Dr Hj Ismail Pg Hj Damit

Bandar Seri Begawan - The prosecution has failed to prove the "essential ingredients" of the charges preferred and failed to establish a 'prima facie' case against Brunei's former development minister, Pg Indera Wijaya Pg Dr Hj Ismail, who is facing corruption charges This statment was submitted to the in the High Court yesterday, by the former minister's defence counsel, Ahmad Basuni. In light of this, he said that the former minister should be "acquitted without the defence being called".

`Prima facie' is a term used in the courts that denotes evidence, which unless rebutted would be sufficient to prove a particular case.

The defence counsel said: "It is noted that although the Minister of Development in our present case is an agent of the Government of Brunei Darussalam, being appointed pursuant to the Constitution of Brunei Darussalam, there is no evidence to show that IPS (Istana Project Supervisor) was in the same category.

"IPS was an agent of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam personally. There was no official appointment from the government nor were the rules governing its exercise of powers except as could be seen from the testimony of some of the witnesses that IPS would carry out the projects and command of His Majesty. IPS was unknown to the public service scheme."

The defence scrutinised each ofthe prosecution's witness testimonies counteracting with the prosecution's case against the defendant.

The following are highlights of a court document obtained by the Sunday Bulletin:

• From the testimonies of the Prosecution Witness (PW) 1 and 2, Ahmad Basunpi submitted that from the course of the examination of the said witnesses - no direct and/or corroborating evidence - had been deduced to tie the defendant to the current charges. Both witnesses seemed to be evasive in their answers when pertinent questions were asked of them.

• In the case of PW3, it was confirmed by the witness that for the Lot 701 Drainage and Roadworks project and its variation orders, all payment certificates were sent to the IPS for payment based on the minute written by the defendant to the Director of Roads and that the works would be privately financed. There was nothing in the evidence from PW3 to show that the defendant was directly involved in the negotiation for the quotes obtained from Ted Sdn Bhd for the project and the subsequent variation orders. The negotiations were carried out by the Department of Roads.

The defence noted that PW3 testified on the meeting called by the Ministry of Finance sometime in early 1997, to find out the commitments of the Department of Roads under IPS projects and the balance to be paid for those projects. This seemed to show that the Ministry of Finance was not privy to commitments and the outstanding balance to be paid for the roads projects under IPS.

• There was nothing in PW4's evidence to suggest that the defendant was involved directly in the negotiation of the quotation from Ted Sdn Bhd for electrical works. No concrete evidence had been adduced by the prosecution that the defendant was aware of the quotation submitted by Ted Sdn Bhd for the electrical works or that he was aware that they were higher than the departmental estimates.

• According to the defence, it was crucial to note that PW5 had stated in cross-examination that in Selective Tender the approval of the Chairman of the Tenders Board or the Minister of

Development must be sought. The defence stated that PW5 appeared to be evasive in his answers during the cross examination on the issue relating to the works of the DES (Department of Electrical Services) for other IPS projects.

"It clearly shows that there is no link of the defendant's involvement in the negotiation of the quotes between Ted Sdn Bhd, the Roads Department and the DES," Ahmad Basuni stated.

• PW6 when asked by the defence about the owner of Lot 701 said he was not aware that it belonged to HRH Prince Mohamed Bolkiah until the cross examination nor did he know that TED Sdn Bhd was the contractor on site at Lot 701 at that time. Neither did he know the meaning of "financed privately" and not aware that the fonder was HRH Prince Jefri Bolkiah.

• In cross examination PW7 agreed that TED had saved the Government just above $2 million which was lower than the estimates made by the same. Even the Project Quantity Surveyor accepted TED's tender, despite a mathematical error, as being the lowest tender. PW7 also confirmed that IPS projects can be funded either by the Government or privately.

PW7 was aware that D1 (Defendant No 1) was appointed IPS before he became a minister of development.

It must be with added emphasis that PW7 when it was put to him that D1 informed him that TED was to be awarded this project due to the approval given by His Majesty, PW7 replied: "We must have received some instruction to proceed".

Further it was asked of PW7 that the approval of His Majesty was conveyed to PW7 and he replied: "I have already said so. I have no problem with that".

To this effect PW7 was shown exhibit P57/ Page 122. This is crucial to show the lack of the intent by the defendant to be bias to TED as he had to submit the same to His Majesty for its approval.

• During examination, PW8 was asked why she had called D2 and her reply was that D2 did not state the completion period of the project.

The subsequent interview with TED was to complete the findings of the tender put up by TED after the report was put up by the Project Management Team ("PMT").

This was done without the involvement of Dl. PW8 had indicated that there was a point in time when TED was withdrawing from the project and Tang Sun Lee Sdn Bhd ("TSL") was the next choice as they complied with the completion period and specifications.

PW8 stated that she was told to ask TED to consider their decision which has not been done before. Although it must be pointed out that TSL tender price was "tremendously" overpriced in one aspect, which PW8 agreed.

Further, PW8 went on to state that TED's quotation was the lowest and was more attractive.

PW8 was asked whether she knew that D1 had sought the approval of His Majesty to award TED the project and she replied: "Yes".

Sunday • PW9's involvement was not that clear cut for the Earthworks Project. Though he was said to be a member of the Project Management Team ("PMT"), he was only roped in to replace someone in a meeting at the earlier stage. He was only relevant for monitoring the quality of work thereafter. Even then he said the quality control would be assigned to the Superintendent Officer and not him. He agreed that there was no distinction on IPS and government projects in respect of technical matters only.

• PW1O was said to be the Project Manager in the PMT for the Mufti Earthworks but from his answers in court, most of the time he suggested such questions be asked from the quantity surveyor or the engineer or the heads of relevant departments.

He seemed to distance himself from whatever report was submitted to the defendant. He stated that TED had withdrawn from the tender due to non-compliance with the construction period and an error in their calculations.

However, TED was given an opportunity to reconsider their decision to withdraw and subsequently sent a tender with completed technical specifications with it with respect to the Earthworks Project where their tender pricing was the same and willingness to absorb, the arithmetical error, PW 10 did not remember whether any specific penalties were told to TED in his meeting with TED to reconsider their withdrawal.

In any event, TED was awarded the contract as it was the lowest and had to absorb the mathematical error.

• PW11 informed that TED was seeking to apply four acres or more of TOL land. At that stage, there was nothing in the evidence of PW 11 to show that the defendant was involved.

The Commissioner of TCP at that material time was Dato Paduka Haji Ibrahim where the allocation of TOL land appeared to be decided by TCP itself and the approval would be from the Land Office.

She testified that there was no written guideline on how assessment on the allocation of TOL land was done. It appeared to be more on the discretion of the.

Commissioner of TCP at that time as to the acreage to be allocated.

• PW 12 seemed to follow the instructions of his senior officer and was not aware of any written rules and guidelines when processing the TOL application.

As a result, he mistakenly made an issue of TED's application, which was signed by a foreigner, being an application made by a non-citizen of Brunei. He just followed the instructions of his senior, who committed the same mistake in treating TED's application as if coming from a non-citizen of Brunei when in fact a private limited company could apply on its own rights.

It is interesting to note that he confirmed even during TOL Committee meetings, the chairman of the committee who was the Permanent Secretary would be the person having the discretion to decide, approve or reject the TOL applications and those in the meetings would just listen to the decisions being made by the chairman.

Whereas some of his colleagues and those from TCP who testified in respect of this matter assumed that the TOL Committee has the power to decide and approve. When PW12 was handling TED's first application there was nothing in his evidence to show the defendant's involvement in this regard.

And even when PW12 submitted the second application to the Land Department, the application papers prepared by PW12 were deemed incomplete which necessitated further enquiries from the Land Commissioner's Office.

PW12 confirmed that it was not necessary for TOL land to be allocated by TCP first before approval.

• PW13 is currently a Senior Land Officer. He was the only witness from the Land Office who knew and was aware of the rules and regulations which came into being in August 1986, which governed TOL applications at the relevant time when he handled TED's application, compared to the rest of his colleagues who testified in this court. PW13 confirmed that TED had applied and appealed for more land and there was no evidence that was shown that D1 was instrumental in anyway in this regard at that stage.

• PW14 was said to be the officer who continued to handle TED's application when PW13 was transferred elsewhere. Two letters from TED appealing for more land were not replied but only internal action such as requesting land inspectors to make reports was made but no further action was taken after that. PW14 testified that at a meeting at the Office of D1 in June 1994, approval was given by D1 to allocate TED with an area of five acres as TED would be capable of building roads at the site and pave the way to the others. D1 further instructed the Land Office to discuss with the Department of Town and Country Planning regarding the allocation of a suitable site to be given to TED.

In cross examination, PW14 confirmed that the ultimate authority in approving TOL application was the Minister of Development, that Dl. 16.

• During PW15's cross examination, it was brought to his attention that TED was awaiting approval of the five acres for more than four years but this fact was unknown to the witness. PW15 was seen to be evasive when certain pertinent questions were asked of him. There is no direct evidence that the approval and/or allocation to TED for additional land was influenced by D1 when PW15 was handling the matter.

• PW16 confirmed that there was meeting that was convened amongst others to also consider TED's appeal for TOL land. It was PW16 and another officer at the Ministry of Development, Haji Diris Haji Belaman (now Dato Haji Diris) who coordinated in calling the relevant officers to a meeting with D1 sometime in June 1994. It was not D1 who called those junior officers directly for a meeting. In that meeting, PW16 then stated that D1 had no objection for the land applied for by TED but subject to availability of the land area.

Sunday this is an important fact in that D1 did not insist that TED should be awarded the extra land at all costs. D1 still left the matter for coordination between TCP and the Land Office.

• PW17, whose duties included processing and/or approving TOL applications, received TED's application for TOL land at the Commissioner of Land Office. The application was then sent to the Permanent Secretary at the Ministry of Development and she processed further details required by the office of the Permanent Secretary, after which the Permanent Secretary then rejected TED's application. She acknowledged that the Permanent Secretary had the discretion to act on his own in such matters and certainly deviates from the point that D1 was interfering in this regard.

• PW18 is currently a Senior Town and Country Planning Officer for the Brunei Government. PW18 had explained that there was a Memo dated December 18, 1991, that was given to her wherein the original site applied by TED was already given to ASIADIS Trading and General Contractor.

PW18 also confirmed that she saw a letter of appeal by TED regarding the application of TOL land at Kg Mulaut for 2.45acres in this regard. PW18 went on to state that she had drafted the letter signed by her senior to inform the Commissioner of Land that the site which TED was appealing was proper to locate their activities.

Nevertheless, despite maintaining that TCP was the authority responsible for allocation, there was no plan prepared for the allocation of 2.45 acres, which TCP confirmed to be proper: In this instance PW18 went on to qualify that this did not mean that TED should be given the site as it was subjected to the consideration from the relevant authority in line with the Government principles and policy concerning the granting of the site for industrial TOL land. This certainly was giving TED the run around.

She did not know whether companies can appeal directly to the Minister of Development and it clearly shows that PW18 was unaware as to whether D1 had a role to play in such approval if any. There is nothing in PW18's evidence to show such a fact in this regard.

• PW20 confirmed that the other applicants who occupied other plots in Mulaut were small/medium companies and it was costly for them to build road at that swampy area.

It was he, PW20, who came up with the proposed plot outside the original Mulaut Scheme and not D 1, as there were no other plots available. PW20 stated that the factors taken into account before allocating are that the applicants were issued the enforcement notices and TCP would look at the plot the companies were operating on previously, volume of activities and sizes of plots where they are operating.

TCP assessed and looked at four types of activities and allocated minimum of 0.25 acre per activity. There would also be a ceiling and the biggest allocation at the time was two acres. This was not a written rule but rather a practice at that time. We have to bear in mind that PW20 confirmed the companies were small or medium enterprises then.

• The aspect of PW23's testimony was that the ultimate source of funds for HRH Prince Jefri's Citibank accounts from which payments were made to TED and other contractors under IPS projects came from BIA- or BIA-controlled funds.

However, when D1 in his capacity as IPS, received the lump sum payment, the cheques bore the name of HRH Prince Jefri Bolkiah as it came from his account and the payments to various contractors were made by way of Citibank's Manager's cheques. The contractors would just acknowledge receipt at IPS office of the progress payments made through this mechanism.

There was no evidence to show D1 was aware or would have known that the sources of funds for those cheques from HRH Prince Jefri's account at Citibank would be from BIA or BIA controlled funds. PW23 was not aware of the rules and governance of BIA when those transfers from BIA were made to HRH Prince Jefri's accounts. On the face of it, when Citibank acted, on those transfers, the mechanism was proper and acceptable to Citibank.

It is interesting to note that even one of the sources of funds said to finance HRH Prince Jefri's account, the Istana Darul Hana account, the owner(s) was unknown and was not established.

• PW24 an accountant with TED was more concerned about the general accounts for TED and not specifically to the proceeds of sales of the shophouses on Lot 7O1 or the houses on Lot 33999 and an overall assessment and the cross examination of PW24 there is nothing to show the involvement of D1 on the matters testified by her. It is not denied that TED owed money to D2 who was funding TED on certain occasions when the need arose.

• PW26 was the Investigation Officer who required prompting in explaining why the case had taken such along time to proceed in court despite closing his investigations in 2002. He confirmed during the course of his investigations, he was aware of the statement made by D1 to his colleague about DI paying Wong Tim Kai the sum of $300,00 as part payment for the shophouse on Lot 701 and the sum of $500,00 for the house constructed on Lot 30823, using cash D1 accumulated from gifts of HRH Prince Jefri Bolkiah and the Palace over the years.

Substantial amount of cash and the envelopes bearing the crest of HRH Prince Jefri Bolkiah and the Royal Crest were found in the HSBC safe deposit boxes belonging to D1 during the investigations and this complimented D 1 's statement to the ACB in respect of the payments he made for the shophouse and the house on Lot 30823.

PW26 was aware that the delay in the release of the bank loan for the shophouse was because D1's daughter was away from Brunei.

There was evidence of the purchase of Lot 33999 and bankers' affirmations on the loans extended to D 1. For the first loan with Malayan Banking Berhad, D1 charged the land to the bank in consideration of the facility extended to him for the purpose of purchasing the land and eventual construction of houses thereon for sale.

This loan was subsequently settled by D1's loan with Baiduri Bank Berhad for the reasons, stated in the documents exhibited in the affirmation of Cynthia Chong (page 211 of the Bankers' Affirmation, in particular page 252). Amongst the reason was that Malayan Banking Berhad had threatened to recall the facility as the development of Lot 33999 had taken quite some time to start. This was due to the approval to change the condition of the land had taken a long time and D1 did not want to use his position to push for the approval.

Upon perusing the minutes and documents exhibited by the bankers' affirmations, D1's loan with Baiduri Bank Berhad had always been intended to be settled from the proceeds of sales of the houses to be constructed on the Lot 33999 and the personal guarantees from Wong Tim Kai were a requirement by the bank. the first facility letter from Baiduri Bank Berhad dated 28 February 1995 (p.225 of the Banker's Affirmation of Cynthia Chong), there was the assignment from the sale proceeds of all 24 houses to be constructed on the Lot 33999.

In another facility letter dated March 5, 1999, again all the proceeds of sale remained assigned to the Bank. D1 had explained his position in his letters to His Majesty (Exhibit P199) and that he had given powers of attorney to Wong Tim Kai over the whole 24 residential houses on Lot 33999.

In respect of the rentals paid to D1's house on Lot 3O823, the accountant Carol Lim (PW24) confirmed that the payments came from TED's bank account and not Wong Tim Kai's personal account.

The defence counsel's argument was that "for completeness it is not corrupt for a public servant to accept a reward for doing something collateral to and which did not compromises the performance of his duties as a public servant".

"However, on the basis that there is a presumption of corruption concerning public office the Prosecution, as stated by the then CJ of Singapore, Wee Chong Tin, it was sufficient for the Prosecution to prove three factual elements namely:

• A gratification was paid or given to or received by the accused person,

• At the time of the payment, gift or receipt the accused person was in the employment of the Government or a department thereof or a public body,

• The payment, gift or receipt was by or from a person who at the time of the payment, gift or receipt had or sought to have dealings with the Government or that department of Government or that public body, and

• Upon proof of the above then it is presumed that the gratification was paid or given or received corruptly as an inducement or reward for doing or forbearing to do an act in relation to the affairs of the Government or that department of Government or that public body unless the contrary is proved on the balance of probabilities.

"The correct approach to be taken by the Court is to ask itself whether it has found the primary facts to prove each and every -ingredient of the charges.

"It is our humble submission, even on the primary facts adduced without even appraising the veracity of the prosecution witnesses at the stage, there is a significant lack of evidence to prove each and every ingredient of the charges.

"There was nothing in the evidence to pin point that D1 had used his position to obtain the matters as referred in the charges."

Many of the Prosecution witnesses were either unable to recall due to the long period of time or were having "selective amnesia" as not to commit answer.

Instead there was the instance where TED was forced to absorb its arithmetical error and taken "advantage" of in carrying out the Mufti Earthworks. In respect of the TOL land application, D1 was exercising the powers conferred upon him by the 1986 regulations and guidelines (Defence exhibits D34 and D36).

The time taken for TED's application and appeal justified the eventual approval which was always subjected to coordination between TCP and the Land Office. For the Lot 701 Drainage and Roadworks, D1 was not involved in the negotiation of the quotation which the Roads Department and the Water Services Department deemed to be acceptable for approval. For the Kampung Tungku landless housing schemes, the awards of the contracts were approved by His Majesty based on the reasons submitted by D1 to His Majesty.

"With respect, it has not been shown during the course of the evidence produced by the Prosecution that D1 had used his position for the matters stated in the charges. The element of intention has not been proven in this regard," stated the defence counsel.

In concluding the defence counsel's case, Ahmad Basuni further submitted that there is not a jot of evidence to prove the link or connection between the dealings or transactions between Defendant No 1 and 2 and the actions undertaken by D1 in his position and his performance of his duties either as the Minister of Development or IPS.

"For the prosecution to avail itself of the statutory presumption to prove corrupt element in the transaction and corrupt intent or knowledge, we submit that the prosecution have to prove that the alleged favours or whatever acts done by D2 for D1 -are gratifications.

"Again there is insufficient evidence to show that these alleged favours, or whatsoever acts done by D2 for D 1 were gratifications.

"It is not corrupt for a public servant to accept a reward for doing something collateral to and which did not compromise the performance of his duties as a public servant."

The prosecution will submit a reply to the defence counsel's version of the case tomorrow.

Judge Gareth John Lugar-Mawson presided over the trial. -- Courtesy of Borneo Bulletin

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