Applied For Restraining Order over Seized Properties

Ramzidah binti Pehin Datu Kesuma Diraja Retired Colonel Hj Abdul Rahman and Hj Nabil Daraina bin Pehin Udana Khatib Dato Paduka Seri Setia Ustaz Hj Awg Badaruddin appeared in the High Court today before Justice Gareth Lugar-Mawson. In January 2020, the First Defendant was convicted for criminal breach of trust offences, and both were also convicted for money laundering offences. The Prosecution, led by Dato Setia Davinder Singh SC, applied for a restraining order under section 49 (1) of the Criminal Asset Recovery Order, 2012 over the properties which were seized by the Anti-Corruption Bureau during their investigations and produced by the Prosecution in the trial against the Defendants.

These properties included monies held in Brunei local banks in respect of accounts belonging to the Defendants and their two children, 19 vehicles and 456 luxury items belonging to both the Defendants. In the trial heard in 2019, evidence was produced to state that the Defendants' total income from verifiable sources unrelated to criminal activity between 2003 and 2017 was 2 million 185 thousand 232 dollars and 36 cents. The ACB Investigating Officer who conducted the financial analysis gave unchallenged evidence that the estimated value of the property in question is more than 4 million 945 thousand 714 dollars and 7 cents. The Prosecution today submitted that it is clear the Defendants' legitimate income cannot reasonably account for the property subject of its application. Further, it was emphasized by the Prosecution that the Defendants have not produced any evidence to legitimately explain their disproportionate wealth since the investigations began in January 2018. The Trial Judge had also accepted that between 2011 and 2017, large amounts of cash deposits were made into the Defendants' accounts from the proceeds of the First Defendant's misappropriation.

Between 2008 and 2017, the Defendants paid a total of 2 million 274 thousand and 35 dollars in cash for the purchase of 25 luxury vehicles. These cars were acquired within the same period of time that the First Defendant withdrew large amounts of cash from the Official Receiver's account at Bank Islam Brunei Darussalam which were under her control. There are reasonable grounds to suspect that the vehicles are property that can be reasonably believed to be the proceeds of the monies that the First Defendant misappropriated.

In challenging the Prosecution's application, three affidavits were produced in support of the Defendants. However, Dato Setia Davinder Singh SC highlighted that there is no evidence from these affidavits to suggest that any of the properties which were subject matter of the Prosecution's application were funded by the family members' financial contributions.

The Second Defendant have also prepared an affidavit in which he relied on the statutory declaration he submitted to the ACB as required from him during the investigations. According to the Prosecution, the document does not fully account the source of funding of the bank accounts held under the Second Defendant's name.

Simon Farrell QC objected to the application made by the Prosecution as the properties in question have already been seized by the investigators and freezing orders have been issued to the banks to restrict the disposal of the monies.

In reply, Dato Setia Davinder SC stated that the current seizure and freezing orders are different from judicial restraint orders and affords far better protection to the State because any breach of the restraining orders is a criminal offence which can lead to penal consequences.

Simon Farrell QC also objected to the restraint over a number of accounts belonging to the Defendants and their two children on the basis that they monies held in those accounts were from their salaries and allowances.

The Prosecution reiterated what the ACB Investigating Officer have said in her affidavit in respect of these bank accounts. Her financial investigations reveal that cash deposits were made into those accounts, some of which were made several days after the First Defendant made large withdrawals from the OR accounts. This shows that the monies have co-mingled and therefore, have become tainted properties under the law and are to be regarded as proceeds of crime.

The second application made by the Prosecution was for the Defendants to pay prosecution costs as provided for under the Criminal Procedure Code. The Prosecution sought for the First Defendant pay prosecution costs of 1 million dollars and the Second Defendant to pay prosecution costs of 500 thousand dollars. The sums represent 65 percent of the actual costs incurred by the Prosecution comprising of professional fees of foreign counsel and other related disbursements and costs incurred in relation to the investigations against the Defendants including storage and maintenance fees and insurance coverage for vehicles seized from the Defendants.

Simon Farrell QC objected to the Prosecution's application for cost as the Defendants do not have any means to pay. Additionally, he stated that the cost sought against the Second Defendant was high as he was only convicted of 6 money laundering charges.

Dato Setia Davinder Singh SC reminded the Court that out of the 15 point 75 million dollars misappropriated by the First Defendant, 6 million dollars still remains unaccounted for.

It would not be right to allow the Defendants to say they have no means if they withhold information in relation to the whereabouts of the monies unaccounted for. He added that the Second Defendant was complicit in enjoying the benefits from the misappropriation carried out by the First Defendant. It is far-fetched to suggest that if the whereabouts of the 6 million dollars is known to the First Defendant, she kept it a secret from her husband.

He further emphasized that the State has had to carry the burden of considerable costs to prove the Defendants' conduct and ensure that justice was done. The Defendants must bear responsibility for the State's burden.

The final application made by the Prosecution was to lift the stay of the charges under section 12(1)b of the Prevention of Corruption Act against the Defendants for having in their possession properties which were disproportionate to their emoluments. The stay was ordered by Justice Lugar-Mawson in October 2019 after the Prosecution closed its case.

The defence objected to the application on the grounds that it should only be heard in the Court of Appeal after the appeals against the Defendants' convictions are decided. Justice Gareth Lugar-Mawson will deliver his decisions on the three applications made by the Prosecution tomorrow, at 2 in the afternoon.

Source: Radio Television Brunei