Friday, 10 May 2013

Bina Puri admitted its intention to secure contracts by paying bribes (2)

It seems that the Malaysian mainstream news providers have not yet picked up on the story, but in Singapore they did.

From the Singapore Law Watch website, source Straits Times, written by K.C. Vijayan (bold emphasis is mine):

Firm fails to collect $4.6m from client

A Singapore firm's court bid to collect a $4.6 million commission from a client failed after the judge found the deal had been tainted by intentions of graft.

The High Court found that Singapore-based ANC Holdings and Kuala Lumpur-based Bina Puri Holdings had intended to pay bribes to third parties in Saudi Arabia in order to secure two construction contracts worth $93 million.

The intention to bribe, which appeared to have been factored into the commission amount to be paid to ANC, effectively nullified the contract for ANC to help Bina secure the Saudi projects in return for the commission.

The judge made it clear the court was duty-bound to take into account evidence of illegal action and declined to uphold the contract on such grounds.

Judicial Commissioner Vinodh Coomaraswamy, in his judgment grounds released yesterday, said there was no finding that bribes were actually paid to secure the projects. "I cannot and do not make any findings as to whether bribery actually took place. I am in no position to do so," he said.

However, "it is a serious thing to admit an intention to secure contracts by paying bribes. It is especially serious - legally and reputationally - for a public listed company to do so", he added.

Bina Puri Holdings is listed on the Kuala Lumpur bourse and deals in construction and property development, among other things. ANC had contracted to help its subsidiary in Saudi Arabia secure the housing projects, which Bina Puri Saudi won in January 2011. But the Saudi housing authorities cancelled the contracts three months later, after Bina Puri Saudi failed to pay performance guarantee deposits worth 5 per cent of the projects' value.

ANC then sued Bina for its 5 per cent commission on the grounds that it had effectively secured the job for the Malaysian company. ANC's lawyer P. Ashokan argued it had alerted Bina to the pro-jects in Saudi Arabia and advised Bina's Saudi subsidiary on how to price its bids, making ANC the effective cause through which Bina got the contracts.

But Bina's lawyer Chia Foon Yeow countered that the firm had known of the projects independently and the successful pricing had been worked out with a Saudi contractor without ANC's help.

Judicial Commissioner Vinodh agreed that the evidence did not favour ANC's claim of having provided material assistance. But it was the allegations of bribery that finally unpicked the case.

The claims were triggered at first by Mr Chia's examination of an ANC witness which Mr Ashokan objected to. But in his own questioning of Bina's witnesses, it emerged, among other things, that some of the commission was meant for use as bribe payments with Bina's knowledge.

ANC's witnesses claimed the payouts to persons in Saudi Arabia were for market intelligence on relevant issues such as pricing strategy.

The judge discounted the claims, noting that 60 per cent of the $4.6 million commission was to go to Saudi third parties. He noted the commission in the agreement was 2.5 times the 2 per cent sum reasonably expected for such tender projects. "And this serves to reinforce my belief that the common intention from the outset was for (ANC) to use bribery to ensure Bina Puri Saudi secured the projects."

The judge dismissed the case and ordered both parties to bear their own costs.

Bina Puri did make today an announcement to Bursa Malaysia. Not about the High Court findings in Singapore nor about the intention to bribe which it admitted, but about a huge (30%) private placement which will very much dilute its existing shareholders. And that while a previous private placement had just taken place.

Bina Puri's accounts over 2012 were not qualified, but there was an "Emphasis of Matter" regarding the amount of RM 17 million owing by an associate which has been long outstanding, which is a clear red flag.

Bina Puri is allegedly linked to Syed Mokhtar. However, the following quote is from his biography:

He also answered the issue of the shareholding structure of his companies that could not be traced to him, acknowledging “it is an old habit that has to change.”

Where is Ze Moola has written several articles about Bina Puri.

1 comment:

  1. Jentera Jati Sdn Bhd, which is controlled by Tan Sri Syed Mokhtar Al-Bukhary, is the single largest shareholder