Joint hearing for OBYU, third party in RM680m forfeiture claim

Friday 26 Apr 2024

KUALA LUMPUR (July 31): OBYU Holdings Sdn Bhd, against whom the government has filed a civil forfeiture suit claiming RM680 million worth of assets said to be acquired with 1MDB funds, has decided not to object the gazetting of the forfeiture notice for third-party claims.

However, hearing for the claims against OBYU will be jointly heard with any third party seeking to claim the assets, High Court judge Justice Collin Lawrence Sequerah ruled during case mention today.

This follows an application by the defence for the third-party claim — stipulated under section 61 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) — to be conducted before OBYU defends its case.

Recall that while OBYU concurred that it is the landlord of the apartment unit which housed the seized assets, it has denied interest in the said assets.

Defence counsel Datuk Kamarul Hisham Kamaruddin argued that before OBYU can be found liable for anything, the prosecution has to prove all the assets were indeed purchased from unlawful sources.

This, he said, can only be determined during proceeding involving third parties that would claim the assets.

Describing it as "unique circumstances" of the case, Kamarul Hisham argued that "whoever is the owner of the property will not be able to credibly deny the matters in respect to the origin".

Instead, that can be done by the eventual third-party claimant, he said, adding that the way to go is to have any eventual third party heard first, before OBYU appears to defend its case under Section 56 of AMLA.

"It is quite clear they [prosecution] have gotten the wrong respondent. What that means will only [unfold] when the proper hearing of the application begins. They will have to stand or fall on what they have chosen," he added.

In a nutshell, Section 56 of the Act says that a forfeiture order against a respondent can only be made when the assets are tied to offences conducted under Section 4(1) of the same Act.

Meanwhile, Section 61(4) underlines that the court shall return the seized assets to third-party claimant when it is found that the claimant has a legitimate interest, is not involved in AMLA offences, and is not intentionally ignorant/did not consent to illegal use of its property.

"We will not object issuance of the gazette and the third-party notice," said Kamarul Hisham. "But the only way to solve this riddle is to have the third parties… who will have to now appear as if they are [the respondent]. Only after that determination is done, can OBYU defend [against the forfeiture]."

Recall that on Jan 31, 2019, the police have seized assets within a property owned by OBYU comprising cash, jewellery, luxury handbags, watches and other accessories. Together with the property Lot PT 80, Subsection 63 in Kuala Lumpur, the seizure carries an eventual sum of RM680 million.

The prosecution is represented by deputy public prosecutor Harris Ong Mohd Jeffery Ong. Also representing OBYU alongside Kamarul Hisham is Datuk Mohd Yusof Zainal Abiden.

Justice Sequerah set Sept 3 for next case mention for the gazette of the third-party claims notice. Meanwhile, hearing is on Oct 31.

MACC's RM270m civil forfeiture suit progressing

For a separate forfeiture claim of nearly RM270 million across 41 respondents by the Malaysian Anti-Corruption Committee (MACC) — also for funds allegedly from 1MDB — one of the respondents, Liberal Democratic Party will file a representation to the prosecution on the matter by Aug 19.

Should the representation be rejected, hearing before Justice Sequerah is set on Oct 18, said its lawyer Datuk Jagjit Singh Bant Singh.

MACC is claiming RM509, 560.96 from the Sabah-based political party.

Another respondent, Umno Johor liaison committee — which is facing a claim of RM677,872.55 — will file an affidavit in reply in relation to the application by the prosecution by Aug 19, said its lawyer Mohd Haziq Dhiyauddin Razali.

Justice Sequerah also set Sept 4 for prosecution to file its affidavit in support, and for case mention on the gazette of the third-party claims notice. Hearing is set on Oct 4, Mohd Haziq added.

Meanwhile, before High Court deputy registrar T Kavita, Jakel Trading Sdn Bhd has indicated to the prosecutor it may object to the forfeiture action.

The company's lawyer Thevini Nayagam said she had to seek further instructions regarding this but indicated it may object to the forfeiture. "The court has fixed Sept 4, for further case management," she said.

Deputy Public Prosecutor Farah Yasmin Salleh from the MACC agreed, but said nothing is finalised yet with regard to Jakel.

Farah also said the case management involved three other defendants, namely Pahang MCA liaison committee, Hatatex Trading and Aga Touch (M) Sdn Bhd.

She said that for MCA the court has fixed Sept 4 for case management and two days earlier, Sept 2, for the political party to reply to the notice of forfeiture.

"Hatatex and Aga Touch case management has been fixed on Aug 28," she said. Aga Touch's lawyer Nur Fazreen Hazrina also confirmed this as with MCA lawyer Ken Low.

Like Jakel, Hatatex is a textile store based in Jalan Tuanku Abdul Rahman while Aga Touch is a multiple business solution platform company that manages big data.

The MACC is seeking RM11.38 million from Jakel, RM111,590 from Hatatex, and some RM3 million from Aga Touch.

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