Forfeiture of Properties 12 Months After Seizing/ Freezing-Is It Possible?

Need to consult with lawyer regarding forfeiture of properties, freezing order or AMLA?


In this article, we will briefly discuss whether a public prosecutor can apply for the forfeiture of properties 12 months after seizing/ freezing them under AMLA if there is no prosecution/ conviction against the accused. To do so, we will briefly look at the High Court case of Public Prosecutor v Dragcom Sdn Bhd & Ors And Other Applications1 and obtain an answer from it.

Brief facts of the case

This case centres around three cases that involve parties that are being prosecuted under Section 56(1) of AMLA. In all three instances, the bank accounts and monies of the accused have been frozen by the public prosecutor. The public prosecutor then applied for the bank accounts and monies to be forfeited under Section 56(1) of the Act.

The parties contention

Central to the parties contention is the interpretation of Section 56 of AMLA, namely whether the prosecution can forfeit an accused property 12 months after the seizure/ freezing of the accused properties if the accused is not prosecuted or convicted under AMLA.

Section 56(1) provides that:

"Subject to Section 61, where in respect of any property 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 seizure, or where there is a freezing order, twelve months from the date of the freezing, apply to a judge of the High Court for an order of forfeiture of that property…"

Section 56(3) provides that:

"Any property that has been seized and in respect of which no application is made under Subsection (1) shall, at the expiration of twelve months from the date of its seizure, be released to the person from whom it was seized."

The court’s decision and rationale

The court held that in cases where there is no prosecution/ conviction, the prosecution cannot apply for the forfeiture of property 12 months after the property has been seized (i.e. the application for forfeiture must be made within 12 months from when the property is seized). In coming to its decision, the court noted that:

  1. The word ‘may’ (in Section 56(1)) is used in the sense that it is up to the public prosecutor to apply for forfeiture. In other words, the use of the word ‘may’ refers to the general discretionary power of the public prosecutor to proceed with forfeiture proceedings or to return the property. Assuming ‘may’ is interpreted to mean that the public prosecutor has the discretion to make the forfeiture application 12 months after the seizure or the freezing order, the time stipulation would be rendered utterly meaningless.
  2. The aim of the time limit of 12 months in Section 56 is to provide a safeguard against the arbitrary use of the extensive powers granted by Parliament to the enforcement authorities and the public prosecutor. Without the time limit prescribed in Section 56, affected parties whose properties had been seized would be subject to the sweet will of the public prosecutor in awaiting the final outcome of forfeiture proceedings. Therefore, the time limit of 12 months should be construed strictly.
  3. Section 56(3) clearly states that if no application is made within 12 months, the property shall be released to the person from whom it was seized. The use of the imperative ‘shall’ in Section 56(3) means that once the 12 months period has passed, the property must be released.

To cut the long story short, the answer is no, the public prosecutor cannot apply for the forfeiture of properties 12 months after seizing/ freezing them under AMLA.


Other related articles:

  1. AMLA Malaysia – What Are The Rights Accorded To An Information Provider?
  2. AMLA Malaysia – Challenging An Act of Seizure By Way Of Judicial Review
  3. AMLA Malaysia – How To Report A Suspicious Transaction?

Need to consult with lawyer regarding forfeiture of properties, freezing order or AMLA?


1. [2013] 5 MLJ 594.