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.

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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.

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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.

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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

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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.

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