Pengiran Dr Hj Ismail bin Pengiran Hj Damit

Bandar Seri Begawan - There Is sufficient evidence on a prima facie basis to establish that the former development minister not only received from Wong Tim Kai valuable things concerned without due consideration but he also received from Defendant No 2 the `gratifications' particularised as an agent.

In any event, the whole issue of Istana Project Supervisor (IPS) is a 'red-herring'. Defendant No 1 (D l) is surely not contending that by virtue of his position, he was not a government servant and therefore entitled to give contracts to whoever he liked without any concern for established procedures in awarding contracts and without any interest in appearing to be fair to other contractors in this country. If that is the contention, it flies in the face of the obvious fact that IPS was also Minister of Development and that he signed all so-called IPS contracts twice; firstly in his capacity as Minister of Development and secondly as IPS.

All the contracts in this case were made by D1 on behalf of and were binding upon the government, whoever paid for the projects.

The prosecution team in the High Court trial against Pg Indera Wijaya Pg Dr Hj Ismail, defendant No 1, and in the absentia of defendant No 2 (D2), Wong Tim Kai, Managing Director of TED Sdn Bhd being the abetter to the graft charges against the first defendant, contended the defence counsel's submission from Saturday saying that there is "no case to answer".

The High Court will decide today whether the prosecution has a prima facie case in the corruption charges preferred against the former development minister.

Queen's Counsel Andrew Macrae, leading the team of Deputy Public Prosecutors Maggie Wong, Aldila Hj Mohd Salleh and Dk Hjh Hana Molina, told the court that there is a case to answer against the defendant.

"It is not suggested here that the evidence of any prosecution witness is so vague, discredited, confused or unreliable that no assumption can be made about its correctness for the purpose of determining whether the charges can ultimately be made out. Complaint is made by D1 (without particularity) that Prosecution Witnesses (PW) 1, 2, 5 and 15 were "evasive" in answering pertinent questions and that many of the witnesses either could not recall certain matters or had "selective amnesia" (paragraph 64). That is as far as the complaint at this stage goes. Rather, D 1 's submission is that there is no (sufficient) evidence to establish the ingredients of the offences. We shall examine the effect of the evidence for present purposes in due course."

The prosecution further submitted that in relation to counsel for Defendant No l's argument that there is insufficient evidence to show that there were any 'gratifications' received by the defendant as defined, it is undisputed that the defendant in fact obtained a house built on his own land at lot 30823 Kg Pengkalan Gadong by Wong Tim Kai at apparent cost price, and thereafter rental received from Wong in relation to the constructed house at B$5,000 per month, a one-third share (or eight houses out of 24) in relation to a development at Lot 33999, Kg Katok and a shophouse at Lot 701, Kg Kiarong.

As part of the latter two gratifications were certain banking facilities extended to the first defendant in which Wong acted as guarantor whilst, in respect of the Lot 33999 development, all the payments of overdraft in relation to the bank facility were made by Wong on the former minister's behalf.

Common to all of these alleged gratifications is the absence of any evidence at all of any financial contribution by the then minister until, say the prosecution, he realised the Anti-Corruption Bureau were investigating his relationship with Wong and asking questions about the Lot 701 development. Had his arrangement with Wong proceeded according to plan, and without the advent and scrutiny of an investigation, the minister would have received the benefit of a total of nine domestic properties (eight in Lot 33999 development and one in Lot 30823), including a total rental of $465,000 for Lot 30823 (between July 1992 and May 2001) and one commercial shophouse together with shop rental of some B$260,000 up to the date of the drawdown of the loan in April 1999, without having paid a single cent.

While arguing the defence's declaration that there is no case to answer, on the basis of the evidences, the prosecution pointed out to the court that: Neither defendant is charged on the basis that D1 showed 'favour' to D2: rather, it is alleged that DI performed certain 'acts' in relation to his principal's affairs in respect of which he received both inducements and rewards from D2 in the form of substantial gratifications over several years. As a minister of His Majesty's Government, D1 would not have wanted to be seen blatantly favouring or acting on D2's behalf. Yet, the evidence establishes that D1 did a number of significant acts concerning D2, which he had never done before in relation to any other contractor.

Firstly, D1 gave D2's company a sizeable housing project at Kg Tungku Phase III Package 3 (worth almost B$5.5 million) when the normal and proper thing to have done was to call for open tenders, as both Prosecution Witnesses (PW) 1 and 2 repeatedly recommended and when there was more than enough time to call such tenders and apply for the necessary budget. The question of opening a tender was first discussed with D1 and, despite recommendations to call an open tender thereafter, D1 instructed the Public Works Department (PWD) not to tender through his minute. Instead the contract was given directly to D2, notwithstanding that PW2 regarded Package 3 as "an independent project", and even D2 by did not regarding the project as a variation of the earlier housing package, hence his request at that stage for an extra B$200,000 by way of preliminary expenses.

As PW2 said in cross-examination: "Because of the magnitude of this project, I have never come across any project which had a variation order of this magnitude."

The prosecution also emphasised that "reliance is placed by defense counsel on the consent from His Majesty for DI's recommendation on 29th November 1993 that this project be given to TED as the contractor on site, as if this consent somehow absolves D1 from responsibility for his decision. However, what His Majesty was not told in DI's letter was that in mid-1993

D2 had just completed building a house for D1 on DI 's land and three days before his letter, D2 had deposited B$200,00 into D1 's bank account representing four months' rent. Had His Majesty been fully informed of the relationship between his minister and the contractor he was recommending, one wonders what His Majesty might have said and what his decision might then have been".

Secondly, Lambak Kiri 27, another sizable housing project (worth over B$3.1 million) was given directly to D2's company in July 1995 (significantly three months after the Lot 701 shophouse Sale and Purchase Agreement between D2 and D 1 's daughter was signed in April 1995). IPS projects were invariably arranged by a list of selective tenderers being drawn up to be invited to bid: no witness has accepted that IPS projects were given by way of negotiated tender to a single designated contractor.

Thirdly, Drainage and Roadworks project was awarded to D2's company al o by way of negotiated tender on 29th March 15, five days after D2 signed the personal guarantee for Dl's Baiduri Bank overdraft facility in respect of the Lot 33999 development (24th March 1995), and 19 days before the Lot 701 chophouse Sale and Purchase Agreement was signed. Indeed, D2 was in the vicinity of the proposed works but he was there as the developer of a private development which had nothing to do with the Government at Blocks A, B, C and D at Lot 701 and as leasehold owner of Blocks C and D. Quite-apart from the sheer scale of the ensuing variation orders which dwarfed the original project by more than six times its value, four of the variation orders were not in reality variation orders at all within the scope of the original works and some had nothing even remotely to do with the original Drainage and Roadworks project, or even the variation orders themselves.

PW3 expressed himself in his evidence as follows: "At that time I was actually quite amazed that such a large scope of work in the sum quoted in Variation Order No 2 (B$5.418 million) was approved as a variation order."

The prosecution explained that contrary to counsel for DI 's submissions that D1 was not involved directly in the negotiation of quotes from TED for the original project and the subsequent variation orders (VO), D1 instructed the Director of Roads to obtain a quotation from TED alone; approved the quotation; instigated the obtaining of a quotation from TED for the works in Variation Order 2; instructed that the works be done by way of variation order; approved VO 2; instructed the construction of a carpark to be included in VO 3; approved VO 3; instigated the works in VO 4; approved the quotation for VO 4 and VO 4 itself; approved the quotation for VO 5; and approved VO 5 itself.

At no stage did D1 abide by the Ministry of Development's own memorandum of Std January 1984 from the Permanent Secretary in respect of approvals for variation orders of more than B$150,000 being made by His Majesty.

Fourthly, the earthworks project was the first time, according to a number of witnesses, that the minister had intervened to get a contractor to reinstate a defective tender bid, refused the Chief Quantity Surveyor's recommendation on behalf of the Project Management Team of a company which had fully complied with the tender requirements and period and which was considered the best in terms of quality of work, and chosen another company which did not even comply with the tender period. No witness, in particular the project manager and architect PW10, was able to say what Dl's reasons for his actions really were not nor did D1 commit his reasons to paper. It is said by defence counsel that D1 took advantage of TED's arithmetical error to choose the lowest (but the longest completion time) tender. Of course, as the earthworks witnesses acknowledged, there were potential penalties for withdrawing a tender; one of which, according to PW7 was not to be allowed to participate in any future government projects.

The consequences of TED's mistake were potentially very serious if D2 withdrew.

Fifthly, Dl's actions on behalf of D2's company in-relation to its application for TOL land appear to have been unprecedented. Far from giving TED "the run around", it rather appears that the relevant government officers were doing their best within the constraints of available land and the current practice and policy for granting TOL land within the various departments responsible. With respect, neither PW12 nor his senior were `mistaken' about D2's eligibility, they were simply applying a practice and policy that land could not be held in Brunei Darussalam other than in the name of a Brunei citizen, a policy which Dl himself acknowledged in his memorandum to the Permanent Secretary on 2nd July 1991 but which he then proceeded to change for D2's benefit. Even after the TOL Committee had decided following D1's intervention that TED should be given 1.3 acres, D1 intervened again in early March 1992 without calling a TOL Committee meeting to approve 2.5 acres being granted to TED subject to availability.

This ministerial instruction appears to have confounded the relevant departments used to a procedure in which an assessment and allocation was normally made first by the Town and Country Planning Department (TCP) before approval was given by the TOL Committee chaired by the Permanent Secretary. PW18 seems to have been at a loss to know what to write in his resulting memorandum to the Senior Land Officer since it was the first time he had to write such a memorandum, while PW16, the Senior Land Officer tasked with executing this instruction, felt he could only approve 1.3 acres, which was the only formal approval from the TOL Committee he had received.

D1 intervened yet again in June 1994 by convening a meeting with the departmental officials responsible and simply directing that TED be given five acres of TOL land.

This meeting was evidently prompted by D2's letter dated 18th April 1994 sent directly to D1 appealing for five acres. Quite apart from the fact that no company had ever been given more than two acres of industrial TOL land in any of the three sites set aside for this purpose, this was the first time a company was given five acres.

On this occasion the relevant departments were required to execute the instruction and find five acres, which PW22 managed to do by finding a plot just outside the original Mulaut industrial area.

The prosecution says that D1 's interventions on behalf of TED, while they may have been open to someone wielding his undoubted power, were unprecedented in relation to TOL industrial land. Significantly, Lot 33999 became registered in DI's name in March 1994 and the balance of the purchase price for the Lot 33999 development was provided by Maybank on 10th March 1994 when

D2 personally guaranteed D1 's loan in the sum of B$1.35 million and pledged his fixed deposit of B$2.7 million to the bank. A month later, D2 wrote to D1 appealing for five acres of TOL land. In June, D1 instructed that he be given the full five acres. -- Courtesy of Borneo Bulletin

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