Decision today on prosecution’s applications in judiciary couple case

Fadley Faisal

Ramzidah binti Pehin Datu Kesuma Diraja Colonel (Rtd) Haji Abdul Rahman and Haji Nabil Daraina bin Pehin Udana Khatib Dato Paduka Seri Setia Ustaz Haji Awang Badaruddin appeared before Justice Gareth John Lugar-Mawson in the High Court as the prosecution made its applications yesterday. In January 2020, Ramzidah 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 (CARO) over the properties which were seized by the Anti-Corruption Bureau (ACB) during their investigations and produced by the prosecution in the trial against the defendants.

The properties included monies held in Brunei local banks’ accounts belonging to the defendants and their two children, 19 vehicles and 456 luxury items including watches, handbags, accessories and shoes belonging to both 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 BND2,185,232.36.

The ACB Investigating Officer who conducted the financial analysis gave unchallenged evidence that the estimated value of the property in question is over BND4,945,714.07.

The prosecution submitted that it is clear the defendants’ legitimate income cannot reasonably account for the property.

It was emphasised 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 Ramzidah’s misappropriation.

Between 2008 and 2017, the defendants paid BND2,274,035 in cash for the purchase of 25 luxury vehicles. These cars were acquired within the same period of time that Ramzidah withdrew large amounts of cash from the Official Receiver’s (OR) account at Bank A which were under her control.

There are reasonable grounds to suspect that the vehicles are property from the proceeds of the monies that Ramzidah misappropriated, the prosecution claimed.

In challenging the prosecution’s application, three affidavits were produced in support of the defendants. However, Dato Setia Davinder 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.

Haji Nabil Daraina had 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 Haji Nabil Daraina’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 that afford far better protection to the state because any breach of the restraining orders is a criminal offence which can lead to penal consequences.

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

The prosecution reiterated what the ACB Investigating Officer 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 Ramzidah 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 Ramzidah to pay prosecution costs of BND1 million and Haji Nabil Daraina to pay prosecution costs of BND500,000. The sums represent 65 per cent of the actual costs incurred by the prosecution comprising 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.

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 Haji Nabil Daraina was high as he was only convicted of six money laundering charges.

Dato Setia Davinder SC reminded the Court that out of the BND15.75 million misappropriated by Ramzidah, BND6 million 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,” Dato Setia Davinder SC said.

He added that Haji Nabil Daraina was complicit in enjoying the benefits from the misappropriation carried out by Ramzidah.

“It is far-fetched to suggest that if the whereabouts of the BND6 million is known to the first defendant, she kept it a secret from her husband,” added the prosecution.

He further emphasised 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,” he urged.

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 Lugar-Mawson will hand down decisions today on the three applications made by the prosecution.

Also appearing for the prosecution were Deputy Public Prosecutors Hajah Suriana binti Haji Radin, Dayangku Didi-Nuraza binti Pengiran Haji Abdul Latiff and Muhammad Qamarul Affyian bin Abdul Rahman of the Attorney General’s Chambers with Navin Thevar of Davinder Singh Chambers LLC, Singapore.

Simon Farrell, QC and Sheikh Noordin Sheikh Mohammad, appeared for the defendants.