Bank Negara Malaysia (BNM) raided Genneva Malaysia Sdn Bhd (GMSB) 1st October 2012, taking away Gold and RM CASH for the so-called “Investigation into the six (6) accusations.”
Q 1: So, after five (5) long fatal suffering months, till to-date, no charge has been made against GMSB, legally, why can’t BNM release all Gold and RM CASH back to GMSB directly?
To answer this question and to understand it, let’s look at the law under AMLATFA 2001.
Section 44 AMLATFA, subsection (1) states: 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) or a terrorism financing offence has been, is being or is about to be committed by any person, it may issue an order freezing any property of that person or any terrorist property, as the case may be, wherever the property may be, or in his possession, under his control or due from any source to him.
Section 44 AMLATFA, subsection (5) states: 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 or a terrorism financing offence, as the case may be.
Section 50 AMLATFA, subsection (1) states: 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 a terrorism financing offence or evidence in relation to the commission of such offence or which is terrorist property, 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.
Section 56 AMLATFA, subsection (1) states: 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) or a terrorism financing offence, 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) or a terrorism financing offence, as the case may be, or is terrorist property.
Answer: The Public Prosecutor (through the AG’s office) has the right to hold the gold and money of GMSB for 12 months from the date of the freeze or seizure (i.e. 1-10-2012).
Q 2: Why the Gold and RM CASH have to be recovered from BNM through the Malaysian Court?
Answer: Because we cannot just walk into BNM and demand the seized gold and cash to be returned back to us. Only way is to file a case of Judicial Review (JR) against BNM so that the court may make a decision giving rise to an appropriate order to be given to compel BNM to do according to the terms specified in the court order.
Q 3: If JR is not a lawsuit nor a litigation case, what is it?
Answer: JR is a special relief of the court and hence the court that has the power to deal with JR is the High Court (Special Powers) of the Appellate Division. Whereas for a normal lawsuit or litigation case (or sometimes know as a summons case), the court that deals with such cases would be the Civil Division. See the difference? Therefore even the time frame taken to dispose each case is so much different between the two court divisions. JR may take only a matter of few months and a summons case may take a few years.
Q 4: Is JR the standard and effective course of action through the Malaysian Court where the Malaysian public can act against parties that have done wrong, even the National Banking Giant BNM?
Answer: JR is pretty much the standard and effective course of action if you want to take a governmental authority to court for suspected abuse of power or exercise of bad faith or mala fide in making a policy or decision. Therefore JR is a means for the judiciary to perform checks on the government (i.e. those holding the executive power). It primarily is concerned with the legality of the decision-making process of the government. It is not concerned with the merits of the decision. Hence if the authority acts against or fails to act according to the will of Parliament (through the Acts of law), it is therefore said to be acting ultra vires (i.e. beyond its powers) and is unlawful. If so the court will interfere by reviewing the decision to determine the lawfulness of the decision, actions or omission.
Q 5: Even if the Malaysian Court grants the Gennevarians JR application, what can be expected from the outcome of the JR? Can Gennevarians get back all Gold & RM CASH through GMSB?
Answer: There are three grounds for judicial review, namely illegality, unreasonableness or irrationality, and procedural impropriety. Once the court has identified and found the authority to be guilty on either one of the said grounds, the court has vast powers to deal with the offending authority. Once a JR court action is successful, the court may decide the raid and seizure by BNM to be unlawful and amongst the orders which it is empowered to give are damages, injunction, declaration and etc.
Q 6: Why the JR has to be applied by Gennevarians and not GMSB?
Answer: It must be clear that any party who is directly affected by the BNM’s action can take action. This need not be exclusively for GMSB to take first or Gennevians to do so. Either way, the applicant to the action must satisfy the condition of Locus Standi. Locus Standi means a person who is directly an aggrieved person as a result of the authority’s unjust action and that he has the standing in court to bring such an action against the offending party. It may not preclude GMSB to bring a case of JR against BNM even though Gennevians have done so earlier but so long as it is done within time (i.e. not being time barred).
Q 7: Would the JR applied by GMSB be more effective and proper?
Answer: A JR is a JR, it does not matter who is more effective and proper to bring the case up. So long as the applicant must bear in mind that he must satisfy the locus standi test. Of course GMSB being the direct aggrieved party to the raid is the best case scenario since its locus standi cannot so much be disputed.
Q 8: After five (5) long miserable months, what is the STAND of GMSB towards safe-guarding all Gennevarians’ interests?
Answer: It is pretty much anyone’s presumption that a company doing so well since its inception in 2009/2010 would not only safe-guard all Gennevians’ interest but most of all its own interest since it is the one who has most to lose considering its wide customer/consultant network base that spans throughout the whole of Malaysia. The ability and effort of the HelpDesk that was so quickly established throughout the country is a fine example of how strong that network can be which the company has so painstakingly built up over those years.
Q 9: Again, if JR is not a lawsuit nor a litigation case, will there be court hearings?
Answer: Being a court case, there will of course be court hearings, even for JR. But the case will be inter parte in chambers so there will be no witnesses called and all statements of parties would be done by way of affidavits (i.e. sworn statements).
Q 10: Again, if JR is not a lawsuit nor a litigation case, what is the expected cost on legal fees?
Answer: The expected cost on legal fees can vary substantially between one lawyer to another. It also depends on whether Gennevarians want to go all out for the case or cease all action when we fail to obtain leave of the court to proceed with JR. To “open” the file, one can expect anything between RM20k – RM50k and full disposal of the case from RM300k – RM800k or more. But it is important for Gennevarians to realize what is the purpose and expectations of the JR action as contrast to the final outcome of the case (i.e. winning or losing it).
Q 11: Again, if JR is not a lawsuit nor a litigation case, what is the expected period or duration of this JR?
Answer: Read answer to Q3 above.
Q 12: So, by making the Police Report and paying RM50.00 each, does it mean whatever happens, Gennevarians can recover all MONIES?
Answer: All Genevarians must be prepared to realize (and aware with eyes open) that JR is not an instant elixir or even a silver bullet to get instant and guaranteed result. It does not mean that we are assured to get back all our gold and monies from BNM because there is never a sure win in any court battle. However what is damned sure is that we Gennevarians are not going down quietly. If at all we go down, we will bring those Little Napoleons in BNM as well as the ruling government BN down with us.
FAQ on JR – Chinese version
即使马来西亞允许Gennevarians 的司法审查申请案成立，我们预期从此立案得到什么结果呢？ 是否我们可以从金玉华公司取回所有黄金和马币现金呢？
答：作为一个法庭案件，当然司法审查亦不例外，也有法庭听证会。但是此案件将是内部单方面inter parte 法庭，所以没有传喚证人且所有证词將通过誓章方式（affidavits)，即宣誓证词。
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