The views expressed in this publication are those of the respective presenters andauthors only, and do not necessarily reflect the views or policies of UNAFEI, theGovernment of Japan, or other organizations to which those persons belong.

FOREWORD
It is my great pleasure and privilege to present this report of the Eighth Regional Seminaron Good Governance for Southeast Asian Countries, which was held in Kuala Lumpur,
Malaysia from 18–20 November 2014. This was our second Good Governance Seminar in
Kuala Lumpur, and we were deeply impressed and touched by the warm hospitality afforded
to us by our Malaysian hosts.
The main theme of the Seminar was “Current Issues in the Investigation, Prosecution and
Adjudication of Corruption Cases”, and it was attended by two speakers—from Hong Kongand Korea—and 17 international participants and observers—all criminal justicepractitioners—from Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, thePhilippines, Singapore, Thailand and Viet Nam. The Seminar was organized by UNAFEI,with the support of the Malaysian Anti-Corruption Commission and the Malaysia
Anti-Corruption Academy.
It is especially noteworthy that, for the first time, delegations from all 10 ASEAN
countries were able to attend the Good Governance Seminar, which became possible due tothe willingness of Brunei and Singapore to attend at their own expense. Consequently, I am
particularly grateful to Brunei and Singapore for their participation.
The Seminar explored the legal frameworks and techniques for anti-corruption
enforcement in the participating countries. Through discussion of the issues, participants
exchanged knowledge, experiences, effective strategies, and best practices in the fields ofanti-corruption investigation, prosecution and adjudication. In addition, the Seminardeveloped contacts between anti-corruption authorities and investigators in East Asia andSoutheast Asia.
The discussions during the Seminar emphasized the following important lessons, among
others: successful investigation, prosecution and adjudication of corruption cases requires
extensive (domestic) inter-agency cooperation and international cooperation, and corruption
investigations require well-trained and highly specialized investigators familiar with modern
investigative techniques, including financial and forensic analysis. The Chair’s Summary,published in this report, details the key findings and conclusions of the Seminar.
It is my pleasure to publish this Report of the Seminar as part of UNAFEI’s mission,
entrusted to it by the United Nations, to widely disseminate meaningful information on
criminal justice policy. Finally, on behalf of UNAFEI, I would like to express my sincere
appreciation to the Malaysian Anti-Corruption Commission and the Malaysia
Anti-Corruption Academy for their great contributions to convening the Eighth Regional
Seminar.

YAMASHITA, Terutoshi
Director, UNAFEI
March 2015

INDEXCURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND
ADJUDICATION OF CORRUPTION CASES
Introduction…………………………………………………………………………………

1

Opening Remarks by Mr. Terutoshi Yamashita, Director, UNAFEI……………….……

2

Keynote Address by Mr. Taro Morinaga, Deputy Director, UNAFEI ……………………

4

Chair’s Summary……………………………………………………………………………

11

Speaker’s Papers and Contributions………………………..………………………………

20

Speaker, Ms. Chan Shook Man Alice, Senior Assistant Director, Public Prosecutions,
Prosecutions Division, Department of Justice, Hong Kong Special Administrative
Region………………………………………………………………………………

21

Speaker, Mr. Lee, Jin Soo, Senior Prosecutor, Seoul Central District Prosecutor’s Office,Supreme Prosecutor’s Office, Korea ………………………………………………

30

Country Presentation Papers ………………………………………………………………… 50
Brunei Darussalam …………………………………………………………………………

51

Cambodia ……………………………………………………………………………………

58

Indonesia ……………………………………………………………………………………

67

Japan ………………………………………………………………………………………… 76
Lao PDR ……………………………………………………………………………………

83

Malaysia ……………………………………………………………………………………

90

Myanmar ……………………………………………………………………………………

95

Philippines …………………………………………………………………………………… 107
Singapore …………………………………………………………………………………… 117
Thailand ……………………………………………………………………………………… 126
Viet Nam …………………………………………………………………………………… 132
List of Participants, Speakers and Organizers ……………………………………………… 138
Seminar Schedule …………………………………………………………………………… 140
Appendix (Photographs) …………………………………………………………………… 142

INTRODUCTION

Opening Remarks by
Mr. Terutoshi Yamashita
Director, UNAFEI***

Keynote Address by
Mr. Taro Morinaga
Deputy Director, UNAFEI-1-

OPENING REMARKSYAMASHITA Terutoshi *Honourable Datuk Hj. Mustafar bin Hj. Ali,
Deputy Chief Commissioner of Preventionof the Malaysian Anti-Corruption Commission (MACC),
Honourable Mrs. Thilagavathy S. Thamboo,
Deputy Director of the Malaysia Anti-Corruption Academy,
honourable guests, distinguished experts and participants, ladies and gentlemen,
It is a great pleasure and privilege for me to announce the opening of the Eighth
Regional Seminar on Good Governance for Southeast Asian Countries. I would like to extend
my heartfelt welcome to our honourable guests, distinguished speakers and participants who
have come to join this significant forum.
I would like to take this opportunity to express my deepest appreciation to theGovernment of Malaysia, especially to the Malaysian Anti-Corruption Commission and the
Malaysia Anti-Corruption Academy, for their great contribution and assistance in co-hosting
this seminar.
The main theme of this seminar is “Current Issues in the Investigation, Prosecution and
Adjudication of Corruption Cases”. It is often said that the most effective measure toeradicate corruption is exhaustive exposure and proper punishment of offenders who havecommitted corruption crimes. It is also said that proper punishment of offenders punishes one
while warning hundreds. As a result, the public recognizes that corruption never pays off,
which in turn builds trust in the criminal justice system and encourages the public tocooperate with law enforcement. To eradicate corruption, it is extremely important that wereinforce this cycle.
However, when turned around, this means that failing to vigorously enforce
anti-corruption laws will result in a vicious cycle that will exacerbate corruption: the lack ofpublic trust will lead to a lack of cooperation with law enforcement officials, and the criminal
justice system will be undermined as corruption goes unchecked. Therefore, as professionals
and government officials within our several criminal justice systems, our responsibility toeliminate corruption is very serious, and we must improve enforcement by enhancing ourability to investigate and prosecute corruption cases.
The United Nations Convention against Corruption seeks global harmonization ofanti-corruption efforts. Eleven years have passed since the convention was adopted by the*

Director, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders.

-2-United Nations General Assembly. Since that time, law enforcement officers and government
attorneys around the world have made tremendous efforts to eradicate corruption, and they
have achieved magnificent results. However, criminals continually devise new methods tocommit crime, and they exploit technical loopholes to avoid enforcement. Consequently,
various new problems have arisen in the investigation, prosecution and adjudication ofcorruption cases. These problems weigh heavily on law enforcement officers and government
attorneys.
Many of the root causes of corruption are similar; despite the many differences in legal
regimes, we are very likely to be facing many of the same problems in each of ourcountries—especially the cross-border nature of corruption. In order to combat corruption,
we should share valuable lessons derived from our experiences, discussing not only bestpractices but also examples of failure, the causes of such failure and effective
countermeasures to make sure that past mistakes are not repeated.
Before closing, I would like to applaud the co-hosting Malaysian Government for its
strong commitment to fight corruption. Malaysia has adopted “Wawasan 2020” (whichtranslates as “Vision 2020”). One of the goals stated in this vision is to establish “a fully
moral and ethical society”. In addition, the National Key Results Areas (NKRAs) of theGovernment place importance on “Fighting Corruption”, and the Key Performance Indicators(KPI) identify the eradication of corruption as one of the nation’s goals. Finally, Malaysia is
well known for its diversity in race, culture, religion, language and cuisine—and formaintaining harmony among them. Therefore, Malaysia is a very suitable place to discuss
corruption issues among our diverse group of criminal justice professionals from various
countries.
I hope this seminar will strengthen international cooperation and help each participant
clear higher hurdles in the investigation of corruption cases in the future. Thank you verymuch for your attention.

-3-

KEYNOTE ADDRESSTaro Morinaga *Your Excellencies,
Honourable guests,
Distinguished Participants,
Ladies & Gentlemen,
I.

INTRODUCTION

It is indeed a great privilege for me to be here on this extraordinary occasion and to
be given the chance to deliver the keynote address. I would like to take this opportunity
to express my heartfelt gratitude to our Malaysian hosts, especially the MalaysianAnti-Corruption Commission, our counterpart and co-organizer of this Good
Governance Seminar. Also, I would like to thank the Malaysia Anti-Corruption
Academy for its kindness, hospitality and dedicated efforts towards the realization ofthis event. My sincere thanks also go to our distinguished participants from all overSoutheast Asia, who are actively contributing to the success of this gathering aimed atfurther improving the situation in this region in terms of eliminating corruption, towhich task, I am sure, they all are making steady progress in their home countries. I amquite confident that, with all the expertise and experiences that you have brought withyou, we will have dense and fruitful discussions during the next couple of days and willproduce an outcome which will benefit all of us, and ultimately, the people of ourcountries.
II. CORRUPTION AS A SOCIAL PHENOMENON —WHAT IS HAPPENING?
In the presence of so many experts in this field, I would like to refrain frompreaching about the evil, damaging nature of corruption and from shouting aloud that
corruption must be eliminated. We all know that. For us as professionals, the issue isalways “how” to eliminate corruption, that is, developing and implementing effective
measures for prevention and punishment. Nevertheless, it may sometimes be worth
revisiting the basics, because re-examining the “what” and “why” helps us answer thequestion of “how”. If you can characterize your version of corruption and identify thecauses, then, maybe, you can identify a suitable remedy. So, I would like us all toconsider, discuss and compare the characteristics of corruption in each of our countries
in order to understand why each form of corruption bears its specific character.

*

Deputy Director, United Nations Asia and Far East Institute for the Prevention of Crime and theTreatment of Offenders.

-4-

To start with such diagnosis, analysis in the indigenous context may be helpful.
What category of corruption is plaguing your country — “petty”, “grand” or“systemic”? What are the types and patterns of corruption? Where do they take placemost frequently? Public procurement? Official permission, approval or consent
procedures? Policing, prosecution or adjudication? School education? State-owned
enterprises? Foreign trade? The private sector? Well, the list may go on. And then, thedifficult question — why do people become corrupt? Several interrelated causes may befound: tradition, culture, poverty, greed, vanity, bad wage structure, too much discretion,lack of professionalism or sense of duty, insufficient education, lack of transparency,
low risk of being caught, low exposure to public criticism, lenient punishment, poor
performance of law enforcement, insufficient or inadequate laws, and undue politicalinterference. A deep and well-streamlined analysis here is a crucial step towards the next
issue — how to prevent corruption. It is clear that if you do not know exactly what ishappening and why it is happening, then you’ll never find a way to prevent andeliminate corruption.
III. PREVENTION
Once the causes of corruption are, even vaguely, identified, there may be ways toremove such causes, or, at least, disconnect the conduct from such causes. Although I
realize that this Seminar puts much emphasis on investigation, prosecution andadjudication of crimes of corruption, I would expect the participants to allocate a little
time to discuss issues relating to prevention. Some of them may be too clear and simple
to discuss; for example, if there is no doubt that the cause is underpayment (when it
comes to “petty corruption”, we know that underpayment is a major cause if not the
only one), then the solution will be to raise the salary for the officials to a reasonablelevel — but this discussion is better suited for treasury officials, the ministry of financeor the personnel authority, not law enforcement officials.
Thus, we might have to consider ways to disconnect the underpayment and the
behaviour or conduct of officers who otherwise would be inclined to cross the line.
Numerous methods are conceivable, such as methods that raise public awareness as tothe perilous nature of corruption; nourish the pride of officials for their cleanliness;increase transparency in the field of public service; increase the risk of being detected,
caught and punished; on and on it may go. And how? National campaigns? Proper
education programmes? Strengthening codes of conduct and disciplinary actions?
Disclosure of assets of public officials? Whistleblowers? Ombudsmen? Sharing
information with respect to these issues will surely be valuable. What do we have incommon, and what is unique to a specific country? If one country is trying somethingunique, can other countries learn something from that experience and adapt it to theirown situations? Having an opportunity to think about these issues together is, I believe,
one of the positive features of this international forum.
IV. THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION
Now, let me move on to the criminal justice response to corruption, which is themain topic of this seminar. Although punishing offenders can be regarded as being-5-

merely symptomatic treatment of the disease of corruption, there seems to be little
doubt that prosecution and punishment can be effective tools to deter corrupt acts — if
they are done properly. Imminent and realistic risk of being prosecuted and punished,
being deprived of the proceeds, and losing employment as a consequence is what
everyone will think of when tempted to commit corrupt acts. So, “the best defence is agood offence” — no prevention measure is better than active prosecution, is what manyprosecutors would believe. At least I was told so by my seniors in my younger days.
But making a criminal justice system function properly is not an easy task,
especially in the area of crimes of corruption. There is so much to consider. In thecontext of the criminal justice response to corruption, who should do what? Who should
investigate or prosecute? What are the advantages and disadvantages to set up a special
investigative or prosecutorial body? In what environment should they work? What are
the laws they should rely on? How should substantive laws and procedural laws be
structured? What are the investigative techniques? How can they obtain clues andevidence? How can we effectively build the capacity of investigators, prosecutors andjudges? What resources do they need? How should investigators, prosecutors and judges
be protected from undue influences? There may be a broad range of topics starting fromthe very basic, but broad issues range from the independence of the judiciary all the way
down to the details such as how to properly obtain testimonial evidence admissible incourt, including the techniques of interrogation.
I do realize that it is impossible to talk about everything. Still, important topics andissues will be covered by presentations and discussions on “good practices” which
many of the participants may be able to talk about, citing actual cases and lessons
learned therefrom. In some countries, there may be examples where an independent,
special anti-corruption unit successfully uncovered, investigated and prosecuted a highprofile state-property-embezzlement case and recovered the stolen assets. From others,
we may hear about the tremendous efforts made by a conventional investigation force
such as the police overcoming several obstacles and achieving the goal of bringing abribe-taking official to justice. Or, we may also hear about cases in which something
went wrong or which resulted in failure. These stories we hear from our learned experts
will definitely become a precious source of knowledge.
V. INTERNATIONAL COOPERATION
These days, we hear so much about crimes becoming borderless. Corruption crimes
are no exception. Corporations bribing foreign officials, corrupt politicians stashingmisappropriated state assets away in bank accounts far overseas, offenders fleeing
abroad — these crimes do not surprise us anymore. In order to cope with such situations,
it is quite reasonable to think that investigators, prosecutors and judges should also gointernational. But we all realize that it is very difficult to do so. There are walls and gaps
— the walls of “jurisdiction” and “sovereignty”, the gaps between different laws,
systems and legal infrastructure.
Now, I am not an idealist who would dream that, someday, the world becomes
united and there will be only one single jurisdiction, although I love the songs of John

-6-

Lennon. We have to live with these walls and gaps, don’t we? But I would like to draw
your attention to the “psychological” walls and gaps which, in my personal view, aremaking us hesitant to pursue investigation, prosecution and adjudication of cases
involving international elements. Ask yourself, isn’t there always a feeling of reluctancewhenever you have a case before you which needs international assistance? Haven’t you
ever seen a highly capable, active investigator or prosecutor suddenly turning negative
or discouraged after finding out that an important piece of evidence is somewhereoutside your country? Why is it so? Where does such hesitation come from?
I suspect that the culprits here are ignorance and prejudice. The concern that has
grown in me as a legal professional in Japan, having first worked in a domesticallyfocused job and thereafter having been exposed to an international environment, is thatthe people in our prosecution service might not have sufficient knowledge about
international cooperation schemes, such as mutual legal assistance, and, because of that,
may be unreasonably skeptical about the effectiveness of such schemes. And worse,
there seems to be in general a certain unwarranted mistrust as to the legal systems ofother countries and their performance. I have to confess that, in my younger days, I was
one of them. I think that I have luckily overcome such prejudice with the help of someexperience being involved in investigations which required international assistance.
Once I was very much surprised and then ashamed of myself when I went on a trip
to a country in Latin America in connection with a drug offence investigation which was
my responsibility as an investigating prosecutor. We received information that two
Japanese nationals had been arrested by the local police at an international airport of thecapital of that country for the possession of 18 kilograms of cocaine hydrochloride
hidden in their suitcases. Domestic investigation led us to the conclusion that themastermind of this drug-trafficking attempt was present in Japan, and since we wanted
to prosecute this mastermind, we had to obtain testimony from those two Japanese heldin that country and the lab results and expert testimony that the seized substance wasindeed cocaine. Although I sent a formal request for legal assistance via the diplomaticchannel, I was not sure whether any response would come back at all, because all that I
knew about that country was that it was a very poor developing country with an
unstable political and social situation. I was not even sure if the prosecution or judiciary
there was actually functioning or not. But all that concern proved to be merely myignorance and prejudice. The response came, and the highest court of that country
allowed me to be present at the interrogation of the two arrested offenders and theinterview of four experts who independently examined the substance in question, all ofwhich were conducted by an experienced high court judge — he actually was the chiefjustice of the high court of the capital city. From a procedural point of view, theseinterrogations and interviews were perfect, and I had no doubt whatsoever that theofficial protocols of these interrogations and interviews would be admissible in any
Japanese court as exceptions to the hearsay rule. Moreover, I was impressed by theirdrug-lab procedures. Because of financial difficulties, they did not have the latest,
sophisticated equipment such as GC-MS (gas chromatography – mass spectrometry)machines available for drug testing, and were relying on the old method of paper
chromatography and Scott-Wilson reagent. Still, in order to secure the reliability of thetest results, they had a rule that requires the performance of double-check testing by two-7-

independent chemical laboratories, two experts each, plus the sworn testimony of theexamining chemical experts before the court. Unless the testimony of these four experts
matched each other, they explained to me, the court would not recognize the lab results
as admissible evidence. Having witnessed all that, I was really ashamed that I had
mistrusted the performance of another country’s judiciary simply because of myignorance and prejudice. It was really an eye-opening experience. Later on, we weresuccessful in bringing the mastermind to justice. Yes, the Tokyo District Court ruled thatthe protocols were all admissible as evidence.
To my relief, the Japanese prosecution recently has become increasingly aware ofthis kind of problem and has established a system within the prosecution to cope withinternational affairs, appointing experienced prosecutors as “prosecutors in charge ofinternational matters” in a number of mid- to large-sized district offices. We still have to
wait for the results of the performance of these prosecutors, but I hope things develop ina positive way and wipe out the ignorance and prejudice which used to overshadow ourinvestigation forces in the past.
So, once you get rid of such psychological barriers, your path will become clearer,and if you acquire proper knowledge of international cooperation schemes, then you
will find out that many channels and tools are available to support your investigation,prosecution and adjudication. Further, if you become familiar with the systems andpractice of your foreign counterparts, then you may be able to perform your duties evenmore effectively and efficiently. Of course, I am not saying that you should become
experts of foreign criminal law. What you simply need is clues – clues as to where tofind the leads; which door you should knock on. This is one of the most importantpieces of information that I expect the participants of this seminar to exchange witheach other. The door does not necessarily have to be a formal one. Informal
communication and exchange of information can sometimes be of great help. During
the discussions in this forum, I hope that you will revisit the basics of international
cooperation, such as mutual legal assistance, identify what concrete methods can betaken under such international scheme in terms of collecting necessary evidence,
identifying offenders and their hidden assets, or, bringing the absconded offender backto your country, and share with each other knowledge about the most efficient andeffective way to make use of such methods within the legal system and culture of yourrespective countries. And after you go home, please be helpful to your international
colleagues. In the future, if you receive an inquiry from abroad asking for advice about,say, how an investigator of your counterpart country can effectively obtain evidence
from your country, please do not terminate the conversation by merely saying “oh, sorry,that is beyond my authority” or “I’m not in charge of that”, even if the matter is beyond
the scope of your work. You could at least offer a suggestion as to where to look, orwhom to contact; if you exert a little more courtesy such as introducing your criminal
justice counterparts to the right person in your organization or your government, or
doing a little research on how to deal with the issue and share your views, that would bea tremendous help. And then, your counterpart will be ready and happy to respond in thesame cordial way whenever it is your turn to ask for assistance. “Reciprocity” is not justa legal term in international procedural law. It becomes real in such occasions.

-8-VI. THE GENERAL PUBLIC — WE NEED THEIR TRUST AND HELP
Lastly, let me briefly touch upon another issue that I am very interested in — theinvolvement of the general public in the prevention and punishment of corruption.
Implementation of any policy cannot be realized without the understanding andcooperation of the general public. If the public is aware of how serious and damaging
corruption is, the citizens’ eyes will be the most powerful weapon to fight corruption.
Public perception on corruption and the public trust in anti-corruption officers andinstitutions are the most crucial elements.
It is my personal opinion that, however rampant corruption may be in a country, acountry can still be saved when the general public maintains the notion that corruption
is a bad, evil phenomenon and that it is something to be ashamed of. The worst scenario
would be when the citizens are not only fed up with corruption but become used to it.
This is the scariest thing about systemic corruption. Corruption spreads like an epidemic,turns itself into a culture, and people will not think that it is a big deal anymore, because
it becomes embedded in daily life. So, prevention by raising and maintaining publicawareness is crucial. In this regard, what I am personally concerned about is that I hearrumors about corruption in the education sector in some countries. How can you expect
children and the younger generation to grow up with sound minds if there is corruption
spreading among teachers? What if children get used to watching their parents paying
bribes for good test scores? If such rumors prove to be true, elimination of suchcorruption must be the top priority and the state must do everything possible to stop it.
With respect to punishment, the trust and support of the general public is
indispensable. Even if an anti-corruption agency, or an equivalent institution thatmaintains a high moral standard, is equipped with sophisticated investigation skills anddevotes every resource and effort to its noble job, it will end up being powerless andisolated if it does not have citizens’ support and assistance. Especially, for a newly
established institution or organization, gaining public trust is crucial for the rationale ofits existence and good work. Some of our distinguished participants, I believe, must bequite experienced in this matter, so I’d be glad to hear from them how they have built
and maintained public trust and confidence in their respective institutions. As far as myhomeland is concerned, I imagine that our predecessors must have exerted pious efforts
to gain public trust in the white-collar-crime investigation units at some district
prosecutors’ offices — the “special investigation departments” — and have achieved afair amount of success, although some recent shameful events seriously affected the
public trust in prosecution; the entire prosecution service in Japan is now desperately
trying to regain and restore that trust by implementing a comprehensive reform
programme, because everyone knows that, without the support from the people, thefunction of the prosecution will definitely be paralyzed.
VII. CONCLUSION
There may be other issues as well that our participants would like to talk about
during the sessions. Please do not hesitate to bring your “burning questions”, proactive
recommendations and inspiring examples to the floor. Bringing different opinions,-9-views and experiences together, sorting them out, and making comparisons is what thiskind of international workshop is all about. I truly hope that the GG Seminar this year
will, with your valuable contributions, achieve wonderful results which will be quite
informative and useful not only for all of us, but also for those who learn about theoutcome of this seminar afterwards.
Thank you for your kind attention.

- 10 -

CHAIR’S SUMMARY- 11 -

CHAIR’S SUMMARY
Eighth Regional Seminar on Good Governancefor Southeast Asian Countries
Kuala Lumpur, 18 – 20 November 2014

General1.

The Eighth Regional Seminar on Good Governance for Southeast Asian Countries,
co-hosted by the Malaysian Anti-Corruption Commission (MACC) and the United
Nations Asia and Far East Institute for the Prevention of Crime and the Treatmentof Offenders (UNAFEI) was held at Hotel Istana in Kuala Lumpur from 18th to20th November 2014.

2.

Officials and experts from the following jurisdictions attended the seminar: Brunei
Darussalam, the Kingdom of Cambodia, the Hong Kong Special Administrative
Region, the Republic of Indonesia, Japan, the Republic of Korea, the Lao People’s
Democratic Republic, Malaysia, the Union of Myanmar, the Republic of thePhilippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist
Republic of Viet Nam.
Opening Ceremony

3.

Mr. Yamashita, Terutoshi, Director of UNAFEI and the Honourable Datuk Hj.
Mustafar bin Hj. Ali, Deputy Chief Commissioner of the MACC, delivered opening
speeches, both expressing their gratitude to the participants for their attendance andstressing the importance of good governance and the rule of law. Mr. Kodama,
Yoshinori, Deputy Chief of Mission of the Embassy of Japan in Malaysia,
welcomed the participants and expressed his thanks to UNAFEI, the MACC and
MACA for organizing this Seminar. He noted that Japan will continue to support
collective efforts to address anti-corruption and other issues throughout Southeast
Asia.
Keynote Addresses and Lectures by Experts

4.

Mr. Taro Morinaga, Deputy Director of UNAFEI, delivered the keynote address.
Besides encouraging participants to intensively discuss best practices in thecriminal justice response to corruption, he also stressed the importance ofprevention based on deep analysis of the causes of corruption in the indigenous
context. He further asked the participants to share information with each other inorder to facilitate international cooperation with respect to the investigation ofcorruption.

5.

The first expert’s lecture was given by Mr. Lee, Jin Soo, Senior Prosecutor of the- 12 -

Seoul Central District Prosecutors' Office. Mr. Lee introduced the experiences of
Korean authorities in combating corruption. First, he briefly explained the Koreancriminal justice system, which basically has a civil law tradition but also hassignificant influence from the common law system. Then he went on to talk about
the structural relationship between the prosecutors and police force, showing thesupremacy of the prosecution with regard to criminal investigation. According to
Mr. Lee, Korea has been making continuous efforts in order to improve its
investigation and prosecution systems to respond to the high expectations of thegeneral public, which is not only becoming more and more aware of the detrimental
effects of corruption but also very particular about the fairness and politicalimpartiality of the prosecutors’ investigations. As to effective investigation, hestressed the importance of digital evidence and the way to handle it.
6.

Ms. Chan Shook Man, Senior Assistant Director of Public Prosecutions,
Prosecution Division, Department of Justice of Hong Kong, delivered the second
expert’s lecture. After briefly explaining the common law style criminal justicesystem of Hong Kong, she described in detail the way trial prosecutors in Hong
Kong work. Although the Hong Kong prosecutors do not have the authority toinvestigate criminal cases, including corruption cases, by themselves, they play adecisive role in combating corruption since they are vested with prosecutorial
discretion, which means that they decide whether or not to bring a specific case to
the court. In exercising this significant power, she told us that Hong Kongprosecutors are required to be completely fair and impartial, and are also required tofunction as a watchdog to ensure fair investigation. Further, she explained indetail the need for careful trial preparation, including the drafting of charges,
presentation of witnesses, presentation and admissibility of documentary evidence,
the use of expert witnesses, the duty of disclosure, and the use of accomplice
witnesses and confessions.
Discussion Summary

7.

The Current Situation of Corruption
Although the characteristics and gravity differ from country to country, corruption
is seen in every jurisdiction as a phenomenon quite detrimental to society,undermining democracy and the rule of law. The existence of special legislationand special law enforcement agencies designed to combat corruption in every
jurisdiction is, ironically, proof that corruption is a major problem in all countries
and regions. Some states are plagued with widespread corrupt activities in almost
all sectors of society, while in others, large-scale crimes of corruption become more
and more sophisticated and organized, making them harder to detect. In somejurisdictions, grand corruption is a huge problem hindering sound development,
while in others petty corruption, or small-scale bribery, takes place frequently andfrustrates citizens’ daily lives. Some countries are facing the worst type where
corruption almost becomes a common habit or culture—“systemic corruption”. To
make matters worse, corruption is not something of a domestic character anymore.
Together with the rapid globalization of economies and trade, many crimes ofcorruption today are becoming international and more often than not involve- 13 -

foreign elements. Corruption today is definitely borderless. In addition, we must notunderestimate the negative impact on society which corruption in the private sector
can cause. The general public and the market are paying more and more attention towhat efforts a country is exerting in order to eliminate private sector corruption.
8.

Counter-Corruption Laws and Law Enforcement Agencies
A majority of countries represented at this forum have special laws and law
enforcement agencies or prosecution authorities designed to combat and eliminate
corrupt activities.
One prestigious example would be Singapore with its Corrupt Practices
Investigation Bureau (CPIB). The CPIB was established in 1952 as an independent
organization exclusively dealing with the enforcement of anti-corruption laws. The
CPIB has been quite successful with its active operation under the “Zero-Tolerance”
policy, making full use of effective laws, such as the Prevention of Corruption Act
as well as a number of relevant statutes.
Hong Kong surely is another example of success. The expert from Hong Kong told
us that the Independent Commission Against Corruption (ICAC), established in
1974, is engaged in vigorous investigation activities and brings high-profile cases tothe prosecutors. Once the prosecutors receive cases from the ICAC, they make fulluse of their professional skills in order to bring corrupt offenders to justice while
strictly maintaining fairness and impartiality.
The Malaysian Anti-Corruption Commission (MACC) is making tremendous
efforts to pursue high-profile cases, learning from bitter experiences in the past andin collaboration not only with domestic organizations but also with their regionalcounterparts. Something remarkable about Malaysia is that the MACC is supportedby the Malaysia Anti-Corruption Academy (MACA), which is the training academy
for anti-corruption officials and which is rarely seen in other jurisdictions.
Another example of a sole, independent authority would be the Anti-Corruption
Bureau of Brunei Darussalam. Based on the Prevention of Corruption Act of 1981,
it has been working closely together with the Attorney General’s Chambers, dealing
with every kind of corruption varying from petty to grand corruption as well asother complex white-collar and financial crimes. Although the Brunei delegates
explained the numerous challenges they are facing, the strong commitment towards
eliminating corruption is clear.
The KPK of Indonesia has emerged with strong powers of investigation ofcorruption. It has developed procedures for investigation and prosecution
specifically designed to tackle complicated corruption cases, including the use of
wiretapping and witness protection programmes. It is quite noteworthy thatIndonesia has an obstruction of justice crime specifically designed to protect theinvestigative ability of the KPK—the crime of “hindering KPK process”. On theother hand, the Office of the Attorney General (OAG) noted the challenge of- 14 -

pursuing corruption cases against high-ranking officials without first obtaining theapproval of the President of Indonesia. Further, the OAG is unable to conduct
wiretapping in corruption cases. Interestingly, the KPK’s investigations are notlimited by either of the restrictions faced by the OAG.
Myanmar’s new system is now performing well with the recently enacted
Anti-Corruption Act of 2013. Myanmar has designed a rather heavy-duty scheme ofcounter-corruption activities, having the Union Attorney General’s Office and theAnti-Corruption Commission with its two internal organizations—the Investigation
Board and the Preliminary Scrutiny Board.
Thailand has a multi-layered system with multiple actors, each playing theirrespective roles: the National Anti-Corruption Commission (NACC) and the Public
Sector Anti-Corruption Commission as well as the Office of the Attorney General.
The Thai delegates told us about the difficulties inherent in the multi-layered
system which have to be overcome by close collaboration and cooperation between
those agencies.
The Royal Cambodian Government, strongly committed to fighting corruption,
established the Anti-Corruption Unit (ACU) to investigate all forms of corruption
cases. Based on the Anti-Corruption Law enacted in 2010, the ACU is vested withpowers that the ordinary judicial police do not have. It can investigate corruption
crimes independently without the approval of prosecutors, and it is allowed toutilize modern investigative techniques such as eavesdropping and wiretapping.
A unique system has developed in the Philippines. There, the Office of the
Ombudsman is a special body mandated by the constitution to investigate andprosecute corrupt activities. Although the field investigators of the Office of the
Ombudsman seem to have faced various challenges and difficulties, their efforts
and success in the investigation of the “Pork Barrel” scandal that we heard from thePhilippines’ participants is highly commendable and something that the involved
investigators should be proud of.
In contrast to those countries which have established independent special agencies
under special laws, there are countries which chose a different way—to deal withcorruption within the conventional framework of the criminal justice system.
A typical example may be Japan, which does not have any comprehensive
anti-corruption law or any independent, special organization handling corruption
exclusively. Still, the relevant provisions of the Penal Code and various
administrative laws seem to be working well. As to investigation and prosecution,
the white-collar crime investigation units of the prosecutors’ offices have so far
gained fair success.
The activities of the Korean prosecution, based on its strong investigative powerand highly developed skills, explains why in Korea there is less need of a special- 15 -

anti-corruption apparatus. Led and supported by the Supreme Prosecutor’s Office,having a special division dealing with crimes of corruption, the District Prosecutors’
Offices engage in proactive investigation and prosecution.
Viet Nam does not have special investigation agencies either. Depending on thenature of the specific crimes, authority to investigate is shared between the police
and the procuracy investigators. Participants from Viet Nam stressed the need of an
independent, fully authorized body for the sake of combating the serious situationof corruption in their country.
Lao PDR is in a similar situation with Viet Nam, although the investigation ofcorruption cases is not handled by the prosecutors. Corruption investigations are
conducted by the State Inspection Authority, which was established for the purposeof dealing with compliance with the law by all government officials.
9.

Valuable Examples of Investigation, Prosecution, Adjudication and International
Cooperation
Interesting and inspiring experiences of real cases were presented from each of ourparticipants.
a) Investigation
The “Pork Barrel” scandal introduced by the participants from the Philippines
showed a large-scale, serious case of public fund misuse in which the field
investigators have had a tremendously hard time bringing the offenders to justice.
This case reminded us that it is not only the legal system or the law enforcement
agencies’ skills that count. The investigators of this case faced problems ofilliteracy, language barriers, lifestyles or health conditions of the potential witnesses.
The possibility of such practical drawbacks exists in other jurisdictions as well, so it
is quite important that, when designing a system or a capacity-building scheme,
these sorts of issues are taken into account.
Singapore’s example, the Wilson Raj Perumal match-fixing case, was surely asuccessful investigation involving transnational elements. We thank theSingaporean participant for bringing up a quite contemporary issue—corruption in
the world of sports—which seems to be a major problem everywhere and is
drawing much public attention. Hearing about this case, we once again learned how“international” organized crime can be, and how crucial international cooperation in
the field of criminal justice is. Also, we were reminded of the importance offollowing the money trail as well as looking for forensic evidence, especially theskills of the labs handling electronic data analysis. The case further advised us to be
mindful and not to underestimate the impact that the social media may have on ahigh-profile case.
Our participant from Viet Nam also told us about the important but difficult issue ofinternational investigation, citing the case of Mr. Duong Chi Dung. We imagine
that Vietnamese authorities must have experienced great frustration while chasing- 16 -

Mr. Dung in Cambodia and looking for evidence in Russia. But it looks like itworked. Further, Mr. Dung’s case reminded us of the annoying reality that persons
in influential positions can hinder detection and investigation of crimes—Mr. Dung
had repeatedly broken the law for a period of seven years, with the help of his
acquaintances in the Ministry of Public Security and his own policeman–brother.
Personal and family relationships outweighing the law is, in fact, a phenomenoncommonly seen in the Asian region; of course the bond among family members andfriends is admirable, but once crime is involved, we may have to think twice.
b) Prosecution
The “Mr. DS”-simulator-procurement case introduced by the Indonesian participantfrom the KPK was very much interesting since it raised the issue of offenders
challenging the legitimacy of prosecutorial acts, trying to find loopholes in the law.
It is indeed well perceivable that a desperate defendant, with the help of counsel,
may try to get away with the committed offence, or at least try to somehow keep
the assets gained by criminal activities, taking advantage of legal technicalities.
Investigators and prosecutors have to be prepared to handle such allegations.
The Thai Auditor General’s misuse of state funds by way of fabricating seminars
and the corruption in the Bangkok Metropolitan Administration involving
procurement of fire trucks and fire boats must have been big scandals. The
participants from Thailand, by introducing these cases, suggested that at theprosecution stage, there is much need of a careful selection of defendants based on
multi-angle analysis of available evidence and precise interpretation of applicablelaws as well as thorough discussion between the investigators and prosecutors.
Indeed, the relationship between the investigators and the prosecutors is always acrucial issue. There is no doubt that good communication between them is anindispensable element when handling complicated cases such as grand corruption.
c) Adjudication
Brunei Darussalam experienced several problems in the course of prosecution andtrial of a diesel smuggling case which seems to have been a shock to Brunei’s
customs service with a large number of customs officials involved. Brunei’s
participant drew our attention to two very technical but important issues at the trial
stage—whether to try the defendants together or separately—and the trial schedule
affected by the existence of a foreign witness. Also, Brunei raised the issue of how
to persuade a witness to testify when he/she expresses concern about his/her safety,
and to what extent the authorities can secure his/her protection—the witness
protection issue which is something rather crucial, especially in cases involving
accusations against senior public officials or persons having connections withorganized crime.
The participants from Myanmar shared an example that would be a difficult
decision for any legal professional in similar cases—the case U Ganaysin v. theUnion. There are indeed bribe givers who suddenly betray their counterparts andstart accusing them once they feel that the bribe taker does not do what they wanted- 17 -

them to do. How should investigators, prosecutors and judges respond to suchsituations? Is it really appropriate to acquit the bribe taker by saying that the bribegiver is unreliable as a witness just because he is the one who gave the bribe andlater dared to shift all the responsibility to his counterpart? The answer may differ
from country to country and may require us to revisit the public perception of what
is just and fair.
d) International Cooperation
In a case shared by the Brunei Darussalam delegation, a contractor for Brunei Shell
Petroleum had, over a period of almost 10 years, submitted false claims in theamount of $18 million for chemicals that were claimed to have been supplied toBrunei Shell. Investigation revealed that none of the chemicals were supplied.
The contractor bribed 22 Shell officials in the process in order to enable thepayment of his claims. The investigation into the Brunei Shell Petroleum case had
been a challenging one. The contractor fled Brunei to Malaysia during theinvestigation. Prior to that, the contractor had taken some of the money out of thecountry and deposited it into a bank in Singapore. The investigation was successful
because of the close networking and cooperation between the anti-corruption
agencies of Brunei, the CPIB of Singapore and the MACC in Malaysia. The
agencies assisted in the arrest of the contractor in Malaysia, which eventually led tothe contractor being charged and convicted. CPIB Singapore assisted to freeze thecontractor’s assets in Singapore, and the proceeds of crime in the amount of almost$1 million was able to be recovered and repatriated to Brunei Darussalam. Thiscase shows the importance of close inter-jurisdictional cooperation between
anti-corruption agencies in spite of the formal MLA provisions established underinternational law.
10. Lessons Learneda) Establishment of an independent anti-corruption body can be a powerful tool for
combating corruption. Still, the conventional criminal justice institutions can alsoachieve good results.
b) As mentioned by the delegation from the Philippines, inter-agency
cooperation—both inside and outside of the criminal justice system—is crucial for theeffective and speedy investigation of corruption cases.
c) Exhaustive investigation including the utilization of modern techniques ofinvestigation and forensic evidence is indispensable. The case study referenced by the
Malaysian delegation was a lesson in the need for specialized investigators andprosecutors in the field of financial crimes and the need to anticipate and be prepared
to respond to the high level of proof that courts will require.
d) Prosecutors must be fully equipped to counter legal ambiguity, loopholes andtechnicalities that will be raised by defendants which can impair the realization ofsubstantial justice.

- 18 -e) Corruption is no longer domestic; international cooperation at all levels of criminal
justice is crucial. We must understand each other’s systems and find solutions toremove obstacles to cooperative activities.
f) Help and support from the public is quite important in the course of investigationand prosecution. Moreover, public trust and support are crucial factors for theoperation and existence of anti-corruption bodies.
20 NOVEMBER 2014
KUALA LUMPUR, MALAYSIA- 19 -

SPEAKERS’ PAPERS AND CONTRIBUTIONS

Ms. Chan Shook Man Alice
Senior Assistant Director, Public Prosecutions
Prosecutions Division
Department of JusticeHong Kong Special Administrative Region***
Mr. Lee, Jin Soo
Senior Prosecutor
Seoul Central District Prosecutor’s OfficeSupreme Prosecutor’s Office
Korea- 20 -

EFFECTIVE TRIAL PREPARATION—PROSECUTION’S PERSPECTIVE
Chan Shook Man Alice *I.

INTRODUCTION

Hong Kong is a modern international city with a well-established legal system based on
the common law. The public has a high expectation of its criminal justice system. Prosecutors
in Hong Kong serve the public by upholding the rule the law and ensuring that that justice isdone to all fairly, efficiently and with much transparency. In an adversarial litigation system,a prosecutor should prepare and assemble all relevant evidence well in advance of the trial
and present the case in a fair manner. The prosecuting authority should not aim at achieving ahigh conviction rate by all means but instead be committed to ensuring that the guilty areconvicted and the innocent acquitted. Prosecutors are, therefore, entrusted to take on these
responsibilities in a fair and professional manner and in accordance with the law.
Most prosecutors, even the very experienced and talented ones, would agree that the key
to successful criminal prosecution is good case preparation. This does not make any
difference as to whether it is the trial of a summary offence in the magistrates’ court or amajor corruption case tried before a jury in the Court of First Instance.
It is the burden of the prosecution to prove the charges against an accused, thepreparation required of a prosecutor is no doubt different from that of a defence counsel. In
fact a prosecutor is often expected to hold more responsibilities in a criminal trial. In thispaper, it is intended to discuss the essential preparation work that is required to be carried out
by a prosecutor in order that the criminal prosecution can proceed smoothly and effectively.
It also covers preparation work required in the prosecution of corruption and bribery cases inHong Kong.
II.

CRIMINAL JUSTICE SYSTEM IN HONG KONG

In Hong Kong there are three major categories of establishments making up the Criminal
Justice System, namely, the law enforcement agencies, the prosecuting authority and the
judiciary. These institutions have separate powers and each work independently yetinter-dependently in the administration of justice.
A. The Law Enforcement Agencies
The law enforcement agencies include various law enforcement agencies such as theHong Kong Police Force, the Independent Commission Against Corruption (ICAC), theCustoms and Excise Department and Immigration Department, etc. They are responsible for
conducting investigation of crime and gathering evidence and other materials on which theprosecution relies. While investigators and prosecutors play separate and distinct roles in thecriminal justice system, they have to work in partnership to enforce the law. A prosecutor*

Senior Assistant Director of Public Prosecutions, Prosecutions Division, Department of Justice, Hong Kong.

- 21 -

cannot direct investigation but may request further investigation and advise the investigatoron the conduct of the case.
B. The Prosecuting Authority
When the investigation of a criminal case is completed, the matter will then be referredto the Prosecutions Division of the Department of Justice in Hong Kong which is responsible
for making decisions as to whether the case should proceed to prosecution. Under article 63of the Basic Law of Hong Kong, the Department of Justice “shall control criminal
prosecutions, free from any interference.” This serves as an important guarantee toprosecutors within the Department that they may make decisions to prosecute or not toprosecute in an independent manner without any political, improper or other undue influence.
To facilitate the promotion of fair, efficient and effective administration of justice, theDepartment of Justice has formulated policies and practices to guide prosecutors in
conducting prosecutions and to ensure that decisions to prosecute are made consistently andjustly. The first set of guidelines was issued in 1993. Moving on with the time and keeping inline with the development and changes in the law and criminal jurisprudence, there have beensubsequent revisions and updates. In September 2013, the Division released its latest editionof the prosecution guidelines bearing the title “the Prosecution Code”.
Under the Prosecution Code, a prosecutor makes a decision to prosecute or not toprosecute by considering two factors, firstly that the admissible evidence available issufficient to justify instituting or continuing prosecution and secondly that it is in the public
interest that the prosecution be conducted. In considering the first component of sufficiencyof evidence, the test to be applied is whether the evidence demonstrates a reasonable prospectof conviction. To make a decision on this issue, a prosecutor should have due regard tomatters such as the admissible evidence available, the quality of such evidence, the credibility
and reliability of the witnesses concerned and the defence that is likely to be raised. After the
first test is satisfied, a prosecutor must then consider the requirement of public interest. Thereis not a conclusive list of public interest factors but the general principle is that the more
serious the offence, the more likely that it is in the public interest to proceed with theprosecution.
C. The JudiciaryOnce a decision to prosecute is made, the judiciary will be involved in the conduct ofcriminal proceedings. Depending on the seriousness of the offences, criminal trials will be
conducted in the Magistrates’ Courts, District Court or Court of First Instance in Hong Kong.
A criminal trial in the Court of First Instance is conducted in the presence of a jury. In mostcases, a magistrate may sentence an offender to a term of 2 years of imprisonment for a single
offence and 3 years for more than one offence. A District Court Judge may impose amaximum term of 7 years’ imprisonment. The maximum term of sentence to be imposed in
the Court of First Instance is life imprisonment.
III. GENERAL PRINCIPLES IN CASE PREPARATION
A. Fairness
In preparing for criminal trials, it is of paramount importance that prosecutors must notforget they are ministers of justice and acting on behalf of the community impartially. The
role of a prosecutor cannot be more succinctly spelt out by Rand J of the Supreme Court of
Canada in the case of Boucher v The Queen [1955] SCR 16 at 23-24:- 22 -

“It cannot be over-emphasized that the purpose of a criminal prosecution is not to
obtain a conviction, it is to lay before a jury what the Crown considers to becredible evidence relevant to what is alleged to be a crime. Counsel have a duty to
see that all available legal proof of the facts is presented: it should be done firmly
and pressed to its legitimate strength, but it must also be done fairly. The role ofprosecutor excludes any notion of winning or losing; his function is a matter ofpublic duty than which is civil life there can be none charged with greater personal
responsibility. It is to be efficiently performed with an ingrained sense of the
dignity, the seriousness and the justness of judicial proceedings.”
It is an essential duty for a prosecutor to seek to present the relevant and credible
evidence of a case before the criminal court fully and effectively. He or she should assist the
court by making accurate and complete submissions of the law in issue and to apply to the setof facts before the court. In the course of the proceedings, the prosecutor must refrain fromusing language or conduct that may cause any bias against the accused and any defence
witnesses. It is also inappropriate for a prosecutor to express any personal opinion regarding
the credibility of the witnesses.
B. Understanding the Case
Case preparation should commence with the process of understanding the case.
Prosecutors should be furnished with the case file compiled by the investigators of the law
enforcement agency concerned. The files should include all relevant materials relating to thecase and the prosecutors should pay special attention to the following types of materials:
Charge sheet
Witness statements
Documentary and other relevant exhibits.

1.

The Charges
Apart from ensuring that the details on the charge sheet are accurate it is important tocheck on any recent development in the law concerning the particular charges. This isparticularly important for offences which involve areas of the law that are not well settled.
If amendments to the charges are required, the defence should be notified as soon as practicalin order that they are in a position to reconsider its defence, or in some cases, apply for an
adjournment of the proceedings.
2.

Witness Statements
The statements of prosecution witnesses usually form the main basis of the case against
the accused. It is therefore of utmost importance that a prosecutor should be well conversant
with all the contents at the early stage of case preparation. Particular attention is required
when there appear to be inconsistencies amongst the evidence of different witnesses. In suchcases, it may be useful to have the inconsistencies clarified or to consider the way theprosecution’s case can be presented in order that the issue of inconsistency may be resolved.
It is also important that any irrelevant, inadmissible evidence and/or other prejudicial
materials as set out in the statements can be identified at an early stage in order that theprosecutor can avoid eliciting such evidence when the witnesses testify in the trial.

- 23 -

After a prosecutor has become familiar with the evidence to be adduced by each witness,it has to be decided as to the sequence of calling those witnesses. A prosecutor is often seen
as a film director or story teller. The trial judge, under an adversarial litigation system, does
not have the benefit of knowing the prosecution’s case before the witnesses are called. A
prosecutor should therefore, aim to work towards the devising of an order of calling
witnesses in order that their evidence can be comprehended easily by the court. Afterall, it
has always been the burden of the prosecution to prove its case. In the event that thepresentation of evidence is confusing and hard to comprehend, it will create a convenientbasis for the defence to cast doubt on the prosecution’s case.
In Hong Kong, prosecutors do not meet and interview a witness before the trial to avoid
the allegation of coaching of witness. The assessment of the credibility and reliability of awitness is left to the investigators. The only exception to the general rule is expert witnesses
and more on this topic will be discussed below.
3.

Documentary Exhibits
Documentary exhibits such as written or recorded confessions of the accused, plans,
sketches, accounting records, photographs and bank records may be required to prove thecase. If a prosecutor wishes to adduce such evidence in a trial, it is important to check that the
chain of evidence is complete and that there is no issue of the admissibility.
The case file that has been delivered to the prosecutor’s office usually contains duplicate
copies of the documentary exhibits while the original documents are being kept by theinvestigator for formal production in the trial proceedings. It is desirable that a prosecutor
should inspect the original exhibit before the trial as it is not uncommon that useful
information previously left unnoticed can be found during the inspection exercise.
The Judiciary of Hong Kong has from time to time issued Practice Directions to regulate
the practices and procedures in bring criminal proceedings at different levels of courts. It is
important that prosecutors are familiar with these practice directions in order that they cansatisfactorily discharge their duties as ministers of justice.
C. More Pre-Trial Preparation
1. Use of Admitted Facts
In a criminal trial, it is unlikely that each and every part of the prosecution’s case is indispute. In Hong Kong, parties in a criminal proceeding may agree to adduce undisputed
evidence in the form of admitted facts. The relevant statutory provision is section 65 C of the
Criminal Procedure Ordinance, Chapter 221 of the Laws of Hong Kong.
Section 65(1) provides that “Subject to the provisions of this section, any fact ofwhich oral evidence may be given in any criminal proceedings may be admitted forthe purpose of those proceedings by or on behalf of the prosecutor or defendant
and the admission by any party of any such fact under this section shall as againstthat party be conclusive evidence in those proceedings of the fact admitted.”
This provision has proved to be a useful tool for a prosecutor as it is his or her duty toprove each element of the offence charged against an accused. In the event that certain
elements of an offence are not in dispute, instead of adducing evidence to prove such
undisputed part of the prosecution’s case, that can be agreed by way of admitted facts. The
trial can no doubt be conducted in a more efficient manner and the parties will focus on- 24 -

the disputed areas. For example, in the prosecution of a wounding case, if there is no disputethat the victim has sustained a wound and to agree the injuries by way of admitted facts, theprosecution may be dispensed with the need to call the doctor who attended the victim totestify in the trial. The use of admitted facts is also commonly seen in proving the chain of
exhibits, bank records and other formal evidence. Prosecutors should be encouraged to makegood use of this statutory provision for good case management.
2.

Case Conference with Expert Witnesses
As mentioned above, either party to a proceeding may meet to discuss the case with awitness who is to testify in the capacity of an expert witness. In fact, in cases which an expert
is required to furnish the court with expert opinion, it is desirable to meet with the expert tohave a better understanding of the technical aspect of the evidence, basis on which the expert
has formulated his or her opinion and the methodology that has been used. It is essential thatexperts are encouraged to explain his or her evidence in layman’s terms and to avoid the useof jargon in order that the Court and/or the jury will have a better grasp of the expert
evidence.
3.

Consider Possible Lines of Defence
In a criminal trial, the burden of proving the accused’s guilt lies on the prosecution andthe prosecution is required to prove its case beyond reasonable doubt. While the defence is
not under any duty to disclose its line of defence in advance, it is likely that the defence will
challenge certain parts of the prosecution’s case if there appears to be “weaknesses” in theevidence in that area. Besides, defence counsel are likely to challenge areas which they refuse
to adduce such part of the prosecution case by way of admitted facts.
4.

Early Inspection of Unused Materials
Not all the materials and witness statements collected in the course of the criminal
investigation are included in the case file for the purpose of adducing such evidence in thetrial. They usually form the unused material bundle(s). All unused materials relevant to thecase should also be served to the defence. This is part of the prosecution’s duty of disclosure.
It is not uncommon that defence would make considerable effort in perusing the unusedmaterials in the hope that they contain evidence that may undermine the prosecution case oradvance the defence case. Prosecutors should go through the same process and not leave theunused material bundle unattended until shortly before the commencement of trial.
5.

Inspection of Exhibits and the Crime Site
Prosecutors should seek to inspect the real exhibits which they intend to produce in thetrial before the proceedings. It is often desirable to arrange a site visit to be carried out tohave a better understanding of the crime scene and the evidence of witnesses.
D. Disclosure
1. The Principles
Article 87 of the Basic Law of Hong Kong gives an accused the right to a fair trial. The
fair disclosure of relevant materials to the defence is an integral part of a fair trial. The duty
to disclose is a positive duty placed upon the prosecution, and it is a continuing duty andextends throughout the trial and after conviction, on to appeal. The prosecution is, however,not under an obligation to disclose to the defence information or material that is relevant tothe credibility of a defence witness.

- 25 -

The leading authority on disclosure in Hong Kong is the Court of Final Appeal decisionin HKSAR v Lee Ming Tee (No. 2 ) (2003) HKCFAR 336, in which the Court of Final Appeal
set out the following main principles on the subject of disclosure:(i)

The prosecution is under a duty of disclosure to the defence and such duty
extends to materials or information in the possession or control of theprosecution (including the investigating agency) which may undermine theprosecution case or advance to the defence case.
(ii) The duty is imposed on the prosecution only and there is no general duty todisclose on the part of the defence.
(iii) In order to discharge the duty satisfactorily, the prosecution should instruct
the investigating agency to bring to the attention of the prosecuting counsel
any materials that may be disclosable.
(iv) The duty is not limited to the disclosure of admissible evidence. Materials
which are inadmissible may be relevant and useful for the purpose ofcross-examination of a prosecution witness on the issue of credibility;(v) The fact that a prosecution witness is a subject of a disciplinary or otherinquiry may also be disclosable as this may also be relevant to the issue ofcredibility or reliability of the witness.

2.

Common Disclosable Materials
In practice, materials to be disclosed by the prosecution in most cases include:(i)

All evidence sought to be relied upon by the prosecution (materials andinformation forming part of the witness statement bundle(s), documentary
exhibits bundle(s) and unused material bundle(s));(ii) The previous criminal convictions of an accused and/or co-accused, of thecomplainant and other prosecution witnesses;(iii) Known disciplinary records or other record of misconduct of any prosecution
witness that may reasonably affect his or her credibility; and(iv) Materials known to the prosecution that may assist the defence in theproceedings.
3.

Effects of Non-Compliance of Disclosure Duty
Late disclosure or failure to comply with the duty to disclose is a procedural irregularityand may cause detrimental effects to the prosecution. The Court may reprimand theprosecution and may order an adjournment of the proceedings. In an extreme case, the court
may allow a permanent stay of proceedings if the Court takes the view that no fair trial cantake place due to non-disclosure of relevant materials which may assist the defence.
IV.

PROSECUTION OF CORRUPTION AND BRIBERY CASES

A. The Use of Accomplice Witnesses
Under the corruption laws in Hong Kong, both an acceptor and offeror of unauthorised
advantages are criminally liable. As such insidious dealings are difficult to detect,investigating agency (ie the ICAC) often resort to engage informers and/or accomplice
witnesses in the detection and combat of corruption. The use of informers as prosecution
witnesses, particularly when these witnesses are also involved in criminal activities, is amatter requiring careful and balanced consideration. Sometimes an informer may be granted
an immunity from prosecution and to testify in the capacity of an accomplice witness. In- 26 -

other cases, an accomplice witness may, after pleading guilty, cooperate with theinvestigating agency and testify against other culprits. In doing so, the accomplice witness
may receive a substantial discount in sentence.
In all cases where an informer is used as a witness, the prosecutor must ascertain whether
the informer has been promised any reward for giving evidence or hopes to gain any benefit
from testifying. The prosecutor must scrutinize the evidence of the informer with great care
to look for any motive of lying. If the prosecutor takes a view that the evidence is tainted, heor she may consider not to use such evidence at all. In ensuring that the trial may proceed
fairly, the court and the defence should be made aware of any matter which might affect theassessment of the evidence of an informer.
An immunity from prosecution should only be given if it is in the interest of the public to
do so. In Hong Kong an immunity in written form will be granted by a senior member of theprosecution authority in return for the undertakings of the accomplice witness to give true andfrank evidence on behalf of the prosecution. A copy of the immunity will be served to thedefence and produced before the court at trial.
B. Confession of an Accused
It is not uncommon that the prosecution will rely on the confession of an accused madeto the investigating agency in proving bribery offences. In preparing the trial, a prosecutor
should carefully assess the quality of the confession. For a confession to be admitted in acriminal trial to be used against the accused, the prosecution is required to establish beyond
reasonable doubt that the statement was made voluntarily and there has been no unfairness tothe accused which would move the court to exercise its residual discretion in excluding thestatement. A voluntary confession is one that is not obtained by way of threat of violence or
inducement or oppression.
Previously confessions were recorded in the written form while it is more common
nowadays that the confessions are video-recorded. This provides a higher degree of accuracy
and the court can conveniently view the demeanour of the accused at the time of theinterview. In all cases, transcripts of the video-recorded interview will be produced as
evidence. A prosecutor should carefully view the video tapes before the trial and not rely
solely on the transcripts. A prosecutor should also obtain in advance records of the movementof the accused when he or she was being held in the custody of the investigating agency
during which the confession had been made to ensure that all relevant officers who had
handled the accused are available to testify.
C. Use of Technology Court for Trial Proceedings
The trials of complex commercial fraud or corruption cases often involve a large volume
of documentary exhibits. The Technology Court, situated inside the High Court Building in
Hong Kong, has been made available for both civil and criminal proceedings since 2008. The
Technology Court offers an electronic Documentary and Exhibits Handling System which isan information retrieval system and is capable of indexing and storing large volumes of
documents on the court’s computer. Documents can be retrieved and displayed
simultaneously in computer monitors for use in the course of a hearing. It also allows thejudge and parties to the proceedings to make private notes relating to particular documents.
If parties of the proceedings take the view that the use of Technology Court in thepresentation of evidence may promote the fair and efficient disposal of the proceedings and is- 27 -

also likely to be cost effective, they may consider applying for the use of Technology Courtat the early stage of trial preparation.
D. Applications and Collateral Challenges
In recent years, in the trials of complex commercial crimes and corruption cases, it has
become fashionable for the defence to make preliminary applications and collateralchallenges before the commencement or in the course of the criminal trials. Commonly seen
applications included judicial review of decisions relating to refusal of stay of proceedings,
admissibility of evidence, decisions of not to prosecute and venue of trial. As pointed out by
the Court of Final Appeal in Hong Kong in the case of Yeung Chun-pong & others v
Secretary for Justice (2006) 9 HKCFAR 836, the applications to stay proceedings andapplications for judicial review would “lead to a serious fragmentation of the criminal trial
process. The fragmentation of that process, involving an increasing number of interlocutory
applications and judicial review applications which delay the hearing of trials andnecessitate the vacation of dates fixed for hearing, is a growing problem in the criminal
justice system.”
Although the Judiciary in Hong Kong is generally of the view that the purpose of suchapplications is to attempt to disrupt the progress of the criminal trial and is an abuse of theprocess of the court, this does not deter the defence making the applications. While theProsecution is often left in a passive position in resisting such applications, it should stay
vigilant as to the possible collateral challenges and not be ambushed by the defence.
E. Recovery of Proceeds of Crime
Under the Organized and Serious Crimes Ordinance, Chapter 445 of the Laws of Hong
Kong and the Drug Trafficking (Recovery of Proceeds) Ordinance, Chapter 405, restraints
and confiscation orders are available with the aim of preventing an accused from benefittingfrom proceeds of drug trafficking and organized and serious crimes. The Prevention ofBribery Ordinance, Chapter 201 provides confiscation power to forfeit assets where a person
is convicted on indictment of an offence being a prescribed officer possessing unexplained
property, contrary to section 10(1)(b) of the said ordinance.
Application for a restraint order will normally be applied at the outset of the criminal
proceedings, otherwise, the accused may cause the properties to be dissipated and therefore
no longer available to satisfy the confiscation order subsequently made. Confiscation orders
are conviction based. An application for a confiscation order should be made at the District
Court or the Court of First Instance after conviction and before the sentence is imposed.
V. ROLE OF A PROSECUTOR IN SENTENCING
A prosecutor in Hong Kong should not attempt by advocacy to influence the court inrespect of the sentence to be imposed on a convicted person. It is, however, one of his or her
duties to assist the court to impose the appropriate penalty.
If there has been a trial, a prosecutor is obliged to adduce all relevant evidence, include
mitigating or aggravating features, which may impact upon sentence. In the case of a guilty
plea, the set of facts furnished by the prosecution and forming the basis for sentencing should
also contain sufficient relevant information.

- 28 -

While sentencing is entirely a matter for the court, a prosecutor can furnish the court withinformation on matters such as the prevalence of the offence, the effect of the crime on thevictim and the background of the accused. The court also expects a prosecutor to know the
maximum sentence the court can impose and to provide information from relevant court
decisions, relevant sentencing guidelines or guideline cases and relevant official statistics.
The prosecutor should also assist the court to avoid errors that may be subjected tosubsequent appeal.
It is also not appropriate for a prosecutor to make representations about the attitude of theprosecuting authority which may in any way fetter its discretion in possible review of thesentence.
At the conclusion of the trial, a prosecutor should also give careful consideration to apply
for other suitable orders such as compensation or restitution orders or disqualification fromdriving orders.

- 29 -

Anti-Corruption Investigation System andCurrent Issues of Korea
November 2014

Speaker
Senior Prosecutor Jin Soo LEE
1997. Passed the Korean Bar Exam
2000. Seoul Southern DPO
2005. Seoul Central DPO
2008. Supreme Prosecutor’s OfficeAnti-Corruption Dep.
Planning & Coordination Dep.

2011. U.C. Berkeley, Visiting Scholar
2013. The Office of the President
2014. Senior Prosecutor, Seoul Central DPO- 30 -

Legal System
Civil Law System
Korea, German, Japan, France
Active role of Judges in determining the facts
Inquisitorial system, written argument
Common Law System
England, The United States of America
Jury system
Adversarial system, oral argument

Legal System
Civic Participation in Criminal Trials Act

To expand people’s judicial right of participation
Consist of 7 to 9 jurors
No binding force
Advisory effect- 31 -

The Number of Lawyers

Total number of Lawyers : 23,538

Prosecutors : 1,953 (Female : 505 )Judges : 2,717 (Female : 751 )Attorneys : 15,504

New Prosecutors- 32 -

How to be a lawyer
Korean Bar Examination

Legal Research and Training Institute (2 years)
Abolition in 2018

Law School

From 2009, 25 Law Schools
Exam for the Bar
1,500 Lawyers each year

Organization of Prosecutors’OfficeSupreme Public Prosecutors’ OfficeSeoul HPPO

Taejon HPPO

Taegu HPPO

Pusan HPPO

Kwangju HPPO

Seoul DPPO

Taejon DPPO

Taegu DPPO

Pusan DPPO

Kwangju DPPO

TongbuMokpo
Changhung
SunchonHaenam

Dongbu
Nambu
Pukbu
Seobu
Uijongbu
Inchon DPPO
PuchonSuwon DPPO

Hongsong
KongjuNonsanChonanChoungju DPPO

AndongKyongju
KimchonSangjuUisongYongdok

Chungju
ChechonYoungdong

Changwon DPPO
ChinjuTongyong
MilyangKochang
Ulsan DPPO

Chunjoo DPPO
KunsanChongup
NamwonCheju DPPOSongnam
Yoju
Pyungtaek

Supreme Public Prosecutors’ Office

Chunchon DPPOHigh Public Prosecutors’ OfficeKanhnung
Wonju
SokchoYongwol

District Public Prosecutors’ Office
Branch office- 33 -

Two types of investigation conducted byprosecutors:
1. Supplementarypolice act as the primary investigators
2. Independent
public prosecutors initiate and conduct
investigations- on politician, high-ranking public official- large-scale and complex economic crimes

1. Investigation (conducted by police or prosecutor)
2. Arrest / search and seizure- basically, warrant issued by judge is required- exception
 Flagrant offender arrest (on the spot, red handed) Emergency arrest

3. Detention
 Detention period - Police : 10 days , Prosecutor : 20 days

4. Prosecution / Non-Prosecution
5. Trial and Sentencing- 34 -

Anti-Corruption Investigation
Anti-Corruption Investigation
Corruption that erodes fundamentals of a society’s law
Related to public interests / Victims are many unspecified people

Target Crime
Corruption crimes of Government official, Politician
Corporate corruption, Financial crimes, Securities crimes
High-tech crime, Hiding assets abroad

Anti-Corruption Investigation
Features of Anti-Corruption Investigation
Big Social Influence
Huge impact on the law-abiding spirit and trust toward law
enforcement agencies

VIPs (high-profile officials, owner of big companies) InvestigatedStrong resistance, delicate preparation & tightened security needed

Investigation Professionalism Required
Skills and high-tech investigation techniques that overwhelm thoseinvestigated- 35 -

Anti-Corruption Investigation
Light
Maintain the public interest by combating corruptionthat undermines a country’s social order(High-ranking public officials’ corruption, Big companies’ corruption)

Shade
Concerns over political neutrality, fairness, and unfair &unreasonable investigation (Due to its huge social impact)

Changes to the Anti-Corruption System
Role of Central Investigation Department in SPO
SPO directly investigated Important Cases until 2013
Power-related corruption cases in 1960~80s, Political corruption casesin 1990s, and Corporate-related political corruption cases in 2000s

Cases that DPOs have limitation to deal with
Controversies over DPO’s overlooked and weak investigation- Park Jong Chul’s torture and death case (’87)

Controversies over fair investigation due to local influence- Park Yeon Cha case (’09)
Controversies over slow investigation of President’s relatives,
key figures of political and corporate fields- Hanbo corruption scandal (’97), Kim Hyun Chul’s (president’s son) corruption

case (’97), Lee Yong Ho Gate scandal (’02), Presidential campaign fundscandal (’03), Hyundai Motor’s embezzlement & negligence of duty case (’06),
Busan Savings Bank scandal (’11)- 36 -

Changes to the Anti-Corruption System
History of Central Investigation Department
1960s : Investigation Bureau System
1st~4th divisions under Investigation Bureau

1970s : Special Investigation Department System
1st~4th divisions under Special Investigation Department

1980s : Central Investigation Department System
1st~4th divisions under Central Investigation Department

1990s ~ 2000s : Central Investigation Department System
Newly adopted of Office of Investigation Planning (’94), Computer
Investigation Division (’00), Special Investigation Support Division (’01)

2013 : Central Investigation Department of SPO AbolishedControversy over political neutrality and fairness

Changes to the Anti-Corruption System
Redesign of the Anti-Corruption Investigation System
Streamlining Special Investigation System of Prosecution
Redesigned the system according to the will of the people

Securing politicalneutrality & fairness

Building Capacity
against Corruption

Protection of
Human rights

Newly Established Anti-Corruption Departmentthat controls and supports special investigation- 37 -

Anti-Corruption Department of SPO
Anti-Corruption Organization

Prosecutor General
Deputy Prosecutor General
Director General of ACD
Chief Officer of Investigation Planning

Investigation Control Division

Investigation Support Division

Anti-Corruption Department of SPO
Chief Officer of Anti-Corruption Planning
Planning∙Coordination of Special Investigation tasks
In-depth analysis and research on social phenomena
Pursue structural and chronic corruptionEx) Sunken ferry Sewol accident- 38 -

Anti-Corruption Department of SPO
Chief Officer of Anti-Corruption Planning
Mokpo Branch of Gwangju DPO :Investigation on direct problems ofsinking, including overloading andpassenger rescue
Incheon DPO : ① Investigation on
corruption of Semo Group (the operatorof Sewol, and its affiliates)② Investigation on corruption of Korea
Shipping Association, Korea Shipowners’
Association and Korea Ship Safety
Technology Authority, which supervise
passenger-ship safety
Busan DPO : Investigation on corruption of
Korean Register of Shipping responsible
for ship safety test
Ulsan∙Changwon∙Jeju∙Suncheon∙Pohang∙Gunsan∙Masan, etc. : Investigation on
corruption in shipping industry

Anti-Corruption Department of SPO
Chief Officer of Anti-Corruption Planning
Assign and Manage Crime Information
When relevant agencies report corruption to SPO,
the Chief Officer registers, assigns and manages the crime information-Board of Audit & Inspection of Korea : Crime information disclosed during
the inspection of public servants and organizations-Anti-Corruption & Civil Rights Commission : Crime information found in theprocess of dealing with civil petition for grievance- Financial Services Commission : Crime information found in the process offinancial supervision, including stock manipulation and insider trading- National Tax Service : Crime information about tax evasion disclosed during tax
investigation- Fair Trade Commission : Crime information on unfair trading practices- 39 -

Anti-Corruption Department of SPO
Investigation Control Division
Supervise Special Investigation Cases Conducted by DPOs
Supervise investigation activities from a nationwide point-of-view

Anti-Corruption Department of SPO
Investigation Control DivisionCollect information on special investigation cases
nationwide & manage the statistics
Control special investigation cases conducted by DPOs, manage
statistics & operate investigation data management system- 40 -

Anti-Corruption Department of SPO
Investigation Support Division
Support for accounting analysis, money tracing
More sophisticated/specialized crimes as the size of economy
expands and financial products are developed
47 experts on accounting analysis & money laundering investigation(including 12 C.P.A.s) can be dispatched from SPOs to DPOs

Recent Important Support cases in 2013

- Nuclear power plant corruption case
- Recovery of underpaid forfeit by former president Chun
- CJ Group slush fund case
- Dong Yang Group‘s fraudulent CP issuance case
- Hyosung Group’s tax evasion caseAnti-Corruption Department of SPO
Investigation Support Division
Training of prosecutors & investigators on accounting
analysis/money laundering investigation
Training courses for prosecutors on corporate accounting- Three-month training course, targeting 24 prosecutors- Training on accounting knowledge necessary for accounting (financial, tax & costaccounting) analysis investigation- Training on accounting analysis (analysis of embezzlement with prepayments andfictional labor costs) & money laundering investigation techniques

Training courses for investigators on accounting analysis∙money
laundering investigation- Six-month training, targeting 35 investigators- Acquire public certificate (financial manager) after training on accounting analysis- Promote capacity on money laundering investigation (Theory & practicaltechniques training for 9 weeks, actual practice for 43 weeks)- 41 -

Anti-Corruption Department of SPO
Investigation Support Division
Criminal Asset Recovery“Crime does not Pay”
Ex. Recovery of underpaid forfeit by former president Chun
- ACD established criminal asset recovery team & organized the recovery measures- ’13. 6. Investigated 330 people in total, raided 90 places and secured property worth
USD 166 mil. (real estate and artworks)- ’13. 9. Mr. Chun announced a payment plan to pay the underpaid forfeit worth
USD 163 mil.
- ’14. 5. USD 94 mil. (44% among the total forfeit USD 215 mil.) was paid

Anti-Corruption Department of SPO
Investigation Support Division
Cooperation with relevant agencies
Board of Audit and Inspection of Korea
Fair Trade Commission
Ministry of Defense
National Tax Service ∙ Korea Customs Service
National Intelligence Service
Anti-Corruption & Civil Rights Commission
Financial Services Commission
Financial Intelligence Unit

- 42 -

Anti-Corruption Department of SPO
Investigation Support Division
Cooperation Network for International Investigation
Essential to investigation of recently growing offshore crimes
Set up a practical network for investigative cooperation with US ∙Singapore ∙ China ∙ Switzerland, etc.
- In ’13. 11, the director visited the US Department of Justice∙Internal Revenue
Service to discuss mutual cooperation on how to share information- In ’14. 4, a Swiss federal prosecutor visited the ACD to discuss how to deal withthe seized bank account on the charge of money laundering

Customized Task Force Teams
Nuclear Power Plant Corruption TF Team (Eastern Busan DPO)
Organized Nuclear Power Plant Corruption TF Team (’13. 5.)
Customized TF team to eliminate concerns over nuclear power plant safety

Intensive investigation in a short period of time
In 100 days, 43 were detained & 97 were indicted
As of ’14. 5, 72 were detained & 153 were indicted

ACD of SPO, Control Tower of Investigation
Comprehensive Investigation on corruption of nuclear power plant,
including fake test record, accepting bribery- 43 -Customized Task Force Teams
Securities Crime TF Team (Southern Seoul DPO)
Organized Securities Crime TF Team in Seoul Central DPO (’13. 5.)
Consist of various agencies (Korea Exchange ∙ Financial Supervisory Service ∙Financial Services Commission ∙ National Tax Service ∙ Korea Deposit Insurance
Corporation ∙ Korean Prosecution Service)“Fast Track System” - Dramatic decrease in period

Normalize capital market with good cooperation system
As of ’14. 2, 66 were detained, 97 were indicted
Recovery of illicit proceeds of USD 23 mil.
Taxation on irregularity-related asset of USD 176 mil. by NTS

Transferred to Seoul Southern DPO (’14. 2.)
Seoul Southern DPO is located at Yeouido stock street (FSS andKorea Exchange)

Digital Evidence
ComputerHard Drive

Digital Storage Devices

Mobile Devices- 44 -

Admissibility of Digital Evidence

Authenticity of evidence

Integrity of evidence

Reliability of evidence

Legality of procedure

Organization of National Digital Forensics Center

Prosecutor General
Deputy Prosecutor
GeneralChief of NDFC
Site: 39,094㎡,Building: 7,934㎡(6 Floor Levels, 1 Underground Level)

Forensic
Science
Division

Digital Forensic
Division

DNA Forensic
Division- 45 -

Cybercrime
Investigation
Department

Organization of Digital Forensics Division

Digital Forensics
Division(42)Planning
SectionInvestigation
Support
SectionResearchAnd
Development
SectionAdministration Team

Computer Forensic Team

Digital Forensic Network
Team

Human Resources
Development TeamDB Forensic Team

Digital Forensic
Laboratory

Mobile Storage
Forensic TeamCounter Anti-forensic
Team

Computer Forensics
Computer Forensic Team

Confiscation
SearchEvidence
Analysis

Recovering
Data• Confiscating and searching computer systems(HDD, portable storage medium, etc)

• Analyzing evidence such as files, cash, log files
recorded on digital storage medium such as PCs,
portable storage media, CCTVs, etc• Recovering deleted data on digital storage
medium- 46 -

DB Forensics
DB Forensic Team

Confiscation
SearchEvidence
Analysis• Confiscating and searching masselectronic system (Accounting DB,
electronic authorization, emails, etc)

• Analyzing Accounting DB, electronic
authorizations, emails, etc.

Mobile Forensics
Mobile Storage Forensic Team

Analyzing Evidence and Recovering Data

• Extract and analyze evidence saved on cell
phones or smart phones such as text
message records, contact list, photos, videos,voice recordings, internet access record, etc- 47 -

Digital Forensics Laboratory

Confiscation
SearchEvidence
Analysis• Support confiscation search(Unlock information protection function,
extract password files, etc)
• Unlock Login Password• Decipher File Password• Unlock Digital Rights Management for
Company Documents Passwords• Unlock USBs protected with Passwords• Cope with Anti-forensics

Technology• Techniques on dealing with Information

Consultation

protective solutions and locked products

Digital investigation team main businessTraining Individual team• Digital Forensics curriculum development
Educationand operation (Basic course, Advanced
course and continuing education)• Digital Investigation relative regulationand making manual
Research and • Digital Forensics qualification systemdevelopment • Tool qualification system research• Digital Forensics related researchand development- 48 -

Spirit of Anti Corruption Prosecutor
Spirit of Special Investigation Prosecutor
Prosecution Service should make ‘huge criminals’ ’nervous’
Huge criminals are figures with political power and money
who oppress the weak

Korean Prosecutors have fought against such huge criminals
Continuous efforts are needed to regain public trust

Outstanding capacity & great sense of mission
Special Investigation Prosecutors need excellent legal
knowledge, leadership, a sense of duty, capacity to evaluate
evidence & understanding of social phenomena

Thank you

40 / 13- 49 -

COUNTRY PRESENTATION PAPERS

Mr. Md Juanda A. Rashid & Mr. Shamshuddin Kamaluddin, Brunei Darussalam***
Mr. Chay Chandaravan & Mr. Nuon Norith, Cambodia***
Mr. Andre Dedy Nainggolan & Mr. Hotma Tambunan, Indonesia***
Mr. Shinichiro Iwashita, Japan***
Mr. Phongsavanh Phommahaxay & Mr. Xaysana Rajvong, Lao PDR***
Mr. Muthusamy Kanakaraja, Malaysia***
Ms. Khin Myo Kyi & Mr. Soe Naung Oo, Myanmar***
Ms. Deana Perez & Mr. Vic T. Escalante, Jr., Philippines***
Mr. Wee Keng Lock Raymond, Singapore***
Mr. Jirawoot Techapun & Ms. Sunanta Jampa-ngoen, Thailand***
Ms. Hoang Hai Yen, Viet Nam- 50 -CURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND
ADJUDICATION OF CORRUPTION CASES
IN BRUNEI DARUSSALAM
Dato Paduka Hj Muhammad Juanda Hj A.Rashid *Shamshuddin Kamaluddin †I.

INTRODUCTION

Corruption continues to remain as one of the major challenges in countries across theglobe, both in developed and developing countries. In order to effectively overcome thischallenge, a range of anti-corruption measures have to be put in place.
It is against this backdrop that the Government of His Majesty the Sultan and Yang
Di-Pertuan of Brunei Darussalam enacted the Emergency (Prevention of Corruption) Order in1981 (now known as the Prevention of Corruption Act (Cap 131) followed by theestablishment of a sole agency responsible for investigating corruption offences in Brunei
Darussalam called the Anti-Corruption Bureau.
In addition to its strong political will as the foundation, the Bureau has developed threecore strategies for combating corruption in Brunei Darussalam namely: Investigation,
Prevention and Education. Corruption cases are prosecuted in the Courts of Brunei
Darussalam by Deputy Public Prosecutors and Prosecuting Officers of the Criminal JusticeDivision of the Attorney General’s Chambers. This paper aims to explain the current
challenges in investigating and prosecuting corruption cases in Brunei Darussalam.
II. BRUNEI DARUSSALAM EXPERIENCE IN COMBATING CORRUPTION
The Anti-Corruption Bureau, Brunei Darussalam was established on 1st February 1982.
Over the past 30 years since its establishment, the Bureau has investigated a number of cases
involving a range of offences varying from petty to grand corruption; as well as other penal
code offences such as embezzlement, forgery, criminal breach of trust as well as
investigations involving foreign jurisdictions.
The Prevention of Corruption Act (Cap 131) has a wide scope which covers active andpassive givers and receivers of corruption, both in the public and private sectors. The Act also
extended its scope to criminalize the abettor of the corrupt transactions and provides theprovision on illicit enrichment which puts the burden of proof on the accused to show how helegally acquired his wealth, so that if he has unexplained wealth disproportionate to his
known source of income, that is considered as corroboration of graft.

*

Director of Anti-Corruption Bureau and Permanent Secretary (Law and Welfare), Prime Minister’s Office,Brunei Darussalam.
†
Senior Legal Officer and Prosecuting Officer, Criminal Justice Division, Attorney General’s Chambers, Brunei
Darussalam.

- 51 -

III. 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 theirtracks and hide their corrupt transactions. In response to these changing trends, officers of the
Bureau are expected to be specialized and expand their investigation into a much wider
scope.
The Bureau has identified few challenges which will be addressed in this paper.
A. Multiple Jurisdictions
In our experience conducting investigation across borders, few limitations wereidentified 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 andcooperation 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 suchagencies overcome limitations and improve assistance. This would contribute to a more
timely 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 Sdn Bhd who was convicted
on 40 charges under the Prevention of Corruption Act and the Penal Code (62 charges weretaken into consideration during sentencing) for submitting false claims and bribery to theBrunei Shell Petroleum Sdn Bhd 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 thedefendant was subsequently arrested by the MACC and was surrendered to theAnti-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 theprosecution’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 assistancefrom CPIB Singapore and the Central Authorities of Mutual Legal Assistance from bothcountries, the Bureau was able to obtain the corrupt proceeds from the accounts which werefrozen by the authorities in Singapore.
B. Evidence Management
Many corrupt givers or receivers now are able to camouflage the corrupt funds in theforms of commodities such as loans, benefits or other concessions. Unlike the crime ofmurder, investigators do not have the opportunity to mount a crime scene investigation, butinstead investigators are required to do money-trailing investigation and compile- 52 -

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 byanti-corruption officers.
In this regard, the Bureau has over the years invested in creating specialized officers withcomputer, accounting and legal backgrounds. The officers are tasked to make analysis ofbank 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 inelectronic 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 toacquire evidence from electronic devices legally and professionally. This also includes theability to digitize hard copy evidence, and this has proven to assist investigating officers insaving a lot of time sifting through the evidence as the information has been streamlined andfocused 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.
C. 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 sophisticatedinvestigation. The usage of special investigative means such as wire-tapping, undercover
officers, telecommunication interception and consensual recordings are regarded as one of theimportant tools in obtaining evidence of corrupt acts.
However it requires skilled officers to mount these special investigative techniques andthe 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 thelegal requirements to be presented in court as well as internal safeguards to prevent abuse.
D. Interviews
Many would agree that an interview is the main integral and perhaps the mostchallenging 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 basedon 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 acomprehensive chronology of events, case backgrounds, supporting documents andantecedents 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- 53 -

exercise discretion. With these skills, interviewing officers will be able to obtain accurate andreliable information from witnesses efficiently and professionally.
IV. CHALLENGES IN PROSECUTING CORRUPTION CASES“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 toprovide 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 which will be outlined below.
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 checkand balance. Hence the importance of the Public Prosecutor’s consent reflects a recognitionby the legislature that the crime of corruption has special difficulties associated with it andvery great care is needed in determining whether or not to prosecute any given corruption
case.
A. Prosecutorial Decision
The first challenge in prosecuting a corruption case lies in the decision making ofwhether 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 ismore 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 giveragainst 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 other independent 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 thesecircumstances.
In terms of prosecution, we in Brunei are prepared to prosecute both givers and receiversof bribes, just as can be seen in one of our high profile cases against the ex-Minister ofDevelopment of Brunei, where he was charged as the receiver together with the giver of thebribe 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 weprosecute all parties in all corruption cases, who is 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 toprosecute both receivers and givers of bribes.

- 54 -

B. Handling Difficult Witnesses
In most corruption cases the only people with direct knowledge of the offence are thetwo people who commit it, the giver of the bribe and the person receiving the bribe. It is forthis 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 theaccomplices still feel some reservation towards prosecutors and will always minimize theirrole 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.
C. Multiple Defendants—Joint Trial or Separate Trial
In most cases received by the Attorney General’s Chambers the evidence gathered aremostly 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 tounderstand 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 toMiri, 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 outof Brunei inside big modified fuel tanks, which is an offence under the Customs Order ofBrunei.
The bribes given to the senior customs officers were in bigger amounts to ensure thatthose 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 theBrunei 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 andvoluminous documents. After painstakingly reviewing and examining the evidence presented,
the Public Prosecutor decided to charge 6 senior customs officers and 15 junior customs
officers.

- 55 -

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 hailfrom 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 caseon 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 theMagistrate Court for separate trials.
With regard to the 15 junior customs officers’ cases, the prosecution had a better chanceof 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 werevery 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 ofcourt dates, and finding a common date for all parties (the court, the 1 DPP and the eight
defence counsels handling the matter) was sometimes impossible; then there was also theissue of the main prosecution witnesses’ unavailability and that their availability wassomething 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 forthree years after they were all first charged, the Public Prosecutor decided to enter Nolle(nolle prosequi) on all charges against the 15 defendants, and they were all discharged notamounting to acquittal in order to give way for them to be dealt with administratively byanother penal authority.
D. 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 inJakarta. The said Counselor had demanded moneys from these witnesses who were

- 56 -

freelance human resource agents as a reward for processing their application which were notsupposed to be allowed by the Embassy at the time. Some of these witnesses hesitated tocome 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 justbecause the main prosecution witness who was a foreigner did not want to come to Brunei togive 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 toprosecution. 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 orprosecutor.
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 andfinancially 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 wereafraid 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.
V. CONCLUSION
The crime of corruption is becoming more complex and sophisticated in nature.
Anti-corruption agencies need to strive to always be steps ahead by continuously raising thebar to improve the quality of investigation through capacity building. In addition, there is aneed to review the existing laws and legislation in order to overcome the loopholes created by
the changing trends of corrupt practices which are taking place.
Brunei Darussalam has adopted a holistic and continuous approach in accordance withthe country’s strong political will in preventing corruption. The overall approach involves themobilization and cooperation of all sectors of the government, private sector, as well as
members of the society. Every component or sector needs to engage in collective action andneeds to do its part in promoting the cohesiveness of the overall anti-corruption effort inBrunei Darussalam.

- 57 -CURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND
ADJUDICATION OF CORRUPTION CASES
Nuon Norith*I.

OVERVIEW

Corruption is a complex social, political and economic phenomenon that affects all
countries. Corruption undermines democratic institutions, slows economic development andcontributes to governmental instability. Corruption takes place in all human societies and at
all walks of life. Cambodia is also experiencing this social phenomenon. The Royal
Government of Cambodia does not turn a blind eye to this problem. The Royal Governmentis strongly committed to fighting corruption, formulating a separate anti-corruption law andempowering an independent anti-corruption mechanism.
II. LEGAL FRAMEWORK
A. BackgroundCambodia applies Civil Law and the judicial system is composed of a Supreme Court,
Court of Appeal and Court of First Instance. The Supreme Court is the highest level of thecourt system that can receive complaints of a party that is not satisfied with the judgement of
the Court of Appeal. The Appeal Court has the authority to decide on the appeal against thejudgement of the court of first instance of its jurisdiction for criminal cases. If any party to
the case is not satisfied with the judgement of the Appeal Court, she/he can appeal to theSupreme Court. The Supreme Court is the highest court in the country and the place of thelast and final appeal. The court of first instance is a low-level court with full capacity to
implement all existing provisions and laws with respect to each court’s own jurisdictions.
This court has the authority to handle all cases, including administrative cases. During ahearing, the court consists of one judge and one prosecutor for misdemeanour cases, andthree judges and one prosecutor for felony cases.
B. Anti-Corruption Law (ACL)The Anti-Corruption Law was promulgated by Royal Kram on 17 April 2010. It is a
substantive law that is applicable to all forms of corruption in all sections and at all levels
throughout the Kingdom of Cambodia, which occurs after the law comes into effect. It
stipulates the general provisions, definitions, the establishment of the Anti-Corruption
Institution that is composed of the National Council Against Corruption (NCAC) and theAnti-corruption Unit (ACU), asset and liability declaration, criminal procedure to conduct
investigation, sanction, and strategies to fight corruption effectively with four strategies:
education, prevention, law enforcement with participation and support from the public, andinternational cooperation
C. Criminal CodeThe criminal law defines offences, determines who may be found guilty of committing
them, sets penalties, and determines how they shall be enforced. Offences are classified*

Deputy Director, General Department of Operation, Anti-Corruption Unit, Cambodia.

- 58 -

pursuant to their seriousness as felonies, misdemeanours, and petty offences. Forty (40)articles of corruption offences are extracted from the Penal Code (2009) and are stipulated in
the ACL, article 32. Notably, these articles are implemented by the ACU only.
D. Code of Criminal Procedure (CCP)The Code of Criminal Procedure aims at defining the rules to be strictly followed andapplied in order to clearly determine the existence of a criminal offence. The provisions of
the Code shall apply to criminal cases unless there are special rules set forth by separate law.
Importantly, the investigation procedure by judicial police, prosecution by prosecutors, theinvestigation by the investigating judge, security measures, judicial supervision, provisional
detention, trial hearing, types judgements, judgements against the court of the first instance,
the appeals court, and the Supreme Court, etc. are precisely stated. But some articles of theCode are contradicted by some articles of the ACL due to the special privileges of the ACU.
III. INVESTIGATION BY THE ANTI-CORRUPTION UNIT
A. The Sole National Investigation Agency
Under the Anti-Corruption Law, the Anti-Corruption Unit is the sole institution
responsible for investigating corruption offences as stipulated in both the Anti-Corruption
Law and the Penal Code. Officials of the Anti-Corruption Unit who are accredited as judicial
police are empowered to investigate corruption offences. In addition, other units that areaware of corruption offences shall make corruption complaints to the Anti-Corruption Unit or
its branch offices in the Capital or provinces.
B. Investigation Power of ACU Officials
Officials of the Anti-Corruption Unit who are accredited as judicial police take charge ofinvestigating corruption offences. If different offences are found during the course of acorruption offence investigation, and if the facts are related to the offence being investigatedby the Anti-Corruption Unit, officials of the Anti-Corruption Unit may continue theinvestigation of the offences to the final stage. The Anti-Corruption Unit cannot investigate
other offences that are unrelated to corruption unless the unit is ordered by the court to doso. 1 In the framework of these investigations, and contradictory to some articles in the Codeof Criminal Procedure, the ACU investigators have the power to arrest suspects after
officially assigned by the President of the ACU without asking permission or informing toprosecutor before the arrest. After the arrest, the prosecutor exercises his power as stated in
the Code of Criminal Procedure. At the end of each investigation, the Anti-Corruption Unit
shall submit all facts to the prosecutor for further action in conformity with the provisions of
the Code of Criminal Procedures.
C. Special Privileges of the Anti-Corruption Unit
The President of the Anti-Corruption Unit can ask the concerned authority to suspend allfunctions of any individual who is substantially proven to be involved in a case ofcorruption. If the suspect flees to a foreign country, the President of the Anti-Corruption Unit
can ask the competent authority to undertake an extradition in accordance with the provisions
in force.
D. Privileges of the Anti-Corruption Unit Related to Monitoring
In cases where there is a clear hint of a corruption offence, the Anti-Corruption Unit can:1

Anti-Corruption Law, art. 25.

- 59 -

a. Check and put under observation the bank accounts or other accounts which aredescribed to be the same as bank accounts.
b. Check and order the provision or copy of authentic documents or individual
documents, or all bank, financial and commercial documents.
c. Monitor, oversee, eavesdrop, record sound and take photos, and conduct wiretapping.
d. Check documents and documents stored in the electronic system.
e. Conduct operations aimed at collecting real evidence (trapping).
The above measures will not be considered as violations of professional secrets. Bank
secrecy is not a justification for failing to provide evidence related to corruption offences
under the provisions of this law.
E. Privileges of the Anti-Corruption Unit Related to Freezing an Individual’s Assets 2Upon the request by the President of the Anti-Corruption Unit, the Royal Government
may order the General Prosecutor of the Appeals Court or Prosecutor of theMunicipal/Provincial Court to freeze the assets of individuals who commit offences stated in
Anti-Corruption Law and corruption offences stated in the Penal Code. The individual assets,stated in the above paragraph, include the funds received or which form an asset belonging tohim/her.
F. Privileges of Anti-Corruption Unit in Cooperation with Public Authority 3
The President of the Anti-Corruption Unit may order public authorities, government
officials, citizens who hold public office through election, as well as units concerned in theprivate sector, namely financial institutions, to cooperate with officials of the Anti-Corruption
Unit in the work of investigation. The President of the Anti-Corruption Unit may also ask thenational and international institutions to cooperate in forensic examinations related to its
investigation work.
G. Procedure Relating to Asset Seizure and Repatriation of Proceeds of Corruption(a) Seizure 4
When a person is found guilty of corruption, the court will confiscate all his/her
corruption proceeds including property, material and instruments derived from corrupt acts,
and the proceeds will be transformed into state property. If the above seized asset istransferred or changed into different property from the nature of the original asset, thistransformed asset will become the subject of seizure at the place where it is located. If thecorruption proceeds make more benefits or other advantages, all of these benefits andadvantages will be seized as well. If the corruption proceeds disappear or lose value, the court
may order the settlement, or payment, of the proceeds lost.
(b) Repatriation of the proceeds of corruption
If assets and corruption proceeds are found kept in foreign states, the competent authorityof the Kingdom of Cambodia shall take measures to claim those assets and proceeds and to2

Ibid., art. 28.
Ibid., art. 29.
4
Ibid., art. 48.
3- 60 -

repatriate them back to Cambodia through means of international cooperation. The Kingdomof Cambodia shall cooperate with other countries who request the repatriation of corruption
proceeds that are kept in Cambodia.
H. Current Issues in Investigation
So far, even though many achievements have been made by the ACU, it still faces
certain challenges:•

Competent skills of investigation officials are limited.

•

Lacking high-tech materials and equipment, such as lie detectors (Polygraph) nightvision cameras, etc.

•

Suspects commit crime in complex and tricky ways and sometimes use advanced
technology to hide or to camouflage acts of crime. Criminals are usually highranking, powerful and rich officials.

•

Complainants and the ordinary citizens are hesitant and not so cooperative inproviding information related to corruption due to feeling frightened or scared interms of his security, business, etc.

•

Law: Even if there is a good law but it has some loopholes that fail to prevent
criminals from committing crime, amendments to such laws must be done according
to social development and must be effective in practice. Though there are many laws
to fight corruption, a law on protection of witnesses and whistleblowers is not inplace yet.
IV. PROSECUTION

Prosecutors charge suspects with criminal offences and ask for the application of laws by
the Court. Prosecutors are responsible for the implementation of orders of the criminal courton criminal offences, including the dissemination of arrest warrants. In performing his duties,
a prosecutor has the right to directly mobilize public forces. A prosecutor shall attend all
hearings of the trial court in criminal cases. Therefore, prosecutors have the power to conduct
their own investigation, and it is always done where there are big or sensitive cases. When hereceives dossiers from the judicial police, he will examine and interrogate the suspects again.
Filed without processing: the Prosecutor shall inform the complainant about suchdecision within the shortest possible period, and in any case not more than two months. Thisfiling shall be based on grounds of law and fact. Filing without processing does not have theeffect of res judicata. The prosecutor may always change his decision as long as the criminal
action has not been extinguished. If the complainant is not satisfied with the prosecutor’s
decision to hold the file without processing, the complainant may appeal that decision to theGeneral Prosecutor attached to the Court of Appeal.
V. ADJUDICATION
A. Investigation Judge
Investigating judges are assigned by the Court President, and they open judicial
investigations against one or more persons until there is an introductory submission from the- 61 -

Royal Prosecutor. He has obligation to collect “charge” (incriminatory) and “uncharged”(exculpatory) evidence. The investigating judge may make site visits or observations and may
search and seize exhibits with his court clerk, informing the prosecutor thereof. In practice,an investigating judge may issue letters rogatory asking another judge or the judicial police toundertake the investigation instead of him (Art. 131).
•

The presence of a lawyer during interrogation is needed; if there is no lawyer, it shallbe noted in the record (Art. 145).

•

At any time during a judicial investigation, the Royal Prosecutor may request theinvestigating judge to conduct any investigative act that he believes will be useful. If
he has not decided within 15 days, the prosecutor will appeal to the investigationchamber at the court of appeal (Art. 132).

•

At any time, the prosecutor may examine the case file or ask for its transmission. In
the latter case, the prosecutor shall send the case file back within 24 hours (Art. 135).

•

The prosecutor may be present during any investigative act, in particular theinterrogations of the charged person, confrontations and interviews (Art. 136).

•

Searches and seizures and other investigations require warrants. An investigating
judge shall conduct a search in the presence of the occupant of a place. In theabsence of the occupants, the judge shall search in the presence of two witnesses tobe selected by the judge. The witnesses may not be police or military police officers
from the force conducting the search. An investigating judge may not conduct asearch before 6:00 A.M or after 6:00 P.M (Art. 159).

•

Wiretapping for the purpose of ascertaining the truth: the investigating judge may
issue an order authorizing the listening to and recording of telephone conversations.
The investigating judge may also order the recording of all othertelecommunications, such as by facsimile or email.

•The investigating judge may issue a letter rogatory authorizing any judge who is in
the same court or in another court, judicial police officers or judicial police units (orthe ACU) to investigate on his behalf.

•

An investigating judge may issue subpoenas, “bringing warrants” or orders to bringa suspect to court, arrest warrants and detention orders (Art. 185).

•

An investigation judge (IJ) has the right to order provisional detention in criminalcases (6 months and may extend for 6 months) and in misdemeanour cases (4months and may extend for 2 months). The prosecutor must be informed of thedetention; if the IJ or the prosecutor disagrees with facts of or the explanation for thedetention, he or she may appeal to the court of appeal. The IJ, the prosecutor andcharged person may request release at any time according to procedure (Art. 215217).

B. Trial Judge
A judge cannot be the trial judge in a criminal case where she/he has been the prosecutor,
deputy prosecutor, or investigating judge. The presiding judge conducts the proceedings and- 62 -

maintains order in court etc. The role of the trial judge is to decide on the guilt or innocenceof the accused person, based on evidence (exhibits and witnesses) included in the case file orpresented at trial. The trial judges also determine the sentence if the accused person is foundguilty.
•The accused shall appear in person during the hearings at the court and may beassisted by a lawyer chosen by himself. He may also make a request to have a lawyer
appointed for him in accordance with the Law on the Bar (art. 301).

•

Witnesses shall appear before the court in compliance with summonses. The court
may use public forces in order to force the witness to appear (art. 315). In general,
witnesses always give statements to the prosecutor or IJ and sometimes to the judges’
council (three judges presiding over criminal cases) which will give permission towitnesses to appear during trial for the purpose of benefit of all parties (victim or
accused).

•In criminal cases all evidence is admissible. The court has to consider the value of theevidence submitted for its examination, following the judge’s intimate conviction (i.e.,each judge involved in the case must examine the evidence and rule based on his or
her personal understanding of the evidence). The judgement of the court may be based
only on the evidence included in the case file or which has been presented at thehearing (both prosecutor and IJ). A confession shall be considered by the court in thesame manner as other evidence. A declaration given under the physical or mental
duress shall have no evidentiary value. Evidence emanating from communications
between the accused and his lawyer is inadmissible (art 312).

•

The judgement is issued on the hearing date or in a subsequent session. In the latter
case, the presiding judge shall inform the parties of the date of the announcement.

•

Types of Judgement: Non-Default Judgement (one month for appeal), Judgement
deemed as Non-Default (one month for appeal after receiving judegment information
regardless of the means), Default Judgement (Time limit for opposition motion is 15
days after date receiving) (art. 360, 361, 362, 368, 381).

- 63 -EVOLVING EFFORTS ON CORRUPTION ENFORCEMENT
Andre Dedy Nainggolan *I.

INTRODUCTION

Corruption deteriorates countries in many aspects of life. Like a chronic disease,corruption undermines countries and brings them to downfall. Artidjo Alkostar, one of therespected judges of the Republic of Indonesia’s Supreme Court, stated that corruption, as acrime against humanity, causes negative impacts to the country and deprives human rights,
especially the rights of people to live on welfare. 1 Therefore, efforts to combat corruption
should be encouraged seriously as an important agenda item, specifically in law enforcement
as the legal response.
Since established in 2003, the Komisi Pemberantasan Korupsi (KPK), or Corruption
Eradication Commission, has investigated more than 393 cases of which 270 of them havereached final and binding decisions. 2 However, the numbers should not be seen merely as a
success story done by the KPK. It should also be considered as reality that enforcement andprevention actions have to be intensified in order to suppress the existence of corrupt conduct.
Responding to the need to develop legal responses, the KPK continues enforcement
efforts in order to create a deterrent effect against the corrupt actors. It attempts to apply
various legal actions to recent cases as one of its strategies. One of the actions applied toprosecution is imposition of additional punishment. Bambang Widjojanto, one of theCommissioners, stated that the KPK has applied political disenfranchisement in addition tosevere punishment. 3 Two corruption offenders have recently received such punishment.
Despite the implementation of severe and additional punishments, the number ofinvestigated cases—which reached 40 grand corruption cases in 2014 4 —shows that thepenalties prescribed by legislation are insufficient to deter perpetrators from engaging in
corruption. Therefore, since acquiring the authority to investigate money laundering under
the Money Laundering Law, “impoverish[ing] corrupt actors” has been set as an aggressive
KPK strategy in order to restore the country’s losses. 5 Thirteen money laundering cases, inwhich corruption as a predicate crime is noted, have been handled by the KPK since 2012. 6
However, perpetrators will learn from the mistakes of previous offenders and develop a newmodus operandi to avoid punishment. Law enforcement must evolve to the point where it can*

Investigator, Corruption Eradication Commission, Republic of Indonesia.
Kompas.com, “Artidjo: Korupsi, Kanker yang Gerogoti Negara”, 19 September 2014. Available at<http://nasional.kompas.com/read/2014/09/19/06431611/Artidjo.Korupsi.Kanker.yang.Gerogoti.Negara>.
2
KPK, “Rekapitulasi Penindakan Pidana Korupsi”, 31 August 2014. Available at <http://acch.kpk.go.id/
statistik;jsessionid=899BBAEE7651578CEE13DA99128E2D96>.
3
KPK, “Koruptor Harus Dibuat Kapok”, 10 October 2014. Available at <http://www.kpk.go.id/id/berita/beritakpk-kegiatan/2240-koruptor-harus-dibuat-kapok>.
4
KPK, “Rekapitulasi Penindakan Pidana Korupsi” (see footnote 2).
5
KPK, Annual Report 2013 (Jakarta, 2014). Available at <http://www.kpk.go.id/images/pdf/laptah/annual_
report_2013.pdf> (accessed 16 October 2014).
6
KPK, “Penanganan TPK Berdasarkan Jenis Perkara”, 31 August 2014. Available at <http://acch.kpk.go.id/
statistik-penanganan-tindak-pidana-korupsi-berdasarkan-jenis-perkara>.
1- 64 -

prevent corruption crimes. This paper is intended to discuss some of the KPK’s experiences
regarding its efforts to eradicate corruption through enforcement and prevention actions
which continuously evolve by improving the collection of evidence and networking.
II.

EVIDENCE AND NETWORKS FOR COMBATING CORRUPTION

A. Case Disclosure by the KPK
After nearly eleven years of effectively investigating and prosecuting corruption cases,
the KPK has handled various types of cases. Based on data provided by its official website as
shown in the table below, there are seven types of cases impacted by corruption—the mostfrequent being bribery, with 177 cases. Two types of cases that emerged over the last two
years were money laundering and hindering KPK process.
The KPK is authorized to investigate money laundering cases under the Money
Laundering Law. The implementation of the authority is in line with the KPK’s recent
strategy to impoverish corrupt actors, along with the goal of deterrence and to restore thecountry’s losses due to corruption. Since authorized by law, the KPK investigates any
indication of money laundering in a corruption case, and the prosecution of both crimes will
be merged.
Hindering KPK process has been applied in cases in which some of witnesses haveobstructed the KPK’s legal actions by giving false testimony under oath at trial or byattempting to bribe the Commissioners in order to stop an investigation process. The KPK
considers that such conduct should be given serious attention because such conduct will
undermine the honour of justice and the KPK.
Table
Corruption handling data (by KPK) based on type of cases, 2004-2014 (per 31st August 2014)
Type
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Total
Procurement
2
12
8
14
18
16
16
10
8
9
13
126
Licensing
0
0
5
1
3
1
0
0
0
3
4
17
Bribery
0
7
2
4
13
12
19
25
34
50
11
177
Illegal Charges
0
0
7
2
3
0
0
0
0
1
4
17
Misuse of State Budget
0
0
5
3
10
8
5
4
3
0
2
40
Money Laundering
0
0
0
0
0
0
0
0
2
7
4
13
Hindering KPK’s Process 0
0
0
0
0
0
0
0
2
0
2
4
Total
2
19
27
24
47
37
40
39
49
70
40
394
Source: KPK Official Statistics; see <http://acch.kpk.go.id/statistik-penanganan-tindak-pidana-korupsiberdasarkan-jenis-perkara>.

B. The KPK’s Enforcement Authority
Article 11 Law No. 30 Year 2002 authorizes the KPK to conduct pre-investigation,
investigation, and prosecution cases that:
1. Involve law enforcement and state officials, and other individuals connected tocorrupt acts perpetrated by law enforcement or state officials;
2. Have generated significant public concern; and/or
3. Have lost the state at least IDR 1,000,000,000 (more than US$ 110,000).

- 65 -

In performing pre-investigation, investigation, and prosecution, the KPK is given the
power and authority as follows:•

Intercept communications (phone, text messaging, email, fax, etc.);•

Request banks and other financial institutions for suspect’s or defendant's financial
records;•

Order banks or other financial institutions to block accounts suspected to harbour thegains of corrupt activities of a suspect, defendant, or other related parties;•

To request data on the wealth and tax details of a suspect or defendant from therelevant institutions;•Temporarily halt financial and trade transactions, and other transactions, or totemporarily annul permits, licenses, and concessions owned by suspects or defendants,
assuming that preliminary evidence has any connection to the case being investigated;•

Investigate high profile public/law enforcement officers without warrant from otherauthorities;•

Other authority as defined in Criminal Procedure and the Penal Code.

Some of the powers are different from the other law enforcement institutions (Indonesia
National Police and the Attorney General’s Office). The significant powers that are factors ofsuccess in the KPK’s handling of corruption cases are communication interception,
warrantless investigation on high profile public/law enforcement officers, and warrantless
seizure of evidence. These great powers are a manifestation of the goal of the KPK’s
establishment, that is:to enhance law enforcement methods by forming a special agency that will beallowed a wide authority that is independent as well as free from the influence ofnotorious powers in the effort to combat graft. 7
Law No. 8 Year 2010 which is known as the Money Laundering Law gives additional
authority to the KPK as one of the authorized institutions to investigate money laundering.
Due to the limitation on the scope of investigation, the KPK can only conduct investigation
on money laundering for which corruption is the predicate crime. Aside from the authority toinvestigate, there is no difference between the KPK and other authorized agencies (Indonesia
National Police, Attorney General’s Office, National Narcotics Board, and Directorate of Tax
and Directorate of Custom of Ministry of Finance) regarding the power to conduct
investigations.

7

Indonesia, KPK Law, Law No. 30 Year 2002, Further Explanation.

- 66 -

C. Enforcement Challenges
The broad authority given by law does not guarantee that there will not be any challenges
encountered during the process of enforcement. Several challenges have been identified by
the KPK throughout its investigation and prosecution.
1. Issues Regarding the KPK’s Authority to Investigate and Prosecute
In recent cases handled by the KPK, issues arose regarding its authority. The issues wereraised particularly by the defendants. A notable challenge is about the KPK’s authority to
seize assets in money laundering investigations related to the time of asset acquisition. One
defendant argued that the authority to seize started in 2010, the year that the latest Money
Laundering Law entered into force. The argument’s rationale was that the KPK was firstly
authorized to investigate money laundering under the latest law, while in the former law(Law No. 25 Year 2003) the KPK was not mentioned as an authorized institution. However,the challenge was dismissed because the judges ruled that the KPK had the authority.
Another challenge was against the KPK’s authority to prosecute money laundering cases.
A defendant argued that the KPK had no authority to prosecute because there was no article
in the law about prosecution by the KPK. Hence, the prosecution should be handled by the
Attorney General’s Office, although investigation was conducted by the KPK. However, thatchallenge was also dismissed.
Regardless the fact that court decisions have taken the KPK’s side, these challenges showthat criminals will always try to avoid punishment by any means. If they realize that they
have no ability to prove their innocence, the enforcement authority of the institution becomes
the target of their challenges.
2. Lack of Witnesses’ Integrity
Ideally, a witness gives honest and true testimony at trial because the witness is underoath. However, in some recent cases, witnesses break their oaths despite their awareness ofthe consequences of their actions. Prosecutors found that there were some witnesses who
revoked their statements given during investigation and gave entirely new testimonies whichmostly were in favour of the defendants. Moreover, their reason for revoking the statements
was that they were under pressure from the investigators; hence, their answers were given
under compulsion.
To counter the witnesses’ testimonies, prosecutors have, several times, brought theinvestigators to be examined verbally in court. To support their examination, investigators
prepared themselves with recorded video of the investigation to prove that during the process
there was no pressure at all and that the witnesses gave the statements independently.
3. Exploitation of the Weaknesses of the Administrative System
The purpose of the Money Laundering Law is to seize criminals’ property in order torestore state losses or to return the property to the rightful parties. Further, it reduces thecrime rates. However, perpetrators maintain their properties by concealing or disguising them.
Many methods are conducted, namely by concealing or disguising the ownership and theacquisition of assets. These methods could be done by falsifying identity; purchasing assets
on behalf of family, relatives, and others; using gatekeepers, avoiding transactions throughthe financial services (cash and carry), etc.

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Some of the methods are done by exploiting the weaknesses of the administrative system.
The citizen identification system in Indonesia prior to the electronic ID-Card in 2013 was not
well-organized. It caused administrative problems. Someone could have identity data that did
not correspond to the actual one. In other situations, someone could have more than one
identity. These loopholes were exploited by money launderers.
D. Strong Evidence and Network for Better Investigation and Prosecution
Other than those mentioned above, there are still many challenges faced by the KPK.
However, by taking corruption in the procurement of a driving simulator for the Indonesian
National Police as an example, the challenges require attention. This case was an exhausting
one because it took two years to investigate the case and reach the final, binding decision.
DS, a high-ranking police officer, was the suspect of an investigation and was found tohave three different identities. Under his first identity, DS was reported to have been born in
1960. Using this identity he married his first wife, S, and had five children. Under his second
identity, DS used a similar name, but with a different initial, JS. JS was reported to have beenborn in 1967; using that identity he married his second wife, M, and had two children. Under
the third one, he used his second initial, JS. He was reported to have been born in 1970, andmarried his third wife, DA, and had one son. This evidence shows that DS exploited theweaknesses of the administrative system in order to have three different families, which heused to conceal his assets.
In the prosecution stage, NNS, one of the witnesses who was DS’s former subordinate ina previous position, revoked her statement in front of an investigator when examined in court.
She stated that she was under pressure. Although it could be countered by presenting theinvestigators at trial, it showed that NNS’s loyalty to her former superior was well-utilized byDS.
At trial, DS also challenged the KPK’s authority regarding the KPK's action of seizing his
assets which he obtained since 2004. He argued that the KPK had authority to seize only
those acquired after 2010. Hence, the seized assets prior 2010 should be returned back to him.
Although the challenge was dismissed, it showed that criminals could exploit the law’sloopholes if certain issues have not been clearly regulated.
Learning from experience, it can be seen that corrupt actors evolve their efforts, not only
by finding new modus operandi for their crimes, but also by challenging the regulation
regarding the enforcer’s authority to investigate or prosecute. Competing with criminals
requires more than just conducting routine investigation and prosecution based on procedural
law. Law enforcers should also increase their competencies by being more tactical andprogressive in exercising their authority. There are two factors that significantly contribute toproving the case: strong evidence and good networks.
1. Strong Evidence from Effective Utilization of Authority
The KPK has built a mechanism of handling corruption cases that aims to ensure cases
brought to court can be proved. This mechanism is a consequence of the KPK’s inability tostop investigations mid-way once they have been started. The mechanism is shown in thefollowing chart.
Case
Building

PreInvestigation

Investigation- 68 -

Prosecution

Execution

Reports of corruption are analyzed in the Case Building stage. Documents, public
information, media, voluntary interviews, or any related data are verified in order todetermine whether the report meets the required conditions. Three standard questions
commonly used when analyzing such reports are: (1) “is it a crime or not?”, (2) “is it asubject of the KPK’s authority to investigate?”, (3) “is it a solid case?”. If it meets all therequired conditions, then it is presented in front of the Commissioners, Director of Public
Complaints, and Directorate of Pre-Investigation.
In the Pre-Investigation stage, obtaining evidence begins to be the focus of activities. The
investigators have the duty to obtain at least sufficient preliminary evidence: two items ofevidence (including electronic evidence). They use their authority, namely by conducting
communication interception, imposing travel bans, conducting surveillance, interviewing
person(s) voluntarily, and organizing cooperation with other agencies (FIU, experts, and theSupreme Audit Board). Intelligence operations typically must be conducted in this stage. If
the two items of evidence are considered sufficient, then the case is brought in front of theCommissioners—the Director of Pre-Investigation, Director of Investigation together with
the investigators, Director of Monitoring, and Director of Prosecution together with theProsecutors—in order to assess whether the case should be opened as an official investigation.
Factors considered include who would be the suspect(s) and what other evidence is required.
The presence of prosecutors is important. They can provide feedback about evidence they
will need later at trial.
In the investigation stage, investigators have the authority to examine witnesses andsuspect(s), to search and seize, to arrest, and to detain. Electronic evidence obtained in theprevious stage is selected, validated, and registered in the case. Investigators enhancecooperation with experts and the Supreme Audit Board and obtain their information based on
expertise to be included in the case file. Coordination with the FIU is also intensified to
identify suspects’ suspicious financial transactions which would be followed up with byblocking accounts. Coordination also takes place with the National Land Agency and otherinstitutions, including the private sector in order to pursue the suspect’s assets which areproceeds from crime. Moreover, the suspect is obliged to provide information on his or her
assets, along with those of his or her family members and businesses. The investigation
activities involving prosecutors begin early in the process. The purpose is to ensure that allevidence obtained is strong and can be considered in court.
Through the work done in these earlier stages, it is intended that prosecutors will be able
to prove conclusively the crimes committed. Adnan Pandu Praja, a Commissioner, stated that
the KPK’s achievement of a 100 percent conviction rate in corruption cases is a result of theeffective utilization of authority to prove the cases in court. 8
2. Good Support Network
Some of the activities in the pre-investigation and investigation stages rely on
contributions of other institutions, either government or private, and parties such as society.
The FIU, the Supreme Audit Board, the National Land Agency, Immigration, banks, andproperty agents are some of those commonly involved, especially for the purpose ofgathering evidence, tracing assets acquired from crimes, and expert testimony.
8

The Philippine STAR, “Ramon Magsaysay Awards: Indonesia’s KPK fights corruption without fear”, 29August 2013. Available at <http://www.philstar.com/news-feature/2013/08/29/1146351/ramon-magsaysayawards-indonesias-kpk-fights-corruption-without-fear>.

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In regard to pre-investigation, investigation, and prosecution, the KPK is authorized toconstruct strong networks, and treat existing institutions as colleagues, ensuring that the fightagainst corruption is efficient and effective. 9 Hence, the KPK has developed cooperation withmany parties in order to structure good networks which could contribute to the KPK’s
enforcement programme. The KPK has learned which networks increase efficiency andeffectiveness of pre-investigation and investigation activities. One of the significant
experiences was the disclosure of the existence of DS’s two other wives as in the discussed
case. At that time, society contributed to revealing the suspect’s secret lives. The information
was valuable in regard to tracing the suspect’s assets.
These experiences show that indeed the KPK has the power to take important
enforcement action, but networking contributes to accelerating the results. In other words,
networking is a valuable support for the efficiency and effectiveness of enforcement authority.
III.

CONCLUSION

In regard to conducting investigation and prosecution of corruption cases, every law
enforcement institution is granted authorities that have similarities and differences. This
contributes to the final result. Strong powers and authorities create better opportunities toprove the case in court. However, ineffective and inefficient use of authority may lead to
failure. Moreover, corrupt actors are evolving their modus operandi and are exploiting legal
loopholes to avoid punishment. Therefore, strong evidence is required in order to reduce thenumber of criminals who avoid conviction. Strong evidence can be obtained by developing
better methods based upon powers and authorities that enforcers have. In addition, building
good networks would support investigation and prosecution in terms of efficiency andeffectiveness. Hence, the expected result of a better conviction rate in enforcing corruption
can be achieved.

9

Indonesia, KPK Law.

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THE AUTHORITY OF PUBLIC PROSECUTION SERVICE OF THE
REPUBLIC OF INDONESIA FOR HANDLING CORRUPTION CASES
Hotma Tambunan, SH. MH. *I.

INTRODUCTION

The Public Prosecution Service of the Republic of Indonesia is the government
institution that exercises the prosecutorial power of the state and other powers conferred bylaw. In terms of handling corruption cases, Article 30(d) of Law Number 16 of 2004
concerning on the Public Prosecution Service states that this institution has the duties andpowers of investigating certain types of crime as stipulated by law, including corruption.
According to the Performance Accountability Report 2013, the Public Prosecution
Service has handled inquiries for 1,709 cases, investigations for 1,653 cases, preliminary
prosecutions for 2,023 cases and prosecutions for 2,023 cases. Further, this institution,
through the Special Crimes Division, has saved over IDR 403 billion in state funds/assets aswell as US $500,000 in 2013.
II. PROCEDURES FOR HANDLING CORRUPTION CASES
The procedures for public prosecutors’ handling of corruption cases are based on Law
No. 5 Year 1981 concerning the Indonesian Criminal Procedure Code, which consists ofthree stages: investigation, prosecution and execution.
A. The Investigation StageAn investigator who receives a report or complaint about the occurrence of an event
which may reasonably be presumed to be a corrupt act shall be obligated to promptly open an
investigation. According to the Indonesian Criminal Procedure Code, there are several steps
in the investigation stage. They are:a. Arrest:
The investigator has authority to conduct arrests based on needs of the inquiry or
investigation. (Art. 16 of Indonesian Criminal Procedure Code). Orders for arrests mustbe issued upon strong suspicion of corrupt conduct based on sufficient preliminary
evidence. A suspect arrested for a corruption crime can be held for no more than one
day (24 hours).
b. Detention:
Following the arrest, a detention order or detention continuation may be issued against
the suspect or accused if they are strongly suspected to have committed a corrupt act.
The suspicion must be based upon sufficient evidence, and there is concern that thesuspect might flee, destroy or conceal evidence or commit further criminal acts [Id. atArt. 21(1)]. In addition to the foregoing, Indonesian criminal due process only permits
detention if a suspect or the accused has committed a crime which is punishable by*Head of District Attorney Office in Tarutung, North Smatera, Attorney General Office, Indonesia.

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criminal imprisonment of five years or more. In this context, it includes corrupt acts. A
warrant of detention issued by an investigator shall only be valid for 20 days at most. If
an investigation has not been completed yet, it may be extended by a competent publicprosecutor for 40 days at most. After the expiration of 60 days, based on the law, theinvestigator must release that suspect from detention.
c. Search:
The investigator has authority to enter a place or residence and other closed premises tocarry out acts of inspection, seizure or arrest (Id. at Art. 32).
d. Seizure:
The investigator has authority to take possession and to retain under his control, any
moveable or immovable goods, whether tangible or intangible, to be used forevidentiary purposes in investigation, prosecution and adjudication (Id. at Art. 1 (16)].
e. Examination of documents:
The investigator has the right to open, examine and seize other documents with a
special warrant issued for such purpose by the head of the district court (Id. at Articles
41, 47, 48, 49, 131 and 132).
At the time the investigator has begun an investigation of an event that constitutes
corruption, they shall inform the public prosecutor of this fact. If the investigator terminates
an investigation because of the absence of sufficient evidence or it has become clear that said
event did not constitute an offence or the investigation has been terminated by virtue of law,
the investigator shall inform the public prosecutor, the suspect or their family of thiscircumstance.
When the investigator has finished conducting an investigation, the investigator shallpromptly submit the case file concerned to the public prosecutor. If the public prosecutor
believes that the result of said investigation is incomplete, the public prosecutor shallpromptly return the case file to the investigator with instructions for its completion. The
investigator is obligated to promptly conduct a supplemental investigation in accordance with
the instructions of the public prosecutor.
An investigation shall be considered complete if the public prosecutor has so notified theinvestigator, and the investigator shall surrender the responsibility for the suspect and thephysical evidence to the public prosecutor.
B. Prosecution Stage
The Public Prosecution Service has the authority to prosecute anyone who is accused ofcommitting corruption within the public prosecutor’s jurisdiction by bringing the case before
a competent court for adjudication, accompanied by an indictment letter. When theprosecutor has the opinion that a prosecution may be conducted from the results ofinvestigation, the prosecutor shall prepare as soon as possible a bill of indictment.
A public prosecutor may affect the accomplice of cases and cover them in one indictment
letter, if at the same time or almost simultaneously he receives several case files on:a. several corrupt acts committed by a person and the interest of the examination does notpose an obstacle to accomplice;- 72 -

b. several accomplices who are related to one another; orc. several corrupt acts which are not interrelated but which do have some connection to
one another, such that the accomplice is necessary for purposes of examination.
In contrast, if a public prosecutor receives a case file containing several corrupt acts
committed by several suspects, they may prosecute each of the defendants separately.
Therefore, a public prosecutor has the authority to decide freely whether the cases will beseparated or not.
In preparing an indictment letter, which shall be dated and signed by the publicprosecutor in charge, it shall contain (Id. at Art. 143):a. the full name, place of birth, age or date of birth, gender, nationality, address, religion
and occupation of the suspect; andb. an accurate, clear and complete explanation of the offence of which accusation is made,stating the time and place where the offence was committed.
The public prosecutor shall bring an action before a district court or corruption court witha request that the case be adjudicated immediately, accompanied by an indictment letter. An
indictment letter may be amended by the prosecutor whether with the aim to improve or to
discontinue the prosecution. Amendment of the indictment letter is permitted once, sevendays before the trial begins at the latest, and the copies of the amendments to the indictment
letter shall be sent to the suspect or legal counsel and the investigator. (Id. at Art. 144).
During the trial proceedings, a judge shall not impose a penalty upon a person except
when there are at least two pieces of evidentiary proof enabling them to come to theconviction that an offence has truly occurred and that the accused is guilty of committing it.
(Id. at Art. 183). There are five types of evidence under the Indonesian Criminal Procedure
Code, i.e., the testimony of witnesses, the testimony of experts, documents, indication(circumstantial evidence), and the testimony of the accused. [Id. at Art. 184(1)].
The testimony of a witness is what the witness has stated at trial, which is similar to thetestimony of the expert and the accused, i.e., what the expert and the accused have stated attrial. (Id. at Arts. 185 and 186). Documents to be considered as evidence should be madeunder an oath of office or supported by oath. (Id. at Art. 187).
An indication is an act, event or circumstance which because of its consistency, whether
between one and the other or with the offence itself, signifies that the offence has occurredand indicates who the perpetrator is. The indication as evidence shall only be obtained fromthe testimony of the witnesses, documents and testimony of the accused. The evidentiary
strength of the indication is prudently evaluated by the judges at trial after the judges haveaccurately and carefully examined on the basis of their consciences. (Id. at Art. 188).
Testimony of the accused is what the accused states at trial and may only be used withrespect to him or herself. Testimony of the accused alone is not sufficient to prove that he or
she is guilty, but it must be accompanied by another evidence. (Id. at Art. 189).

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Every public prosecutor always tries to have the indication in proving the guilt of theaccused, even if two of the five types of evidence have been proved; however, in practice
every public prosecutor always tries to obtain three or more types of evidence in proving theguilt of the accused.
C. Execution Stage
The execution of a judgment that has become final and binding shall be carried out by
the public prosecutor. (Id. at Art. 270). If a judgment also stipulates that the physicalevidence shall be confiscated for the state, in addition to imprisonment and fine, the publicprosecutor shall entrust the goods to the state auction office in order to be sold by auction
within three months, the proceeds of which shall be deposited in the state treasury for and on
behalf of the public prosecutor. [Id. at Art. 273(3)].
For the purpose of execution, a copy of the judgment shall be sent to the publicprosecutor by the clerk. The public prosecutor then shall send a copy of the minutes of theexecution of the punishment signed by himself, by the head of the corrections agency and by
the convicted person, to the court which decided the case in the first instance, and the clerk
shall record it in the register of supervision and observation.
D. Salient Features of Modus Operandi of Corruption
This paper selects the sample of corruption modus operandi in state-owned companies or
local-government-owned companies; and corruption modus operandi in procurement ofgoods and services for further discussion.
1.

Corruption in State-owned Companies and Local-Government-Owned Companies
The following is the modus operandi of corruption conduct which may be committed byboards of directors in state-owned companies and local-government-owned companies:• Misuse of corporate funds. This might occur if the directors “borrow” the funds ofcompany which are used for speculation or investment activity for a private interest.
After taking the profit, the directors return the funds.
• Directors or employees act as a supplier for the company. This occurs when directors
have controlling interests or influence over a company selected as a supplier of stock ormaterials for a state-owned company or local-government-owned company.
• The director also has a position with a competitor at the same time that he or she works
as a director of a state-owned company or local-government-owned company.
Therefore, by having access to confidential or insider information, the director is able toobtain concessions or other advantages in favour of the competitor.
• The benefits and/or bonuses accepted by the director from the suppliers or otherbusiness partners who had run projects for the company or as a business associate to geta project from the company.
• Misuse of confidential information for the personal interest of the director.
• Receiving additional income in the form of allowances for the directors, apart fromtheir salaries, without necessary approval of the shareholders.

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• Receiving additional income for the board of directors may also appear in the form of
extravagance or overusing the office facilities: for instance, selection of a luxurious car
by a director, having loans from the company at below-market interest rates, orpurchasing luxurious furniture for the office and directors’ rooms.
2.

Corruption in Procurement of Goods/Services
In practice, the modus operandi of corruption that may occur in the procurement ofgoods or services for a government institution include:a. Irregularities in government budgeting and planning
The corrupt act may occur by marking up the value of the proposed project.
b. Irregularities in the bidding process
Such corrupt acts may commonly occur as follows:• The selection of goods or services provider without following the required public
bidding process; instead, contracts are awarded illegally as no-bid contracts.
• Inappropriate bidding process involving collusion.
c. Irregularities of work implementation
This occurs through fraudulent deviation from the specifications stated in contract. The
forms of deviation include the decreasing volume, amount or quality of work.

- 75 -CURRENT SITUATION OF CORRUPTION INVESTIGATION IN
THE JAPANESE PUBLIC PROSECUTORS’ OFFICE—CHALLENGES AND MEASURES TO OVERCOME THEM—
Shinichiro Iwashita*

I.

INTRODUCTION

A. Authorities which Investigate Corruption Cases
Although Japan has no specialized commission or agency which is responsible forinvestigating corruption cases, there are two authorities that have responsibility forinvestigating them: police officials 1 and public prosecutors 2. If a police official launches acriminal investigation, the official must refer the case to public prosecutors along with the
documents and evidence. Upon receiving the case, the public prosecutor begins his or her
own investigation. The public prosecutor can request the police to conduct further
investigation and to collect more evidence crucial to proving the offender’s guilt; theprosecutor can also directly interrogate suspects and interview key witnesses to determine
whether to indict the suspect or not. Moreover, the public prosecutor is able to launch a
criminal investigation based on the prosecution’s discretionary investigative power, without
having to rely on any assistance from police officials. Thus, public prosecutors have two ways
to investigate corruption cases: independently or through collaboration with police officials.
Currently, most corruption cases (over 99％) are initially investigated by the police, and avery small number of cases (less than 1％) are investigated by public prosecutors independently.
The cases public prosecutors investigate independently tend to be limited to the major corruption
cases involving politicians, high-ranking officers, and complicated economic crimes.
B. The Special Investigation Department (SID) for Corruption Cases in the Public
Prosecutors’ Office
In large public prosecutors’ offices, public prosecutors are divided into several departments
and share the work. The investigative department is in charge of investigating and deciding
whether or not to indict suspects referred from the police, and the trial department is in charge ofconducting trials (proving guilt of the accused). Moreover there is the Special Investigation
Department (SID), which investigates major corruption cases and complicated economic cases.
Public prosecutors in this department investigate cases independently (they do not deal with thecases initially investigated by the police; those cases are dealt with by the prosecutors in theinvestigating departments). In Japan, the district public prosecutors’ offices in Tokyo, Osaka andNagoya have SIDs, and the SID of the Tokyo District Public Prosecutors’ Office is the biggest.3*

UNAFEI Professor and Public Prosecutor in Japan.
The Criminal Procedure Code (CPC) stipulates police officials as the primary investigative authorities and obligatesthem to investigate any crime; it says police officials shall investigate criminal cases when they deem that an offense
was committed.
2
The CPC also gives the power of investigating all criminal cases to public prosecutors, but it leaves that power to theprosecutor’s discretion; it says that public prosecutor may investigate criminal cases when he/she deems it necessary.
3
The SID of the Tokyo District Public Prosecutors’ Office has around 30 public prosecutors and around 80 assistantinvestigators.
1- 76 -

These three SIDs, especially the SID of the Tokyo District Public Prosecutors’ Office, play a greatrole in the investigation of corruption cases committed by politicians and high-ranking officers.
II. INVESTIGATIVE METHODS FOR CORRUPTION CASES
Corruption cases, typically bribery, are ordinarily committed in secret among a very limited
number of parties. No individual victims exist and neutral witnesses are few. In addition,
fingerprints, footprints and DNA are rarely discovered at the scenes of corruption crimes. Thismeans that corruption cases are some of the most difficult criminal cases for investigative
authorities to obtain effective evidence. Although it can be said that special investigativetechniques, such as electronic surveillance, wiretapping, eavesdropping, undercover/sting
operations, and plea bargaining or immunity, are very effective, Japan has not adopted such special
investigative methods for corruption cases. With such severe limitations on investigation, thefactors mentioned below are crucial to successful prosecution of corruption cases.
A. Intensive Collection and Analysis of Objective Evidence
1. Tracing the Flow of Funds
In the investigation of corruption cases, identifying and proving the flow of illicit funds is
crucial. For example, in bribery cases, tracing the flow of money—namely from the source of thebribe to the receipt of the bribe as well as the concealment or use of the bribe by the bribe-taker—isindispensable to prove the facts of the case objectively. Also, tracing the flow of money enables
investigators to confiscate the bribe as criminal proceeds from the offender.
However, this is very difficult for investigators to do, because the flow of illicit funds isalways concealed and the criminal proceeds are often laundered by moving the money in legaltransactions from bank to bank, which hinders investigators from tracing money.
To overcome such challenges, thorough and careful financial investigation is very important.
In Japan, the SIDs have many trained assistant investigators who assist prosecutors, and they aretrained to get bank records quickly4 and also know where and what kind of records are kept in eachfinancial institution. All transaction information written in the bank records gathered is integrated
into a “transaction table” (which is one tabular form), and investigators use the table to trace andidentify the flows of money connected with bribery. Finally, investigators find the secret source ofthe bribe or discover pseudonymous bank accounts which are likely to be highly connected withbribery.
2.

Search and Seizure
Needless to say, thorough search and seizure is fundamental to achieve thorough gathering ofobjective evidence. The following are the key factors to succeed in search and seizure.
(i) Simultaneous seizure
In usual cases, it is necessary to execute search and seizure at several places to collect related
evidence, such as the houses and offices of bribe-giver and bribe-taker, and so forth. In such cases,
simultaneous execution of search and seizure is the best practice, because the more time it takes,
the more the risk of concealment and destruction of important evidence increases. To realize
effective simultaneous seizure, it is crucial for investigators to make a plan of execution carefully. 5
4

In Japan, it is not necessary to obtain a court order to request bank records from financial institutions.
For example, where and how many places should be searched, what kind of evidence should be seized at each place,
how many public prosecutors and assistant investigators are necessary to complete the search and seizure, and so on.

5- 77 -

(ii) Arranging an effective search team led by a good team leader
In order to effectively execute a search at many sites at the same time, it is important toestablish a good search team that can communicate well. Also, a good leader should be assigned
who can give prompt and appropriate direction to the team.
(iii) Gathering efficient personnel for the search teamSometimes, there may not be enough investigators available to conduct the search and seizure
because there are so many places necessary to search. To cope with such situations, it is effective
to build a system which enables cooperation with investigators from other divisions in order toassist with the search and seizure. In Japanese public prosecutors’ offices, when the SIDs needfurther prosecutors and assistant investigators to conduct simultaneous searches and seizures, many
public prosecutors and assistant investigators in other departments or other district publicprosecutors are transferred to the SIDs for limited periods to enable the SIDs to achieve
simultaneous searches and seizures under the direction of the Chief Prosecutor.
(iv) Sharing information within the team
It is indispensable for the search team to share necessary information 6 among the teammembers. In the SIDs, advance briefing is usually held before the search. In most cases, the publicprosecutor in charge firstly explains the case and what material evidence should be seized, andafter that each search team has its own meeting led by the team leader in preparation for theirsearch.
(v) Analysis of seized evidence
Analysis of the seized evidence must begin immediately after finishing the search and seizure.
Thorough and swift analysis of seized evidence is fundamental to a successful investigation. To
analyse evidence swiftly and efficiently, it must be done systematically. Therefore, establishingspecial units for analysing evidence is very effective. In the SIDs, after search and seizure,prosecutors and assistant investigators are divided into several groups and are assigned items of
seized evidence to analyse by the prosecutor in charge. Such assignment is usually based on thelocation of the evidence or an issue or person to which evidence is supposed to have a connection.
It is also important to share the results of the analysis of evidence. The SIDs always makea database which is called “The list of articles of evidence”. The information of evidence isconcentrated into this database and each public prosecutor and assistant investigator inputs
information as the result of analysis of evidence, such as the number, name and quantity ofthe evidence, where it was discovered, the specific contents of the evidence, the name andaddress of the possessor, the name of the officer in charge of the analysis, and so forth. Publicprosecutors and assistant investigators who are engaged in investigating the case are able toaccess this data from their official PCs at any time.
3.

Digital Forensics
Recently, with the progress of Information Technology (IT), important evidence that used tobe recorded on paper is now being stored on computers as electronic data. It is necessary to seize
and analyse the data in computers thoroughly for successful investigation.

6

Objects to be found and seized, role-sharing of investigators, chain of command and communication among themembers, logistical matters, such as time and place for gathering, transportation of personnel, vehicles for conveying
seized evidence and arrangement of locksmiths, and so forth.

- 78 -

(i) Current problem
Successful seizure and analysis of electronic data requires the proper equipment, knowledge
and skill in the field of digital forensics. 7 Moreover, investigative authorities have to keep up todate with IT which is advancing day by day. However, in Japan, most prosecutors do not havesufficient technological knowledge or skills; they are legal professionals but not computer or IT
experts. Most assistant investigators are in a similar situation. Moreover, budgets limit the ability of
public prosecutors’ offices to maintain to up-to-date technology, because technology is developing
rapidly at high cost.
(ii) Measures in response
Public prosecutors’ offices are under pressure not only to recruit efficient investigators who
have good technical knowledge and computer skills but also to educate assistant investigators indigital forensics. The SID of the Tokyo District Public Prosecutors’ Office has a “Digital Forensic
Section (DFS)” which has computers for forensics and five or six efficient assistant investigators
who are devoted to the analysis of digital forensic evidence. They are selected from the pool ofassistant investigators that work in prosecutors’ offices all over Japan, and from those who havedeveloped the greatest knowledge and skill in the field of digital forensics.
Moreover, in Japan, there are some private companies which specialize in digital forensics incriminal cases.8 Public prosecutors’ offices work closely with them in conducting digital forensics
investigations and educating prosecutors and assistant investigators. In the SIDs, the DFS basicallyanalyses the digital evidence by itself; however, there is some digital evidence which requires
greater skill and forensic technology to analyse than that possessed by the prosecutors’ office. Inthat case, the SID asks the companies to analyse the evidence. Also, training in digital forensics forassistant investigators is conducted with the support of these private companies. In this sense, notlimited to the digital forensics field, cooperation with the private sector often strengthens theinvestigative ability of the authorities.
B. Interrogation of Suspects
1. Importance of the Interrogation of Suspects
Usually, there are no eyewitnesses or other items of physical evidence that are foundduring the investigation of corruption cases because of the secretive nature of the crime. Even
if we collected much physical evidence, it is necessary to explain what it means, but there arealso many cases in which the only persons who know the facts are the offenders themselves.
Therefore, obtaining confessions from suspects is vital. It is not too much to say that the bestand strongest evidence which proves the corruption offence is the confession of the offenders.
(i) Current problem
In Japan, confessions of suspects given during interrogation by police officers or publicprosecutors must be done without threat, assault or any other unlawful means in order to beadmissible as evidence at trial. 9 As defence attorneys are not permitted to be present at theinterrogation of suspects, disputes often arise at the trial between public prosecutors anddefence attorneys about whether the confession given during the interrogation was done7

For example, during a seizure operation, investigators are faced with the problem of how to seize data, including
deleted data; in some cases the computer must be seized, but in others it is enough to copy the data. In the analysis stage,
we have to analyse not only the data which remains on the hard disk but also the data which has been deleted. Deleted
data can often be obtained by means of data restoration technology.
8
They have the high confidence of the investigative authorities because they are highly specialized and maintainconfidentiality in their work.
9
If a suspect is compelled to confess by threat or assault by an interrogator, the confession is inadmissible as evidence
at trial regardless of whether the confession is true or not.

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without any unlawful means. 10 It used to be sometimes difficult for prosecutors to prove thatthe confession was given without any unlawful influences because no neutral witness waspresent during the interrogation.
(ⅱ) Measures in response and further challenges
The SIDs introduced the system of video recorded interrogation of suspects in 2011.11
Currently, in cases where defence attorneys argue that prosecutors acted unlawfully during
interrogation, prosecutors can easily prove that their conduct was lawful by submitting thevideo to the court.
On the other hand, video recording presents new challenges. By introducing a video
recording system, suspects are reluctant to confess on camera. Moreover, before introducing
the video recording system, no one knew how each prosecutor interrogated suspects. But now
prosecutors are able to learn how other colleagues interrogate suspects by watching the videos.
It exposes the fact that there is so much difference among prosecutors about the way ofinterrogating suspects; while there are many proficient prosecutors, there are also poor
prosecutors who are poor at interrogating suspects.
One of the reasons why such differences exist is that there was no specific training
system or manual about the method of interrogation in Japan; that is, it was said that the skillof interrogation was learned through on-the-job training (or personal experience) of eachprosecutor. Prosecutors’ offices are beginning to seek good interrogation methods andtraining systems to enhance the ability of prosecutors to conduct effective interrogation ofsuspects even under video recording. 12
C. International Cooperation — Mutual Legal Assistance (MLA)
Globalization has made corruption crimes more and more sophisticated and cross-border innature. Corruption offenders tend to hide the assets obtained through crime in overseas bankaccounts which highly protect customers’ information from public officials; sometimes theconcealment of the assets is accompanied by money laundering. Hence, to investigate corruption
crime, the importance of international cooperation, especially Mutual Legal Assistance is rapidly
increasing.
(i) Framework of MLA in Japan
Japan can render MLA without an MLA Treaty (MLAT) or MLA Agreement (MLAA) as
long as there is a guarantee of reciprocity. If there is no MLAT or MLAA, the request has togo through diplomatic channels. On the other hand, if there is an MLAT or MLAA, therequest can be sent directly between central authorities of each country. In Japan, the Ministryof Justice (MOJ) and the National Police Agency (NPA) can both send requests as central
authorities, but the MOJ is the only central authority authorized to receive requests. 13, 14
10

Defence attorneys often insist at the trial that the confession of the accused given during the interrogation is notadmissible as evidence because it was given under assault or threat by the prosecutors.
11
Video recording interrogation by prosecutor, itself, begun from 2006, which is firstly limited to serious crimes, suchas murder, arson and so forth. After that, the cases investigated by the SID were to be subject to video recording
interrogation beginning in 2011.
12
Some advanced countries have the methods of interviewing or interrogating suspects, such as the PEACE Model in
the United Kingdom and the REID Technique in the United States, respectively.
13
If there is an MLAT or MLAA, Japan’s treaty partners are to send their requests to the MOJ, but they may receive
Japanese requests from either the MOJ or the NPA.
14
UNAFEI held the Sixth Regional Seminar On Good Governance for Southeast Asian Countries from 12-14
December 2012 on the theme of “International Cooperation: Mutual Legal Assistance and Extradition”. In this seminar,- 80 -

(ii) Capacity building of prosecutors in the field of MLA
In Japan, public prosecutors usually do not have any knowledge or experience in the
MLA field. Therefore it is very important to establish a training system for prosecutors toenhance the use of MLA; the on-the-job training system is working well.
The MOJ has an International Division in the Criminal Affairs Bureau, which is in charge of
MLA matters, where there is a Director, Deputy Director and four to five prosecutors. The
prosecutors of the International Division are selected from those who have around seven to ten
years’ experience as a prosecutor in each district public prosecutors’ office (It is not required forthem to have knowledge of MLA), and they can acquire sufficient knowledge and experience oninternational cooperation and mutual legal assistance through their work for two to three years.
After that, most of them go back to the District Public Prosecutor’s Offices, and they are expected
to play important roles in the field of international cooperation.
(iii) Utilization of informal channels in MLA
It is said that MLA, regardless of whether conducted using an MLAT or MLAA, takes a longtime to get the necessary assistance because of complications of formal procedure. To avoid this,the MOJ in Japan has been strongly recommending its foreign counterparts to engage in informal
consultation before sending a formal request, even if the request is non-treaty based.
Utilization of informal channels is an effective measure in MLA to get necessary information
quickly because it enables the flexible exchange of information. Constant effort for establishing
informal channels among foreign countries is very important to expedite MLA.
In Japan, some prosecutors work not only at the International Division of the MOJ, but they
are also dispatched as first secretaries to embassies of Japan, such as in the USA, UK, France,
Germany, Korea, China, and so forth. They work for around three years in the legal section of theembassy, and are in charge of MLA matters between Japan and the country that they have been
dispatched to. They are able to not only gain expertise about MLA of Japan and the country they
were dispatched to, but also make contact with important government officials. The networks they
make are working well as informal channels in MLA.
(iv) MLA in the field of investigation of corruption cases
It is crucial for investigative authorities of corruption cases to allocate investigators who haveenough knowledge and experience in MLA to expedite MLA in their investigations. The SID of
the Tokyo District Public Prosecutors’ Office has a prosecutor who not only has great knowledge
and experience in MLA but also a wide network functioning as informal channels. In situations
where Japan requests MLA from foreign countries in the process of investigation of corruption
cases committed by politicians and high-ranking officers, he or she rapidly takes necessary
measures in cooperation with the International Division of the MOJ’s Criminal Affairs Bureau,
making the most of informal channels.
III. CONCLUSION
To tackle corruption offenders who use various methods to tamper with evidence, thecollection and analysis of objective evidence and effective interrogation of suspects are both
crucial to discovering the the truth. As it were, these measures are like a pair of wheels that
Mr. Masamichi Kamimura, Director of the International Division of Ministry of the Criminal Affairs Bureau of theJustice, presented on MLA and extradition in Japan. <http://www.unafei.or.jp/english/pdf/PDF_GG6_Seminar/041_SP1.pdf>.

- 81 -

when properly working together produce the desired result. Moreover, to cope with theglobalization of corruption cases, the importance of international cooperation is increasing
more and more. UNAFEI hopes that this seminar establishes informal channels to facilitate
international cooperation in the future.

- 82 -

THE CRIMINAL JUSTICE SYSTEM AND CORRUPTION CASE
PROCEDURE IN THE LAO PDR
Xaysana Rajvong *Phongsavanh Phommahaxay †I.

STRUCTURE AND FUNCTION OF THE CRIMINAL JUSTICE SYSTEM

The main parties involved in the Lao criminal justice system are investigation agencies(Police investigation agency, Military investigation agency, Customs investigation agency,
Forestry investigation agency, Government Inspection and Anti-Corruption investigation agency
and others), and prosecutors, judges and defence lawyers. Each has a distinct structure andfunction (in this paper the writers will present only about the criminal justice system).
A. The Government Inspection and Anti-Corruption Authority Organization
1. The Responsibilities of the Counter-Corruption Organization
The counter-corruption organization is a State organization that has the role to prevent andcounter corruption within the country by assigning this task to the State Inspection Authority at
the central level and to the state inspection authorities at the provincial level. The countercorruption organization is an investigation organization and performs its duties independently.
The organizational structure of the counter-corruption organization consists of:

The counter-corruption organization at the central level;Counter-corruption organizations at the provincial level.

The counter-corruption organization at the central level has status equal to a ministry. The
head of such organization is appointed and removed by the same procedure as a member of thegovernment.
The counter-corruption organizations at the provincial level have status equal to a provincial
division. The heads of the counter-corruption organizations at the provincial level are appointed
or removed by the head of the counter-corruption organization at the central level, after
coordination with the provincial governor, city mayor, or chief of special zone.
The support mechanisms for such organizations shall comply with general regulations on
public administration.

*

Director, Division of Commerce, Family and Juvenile, The Office of the Supreme Public Prosecutor, Lao PDR.
Deputy of Investigation Division, Anti-Corruption Inspection Department, Government Inspection Authority, Lao
PDR.
†- 83 -

2.

Causes for Conducting an Inspection
The causes that result in an inspection by the counter-corruption organization are as follows:






3.

When firm information and evidence that an act constituting corruption has beencommitted are found;
When there is a notification, submission, proposal, report, [or] claim regarding
corruption;
When any government staff, [or] husband, wife or child under the charge of suchgovernment staff, appears to be engaged in corruption.

Inspection Procedure•

Examine the notification, submission, proposal, report, or claim and, if deemednecessary, collect data in the field;•

Prepare and establish a plan for the actual inspection in coordination with concerned
sectors and local administrations;•Inspect all documents and assets of concerned individuals or organizations, especially toinspect the financial situation and accounts, revenue, and expenses, and the use of grants
and loans;•

Call and invite the representative of the organization or the individual concerned tocome to give explanations and clarification;•

Summarize, evaluate, and decide on the result of the inspection.

4.

The Decision on the Result of the Inspection
The counter-corruption organization shall conduct inspections according to the following
procedure:If, through the inspection, firm evidence of corruption is found, the counter-corruption
organization has the right to decide as follows:In the case of a minor offence not causing substantial damage as provided for in Articles
32 and 33 of this law, it shall submit the matter to the concerned organization, which
has the rights and duties to educate, warn or impose disciplinary measures on theoffenders;
In the case of a serious offence as provided in Article 34 of this law, it must undertake
investigation, and when there is firm or solid evidence, it should summarize the caseand send it to the public prosecutor to consider prosecution of the offenders in court.

- 84 -

5.

The Limitation of Investigation Proceedings
The Anti-Corruption Organization must begin investigation proceedings, summarize theinvestigation and open a case file including evidence to be submitted to the People’s Prosecutor
within two months for major offences and three months for crimes, from the date of the order toopen an investigation.
If it is necessary to continue the investigation, the leader of the Anti-Corruption
Organization shall make such a proposal to the People’s Prosecutor. The People’s Prosecutor
may take more time for investigation: two months for each, but not more than six months for
major offences and three months each, but not more than one year for crime. The proposal tocontinue the investigation must be submitted 15 days before the completion of the investigation.
If the file is returned to the Anti-Corruption Organization for more investigation, the time
limit for investigation is two months from the date that the Anti-Corruption Organization
received the case file. In case more review is necessary to investigate the case of suspension orstorage, the investigation must be conducted within the time limit defined in paragraphs 1 and 2of the above-mentioned Article from the date it is ordered for more reviewing to investigate.
B. Public Prosecutor’s Office
The Office of the Supreme People’s Prosecutor is the highest state organ of legal supervision
with prosecution as its main function; the Supreme People’s Court is the highest judicial organ in
the country. The Lao National Bar Association is under the Ministry of Justice and is in chargeof the administration and supervision of lawyers. The Investigation Agencies, Prosecutor’s
Offices, courts at various levels and the Lao National Bar Association are established to fulfill
their respective duties in their own jurisdictions
1.

Function of the Public Prosecutor’s Office
The Public Prosecutor’s Office is an executive agency which is to monitor and control theproper and unified enforcement of laws by ministries, equal ranking agencies, state agencies, theLao Front for National Construction, mass organizations, social organizations, local
administrative authorities, enterprises and citizens, and perform the right to prosecute.
2.

Organizational System of the Public Prosecutor’s Office
The organizational system of the Public Prosecutor’s Office is composed of:•

The Office of the Supreme Public Prosecutor;•

The Appellate Public Prosecutors’ Offices (North, South and Central);•

The Province/Vientiane City Public Prosecutors’ Offices;•

The District/Chief-Town Public Prosecutors’ Offices (Zone Prosecutor’s Office);•

The Military Prosecutor’s Office.

- 85 -

The Appellate Public Prosecutors’ Offices, the Province/Vientiane City Public Prosecutors’
Offices and the District/Chief-Town Public Prosecutors’ Offices are referred to as local Public
Prosecutors’ Offices.
The organization and activities of the Military Prosecutors’ Offices are governed by separate
regulations. The Public Prosecutors’ Offices at all levels compose a uniform and centralized
system under the supervision of the Office of Supreme Public Prosecutor. The Public Prosecutors’
Offices at all levels conduct their activities independently from administrative authorities inaccordance with legal principles, laws and the constitution of the country to ensure correct andunified implementation of the law, and to carry out criminal proceedings, to identify offences inan urgent, complete and overall manner, to bring offenders to face prosecution and ensure properand fair enforcement of the laws, preventing any evasion from justice and the punishment of
innocent persons.
The Supreme Public Prosecutor is appointed or removed by the National Assembly based on
the recommendation of the President.
The Deputy Supreme Public Prosecutor is appointed or removed by the President of the State
based on the recommendation of the Supreme Public Prosecutor
Public prosecutors and deputy public prosecutors at the appellate level, provincial level, anddistrict level and military prosecutors are appointed, transferred or removed by the Supreme
Public Prosecutor.
C. The People’s Court in the Lao PDR
The people’s courts are the judicial organs of the State, which have the roles to adjudicate
cases, aiming to educate the citizens to be patriotic to the nation and the regime of the people’s
democracy; to protect and maximize the outcomes of the revolution, the political regime, thesociety and economy, party organs, State organ, the Lao Front for National Construction, themass organization, and the social organization; to protect the legitimate right and benefits of thecitizen; to ensure fairness and justice; to maintain the public order and peace throughout society
and to increase equity and eliminate and prevent the violation of the laws.
The system of the People’s Court in the Lao PDR comprises:•

The People’s Supreme Court;•

The appellate courts;•

The people’s capital city and provincial courts;•

The people’s zone courts•

The military court;- 86 -

The appellate courts, capital city and provincial courts and the people’s district courts are
local courts. The people’s courts make decisions at the following three levels:•

At first instance;•

On appeal or at second instance•On cassation

The judicial tribunals are made up of the judges of the People’s Supreme Court, the judgesof the appellate courts, the judges of capital city, provincial and district courts; each such tribunal
comprises three judges, one of them taking on the role of presiding judge, and the other two as
members of the tribunal. The order of each tribunal shall be given effect in accordance with theopinion of the majority of its members and the deliberations of the judicial tribunal shall besecret.
D. Lao National Bar Association
The Lao National Bar Association was established in accordance with the Prime Minister’s
Decree No 94/PM Dated 12 December 1992. The Lao National Bar Association is under the
Ministry of Justice; Licensed lawyers are appointed or removed and certified by the Minister ofJustice based on the recommendation of the committee of the Lao National Bar Association after
their first year of training. There are about 250 licensed lawyers in Lao PDR and few lawyers
have standard legal knowledge or specialize in criminal defence
The organizational structure of the Lao National Bar Association•

Members (Lawyers);•

Lawyer Session;•

Administration and Management Committee;•

Inspection Committee;

E. Cases
The state inspection authority or the counter-corruption organization at the central level bycollaboration with line ministries, equivalent ministries, other organizations concerned and local
governments, had conducted an inspection on the implementation of the social-economic
development plan, infrastructure projects, and income and expenditures of the state last year. As
a result of this inspection, there were several projects that involved corruption by state officials.
Below are some of the corruption cases.
1.

Corruption in Houaphanh Province
In 2013, the Counter-Corruption Organization at the central level had received a report fromthe people and organizations in Houaphanh province that there were government officers
working for the Education Budget Division who were involved in corruption, such as:- 87 -

•

Embezzlement of State property;•

Swindling of State property or collective property;•

Abuse of position, power, and duty to take State property;•

Abuse of State property;•

Excessive use of position, power, and duty to take State property.

We researched the report and firm evidence of corruption was found in coordination withsectors and local administrations concerned. An inspection was conducted on the Budget
Division in Houaphan province and a report was submitted to the chief of the Counter-Corruption
Organization.
In this case there were 10 officers involved in embezzling State property, which caused thestate a loss of 2.8 billion kip ($350,000) and was prosecuted by the Public Prosecutor in the
People’s Court of Houaphanh Province on May 2014.

Problems that occurred during the investigations stage
When we ordered the opening of investigations into the state officials who were involved in thecorruption, some of them left their provinces to live other provinces so it was difficult forinvestigating officials to find information and evidence. It took a long time to find them; besides
that some of them destroyed documents that would have been relevant to their offences.
Seizures were difficult to conduct because we had to separate the property related to thecorruption from the property that belonged to their families.
2.

Bribery of National Public Officials
This case occurred in Khammouan Province in the central part of Laos. The National AntiCorruption Committee, by collaboration with other organizations concerned and Khammouan
Province, had conducted an inspection of the project on road construction No. 7 in Thakhek
District, Khammouan Province. After inspection, they found that state officials and company
staff were involved in corruption by creating expenditures beyond the original plan, procurement
without bids, and bribery, which caused the state lost income in the amount of 12.7 billion kip,
which is equivalent to 1.5 million US dollars. In this case, we prepared summaries of theinformation and evidence, which we sent to the public prosecutor for prosecution.
Problems that occurred during the investigations stage
The project was conducted so it was difficult to summarize information and evidence. Some
information and evidence that was sent to the public prosecutor was sent back to us because it
was not clear. For example, there was some concern that several documents were forgeddocuments or prepared using forged documents, so we had to collaborate with the police for trial.

- 88 -

- 89 -

48
21
56
38
15

2006
2007
2008
2009
2010

28
9
18
5
2

Swindlingof State orCollective
Assets8327
84Abuse of
Position,Powerand Duty

27
19
32
10
0

Abuse ofStateorCollective
Property

3
1
1
3
0

Abuse ofState
PropertyorCollective
Property

Excessive
Useof
Position,
Power andDuty
fortaking Stateor
Collective
Assets
3
10
3
4
0
0
0
0
1
1

Cheating or
Falsification
RelatingtoTechnical
Construction
Standards

Deception
in BiddingorConcessions

19
4
18
10
11

ForgingDocuments orUsing Forged
Documents

Through the investigation and prosecution of corruption, it was found that corruption has caused great damages in the amount of
652.29 billion Kip, 35,427.94 US Dollars and 4,529,749.69 Thai Bath. During the first investigation of the cases, a portion of
the assets were recovered as follows: 101.14 billion Kip, 6,895,252.89 US Dollars and 2,415,207 Thai Bath and now therecovery of the assets is ongoing to be able to recover all of the assets.

Embezzlementof State orCollective
AssetsYear

Statistics on Corruption Cases from 2006-11

A MALAYSIAN CASE STUDY:INVESTIGATION AGAINST TAN SRI KASITAH GADAM,CHAIRMAN OF THE SLDB BOARD
Kanakaraja Muthusamy *I.

INTRODUCTION

Investigating Corruption offences can be considered very challenging since the crime iscommitted by professionals or persons in high authority. Corruption offences can only beeffectively investigated with a proper investigation plan. Since corruption offences are
becoming more sophisticated, we need to use every investigative technique available and also
every law to investigate the offence.
The Malaysian Anti-Corruption Agency (now known as the Malaysian Anti-Corruption
Commission) initiated investigation against Tan Sri Kasitah Gadam, the former Rural
Development and Cooperatives Minister, as well as the former Chairperson of the Sabah
Land Development Board (SLDB) based on a report received. The focus of the investigation
was on two areas namely:i)

As chairman and as a public officer, he is alleged to have committed corrupt
practices by using his position as Chairman of SLDB board for his financial
advantage in that he did take part in making the decision to approve the proposedsale of 16.8 million shares owned by SLDB in SAPI Plantations Sdn Bhd to
Briskmark Sdn Bhd where the accused was promised 3.36 million of the shares in
Sapi by Datuk Wasli Bin Mohd Said.

ii)

Tan Sri Kasitah Gadam is also alleged to have deceived the members of the boardof SLDB by dishonestly concealing from them the offer made by PPB of which hehad knowledge and by this concealment the accused did thereby intentionallyinduced the members of SLDB to approve the sale of shares of Sapi owned by
SLDB to Briskmark which the board would not have approved if they had knownof the PPB’s offer.

II. CHRONOLOGY OF EVENTS WHICH TOOK PLACE BASED ON THE
INVESTIGATION CONDUCTEDa) In November 1995 PPB had invited SLDB to participate in the merger and listing
exercise of SLDB’s shares in Sapi Plantation, of which SLDB had a 40% interest. Based on
the offer letter Tan Sri Kasitah Gadam sent a letter to the Chief Minister of Sabah to get
SLDB’s consent to participate in the merger and listing exercise. The Honorable Chief
Minister agreed with the request. SLDB was established under the Sabah Land Development
Board Enactment.

*

Forensic Division, Malaysian Anti-Corruption Commission.

- 90 -b) Subsequent to the approval SLDB replied to PPB’s offer agreeing to participate in themerger and listing exercised proposed by PPB but with the condition that the agreement was
subject to the approval of the SLDB board of directors. The Board of Directors of SLDB intheir subsequent meeting took note of the offer made by PPB but no decision was madewhether to accept or reject the said offer.
c) Tan Sri Kasitah Gadam, prior to that in 1994, made an agreement to purchase2 million shares of Intra Oil Sdn. Bhd. (IOS) from the vendor by the name of Ismail. To
finance this purchase the accused had obtained a loan of RM 12 million from DCB Bank andwhen Tan Sri Kasitah Gadam failed to pay the loan the DCB bank in attempt to recover theloans issued 3 notices of demand.
d) Datuk Wasli was appointed to the post of General Manager of SLDB replacing Datuk
Mohd Tahir Bin Jaafar on 16 October 1996. Datuk Wasli later set up a company “Briskmark”
with the intention of purchasing 40% Sapi shares owned by SLDB. A letter was sent to
SLDB by Briskmark owned by Datuk Wasli to purchase Sapi Plantation shares from SLDB.
e) On 22 October 1996 the meeting of SLDB board was held and chaired by the Tan Sri
Kasitah Gadam. Briskmark’s proposal to acquire the Sapi shares from SLDB was presented
to the SLDB board members and the said proposal was agreed and approved by the members.
During the meeting Tan Sri Kasitah Gadam had concealed a much better offer which wasreceived from PPB which is known as “5:1 offer” from the SLDB board of directors.
f) Since Tan Sri Kasitah Gadam needed to repay the loan to DCB bank, which he had taken
to purchase his shares, he had used his position to influence the sale of 40% of SLDB’s
shares in Sapi Plantation to Briskmark which in return Tan Sri Kasitah Gadam was promisedby Datuk Wasli (8% from the 40% shares) owned by SLDB. The repayment of the loan to
DCB later was deemed to have been paid from the sale of Tan Sri Kasitah Gadam’s 8%interest in Sapi plantation.
g) On 6 March 1997 Briskmark sold their 16.8 million of Sapi shares to PPBOP; in return
Briskmark was given 80.4 million shares of PPBOP. In July 1997, Vincent Chia an
accountant was authorized by Datuk Wasli, to deal and arrange for the finance and sale of allshares of PPBOP allotted to Briskmark.
h) Vincent Chia later bought an offshore company which is known as Arkwell Enterprise
Ltd in which he appointed himself to have power of attorney for Arkwell. A portion of the
PPBOP shares were transferred and deposited by Briskmark to Arkwell. Arkwell later settled
the Tan Sri Kasitah Gadam loan with the DCB Bank for the amount of RM 11.5 million fromthe sale of shares allocated to Tan Sri Kasitah Gadam.
The findings from the investigation were presented to the Attorney General’s Office, and
the Public Prosecutor after reviewing the investigation paper decided to charge Tan Sri
Kasitah Gadam on two charges.
III. PROSECUTION’S CASE
Tan Sri Kasitah Gadam was charged with two charges, one under the Emergency(Essential Powers) Ordinance No. 22 of 1970 ("Ordinance 22") and another under section- 91 -

417 of the Penal Code (F.M.S. Cap. 45). The first charge being a conflict of interest charge
and the second for cheating:a)Used his position as SLDB chairman for his financial gain by taking part in thedecision to approve the sale of 16.8 million Sapi Plantations shares held by theboard to Briskmark Enterprise Sdn Bhd. (Briskmark)b)

Deceived SLDB Board members by omitting to disclose to members an offer by
PPB Oil Palm Sdn Bhd to allocate five shares of the company for each share of
Sapi Plantations in the proposed public listing.

The elements to prove the first charge against Tan Sri Kasitah Gadam:
1.

Tan Sri Kasitah Gadam was a public officer at the material time (Chairman of
SLDB) and that while being such public officer (Chairman) he committed a corrupt
offence.

2.

Tan Sri Kasitah Gadam used his position (as chairman of SLDB) for pecuniary
advantage (Conflict of interest) by taking part in making the decision in approving
the proposed sale of 16.8 million shares of Sapi owned by SLDB to Briskmark.

3.

The conflict of interest that he put himself in was with respect to being promised
3.36 million of Sapi shares by Datuk Wasli Bin Mohd Said by virtue of the factthat he is said to have an interest in Sapi.

The elements to prove the second charge against Tan Sri Kasitah Gadam under cheating
offence:a)

Tan Sri Kasitah Gadam during the SLDB Board of Directors meeting deceived themembers of the board by dishonestly concealing PPB’S offer of 5 PPBOP sharesfor every 1 Sapi share, which he knew of prior to the board’s meeting.

b)

By concealing the PPB’s offer, the Tan Sri Kasitah Gadam intentionally induced
the members of the board to approve the sale of Sapi shares owned by SLDB to
Briskmark.

c)

The members of the board would not have approved the sale of 16.8 million Sapi
shares to Briskmark had they been aware of PPB’s offer and,d)

The act of Tan Sri Kasitah Gadam caused damage to SLDB in that SLDB suffereda loss of RM 137,524,986.
IV. THE PROSECUTION’S CASE

A total of 31 prosecution witnesses were called to give evidence in this case to provethe essential elements of both charges.
a)

Tan Sri Kasitah Gaddam did not disclose the parallel offer by PPB Oil Palms to the
Sabah Land Development Board (SLDB) which resulted in the board suffering aloss of more than RM137.5 million in 1996.

- 92 -b)

Tan Sri Kasitah Gadam had concealed the information from the board members
which resulted in the board on Oct. 22, 1996 approving the sale of Sapi Plantation
shares to Briskmark Enterprise Sdn Bhd at a much lower price.

c)

Board members would not have approved the sale of 16.8 million Sapi shares to
Briskmark if Tan Sri Kasitah Gadam, who at the material time was the chairman of
SLDB, had disclosed the details of PPB Oil Palm’s offer.

d)Tan Sri Kasitah Gadam had intentionally deceived the board members on the offer
made by PPB Oil Palms and induced the members to approve the sale to Briskmark
where he did not disclose his interest in the sale of the shares.

e)

The conduct of Tan Sri Kasitah where he himself chaired the SLDB board meetingand had actively participated in the decision making after he was promised 3.36
million PPB Oil Palms shares by Briskmark Director Datuk Wasli Mohd Said.

f)

Tan Sri Kasitah Gadam was in dire need to settle his RM10.9 million bank loan,
where DCB Bank had issued three notices of demand to settle the loan and such
could use the money from sale of Sapi shares to settle his bank loan.

g)

There is also no evidence that Tan Sri Kasitah Gadam had disposed of his Intra Oil
Sdn Bhd shares in settling the bank loan as contended by the defense.
V. DEFENCE’S CASEa)

Tan Sri Kasitah Gadam was not aware that the source of RM11.5 million hereceived into his account to settle the loan with DCB Bank (now known as RHBBank) in 1997 was from the sale of PPB Oil Palm shares.

b)

Tan Sri Kasitah Gadam does not own any shares or have any interest in Sapi
Plantation.

c)Money which had been deposited into Tan Sri Kasitah Gadam’s account was fromthe sales proceeds of his Intra Oil Sdn. Bhd. shares (IOS).

d)

Failure to prove that Tan Sri Kasitah Gadam had received payments for both the
PPB Oil Palm and IOS shares.

e)Role of Vincent Chia where he was acting for SLDB and Briskmark and as such
put him in a conflict of interest since he had acted for both seller and buyer.
VI. JUDGEMENTAt the end of the prosecution’s case, on the first charge the court found the prosecution
failed to make out a prima facie case against Tan Sri Kasitah Gadam due to:a)

There was no clear evidence to show any promise made by Datuk Wasli to Tan Sri
Kasitah Gadam pertaining to Sapi shares.

- 93 -

b)to:

No strong evidence to show that Tan Sri Kasitah Gadam had a direct interest in thelisting of PPBOP shares which is supported from the evidence of DCB Bank
officers.

As for the second charge the prosecution also failed to make out a prima facie case duea)

The failure of calling the six board members who were present in the meeting
created the question whether the board members were actually cheated by Tan Sri
Kasitah Gadam.

b)

No evidence to indicate Tan Sri Kasitah Gadam had misused his position to
influence the SLDB board in arriving at the decision to approve the sale of Sapi
shares to Briskmark.

c)

There was no inducement on the part of Tan Sri Kasitah to SLDB board members
approving the sale of Sapi shares to Briskmark.

Based on the above evidence adduced during the course of prosecution’s case, the judge
found that the prosecution failed to prove a prima facie case against Tan Sri Kasitah Gadam
and as a result Tan Sri Kasitah Gadam was acquitted and discharged of both the charges
against him.
______________________________
Case Citation CLJ [2009] 1 LNS 741.

- 94 -CURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND
ADJUDICATION OF CORRUPTION CASES
Khin Myo Kyi *I.

INTRODUCTION

Corruption is a menace facing every country in the world. The strengthening of exchanges
and cooperation in the international community in the field of anti-corruption has become an
inevitable choice in the international community. Legal systems may be different but thepolitical will to combat corruption keeps standing out. One should have the spirit of mutual
benefit, or win-win cooperation, which deepens our cooperation, and mutual support to jointly
fight and prevent corruption. Firstly, dialogue throughout the investigation, prosecution andjudicial stages should be strengthened. Secondly, technical assistance to promote balanced
development of anti-corruption work should be made. Thirdly, it is important to strengtheninternational cooperation and enhance the level of fighting and preventing corruption.
II. MYANMAR’S LEGAL SYSTEM
In the regimes of the Kings of Myanmar, they adjudicated the criminal and civil cases bydamathat and phat hthn. They believed that there are four kinds of corruption: firstly corruptionof greed, second corruption of anger, thirdly corruption of fear, and fourthly corruption ofdelusion. They had directed their ministries to adjudicate the cases of the people without such
four kinds of corruption. There have been manu damathat, kinwunmingyi phathtat and so on.
During the colonial period, Myanmar was introduced to the English Common Law Legal System
but Myanmar Customary Law was not touched. Having regained independence, Myanmar
enacted the 1947 Constitution of the Republic of the Union of Myanmar. The Myanmar Legalsystem is therefore a unique system and belongs to English Common Law tradition but is not a
replica.
A. Judiciary
The Constitution of the Republic of the Union of Myanmar (2008) adopted by Myanmar
came into force on 31 January 2011. Concerning the judiciary, the Union Supreme Court, Stateand Region High Courts, District Courts, and township Courts have been formed under theConstitution. These Courts adjudicate criminal and civil cases including corruption cases. The
Union Judiciary Law and the Criminal Procedure Code provide the powers of the courts. Under
such laws, the township court has jurisdiction that tries and passes judgement on any offence
punishable with up to seven years’ imprisonment. The District Court and High Court of theRegion and the State may impose any sentence authorized by law, but the sentence of death shallbe subject to confirmation by the Supreme Court of the Union. The Supreme Court of the Union
is the highest court that supervises all other courts.
*

Deputy Director, Prosecution Department, Union Attorney General’s Office.

- 95 -

B. History of Anti-Corruption in Myanmar
In Myanmar we had domestic laws addressing corruption as early as 1948 called, theSuppression of Bribery Act, 1948. The special laws in other sectors of Myanmar have beenenacted to combat and prevent corruption and bribery. Therefore Myanmar signed the United
Nations Convention against Corruption (UNCAC) in 2005. In 2011, Myanmar introduced agenuine, disciplined multiparty democratic system under the New Constitution of the Republicof the Union of Myanmar. President U Thein Sein has taken office, and he has always
emphasized the importance of clean government, good governance and anti-corruption efforts in
his inaugural speech and on several other occasions. As a step in both law and practice inintroducing reform, Myanmar ratified the United Nations Convention against Corruption(UNCAC) on 20 December 2012. Ratification of the convention was followed withannouncement of the “third phase of reform” aimed at tackling corruption in Myanmar. Soon
after, an anti-corruption committee was set up on 9 January 2013. The anti-corruption committee
against Bribery headed by the Vice President, Dr. Sai Mauk Khan, was formed on 8 January
2013 by notification No 9/2013 to protect public properties, to strive for the interest of thesociety and people, to combat corruption and bribery effectively, to make the law enforcement
and administration sectors transparent and to promote domestic and international investment.
The Union Attorney General is also a member of this committee. And then, Myanmar drafted theAnti-corruption Law with the help of the UNODC and other organizations. Due to the efforts ofthe committee, Pyihtuangsuhluwtaw (Parliament) has enacted the Anti-corruption Law and thePresident signed and published it on 7 August 2013. The law came into force on 17 September
2013.
There is the doctrine of pacta sunt servanda in the international law of treaties. The doctrineof international law of treaties specifies that treaties are made to be respected by states that have
ratified them. Having enacted the Anti-corruption Law, Myanmar followed this doctrine. The
Anti-corruption Law of Myanmar is consistent with UNCAC, and the new law keeps Myanmar
abreast of other member states that ratified UNCAC. Such doctrines have come into effect.
In Chapter III of UNCAC on criminalization and law enforcement, the definitions of bribery,national public officials and international public officials, officials of public internationalorganizations and prosecution, adjudication and sanction, jurisdiction and so on are prescribed.
These subjects are also described in sections of the Anti-corruption Law of Myanmar.
III. THE ATTORNEY GENERAL OF THE UNION LAW
Regarding “the Primary Roles of Public Prosecutor (law officer) in combating thecorruption”, I would like to mention the Attorney General of the Union Law and the Union
Attorney General’s Office. For prosecution matters on behalf of the Union, who is to be
responsible to appear? The Attorney General of the Union Law was promulgated in accordancewith section 443 of the said Constitution of the Republic of the Union of Myanmar. Under thislaw, responsibility to appear for prosecution matters on behalf the Union falls upon the Union
Attorney General. The Attorney General of the Union Law has seven chapters, namely, Title,
Enforcement and Definition, Formation of the Union Attorney General’s Office and various
levels of Law Offices, appointment of the Attorney General of the Union and the Deputy
Attorney General, Advocate General of Region or State, Functions and Duties of Law Officers- 96 -

and Miscellaneous. Under this law, the Attorney General of the Union and a Deputy Attorney areappointed. The Attorney General of the Union is also a member of the Union Government and is
responsible to the President of the Union.
A. Duties and Powers of the Attorney General of the Union
Among of the Duties and Powers of the Attorney General of the Union under section 12 and
13 of the law, one should know them for prosecution matters on behalf of the Union. They are:(1) Tendering legal advice when requested by the President, the Speakers of the Parliament,
any organizations of the Union Level and any ministry of the Union and Nay Pyi Taw
Council;(2) Prosecuting criminal cases at the Court in accordance with law;(3) Appearing on behalf of the Union;(4) Filing an appeal or revision to the Supreme Court of the Union on judgement, order or
decision passed by any High Court of the Region or State, in cases relating to theUnion;(5) Carrying out in accordance with law, if it is necessary to withdraw the entire case, any
charge or any accused in a criminal case filed at the Court;(6) Deciding to close a criminal case that cannot be prosecuted at court;(7) Filing appeals against acquittal orders in accordance with the law with the Supreme
Court of the Union if it is considered appropriate to file such an appeal by the High
Court of the Region or State;(8) Guiding and supervising the relevant Advocate General of the Region or State, relating
to the performance of the various levels of Law Offices in the Region or State as may benecessary.
To fulfill the enormous responsibilities of this law, the Attorney General of the Union also
has the power to form the Union Attorney General’s Office, 14 offices of the Advocate Generalof the Region or State, a self-Administered Division Law Office, self-Administered Zone Law
Offices, District Law Offices and Township Law Offices.
The Attorney General of the Union, in accordance with the stipulations, delegates his or her
duties and powers to Law Officers. The Functions and Duties of the Law Officers from different
levels of Law Offices are mentioned in sections 34 to 36 of the Attorney General of the Union
Law. The tasks performed by the Law Officers are categorized into 16 duties. Among them,some are scrutinizing and tendering legal advice on criminal cases to be in conformity with thelaw before prosecution; prosecuting criminal cases at the courts in accordance with the law;
appearing in criminal and civil cases on behalf of the Union; carrying out other duties assignedby the Attorney General of the Union and relevant Advocate General of the Region or State.

- 97 -

B. Union Attorney General’s Office
The Union Attorney General’s Office acts as the Head Office. This Office has four
departments. They are the Legislative Vetting and Advising Department, the Legal Advice
Department, the Prosecution Department and the Administration Department. Among them, theProsecution Department is the oldest department in the Union Attorney General’s Office. Since
the formation of the Office, this Department is responsible for prosecution on behalf of theUnion and the different level law offices are also responsible for this. And law officers (Public
Prosecutors) of different levels of law offices are also responsible for prosecution of anticorruption offences.
IV. THE ANTI-CORRUPTION LAW OF MYANMAR
This law has eleven chapters, namely, title, enforcement, extent and definition, aims,
formation of the Commission, its duties and powers, formation of the Preliminary Scrutiny
Board and its functions and duties in respect of currencies and properties enriched by bribery,formation of the investigation body and its functions and duties, formation of Commission office,information about bribery, duties of the President, the Speaker of the Pyithu Hluttaw (Lower
House), the Speaker of Amyotha Hluttaw (Upper house), representatives of the Hluttaw(Parliament), declaration of currencies, properties, liabilities and assets owned by the competentauthority, confiscation of the currencies and properties obtained from bribery, offences andpenalties and miscellaneous.
A. Investigation of Anti-Corruption Cases
Investigation is the first step to identify corrupt acts and suspects. Under this law, thePresident shall form the commission which includes a chairman and 14 members after getting
approval from the Pyihtaungsu Hluttaw (Parliament) to perform the aims of the law. The
Commission shall form the Investigation Board and the Preliminary Scrutiny Board to enquire
about bribery and illicit enrichment. The Commission shall investigate or call for investigation inorder to take action in accordance with the law regarding the following cases.
(1) Matters assigned by the President for investigation and submission, about bribery andillicit enrichment,(2) Matters assigned by the Speakers of Parliament concerned as regard a proposal of
representatives in accordance with law to take action against a political post holder
about bribery and illicit enrichment,(3) Complaints by aggrieved persons to the Commission about bribery and illicit
enrichment and to take action against any person,(4) Complaints by aggrieved persons to any working committee, working group, thePreliminary Scrutiny Board, or the Investigation Board formed by this law, about
bribery and illicit enrichment and to take action against any person,- 98 -

(5) Complaints by aggrieved persons to any relevant government department andorganization, and then they transfer such cases to the Commission, about bribery andillicit enrichment and to take action against any person.
In investigating, the investigation body shall determine a period and inform the accused to
explain and submit evidence or proof relating to the charge in carrying out the investigation.
And the accused may explain and defend himself or may be defended by his agent in respect of
the charge in the investigation made by the investigation body. The person under investigation
has the burden of proof—by clear and credible evidence—to establish how he legally obtained
his assets of money and property or what kind of income he obtained.
The investigation body shall submit the findings to the chairman of the Commission within(30) days after investigating, and then the chairman of the Commission shall hold theCommission session to discuss and resolve upon such findings. In deciding—(1) If the Commission assumes that the accused has committed any offence under the law
according to the findings of the report, after issuing the prior sanction for prosecution, it
may assign the duty to prosecute him to the Investigation Board, and if no credible
evidence to the charge is found, it may dismiss the complaint. The Commission shallinform and submit such, issuing the prior sanction and prosecution promptly as soon as
possible to the President and the Speakers of both houses of the Parliament.
(2) If the Commission finds (in the finding report) that any person has been enriched bybribery, it shall form the Preliminary Scrutiny Board and assign it to vet the currencies
and properties owned by the competent authority. The Preliminary Scrutiny Board shallsubmit the scrutiny report to the Commission. The Commission reviews the scrutiny
report, and if it is proved clearly that the currencies and properties owned by thecompetent authority were obtained by bribery, then the Preliminary Scrutiny Board shallorder the confiscation of the said the currencies and properties.
(3) If the Commission assumes that the further evidence should be investigated, it may
reassign the case to the investigation board that submitted such report or anotherinvestigation board.
Under section 18, the investigation board shall therefore prosecute the “competentauthority”, which means certain politicians, high-level officials, senior officials, political post
holders, international representatives, and public officials, who commit any offence under the
Anti-corruption Law in the relevant High Court of the Region or State and any person except thecompetent authority who commits any offence under the law in the relevant court that hascompetent jurisdiction.
B. Prosecution of Anti-Corruption Cases
Prosecution is the second step to prosecute the accused and to sentence him to effective anddeterrent punishment. Under section 30 of the Anti-corruption Law, the Commission shall send a- 99 -

report that includes the decision to take action against the accused to the Union Government
Office so that the Union Attorney General’s Office can prosecute the case.
In criminal proceedings in Myanmar, there are three phases: investigation, prosecution andtrial, and post-trial. These parts are related to each other and must follow the Union Judicial Law,
the Attorney General of the Union Law, the Criminal Procedure Code, the Criminal Law (Penal
Code), Special Laws (for special subjects) and their rules. The Anti-corruption Law is a special
law to combat bribery and corruption, but no rules have been established yet. For investigation,prosecution and adjudication, the existing laws are in practice. Section 69 of the Anti-corruption
Law provides that the offences taken action under the law are defined as cognizable offences.
The second schedule of the Criminal Procedure Code shows offences against other laws,
except the Penal Code, and addresses whether police may arrest without a warrant or not,whether warrants or summons shall ordinarily issue in the first instance, whether an office isbailable or not, whether compoundable 1 or not, punishment, and by what Court is the case triable.
If anyone commits an offence punishable by death, imprisonment which may exceed seven years,
his offence is called a cognizable, non-bailable, not compoundable offence, and it must be triedby the Court of Session. But offences are separated into two kinds under the Anti-corruption
Law, section 18. Firstly, if the accused is a competent authority, he is prosecuted in the High
Court of the Region or the State. Secondly, the rest are prosecuted in courts that have competentjurisdiction under the Criminal Procedure Code.
As provided above, generally law officers scrutinize and tender legal advice on cognizable
cases in conformity with law before prosecution. They determine whether there is valid evidence
for prosecution and a relevant law that has been infringed by the accused; who should beprosecuted and who should be used as witnesses; how to select the appropriate evidence andwitnesses to prove the offence; which matters which should be handled by the prosecuting body(investigating body) for the sound construction of the case; whether there is a need for further
evidence; if there is evidence that has been illegally collected, how to manage it in the case; andtendering legal advice to the prosecuting body (investigating body) on whether to prosecute thecase in the relevant court or not. If there is no sufficient evidence to prosecute the accused, thelaw officer tenders a request to the prosecuting body to detect further evidence and to interview
the necessary witnesses. If the prosecuting body does that, and new evidence and new witnesses
are not found, the prosecuting body submits a request to the relevant law office to close the case.
The interaction between the prosecuting body or investigation board, the concerned persons andthe law officers should be in the spirit of mutual benefit, or win-win cooperation, to prevent andfight corruption.
The Evidence Act, section 101, provides that whoever desires any court to give judgement
as to any legal right or liability dependent on the existence of facts which he asserts, must provethat those facts exist. The law officer (public prosecutor) must prove, therefore, the fact that theaccused has committed corruption. The law officer first examines the prosecution’s witnesses,
then (if the accused so desired) cross–examines him, and then (the law officer if so desired) re–1

Compoundable offences are those offences where the complainant (the one who has filed the case, i.e., the victim)
enters into a compromise, and agrees to have the charges dropped against the accused. However, such a compromiseshould be bona fide, and may not include any consideration which the complainant is not entitled to.

- 100 -

examines. The examination of a witness by the adverse party shall be called his crossexamination. The examination of a witness, subsequent to cross–examination by the party whocalled him, shall be called his re-examination. The examination and cross–examination must
relate to the facts, but the cross-examination needs to be confined to the facts to which thewitness testified on his examination-in-chief. The re-examination shall be limited to the
explanation of matters referred to in cross-examination; and if new matter is introduced during
re-examination with the permission of the court, the adverse party may further cross–examine
upon that matter.
All facts, except the contents of documents, may be proved by oral evidence. Oral evidence
must, in all cases whatever, be direct, with the exception of expert opinion. The contents of
documents may be proved either by primary or by secondary evidence. Primary evidencemeans the documents are produced for inspection in the court. Where a document is executed inseveral parts, each part is primary evidence of the document. Where a document is executed incounterparts, each counterpart being executed by one or some of the parties only, eachcounterpart is primary evidence as against the parties executing them.
Where a number of documents are all made by one uniform process, as in the case of
printing, lithography or photography, each is primary evidence of the contents of the rest; butwhere they are all copies of a common original, they are not primary evidence of the contents of
the original. The Electronic Transaction Law (2004), s.48, provides that “Information, electronic
records, electronic data messages, electronic signatures or other documents communicatedbetween the originator and the addressee shall not be denied legal effect, validity or
enforceability solely on the ground of being made through electronic technology”.
After examining the prosecution’s witnesses, the accused is charged with the relevant
sections of the Anti-corruption Law. If the accused pleads guilty to the charge, the Court will
sentence him with just and proper punishment. If he denies the charge the Court carries on to
examine the defence witnesses.
C. Adjudication of Anti-Corruption Cases
Administering the case, the courts give the accused fair trials, and sentence them to severe
punishment on balance. The courts must abide by the principles of the administration of justice.
These principles are:(1) To administer justice independently according to law;(2) To dispense justice in open court unless otherwise prohibited by law;(3) To support the right of defence and the right of appeal in cases according to law;(4) To support in building of rule of law and regional peace and tranquility by protecting
and safeguarding the interests of the people;(5) To educate the people to understand and abide by the law and nurture the habit ofabiding by the law by the people;- 101 -

(6) To cause to “compound”, or compromise, and complete the cases within the frameworkof law for the settlement of cases among the public;(7) To aim at reforming moral character in meting out punishment to offenders.
Former rulings have shown practitioners how to decide, handle and how to think about
corruption cases. One example is that “U Ganaysin (Appellant) v. the Union (Respondent), 1967,
M.L.R, p-11. It was held that there are takers and givers in the occurrence of bribery. If bothsatisfy each other, corruption cannot be discovered. If the giver is not satisfied, he complains to
the police and the corruption case arises. Investigation needs preparation for arresting the takerand seizing the bribery money. In this situation the court must find the truth. If it appears that thegiver has deceived by using the trap method, then the accused is released and the informer—who
is the giver—might be prosecuted properly. If bribery occurred, the taker should be prosecutedand should not be acquitted merely due to unclean hands of the giver.
Another one is “U Ba Si (Appellant) v. the Union (Respondent), 1968, M.L.R, p-66”. It washeld that one complained that the public official asks for the bribe money in exchange for someofficial act. Here the complainant is not defined as an accomplice. Those who are included in thetrap method are not also called accomplices. They are eyewitnesses. Special care should paid to
the trap method. Although the trap method is used in a corruption case, the responsible persons
are to act according to laws and regulations, and they must testify correctly before the court.
Another case is U Soe Haling v. the Union of Myanmar, 1968, M.L.R, p 39. In this rulingthe accused was prosecuted, and the court needed to suppress and deter bribery by punishing theaccused severely. But punishment cannot be the same for each offence. The court might consider
the background of the offence and sentence the accused accordingly. The aim of punishment is
to have the accused express regret and reform his moral character. The accused is a public
official and he himself commits bribery. But his surroundings push to him crime. The generalsituation of Myanmar’s political system causes the occurrence of the corruption. Ordinarily
corruption cannot be defeated easily. By building the social and economic systems firmly, every
national combats the occurrence of corruption.
V. CONCLUSION
Corruption offences are difficult to investigate. Law officers (public prosecutors), theinvestigation board and law enforcement agencies should cooperate and coordinate to prosecutethe accused and seek just punishment. Corruption cases occur in all countries, and such cases
relate to other crimes such as transnational organized crime, terrorism in other countries and soon. Prosecutors and investigators need techniques, skills, knowledge, cooperation andcoordination to combat corruption. Nowadays Myanmar is in the process of political andeconomic reform, and the important phase of reform aimed at eradicating corruption is arriving.
Myanmar has been receiving technical assistance from the international community, thus
strengthening exchanges and cooperation in the field of anti-corruption.

- 102 -CURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND
ADJUDICATION OF CORRUPTION CASES
Soe Naung Oo *I.

INTRODUCTION

My name is Soe Naung Oo. I am the Director of the Investigation and Financial Branch,Bureau of Special Investigation. The topic of my presentation is “Current Issues in theInvestigation, Prosecution and Adjudication of Corruption Cases in Myanmar”. Myanmar’s
new government took office in March 2011 and created good governance and clean
government. The Government also made political, economic, administrative and social
reforms. Consequently, the government has taken legal action against corruption.
The Bureau of Special Investigation was formed in 1951 according to the Special
Investigation Administrative Board and Bureau of Special Investigation Act 1951.
The objectives of the Bureau are —(a)

To investigate corruption and take legal action(b)

To investigate economic crimes and take legal action(c)

To collect intelligence for national security and(d)

To strive for the interest of the people

The four functions of the Bureau are —(a)

Investigation(b)

Submitting legal opinions on cases(c)Prosecution(d)Collecting and submitting intelligence

II. ENACTING THE NEW LAW AND TAKING LEGAL ACTION
The Suppression of Corruption Act (1948) only included categorization of the offence
and countermeasures but does not meet international standards. A new Anti-Corruption Law
was enacted on August 7, 2013. The Anti-Corruption Law came into force on September 17,
2013. The Anti-Corruption Commission consisting of 15 members was formed on February*

Director of the Investigation and Financial Branch, Bureau of Special Investigation, Myanmar.

- 103 -

25, 2014. Its mission is combating corruption and bribery. The Commission Office was
opened on March 3, 2014.
The objectives of the Anti-Corruption Law are —(a)

To eradicate corruption as a national problem(b)

To ensure clean government and good governance(c)

To promote prestige and accountability(d)

To prevent the loss of the state property and to protect human society andcitizen’s rights and benefits from the evils of corruption(e)

To take action effectively against those who commit corruption(f)

To develop the economy by local and foreign investment after establishing theprevalence of law and order and more transparency in the administrative
sector.

The Action Committee against Bribery, led by the Vice President, was formed on
January 8, 2013. The committee accepts complaints against corruption and bribery and refersthem to the Ministry of Home Affairs and the Bureau of Special Investigation for legal action.
The Bureau also investigates offences referred from the Anti-Corruption Commission.
Myanmar enacted the Control of Money Laundering Law on June 17, 2002 and formed
the Central Control Board. The chairman of the Central Control Board is the Minister for
Home Affairs, the Chief of Police is the Secretary and the Director General of the Bureau ofSpecial Investigation is the Joint Secretary. The new Anti-Money Laundering Law wasenacted on March 14, 2014 and the Central Board for Money Laundering was formed. The
Chairman of the Board is the Minister for Home Affairs, the Secretary is the Chief of Police
and the Director General of the Bureau of Special Investigation is a member.
III. INTERNATIONAL COOPERATION
Myanmar signed UNCAC as a member on December 2, 2005 and ratified it on
December 20, 2012. That Convention came into force in Myanmar on January 19, 2013.
Myanmar signed a Memorandum of Understanding (MOU) and joined SEA-PAC on
November 14, 2013. Senior officials from the Attorney General Office and Bureau of Special
Investigation attend the International Association of Anti-Corruption Authorities (IAACA)
meeting annually and cooperate with international organizations to combat corruption. The
Myanmar Financial Intelligence Unit signed an MOU with Thailand’s Anti-Money
Laundering Office in 2012, Bangladesh’s Anti-Money Laundering Office in 2012 and theRepublic of Korea’s Anti-Money Laundering Unit in 2012. The Anti-Corruption Commissionis the focal point for the review of UNCAC.

- 104 -

IV. PLAN OF ACTION
Strategies for corruption prevention are as follows—(a)

To regard corruption and prevention as matters of international concern and toprevent corruption multilaterally.

(b)

To cooperate with regional government organizations and social societies toprevent corruption.

(c)

To cooperate with regional anti-corruption agencies.

Tactics for corruption prevention are as follows—(a)

To reduce poverty, to achieve progress and give priority to the welfare of
public servants.

(b)

To reduce malpractice in order to create good governance and clean
government.

(c)

To create transparency in the administrative sector and to reduce formalities inpublic administration.

(d)

To conduct corruption awareness programmes for the public sector and private
sector to create a corruption free environment.

(e)

To set up a complaint system for corruption and bribery.

(f)

To form a joint team consisting of central organizations, commissions at alllevels and departments.

(g)

To create a plan of action to ensure that the private sector is free from
corruption.

(h)

The essential plan must be implemented and reviewed according to the law
and procedure.

(i)

To apply technology instead of human resources to reduce abuses of power.

(j)

To create independence in the administrative and judicial sectors.

(k)

To cooperate with media to prevent and fight corruption.

(l)

To apply modern technology to fight corruption.

(m)

To modernize and amend the Anti-Corruption Law, Rules and Regulations,orders and guidelines to fight corruption.

(n)

To apply a reward and punishment system to fight corruption.

- 105 -

(o)To provide suitable opportunity and assurance to fight corruption.

(p)

To cooperate with international organizations to fight corruption.

We understand that fighting corruption cannot be done by one group or one organization,
but we have to cooperate with each other, with international organizations, and with the
public and private sectors. Myanmar will support the efforts of anti-corruption agencies tofight corruption.

- 106 -

TWO PLUNDER CASES: A COMPARISON
Deana P. Perez *It is the second time for Philippine Senator Jose "Jinggoy" Estrada to be accused of plunder.
This paper will discuss the cases but no comment or opinion on the merits of the second case ismade as the case is presently being tried.
I.

THE CRIME OF PLUNDER

Section 2 of Republic Act No. 7080 defines and penalizes the crime of plunder as follows:
Any public officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or otherpersons, amasses, accumulates or acquires ill-gotten wealth through a combination orseries of overt criminal acts as described in Section 1 (d)190 hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guiltyof the crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense.
As laid down in Joseph Ejercito Estrada vs. Sandiganbayan (G.R. No. 148560, November 19,2001), the elements of plunder are:
1. That the offender is a public officer who acts by himself or in connivance with membersof his family, relatives by affinity or consanguinity, business associates, subordinates or otherpersons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination orseries of the following overt or criminal acts:*(a)through misappropriation, conversion, misuse, or malversation of public funds or raids
on the public treasury;(b)

by receiving, directly or indirectly, any commission, gift, share, percentage, kickback
or any other form of pecuniary benefits from any person and/or entity in connection
with any government contract or project or by reason of the office or position of the
public officer;(c)by the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities ofDepartment of Justice, Philippines.

- 107 -Government owned or controlled corporations or their subsidiaries;(d)by obtaining, receiving or accepting directly or indirectly any shares of stock, equity
or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;(e)by establishing agricultural, industrial or commercial monopolies or othercombinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or(f) by taking advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines;
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or
acquired is at least P50 million.
II. THE FIRST PLUNDER CASE
In the first plunder case, former president Joseph Estrada was charged with acquiring almost
P4 billion ill-gotten wealth from protection money in illegal gambling operations, stock
manipulation and kickbacks from tobacco excise taxes. Joseph Estrada's son Jinggoy, who wasthen the mayor of San Juan district in Metro Manila, and others were charged as conspirators. In
its decision promulgated on September 12, 2007, the Sandiganbayan (antigraft court) convicted
former president Joseph Estrada and acquitted the younger Estrada. In acquitting Jinggoy, theCourt stated that:
With respect to Jinggoy Estrada, there was no evidence that the money he turned over toGov. Singson or the latter's representatives was part of the jueteng protection money
collected from Bulacan or that he received funds from a certain Viceo. The prosecution
did not also rebut the bank certification presented by the defense that Jinggoy Estrada
did not have an account with the United Overseas Bank, disproving the testimony of
Emma Lim that the deposit slip in the amount said to be part of jueteng money was
turned over to her by Jinggoy Estrada from his account at the United Overseas Bank.
The gaps in the prosecution evidence as to Jinggoy Estrada create uncertainty in themind of the Court as to the participation of Jinggoy Estrada in the collection and receipt
of jueteng money.
Then Governor Luis "Chavit" Singson of the province of Ilocos Sur and their close family
friend was the principal witness in the plunder charge against the Estradas. He testified that hedelivered millions of pesos from jueteng operations to the former president and he maintained aledger for the transactions. Jinggoy was the collector of P3 million protection money every monthfrom the nearby province of Bulacan, through Jessie Viceo, the jueteng operator in Bulacan.
Jinggoy retained P1 million and gave the rest to Singson, who, in turn, remitted money to Estrada.
However, Joseph stopped Jinggoy from keeping a portion of the proceeds so his codename
appeared in Singson's ledger only once but he continued receiving protection money, albeit- 108 -

secretly. Four witnesses testified that upon instructions of Singson, they collected juetengproceeds from Jinggoy on several occasions. One of them testified that Jinggoy, in one instance,
issued her a personalized/customized United Overseas Bank check.
The Court took notice of the gaps in the testimony of the prosecution witnesses. It did not
believe that Jinggoy Estrada, who is not even from Bulacan, was the collector for Bulacan.
None of the witnesses saw Jinggoy Estrada receive jueteng collections from Viceo or that hesubtracted his share of the collections he received. In the lengthy and detailed ledger, Jinggoy's
codename appeared but once despite the supposed numerous instances when he received
protection money from illegal gambling. Moreover, the testimony of the bank official who statedthat the bank had not issued any customized check to Jinggoy Estrada and that he had no accountwith the bank was given weight and consideration as his testimony was not rebutted.
III. THE SECOND PLUNDER CASE
Jinggoy Estrada became a senator in 2004. The second plunder case, now pending trial
before the Sandiganbayan, charges him with the anomalous utilization of his Priority
Development Assistance Funds.
A. The Priority Development Assistance Fund (PDAF) and the PDAF Scam
The Priority Development Assistance Fund is a lump-sum appropriation in the annual
General Appropriations Act allotted to each member of Congress to fund the priority
development programmes and projects of the government, mostly on the local level. Because of
the alleged misuse by several members of Congress of their PDAF, it is estimated that thePhilippine government was defrauded of P10 billion. The PDAF scam, or pork barrel scam, is a
big political scandal that has provoked public outrage. On November 19, 2013, the Supreme
Court declared the PDAF unconstitutional.
Businesswoman Janet Lim Napoles was tagged as the mastermind of the PDAF scam by
Benhur K. Luy, her second cousin and former personal assistant. After she detained him andagents of the National Bureau of Investigation of the Department of Justice rescued him, Luy
reported Napoles' involvement in the scam. Based on testimonial and documentary evidence
gathered, the widespread misuse of PDAF allotted to a legislator was committed through acomplex scheme with the participation of the legislator, his/her subordinates, the Department of
Budget and Management, implementing agencies of the government, and the dummy nongovernmental organizations of Napoles. The projects supposed to have been funded by alegislator's PDAF turned out to be inexistent or "ghost” projects and the funds intended for the
implementation of the PDAF-funded project are diverted to Napoles and her cohorts, including
the legislator.
B. The Charges
On September 16, 2013, the NBI and Secretary of Justice Leila De Lima filed a complaint
with the Ombudsman charging Senator Estrada with plunder for acquiring/receiving on various
occasions, in conspiracy with his co-respondents, commissions, kickbacks, or rebates, in the total
amount of at least Php183,793,750.00 from the “projects” financed by his PDAF from 2004 to
2012. The Field Investigation Office of the Ombudsman, on the other hand, charged Senator- 109 -

Estrada and other respondents with violating SECTION 3(E) of RA 3019, as amended, for giving
unwarranted benefits to private respondent Napoles and certain NGOs in the implementation of
his PDAF-funded projects, thus, causing undue injury to the government in the amount of morethan Php278,000,000.00. After preliminary investigation, the Ombudsman indicted Sen. Estrada
for plunder and several counts of graft, along with other individuals.
C. Evidence for the Prosecution
In their testimonies, Benhur Luy and other trusted employees of Janet Napoles (thewhistleblowers) outlined the modus operandi of the PDAF scam. They stated that Sen. Estrada
repeatedly received sums of money from Janet Napoles for endorsing her fake NGOs to
implement the projects to be funded by his PDAF. Luy related that Sen. Estrada personallytransacted with Napoles and in his ledger, he recorded that Sen. Estrada received over P183
million in kickbacks from his PDAF.
Ruby Tuason was former President Joseph Estrada's social secretary and a close friend of
Sen. Estrada. She was initially a respondent in the complaint but she turned witness for theprosecution. Tuason states that she personally knows Napoles and she acted as the go-between
for Napoles and Sen. Estrada with respect to his PDAF-related arrangements. The amounts forhis kickback, usually 50% of the diverted funds, were handed to her by either Luy or Napoles
herself. She personally picked up and delivered the money in his office or his home. She also
received commission of 5% of the amount.
Aside from Luy and company, Tuason and other witnesses, there are also documentary
evidence against Sen. Estrada, namely: (a) the business ledgers prepared by witness Luy, showing
the amounts received by Senator Estrada, through Tuason and Labayen, as his “commission”
from the so-called PDAF scam; (b) the 2007-2009 COA Report, documenting the results of thespecial audit undertaken on PDAF disbursements that there were serious irregularities relating to
the implementation of PDAF-funded projects, including those sponsored by Estrada; and (c) thereports on the independent field verification conducted in 2013 by the investigators of the Field
Investigation Office of the Ombudsman which secured sworn statements of local officials andpurported beneficiaries of the inexistent projects.
D. Estrada's Defence
In his defence, Sen Estrada decries political harassment and claims that he has no knowledge
or participation in the anomalous transfer of his PDAF allocation; that neither he nor his chief ofstaff and co-respondent Labayen received any funds from Napoles, her staff or persons associatedwith NGOs affiliated with or controlled by her; that his association with Napoles did notnecessarily mean that he connived with her to divert PDAF disbursements. He denies that he isconnected with other respondents and that he authorized them to act on his behalf respecting his
PDAF allocations; that the signatures appearing in the PDAF documents are not his, as witness
Luy admitted falsifying signatures on some PDAF documents. He claims that as a legislator, he
had no hand in the implementation of the projects funded by the PDAF; that his choice of NGO
to implement his PDAF projects was only recommendatory and he himself merely relied onrecommendations in choosing the NGO.

- 110 -

E. Comparison of the Prosecution of the Cases
Like Singson, Luy also kept a ledger detailing the different transactions of lawmakers with
Napoles. Luy's ledger is very important as it recorded the different PDAF related transactions
between the accused and served as a guide for investigators to check the supposed beneficiariesof the nonexisting projects.
It is fortunate for the prosecution that, in both cases, individuals who were close to theprincipal accused and who have personal information about the crimes charged testified against
the latter. In the first plunder case, Gov. Singson turned against the Estradas. In the present case,
Luy plus other trusted employees of Napoles, and Ruby Tuason, a long-time family friend of the
Estradas, offered to testify against Napoles and Sen. Estrada. Singson and the aforementioned
witness in Estrada's second plunder case were all granted legal immunity and are covered by the
Witness Protection Program of the Department of Justice.
In both instances, the Ombudsman constituted a dedicated panel of prosecutors to handle thecase. At this point, it must be mentioned that two other senators are also charged with plunderbecause of the PDAF scam and for each of these separate cases, there is a different panel ofdedicated prosecutors. Moreover, because of his positive experience of working with prosecutors
from the Department of Justice that resulted in a conviction, the lead prosecutor in the firstplunder case recommended the same set up for the present cases. Thus, no less than anundersecretary of the Department and two prosecutors now work in collaboration withprosecutors of the Ombudsman in the trial of these cases.
IV. CONCLUSION
Despite speculations on the probable outcome, no one knows for sure if Sen. Estrada will be
convicted or acquitted in the second plunder case. There are tremendous factual and legal
complexities involved in the case. There will be many witnesses and voluminous documentary
evidence and pleadings from the parties. For the prosecution, its only consideration is to serve theinterest of the Filipino people so that those proven to have severely enriched themselves byabusing their public office and those private individuals who conspired with them will bepunished accordingly.

- 111 -CURRENT ISSUES IN THE FACT-FINDING INVESTIGATION OF
THE PRIORITY DEVELOPMENT ASSISTANCE FUND (PDAF) OR“PORK BARREL” FUNDS
Atty. Vic T. Escalante Jr. *One of the most controversial issues afflicting the Philippines today is the alleged
misuse of the Priority Development Assistance Funds (PDAF) or the so-called “pork barrel”
funds of the legislators. Billions of pesos were laid to waste due to avarice and extreme
hunger for power and wealth by Philippine officials and/or employees. The PDAF had
become a widespread conspiracy among officials and employees of the government thatplaced the country in a bad light. Notwithstanding the grave effects of typhoons and othercalamities for the past years that exposed the scarcity of government funds to provide
assistance to the citizens, who had suffered tremendously, and the apparent incompetence ofa few, if not most, of those responsible for the distribution of relief, these erring public
officials had the guts and the “thick face” to squander billions of public funds paid from taxesof the working citizens. It is a pity that the poor had to endure further hardship from theoblivious squandering of public funds.
I.

WHAT IS THIS SO-CALLED PDAF OR “PORK BARREL”?

Popularly known as the “Pork Barrel”, the PDAF is a lump sum appropriation in the
Annual General Appropriations Act (GAA) intended to fund priority development
programmes and projects of the government. 1 Each year, every legislator is allotted porkbarrel funds in the annual appropriation allowing them to fund small-scale infrastructure orcommunity projects which fall outside the scope of the national infrastructure programme. 2 It
covers funding for programmes and projects categorized as soft projects 3 and hard projects4
or Various Infrastructure including Local Projects (VILP) of the Department of Public
Works and Highways (DPWH).
Priority programmes and projects of legislators were allocated in a total amount ofSeventy Million Pesos (Php70,000,000.00) for each congressional district and party-list
Representative, and Two Hundred Million Pesos (Php200,000,000.00) for each Senator. On
the part of the congressional district and party-list Representative, the Php70 Million isdivided into Thirty Million Pesos (Php30,000,000.00) for soft projects and Forty Million
Pesos (Php40,000,000.00) for hard projects. As regards the Senators, their PDAF amounting
to Php200 Million is sliced equally for soft and hard projects. 5*

Graft Investigation and Prosecution Officer I, Office of the Ombudsman, The Philippines.
DBM Website, “PDAF,” electronically published at <http://pdaf.dbm.gov.ph/index.php>, and last accessed on
6 Oct. 2014.
2
Wikipedia definition of PDAF citing the paper of Representatives Prospero Nograles and Edcel Lagman,“Understanding the Pork Barrel”, electronically published at <http://en.wikipedia.org/wiki/Priority_
Development_Assistance_Fund>, and last accessed on 6 Oct. 2014.
3
COA Website, Soft and Hard Projects,” electronically published at <http://coa.gov.ph.GWSPA/2012/
SAO_Report2012-03_PDAF.pdf>, and last accessed on 6 Oct. 2014.
4
Ibid.
5
Commission on Audit’s Special Audits Office Report No. 2012-03.
1- 112 -

II. HOW DID THE PDAF SCAM AND THE SUBSEQUENT INVESTIGATIONCOME INTO BEING?
The PDAF scam emanated from an exposé in the Philippine Daily Inquirer dated 12
July 2013 citing businesswoman Janet Lim Napoles as the mastermind. What seemed to be
an illegal detention of principal whistleblower Benhur Luy by PDAF scam queen Napoles
and the subsequent successful rescue operation by the National Bureau of Investigation
brought into the open the involvement of Napoles into the Fertilizer scam and this PDAF
scam.
The NBI conducted its own investigation on the alleged scam and filed theappropriate complaint before the Office of the Ombudsman. Meanwhile, the Office of the
Ombudsman, particularly the Field Investigation Office, initiated a fact-finding investigationon the alleged misuse of the PDAF by the legislators. Unlike the wider scope of investigationby the NBI, the FIO focused its fact-finding investigation on the PDAF releases of thelegislators for the Calendar Years 2007-2009, which is in harmony with the findings of theCommission on Audit (COA) embodied in the COA-Special Audits Office (COA-SAO)
Report No. 2012-03, the Government-wide Performance Audit.
Finding sufficient verifiable leads and information to pursue a thorough and in-depth
fact-finding investigation, the Honorable Ombudsman created Special Teams for the purpose.
These Special Teams were ordered to gather pertinent documentary evidence from different
repository government agencies and private entities, as well as sworn testimonies from thealleged beneficiaries or recipients of the projects funded from these PDAF allocations.
Thereafter, the members of the Special Teams issued the necessary legal processes toobtain relevant documents to substantiate the allegation of misuse, and prepared the neededmaterials in the conduct of validations in the provinces, municipalities, and barangays(wards) where the alleged beneficiaries or recipients may be located.
The whole investigation process is not as easy as it may sound. During the course ofinvestigation, a lot of problems were encountered that hindered and/or limited the smooth
flow of the investigative activities undertaken. Many of these limiting factors were workedout because they were capable of being solved; however, many of them were just ignored
because the field investigators opted to gather pieces of evidence sacrificing their physicalsecurity in the process.
III. WHAT ARE THESE LIMITING OR HINDERING FACTORS?
Just like any problem in the investigation of usual graft and corruption cases, theinvestigators had to deal with the undue delay in the receipt of required documents from
repository government agencies and private entities. Notwithstanding constant follow-ups forthe submission of the subpoenaed documents, said agencies and entities offered an abundanceof excuses. There are corresponding legal remedies to punish the unwarranted refusals andthe delays in the compliance, but the fact remains — the timetable for the investigation had
been severely affected.
Another evident problem is the limited number of field investigators conducting thevalidations. The small number of field investigators had to suffer a great deal in covering thedifferent regions throughout the entire Philippines where the projects were supposedly- 113 -

implemented, and the incredibly large number of alleged beneficiaries or recipients. Lack ofpersonnel means a longer period of time to complete the investigation process. Validation of
the alleged recipients is not the sole component of the investigation. What is more taxing inthis investigative activity is the acquisition of the pertinent documentary evidence to build up
the case because the field investigators had to deal with lawyers of said government agencies
and private entities who tried valiantly to decline the submission of the needed data.
While conducting validations in the localities, more predicaments are encountered by
the field investigators. One typical problem is the geographical locations of the validation
activities. Most of the alleged beneficiaries are located in the remote areas of the provinces.
Worse, some of the roads leading to these areas are not even accessible by any motorized
vehicle. The field investigators, therefore, had to travel on foot to reach these far-flung areas
to be able to accomplish the task. In these places, the field investigators must carry
everything they need to conduct their investigation. This is the point where the importance ofdeep preparation comes in. Preparation may not be a guarantee that the investigators will not
encounter setbacks along the way, but it will, at least, lessen the obstructions, if there be any.
In relation to the issue of geographical setting, the investigators had to come to grips
with security issues for themselves and the pieces of evidence gathered. In the areas coveredby the investigation on the PDAF scam, the investigators’ security was at risk due to thepresence of private armies and other armed elements. It is not surprising that the politicians,
which certainly include the lawmakers, employ private armies for their protection and to
perform inexplicable wrongdoings. Instead of becoming the champions of the people, thesepoliticians become the most feared criminals clothed in glamorous and pricey barongs, suits,
and other alluring attires. There are also other armed groups which parade different
advocacies to justify their deceitful conduct. Other than helping achieve the cause of theGovernment, these elements proved more inimical to the growth of the economy and welfareof the entire populace. Even with the assistance of the police and other law enforcers in thefield validations, the impending risks to the protection of the investigators are always present.
At some point of the investigation, the investigators had to deal with the season or
weather. During the period of the investigation, the Philippines was plagued with strong
typhoons, flash floods and earthquakes. Many of the alleged beneficiaries or recipients wereaffected by these inevitable phenomena. When they are grieving, it is really difficult toapproach and encourage them to execute sworn affidavits in the event that they received or
did not receive at all the packages or kits from the PDAF projects. Other than that, calamities
proved to be hefty deterrents against conducting field validations. These calamities add to thedifficulty that the areas of investigation are located in rural areas. Waiting for these calamities
to die down has affected the time frame and the success of the investigation.
When the investigators came face-to-face with the alleged beneficiaries or recipientsof the projects, more problems cropped up. This writer wishes to present at least eight (8) of
these problems.
First, many, if not most, of the alleged beneficiaries are surprisingly illiterate. Simply
put, they do not know how to read and write. Worse, some of these recipients do not evenhave the capability to spell their own names. The expthat had to be done took a great toll on
the time and the certainty of the results of the investigation. In fact, this kind of quandary will
also cause an adverse effect in the prosecution of the cases to be filed in the courts of law.

- 114 -

Second, the language barrier is one of the most common problems in field validations.
Not all of the field investigators are conversant in the dialect spoken in the provinces.
Considering that the language of the Philippines is Filipino or Tagalog, all the sworn
affidavits were written not only in that vernacular but also in English. It is a heart-rending
fact that not all of the alleged beneficiaries understand English and/or Tagalog. It is for thisreason that the content and tenor of the sworn affidavits as well as the documents shown tothem for reference must be translated into the dialect that they know of before they are asked
to sign. This will not only take time but also is a risky process relative to the outcome of theinvestigation.
Third, due to the considerable number of lawmakers being investigated by the Officeof the Ombudsman, it is not far-fetched that the alleged beneficiaries in certain localities may
have already been visited by other field investigators. Consequently, a subsequent inquiry
into these areas by other field investigators would be rendered inutile because the said
beneficiaries become fed up from the constant involvement of their names in the scam ofwhich they do not wish to be a part of. The field investigators could not do anything but
swallow their pride while being rebuked by the alleged beneficiaries. They had to try to
encourage said beneficiaries to do their part in order to make the lawmakers, aka criminals,
answer for their unlawful acts. At the end of the day, what is more important is the quality ofthe outcome of the investigation.
Fourth, out of fear, the alleged beneficiaries and the local government officials
remained uncooperative. The field investigators cannot discount fear as an intervening factor.
Without a doubt, fear can make a potential witness refuse to lend a hand to the Office of the
Ombudsman and other investigating agencies in bringing the erring solons to justice. What isneeded to be done is to instill faith in these potential witnesses that the Office of the
Ombudsman can accomplish the impossible if only they are willing to perform their part ofthe bargain.
Fifth, another reason why the alleged beneficiaries and the local government officials
refused to execute their sworn affidavits, and issue pertinent documents or assist in locating
witnesses, is their affiliation to the respondent lawmakers. Membership in the different
political parties in the Philippines is both an age-old practice and a privilege. Other than that,many of the alleged beneficiaries and local government officials are related by affinity or
consanguinity to the respondent lawmakers. In view of this, these prospective witnesses
declined to execute sworn affidavits or provide the necessary documentary evidence. In someinstances, they provided incomplete details of what they actually know relative to the PDAF
scam.
Sixth, another important consideration is that the alleged beneficiaries are generally
farmers. Most of these farmers, during planting and harvesting season, already proceeded totend their farms when the investigators visited their homes. The investigators had to devise ascheme to be able to gather these farmers in one location on a particular day and at a time
convenient to them.
Seventh, the lawmakers involved in the scam may have anticipated the investigationof anomalies pertaining to their PDAF releases. As such, the names of the beneficiaries thatthey included in the lists of recipients, that became part of the liquidation documents,
belonged to persons who were already old or dying due to illnesses. Besides deprivation of
their ability to see and hear, these old and bed-ridden individuals can no longer comprehend- 115 -

the tenors of the prepared sworn affidavits and other documents for reference. Taking theirsworn affidavits would certainly be worthless. It must be noted that it would take a number ofyears to prosecute the cases to be filed against these erring public officials, so that by the timethese old and dying witnesses will be called to testify, they may have already retired from thisearth.
Eighth, death of the alleged beneficiaries will render the taking of sworn affidavits
impossible. The field investigators have no alternative but to determine the time of death.
Fortunately, the deaths occurred before the PDAF projects were allegedly implemented. This
goes to show that they had not actually received the kits or packages as appearing in theliquidation documents.
These were some of the setbacks encountered by field investigators in the conduct of
the fact-finding investigation of the PDAF scam. While a number of these factors wereremedied during the course of the investigation, some of them have been studied in order topreclude the same occurrences in the future.

- 116 -CURRENT ISSUES FACED BY SINGAPORE IN INVESTIGATING,PROSECUTING & ADJUDICATING CORRUPTION CASES
Wee Keng Lock Raymond *1.

Singapore is well known in the region for her efficient government, tough laws and zerotolerance towards corruption. It is well-established that the four pillars supporting her fightagainst corruption are, namely: “Effective Laws”, “Independent Judiciary”, “Effective
Enforcement”, “Responsive Public Service”. Together with strong “Political Will” and zerotolerance towards corruption, these four pillars have provided Singapore with the guiding
principles to grow from a “Third World Nation” to a modern, technology-savvy, globalizedcity state with a “First World” economy within a short span of 50 years.

ZERO TOLERANCERESPONSIVEPUBLIC SERVICEEFFECTIVE
ENFORCEMENTINDEPENDENTJUDICIARY

EFFECTIVELAWS

POLITICAL WILL*

Assistant Director Overseeing Training for the Investigation Department, Corrupt Practices Investigation Bureau,
Singapore.

- 117 -

I.

EFFECTIVE ENFORCEMENT

2. The Corrupt Practices Investigation Bureau (CPIB) is the sole agency tasked with theenforcement of anti-corruption laws in Singapore. The CPIB was established in 1952 when thecolonial government then realized that the Police Anti-Corruption Branch (ACB) was ineffective
and rife with corruption. The need for an effective anti-corruption agency and strong
enforcement action was crucial in the fight against corruption in post-war Singapore. The CPIB
was set up as an independent agency, which reports to the Prime Minister’s Office to keep
corruption in check.
3. The CPIB’s efforts in enforcing the corruption laws are well documented through the annalsof Singapore’s history, especially in the early years of nation building after Singapore obtained
independence from the British. Today, CPIB continues to stay vigilant, remain important andrelevant in keeping Singapore “Clean”.
4. In terms of strategy, the CPIB adopted a 3-D approach in enforcing corruption; mainly, to“Detect”, “Deal” and “Deter”. The CPIB consciously embarked on the following initiatives toensure that the 3-D approach is adhered to:a. Continuously building public confidence in the country by promoting CPIB’s
commitment in fighting corruption, so as to increase public awareness andwillingness to report corruption crimes.
b. Zero-tolerance for corruption by investigating all cases irrespective of how small thesum of money involved and by pursuing anonymous complaints.
c. Encouraging whistle-blowing and self-policing within government departments.
d. Embarking on the enforcement of targeted corruption-prone arease. Cooperation with other enforcement and regulatory agencies to weed out potential
corruption trends.
f. Embarking on pro-active intelligence projects.
g. Consciously engaging in international fora and cooperation on anti-corruption
initiatives.
5. However, in a globalized world today, the key challenge for any enforcement agency is tohave the ability to stay nimble, responsive to the changing environment and challenges while
also staying relevant to operate across national borders combating transnational crimes. As weknow, transnational crime is borderless. Organized crime, criminal activities and its players
operate outside national borders or across borders and their adverse consequences have noboundaries. With globalization, criminal elements are able to move and operate more freely and- 118 -

together with technology; the perpetrators are able to transfer the proceeds of crime
instantaneously.
6. Sovereign nations, with their respective borders and laws, are handicapped, constantly
facing challenges and barriers to arrest, prosecute and deter criminals who operate outside theboundaries of the offended state. In order to commence investigations against such transnational
criminals, the offended country or policing agency are often faced with limitations of its existinglaws, extraterritorial rights and jurisdiction of dealing with either her citizens or non-citizens.
7. Like any other country, transnational crimes do affect Singapore. Corruption is a known
transnational crime that knows no borders. As such, the CPIB is also constantly faced withcorrupt criminal activities with international implications whether involving her citizens or noncitizens.
II. SINGAPORE AND THE CPIB’S EXPERIENCE
8. In recent years the CPIB has faced many challenges and some of the current issues faced bySingapore in investigating, prosecuting and adjudicating corruption cases take the following
forms:a)Transnational investigation,b)

Increase in formal foreign requests for assistance (MLAT) lacking inunderstanding of the local legal framework,c)

Impact of social media,d)Money laundering investigation, following the money trail,e)Effective laws,f)

Forensic evidence,g)International cooperation; andh)Greater transparency.

Note: The CPIB will share a case study from Singapore which encompasses the above eight
issues.
III. BACKGROUND OF THE CASE
9. In 1994, the CPIB investigated one Wilson Raj Perumal (WRP), a Singapore national, forattempting to offer a bribe of S$3,000/- to a soccer player in a local non-professional league
competition to fix the results of the game. WRP was found guilty and convicted in court and- 119 -

sentenced to 12 months, imprisonment. In 1997, the CPIB investigated a local syndicate forbribing players and officials to fix soccer matches in Singapore’s national semi-professionalsoccer league. WRP and 12 others (8 soccer players, 1 referee, 1 financier and 2 runners) were
investigated by CPIB for “Match Fixing”. WRP was subsequently charged (total of 12 counts)
and convicted in court in 1998 for the offence of bribing a soccer referee and players in return for
fixing the results of matches. WRP was sentenced to imprisonment for 16 months.
10. In organized sports, “Match Fixing” occurs when a scheduled match is played out to a predetermined result, which violates the spirit of the game, short-changing the paying fans, andwould more often than not involve an organized syndicate which is deeply entrenched into
criminal activities such as corruption, illegal bookmaking and cheating the Tote-Board. The
Singaporean authorities recognized that “Fixed Matches” or “Thrown Games” are motivated bygambling and corruption. If left unchecked, there will be a rise in criminal elements, which inturn would fuel social ills and cause disrepute to the sport.
11. In combating illegal soccer betting and corruption in the soccer fraternity, the Singapore
Tote-Board decided to accept soccer bets for matches played in Singapore and popular soccer
leagues in Europe. The CPIB worked closely with the soccer fraternity to weed out these corrupt
players and officials by conducting regular polygraph examinations and through the investigationof suspected individuals. For the last decade, the CPIB had clamped down hard on match-fixers
by diligently investigating every allegation of soccer “Match Fixing”, so much so that WRP and
his corrupt associates had to leave Singapore and operate overseas.
IV. THE CASE STUDY
A. Transnational Investigation
12. Instead of mending his ways, WRP, who is a hard-core criminal, continued his soccer“Match Fixing” exploits. In early 2011, WRP was arrested in Finland for using forged travelling
documents and was also wanted by Interpol for being involved in “Match Fixing” of soccer
matches throughout several European soccer leagues such as the UK, Finland, Hungary, Italy,
Croatia, and Bulgaria. (Note: At this juncture, WRP was also a fugitive, on the run from theSingaporean authorities for committing a spate of crimes). While in Finnish custody, WRP ratted
on his associates and identified his boss and financier to be one Dan Tan, another Singaporean,as the mastermind behind the “Match Fixing” scandal. Dan Tan was alleged to head one of theworld’s largest and most aggressive “Match Fixing” syndicates, supposedly linked to the triads
from China and the Balkan states (e.g., Croatia, Serbia, etc.) and ties with the Russian and Italianmafias. WRP was sentenced to two years, imprisonment and spent a year in the Finnish prison
before being handed over to the Hungarian authorities in 2012 to help them with theirinvestigation on “Match-Fixing”. On the other hand, Dan Tan, who was implicated by WRP,
was indicted by the Italian and Hungarian authorities in 2011 and 2012, respectively, in absentia.

- 120 -

B. Increase in Foreign Requests for Assistance Lacking in Understanding of the Local
Legal Framework
13. Like many countries, Singapore does not have extradition treaties with most of the European
states. The Singapore authorities had no jurisdiction over the “Match Fixing” cases that took
place in the European leagues. Like many transnational crimes, criminal activities and organizedcrime groups that operate outside Singapore’s national borders render the local (Singapore)
authorities helpless as they have no locus standi over the investigation.
14. In investigating one of the biggest “Match Fixing” scandals in Europe, the European
authorities had sought the assistance and involvement of the Singapore authorities. However,
due to the differences in legal framework, Singapore was unable to partake in the above
investigation from the onset.
C. Impact of Social Media
15. In early 2013, “Match Fixing” news became the flavour of the month. At every available
opportunity, the social media would highlight that members of one of the main syndicates
involved in the scandals were Singaporeans. This led to the inference that Singapore was aninternational hub for soccer “Match Fixing” and where organized crime in the soccer fraternity
was allowed to thrive freely. The social media had carved an agenda to make Singapore takecentre stage in the above scandals. The European authorities, without verifying the legitimacy ofsome of the information, fueled the slanted agenda by giving the media access to interview WRP(who was under house arrest) to sensationalize the “Match Fixing” scandals. Dan Tan, who was
located in Singapore, was also not spared. The media, both foreign and local, had also
approached Dan Tan for his comments, and his versions on the alleged “Match Fixing” scandal
were further fanned to create more heat.
16. While under house arrest in Hungary, WRP was happily “singing” away and giving
interviews to the media on the role he played and how the Singaporean syndicate fixed matches
all over Europe, Africa, the Middle East and Asia. WRP felt that his arrest in Finland was abetrayal by the syndicate. Thus, WRP decided to get even by ratting on Dan Tan. WRP
implicated Dan Tan as a financier and exposing Dan Tan’s links with criminal elements in the
Balkans, Russia, Italy and China. WRP’s agenda was to put himself and Singapore in the
spotlight in return for being a “star witness” to help the European authorities with theirinvestigation. Dan Tan, whose name was linked to several sports-related companies, confirmed
his involvement in some soccer-related business venture in Europe in organizing friendly
matches, but he denied his involvement with WRP in fixing matches. Dan Tan counter-allegedthat WRP was not trustworthy, a traitor; and had run off with his money to set up a soccerrelated business to rival him and his associates.
17. Within a month, WRP and Dan Tan achieved infamous cult statuses. Like celebrities, themedia openly aired their feud. Exposure of their scandalous mud-slinging tirades at each othergrabbed tabloid headlines across the globe. Meanwhile, unflustered by the fanfare andaccusation of being indifferent, the Singapore authorities, from the ringside, were gathering- 121 -

momentum to throw a knock-out punch to floor the foreign media for their biased reporting andto bring the house down by knocking out the corrupt “Match Fixing” syndicate.
D. Money-Laundering Investigation: Following the Money Trail
18. As early as 2012, upon receiving news of the allegations that a transnational organized crime
syndicate based in Singapore was actively involved in international “Match Fixing”, theSingapore authorities, in their typical low profile fashion, had established a soccer Joint
Investigation Team (JIT) led by senior investigators from the Singapore Police Force (SPF), theCPIB and the Intelligence Department to look into the matter. The lack of visible response to themedia, both local and foreign, about Singaporeans’ involvement in international “Match Fixing”
was a deliberate tactic by the Singapore authorities to put the syndicate off their guard.
19. In March and May 2013, senior members of JIT Singapore met up with representatives of
the Global Anti-Match-Fixing Task Force, Interpol and Europol in Lyon, France to review
evidence and obtain information on Singaporeans’ involvement in “Match Fixing”.
E. Effective Laws
20. With the information provided by WRP (via the numerous tabloid interviews) and theEuropean authorities, the JIT invoked the powers provided for in the Prevention of Corruption
Act (PCA), Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits)
Act (CDSA) and the Criminal Law (Temporary Provision) Act (CLTP) to deal with the corrupt
practices and the organized crime syndicate.
21. Singapore’s well-defined laws state the following:a) Liability of citizens of Singapore for offences committed outside Singapore.
Section 37(1) of the Prevention of Corruption Act, Chapter 241 (PCA) provides that “inrelation to any citizens of Singapore, outside as well as within Singapore; and where an
offence under this Act is committed by a citizen of Singapore in any place outside
Singapore, he may be dealt with in respect of that offence as if it had been committed
within Singapore”.
b) Concealing or transferring benefits of criminal conduct.
Section 47(1) of the Corruption, Drug Trafficking and Other Serious Crimes(Confiscation of Benefits), Chapter 65A (CDSA) provides that “Any person who (a)conceals or disguises any property which is, or in whole or in part, directly or indirectly,
represents, his benefits from criminal conduct; or (b) converts or transfers that property or
removes that property or removes it from the jurisdiction, shall be guilty of an offence”.
c) Power of Minister to make orders
Section 30 of the Criminal Law (Temporary Provisions) Act, Chapter 67 (CLTP)
provides that “Whenever the Minister is satisfied with respect to any person, whether the
person is at large or in custody, that the person has been associated with activities of acriminal nature, the Minister may, with the consent of the Public Prosecutor – (a) if he issatisfied that it is necessary that the person be detained in the interests of public safety,- 122 -

peace and good order, by order under his hand direct that the person be detained for any
period not exceeding 12 months from the date of the order; or (b) if he is satisfied that itis necessary that the person be subjected to the supervision of the police, by order directthat person be subject to the supervision of the police for any period not exceeding 3
years from the date of the order”.
22. As such a large dragnet was cast, intelligence monitoring and gathering were carried out.
The Ministry of Home Affairs (Political Will) directed the authorities to use whatever resources
available to weed out the individuals involved in the international “Match-Fixing” scandal,
which had cast Singapore in a bad light.
23. Tenaciously, investigators worked long hours to gather evidence against the perpetrators.
Every company, business and financial document linked to the syndicate members was inspected,
and all bank transactions and money trails were thoroughly scrutinized. Nothing was left tochance, and no stones were left unturned to nail the notorious match-fixers.
F. Forensic Evidence
24. While monitoring Dan Tan and his syndicate members, the investigators had a breakthrough in early 2013. The CPIB had received reliable information that one Eric Ding Si Yang,a known associate of Dan Tan, had contacted three Lebanese soccer match officials (a referee
and two linesman) to help the syndicate fix the Asian Federation Confederation (AFC) Cup
match between Singapore’s Tampines Rovers FC and India’s East Bengal FC to be played in
Singapore on 3 April 2013.
25. Investigations revealed that Eric had arranged for three local prostitutes to provide sexual
gratification to the three Lebanese match officials prior to the above-referenced match to inducethem to fix the result. Eric’s contact point with the three match officials was the referee, named
Ali. The CPIB mounted a sting operation and arrested the three prostitutes and match officials at
the premises of the hotel when they were caught with their pants down. The three Lebanesematch officials were subsequently charged for corruption in April 2013. They pleaded guilty incourt for corruptly receiving sexual gratification in return for fixing the result of a soccer match,and the three match officials were each sentenced to three months’ imprisonment.
26. Eric was subsequently charged a month later for corruption. He had requested a trial for hisrole in bribing the three Lebanese match officials. In the course of investigating Eric and thethree Lebanese match officials, the CPIB seized numerous lap-top computers, storage devices,and hardware. The syndicate had engaged computer vendors to use encrypted software toprotect passwords, files, e-mails and data stored in the computer devices. After much effort, theforensic lab officers managed to crack the encrypted devices, which revealed Eric’s involvement
in soccer “Match Fixing”. Forensic examination also assisted the authorities to recover trails of
e-mail correspondence between Eric and Ali, the Lebanese referee, dating back to 2012.
27. In Eric’s corruption trial, Ali testified against him, and with corroboration of forensic
evidence found in Eric’s computer devices, the court found Eric guilty as charged and convicted
him of corruption (3 counts). Eric was subsequently sentenced to three years’ imprisonment for- 123 -

corruptly bribing three Lebanese soccer match officials in the form of sexual gratification withprostitutes in return for fixing the result of a soccer match.
28. Further probe by the CPIB suggested that Dan Tan may have been involved in the
procurement of the three local prostitutes through a middle-man for Eric.
29. After Eric and the three Lebanese match officials were arrested in April 2013, the Singapore
authorities led by the specially formed JIT members carried out a major operation in September
2013. Dan Tan and a dozen other individuals linked to the “Match Fixing” syndicate werearrested and investigated for their involvement in organized criminal activities. The eventual
crackdown on a Singapore-based international “Match Fixing” syndicate led to the incarcerationof five members of the syndicate, including Dan Tan, under the CLTP Act. The authorities
continue to investigate Dan Tan, Eric and the syndicate members for offences under the CDSA,
with the view to convict them for engaging in money laundering activities and to seize theirmonies and assets as proceeds of crime. As for WRP, the Singapore authorities are patiently
waiting for the European authorities to repatriate him back so that he can face criminal charges
and be tried in Singapore’s courts.
G. International Cooperation
30. In investigating the above series of cases, the Singapore authorities, including the CPIB, did
not shun away from international cooperation or investigating transnational crime. In fact weembrace international cooperation, and the CPIB regularly participates in international anticorruption initiatives and forums. The CPIB also works closely with its counterparts such as the
Malaysian Anti-Corruption Commission (MACC), Brunei’s Anti-Corruption Bureau (ACB),
Hong Kong’s Independent Commission Against Corruption (ICAC) and has also signed a
Memorandum of Understanding (MOU), known as the Southeast Asian Parties Against
Corruption (SEAPAC), to cooperate on anti-corruption initiatives.
31. Continuing on the topic of “Match Fixing”, and with the recent blitz by the CPIB on
allegations of “Match Fixing”, the Bureau had also investigated another local syndicate in mid2012 when the CPIB received information that a Singapore national, one Selva, had conspiredwith a Malaysian, one Thana Segar, to bribe a soccer referee from the Football Association of
Malaysia to fix the result of a match between the Sarawak FA of Malaysia and the Lions XII of
Singapore. The match was to be played in Singapore, and when the perpetrators set out inmotion to carry out their corrupt act, the CPIB arrested Selva, Thana Segar and the referee andcharged them in court for corruption.
32. Thana Segar who was released on bail pending his court trial subsequently absconded andjumped bail. With the assistance and cooperation of our Malaysian counterparts from the MACC,
Thana Segar was located in Malaysia. In August 2014, Thana Segar was apprehended by officers
from the MACC and surrendered to the CPIB’s custody to face corruption charges in
Singapore’s courts. The successful arrest of Thana Segar is a result of the close ties that
Singapore has with her neighbours in fighting corruption and recognizing the binding ties via
MLATs.

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H. Greater Transparency
33. As mentioned earlier in this paper, the CPIB must continue to stay vigilant, remain
important and relevant in its ability to stay nimble and responsive to the changing environmentand challenges. The Singapore authorities are having to face a higher legal threshold recently
when investigating criminal cases and prosecuting individuals in court and are currently
reviewing the processes and procedures of the Criminal Justice System (CJS). One of thechanges and enhancements in the criminal procedure code is the introduction of evidence by boththe prosecution and defence in the discovery process during pre-trial conferences for Penal Codeoffences.
34. The introduction of the discovery process is to ensure that the accused person is notwrongfully prosecuted and has a fair trial. Any discrepancies and alibis brought up by bothprosecution and defence during the discovery process shall be promptly verified or further
investigated before going for trial or before the defendant enters into a plea agreement. The
discovery process, which entails greater transparency, will help improve judicial fact-finding andthus would not waste the court’s time to mete out justice swiftly.
35. With the discovery regime (which is yet to affect corruption cases) in place, it would
definitely accord more scrutiny by the defence counsel on our methods of investigation in the
future. This in turn would also give the media and members of public more access to informationon our work processes and modus operandi when cases go for trial in the courts.
36. In order to cope with greater transparency and scrutiny of our tradecraft, the CPIB must
continuously maintain a high standard of professionalism in its investigation processes andmethods. Besides investing in continuous training of its officers, new technology and resources,
the CPIB had also put in place sound audit procedures as part of good governance on its work
processes so as to ensure that the standard of investigation and its officers remain consistently
high in delivering results and providing quality public service.
37. In conclusion, I would like to take this opportunity to thank the organizers for allowing me
to share in this paper, Singapore and CPIB’s experience of trends and challenges that I am sureother jurisdictions are currently facing when investigating, prosecuting and adjudicating
corruption cases.

- 125 -CURRENT ISSUES ON INVESTIGATION AND PROSECUTION IN
THAILAND
Jirawoot Techapun *I.

INTRODUCTION

Corruption is a huge problem that is occurring in many countries across the world, and many
countries have already taken the lead to end corruption, once and for all. Every country is
looking to end corruption, taking into account that there is a possibility that corruption may
affect the international development and the national security. The countries of the ASEAN
community have different processes and different success rates of combating corruption.
According to the Corruption Perceptions Index made by Transparency International, Denmarkand Switzerland were ranked first and had the lowest corruption in 2013. One can also see that
North Korea and Afghanistan were the two countries with the highest corruption rates, tied atnumber 187, in 2013. 1
In the ASEAN community, Singapore is listed as number one in the region, and it is placed
as number five in the Corruption Perceptions Index (CPI). Cambodia is placed last and in the
CPI as number 160. Thailand is placed at number 102 overall and number 5 in the region.
Thailand was placed at number 80 in the CPI in 2010 2; moreover, this proves that Thailand has
not been able to achieve the goal of preventing corruption. Instead it is doing the opposite—
corruption has actually increased. However, there have been attempts by the Thai government toend corruption in the past, but evidently they have failed.
The increasing corruption problems in Thailand have come into existence because ofmany different reasons, but one of the most important causes is that people committing
crime are not caught. If they can be deterred and suppressed, legal enforcement will be
more effective.
In Thailand, the organizations possessing the specific role in investigation of publicsector corruption cases are the National Anti - Corruption Commission (NACC) 3 and the
Public Sector Anti Corruption Commission (PACC), while the organization that has beenproceeding to the court is the office of the Attorney General. The NACC may also
institute legal proceedings in the court as stipulated by the law. This shows that theprosecution and its proceeding in the corruption cases are divided into an investigation
agency and a prosecution agency, which can cause inefficiency, for not coordinating witheach other from the beginning of the investigation. Although, there is a legal principle
stipulating that, if the state prosecutor does not approve the investigation of NACC, the
NACC is empowered to prosecute or grant power to a notary to prosecute on behalf of the
NACC. But in the past, it showed that it did not reach the goal.
*

Senior Expert Public Prosecutor, Department of Inspector General, Office of the Attorney General, Thailand.
Transparency International: Corruption Perceptions Index 2013.
2
Transparency International: Corruption Perceptions Index 2010.
3
Organic Act on Counter Corruption B.E. 2542 (1999) Section 19.
1- 126 -

II. INVESTIGATION AND PROSECUTION OF CORRUPTION CASES IN THAILAND
The NACC and the PACC are both authorized to investigate and prosecute corruption
cases in Thailand, but only the NACC is empowered to investigate a person holding a politicalor other high-ranking position who is alleged to be unusually wealthy and to have committed an
offence of corruption, malfeasance in office or malfeasance in judicial office. The PACC isempowered to investigate merely cases where a state officer of lower rank is alleged to havecommitted an offence of corruption or malfeasance in office. The investigative procedure begins
with an allegation against an official. An investigation may also begin when the NACC finds
reasonable cause to suspect that a person holding the position of Prime Minister, member of thehouse of representatives, senator or any political official has become unusually wealthy, hascommitted an offence of malfeasance in office, has committed a corruption offence under the
Penal Code or has committed malfeasance in office or corruption under another law. The NACC
shall promptly initiate an inquiry or may entrust an inquiry official to conduct the fact inquiry.
The NACC may also entrust an inquiry official, including police offers, under the Penal Code. In
the case of corruption in the private sector, the agencies empowered to investigate are the police
and the Department of Special Investigation, or DSI. They are empowered to investigate under
the Criminal Procedure Code, but when the offence is committed outside the Kingdom, theAttorney General will have the authority to investigate and prosecute the case. 4
During the investigation, the NACC or the entrusted official will initiate the fact inquiry andgather evidence related to the allegation, and the investigator is deemed to be empowered as theinquiry official under the Criminal Procedure Code. When finished collecting evidence, a report
is submitted to the NACC for consideration and for a decision. If the NACC determines that a
prima facie case has been established, the President shall refer the report, existing documents andthe opinion to the Attorney General for the purpose of instituting a prosecution in the Supreme
Court of Justice’s Criminal Division for Persons Holding Political Positions.
When the case has been referred to the Attorney General, it will be reported further to theSpecial Public Prosecutor’s Office, Special Litigation, Divisions 2 and 5 to be considered. But inthe future the Office of the Attorney General will be establishing the Specific Litigation Officeof the Department of Counter Corruption Litigation. After the prosecutor’s office has received
the report, the next step is to examine the alleged action. The offence, the allegation and theevidence are examined, and if the Attorney General considers that the report, documents andopinion furnished by the NACC are incomplete and do not justify the institution of prosecution,
the Attorney General shall inform the NACC thereof and request further investigation. In thisinstance the missing items shall be fully specified at the same time.
In this case, the NACC and the Attorney General shall appoint a working committee
consisting of representatives of each side in an equal number for the purpose of collecting fullevidence and furnishing it to the Attorney General for the prosecuting institution. The NACC has
the power to initiate the prosecution on its own or to appoint an attorney to institute theprosecution on its behalf. 5 As the NACC is empowered to initiate prosecution, when the working
45

Criminal Procedure Code B.E. 2477 Section 20.
Organic Act on Counter Corruption B.E. 2542 (1999) section 97.

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committee fails to arrive at a conclusion as to the prosecution and collecting of the facts, itcauses problems at trial, as will be discussed further below.
III. ACTUAL CORRUPTION CASE STUDY
A. The Corruption Case of the Auditor–General
The former Auditor–General, Mrs. J., was accused of having misused state funds for abogus seminar for her staff. The investigation by the NACC found that Mrs. J. had approved abudget of Bt 480,000 for holding a seminar in October 2003, but the event did not take place:there was no seminar, no discussion or brainstorming of any kind. The officials from the
Auditor General’s Office instead ended up with an excursion for a kathin ceremony – offering
new robes to monks in Nan Province in northern Thailand. The NACC believed that Mrs. J and
two of the auditors were guilty on malfeasance. After that the NACC submitted a report to theoffice of the Attorney General for the purpose of prosecuting Mrs. J. before the Supreme Courtof Justice’s Criminal Division for Persons Holding Political Positions, but the Attorney Generalconsidered that the report, documents and options furnished by the NACC were insufficient tojustify the institution of prosecution. So that the Attorney–General informed the NACC of theestablishment of a joint working committee for the purpose of collecting full evidence andfurnishing a revised report to the Attorney–General. After that on 4 September 2014 theAttorney–General issued an order to prosecute Mrs J. and her officers. The case is one of theinstances in which the Attorney–General and the NACC arrived at a conclusion to prosecute
because the facts and evidence were clear and enough to prove what was alleged.
1. Bangkok Metropolitan Administration’s Corruption in Purchase of Fire Trucks and Boats.
In 2004, Bhokin, the interior minister at that time, and the Austrian ambassador to Thailand
signed a contract for the purchase of new fire vehicles for the Bangkok Fire and Rescue
Department, which is a part of the Bangkok Metropolitan Administration (BMA). The NACC
accused Bhokin, Pracha, Wattana, Atilak and the Austrian supplier of corruptly arranging themulti–billion–baht deal. Apirak has been accused of negligence for his decision to sign a Letterof Credit for the deal despite knowing that the project was mired with irregularities. The signingof the Letter of Credit is widely blamed for giving the purchase contract full effect andcommitting Thailand to pay the supplier, which was later found to have sold the fire trucks andfireboats to the BMA at highly inflated prices.
However, the Office of the Attorney–General (OAG) had a different opinion from that of the
NACC. So a joint committee of the NACC and the Office of the Attorney–General wasestablished to collect full evidence and to resubmit the report to the Attorney–General. But the
Attorney–General refused to prosecute all of the alleged culprits; only some of them wereprosecuted. The Attorney–General did not think that Wattana, Apirak and Bhokin should be held
responsible for the damage done. The Attorney–General pointed out that at the time of thesigning the contract, Bhokin was not shown documents that were annexed to the deal later,
Wattana by that time was not served as the Deputy Commerce Minister, and Apirak was legallyobliged to open the Letter of Credit. Former Bangkok Governor Samak Sundaravej – not Apirak– signed the purchase contract for the deal

- 128 -

The NACC did not agree with the Attorney–General’s opinion. It assigned its own lawyers
to handle the case and indicted all of the alleged culprits before the Supreme Court’s Criminal
Division for Holders of Political Positions. The court ruled that Pracha, the former Deputy
Interior Minister, and Athilak, the former head of the BMA’s Disaster Prevention and Relief
Department, were guilty on purchasing fire-fighting boats, trucks and equipment, worth 6.686
billion Thb for BMA and acquitted the three other defendants including Bhokin, former Interior
Minister, Wattana, the former Deputy Commerce Minister, and Apirak, the former BMA
governor.
The Lawsuit against the Austrian Supplier Steyr–Daimler–Puch Spezialfahrzeug AG Was
Temporarily Deferred by the Court
This case is an instance of the result of prosecution when there were different opinions about
the evidence and who should be prosecuted between the NACC and the Attorney–General
IV. CONCLUSION
The NACC has all the power in investigating corruption cases in Thailand and may also
initiate the prosecution on its own or appoint an attorney to institute the prosecution on its behalf
when there are opinion differences over whether or not to prosecute. The case with the Attorney–
General demonstrates the difficulties encountered in dealing with corruption.
If there are differences of opinion over the corruption case that is under investigation by the
NACC with the guidance of the Attorney–General, it is a great benefit to conduct the prosecution
with the Attorney–General. Even in corrupt countries, prosecutors generally have acceptable
degrees of experience and skills. Working with these prosecutors could help the NACC to
improve its performance in enforcing the laws against corruption. It would be better for the
NACC and the OAG to work together on corruption cases from the beginning of theinvestigation rather than dividing the investigation and prosecution into two parts.

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COOPERATION BETWEEN THE NACC AND THE CENTRALAUTHORITY (THE ATTORNEY GENERAL) IN A CROSS-BORDERCORRUPTION CASE
Sunanta Jampa-ngoen

I.

*

THE NATIONAL ANTI-CORRUPTION COMMISSION

The National Anti-Corruption Commission (NACC) is the Constitutional Independent
Organization that responds to prevent and suppress corruption that involves State officials. 1
The NACC has the following powers and duties:
1.

To investigate facts, summarize cases and to submit opinions to the Senate forremoval from office.

2.

To investigate facts, summarize cases, and refer cases to the Attorney General forthe purpose of prosecution before the Supreme Court of Justice’s Criminal Division
for Persons Holding Political Positions.

3.

To investigate and determine whether Persons Holding Political Positions and state
officials have become unusually wealthy, in which case his or her assets shall be
forfeited (devolve to the State).

4.

To investigate and decide whether a person holding a political position or a State
official holding a position starting from a high-level executive or government
official holding a position starting from a division director has become unusuallywealthy or has committed an offence of corruption, malfeasance in office ormalfeasance in judicial office, or a related offence, including to take action against aState official or government official holding a lower-level position who has jointly
committed an offence with the person holding such position or with a person holdinga political position, or who has committed an offence in such a manner that the
NACC considers an action appropriate as provided by the NACC.

5.

To verify the accuracy and actual existence of, as well as changes in, assets andliabilities of Persons Holding a Political Position and State officials who summit
accounts showing particulars of assets and liabilities under Chapter 3, Inspection ofAssets and Liabilities.

*

Corruption Suppression Officer, Bureau of Public Sector Corruption Inquiry 2, the Office of National AntiCorruption Commission (ONACC).
1
State official means a person holding a political position, Government official or local official assuming a
position or having permanent salaries, official or person performing duties in a State enterprise or a State agency,
local administrator and member of a local assembly who is not a person holding a political position, official
under the law on local administration and shall include a member of a Board, Commission, Committee or of a
sub-committee, employee of a Government agency, State enterprise or State agency and person or group of
persons exercising or entrusted to exercise the State's administrative power in the performance of a particular act
under the law, whether established under the governmental bureaucratic channel or by a State enterprise or otherState undertaking.

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6.

To monitor and administer the morality and ethics of persons holding political
positions.

7.

To take action relating to foreign affairs and become a center for international
cooperation for the benefit of counter corruption so as to be in conformity with theinternational legal obligations and agreements pertaining to counter corruption.

II. COOPERATION BETWEEN THE NACC AND THE CENTRAL AUTHORITY
In cases of international cooperation, 2 the NACC is the national authority for exchange
of information about corruption and to work together with other agencies or entities in bothThailand and other countries. The cooperation between the NACC and other countries isthrough informal channels, which parallel the formal channels of Mutual Legal Assistance by
the Central Authority. 3
III. A REAL CROSS-BORDER CORRUPTION CASE
The NACC and the Central Authority work together to fight international corruption. An
example of a real case that shows this cooperation is the case of “The Greens” (the bribery on
the annual Bangkok International Film Festival (BIFF)). In this case, the FBI 4 requested theDSI5 to investigate the matter. The DSI, not being authorized to handle the case under Thailaw, handed it over to the NACC (through informal channels) which consequently establisheda dedicated sub-commission. On the other side, the US Government’s requests forinvestigative assistance from Thailand under the Treaty between the Government of theKingdom of Thailand 6 and the Government of the United States of America on Mutual
Assistance in Criminal Matters. The purpose of the US Government’s request was to confirm
the creditability of fact-finding (through formal channels)
To fulfill this role, the NACC informed the Department of Justice that it would send adelegation to observe the trial, which represented a unique opportunity to discuss thepotential for further cooperation with the US side. In addition to cooperation throughinformal channels, the NACC also submitted a formal Mutual Legal Assistance Request
through the Office of the Attorney-General, Thailand’s central authority, asking forassistance in providing the NACC with all documentary evidence referred to and used in thetrial, which had been processed by the US Department of Justice. After indictment, theprosecution of the case led to the conviction of the offenders by the U.S. court.
This success is also significant to Thailand too, because the undercover corruption of ahigh-ranking official was revealed, which led eventually to the resignation of the former
Governor of TAT and the initiative of investigation of the scandal by the NACC. Now thiscase is still in process in the working committee between the representatives of the NACC
and the Attorney General under section 97 of The Organic Act on Counter Corruption
B.E. 2542 (1999).
2

The Organic Act on Counter Corruption B.E. 2542 (1999) amended by (No. 2) B.E. 2554 (2011) Section 19(14).
3
The Attorney General or the person designated by him.
4
The Federal Bureau of Investigation.
5
The Department of Special Investigation.
6
Actually this means the Central Authority (the Attorney General or the person designated by him).

- 131 -CURRENT ISSUES IN THE INVESTIGATION, PROSECUTION AND
ADJUDICATION OF CORRUPTION CASES IN VIETNAM
Hoang Hai Yen *I.

OVERVIEW

Corruption is a phenomenon that affects virtually every country in the world. Corruption not
only causes serious damage to public resources but also reduces people’s trust in the government
and laws. Along with globalization, corruption beyond the country’s borders and anti-corruption
efforts have become urgent and critical missions that require joint efforts of the wholeinternational community.
Vietnam has been promoting the fight against corruption. The guidelines, policies and lawsof Vietnam express a strong determination to prevent and eliminate corruption. In 2005, thegovernment adopted the Anti-Corruption Law, which criminalizes several types of corruption,
establishes asset disclosure requirements for governmental officials, and establishes whistleblower protection. Vietnam ratified the United Nations Convention against Corruption(UNCAC) in 2009, adopting an implementation plan in the following year. The country has
participated in several regional and world forums against corruption, has endorsed the AntiCorruption Action Plan for Asia and the Pacific in July 2004, and has joined the South-East
Asian Parliamentarians against Corruption (SEA-PAC).
However, Vietnam still suffers from a poor ranking in the Corruption Perceptions Index. In
the 2011 Corruption Perceptions Index, which measures the perceived levels of public sector
corruption, Vietnam performed below average with a score of 29 on a 0 (highly corrupt) to 100(highly clean) scale. Vietnam ranked 112 out of 182 assessed countries worldwide and 21st outof 35 countries in the Asia Pacific region. Vietnam has performed poorly in its control ofcorruption, showing little or no improvement over a year. Specifically, the ranking of Vietnam in
the Corruption Perceptions Index has not changed significantly from 2012 to 2013. In 2012,
Vietnam ranked 123rd out of 174 assessed countries worldwide with a score of 31 on a 0 to 100
scale. The 2013 Corruption Perceptions Index sees Vietnam up just seven spots to 116th out of
177 countries and territories with the same score as 2012. In Southeast Asia, it ranks seventh
behind Singapore, Brunei, Malaysia, the Philippines, Thailand, and Indonesia. Transparency
International’s comment that poorer countries have higher corruption rates is accurate in the caseof Vietnam.
The National Anti-Corruption Strategy 2020 by the government highlighted that the systemof policies and laws has not been well synchronized or well aligned; especially there is the lackof a comprehensive long-term strategy or plan for preventing and combating corruption. This*

Lecturer, The Prosecutor’s Assistance, The Supreme People’s Procuracy of Vietnam.

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means that, Vietnam does not have a strong judiciary and that investigation, prosecution andadjudication face many difficulties and obstacles.
II.

ACTUAL CORRUPTION CASES AND PROBLEMS IN VIETNAM

A. Actual Corruption Cases
In Vietnam, corruption happens in many areas, many levels, and many industries withsimilarities as well as differences from corruption of other countries. Corruption is widespread,which means that it happens mainly in the economic sector, but it spreads to other areas which
are considered as standards of morality, such as education, healthcare, social policy
implementation, humanitarian issues and so on. Corruption even occurs in the Police,
Prosecutor’s Office and in Court. Sectors most affected by corruption in Vietnam are public
administration; the judiciary; the police; the health sector; education; environment, natural
resources and extractive industries; and land management.
In the area of management and usage of lands, minerals, and other natural resources, somepeople were abusing their positions and powers while on duty by acting ultra vires. The
complexity, discretion and secrecy involved in the process of issuance of the Land User
Certificate could encourage corrupt behaviour, as investors resort to paying bribes to land
officials in exchange for information privileges and for expediting procedures. For example,
abuse of power while on duty occurs in urban-infrastructure projects. For example, in Bac ThangLong – Van Tri, Ha Noi, damage is estimated at 14 billion VND (about 700,000 USD); anothercase happened in Ben Cat district, Binh Duong province, causing nearly 11 billion VND in
damages. The most infamous case in Vietnam this year is Duong Chi Dung, the Chairman of theBoard of the Vietnam National Shipping Lines (Vinalines Group). He raised the price of marine
materials, adjusted the total price of project investment and then embezzled 1,660 billion USD.
In the field of finance and banking, some bank officials, especially in commercial banks,
collude with outside persons through activities such as lending, guarantees, financial leasing,financial investment, entrusted loans, investment committees and so on to appropriate property.
For instance, Huyen Nhu, Head of Dien Bien Phu Trading Division, Viettinbank – Ho Chi Minh
City branch, had created eight fake seals to set up contracts, vouchers, and pay high interest to
mobilize capital of organizations and individuals. He then appropriated nearly 4,000 billion VND(approximately 200 million USD). In another case, Thu Ha, Director of the northern branch of
Saigon Jewelry Corporation (SJC), abused her position and power while on duty in the amountof 19 billion VND.
In the area of capital construction investment, the majority of construction projects result in
financial losses because of corruption and other violations of the law. Violations occurred inmost stages, from project planning, design, cost estimates to bidding, consulting, supervision,
construction, testing and finalization of the project. In many cases, companies fail to comply
with procedures of capital construction investment; commit fraud and lack of transparency in thebidding; use poor quality materials and equipment or use unreasonable or improper methods andprocesses to reduce costs. For instance, Huynh Ngoc Si, Director of Avenue East-West ProjectManagement, Ho Chi Minh City, took a bribe of 260,000 USD to review the bid and accepted
the bid to the benefit of the person offering the bribe.

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In management, a major problem is the misuse of state funds and assets, and a number ofpeople still use public property for private purposes or convert state property into private
property, as in the case Bui Tien Dung, Unit Highway 18 Project Management (PMU 18), tolend ten expensive cars.
In the area of justice, some judicial officers abuse their positions and powers to accept bribes
in order to remove or mitigate crime in the process of investigation, prosecution, trial andexecution. For example, Ha Cong Tuan, Judge of the People’s Court of Quang Ninh province,
was arrested when accepting 200 million VND in bribes to mitigate a punishment for the
defendant. The latest case, Le Sy Thuan, a judge’s assistant in Thanh Hoa province, wasprosecuted for accepting a bribe of 30 million VND to falsify evidence.
In addition to the above areas, corruption happens quite commonly in the relationshipbetween State agencies, public officials with enterprises and individuals, such as with the traffic
police, in education, in the health sector, with tax officials and so on. According to theperceptions of Vietnamese urban citizens, the police are perceived to be the sector most affectedby corruption, followed by education, public officials, the judiciary and the business sector(Transparency International 2010). Citizens also often report paying between USD 10 to USD 30
as bribes to the traffic police when they violate traffic laws to avoid enforcement. In addition,
nepotism and favouritism are also widespread within the police. The education sector is also
perceived as one of the most corrupt sectors in Vietnam, including corruption in the constructionof schools and in the provision of school books and other teaching supplies; payment of bribesby schools and teachers in exchange for awards recognizing false achievements and credentials;
payment of bribes by students and parents to obtain good marks and enrolment in desired schools
and classes; misappropriation of money intended for student support, among others.
B. Problems in Investigation, Prosecution and Adjudication
1. Difficulties in Identifying Corrupt Acts and Individuals
Corruption is a white-collar crime along with fraud, bribery, insider trading, cybercrime,
copyright infringement, money laundering, identity theft and forgery. However, it does not meanthat every police officer, prosecutor or judge can identify them. Most of corruption cases areoften hidden for a long time before being discovered. Vietnam has been changing from asocialist command economy to a market economy with both private and public ownership of thefactors of production. Offenders often abuse this situation to convert state money into theirprivate money. Furthermore, corruption cases often occur in many fields of governance such as
education, economics, justice, infrastructure construction and so on. It requires investigators,
prosecutors, lawyers, judges and juries to have wide knowledge and skills to handle such cases.
Corruption crimes are committed by people who have expert knowledge and skills in their job
and wide knowledge of the law as well. So they are able to figure out loopholes that help them
perform criminal acts. In Vietnam, we face many difficult problems with investigation ofcorruption crimes because of the lack of experts and experience.
In the case of Huyen Nhu, she is very good at finance, which allowed her to link customers
in many banks, and she built an illegal lending system between them. By opening fake accounts
with fake signatures, she defrauded her clients, and she made over 127 fraudulent documents;- 134 -

deprived her clients of 4,000 billion VND (approximately 200 million USD) in deposit accountsof three companies, four banks and 50 billion VND of more than 30 people. This case was a
typical Ponzi scheme—a fraudulent investment operation where the operator, an individual ororganization, pays returns to its investors from new capital paid to the operators by new investors,
rather than from profit earned by the operator. In Vietnam, people rarely know about this kind of
fraud, and it was very difficult to find evidence among huge numbers of victims.
2.

Difficulties in Investigation, Prosecution and Adjudication of Corruption Cases
Firstly, there are many problems in collecting and protecting evidence in corruption cases
because most of these cases concern powerful leaders in government who abuse their positions
and conceal their crimes. It is a fact that many corruption cases have not been discovered for thisreason. Offenders often use technology to conceal their crimes. After being detected, offenders
hide, falsify or destroy documents, making it difficult to collect evidence. After charging
suspects, prosecutors must continue to handle evidence in such a way that it is admissible andpersuasive in court. It is very important to protect evidence because it impacts whether or notcorruption crimes will result in conviction. Offenders often deny guilt or keep silent in court. If
evidence is not strong enough to incriminate offenders, prosecutors will lose the case.
In the case of Duong Chi Dung, he had good relationships with leaders in the government,
and his brother was a senior policeman in the city in which his company was located. He
committed a crime and escaped easily. He had been engaging in corruption for seven years.
According to the investigation agency, the Ministry of Public Security: “this case caused serious
damages, [was] very complex and affected [the] reputation of the Vietnamese government”.
After being detected, he fled to Cambodia with the help of his brother and a senior officer in the
Ministry of Public Security. The investigation agency arrested him by an international arrest
warrant with the Interpol Notice. The Vietnamese government had lost a lot of time, effort andmoney to solve this case.
Secondly, another difficulty in investigating and prosecuting corruption cases isinternational cooperation because many corruption cases are related to foreigners or internationalorganizations. Vietnamese police and prosecutors have to ask other countries for help to gather
evidence. Much key evidence can only be collected abroad, but we do not have authority toinvestigate overseas so we need help from other countries. However, the results of international
cooperation were not what we had expected, or it took a long time to get the results and so on. It
was easier working with countries that we had entered into treaties with on Mutual Legal
Assistance in Criminal Matters and Extradition than it was with countries that we had not enteredinto treaties with.
Also in the case Duong Chi Dung, there was key evidence that Dung signed an approval
decision of buying a floating dock named 83M from Russia. He bribed intermediary companies
to falsify contracts of sale and payment and then raised the price to twice the normal amount.
This means that he converted state property into his private property. We had to ask for help
from the Internal Affairs Department of Russia to collect this information. After arresting Dungin Cambodia, we had to have him extradited to Vietnam based on the Vietnam-Cambodia Treaty
on Mutual Legal Assistance.

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Thirdly, the use of expert witnesses suffers from many inadequacies because determining
loss of property is the first thing to prove in a corruption case. If we cannot demonstrate damage
to property, then no crime has occurred. Investigators must have financial and accounting
expertise, technical expertise and quality construction expertise and so on. These are importantsources of evidence to prove the crime, and sometimes they are the only source of evidence.
However, agencies which are needed for their expertise are often uncooperative or are afraid of
testifying in open court.
Lastly, corruption cases in Vietnam often involve accomplices, which means that there are atleast two people who committed the crime. In some cases, this number can be larger. Offenders
often have colluded closely using sophisticated tricks. The more people that are involved in thecrime, the more successful the crime is. This problem is also difficult for investigators andprosecutors in Vietnam. In a corruption case, we have to select investigators and prosecutors who
have the experience and knowledge of measures for dealing with this type of crime, but we do
not have enough people who meet those requirements. Moreover, anti–corruption in Vietnam isquite sensitive, and it directly attacks powerful people in the government so that investigatorsand prosecutors refuse to investigate because they do not want the corrupt conspirators toretaliate against them. Additionally, some judicial officers have been bribed, and they continue toabet corruption crimes.
III. SOLUTIONS TO AND NEW IDEAS FOR ANTI–CORRUPTION IN VIETNAM
To improve preventing and combating corruption in Vietnam, we suggest the following
solutions:Firstly, it is necessary to promote education, improve awareness and establish a sense of
responsibility within the Communist Party and among all citizens, the state and the unions. They
should have a comprehensive and deep understanding that corruption is a crime and that it is also
an indicator of degenerating morality and personality, degrading lifestyle, and is the internal
enemy existing inside each person. The employees and civil servants must be trained in thecourses of servant morality before working. Raising social pressure to severe criticism forcorruption and reporting cases of corruption through the media is an example.
Secondly, the Government has to strive to improve its legal systems and promote the lives ofpublic servants. We should make changes, adjustments and amend legal provisions which areinaccurate or unclear in order to minimize the abuse of loopholes. Corruption crimes must be
considered as crimes; we must punish the evil to protect the good. Corruption must be punished;
the higher positions and powers they have, the heavier punishment they will get when they
engage in corruption; there must be no restricted areas, no exceptions.
Thirdly, Vietnam needs to have policies to protect whistleblowers and their families fromdefendants and violators. At present, legal protection for whistleblowers is insufficient;whistleblowers are afraid of retaliation; thus would-be whistleblowers do not dare to denounce
the criminals. Likewise, it is necessary to impose strict penalties against persons responsible for
their behaviour. Vietnam should have a “resignation mechanism” for those who do not deserve- 136 -

to stay in office, make mistakes or are guilty of crimes. The result of Vietnam’s anti-corruption
efforts has been ineffective; however, no one takes responsibility or resigns as a result.
Furthermore, Vietnam should add provisions about forfeiture of corruption proceeds to the
Act on Prevention and Combating Corruption. That would help to verify and trace theappropriated property in order to increase the percentage of recovered property and corruption
proceeds.
Next, Vietnam must have an independent organization created and coordinated by the
National Assembly which is given full rights to fight against corruption. This organization
should include elite, talented, fair and responsible persons. This organization should be put under
the supervision of the People, and officials of this organization can be dismissed by vote of thePeople.
Finally, Vietnam should reinforce international cooperation in identifying and handlingcorruption acts by delegating investigations or requesting foreign agencies to verify, freeze andconfiscate corruption proceeds originated in those foreign countries or sent to those countries
from Vietnam. Vietnam should reinforce cooperation in preventing money laundering activities,
enhance mutual assistance in investigation, and detect and identify money laundering offences.
Fighting against corruption is a difficult, long-term battle that requires strategic measures. It
is hoped that these measures will reverse the increasing trend of corruption in Vietnam, which
will improve Vietnam’s ranking in the Corruption Perceptions Index in the near future.

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EIGHTH REGIONAL SEMINAR ON GOOD GOVERNANCE
LIST OF PARTICIPANTS, SPEAKERS & ORGANIZERS

A. International Participants
Name
Mr. Md Juanda A. Rashid

Title and Organization
Director of Anti-Corruption Bureau and Permanent Secretary at the Prime Minister's Office, in charge of
Law and Welfare
Anti-Corruption Bureau
BruneiMr. Muhammad Zulfadhli bin Haji Abd Hamid Assistant Special Investigator
Investigation Section
Anti-Corruption Bureau
BruneiMr. Shamshuddin Kamaluddin
Senior Legal Officer and Prosecuting Officer
Criminal Justice Division
Attorney General's Chambers
BruneiMr. Chay Chandaravan
Judge
Court of Appeal
Cambodia
Mr. Nuon Norith
Deputy Director
General Department of Operation
Anti-Corrption Unit
Cambodia
Mr. Andre Dedy Nainggolan
Invesitigator
Komisi Pemberantasan KorupsiIndonesia
Mr. Hotma Tambunan
Head of District Attorney Office in Tarutung, North Sumatera
Attorney General Office
Indonesia
Mr. Phongsavanh Phommahaxay
Deputy of Investigation Division
Anti-Corruption Inspection Department
Government Inspection Authority
Laos
Mr. Xaysana Rajvong
Director
Division of Commerce, Family and Juvenile
The Office of the Supreme Public Prosecutor
Laos
Ms. Khin Myo Kyi
Deputy Director
Prosecution Department
Union Attorney General's Office
MyanmarMr. Soe Naung Oo
Director
Investigation and Financial Branch
Bureau of Special Investigation
Ministry of Home Affairs
MyanmarMr. Wee Keng Lock RaymondAssistant Director
Investigation Training Unit
Corrupt Practices Investigation Bureau
Singapore
Ms. Deana Perez
State Prosecutor
National Prosecution Service
Department of Justice
Philippines
Mr. Vic T. Escalante Jr.
Graft Investigation and Prosecution Officer I
Field Investigation Office II
Office of the Ombudsman
Philippines
Mr. Jirawoot Techapun
Senior Expert Public Prosecutor
Department of Inspector General
Office of the Attorney General
Thailand
Ms. Sunanta Jampa-ngoen
Corruption Suppression Officer
Bureau of Public Sector Corruption Inquiry 2
The Office of National Anti-Corruption Commission
ThailandMs. Hoang Hai Yen
Lecturer
Ha Noi Procuratorate University
The Supreme People's Procuracy
Viet Nam- 138 -

B. Speakers
Name
Ms. Chan Shook Man AliceMr. Lee, Jin Soo

Title and Organization

Senior Assistant Director
Public Prosecutions
Prosecutions Division
Department of JusticeHong Kong
Senior Prosecutor
Seoul Central District Prosecutor's Office
Korea

C. Speakers and Organizers:Malaysia
Name
Datuk Hj. Mustafar bin Hj. Ali
Mrs. Thilagavathy S. Thamboo
Mr. Kanakaraja Muthusamy
Ms. Azlina bt Rasdi

Deputy Chief Commissioner (Prevention)
Malaysian Anti-Corruption Commission
Deputy Director
Malaysia Anti-Corruption Academy
Deputy Director of Forensic Division
Malaysian Anti-Corruption Agency
Deputy Public Prosecutor
Attoney General's Chambers

D. Organizers: Japan and UNAFEINameMr. YAMASHITA, Terutoshi
Mr. MORINAGA, Taro
Ms. MIO, Yukako
Mr. IWASHITA, Shinichiro
Mr. MORIYA, Kazuhiko
Mr. Thomas L. Schmid
Mr. KANEKO, Motohisa

Director
UNAFEI
Deputy Direcor
UNAFEI
Professor
UNAFEI
Professor
UNAFEI
Professor
UNAFEI
Linguistic Adviser
UNAFEI
Second Secretary
Embassy of Japan, Kuala Lumpur- 139 -

Title and Organization

Title and Organization

Eighth Regional Seminar on Good Governance for Southeast Asian Countries—Current Issues in the Investigation, Prosecution and Adjudication of Corruption Cases—

SCHEDULE
17-20 November 2014
Hotel Istana, Kuala Lumpur
Hosts:
United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders (UNAFEI),
Malaysian Anti-Corruption Commission (MACC)
Malaysian Anti-Corruption Academy (MACA)
Monday, 17 November
Registration
19.00:
Reception hosted by UNAFEI (at Kampachi Restaurant)
Tuesday, 18 November
09.00-09.45:

Opening Ceremony – Meeting Room (Safir II)
Opening Address by Mr. YAMASHITA, Terutoshi, Director, UNAFEI
Address by Honourable Datuk Hj. Mustafar bin Hj. Ali, Deputy Chief

Commissioner of Prevention, Malaysian Anti-Corruption Commission

09.35-09.45:
09.45-10.15:
10.15-10.25:
10.25-11.00:
11.00-11.15:
11.15-12.00:
12.00-13.15:
13.15-14.00:
14.00-14.40:
14.40-15.00:
15.00-15.45:
15.45-16.40:
16.40-17.00:

Special Address by the Honourable Mr. KODAMA, Yoshinori, Deputy
Chief of Mission, Embassy of Japan
Group Photo Session
Coffee/Tea BreakIntroductory Remarks by Mr. MORINAGA, Taro, Deputy Director,
UNAFEI
Orientation
Presentation by Mr. IWASHITA, Shinichiro, UNAFEI Professor
Coffee/Tea BreakCountry Presentation (Brunei)
Lunch – Cafeteria (Taman Sari)
Country Presentation (Cambodia)
Country Presentation (Indonesia)
Coffee/Tea BreakCountry Presentation (Laos)Country Presentation (Malaysia)
Q and A Session

Wednesday, 19 November
09.20-10.05:
Country Presentation (Myanmar)
10.05-10.45:
Country Presentation (Philippines)- 140 -

10.45-11.00:
11.00-12.00:

16.50-17.30:

Coffee/Tea Break
Presentation by Visiting Expert (Mr. Lee, Jin Soo, Senior Prosecutor,
Seoul Central District Prosecutor’s Office, Korea)
Lunch – Cafeteria (Taman Sari)
Country Presentation (Singapore)Country Presentation (Thailand)
Coffee/Tea BreakCountry Presentation (Vietnam)
Presentation by Visiting Expert (Ms. Chan Shook Man, Senior Assistant
Director, Public Prosecutions, Prosecutions Division, Department ofJustice, Hong Kong Special Administrative Region)
Q and A Session

19.00-

Reception hosted by MACC

12.00-13.15:
13.15-14.00:
14.00-14.40:
14.40-15.00:
15.00-15.45:
15.45-16.50:

Thursday, 20 November
09.20-10.20:
Chairman’s Summary Statement
10.20-11.20:
Discussion
11.20-11.40:
Coffee/Tea Break
11.40-12.00:
Closing Ceremony
Closing Address by the Honourable Mrs. Thilagavathy S. Thamboo,
Deputy Director, MACA
Address by Mr. YAMASHITA, Terutoshi, Director, UNAFEI
Presentation of Certificates
12.00-13.30:
Farewell Lunch – Cafeteria (Taman Sari)
PM
Side event
End of the Seminar- 141 -

APPENDIX___________________________________________________________
PHOTOGRAPHS
Commemorative PhotographOpening Address by Director Yamashita, UNAFEI
Opening Address by Deputy Chief Commissioner (Prevention) Datuk Hj.
Mustafar bin Hj. Ali, MACA
Keynote Address by Deputy Director Morinaga, UNAFEI
Presentation during the Seminar
Presentation of the Chair’s Summary by Deputy Director Morinaga___________________________________________________________

Commemorative Photograph

UNAFEI- 142 -

Opening Address by Director Yamashita, UNAFEI

Opening Address by Deputy Chief Commissioner (Prevention) Datuk Hj. Mastafar bin Hj. Ali, MACA

- 143 -

Keynote Address by Deputy Director Morinaga, UNAFEI

Presentation during the Seminar- 144 -

Presentation of Chair's Summary by Deputy Director Morinaga- 145 -