“We find this application does not meet the threshold of Rule 137 of the Federal Court Rules 1995 and is hereby dismissed,” Chief Justice of Malaya Zabidin Diah said when delivering the unanimous decision of the court today.

“We also find the majority decision cannot be said to be unjust.”

Zabidin chaired a three-member panel, which also comprised Justices Zabariah Yusof and Harmindar Singh Dhaliwal.

The bench also rejected a contention advanced on behalf of the firm, Wan Shahrizal, Hari & Co, that a breach of natural justice had occurred in the course of the appeal hearing.

In paragraphs 27 and 28 of the majority judgment, Justice Abdul Rahman Sebli wrote:

“(27) If this court were to endorse the learned judge’s reasoning and accede to the appellant’s argument, we would be setting a dangerous precedent whereby a law firm which represents a client in forfeiture proceedings under the Act would as a matter of right be entitled to be paid its legal fees using illegal property, ie, proceeds of an unlawful activity, which is not even the client’s rightful property which he can use any which way he likes after its seizure under ss. 50(1) and 51(1) of the Act.

“(28) And if that were to be allowed, all that a law firm needs to do to succeed in its claim under s. 61(4) is simply to produce the bills for the legal services that it rendered to its client, as done by the appellant in the present case. That will be as good as returning the seized property to the person proceeded against under s. 56(1) and allowing him to use the property in a way that allows him to enjoy the benefits of his crime. Clearly, it will be against the spirit of the Act to allow such property to be used in such manner. This is the kind of mischief that para. (d) of s. 61(4) aims to strike down.”

In his submission earlier today, lawyer Hisyam Teh Poh Teik, who represented the law firm, submitted that the statements in paragraph 28 were “speculative, unjust and a breach of natural justice”.

He said the majority of the judges who heard the appeal did not recognise the common position of the prosecution and defence that actual legal services had been rendered in the circumstances of the case.

However, Zabidin said the court agreed with deputy public prosecutor Dusuki Mokhtar that, taken in the context of the entire judgment, the paragraph in question was merely an observation made by the majority.

“This does form the basis of the majority judgment. Failure to ask parties to submit on this does not amount to a breach of natural justice,” he said, noting that both parties had been given ample opportunity to submit in the course of the appeal.

Zabidin said the Federal Court had the discretion to review its own decision to prevent injustice or abuse of process, but would use it in very limited and rare circumstances if a significant injustice had occurred for which there was no alternative effective remedy.

In a 2-1 majority decision on June 22 last year, a three-member Federal Court bench dismissed the law firm’s appeal and affirmed the findings of the Court of Appeal.

Justices Rahman and Hasnah Hashim formed the majority while Justice Mary Lim dissented.

Wan Shahrizal, Hari & Co had in 2016 represented a man for allegedly committing offences under the Penal Code and Computer Crimes Act but was never charged.

The man was also held under the Prevention of Crime Act (Poca) 1959, a preventive law under which he was ordered to be detained for two years. The High Court on June 16, 2017 ordered his release after the filing of a habeas corpus application.

The legal firm then issued a bill for RM398,722 for services rendered to the man.

Meanwhile, the government froze about RM500,000 kept in the bank account of the man.

As required under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Amla), the government has to file a motion to seize the money that has been frozen.

The legal firm came in as an intervener to claim part of the money as legal fees for services provided.

On Nov 13, 2018, the Temerloh High Court allowed the firm’s application to recover the money.

That ruling was reversed by the Court of Appeal on Aug 26, 2020, following an appeal by the public prosecutor.