, in Sarawak of the order of the court forfeiting the immovable property, or in the case of property forfeited under subsection 55(1), a certificate of the Public Prosecutor certifying that it has been forfeited, be registered in the name of the Federal Lands Commissioner.
Pecuniary orders
(1) Upon application by an enforcement agency to a Sessions Court, a pecuniary penalty order may be made against a person from whom property is forfeited in respect of benefits derived by the person from the commission of an offence under subsection 4(1).
(2) Where—
(a) an application is made to a court for an order under subsection (1) in respect of benefits derived by a person from the commission of an offence under subsection 4(1); and
(b) the court is satisfied that the person derived benefits from the commission of that offence,
the court may, if it considers it appropriate, assess in accordance with the manner prescribed by the Minister of Home Affairs by order published in the Gazette, the value of the benefits so derived and order that person to pay to the Federal Government a pecuniary penalty equal to the amount.
(3) Where a forfeiture order has been made under sections 55 and 56 against any property that is proceeds of an offence under subsection 4(1), the pecuniary penalty to be paid under subsection
(2) shall be reduced by an amount equal to the value of the property as at the time of making the order under subsection (2).
(4) In determining whether or not any benefit is derived from an offence under subsection 4(1) the court shall apply the standard of proof required in civil proceedings.
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, release such property to such person as he determines to be lawfully entitled to the property if he 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.
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 section 55 or the judge to whom an application is made under subsection 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.
(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) 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.
Disposition of forfeited property
Whenever property that is not required to be destroyed and that is not harmful to the public is forfeited under section 55 or 56, the court or an enforcement agency may, in accordance with the law—
(a) retain it for official use, or transfer it to the Federal Government; or
(b) sell it and transfer the proceeds from such sale to the Federal Government.
Absconded person
(1) For the purposes of this Act, a person shall be treated as if he had been convicted of a serious offence if the person absconds in connection with a serious offence and any reference in this Part to the defendant shall include a reference to such person.
(2) For the purposes of subsection (1), a person shall be treated as if he had absconded in connection with a serious offence if, before or after the commencement date—
(a) an investigation for a serious offence has been commenced against the person; and
(b) the person—
(i) dies before proceedings in respect of the offence were instituted, or if such proceedings were instituted, the person dies before he is convicted of the offence; or
(ii) at the end of the period of six months from the date on which the investigation referred to in paragraph
(a) was commenced against him, cannot be found, apprehended or extradited.
Forfeiture order where person has absconded
Where a person is, by reason of section 63, treated as if he had been convicted of a serious offence, a court may make a forfeiture order under this Part if the court is satisfied—
(a) on the evidence adduced before it that, on the balance of probabilities, the person has absconded; and
(b) having regard to all the evidence before the court, that such evidence if unrebutted would warrant his conviction for the offence.
Effect of death on proceedings
(l) Proceedings under section 64 shall be instituted or continued against the personal representatives of a deceased defendant or, if there are no personal representatives, such beneficiary of the estate of the deceased defendant as may be specified by the court upon the application of the Public Prosecutor.
(2) Where the power conferred by this Act to make an order is to be exercised in relation to a deceased defendant, the order shall be made against the estate of the deceased defendant.
(3) In this section, “deceased defendant” means a person who dies—
(a) after an investigation into a serious offence has been commenced against him; and
(b) before proceedings in respect of the offence have been instituted, or if such proceedings have been instituted, before he is convicted of the offence.
(4) In this section, a reference to property or interest in property shall include a reference to income accruing from such property or interest.
Service of documents on absconders
Where any document is required under this Act to be served on a person who cannot be found or who is outside Malaysia and cannot be compelled to attend before a court in respect of proceedings under this Act, the court may dispense with service of the document upon him and the proceedings may be continued to their final conclusion in his absence.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
