By Hasnah Rahman | New Malaysia Herald
Defence counsel for former First Lady Datin Seri Rosmah Mansor, Amer Hamzah Arshad today presented the grounds for the 17 charges brought on her under the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA/AMLA) and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUA/AMLA) to be struck out and for her to be acquitted and discharged.
The defence ascertained that the charges failed to disclose a money laundering offence under section 4 AMLATFA and section 4 AMLATFPUA as there were no transaction disclosed in the charges, no “unlawful activity” or predicate offence committed and there were no proceeds of unlawful activity disclosed in the charges.
In addition, Amer said that the charges were confusing, the Malaysian Anti-Corruption Commission (MACC) had acted ultra vires and the defects in the charges are incurable while the first to 12th charges failed to state the predicate offence.
Rosmah charged with AMLA offences in 2018
Rosmah was charged with the offences on Oct 4, 2018, but the trial began on Aug 24 this year before Judge K. Muniandy.
Rosmah had earlier said she was charged on the allegation that she did not file her income tax returns as required under the Income Tax Act 1967 and as such committed offences under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA).
“There was no order or demand from the Inland Revenue Board (LHDN) and I did not violate AMLA,” she said.
Rosmah, who is the wife of former Prime Minister Datuk Seri Najib Razak, filed the notice of motion to be acquitted and discharged of all the 17 charges against her on Oct 4, 2020.
“It is an elementary principle of criminal law that a charge must contain all the essential ingredients of the offence and necessary particulars to provide sufficient notice to the accused person relating to the offence he is being charged with and to enable him to prepare his defence effectively,” disclosed Amer.
He added that both offences of money laundering under the said sections share the same basic features as follows:
- There must exist an unlawful activity or predicate offence;
- There must be proceeds flowing or generated from such unlawful activity;
- The accused had engaged in a transaction involving such proceeds of unlawful activity; and
- There must be knowledge/reason to believe on the part of the accused that the property(ies) concerned are proceeds of unlawful activity.
No transaction disclosed
Amer submitted that the particulars stated in the charges clearly fell short of disclosing any transaction within the meaning of AMLA as they neither show any dealing with the proceeds or movement of funds of more than one person, nor contain any details with regards to any transaction for e.g. which account, persons involved – to and from whom etc. They also concern the sole act of the Applicant without the involvement of any other persons.
He particularly pointed out the reference to the recent case against Tan Sri Muhammad Shafee Abdullah.
“Interpretation of the word transaction must be in accordance with the definition provided in section 3 AMLATFA and AMLATFPUA (see Muhammad Shafee (supra)). Taken together with its dictionary meanings, the transaction envisaged under the scheme of AMLATFA and AMLATFPUA must necessarily include some sort of dealing with the proceeds or movement of funds which may include the involvement of more than one person.
“Such requirement is not without basis given that money laundering offences involve the action of disguising dirty money, which are usually done by putting the illicit money into other accounts not normally associated with the criminal to separate the illicit money from its source, prior to integrating it back to the criminal via the ‘placement, layering and integration’ stages.” he added.
Earlier this morning, Rosmah, via her other counsel, Firoz Hussein Ahmad Jamaluddin has issued a third representation for the Attorney General to withdraw the 17 money laundering and tax evasion charges against her. He informed the Kuala Lumpur High Court about the latest letter of representation sent to the Attorney General’s Chambers (AGC).
“There have been some developments. The most important is that a new representation has gone to the AG regarding this matter.
“It is an important representation as many legal arguments have been taken up in submissions.
“The new representation touches on and concerns many of the arguments which are now before your Lordship,” Firoz added.
The lawyer then applied for today’s striking-out hearing to be postponed to another date to not only give the AG time to consider the representation but also due to how the representation touches on multiple grounds cited by the nullification bid.
Deputy Public Prosecutor Ahmad Akram Gharib then confirmed that they have no objections to the postponement bid, adding that he just received the representation yesterday.
The prosecutor said he needs time to brief the AG over the matter.
However, Muniandy did not allow the postponement bid, thus leading to the resumption of hearing of the striking out application by Rosmah.
No assessment request
In an earlier report, Rosmah had said that the charges are basically based on the fact that she allegedly failed to file the income tax return required under section 77(1) of the Income Tax Act 1967 (Act 53), which is contrary to section 112 of the Income Tax Act 1967.
“At the material time, the IRB Director General has never submitted to me any assessment, request, and demand as provided under the Income Tax Act which makes the amounts chargeable,” she said.
Rosmah claimed that only the Special Commissioners of Income Tax (SCIT) have the right to decide whether the amount is taxable and not the courts.
“If the criminal court should proceed to make any such determination, it will be usurping SCIT’s function.
“I have a substantive and constitutional right to be treated fairly and I have a substantive legal right under Part VI of the Income Tax Act to submit an appeal against any assessment made by the IRB which is clearly denied to me in this case,” she said.
She allegedly committed the offences at Affin Bank Berhad, Bangunan Getah Asli branch, Jalan Ampang here between Dec 4, 2013 and June 8, 2017, and at LHDN Kompleks Bangunan Kerajaan, Jalan Tuanku Abdul Halim here between May 1, 2014 and May 1, 2018.
The trial of the case started last Aug 24 and two witnesses had testified.
Today’s trial was adjourned before lunch time, to be continued with the defence striking out application on Jan 16 and 17, 2024.