Chapter One:
Introduction
1.1 Background to the study
Corruption is the single greatest obstacle to economic and social development around the world. Every year $1 trillion is paid in bribes, while an estimated $2.6 trillion are stolen annually through corruption – a sum equivalent to more than 5 per cent of the global GDP. In developing countries, according to the United Nations Development Programme, funds lost to corruption are estimated at 10 times the amount of official development assistance (ODA). But corruption does not just steal money from where it is needed the most; it leads to weak governance, which in turn can fuel organized criminal networks and promote crimes such as human trafficking, arms and migrant smuggling, counterfeiting and the trade in endangered species.
As a result, corruption affects everyone and can lead to:
i. Less prosperity: Corruption stifles economic growth, undermines the rule of law, and squanders talent and precious resources. Where corruption is rife, companies are reluctant to invest as the costs of doing business are significantly higher. In corrupt countries which are rich in natural resources, the population often does not benefit from this wealth. Corruption also weakens safety and security structures such as the police services. Ultimately, corruption prevents people, countries and businesses from fulfilling their potentials.
ii. Less respect for rights: Corruption undermines democracy, governance and human rights by weakening State institutions that are the basis for fair and equitable societies. Vote buying at election times harms the democratic process and justice is challenged when criminals are ableto bribe their way out of trouble. Indigenous peoples and women are particularly vulnerable to corruption. Given their geographic and social exclusion, and lack of access to legal protection available to other members of society, their economic, social and cultural rights are threatened by corruption.
iii. Less provision of services: Corruption diverts funds intended to provide essential services such as health care, education, clean water, sanitation and housing. When officials are corrupt, this represents a major hindrance to a Government’s ability to meet the basic needs of its citizens. In countries where international aid is meant to improve the quality of life, corruption denies this and can put future funding in jeopardy.
iv. Less employment: When jobs are given not on merit but through nepotism, opportunities are denied. Often for the poor, women and minorities, corruption means even less access to jobs. Additionally, as corruption discourages foreign investment, this leads to fewer employment opportunities.
Rooting out corruption has become critical to the achievement of targets such as the United Nations’ Sustainable Development Goals, while fighting this scourge is a major policy priority for development agencies and a rapidly increasing number of countries. When lucrative contracts are up for grabs, bribery, fraud and embezzlement can plague large-scale infrastructure projects. Corruption can lead to money being stolen and infrastructure not being built or it can result in half-built or sub-standard – and at times dangerous – infrastructure. Money can also be allocated to sectors where needs are not the greatest, but which offer the best prospects for personal enrichment. A hospital, for instance, might be sorely needed, but kickbacks for people in power could result in a far less needed project being given priority. Ultimately as contracts are awarded to inferior companies, the quality of work is compromised.
Even the aftermath of disasters can provide opportunities for corrupt operators to thrive. Roads, bridges, tunnels, perhaps entire communities, have to be rebuilt. Surveyors have reported corrupt accounting and tendering practices, poor workmanship, bad planning and design, and issues with land rights in disaster-hit areas, hampering long-term recovery or reconstruction.
Educational fraud and playing with our children’s future examples of corruption in education abound. Academic fraud, for instance, is rife in many countries and is regarded as a serious threat to integrity and reliability of certification in higher education. Procurement wastage in the education sector, including school buildings, false maintenance costs and text books paid for but never received, costs the public dearly. And “ghost” or absentee teachers who feature on the list of active teachers in schools are a huge drain on public spending. As a result, educational performance among the poorest populations is severely hampered and the system’s ability to deliver is harmed.
However, counting the impact of corruption in education goes beyond adding up immediate financial costs. Ensuring that educational funds are invested and administered in a fair and transparent manner protects a country’s most valuable asset, its children. If young people come to believe that or university admission and marks can be bought, a country’s economic and political future is in jeopardy and this entrenches a culture of corruption. Students may graduate with poor skills and thus contribute less to the economy and public sector.
Corruption: Not good for your health Corruption results in the loss of enormous amounts of limited public health resources. For example, in developed countries, fraud and abuse in health care has been estimated to cost individual Governments between $12 billion and $23 billion per year. In the pharmaceutical sector, vast amounts of money – up to $50 billion – are spent every year on products: a market so large that it is extremely vulnerable to corrup-tion6. Recent estimates from the World Health Organization have shown that as much as 25 per cent of medicines which are procured can be lost to fraud, bribery and other corrupt practices. (www.anticorruptionday.org)
Investigation of corruption depends on a number of variables, the first of which is detection. As official corruption is by definition committed by government officials, its detection may be difficult because of its hidden nature, but also by the ability of government officials to intimidate subordinates who are in a position to reveal the corruption or to threaten the funding of law enforcement agencies which have jurisdiction over them.
The Federal government and most states have “whistle-blower” lawswhich protect those who reveal corruption, but there are no protections against retaliation by corrupt politicians against law enforcement agencies who investigate them. Whistleblowers are responsible for many investigations into corruption, both by providing information directly to law enforcement agencies and by contacting the media, which may launch its own investigation. However information from an informant is only the beginning, as many tips do not result in investigation, let alone conviction. Official corruption may range from free restaurant meals provided to police officers to bribes paid to high-ranking federal officials by stock manipulators. In the US, many corruption investigations involve illegal contributions made to political campaigns. In such cases, detection is frequently accomplished by agencies created for that very purpose, in contrast to other types of corruption that are investigated only after tips provided by whistle-blowers and other citizens. Thus, detection may take place in a proactive or a reactive manner. Regardless of how the alleged illegal activity is detected, a decision must be made to investigate or not. Such decisions should rest solely on sufficiency of evidence, but in practice are influenced not only by evidence but also by the availability of resources and by the political considerations. The resource problem in the US is frequently a function of the federal system and its decentralized law enforcement. While the US has more law enforcement officers per population than most othercountries, 60% of all local police departments employed fewer than 10 full-time, sworn officers. Few local law enforcement agencies in the US then have the capability to investigatesignificant cases of official corruption. Political influences may range from threats of retaliation by those targeted, to fear of exposing community influential; but it is safe to say that there are virtually always political factors in any decision to investigate official corruption. There are, of course, legal considerations when undertaking an investigation of official corruption. Law enforcement agencies must observe all constitutional and statutory guidelines, with particular emphasis paid to search and seizure, which may include electronic eavesdropping, and entrapment, frequently an issue in “sting” operations.
Law enforcement agencies normally consult with prosecutors on such legal issues. There are 50 different state penal codes, the US Code, and precedent(common law) from appellate courts in each state, federal circuit courts of appeal, and the US Supreme Court, all of which must be considered when undertaking an investigation. Thus, the legal preparation and monitoring of a major corruption investigation is frequently complex and lengthy, and often involves search warrants which must be approved by judges. A successful investigation, therefore, is highly dependent upon adequate resources and the quality of and cooperation between law enforcement, prosecution, and the judiciary. And they are all dependent upon legislation that clearly delineates what constitutes official corruption.
(Anthony Didrick Cast berg CURRENT PROBLEMS IN THE FIGHT AGAINSTCORRUPTION AND SOME POSSIBLE SOLUTIONS: US PERSPECTIVE)
1.1.1 CHALLENGES IN INVESTIGATION INTO CORRUPTION CASES
The development of technology and globalization has an impact on the nature of corrupt transactions. Most of the corrupt offenders now are well educated and able to conceal their tracks and hide their corrupt transactions. In response to these changing trends, law enforcement officers are expected to be specialized and expand their investigation into a much wider scope, such as;
1. Multiple Jurisdictions: In our experience conducting investigation across borders, few limitations were identified such as the obtaining of evidence of bank accounts, location of foreign witnesses, recording of statements of foreign witnesses and location of accused persons. To overcome these obstacles, it is crucial for anti-corruption agencies to establish close coordination and cooperation with other anti-corruption agencies. Through this, agencies are able to gain mutual understanding in terms of the needs, urgency and the limitations. With good networking, close relations and trust would help such agencies overcome limitations and improve assistance. This would contribute to a timelier and faster investigation process and avoid unnecessary delay. In this regard, the Bureau would like to share one of our successful cases which involved other jurisdictions, namely the Malaysian Anti-Corruption Commission (MACC), Malaysia and the Corrupt Practices Investigation Bureau (CPIB), Singapore. This case involved a vendor with the Brunei Shell Petroleum SdnBhd who was convicted on 40 charges under the Prevention of Corruption Act and the Penal Code (62 charges were taken into consideration during sentencing) for submitting false claims and bribery to the Brunei Shell Petroleum SdnBhd employees in the process. Prior to his trial, the Brunei Court has issued a warrant of arrest as the defendant had absconded to Malaysia. Through the use of Summons and Warrants Act (special provisions) (Cap 155), the warrant of arrest was executed with the assistance of the MACC and the defendant was subsequently arrested by the MACC and was surrendered to the Anti-Corruption Bureau’s officers at the Brunei border. The defendant pleaded guilty to 40 charges and was sentenced to 6 years and 4 months imprisonment. The court also ordered the defendant to pay a sum of BND180, 000.00 for the prosecution’s cost and under the Benefit Recovery Order, the defendant was ordered to pay SGD$219,838.10 and USD326, 174.55 from his accounts in Singapore. With the assistance from CPIB Singapore and the Central Authorities of Mutual Legal Assistance from both countries, the Bureau was able to obtain the corrupt proceeds from the accounts which were frozen by the authorities in Singapore.
2. Evidence Management Many corrupt givers or receivers now are able to camouflage the corrupt funds in the forms of commodities such as loans, benefits or other concessions.
Unlike the crime of murder, investigators do not have the opportunity to mount a crime scene investigation, but instead investigators are required to do money-trailing investigation and compile documentary evidence to support their cases. Therefore the analysis of documentary evidence such as bank accounts, contract agreements, phone records, log books, etc. is important to build up the case which will eventually result in successful conviction. This requires expertise and additional efforts by anti-corruption officers. In this regard, the Bureau has over the years invested in creating specialized officers with computer, accounting and legal backgrounds. The officers are tasked to make analysis of bank accounts or payment vouchers relating to corruption which has already been committed. These officers are also tasked to extract evidence or records stored in a computer or database to be used as corroborating evidence. Officers with legal backgrounds are also required to study special conditions imposed on contract agreements and legal documents pertaining to the case investigated when required. The Bureau also placed great importance in the ability to obtain evidence stored in electronic devices such as mobile phones and computers. The Bureau has continuously trained officers to keep them up to date with the latest development of technology and how to acquire evidence from electronic devices legally and professionally. This also includes the ability to digitize hard copy evidence, and this has proven to assist investigating officers in saving a lot of time sifting through the evidence as the information has been streamlined and focused on
the chain of events. This has also enabled investigators to make better presentations to the Prosecutors before the case is brought to court for prosecution.
3. Electronic Surveillance Following the changing trends of corrupt transactions, our investigators have been tasked to shift from the conventional ways of investigation into more proactive and sophisticated investigation. The usage of special investigative means such as wire-tapping, undercover officers, telecommunication interception and consensual recordings are regarded as one of the important tools in obtaining evidence of corrupt acts. However it requires skilled officers to mount these special investigative techniques and the deployment of undercover officers to obtain the evidence. One of the most important things to note is that, in order to use evidence obtained by these techniques, it must meet the legal requirements to be presented in court as well as internal safeguards to prevent abuse.
4. Interviews Many would agree that an interview is the main integral and perhaps the most challenging part of investigation. This is because corrupt transactions often do not involve any eyewitness and investigators often have to rely on documentary evidence or leads based on the information received. Most of the corrupt offenders or witnesses are frequently hostile when being interviewed. This is due to negative perception or fear of being implicated to the crime. As such, before conducting the interviews, ample time was given to the recording officers to study a comprehensive chronology of events, case backgrounds, supporting documents and antecedents to equip them during the interview. It is important to note that, recording officers should possess strong interviewing skills, be well versed in laws and procedures, possess patience and persistence and should be able to exercise discretion. With these skills, interviewing officers will be able to obtain accurate and reliable information from witnesses efficiently and professionally.
1.1.2 CHALLENGES IN PROSECUTING CORRUPTION CASES
Prosecution is simply the process of trying to prove in a court of competent jurisdiction that somebody is guilty of a crime for which he/she has been duly charged. The success or otherwise of prosecution will depend on several factors amongst which are;
1. Cooperation from person/institutions who should furnish relevant information;
2. The quality of evidence gathered at the investigation stage.
3. The transparency of investigation of the case itself.
4. The prosecutorial competences of the prosecuting counsel.
5. The transparency and fairness of the presiding judge in the trail.
6. Lacunas or gaps in the law guiding law guiding prosecution.
(Nuhu Ribadu Esq.
OBSTACLES TO EFFECTIVE PROSECUTION OF CORRUPT PRACTICES AND FINANCIAL CRIME CASES IN NIGERIA )
“Where corruption is concerned, one can readily see the need within reason of course for special powers of investigations and provisions such as ones requiring an accused to provide an explanation. Specific corrupt acts are inherently difficult to detect let alone prove in the normal way”—Bokhary JA in AG v Hui Kin-hong [1995] 1 HKCLR 227. It has long been recognized that corruption is not only challenging to investigate but also challenging to prove in court. Prosecution of corruption is a particularly difficult endeavor, and it is not without its challenges.
In Brunei Darussalam, no prosecution for an offence under the Prevention of Corruption Act (cap 131) shall be instituted except with the consent of the Public Prosecutor. So the Public Prosecutor’s consent will not only operate as a statutorily imposed obligation upon the Public Prosecutor to take special care in the decision to prosecute but it also serves as a check and balance. Hence the importance of the Public Prosecutor’s consent reflects a recognition by the legislature that the crime of corruption has special difficulties associated with it and very great care is needed in determining whether or not to prosecute any given corruption case.
1. Prosecutorial Decision The first challenge in prosecuting a corruption case lies in the decision making of whether or not to prosecute and secondly who to prosecute. The first hurdle is usually easy to overcome when the investigation clearly shows enough evidence to prosecute a certain party. The second challenge is also not daunting when investigation shows one party is more credible and reliable; then, he/she will not be charged and will be used as a witness against the other party. The difficulty lies when the evidence gathered are just showing the words of the giver against the words of the receiver without any other supporting evidence. Who would be more believable in this case? Should we charge both the parties without the availability of any otherindependent evidence? Should we charge the person who reports to the ACB first? These are the questions that come to mind before such a decision is made in these circumstances. In terms of prosecution, Brunei are prepared to prosecute both givers and receivers of bribes, just as can be seen in one of our high profile cases against the ex-Minister of Development of Brunei, where he was charged as the receiver together with the giver of the bribe in one trial. But this kind of prosecution is only done with other independent supporting evidence against both the giver and the receiver of the bribe because if we prosecute all parties in all corruption cases, who are going to give evidence for the prosecution. This can present some challenge especially when there is not much independent evidence apart from what the giver and receiver say about the crime. Hence it is not usual for us to prosecute both receivers and givers of bribes.
2. Handling Difficult Witnesses In most corruption cases the only people with direct knowledge of the offence are the two people who commit it, the giver of the bribe and the person receiving the bribe. It is for this reason that very often such crimes only come to light when there is a falling out between the two individuals concerned, but in most corruption cases received by the AGC, one party is usually more culpable than the other as the other is usually an accomplice to the crime by way of an imposition, pressure or fear. Under section 28 of the Prevention of Corruption Act (Cap 131), no witness shall be presumed to be unworthy of credit just because he or she is an accomplice to the corrupt offence. Although our legislation provides sanctity to these accomplices, in reality the accomplices still feel some reservation towards prosecutors and will always minimize their role when telling their side of the story as they fear that they are being incriminated as being guilty in the abetment of a serious offence. Thus, prosecutors face the challenge of procuring information from a person who is reluctant to reveal the whole truth.
3. Multiple Defendants—Joint Trial or Separate Trial In most cases received by the Attorney General’s Chambers the evidence gathered are mostly from one side only, i.e. either from the giver only or from the receiver only. The majority of corruption cases also usually involve one or two defendants who had given or received gratification from or to another individual. However, there has been an increasing number of recent cases where bribes are given by one party to multiple recipients. This has posed a new challenge in prosecuting corruption of multiple defendants.
In an attempt to understand the challenges in this rising occurrence, the case, which was recently handled by the Attorney General’s Chambers, of a diesel smuggling ring is referenced. The case is about a Malaysian fuel smuggler, Mr. K, who gave bribe money to various Brunei Customs officers ranging from senior officers to junior officers working at the Brunei border customs control post. Mr. K and his gang were smuggling diesel out of Brunei to Miri, Sarawak because the price of diesel in Brunei is far cheaper than in Miri, Sarawak. The bribes were given in order to allow Mr. K and his gang to come in and out of Brunei from Miri, Sarawak freely without any inspection of his vehicles that were carrying diesel out of Brunei inside big modified fuel tanks, which is an offence under the Customs Order of Brunei. The bribes given to the senior customs officers were in bigger amounts to ensure that those officers would instruct the junior officers on duty at the customs booth of the Brunei border to not give any problems to Mr. K and his gang whenever they enter or leave the Brunei border and to give information to Mr. K and his gang whenever any raids by customs prevention officers were going to be conducted so that Mr. K and his gang would know when not to come in to Brunei to carry out their fuel smuggling activities.
The investigation into this case by the ACB was conducted jointly with the Malaysian Anti-Corruption Commission (MACC), and at the end of the operation, 38 customs officers were arrested and investigated. When the investigation files were submitted to the Attorney General’s Chambers, it was clear from the outset that this was a huge case involving many defendants and witnesses and voluminous documents. After painstakingly reviewing and examining the evidence presented, the Public Prosecutor decided to charge 6 senior customs officers and 15 junior customs officers.
The next challenge was to decide whether to hear the case as one trial or separate trials. For all 21 defendants, there were at least five common main prosecution witnesses who hail from Malaysia, so if the cases were split into 21 separate trials, these five foreign witnesses (three MACC officers and two fuel smugglers) would have to come to Brunei at least 21 times.
This is one of the main reasons why the prosecution wanted to limit the trial to just two separate trials, one trial for the senior officers and one trial for the junior officers. The prosecution was also aware that there were only six Magistrates, one Intermediate Court judge and two High Court judges for the whole of Brunei who would be able to hear the case on top of the already hundreds of cases they hear. So this was another factor for the Public Prosecutor to consider—that if the trials were separated into 27 trials between just six Magistrates or just one Intermediate Court judge or just two High Court judges, the trial would go on for a very long time. In the end, the prosecution decided to bring the six senior customs officers’ cases to be heard in the High Court as there was a lesser chance of the cases getting adjourned compared to hearing the cases in the lower courts. Unfortunately, the prosecution lost the argument in the High Court to have all six senior customs officers tried in a single trial as the court ruled that each defendant had different major roles in the corrupt activity and that the bribes received from Mr. K were at different times and places so the High Court referred the six senior customs officers’ cases to the Magistrate Court for separate trials. With regard to the 15 junior customs officers’ cases, the prosecution had a better chance of having it heard in a single trial in the Intermediate court because in the end prosecution preferred an additional single conspiracy charge against all 15 defendants to glue them together as the offences committed by all 15 defendants were very similar in nature and were very close in proximity of time and also committed at the same place. The trials for the six senior customs officers started in 2010 and to date only two out of the six trials have concluded—the defendants were found guilty. The other four are still waiting for the conclusion of trial. With regard to the case of the 15 junior customs officers, the trial never even started as there were too many delays caused by the unavailability of court dates, and finding a common date for all parties (the court, the DPP and the eight defence counsels handling the matter) was sometimes impossible; then there was also the issue of the main prosecution witnesses’ unavailability and that their availability was something to fight for between this case and the cases of the other six senior customs officers’ trials as well. So in the end after not starting the trial of the 15 junior customs officers for three years after they were all first charged, the Public Prosecutor decided to enter Nolle (nolleprosequi) on all charges against the 15 defendants, and they were all discharged not amounting to acquittal in order to give way for them to be dealt with administratively by another penal authority.
4. Dealing with Foreign Witnesses and Foreign Jurisdictions In Brunei, we do not have the power to compel a foreign witness to give evidence in our courts unless the witness is from Singapore or Malaysia: witnesses from these countries may be compelled to testify by our courts under the Summonses and Warrants (Special Provisions) Act. Hence, if the prosecution wishes to call a foreign witness there is no guarantee that we could secure their attendance without their own voluntariness to come to Brunei to give evidence. The AGC once conducted a trial which involved witnesses from Indonesia who had given bribes to a Bruneian who was working as a Counselor at the Brunei Embassy in Jakarta. The said Counselor had demanded moneys from these witnesses who were freelance human resource agents as a reward for processing their application which were not supposed to be allowed by the Embassy at the time. Some of these witnesses hesitated to come to Brunei to give evidence against the Counselor as they feared for their safety, especially in a foreign land. Since Brunei does not have a witness protection scheme/programme, the prosecution was unable to give them any assurance with regards their safety so in the end prosecution had to drop a few charges against the Counsel just because the main prosecution witness who was a foreigner did not want to come to Brunei to give evidence. For those foreign witnesses who are compellable to give evidence in Brunei just as in the diesel smuggling case mentioned above, another set of challenges were presented to prosecution. It is the usual practice for Magistrates to reserve two weeks for a trial. However, these trial dates are prone to be taken away by other higher-priority cases (usually partly heard trials) heard before the same Magistrate. It was also not unusual for the trial to be postponed due to an illness on the defendant, defence counsels, witnesses, magistrates or prosecutor. This problem affects the timing of when the foreign witnesses should fly in from Malaysia. The prosecution requires a specific time for those witnesses to appear in order to get the necessary approval from the authorities to purchase air tickets and accommodations. There were a lot of instances where those foreign witnesses had come to Brunei but the trial is suddenly adjourned due to the earlier mentioned reasons. These adjournments do not only mean waste of time for those foreign witnesses who had to be flown in to Brunei but also cancellations of hotel rooms and re-booking of air tickets which is administratively and financially burdensome. The prosecution also had to deal with personal problems of those foreign witnesses especially the fuel smugglers. At the beginning of the prosecution, the fuel smugglers were afraid for their own personal security because of the perceived threats from the senior customs officers, especially when they go through the control posts so they were a bit reluctant to come to Brunei at first, but constant protection and close cooperation by the ACB with the fuel smugglers succeeded in reducing their fear. (DatoPadukaHj Muhammad JuandaHjA.Rashid* ShamshuddinKamaluddinCURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND ADJUDICATION OF CORRUPTION CASES IN BRUNEI DARUSSALAM)
1.1.3 Tracking, according to the Cambridge Advance learner’s dictionary is to follow a person or animal by looking for proofs that they have been somewhere, or by using electronic equipment. (Cambridge Advance learner’s dictionary 3rd edition). To observe or plot the moving path of (something, such as a spacecraft or missile) often instrumentally. Tracking systems provide law enforcement the ability to track the movement or identify the location of persons, objects or stolen assets (including current and fixed). A search warrant or a court order may be required to conduct tracking depending on the extant laws.
Electronic Tracking provides law enforcement operatives with the ability to track, apprehend, and incarcerate felony offenders, thus making communities and neighborhoods safer places to live and to do business.Examples of tracking systems include the following:
i. Global Positioning Satellite (GPS) satellites can establish the location of the item being tracked. Once the location is established, this information may be transferred to the law enforcement officer via radio frequency or cellular frequencies, or the position may simply be logged within the device. Real-time tracking is possible with some devices. Generally, the positions are integrated with a software system that displays the track on a map.
ii. Directional find (DF)/radio frequency (RF). Radio transmitters can be placed on or in packages, persons, or vehicles, which can then be tracked in real time using direction-finding receivers.
iii. Commercially available vehicle tracking systems. Some consumer products have tracking devices built into them by the manufacturer. These devices are especially prevalent in vehicles. These devices may record speed, location, or brake usage. They may also provide direct communication with persons in the vehicle.
iv.
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