fighting corruption by anti-corruption authorities: what worked and what went wrong anti-corruption...
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FIGHTING CORRUPTION BY ANTI-CORRUPTION AUTHORITIES: What worked and what went wrong
Anti-Corruption BureauPrime Minister’s OfficeBrunei Darussalam
Outline of presentation
Introduction
Instruments of cooperation
Case Example One
Case Example Two
Case Example Three
What worked and What Went Wrong
Conclusion
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Introduction
Law enforcement cooperation – article 48 UNCAC
1. Establish channel of communication between competent agencies in order to
facilitate secure and rapid exchange information concerning corruption
Example:
(i) The identity, whereabouts and activities of persons suspected of involvement in corruption such offences or the location of other persons concerned
(ii) The movement of proceeds of crime or property derived from the commission
of such offences
2. States Parties shall consider entering into bilateral or multilateral agreements or
arrangements on direct cooperation between their law enforcement agencies
3. States Parties shall endeavor to cooperate within their means to respond to
offences covered by this Convention committed through the use of modern
technology 3
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Article 49 - Joint investigations
States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case - by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected.
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Article 56 – Special Cooperation
Without prejudice to its domestic law, each State Party shall endeavour to take measures to permit it to forward, without prejudice to its own investigations, prosecutions or judicial proceedings, information on proceeds of offences established in accordance with this Convention to another State Party without prior request, when it considers that the disclosure of such information might assist the receiving State Party in initiating or carrying out investigations, prosecutions or judicial proceedings or might lead to a request by that State Party under this chapter of the Convention.
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Article 59 - Bilateral and multilateral agreements and arrangements
States Parties shall consider concluding bilateral or multilateral agreements or arrangements to enhance the effectiveness of international cooperation undertaken pursuant to this chapter of the Convention.
Instrument of Cooperation
Effective and efficient enforcement
Bilateral cooperation with the Malaysian Anti-Corruption
Commission (MACC) since 2002
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Objectives are: sharing information; render assistance;
learn best practices and collaborate in areas of anti-
corruption
Effective implementation of cooperation in
joint investigation resulting in successful
investigation and prosecution
77 joint operations on intelligence
31 joint investigation
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Case Example One – Fuel Smuggling
Officers of the Royal Customs and Excise Department
Fuel Smuggling activities at the border
40 officers were involved
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Charged under the Prevention of Corruption Act (cap 131)
6 tried individually, which 3 were convicted 2 acquitted and 1 still on-going trial
15 faced disciplinary actions
9 given notice of warning
11 No future action (NFA) taken
Successfully control diesel smuggling activity at border
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Breaking news
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Case Example One - Musfada
PP v DC – gratification to public body
Absconded from Brunei – hiding in Malaysia
Seek assistance from MACC
Execute Warrant of Arrest issued by the Brunei Court
Defendant arrested by MACC and handed over to ACB
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Charged for 40 counts of offences of Prevention of Corruption Act (Cap
131) and the Penal Code (Cap 22)
pleaded guilty to 40 charges
62 additional charges were taken into consideration
in passing sentence
Sentenced to 6 years 4 months imprisonment
Under the Benefit Recovery Order:
In Brunei’s Account amount to B$850,617.55
In Singapore Account amounts to SGD$219, 838.10 and USD$326, 175.55
Pay prosecution’s cost BND$180,000.0013
Seek assistance from CPIB, Singapore
Brunei MLA Central Authority to Singapore MLA Central Authority
Recovered BND$1.49 million with the assistance of the
authorities in Singapore
Upon success of DC convictions, 8 recipients from Brunei Shell
Petroleum company who received bribe from DC in amounts
ranging from $76,600 to $200,200 were charged in May 2015 in
both Magistrate’s Court and High Court of Brunei Darussalam
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Case Example Two – Shipping Companies
Based on intelligence sharing with MACC two shipping companies were discovered
smuggling stones and gravels from Malaysia into Brunei
Joint investigation and surveillance were held together which finally let to the
apprehension of 2 large vessels
2nd January 2013 up to 20th November 2013 – entered Brunei illegally (118 times)
without clearance to customs & importing 908.50 tons of unaccustomed stones /
gravels from Lawas, Sarawak Malaysia to Brunei
Two shipping companies, managers and registered owners charged under s.41 (2) and
s.140 (1)(a) of Customs Order 2006
Penalty u/s 146 - fine not exceeding $16,000.00, 8 months imprisonment or both
Penalty u/s 140(ii) – fine not exceeding $8,000.00 or twice value of goods or both.
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Magistrates Court imposed fines to BND$90,000 to Ngu
Shipping and Trading Company for vessel ‘Jinluck Dua’ and
BND$152,000 to Abasa Shipping and Trading Sdn Bhd for
vessel ‘Abasa no.1’.
Ordered for forfeiture of one ship, Jinluck Dua to the State
Cooperation with MACC on intelligence
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A case involving allegations of fraud in customs declaration documents where company operating in Miri, Sarawak submitted forged customs documents to avoid paying taxes for fake goods imports, in fifteen containers. The said company through a declaration made in Malaysia Customs Form stated that the goods were to be forwarded to a company in Brunei Darussalam and enroute for a temporary stop over at Port of Miri, Sarawak.
Joint investigation ACB, MACC revealed that the containers were not shipped to Brunei Darussalam, but actually intended to be in Miri, Sarawak as its final destination.
In this case, the company was found to have committed forgery in the customs declaration form in Malaysia, and evaded the payment of customs import duties
What went wrong? Time consuming process of MLA
Securing foreign witnesses
Extra jurisdictional issues
Often the persons and entity involved in corruption are many and diverse.
Often resources available to them especially person accused of transnational corruption are generally
substantial . Often they will take issue with or seek to challenge methods that can prevent or impede or
delay an investigation or prosecution. This diversion tactic drains our resources and extensively took so
much of our time and effort.
The lack of interest or inadequate respond to another jurisdiction request due to their lack of resources
or lack of desire or priority are some of the reason where investigation may simply fail. That is the very
reason why appropriates level of mutual or international cooperation is important bearing in mind
globalization and modern technology have had significant impact on the way we live not excluding
white collar crime such as corruption
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Effort by investigating agency
Unable to produce witness in court
Longer trial due to delay
Inadequate legislation or Legal mechanism – Summons and
Warrants (Special Provision) Act
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Recognition by the UNODC :
“The operational working group with Brunei
is a good case example of how law enforcement cooperation
among countries at the policy and operational level
can enhance the fight against corruption
which transcends boundaries”
Review of Malaysia on UNCAC Implementations on Chapter III and IV
Vienna, Austria28th May 2013
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Conclusion
Complexities of corruption cannot be handled
alone
Work with other agencies to tackle cross-border
Continuously engaging in joint coordination in
fighting corruption
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Bilateral cooperation and annual meeting provide a very useful venue for both agencies to share experience on investigation cases done by both agencies where the success and failure of cases from respective agencies are shared as a point of learning from each others’ experiences.
This venue also provide platform to share best practices in the field of investigation management and techniques for ACB,
learning the ‘managing team investigation’ approach that have shown results in fast and effective investigation completion in MACC.
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Thank you
Email: [email protected]
Email: [email protected]
Permanent Secretary (Law and Welfare) at the Prime Minister’s Office
and
Director of Anti-Corruption Bureau, Brunei Darussalam25