Last Thursday, the Court of Appeal delivered its decision on the Fawziah Holdings Sdn Bhd vs Metramac Corporation Sdn Bhd. The Court of Appeal gave its decision wholly in favour of Fawziah Holdings over all the company's claims. Metramac's counter appeal and claims were dismissed. This decision is dramatically different from that of an earlier High Court decision.
I am told that Metramac Corporation is now taking steps to appeal on the whole of the said decision of the Court of Appeal including pursuing their cross claims which were dismissed. I have not had any interest in Metramac since Aug 9, 2001.
In the course of what seemed to be a written judgment of the Court of Appeal (parties and counsels were not provided with the draft written judgment; apparently only the members of the press were privileged to inspect them on that day; the final written judgment was only to be ready yesterday, Jan 16). Justice Dato' Gopal Sri Ram made certain damning remarks concerning me and (my previous business partner, Dato' Anuar Othman) and Tun Daim Zainuddin which calls (speaking personally for myself) for my response. I have taken this unusual step of issuing this statement for the following reasons:
Generally speaking, parties or witnesses in a litigation do not make rebuttal statements to any remarks or findings of any court. But there are circumstances where statements from parties or witnesses post-judgment are necessary to either correct obvious errors (of facts or law) in a judgment that seriously affects their credibility and reputation or of others not parties to the litigation. This is especially true in situations where the matters are of public interest and issues (which are already in the public domain).
Further, the media has taken it upon themselves to make various comments on the findings of the Court of Appeal. The Malaysian Chapter of Transparency International, too, had made certain conclusions without further investigation. All these statements in the media and elsewhere are made (despite) the fact that on the day of the judgment, counsel for Metramac had informed the Court of Appeal that it had "strict instructions to appeal" against the whole decision.
I have kept silent thus far as the matter is pending appeal. But the nature of the judgment and the comments from the media have made it necessary for me to react by making this statement.
Secondly, I have been judged and condemned by a court of law without a hearing accorded to me. The Court of Appeal went so far as to conclude that my former partner and I had misappropriated the RM32.5 million from Metramac, an offence of criminal breach of trust of an "aggravated" nature, assisted by Tun Daim Zainuddin, the former minister of finance. All these were said about us without any opportunity accorded to us to be heard before we were condemned. In a leading case in England (favourably adopted by our courts) the learned judge said:
"The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon the make his defence. 'Adam,' (says God), 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?' And the same question was put to Eve also."
And in our Holy Book - the Quran, it is said: "And their Lord called onto them, 'Did I not forbid you that tree and tell you that Satan was an avowed enemy to you'. They said: 'Our Lord we have wronged our own souls'."
I am deprived of this basic natural justice and human rights which had been recognised since biblical times. I have large business interests locally and overseas. The erroneous statement in the judgment had damaged me, probably in an irreparable way.
On the issue of RM32.5 million
Neither I nor anybody else misappropriated this money. The letter ( left ) from the chief secretary of the Ministry of Works dated Feb 13, 1992 addressed to Metramac (referred to by Yang Amat Arif Dato' Sri Ram) clearly said in its original Bahasa Malaysia version (for one to have better appreciation of the intended meaning):
'Sukacita dimaklumkan bahawa kerajaan telah mempertimbangkan permohonan Metro Juara Sdn Bhd untuk mendapatkan bayaran saham premium untuk membayar Syarikat itu sebanyak RM32.5 juta kerana amaun tersebut telah tidak diambil kira oleh kerajaan di dalam menentukan 'project return' kepada Metramac itu di bawah konsesi tersebut. Pembayaran ini adalah dibuat untuknya melalui Syarikat Tuan.' (emphasis added).
And so in the audited accounts of Metramac ending March 31, 1992 a significant account note states:
'18. The Government of Malaysia has agreed to pay an amount of RM32.5 million to the Concession Company via their letter dated 13th February 1992 on the condition that the Concession Company shall pay the premium to the shareholders of the company.'
As at March 31,1992, Metro Juara was the company 100% owned by me and Dato' Anuar Othman and was the shareholder of Metramac. And Metramac was a 100% subsidiary of Metro Juara. Clearly, the ministry paid this money to Metro Juara (to us) through Metramac. Metramac was just the conduit and the trustee for us. The money was ours personally as we extended this sum earlier from our own pockets. By no stretch of the imagination was this money belonging to Metramac. So where is the misappropriation, criminal or otherwise? This was what counsel of Metramac explained in a gist to the court. Why was the explanation stupefying to the court?
It is also important to note that on Feb 13, 1992, Tun Daim was no longer the minister of finance. He resigned form the post on March 14, 1991. Tun Daim was not involved in the decision of the Ministry of Works to reimburse this amount to us. This fact alone negates all the unnecessary perjorative remarks of the learned judge. The fact of the date of Tun Daim's resignation is a fact to be "judicially noticed" by the learned judge if he was entering into that discussion.
Tun Daim's patronage? Conspiracy to oppress Dato' Fawziah?
My company was ordered by the government to take over Metramac as the issue of the toll collection at Cheras had become so political and tense. There was in fact a near riot. The original toll rate was no longer workable and toll collection was suspended on Sept 12, 1990.
The original concession agreement was virtually frustrated by the said events. Our company (Metro Juara) was asked to buy Metramac shares at market value plus a "premium" on them for an additional amount of RM32.5 million. My personal opinion then was that the RM32.5 million was not payable to the previous shareholders. But the government asked us to pay that amount and we could only manage a silent protest.
This was the same RM32.5 million that the ministry decided to reimburse me and Dato' Anuar Otheman in Metro Juara through Metramac as stated in the letter of Feb 13, 1992.
For the information of the public, we were reluctant when we were told by the government to take over a company that was in a serious mess and was no longer bankable. But the projects were public interest projects and there was no option for the government but to move forward. We took over the project (with other additional works) and the whole revised projects were repackaged to achieve a bankable internal rate of return. We were probably chosen because by then our track record with the North-South Highway was proven. I know for a fact that the decision for us to take over Metramac was made by the cabinet itself after due deliberation. The new Revised Concession Agreement was entered into between Metramac and Datuk Bandar Kuala Lumpur but the Ministry of Works and the Federal Treasury monitored every step of the progress in the negotiation.
The findings by the learned judge that Tun Daim conspired with us to rob Dato' Fawziah of the project and that we were assisted by Tun Daim in misappropriating the RM32.5 million are all unfounded and has no factual basis for the following additional glaring reasons which were not considered by the judge:
(a) Toll collection at Cheras/Pudu started in September 1990 for only 2 weeks before it was suspended on Sept 12,1990 (caused by the public uproar).
(b) On March 14, 1991, Tun Daim Zainuddin left the Ministry of Finance having resigned from the post of minister of finance.
(c) Toll collection recommenced on a reduced fee structure on Sept 15, 1991, a year after suspension.
(d) On Feb 13,1992, the New Revised Concession Agreement embodying enlarged works and concessions were signed between Metramac (with new shareholders) and the Datuk Bandar Kuala Lumpur. On that date, the minister of finance was Dato' Seri Anwar Ibrahim and the minister of works was Dato' Seri Leo Moggie. Tun Daim was not involved at all. The new Revised Concession Agreement was negotiated professionally between the government and Metramac. A fair and balanced agreement was achieved.
(e) On March 31, 1992, Metramac signed the Subsidy Account Agreement with the government. Again Tun Daim was not the minister in charge of finance.
It is critical to bear in mind that this is not a compensation to Metramac as erroneously stated by the judge. It was a scheme of subsidy to complement and to enable the expanded additional works to be financially workable to both the government and Metramac.
To suggest that a few hundred million were simply paid to Metramac without justification is to discredit the government and its officers (including those from the Attorney-General's Chambers) who negotiated the agreement.
All payment received under the New Revised Concession Agreement and the Account Subsidy Agreement were retained in Metramac and disbursed in accordance with the Agreement. None of these funds received were taken by me or Dato' Anuar Othman or Metro Juara. In total, these payments amounted to RM466.7 million and are accounted for under the following headings:
The above figure does not include the RM32.5 million which was meant for Metro Juara shareholders and not for Metramac as stated earlier.
The subsidy was not a lump-sum payment. It was disbursed commensurate with the proportional progress of the new additional works being completed. This fact negates any idea of compensation.
In this Subsidy Account Agreement a special account was created by the government where government representatives (from the Federal Treasury) were there as the co-signatory to all the bank accounts. Does this sound like daylight robbery as is suggested in the judgment?
Editor's note: The above was faxed to malaysiakini late yesterday. While the fax was signed by Halim Saad, it did not provide a contact number for us to contact him to verify the veracity of its contents.