On 21^st February, 2000, I issued an Order against all 72 Defendants, after an ex-arte application in chambers, made on behalf of the Plaintiffs.

This Order required the Defendants to make certain disclosures. It had no return date, in view of the fact that many of the Defendants were present in other jurisdictions.

A paragraph of the Order stated that it should remain in force until Judgment in the action (filed as Civil Suit No. 31 of 2000), unless before then it is varied or discharged by a further Order of the Court.

It was also provided that the Defendants (or anyone notified of the Order) might apply to the Court at any time to vary or discharge the Order, or such much of it as affects that person) though anyone wishing to do so must give the Plaintiffs’ solicitors two working days prior notice in writing.

On 4^th March, 2000, counsel for the Defendant (“D 1”) applied for various forms of relief in the three Summons set our below.

SUMMONS 59

1.       The Order of the Chief Justice Sir Denys Roberts made on 21^st February, 2000 (“the Order”) be varied by the addition o f a new paragraph 2.8 as follows –

“2.8 The First Defendant may be entitled –

(a)  to refuse the provide some or all of the information referred to in paragraph 2.1-2.6 above; and

(b)  to refuse to disclose some or all of the documents referred to in paragraph 2.6 above; and

(c)  to refuse to cause the firms or individuals identified in paragraph 2.7 above to provide information or documents;

on the grounds that this may incriminate him.”

In the alternative to paragraph 1 above, the Order be varied by the addition of new paragraphs 2.8 and 2.9 as follows –

“2.8 PROVIDED THAT no disclosure made in compliance with this Order shall be used in evidence in the prosecution of an offence alleged to have been committed by the First Defendant and no use shall be made in any such prosecution against the First Defendant of evidence contained as a direct result of such disclosure.

2.9 AND PROVIDED FURTHER THAT the First Defendant shall not be obliged to comply with paragraphs 2.1-2.7 of this Order unless and until –

(a) each of the Public Prosecutor and the Anti-Corruption Bureau undertakes to the Court in writing to be bound by the terms of this Order, and

(b) the plaintiffs prove to the satisfaction of the Court that proper and effective steps have been taken to ensure that any information or documents which may be disclosed by the First Defendant pursuant to this Order are not disclosed by the Plaintiffs or any adviser or agent acting on the Plaintiffs’ behalf to the Public Prosecutor or the Anti-Corruption Bureau or to any other prosecuting authority.”

The Order contained paragraphs 2.1-2.7 dealing with disclosure by D1. There are already paragraphs 2.8 and 2.9, which impose duties on the Second Defendant. It is assumed therefore that these references in Summons 59 should be construed as insertions after paragraph 2.7 and were not intended to be in substitution for the paragraphs 2.8 and 2.9 in the Order. I will refer to them as 2.7(a) and 2.7(b).

Paragraphs 2.1-2.7 inclusive confer certain duties upon D1.

They give D1 14 working days after service of this Order to inform the Plaintiffs’ solicitors in writing of his assets, wherever situated, whether or not they are held jointly by him or by others on his behalf.

Within the same period, D1 is required to give details of all his bank accounts, property, interest, trusts, shares. He has duty to give details of transfers to various persons and entities (certain specific persons, companies or firms are named).

This information given must be confirmed in an affidavit sworn by D1 personally within 14 working days after service of the Order. He is also obliged to serve further affidavits within working 28 days of service of the Order, giving particulars of funds transferred to named defendants.

D1 is further required to procure named firms or individuals to produce documents in their possession for  the inspection of the Plaintiffs’ solicitors. No time is specified for this.

This Summons therefore seeks a variation of the Order to give further protection to D1 against self-incrimination, as a result of compliance with the disclosure obligations contained in the Order.

SUMMONS 60

This seeks a variation of the Order in the following respect –

*All further proceedings in this Action be stayed until such time as the Plaintiffs provide to the court or to the First Defendant and his legal accountancy and other advisers a binding and irrevocable undertaking that they will not seek to asset any proprietary or other claim to any money, which may be paid to the First Defendant’s advisers in respect of work carried out in connection with or relating to this action or any related proceedings in any other jurisdiction”.

The amendment proposed by Summons 60 is intended to ensure that, whatever fund is used to pay professional fees, the Plaintiffs shall not e entitled to follow that sum, even if it can be proved that such payment was not made form the D1’s personal resources (which are thought might be significant) but from money owned by the Plaintiffs and improperly obtained by D1.

A number of exceptions are listed to paragraph 1 of the Order, which seeks to freeze the assets of D1. Among these exceptions is the following –

“(a) This Order does not prohibit:

(1)    The first Defendant from spending B$100,000 a month towards his ordinary living expenses together with a reasonable sum for legal advice and representation,”

It is to be noted that this exception at present restricts First Defendant from spending any money from any source, on “ordinary living expenses”, without prior reference to the Plaintiffs’ solicitors. I do not regard this as reasonable and will make the necessary amendment in due course.

Summons 60 seeks a stay of the Order, until an undertaking is given protecting D1’s legal and other advisers form “proprietary claims”, in respect of monies paid to them for work carried out in relation to these proceedings or any proceedings related thereto.

SUMMONS 61

This seeks a variation of the Order in the following respect –

“All further proceedings in this action be stayed until such time as the laws of Brunei are amended to provide that no offence is committed under section 12 of the Brunei Investment Agency Act by any current or former director, officer or employee of the Second Plaintiff where he discloses information for the purposes of legal proceedings.”

Section 12 of the Brunei Investment Agency Act (“Cap. 137”) is in the following terms –

“12(1) Except for the purpose of the performance of his duties or the exercise of his functions or when lawfully required to do so by any court or under the provisions of any law, no director, officers or employee of the Agency shall disclose to any person any information relating to the affairs of the Agency or any person which he has acquired in the performance of this duties or the exercise of his functions.

(2) Any person who contravenes the provisions of sub-section (1) of this section shall be guilty of an offence under this Act and shall be liable on conviction to imprisonment for 3 years and to a fine of $5000,”

A paragraph (“P”) was added to the Order in the following terms –

“Further undertaking given to the Court by the Plaintiffs.

The Plaintiffs undertake that any information provided to them by any of the Defendants under compulsion of this Order will be used safety for the purposes of these proceedings and will not in any circumstances be used by the Public Prosecutor or the Anti-Corruption Bureau to commence or pursue any criminal investigation or criminal proceedings in Brunei against any of the defendants.”

Summons 61 seeks a stay of the Order until the laws of Brunei are amended to provide that the disclosure of any information by a current or former director, officer or employee of BIA shall not amount to the commission of an offence under section o12 of Cap.137.

‘By a letter of 1 March 2000, from the Plaintiffs’ solicitors to the London solicitors for D1, the Plaintiffs’ solicitors offered, having argued that D1 is sufficiently protected by the above undertaking, to consent to the Order being amended in the following terms –

“No disclosure made in compliance with this Order shall be used in evidence in the prosecution of an offence alleged to have been committed by any of the Defendants or nay spouse of any individual Defendant or the directors, officers or employees of any corporate Defendant, and no use shall be made in any such prosecution against a Defendant or any such other person of evidence obtained as a result of such disclosure,”

It was the intention that this paragraph should not replace the paragraph P specified above, but should be n addition to it.

SUBMISSIONS BY COUNSEL FOR D1

The claim made by the Plaintiffs in C.S. 31 of 2000 is that D1, in breach of his fiduciary duties to the Plaintiffs, caused sums in excess of US$14.8 billion, belonging to the First Plaintiffs (“the State”) to be paid from the funds of the Second Plaintiff (“BIA”) into accounts n his name or subject to his control or that he then used this sums.

The Plaintiffs seek to recover these sums from D1, an account of his dealings with further sums in excess of US10 billion, and payment of any sum found to have been misapplied

The Order was obtained ex-parte. It required D1 to make an extensive disclosure of his assets within 14 working days and to swear affidavits with 28 working days.

This is said to be an unreasonable requirement. D1 seeks an extension of time to deal with these disclosure requirements.

SUMMONS 61

D1 was the chairman of BIA at the time of the events on which the Plaintiffs’ claim is based.

It was argued that section 12 of Cap. 137 affects D1, so as to preclude him from giving to his advisers proper instructions as to the grounds available to him to challenge the Order, or from giving evidence in support of such an application, and from giving proper instructions to his advisers as to the nature and scope of his defence. The section will also prevent him seeking information or evidence form any of the persons who were directors, officers or employees at the relevant time.

Unless section 12 of Cap.137 was amended, in manner proposed by D1, the latter could not have a fair trial.

The undertakings offered by the Plaintiffs were not sufficient.

SUMMONS 59

The claims made in the action arouse serious concerns as to the privilege of D1 against self-incrimination.

It is argued that there is a “real risk” that criminal charges will be brought against D1 under the Penal Code or the Prevention of Corruption Act (Cap.131).

It is not open to the Court to abrogate the privilege against self incrimination and the Other should be varied to permit D1 to refuse to provide information or documents on the ground that this may incrimination him. 

In the alternative, the protection against self-incrimination in the Order should be improved in various ways. There should be a prohibition of the use in any prosecution of the information provided by D1 or evidence obtained directly or indirectly as a result of information disclosed by D1. The Public Prosecutor and the ACB should undertake to be bound by the amended Order. And the Plaintiffs should demonstrate to the Court that information disclosed by D1 to the Plaintiffs will not be disclosed to any prosecuting authority.

The privilege against self incrimination is said in an Australian case to be a cardinal principle of common law systems – see Sorby v The Commonwealth  (1983) 152 CLR at p.294 and 309.

For the privilege to apply there must be a “real and appreciable risk” of criminal proceedings being taken against the witness as it was argued that there would be in this case if proper protection were not given. The privilege covers any step in the chain of proof against a witness and indirect or derivative evidence which is obtained by using disclosed material as a basis for investigation. A number of cases were cited in support of these propositions – in particular Reid v Howard (1995) 184 CLR 1, Brannigan v Davidson (1997) AC 238 P.C, Den Norske Bank v Antonatos (1999) QB 271, Rank Film Distributors v Video Information Center (1982) AC 380 HL and Sociedad Nacional v Lundgvist (1991) 2B 310.

In various English decisions, the Court has issued orders, or accepted undertakings, restricting the use of information given by a defendant, holding that such orders or undertakings were a sufficient protection to the defendant – see AT & T Istel v Tully (1993) AC 45. The High Court of Australia, in Reld v Howard (1995) 184 1 CLR, refused to follow the English Courts and held that the  privilege against self incrimination cannot be modified or abrogated by judicial decision and that this can only be effectively achieved by legislation.

The appropriate course for the Court would be to preserve the privilege intact by permitting the Defendant to refuse to provide information or documents on this ground that it may incriminate them.

If the Court were to decline to take course proposed, D1 contends that the protection given by the Order is inadequate and should be improved in various respects –

(a)  that there should not be used, in the prosecution of D1 or his spouses, of any information or documents obtained directly or indirectly form D1;

(b)  it should cover the use of evidence obtained indirectly, as a result of disclosure by D1;

(c)   the Public Prosecutor and the ACB must undertake to the Court that they will be bound by the Order;

(d)    before disclosure is made to the Plaintiffs, the latter must show that effective steps have been taken to ensure that any information etc, obtained directly or indirectly as a result f any compulsory disclosure will not be disclosed to ACB or nay other prosecution authority.

It is said that criminal and civil investigations have been intermingled and that no attempt has been made to separate the criminal and civil sides of the investigation. Also that the Plaintiffs have been using material, which was obtained under compulsory powers, to assist parties in civil litigation. Nor is the ACB authorized to disclose to the Plaintiffs information obtained by it in the exercise of its statutory powers – see Morris v Director of SFO (1993) Ch.372.

SUMMONS 60

It was argued that the Plaintiffs were seeking to deprive D1 of a fair trial, by the restrictions imposed upon legal and other professional fees.

Solicitors for D1 have sought confirmation that the Plaintiffs will not seek to assert any claim to money paid to D1’s advisers under the exceptions provided for in the Order, in respect of work carried out in relation to this action or related proceedings. This assurance has not been given by solicitors for the Plaintiffs.  

It is said that this shows that the Plaintiffs are seeking to deprive D1 of the ability to defend himself. This is an important case involving evidence on a large scale, which D1 could not defend himself. It is not reasonable to expect the professionals involved in the defence of D1 to act in a potentially long case, under the threat of the recovery of sums paid in fees under the Order.

The Plaintiffs have advanced objections to giving the exception sought, on the ground that no information has yet been provided by D1 as to the availability to him of assets to pay legal fees, including some assets that may have come from BIA sources.

The Court is asked to adopt a proportional approach, in that legal and accountancy fees, though large, will be small compared with the Plaintiffs’ claims and with the missing BIA assets already identified.

REPLY BY COUNSEL FOR PLAINTIFFS

SUMMONS 59

The Plaintiffs accept that disclosure under the Order should not expose any of the Defendants to the risk of material disclosed being used in evidence in any criminal proceedings. For this reason, the undertaking annexed to the Order at P was added with their consent.

In addition, the Plaintiffs have in indicated their agreement to extend this undertaking in the Order to the spouses of individual Defendants and to directors, officers and employees of the corporate Defendants and to amend the Order so as to deal with self-incrimination as a result of compliance with any Order of the Court, and to protect the Defendants and other persons against prosecution for offences under Cap.137.

It is argued that the relief sought in paragraph 1 of Summons 59 is “unnecessary and inappropriate”, since it was important to attempt to trace and recover very substantial sums of public funds, which required the fullest disclosure by D1. The relief sought in this paragraph I would effectively exempt D1 from making much of the disclosure sought. His position is fully protected by the amendments offered by the Plaintiffs’ solicitors.

The alternative paragraph 2, proposed by D1 to be added to paragraph P of the Order, is unnecessary as the undertaking there specified was given on the instructions of the Attorney-General, who represents the Plaintiffs, and is also the Public Prosecutor and controls all prosecutions (see sections 374 and 377 of the Criminal Procedure Code).

Any undertakings given by the Attorney-General will be observed by him. There is no reason to doubt this.

It is also suggested, in the new paragraph 2.7 (0) proposed in Summons 59, that the disclosure obligations of D1 shall be suspended, until there is proof of an effective information barrier between the Plaintiffs and the Public Prosecutor or the ACB.

Such proof cannot be given, since the Attorney-General both represents the Plaintiffs ad is Public Prosecutor, with full control over the ACB.

There is no other legitimate Interest of D1 to be protected by the proposed amendments, if it is accepted that he is entitled to be protected against the risk of any material disclosed by him in accordance with the Order being used in evidence in criminal proceedings.

By contrast, the Plaintiffs have a legitimate interest in a prompt compliance with the disclosure orders already made.

As to non self-incrimination, the House of Lords approach should be followed, and not the Australian one.

D1 is fully protected against any prosecution for disclosure.

You can’t split the functions of the A.G. See In Re O (1990) 2 QB 520, C.A, and AT & T Isted Ltd, v Tully (1993) AC 45 HL.

The Plaintiffs ask the Court to say that it expects disclosure obligations to be fulfilled and that it is sensible to have a meeting to discuss a timetable for disclosure of assets. The times in the Order for disclosure should not be altered.

If there is no agreement as to disclosure, the Court can be asked to sanction a timetable, in accordance with the provision to this effect on page 31 of Order.

No extension of time should be given and the disclosure period should be short, since

disclosure should begin promptly.

The Plaintiffs agree that Exceptions (I) to (v) should all include “other” representation.

SUMMONS 60

The Order permits D1 to expend money on legal advice. The Plaintiffs have already indicated the they do not object to the addition of accountancy advice fees, in a letter of 25^th February.

There is a proviso to paragraph (a) of the Exceptions to paragraph 1 of the Order requiring Defendants 1 to 70 to give the Plaintiffs’ solicitors 4 days working notice of the source of funds, so that the Plaintiffs may apply to the Court to prevent such use if BIA funds are to be drawn upon.

The fear of D1’s legal advisers is that they may have to disgorge funds paid to them in settlement of professional fees, if the source of these funds is BIA.

Counsel relied on United Mizrah Bank v Doherty (1998) 1 WLR 435, in which the Court declined to allow the Defendants to make payments to their solicitors our of a fund, which was alleged to be a trust fund.

The relief sought by this Summons is not necessary if D1 is able to pay his advisers from his “free assets” – i.e. those funds derived by D1 from sources other than the Plaintiffs.

So far, there has been no disclosure by D1 of the source of any funds paid, or to be paid, for professional fees. These should be no suspensions of the Order, pending the determination of Summons 60.

It is accepted by the Plaintiffs that it is not desirable that D1 should be without proper legal and accountancy representation, but it is surely wrong that BIA money can be used to resist a claim for the return of BIA funds.

D1 may have significant assets – e.g. an inheritance or the proceeds of an oil concession, though the Plaintiffs do not have knowledge of these. If so, these should be used first, if they are not already exhausted. D1 should have to apply to the Court for permission to use BIA assets to pay legal fees.

Summons 60 is premature, as D1 has not yet provided any information. The Court cannot strike a fair balance, as there has been no disclosure by D1 of his assets.

SUMMONS 61

As to section 12 of Cap.137, compliance by D1 with this Order would not, in any event, be an offence under this section, since the disclosure would be “when lawfully required to do so by any court”.

The Plaintiffs do not intend to hamper the proper defence of these proceedings by the use of criminal sanctions in relation to this claim against D1 or any potential witness. Undertakings are offered by the Plaintiffs in the following terms, which cover any concerns about section 12 of Cap.137.

“( i ) that no prosecution will be brought against any of the defendants or their legal or other professional advises pursuant to section 12 of the Brunei Investment Agency Act in respect of any information relating to the affairs of the Brunei Investment Agency provided that such disclosure is made for the purpose of the present proceedings (including for the purposes of complying with any Orders of the Court, providing discovery, giving evidence, or obtaining evidence from potential witnesses);and

(ii) no prosecution will be brought against any person pursuant to section 12 of the Brunei Investment Agency Act in respect of the disclosure by them of information relating to the affairs of the Brunei Investment Agency provided that such disclosure is made to a Defendant to these proceedings or his legal or other professional advisers solely for the purpose of assisting the Defendant in the defence of these proceedings or the purpose of giving evidence for use in the proceedings.”

Cap.137 is dealt with in paragraph 12 of Mr. Chalk’s first affidavit. This undertaking can be added to the Order, after the general protection, which is given by the handwritten paragraph P of the Order.

The A.G. has agreed to this, though it may be necessary to word this so that the Court is not to be seen to giving him instructions.

These undertakings should ensure that no prosecution will follow any disclosure.

REPLY

In reply, Counsel for the First Defendant commented that the timetable proposed in the Order for disclosure was unrealistic. It should be lengthened, as the Court should not make an order, which was not capable of being carried out.

A fair period should be taken for the disclosure of assets.

The burden of proof, in any event should require the Plaintiffs to justify the Order, which has already been made.

It is accepted that an extension of time is not include in Summons 59, which seeks to confer on D1 a discretion as to disclosure of assets, but D1 asks that this be dealt with, rather than oblige him to submit another summons. Three months would be a reasonable period for disclosure with power to ask the Court to extend this time if necessary.

Summons 61 should be amended as proposed, as otherwise the Plaintiffs can invoke Cap.137.

It is not reasonable to ask those who advise D1 to do so when offences are being committed. There should be a repeal of the section.

The Court is invited to follow the High Court of Australia decision and not the House of Lords, as to disclosure.

Section 132 of Cap.108 does not deal with affidavits but only with witnesses. It takes away the right against self-incrimination as against witnesses, but goes no further.

It is essential that there should be an undertaking that any information supplied by D1 will not be used in criminal proceedings against him.

Even if it is accepted than any disclosure by D1 in compliance with the Order will not form the subject of a prosecution under Cap.137, there should be a distinction between the Public Prosecutor and those in charge of civil proceedings.

The proviso as to the non-prosecution of D1 is ineffective unless any risk to him is eliminated.

The A.G. should be asked to give an undertaking that there will be no prosecution of D1 in any circumstances.

(The A.G. was not willing to give such an undertaking. Its absence would permit him, if he wished, to use information, which does not come from any disclosure by D1 under the Order).

The handwritten guarantee at P requires certain alterations. An alternative paragraph is tendered (D1). (This was not adopted).

The Court must be satisfied that disclosure by D1 does not make him liable to any criminal proceedings. D1 has the right not to make any disclosure unless he is fully protected against prosecution.

The English practice of separation of duties should be followed, as you should follow all the English practice or none of it, and not just the parts which support you.

In Summon 59, add “indirect” to the proposed wording of the Plaintiffs’ solicitors to be added to P.

In summons 60, proportionality is important. Fees cannot be large, compared with what is claimed – perhaps US3 million as against about US$15 billion.

Legal fees should apply to all defendants, who should be included in exception (vi) on page 1 of the Order

The proviso as to fees should also apply to England as well as to Brunei.

Page 17 of the Order requires D1 to do various things. This requirement is far too wide. It may be necessary to make another application to narrow this.

(Plaintiffs say that the range of disclosure is narrower in the case of the other Defendants, who should not be given longer to comply. Any extension of time should be given to D1 only).

SUMMARY

It should be emphasized that the above summary of submissions made on behalf of the Plaintiffs or on behalf of D1 is taken from these submissions, both written and oral, and from my own notes. They are only intended to be summary and may not wholly accurate or complete.

I should add that I received from the counsel for D1 a copy of a letter from Withers, the London firm of solicitors representing HRH Prince Hakeem, the Third Defendant (“D3”)

This letter is dated 3^rd March 2000, and expresses anxieties about the impact of the Order on D3, especially about the danger that legal costs paid by D3 may have to be handed back by his legal representatives to the Plaintiffs.

The letter also mentions the danger that section 1 of Cap.137, under which potential self-incriminations is said to arise, might be used against D3, and as to the unreasonable nature of the timetable for disclosure

Council for D1 asked that any protection or benefit given to D1 should also extend to D3, so far as this was appropriate, even though there has been no formal summons put forward by D3.

I have accordingly, in my amendments to the Order, made provision whereby D3 (and indeed all the Defendants) will have the benefit of various provisions, which are designed to protect what I conceive to be the legitimate interests of D1.

RULING

At the end of the hearing before me, I give my ruling, to the effect that the following additions or amendments should be made to the Order, and that in due course I would deliver a judgment giving reasons for the ruling.

SUMMONS 59

Undertakings

The Defendants fail in this summons, save that the last paragraph of the Order (P), headed ‘Further Undertaking”, given to the Court by the Plaintiffs should be amended to read as follows –

(1) The Plaintiffs undertake that any of the information provided to them by any of the Defendants under compulsion of this Order will be used safety for the purposes of these proceedings and will not in any circumstances be used by the Public Prosecutor to comments or pursue any criminal investigation or criminal proceedings in Brunei against any of the Defendants; and

(2)No disclosure made in compliance with this Order shall be used in evidence in the prosecution of any offence alleged to have been committed by any of the Defendants or any spouse of any individual Defendant  or the directors, officers or employees of any corporate Defendant and no use shall be made in any such prosecution against a Defendant or any such other person of evidence obtained as a direct or indirect result of such disclosure; and

(3) No prosecution will be brought against any of the Defendants or their legal or other professional advisers pursuant to section 12 of the Brunei Investment Act in respect of the disclosure by them of any information relating to the affairs of the Brunei Investment Agency, provide that such disclosure is made, inter ails, for the purpose of the purpose of the present proceedings, or nay related proceedings (including for the purpose of complying with any Order of the Court, providing discovery, giving evidence or obtaining evidence from potential witnesses); and

(4) No prosecution will be brought against any person pursuant to section 12 of the Brunei Investment Agency Act in respect of the disclosure by him of information relating to the affairs of the Brunei Investment Agency, provided that such disclosure is made to a Defendant to these proceedings or his legal or other professional advisers, inter ails, for the purpose of assisting the Defendant in the defence of these proceedings or for the purpose of giving evidence in these proceeding or any related proceedings.”

TIME LIMITS

There are several references in the Order to 14 working days” and to “28 days”.

In each case there should be substituted “15^th May, 2000”, for “14 working days’ and “31^st May, 2000” for “28 days”

SUMMONS 60

 Legal Fees

The following amendments should be made to the Exceptions listed after paragraph 1.15 (page 11 of the Order)-

(a) before the word “representation” in sub-paragraphs (I) to (v) inclusive, insert the word “other” and

(b) in the paragraph after (v), by inserting the words “other than is permitted by any of the above exceptions” after the word “money” and

(c) by adding the following new paragraph (vi) –

“(vi) The plaintiff will not seek to assert any proprietary or other claim to any monies, which may be paid to the legal adviser or other adviser of any Defendant in respect of work carried out in connection with or relating to this action or any related proceedings in any other jurisdiction. For the removal of doubt, these exceptions should apply to monies paid in any country.”

SUMMON 61

This summons is dismissed.

This ruling was put to both sides and accepted by me with minor amendments which will appear in the amended Order. This will include such a alternations to the above Ruling as were suggested by the parties, though this does not indicate their agreement with the reasons for the Ruling.

Although I have not included any provision to this effect in the Order, I will express the hope that there will be a meeting of those representing the Plaintiffs and the Defendants to agree upon a time-table for the disclosure by the Defendants of the various matters referred to in the Order.

REASONS

ARGUABLE CASE

It was submitted on behalf of D1 that there might be circumstances in which the Plaintiffs would not be able to establish that there was a good arguable case to support the Order.

If indeed other persons did receive substantial sums from BIA, this would not affect the claim by BIA against D1 and the other Defendants. This claim is for an accounting by the Defendants of large sums of money, which are set out in the statement of claim.

It is, in any event, not a defence  to claim to assert that someone else did the same, or similar, things as the Defendants in this claim.

On the basis of the claim, there is clearly a “good arguable case”, assuming this to be the proper test to be satisfied before an Order, in the nature of a Mareva, is issued by a Court.

SELF INCRIMINATION

I accept that the privilege against self incrimination is  “deeply ingrained in the common law” and is a cardinal principle of common law systems of justice – see Sorby v The Commonwealth (1983) 152 CLR

Brunei is governed by the common law, in so far as this has not been modified or abrogated by English statutes enacted before 25^th April, 1951, and Brunei enactment whenever made- see the Application of Laws Act (“Cap 2”)

Before considering this privilege, in relation to the present Order, I should first consider the extent to which it can be said to have been revoked by section 132 of the Evidence Act (“Cap. 108”)

SECTION 132 OF EVIDENCE ACT

It was ruled in Television Broadcasts Lts. V Mandarin Video Holdings (1983) 2 MLJ 340 (“the TV case”) that the privilege against self-incrimination was withdrawn in Malaysia, by virtue of section 132 of the Evidence Act, 195o. This appears to be in the same terms as section 132 of Cap. 108, which is as follows-

“(1) A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any sum or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly and indirectly to expose, such witness to a penalty or forfeiture of any kind, or that it will establish or tend to establish that the owes a debt or is otherwise subject to a civil suit at the instance of the Government or of any other person.

(2) No answer which a witness shall be compelled by the court to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

(3) Before compelling a witness to answer a question the answer to which will criminate or may tend directly or indirectly to criminate such witness, the court shall explain to he witness the purport of subsection (2)”

The real reason for the privilege, said the judge in the TV case, was that “no one is bound to anything which may bring him into peril and the possibility of being punished or penalized for wrong doing. So if there was no danger of liability to punishment or penalty, the privilege would go”.

In Riedel- de Haen Ag v Liew Keng Pang (1989) 2 MlJ 400, however, a Singapore judge refused to follow the TV case holding that the word “witness”, found in section 132(1) of Cap. 108, is intended to apply only to questions put to a witness at trial and not to affidavits, which are specifically excluded form the operation of that section, among others.

The judge in the Riedel-de Haen case was of the opinion that section 132 of Cap. 108 (section 134 in Singapore) “merely qualified the privilege against self-incrimination to the extent the witness gives oral testimony in judicial proceedings in which the Evidence Act is applicable.”

I am of the same opinion as the judge in the Riedal case and do not consider that section 132 of Cap. 108 does more than modify the common law right against self-incrimination , in relation to evidence given by a witness in proceedings.

I have to consider, however, on the assumption that such a privilege exists, as I accept that it does at common law, the extent to which it can be modified or abrogated by judicial means.

RESTRICTION OF PRIVILEGE

In Reid v Howard (1995) 184 CLR 1 the High Court of Australia (“HCA”) refused to follow those English decisions which have accepted undertakings or orders, Restricting the use in criminal proceedings of information extracted from a defendant, if the undertakings, or orders provided a proper protection to the defendant – see for example AT & T Istel Ltd. V Tully (1993) AC 45.

The HCA held that the privilege against self-incrimination cannot be modified or aggregated by judicial decision and that a substitution of effective protection can only be achieved by legislation.

The HCA therefore was of the opinion that a defendant may refuse to provide information or documents on the ground that they may incriminate him.

IS THE PROTECTION TO THE DEFENDANTS ADEQUATE?

I accept that the protection afforded by the Order was not sufficient, even After the addition thereto of the handwritten paragraph P, which is now paragraph (1) of the substituted undertakings, as the former paragraph P dealt only with information provided under the Order, so as to preclude any criminal investigation or proceedings against the Defendants in relation to that.

This undertaking, at P has been extended by three others, by precluding the use in criminal proceedings of any disclosure under the Order by any of the spouses of the Defendants or the directors, affairs and employees of any corporate Defendant, and providing that no use is to be made of any evidence so  obtained, whether directly or indirectly, in any prosecution against a Defendant or any such other person.

Additional paragraphs were also added, to protect all Defendants and their legal and professional advisers against prosecution for offending against section 12 of Cap 137, by disclosing matters for the purpose of these proceedings or related proceedings. A similar protection was given to a person who disclosed any information as to the affairs of the BIA, if made to a Defendant or his legal or other adviser.

D1 has asked, in Summons 59, for the right to exercise his privilege, against any self-incrimination notwithstanding any guarantees. Such a claim, giving D1 the right to refuse to do some of the acts, which he is obliged to do by the Order, could be justified if the privilege against self-incrimination is absolute and cannot be modified in any respect by judicial act.

Before considering the degree to which such a privilege can be modified by judicial process and not by statute, I must express the opinion that the Defendants, and their spouses, are properly protected against any prosecution in relation to disclosures made by them.

The undertakings would not prevent the Plaintiffs from making use of information, which they acquired independently of this claim, in any other criminal proceedings, or in using the information disclosed to them in this claim (31/2000) in these or other civil proceedings.

But, as regards criminal proceedings, the Defendants sand others are fully protected, in my view, insofar as these are based upon disclosures made in response to the Order.

I have not thought it proper to ask the AG to satisfy the Court that he has taken any steps to ensure that information and documents disclosed by D1 under the Order shall not be disclosed to the Public Prosecutor.

Apart from, as I conceive it, being beyond the powers of a Court, I do not consider that this is a practical proposal, even if R v Commissioner of the Police of the Metropolis, Ex-parte Blackburn (1968) CA 118 and Morris v Directors of the Serious Fraud Office (1993) Ch. 372, suggest that in England it may be possible to separate officers with independent functions from the AG.

Such an attempted division of the AG’s duties in Brunei would be unrealistic. He is the Public Prosecutor, in control of all prosecutions; he is also the person who conducts, personally or through his nominees, all civil claims by the State or its emanations.

For this reason, it would not be practicable, even if I had power to make such an order, for the A.G. in one capacity to ignore the information, which comes to him in another. What is importance, as I see it, is the protection against prosecution, and this is accorded by the amended Order to the Defendants.

The A.G. has indicated that he is prepared to give effect to the undertakings of the Plaintiffs in the Order. It would not be reasonable to speculate that he was not prepared to carry out undertaking, which he had given.

It was further suggested that he could not bind himself as to future possible offences, and that therefore legislative provision would be necessary, particularly in relation to section 12 of Cap. 137.

I see no reason to restrict the A.G.’s powers in this way any to offences, which have occurred in the past. He is entitled to say that he will not prosecute any future offence committed by specified individuals. AG of Trinidad and Tobago v Lennox Philip (1995) I AC 396 dealt with the Constitution of Trinidad and cannot be said to be of general application, since the power of pardon, which was in issue, was expressly limited to offences which the person concerned "had committed".

LEGAL FEES (Summons 60)

It was submitted by the Defendants that the Order, although it allowed the payment of legal and other professional fees, might mean, if BIA funds were used to pay these accounts, that the monies could be followed and recovered by the Plaintiffs from those advising the Defendants.

It was argued by the Plaintiffs, however, that the bills for professional services might, though D1 might well have his own assets (though he had as yet disclosed nothing) be settled by the use of BIA funds.

It is theoretically possible for a Court to order that the solicitors and others concerned should ask the Defendant concerned for the source of the monies. But this would, if the Defendant concerned replied, that he was using his own assets, merely give rise to a series of mini-trials, at the end of which the solicitor might be deprived of his fees.

I appreciate that it is odd, to use the Plaintiffs’ word, that BIA funds should be used in this way, if they are.

I must, however, weigh this danger against the possibility that, unless they are protected, solicitors and other advisers may be reluctant to act on behalf of a Defendant. This I regard as most undesirable. This is a complicated and difficult claim, to resist which the Defendants are entitled to proper legal and other advice.

I regard the question of proportionality is of some importance here. D1 is said to have taken nearly US$1,500,0000* million from BIA funds.  I doubt if the legal and other fees can amount to much more that US$3 million, which is a very small percentage of which is being clamed.

For this reason, I have added a further paragraph, to the effect that the Plaintiffs cannot follow, whatever its origin, any money paid by the Defendants for work carried out in relation to this action or related proceedings.

In the unlikely event that the solicitors of any of the Defendants are in possession of any other funds belonging to BIA on behalf of a Defendant, the Plaintiffs will be able to follow these.

TIME LIMITS

There are a number of reference in the Order to the requirement that each Defendant should disclose all his assets within 14 working days and swear an affidavit to the same effect within 28 days.

I accepts the argument by the Defendants that this is not reasonably capable of achievement. The Court, it was said, should not make an Order, which clearly cannot be carried out.

D1 has many assets in different countries and it would be unrealistic to expect him to provide disclosure of all of them within 14 working days, or to swear an affidavit in relation to them within 28 days , both periods to run form the date of service of the Order, which was February 21wt for some Defendants but much later for others.

I was persuaded that both periods should be extended. I have therefor amended the Order to provide that information should be provided by 15^th May 2000, and that the linked affidavits should be sworn by 31^st May 2000.

SELF-INCRIMINATION

It is accepted by the Plaintiffs that disclosure under the Order should not expose any of the Defendants to the risk of any material disclosed being used in criminal proceedings.

As I have indicated, I have no doubt that under the Order as amended, there is no such risk and that the relevant provisions of the Order meet any legitimate concern that the disclosed information or documents may be used in criminal proceedings.

Accepting that D1 has a legitimate interest to protect himself against material disclosed by him being used in criminal proceedings, he is fully protected, in my view by the undertakings, which the Plaintiffs have agreed should appear in the amended Order.

D1 argues, however, that the privilege against self-incrimination save so far as it is not abrogated by Brunei legislation is a common law right which cannot be taken away by judicial act, whatever guarantees may be given.

It is correct to say disclosure made by D1 may come to the knowledge of the ACB and through it to the AG, but the Defendants are fully protected against any possible prosecution. What they are not protected against and I do not see why they should be is the use of this information in civil proceedings.

The basis of the privilege against self-incrimination is the undesirability of compelling a person to make disclosure, which can be used in a criminal prosecution against him.

This privilege is said to cover both direct