The cases in court against Rosmah, was allegedly based ala Trial by Media on building up public perceptions against former Prime Minister Najib Tun Razak, in particular, as he seeks freedom from arbitrary detention as political prisoner!
Commentary And Analysis . . . Attorney General (AG) Tan Sri Ahmad Terrirudin Mohd Salleh, based on court reporting, remains undecided on three letters of representation, on the same matter, from Datin Seri Rosmah Mansor. She faces 17 charges in criminal court. Twelve charges cover money laundering involving RM 7,097,750.
Five related charges mention “failure on declaring her income to the Inland Revenue Board (IRB) between 4 December 2013 and 8 December 2017”. The IRB in fact has its own court on such matters. Instead, it’s the AG who was going after Rosmah for purported non-declaration of income.
The AG, at the same time, finds himself in Gridlock on the charges in criminal court, based ironically on the content in the three letters of representation. Checkmate!
There’s no Way Forward.
Rosmah
The cases in court against Rosmah in court, was allegedly based ala Trial by Media on building up public perceptions against former Prime Minister Datuk Seri Najib Tun Razak, in particular, as he seeks freedom from arbitrary detention as political prisoner. The Trial by Media, against the inseparable duo, began even before GE14 on 9 May 2018 when Najib wasn’t invited, in breach of convention and Protocol, on first right on formation of government.
Najib
Rosmah and Najib were allegedly being smeared in Court on various charges. The AG’s Discretion, under Article 145, does not exist if abuse of power can be proven. There’s case law on the matter from Raja Azlan Shah and, more recently, Asian Arbitration. The Federal Court found that AG Tan Sri Tommy Thomas had abused power, under the guise of Article 145, in the Asian Arbitration case.
Civil Action
It’s clear, if the money exists, why the AG did not file civil action against Rosmah and freeze, seize and forfeit money laundering assets, and “secret profits” if any, as state revenue.
Under the Definition of money laundering in international law, read applicable by national law, no other proof was necessary other than that in the form of money laundering assets. The RM7,097,750 covered by 12 charges, being too small, does not meet the criteria under money laundering for civil action.
Money Laundering
The elephant in the room: the Definition of money laundering.
Money laundering stands Defined under international law, national law reading compliant, as having capital far in excess of what can be legitimately accumulated during lifetime.
The three letters of representation aren’t based on the simplistic “I am innocent” Mantra. They are based on the charges that the AG brought and the words in his own cause papers.
Meanwhile, as AG stays silent, Rosmah presses on with bid to strike out money laundering and tax evasion charges.
At the onset of the 04 July hearing, Rosmah’s lawyer Amer Hamzah Arshad informed High Court Judge K. Muniandy that the defence consequently wished to proceed with its application to strike out all the 17 charges against her.
“There is no answer as of today (on the representation). We do not wish to delay the matter. We will proceed with the submission (to strike out the charges),” he said.
Verbatim
We reproduce below, verbatim, the words implied from the “Executive Summary On Legal Issues Relating To The Charges”:
CONCLUSION
- Based on the foregoing, the Applicant prays that the charges brought by the Respondent against the Applicant be struck out and an order of acquittal and discharge be recorded in favour of the Applicant.
Curable
V. WHETHER THE DEFECTS IN THE CHARGES ARE CURABLE
- As the issues raised above on the charges against the Applicant relate not only to the material particulars but also directly to the element of the offence charged, the defects in the charges are incurable by sections 156 and/or 422 CPC (see Ravindran a/l Ramasamy (supra); Ahmad Hatta bin Kamaruzzaman v Public Prosecutor [2023] 1 LNS 1028).
- A charge which is bad for duplicity and therefore defective is also incurable by section 422 CPC, and this ground alone suffices to earn the accused person an acquittal (see Sam Ke Ting lwn Pendakwa Raya [2023] 4 MLJ 650). Since objection has been taken prior to the commencement of the trial, sections 156 and/or 422 CPC are also not applicable (Anuar bin Ghazali v Public Prosecutor [2021] 2 CLJ 245).
(See: Item E (V), paragraphs 97 to 102, pages 80 to 84 of the Applicant’s Outline Written Submissions).
Predicate Offence
FAILURE TO STATE THE PREDICATE OFFENCE IN THE 1ST TO 12TH CHARGES
- Under section 3 AMLATFA/AMLATFPUA, “unlawful activities” include, among others, any activity which constitutes a “serious offence”, also known as predicate offence i.e. offences from which the proceeds flowed or originated. “Serious offence” in turn means any of the offences (close to 300 offences) listed in the Second Schedule of AMLATFA/AMLATFPUA and includes any attempts or abetment of such offences.
- While it is not denied that money laundering is a stand-alone offence and that neither a charge relating to the commission of the predicate offence nor a conviction for the predicate offence is mandatory, it is nevertheless submitted that predicate offence is one of the most important features in money laundering offences which existence must be identified and proven in proceedings relating to money laundering (see Kuala Dimensi (supra)).
- Our reasonings are elaborated below.
- Firstly, AMLATFA/AMLATFPUA primarily concerns the proceeds of unlawful activities and the transacting or dealing of such proceeds, and predicates offences are precisely the very offences from which these proceeds flowed or originated.
- Secondly, without specifying the predicate offence, an accused person would be prejudiced by having to guess which of the hundreds of offences would form the basis
of the charge against him. - Thirdly, as money laundering is not a strict liability offence and therefore mens rea must be proven, it is vital that the predicate offence be stated in the charge to give the accused person sufficient notice about the allegation against him. Moreover, the mens rea element is crucial and implicit in the offence of money laundering itself as could be seen in section 3 AMLATFA (under the definition of “money laundering”) and section 4(2) AMLATFPUA, whereby inference on an accused person’s state of mind is permitted to be drawn. If the accused person has no knowledge, has no reason to believe or suspect that the property was the fruits of unlawful activity, no offence of money laundering can be said to be committed by him. The prejudice on an accused person resulting from a failure to state the predicate offence in a charge can be observed in the following scenario:
A is charged with a money laundering offence whereby monies forming the subject matter of the charge was alleged to be proceeds from unlawful activity i.e. drug trafficking activities committed by B. In defending the charge, A can adopt at least three approaches which are not exclusive to each other:
i) To show that the monies came from legitimate sources;
ii) To show that he did not know or believe or had suspicion that the monies did not come from illegitimate sources, for e.g. that A knew B has a successful textile business, and that he honestly and reasonably believed that the monies did not flow from any drug trafficking activities; and/or
iii) To show that, if indeed B was involved in drug trafficking activities, the proceeds of such drug trafficking activities were in fact channelled to other accounts.
As such, if the money laundering charge omits to particularise the predicate offence, A would be deprived of the opportunity to raise, prepare and put forth an effective defence as per items (ii) and (iii) above, for e.g. to obtain or gather evidence to show that the proceeds of drug trafficking activities were in fact gambled away by B. This clearly affected A’s right to a fair trial.
- On the other hand, the prosecution will not be prejudiced by having to state the predicate offence in the charges since they have already had access to the investigation papers which would have disclosed and identified the relevant predicate offence. Any refusal or reluctance to state the predicate offence would only demonstrate their uncertainty on whether such offence had in fact been committed.
- Furthermore, the case of Abdul Azeez bin Abdul Rahim lwn Pendakwa Raya [2022] 6 MLJ 909 which affirmed that predicate offence does not need to be specified in a charge shall be distinguished from the present case on the following grounds:
i) The accused in Abdul Azeez (supra) was already charged with the predicate offences along with the money-laundering offences whereas the Applicant is not.
ii) The lack of particularisation in respect of the predicate offence for the 1st to 12th charges creates a confusion as to whether there are overlapping offences with the 13th to 17th charges.
iii) The predicate offence in the 1st to 12th charge is vital to ascertain whether the MACC had investigated and pursued prosecution against the Applicant rightfully.
iv) In the event that the 13th to 17th charges were predicated on the offence under section 112 ITA, it would be perplexing why the predicate offence could be specified in the said charges but not in the 1st to 12th charges.
Prejudicial
- Following the above, it is submitted that the lack of clarity in the 1st to 12th charges caused by insufficient notice about which unlawful activities the proceeds were alleged to be involved in is prejudicial to the Applicant as it hampers her ability to comprehend the true nature of the offence she is being accused of and impedes her ability to prepare a thorough defence prior to the commencement of the trial (see Pendakwa Raya v Genneva Sdn Bhd & Ors [2016] MLJU 1833).
(See: Item E (IV), paragraphs 85 to 96, pages 73 to 79 of the Applicant’s Outline Written Submissions).
We rest the case. — NMH
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Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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