Can a civil action be instituted against a party after who just had its property seized under AMLA?
Can a party institute a civil action against an offending party after the offending party’s assets and properties are seized under AMLA? This question was briefly analyzed and dealt with in Protasco Bhd v PT Anglo Slavic Utama & Ors, which we will briefly have a look at in this article.
Brief facts of the case
Protasco instituted a suit against its former directors who had fraudulently caused Protasco to enter into a transaction to acquire shares from PT Anglo in return for rights to develop and produce oil and gas in Indonesia.
The plan did not materialize and Prostasco suffered loss as a result of this.
This matter was fought on multiple fronts, involving both civil and criminal suits under section 131 (1) of the (repealed) Companies Act, section 181, 409, and 420 of the Penal Code. The former directors’ assets and properties were also seized and forfeited under AMLA.
On the civil front, the court tackled a preliminary question i.e. whether section 54 (3) imposes a general restriction to all suits or whether it is specific only to those suits involved in the seizing exercise under section 54 (3) of AMLA.
What does the law say?
Section 54 (3) states that:
“For so long as a seizure of any property under this Act remains in force. no action. suit or other proceedings of a civil nature shall be instituted, or if it is pending immediately before such seizure. be maintained or continued in any court or before any other authority in respect of the property which has been so seized, and no attachment, execution or other similar process shall be commenced, or if any such process is pending immediately before such seizure, be maintained or continued, in respect of such property on account of any claim, judgment or decree, regardless whether such claim was made, or such judgment or decree was given, before or after such seizure was effected, except at the instance of the Federal Government or the Government of a State, or at the instance of a local authority or other statutory authority, or except with the prior consent in writing of the Public Prosecutor.”
The why behind the what
In coming to its decision, it was noted that section 54 (3) does not impose a general restriction to all suits. In its analysis, the court relied on the Court of Appeal case of Genneva Malaysia Sdn Bhd v Tio Jit Hong & Ors, which says:
“Be that as it may, having referred to the cases cited related to the issue, we were more inclined to agree with Mohamad Arif Yusof J in Dato’ Zahari Sulaiman v Geneva Sdn Bhd (supra) which in our view is the correct interpretation of section 54 (3). His Lordship in allowing summary judgment to be entered explained that section 54(3) of AMLA cannot be read the way the defendant wants it to be read, for to do so will interfere with the general fundamental right of a citizen to resort to the court process and access to justice for the determination of his dispute. Section 54(3), as presently worded, cannot be reasonably interpreted as imposing a general restraining order on all suits, actions, or proceedings as against all litigants or potential litigants, and irrespective of the properties seized…”
So if a general restraining order cannot be imposed upon an accused, what is the alternative? In the same case (Geneva Malaysia), the court approved an earlier case of Dato’ Zahari Sulaiman v Geneva Sdn Bhd which states:
“I agree with the view of my learned brother that section 54 (3) AMLA cannot be read as imposing a general restrain (sic) on the legal process. The restrained (sic) must be confined to the property seized…”
So to answer the question posted above- yes, a party can still institute a civil action against an offending party after the offending party’s assets and properties are seized under AMLA, provided that the civil suit has no relation at all the assets and properties seized.