This article first appeared in The Edge Malaysia Weekly on July 16, 2018 - July 22, 2018
THE massive 1 MDB financial fraud is a web of complex transactions that took place over a six-year period from 2009 to 2015. According to the Swiss attorney-general who visited Malaysia last week, US$7.0 billion of 1MDB money flowed through the global banking system. The US Department of Justice estimates that at least US$4.5 billion was stolen. To understand how Low Taek Jho (Jho Low) worked with crooked bankers to defraud Malaysians, we reproduce the Statement of Facts presented by Singapore prosecutors against Yeo Jiawei of BSI Bank when he was charged and jailed last year.
STATEMENT OF FACTS
I. INTRODUCTION
1. The accused is Yeo Jiawei, a 34-year-old male Singaporean.
2. From 2009 to mid-2014, the accused was a wealth planner in the Wealth Management Services department of BSI Bank Limited, Singapore (“BSI Singapore”). His areas of expertise included financial structures and trust services, and he last held the position of Director. His superior at BSI Singapore was Kevin Michael Swampillai (“Kevin Swampillai”), the Head of Wealth Management Services.
3. During and after the period of his employment with BSI Singapore, the accused was involved in transactions connected with 1Malaysia Development Berhad (“1MDB”), a Malaysian sovereign wealth fund, and Brazen Sky Limited (“Brazen Sky”), a wholly-owned subsidiary of 1MDB. The accused was also involved in transactions connected with SRC International Sdn Bhd (“SRC”), a company previously owned by 1MDB.
4. After the accused left BSI Singapore in mid-2014, he worked for Low Taek Jho (“Jho Low”), who was generally regarded within BSI Singapore as one of the bank’s most important clients. Jho Low was also regarded by the accused as being the “key advisor” for 1MDB and SRC, and the accused and other employees of BSI Singapore also knew that Jho Low would give directions and inputs on transactions involving 1MDB and SRC, and that he exerted substantial influence on 1MDB and SRC. After the accused left BSI Singapore, he became part of Jho Low’s circle of associates, which included Tan Kim Loong (“Eric Tan”) and Mohamed Ahmed Badawy Al-Husseiny (“Al-Husseiny”).
II. OFFENCES CONNECTED WITH BRAZEN SKY
A. Background to the Brazen Sky Transactions
5. Investigations reveal that in September 2009, 1MDB entered into a joint venture with PetroSaudi International Limited (“PetroSaudi”). Jho Low was closely involved in the setting up of the joint venture. Under the joint venture agreement, 1MDB was to provide the joint venture with capital of US$1 billion in return for one billion shares in the joint venture vehicle, 1MDB PetroSaudi Limited (“1MDB PetroSaudi”) — equivalent to a 40 percent equity interest in the joint venture.
6. The transfer of US$1 billion by 1MDB to the joint venture was to be made via a foreign exchange transaction. On 30 September 2009, Deutsche Bank (Malaysia) Berhad (“Deutsche Bank Malaysia”) was instructed by way of a letter which was signed by Tang Keng Chee, the then Executive Director of 1MDB, to execute the transaction. However, the instruction was for Deutsche Bank Malaysia to transfer only US$300 million to the joint venture’s JPMorgan (Suisse) SA bank account. The remaining US$700 million was to be transferred to a bank account belonging to Good Star Limited (“Good Star”), this being RBS Coutts Bank AG (Zurich) (“Coutts”) bank account no 11116073 (“the Good Star Account”). On 30 September 2009, in a telephone conversation with Deutsche Bank Malaysia, Tang Keng Chee confirmed that the US$700 million was to be transferred to PetroSaudi as repayment of an advance owed by 1MDB PetroSaudi. Subsequently on 2 October 2009, Sharol Halmi, the then CEO of 1MDB, represented to Deutsche Bank Malaysia that “Good Star is owned 100% by PetroSaudi International Limited”.
7. Investigations confirm that the Good Star Account was opened sometime in June 2009, and Jho Low was recorded as its beneficial owner throughout from the date of account opening to its closure in September 2013. Investigations reveal that, in order to explain the inflow of US$700 million to Coutts compliance staff, Jho Low initially provided Coutts with an investment management agreement as evidence that Good Star was to invest the moneys on 1MDB’s behalf. He later provided Coutts with a loan agreement, which characterised the moneys as a loan from 1MDB to Good Star. The agreements provided to Coutts are inconsistent with each other, and both are also inconsistent with the explanation for the transaction given by Tang Keng Chee to Deutsche Bank Malaysia on 30 September 2009.
8. Between May and October 2011, Good Star received a further US$330 million from 1MDB, spread over four transfers. One of the transfers was effected by Deutsche Bank Malaysia, ostensibly pursuant to a Murabaha financing agreement dated 14 June 2010 entered into between 1MDB and the 1MDB-PetroSaudi joint venture. Investigations, on the other hand, reveal that Jho Low provided a sales and purchase agreement to Coutts claiming that the US$330 million were proceeds from the sale of certain assets by Good Star to 1MDB. The said agreement provided to Coutts is again inconsistent with the explanation given to Deutsche Bank Malaysia.
9. In total, US$1.03 billion that 1MDB purported to invest in the joint venture had actually been diverted to the Good Star Account. In June 2012, 1MDB exchanged its entire “investment” in the 1MDB-PetroSaudi joint venture for a 49 percent equity interest in PetroSaudi’s wholly-owned subsidiary PetroSaudi Oil Services Limited (“PSOSL”), a deal which was booked at US$2.22 billion. The remaining 51 percent interest was subject to acquisition by 1MDB for a token sum vide a call option agreement. The transactions were structured such that 1MDB’s interest in PSOSL and the call option would be held by its wholly-owned subsidiary, 1MDB International Holdings Limited (“1MDB IH”). (1MDB IH was later, on 28 August 2013, renamed to BGA Investment Limited (“BGA”).)
10. Investigations reveal that the only asset of 1MDB IH was the 49 percent interest in PSOSL and the call option to purchase the remaining 51 percent interest. Investigations also reveal that main assets of PSOSL were two ageing drill ships, the PetroSaudi Saturn and PetroSaudi Discoverer.
B. The Charge DAC-917295-2016
1. Project No Retail (Restructuring of 1MDB’s Interest in PSOSL)
11. In mid-2012, BSI Singapore received instructions to assist 1MDB to “restructure” its interest in PSOSL under a fiduciary fund structure. The value of its interest post-restructuring was to be marked as US$2.318 billion. Investigations revealed that Jho Low was closely involved in this transaction.
12. For instance, the accused sent an email to Kevin Swampillai on 13 June 2012 at 4.54pm in relation to the “restructuring”, stating: “Also the point on is 1MDB all aligned to JL’s plan.” In another email sent by the accused to his BSI Singapore colleagues on 18 June 2012 at 7.56pm, the accused attached an outline plan for the “restructuring” of PSOSL for “discussion/review with JL”. The accused, in both emails, used “JL” to refer to Jho Low, and he knew that the proposed plan would be formally presented to 1MDB only after Jho Low was satisfied with it.
13. In his role as a wealth planner with BSI Singapore, the accused had significant involvement in the “restructuring” of 1MDB’s interest in PSOSL, which was also called “Project No Retail”. For instance, the accused prepared the initial proposals for Jho Low’s consideration, and also identified the fund manager for the “restructuring” with the assistance of an associate, Goh Sze Wei Samuel (“Samuel Goh”). The fund manager was Bridge Partners Investment Management Limited (“Bridge Partners”), a Hong Kong-based company.
14. Investigations reveal that the “restructuring” of 1MDB’s interest in PSOSL was completed sometime in October 2012. The transactions that were executed included the following: Bridge Partners International Investment Limited (“BPII”), a new Bridge Partners affiliate which had been incorporated on 9 August 2012 specifically for the “restructuring”, issued promissory notes to 1MDB for a sum of US$2.318 billion in exchange for the latter’s interest in 1MDB IH. BPII, which now owned 1MDB IH, was a company that was wholly-owned by another new Bridge Partners affiliate, Bridge Global Absolute Return Fund SPC (“Bridge Fund”), which itself had been incorporated on 8 August 2012 specifically for the “restructuring”. 1MDB’s promissory notes for US$2.318 billion were then used by Brazen Sky, which had also been set up specifically for the “restructuring”, to subscribe into six segregated portfolios under Bridge Fund, with the resulting fund units received (“the Bridge Fund units”) being transferred to BSI Singapore for custody. The value of the units was then booked at the notional purchase price of US$2.318 billion.
15. The effect of the “restructuring” was that 1MDB, through Brazen Sky, continued to hold the same interest in PSOSL, albeit in the form of an “investment” in Bridge Fund units, with various Bridge Partners-affiliated entities interposed between Brazen Sky and PSOSL.
16. On record, Bridge Partners Investment Management (Cayman) Limited (“BPIML”), another new Bridge Partners affiliate which was incorporated on 2 August 2012 specifically for the “restructuring”, was appointed to manage Brazen Sky’s “investment”. Under the terms agreed between BPIML and Brazen Sky, BPIML would charge Brazen Sky annual management fees amounting to 0.7 percent of the total assets under BPIML’s management per annum. In conjunction with this agreement, BSI Singapore and BPIML executed a referral agreement dated 14 September 2012 (“the BSI-BPIML Referral Agreement”) under which the annual management fees paid to BPIML were split between the two entities, with BSI Singapore to receive a sum amounting to 0.53 percent of the total assets under management per annum as referral fees and BPIML retaining a sum amounting to 0.17 percent of the total assets under management per annum.
17. Based on the book value of US$2.318 billion, which was also taken to be the value of the total assets under management by BPIML, pursuant to the BSI-BPIML Referral Agreement, the split of the annual management fees between BSI Singapore and BPIML was approximately US$12.285 million for BSI Singapore and US$3.94 million for BPIML per annum. BSI Singapore also earned additional fees, amounting to a total of 0.3 percent of the total assets under management per annum (approximately US$6.95 million per annum), as the fees for custodisation of the Bridge Fund units.
2. The Scheme to Obtain Secret Profits from Project No Retail
18. Unbeknownst to BSI Singapore, prior to the implementation of Project No Retail, the accused and Kevin Swampillai had arranged to secretly obtain a cut of the management fees paid by Brazen Sky for themselves, through the use of corporate intermediaries and referral fee arrangements.
19. The accused and Kevin Swampillai knew, from past transactions that they were involved in, that the fiduciary fund business was extremely lucrative due to the large annual fees that were paid by clients. They devised a plan to secretly profit from transactions involving fiduciary funds, in which the fund would be negotiated with to receive a smaller share of the fees, thereby creating a margin of “profit” that they could secretly take for themselves. They decided to implement this plan for Project No Retail. Pursuant to the plan, Samuel Goh was instructed by the accused to negotiate with Bridge Partners for BPIML’s share of the management fees to be capped at US$500,000 per annum, and for the balance amount per annum to be paid as a form of referral fees to connected persons in return for the said persons recommending Bridge Partners for the deal. In reality, most of these referral fees would eventually be paid to the accused and Kevin Swampillai.
20. In order to conceal the fact that the accused and Kevin Swampillai were receiving secret profits, the referral fees for the connected persons would be paid first to Bridge Global Managers Inc (“BGM”), of which Samuel Goh was a director, shareholder, and bank account signatory. The fees would then flow to two entities, namely, Bridgerock Investment Inc (“Bridgerock”) and GTB Investment Ltd (“GTB”). Bridgerock was beneficially owned by the accused. GTB was beneficially owned by Kevin Swampillai. Both companies held bank accounts with Malayan Banking Berhad (“Maybank”) in Malaysia. The bank accounts of these companies were specifically set up in the second half of 2012 by the accused and Kevin Swampillai to receive secret profits.
21. In order to formalise this arrangement, the accused prepared a series of back-to-back agreements. Under the first of these agreements, BPIML was to pay BGM, on an annual basis, the amount the former would receive under the BSI-BPIML Referral Agreement (ie, 0.17 percent of the total assets under its management) less US$500,000. Thus, the final figure for BPIML’s annual management fee was US$500,000. Under the other agreements, BGM was to pay Bridgerock and GTB each an annual fee amounting to 0.085 percent of the total assets under BPIML’s management less US$325,000. In other words, BGM would retain US$150,000 annually (US$650,000 less the US$500,000 payable to BPIML) and transfer the remaining moneys to Bridgerock and GTB in equal shares.
22. Based on the agreements, the accused would receive, through Bridgerock, a sum of US$1,645,300 per annum that would be traceable to the annual management fees paid by Brazen Sky. BSI Singapore was unaware of the secret profits arrangement between the accused and Kevin Swampillai to clandestinely obtain a share of the management fees arising from Project No Retail. Had BSI Singapore known of the plan, or that its employees were receiving a cut of the management fees paid to BPIML by Brazen Sky, it would not have entered into the BSI-BPIML Referral Agreement with BPIML on the terms proposed and would have negotiated a more favourable split of the management fees.
23. The accused knew that he was required, by the terms of his employment contract with BSI Singapore dated 23 October 2009, to disclose the secret profits arrangement to BSI Singapore management. He knew that BSI Singapore would have refused to approve the secret profits arrangement, as he was prohibited, based on the terms of his employment contract, from receiving or obtaining “directly or indirectly any … commission in respect of any business transacted (whether or not by you [ie, the accused]) by or on behalf of the Bank or any Affiliate”. Furthermore, he was precluded from having “any interest in any form of work or business which conflicts with the interests of the Bank”. The secret profits arrangement fell squarely within such proscribed conduct.
24. By failing to inform BSI Singapore of the secret profits arrangement, the accused had dishonestly concealed from BSI Singapore the fact that he would receive through Bridgerock, an entity beneficially owned by him, a sum of US$1,645,300 per annum, which was a portion of the annual management fee paid by Brazen Sky to BPIML. By this manner of deception, the accused dishonestly induced BSI Singapore to enter into the BSI-BPIML Referral Agreement, which is a valuable security as defined under Section 30 of the Penal Code (Chapter 224), being a document which creates a legal right. Thus, the accused had committed an offence punishable under Section 420 of the Penal Code (Chapter 224).
3. The Laundering of Secret Profits from Project No Retail
25. Pursuant to the BSI-BPIML Referral Agreement, BPIML received from Brazen Sky a sum of US$3,940,600 in November 2012 and US$3,940,600 again in September 2013. Thereafter, BPIML paid BGM, and BGM disbursed moneys to Bridgerock and GTB. In relation to Bridgerock, BGM made payments of US$1,795,300 on 9 November 2012 and US$1,795,300 on 18 September 2013 to Bridgerock’s Maybank account.
26. On 14 November 2012, shortly after the first payment was received in Bridgerock’s Maybank account, the accused transferred a sum of US$500,000 from Bridgerock’s Maybank account to an Oversea-Chinese Banking Corporation Limited bank account no 669416737001, in the name of Yishun Aquarium (“the Yishun Aquarium Account”), a Singapore partnership beneficially owned by the accused’s parents.
27. By transferring the sum of US$500,000 from Bridgerock’s Maybank account to the Yishun Aquarium Account, which represented in part his benefits from cheating, which were obtained from the secret profits scheme for Project No Retail, the accused had transferred property which in part represented his benefits from criminal conduct.
28. The accused had thereby committed an offence under Section 47(1)(b) punishable under Section 47(6)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A).
C. The Charge DAC-919427-2016
1. Project Mexican (Further Restructuring of Brazen Sky’s “Investment”)
29. Following the execution of Project No Retail, Jho Low continued to be kept in the loop on matters relating to Brazen Sky. For instance, an email sent on 18 June 2013 by Kevin Swampillai to Raj Sriram, then the Deputy CEO of BSI Singapore, showed that meetings had been scheduled with Jho Low in relation to the “2.318 bil investment”, which was an oblique reference to Brazen Sky’s Bridge Fund units.
30. Sometime in mid-2013, BSI Singapore received further instructions to assist in a series of transactions relating to the Bridge Fund units. These transactions included declarations of “dividends” and” capital distribution” by Bridge Fund. BSI Singapore’s Wealth Management Services department was again tasked with assisting 1MDB with the transactions, with the accused again playing a significant role for the project, which was called “Project Mexican”.
31. The work that the accused undertook for Project Mexican included structuring the relevant transactions, ensuring that information about Bridge Fund could be found on Bloomberg and Bridge Partners’ public portal, and also procuring a full valuation of PSOSL, which was required for the execution of the aforesaid transactions. In relation to the valuation, he sought the assistance of an associate, Ang Wee Keng Kelvin (“Kelvin Ang”), a remisier with Maybank Kim Eng Securities Pte Ltd at the time, to identify a suitable valuer to perform the valuation on PSOSL and value it at a target valuation figure of US$2.4 billion. The valuer identified by Kelvin Ang, which was eventually used, was NRA Capital Pte Ltd (“NRA Capital”). Pursuant to Kelvin Ang’s efforts, which included paying a bribe to the analyst performing the valuation, NRA Capital issued a valuation report on PSOSL dated 16 September 2013 which valued PSOSL and its assets at about US$2.4 billion as at the date of the report.
32. The scheme of transactions that was executed included the following transactions in September 2013. On 4 September 2013, SRC International (Malaysia) Limited (“SRC Malaysia”), a subsidiary of SRC, received cash traceable to Tanore Finance Corporation. On 5 September 2013, SRC Malaysia utilised the moneys by subscribing in approximately US$228.8 million (less of fees) worth of securities in Pacific Harbor Global Growth Funds AA4 and AA5 under Pacific Harbor Global Growth Fund Limited (“Pacific Harbor”). On 9 September 2013, the same amount was transferred by Pacific Harbor, which served as a pass through intermediary, to Affinity Equity International Partners Limited (“Affinity”), a company beneficially owned by Jho Low’s associate Eric Tan. On 10 September 2013, Affinity used these moneys to pay a Bridge Fund-associated bank account US$65 million for a 2.8 percent stake in BGA and US$133.4 million pursuant to a “profit undertaking” in favour of BGA dated 6 September 2013. These two sums of moneys were, on 11 September 2013, paid to Brazen Sky purportedly as “dividends” and “capital distribution”.
33. For its “investments” into Pacific Harbor, SRC Malaysia had agreed to pay fees amounting to 2 percent of the total assets under management to Pacific Harbor’s investment manager, Pacific Harbor Holdings Limited (“PHHL”). Separately, BSI Singapore and PHHL had entered into a referral fee agreement dated 25 March 2013 (“the BSI-PHHL Referral Agreement”), in which both parties agreed to split the fees that PHHL would receive from investments made into Pacific Harbor in proportions to be mutually agreed in writing from time to time. Thus, in anticipation of the September 2013 subscriptions by SRC Malaysia, BSI Singapore and PHHL entered into an agreement dated 28 August 2013 (“the 28 August 2013 Agreement”) to apportion the fees that PHHL would receive for investments into Pacific Harbor Global Growth Funds AA4 and AA5, as follows:
(a) For the first 12 months, BSI Singapore would receive a sum amounting to 1.75 percent of the total assets under management as referral fees and PHHL would retain a sum amounting to 0.25 percent of the total assets under management; and
(b) From the 13th month onwards, BSI Singapore would receive a sum amounting to 1.8 percent of the total assets under management as referral fees and PHHL would retain a sum amounting to 0.2 percent of the total assets under management.
34. Following SRC Malaysia’s subscriptions into Pacific Harbor in September 2013 (comprising US$102,040,817 into Pacific Harbor Global Growth Fund AA4 and US$131,402,184 into Pacific Harbor Global Growth Fund AA5), PHHL received US$4,668,860 in fees. Pursuant to the terms of the 28 August 2013 Agreement, PHHL paid a sum of US$4,085,252 to BSI Singapore as referral fees.
2. The Scheme that Enabled the Accused to Obtain Secret Profits from Project Mexican
35. Unbeknownst to BSI, prior to the execution of the BSI-PHHL Referral Agreement and the 28 August 2013 Agreement, the accused and Kevin Swampillai had a scheme in place whereby they would be able to secretly obtain a cut of the fees paid by SRC Malaysia to PHHL for themselves. Similar to the secret profits arrangement for Project No Retail, the fees would be concealed through the use of corporate intermediaries and referral fee arrangements.
36. The accused had earlier instructed Kelvin Ang to negotiate with PHHL to be paid a portion of PHHL’s fees arising from subscriptions into Pacific Harbor, as referral fees for purportedly referring the business to PHHL. The referral fees were to be paid to Kelvin Ang via Pinewoods Global Limited (“Pinewoods”), which was a shell company incorporated by Kelvin Ang. As pre-agreed with the accused, Kelvin Ang would subsequently kickback a portion of the referral fees received by Pinewoods to Bridgerock and GTB.
37. Following the negotiations between Kelvin Ang and PHHL, Pinewoods and PHHL entered into a referral agreement dated 5 March 2013 (“the Pinewoods-PHHL Referral Agreement”), which was signed by Kelvin Ang and a director of PHHL. Under its terms, PHHL was to pay to Pinewoods referral fees for clients that Pinewoods referred to it. On 11 June 2013, Pinewoods and PHHL entered into an agreement on the terms of Pinewoods’ referral fee for investments into Pacific Harbor Global Growth Funds AA3 to AA5. One of the terms provided that, for the first 12 months of management, PHHL would pay Pinewoods a sum amounting to 0.22 percent of assets under management, or 22 basis points, where the assets under management were to be between US$0 and US$500 million.
38. Based on this secret profits arrangement, the accused received, through Bridgerock, moneys traceable to the fees paid by SRC Malaysia to PHHL following its subscription into Pacific Harbor Global Growth Funds AA4 and AA5 in September 2013 for Project Mexican. BSI Singapore was unaware of the secret profits arrangement between the accused and Kevin Swampillai to clandestinely obtain a share of the fees received by PHHL. Had BSI Singapore known of the plan, or that its employees were receiving a cut of the fees paid to PHHL, it would not have entered into the referral agreement with PHHL on the terms proposed in the 28 August 2013 Agreement and negotiated a more favourable split of the fees.
39. The accused knew that he was required, by the terms of his employment contract with BSI Singapore dated 23 October 2009, to disclose the secret profits arrangement to BSI Singapore management. He knew that BSI Singapore would have refused to approve the secret profits arrangement, as he was prohibited, based on the terms of his employment contract, from receiving or obtaining “directly or indirectly any… commission in respect of any business transacted (whether or not by you [ie, the accused]) by or on behalf of the Bank or any Affiliate”. Furthermore, he was precluded from having “any interest in any form of work or business which conflicts with the interests of the Bank”. The secret profits arrangement fell squarely within such proscribed conduct.
40. Pursuant to the 28 August 2013 Agreement, PHHL retained US$583,608 in fees. Thereafter, PHHL paid Pinewoods US$513,575, and, pursuant to the secret profit arrangement, Pinewoods on-disbursed moneys to Bridgerock and GTB. On 12 September 2013, Pinewoods transferred US$233,443 to Bridgerock’s Maybank account.
41. By failing to inform BSI Singapore of the secret profits arrangement prior to the 28 August 2013 Agreement being concluded, the accused had dishonestly concealed from BSI Singapore the fact that he would receive through Bridgerock, an entity beneficially owned by him, a portion of the fees paid to PHHL. By this manner of deception, the accused dishonestly induced BSI Singapore to enter into the 28 August 2013 Agreement, which is a valuable security as defined under Section 30 of the Penal Code (Chapter 224), being a document which creates a legal right. Thus, the accused had committed an offence punishable under Section 420 of the Penal Code (Chapter 224).
III. CONCLUSION
42. From the foregoing, while working on transactions connected with Brazen Sky that were carried out on the directions of Jho Low, the accused separately had dishonestly obtained secret profits and laundered these profits.
43. The accused has undertaken to make full disgorgement of his illicit gains for all the charges (including charges taken-into-consideration) against him. In this regard, he has given an undertaking to liquidate all the assets (comprising properties and bank accounts) owned and/or beneficially owned by him in Australia and to transfer the proceeds to Singapore for surrender to the Singapore authorities. The accused has also agreed to surrender all moneys in bank accounts owned and/or beneficially owned by him in Singapore to the Singapore authorities.
44. The accused had previously been charged and convicted for attempting to pervert the course of justice. He has since apologised unreservedly to the officers of the Commercial Affairs Department (“CAD”) for his prior conduct. Going forward, the accused has also undertaken to render his full cooperation to CAD in its on-going investigations.
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