This article first appeared in The Edge Malaysia Weekly on September 10, 2018 - September 16, 2018

PROTASCO Bhd has asked the Attorney-General’s Chambers (AGC) to consider reopening criminal breach of trust and other cases against its former director Datuk Tey Por Yee and his associate, Datuk Ooi Kock Aun.

In a letter addressed to Attorney-General Tommy Thomas, dated July 2, sighted by The Edge, Protasco, represented by its chairman Tan Sri Dr Hadenan Jalil, had requested the AG to reopen the cases, which had been withdrawn by the prosecution. Tey and Ooi were granted a discharge not amounting to an acquittal (DNAA)  by the Sessions Court in Kajang in September 2017.

Tey was charged under Section 420 and 181 of the Penal Code for cheating and making false statement to a Commissioner for Oaths on Jan 15, 2016. Ooi was charged under the same section on Feb 3, 2016.

Ooi was also charged under Section 409 of the Penal Code for criminal breach of trust on the same date. Subsequently, both were charged under Section 131 (1), read together with Section 131 (8) of the Companies Act 1965, on July 11, 2016, for failing to disclose their interest in a contract to purchase a stake in an Indonesian oil and gas company.

Tey was made a director after emerging as the second largest shareholder of Protasco in late 2012.  He and Ooi acquired a 27% stake in the construction, maintenance and property development company through Kingdom Seekers Ventures Sdn Bhd.

Their entry was initially welcomed by Protasco’s largest shareholder and group managing director Datuk Seri Chong Ket Pen as the duo had come in with a plan to diversify into the oil and gas sector.

On Dec 28, 2012, Protasco announced it had entered into a sale and purchase agreement (SPA) with PT Anglo Slavic Utama (PT ASU) to acquire a 76% equity interest in PT Anglo Slavic Indonesia (PT ASI) for US$55 million. PT ASI is an investment holding company with oil and gas assets in Indonesia’s Aceh province through its indirect 70% stake in PT Hase Bumou Aceh (PT Haseba).

At that time, PT Haseba had a production management partnership agreement (PMPA) with Indonesia’s national oil company Pertamina to develop and produce oil and gas in the Kuala Simpang Timur field in Aceh.  After due diligence was done on PT ASI, the deal was revised, with a new SPA signed in early 2014. The new deal entailed Protasco acquiring a 63% stake in PT ASI for US$22 million.

PT ASU provided collateral in the form of 297.14 million shares in PT Inovisi Infracom tbk, a company listed on the Indonesia Stock Exchange. Ooi was the chief financial officer of Inovisi, which is also in the oil and gas sector.

The new SPA also required PT ASU to secure a 10-year PMPA extension from Pertamina.

Pertamina, however, only granted a three-year extension. Unable to fulfil the conditions set in the SPA by July 28, 2014, the agreement lapsed. Protasco had paid the full US$22 million consideration plus an additional advance of US$5 million to PT ASU.

Following the failed venture, Protasco sued Tey and Ooi for US$27 million (RM88.41 million then) on Sept 22, 2014, for breach of fiduciary and statutory duties.

Protasco claimed that they had failed to disclose their interest in the transaction and conspired to defraud the company and undertake secret profit-making, according to filings with Bursa Malaysia.

It is worth noting that Tey has since sold off his stake in Protasco. He ceased to be a substantial shareholder in Protasco on March 28, 2016.

After a lengthy process, the case was scheduled to go to trial in the Kajang Criminal Sessions Court on Sept 28, 2017.

However, two days before the case was to be heard, the prosecution applied to the court to withdraw all charges against both Tey and Ooi. The court granted both of them a DNAA.

In the letter to the AGC sighted by The Edge, Protasco states that Tey and Ooi had earlier written letters of representation, dated Nov 2, 2016, and Nov 15, 2016, to the AGC for the charges against them to be withdrawn.

“As far as we know, the said representations were not accepted by the Attorney-General’s Chambers and the above cases were scheduled for trial on Sept 28, 2017. This must mean that the prosecution must have had strong evidence against both accused persons,” the letter reads.

After the case was withdrawn by the prosecutor, and Tey and Ooi were granted a DNAA by the Sessions Court, Protasco wrote a letter to the AGC on Oct 9, 2017, appealing to the AG to consider reopening the charges. However, the AGC decided to maintain its previous decision.

With a new AG in office, will the AGC  re-examine the available evidence and reopen the cases against both Tey and Ooi?

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