by FARAH SOLHI
DATIN Seri Rosmah Mansor has been granted total acquittal from all 17 money laundering and tax evasion charges involving RM7 million funds.
High Court Judge K Muniandy, in allowing Rosmah’s application to strike out the charges, found that they were illegal and flawed, and that the prosecution had failed to disclose the elements of the offences in the charges.
He found that the charges do not specify which transactions that involve proceeds of unlawful activity, or how Rosmah engaged directly in all 228 transactions that amounted to RM7 million.
“The charges do not disclose the key elements of the money laundering offences. The transaction involving money laundering is not disclosed and the conduct of the accused is not disclosed in the charges.
“The monies referred to in the charges do not reveal transactions as envisaged under Act 613 Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA).
“What is unlawful activity is also not disclosed. Without those elements, what is available on the charge is only an act of deposit of a sum of monies into the bank account, which by itself is not an offence known in law,” he said.
On the tax evasion charges, Muniandy noted that the charges overlapped with money laundering charges as to the dates. He said identifying proceeds of unlawful activity was essential but had not been done.
Therefore, he added, what is left of those charges are only failure to declare income, which only becomes an offence upon compliance of the accused with the Income Tax Act.
Failure to disclose income would only constitute an offence if it involved taxable income, making the charges under Section 112 of the Income Tax Act premature.
“There is no stipulation of the unlawful activity, so there are no proceeds of it being laundered.
“Even if there were undisclosed income to the Inland Revenue Board (IRB), there has to be a transaction reflecting dealing by the accused with the undisclosed income for it to amount to money laundering.
“On that score, there are not only a multiplicity of charges but also duplicity of charges, which is per se illegal under the law, under Section 163 of the Criminal Procedure Code, which stipulates that for each and every distinct offence, there has to be a separate charge.
“Offences stated in the preferred charges are premature (as) the public prosecutor has framed the charges on the premise that the income undisclosed to the IRB by the accused is chargeable income, as it is taken that the amount stated as income which is banked into the account at the Affin Bank is ‘taxable’.”
In his judgement, Muniandy also highlighted that failing to furnish an income tax return comes within Section 77(1) of the Income Tax Act, where the offence punishable under Section 112 of the Act is only triggered if all the available avenues under the Act is exhausted.
Referring to this, he found no predicate or serious offence committed by Rosmah yet, as stipulated in the charge.
“Hence, no unlawful activity, what more emanating transactions culminating into a dealing to form a money laundering offence.
“In the circumstance, the appropriate order of this court has to be a discharge amounting to an acquittal (DAA) and not a discharge not amounting to an acquittal (DNAA),” he said.
Rosmah, 73, was charged in October 2018 with 12 counts of money laundering involving RM7,097,750 and five counts for failing to declare her income to the IRB. She pleaded not guilty to all charges.
She was accused, at that time, of having committed the offences at Affin Bank Bhd Jalan Ampang’s branch between Dec 4, 2013, and June 8, 2017, as well as at the IRB office in Jalan Tuanku Abdul Halim between May 1, 2014, and May 1, 2018.
Her money laundering charges were framed under Section 4(1) of the AMLATFA, which carries a maximum jail term of 15 years and a fine of five times the amount or value of the proceeds of unlawful activity, or RM5 million, whichever is higher, upon conviction.
Rosmah’s tax evasion charges were previously framed under Section 77(1) of the Income Tax Act 1967, which required her to declare her income returns for the assessment year 2013 to 2017 to the IRB Director-General on or before April 30, 2014, 2015, 2016, 2017 and 2018 without reasonable excuse contrary to Section 112 of the law.
She then filed the application to strike out the case on Sept 6 last year, after the case trial began and the court had heard testimonies from two prosecution witnesses.
Rosmah was represented by lawyers Datuk Firoz Hussein and Amer Hamzah Arshad, while the prosecution was led by deputy public prosecutor Ahmad Akram Gharib.
Akram, when met after the proceeding, confirmed that the prosecution will file an appeal against today’s decision.
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