This article first appeared in The Edge Financial Daily on February 20, 2020

KUALA LUMPUR: OBYU Holdings Sdn Bhd, which is owned by businessman Tan Sri Bustari Yusof, raised a preliminary objection in the High Court here yesterday against the government’s forfeiture notice, arguing that it is defective.

Its lawyer Datuk Kamarul Hisham Kamaruddin said the notice only allows third parties to challenge the forfeiture, not OBYU.

“The application should have been made under Section 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AmlatfpuaA).

“However, it only invites the court to make the order under Section 61 of the AmlatfpuaA. The notice is therefore defective as the plaintiff is seeking the court jurisdiction wrongly and hence the notice should be dismissed,” he said.

The lawyer added that the defect in the notice cannot be cured by the calling of the third parties staking the claim. Kamarul Hisham, who appeared together with Datuk Mohd Yusof Zainal Abiden, said the forfeiture action under Sections 56 or 61 of AmlatfpuaA is also against Article 13 of the Federal Constitution.

Article 13 stipulates “No person shall be deprived of property save in accordance with law”.

Meanwhile, Section 56 of AmlatfpuaA states that subject to Section 61, where there is no prosecution or conviction for money-laundering offences in relation to the property seized, the public prosecutor may apply for an order of forfeiture of the property seized from a High Court judge if they are satisfied that it was from illegal proceeds, within 12 months from the date of the seizure or freezing order.

The government wants to seize the apartment in Pavilion, Kuala Lumpur along with items found in the venue that include close to 12,000 pieces of jewellery and cash said to be worth RM680 million.

The forfeiture notice was filed after the police raided several properties in Pavilion and Putrajaya, where some of the items were seized.

Kamarul Hisham said that for forfeiture, all procedures must be strictly complied with, and in this notice and others, it had not been complied with.

He further invited the court to rule on this issue first before hearing the other two preliminary objections.

Following this, Mohd Yusof asked Justice Datuk Muhammad Jamil Hussin whether the court wants him to submit on the two other preliminary objections made by OBYU before deciding to rule on the matter.

Justice Muhammad Jamil said he would decide on this particular issue first and hear the two preliminary objections later.

Deputy Public Prosecutor Muhammad Shukri Hussain said he needed time to reply to the preliminary objections raised by Kamarul Hisham as he had raised a constitutional issue.

Justice Muhammad Jamil fixed March 11 to hear the prosecution’s reply. The judge also fixed the same date to hear an application of discovery from former prime minister Datuk Seri Najib Razak and his wife Datin Seri Rosmah Mansor to view the items seized from OBYU’s premises and also a similar application by Lebanese firm Global Royalty Trading SAL.