-key part of police file missing
The three senior New Building Society (NBS) managers who were fired after being implicated in a multi-million dollar fraud at the institution in 2006 have suffered a “grave injustice” according to Ombudsman, Retired Justice Winston Moore who has concluded that there was insufficient evidence to suggest that the trio was guilty let alone to successfully prosecute them.
“I can find in the Police file no evidence that would lead any fair minded person to conclude that any one of the three senior managers was guilty of fraud… The rush to the conclusion that the three top managers had orchestrated a massive fraud from the account of a depositor with their own organization, is an area that angels would fear to tread”, Moore said in a just completed 25-page report which points in the direction of a high-level attempt to frame then Director Maurice Arjoon and his two colleagues.
In his first major report since being appointed to the long-vacant post of Ombudsman in December last year, Moore tried to piece together a fraud puzzle which had caused great shock and had led to years of assertions that there was a miscarriage of justice and a broad conspiracy by senior figures in various areas. Moore found that a key part of the police file which could point at ministerial intervention in the case was missing.
Based on a complaint received in January from Arjoon, Moore launched an investigation into a “multiplicity of wrongs done to him”. Moore’s focus was on persons who Arjoon had implicated and the NBS Board which had fired him six months before he was to retire.
Arjoon, assistant Mortgage Manager Kissoon Baldeo and Operations Manager Kent Vincent along with employees Imran Khan and Amrita Prashad together with Ashley Legall and Mohanram Shahebudin were charged in connection with the $69 million fraud. The money belonged to Bibi Khan. After dragging on before the courts for several years and owing to the non-appearance of the complainant, the charges were discharged. Arjoon in June 2011 had filed a $2M lawsuit against the government for malicious prosecution but it was dismissed after Justice Dawn Gregory found that only two out of four limbs of malicious prosecution had been established.
The Ombudsman’s role is to investigate complaints against persons who hold public office. Arjoon in his complaint alleged that former president Bharrat Jagdeo, present Minister of Labour Nanda Gopaul, Finance Minister Dr Ashni Singh and the Director of Public Prosecutions (DPP) Shalimar Ali-Hack all played a hand in the injustice he suffered and therefore Moore said that he had jurisdiction to probe the complaint
In a copy of the report seen by Stabroek News, Justice Moore said that having taken into account the statement by Arjoon that he received a call from Dr. Gopaul which he interpreted as a threat; the reference in the Police file to an exhibit listed as “ eleven pages of notes of Minister meeting”; the fact that this document was removed from the Police file; the fact that I can find no credible evidence of wrongdoing by any of the senior managers; the matters contained in the statements of Ashley Legall and the fact that the prosecution proceeded after said statement which clearly identified the perpetrators of the fraud who were persons other than the senior managers, “I am of opinion, and I so find, that Maurice Arjoon, Kent Vincent, Kissoon Baldeo and Amrita Prashad have all suffered injustice, notwithstanding the fact that they were all discharged by Magistrates at the various Preliminary inquiries”.
With respect to the missing document, Moore said in his report that this suggests the intervention of a minister of government in the police investigation.
The Ombudsman told Stabroek News yesterday in an invited comment at his office that he is required to submit a copy of his report to the persons who might be affected by anything said in the document. He said that in this regard on Tuesday he sent copies to President Donald Ramotar, Head of the Presiden-tial Secretariat Dr. Roger Luncheon, Dr. Singh, Dr.Gopaul, Attorney General Anil Nandlall, Director General at the Ministry of Foreign Affairs Elisabeth Harper, Ali-Hack, the Commis-sioner of Police, Seelall Persaud and Arjoon for them to make any comments.
“They have an opportunity to comment on it or remedy any default if they wish to do that”, Moore said adding that he has given a limited time frame for this to be done. He added that if these nine persons make comments then he will have to take what they say into account.
He added that the next step would be to treat the document as a special report and lay it before the National Assembly. Accord-ing to Moore he has already made contact with the Clerk of the National Assembly who has indicated that he would have to lay over 100 copies of his report for Members of Parliament and the media.
He said that as of now the report is not in the public domain. “I did not release it to anyone outside the nine names that I have mentioned”, he said while noting that he has a discretion in accordance with the Act to make it public in the interest of the public. He related that in his report he did say that he “believes that the aim of criticism is to improve not destroy”.
Moore informed this newspaper that he received a letter of complaint from Arjoon on January 16, this year. The complaint alleged a series of wrongdoings done to him and two other senior managers who were sacked by NBS. The investigation, Moore told Stabroek News started almost immediately. He noted that while this was not his first complaint since he took up office, it was the first major one.
He said that retired Deputy Commissioner of Police Henry Chester assisted him with the investigation.
Complaint
Arjoon in his complaint, said that he had been employed at an executive/directorship level for nearly 30 years with an unblemished record until he was charged. He was charged on June 1st. 2007. “After 3 ½ years of blatant delays in the criminal court and without providing a shred of evidence of any wrongdoings my case was finally dismissed (and that of the Managers a year later), despite the fact that the DPP had stated in a letter to the Board that she had Strong and Compelling evidence against us. This totally untrue statement was subsequently repeated by DPP to the Chancellor (ag)”, Arjoon said in his letter of complaint. In his complaint to the Ombudsman, Arjoon stated that High Court proceedings against the DPP were dismissed and an appeal filed thereafter is still to be heard.
Arjoon stated that at the time of the “trumped up charges” he was six months away from retirement which would have entitled him to a lucrative monthly pension and substantial benefits. After over five months investigation which failed to link him to any wrongdoing, despite his exemplary record and without a warning letter the NBS board terminated his services citing fraud, negligence and serious misconduct, the complaint said.
Arjoon said that he believed that an independent investigation would reveal that the Chambers of the DPP and other persons at the Central Islamic Organization of Guyana (CIOG) did not want to take action against the perpetrators identified, and as such the wrongful charge and subsequent termination of services were instituted as punishment for certain decision and recommendations that he had made in the interest of NBS. These recommendation Arjoon said were deemed unfavourable to the then President of Guyana, Bharrat Jagdeo and certain directors of NBS. In his complaint, he mentioned that the first recommendation was for the Directors to be guided by the Financial Institutions Act in determining how much should be invested in the Berbice Bridge after three voted for an investment of $2B and the other three voted zero investment. Arjoon said that less than two hours after it was agreed that $350M would be invested, Dr Gopaul telephoned him and said that President Jagdeo did not get the $2B for the bridge and that Jagdeo will deal with him. Justice Moore said he wrote Dr Gopaul via Dr Luncheon and the former denied ever having communicated a threat to Arjoon. The Ombudsman further said that Dr Gopaul “claimed that he and Mr Arjoon had very cordial relations up to the time that Mr Arjoon was dismissed by the NBS”.
Moore also said he would “refrain from stating any finding on anything allegedly said by former President Bharrat Jagdeo.
Arjoon said that it was after he was charged in June 2007 that certain NBS directors confided that Jagdeo called them to a meeting at OP where board officials falsely said that the police said they had evidence against him and the two other managers. He said that further to this when written to in January 2008 by his spouse, with information attached that the DPP wrongfully charged me and the two Managers, “the President quickly confirmed the DPP in her previously acting position”. He added that thereafter “amendments to the NBS act were rushed through parliament and hastily assented to by the President, to make it impossible for NBS members to call special meetings in the event of wrongdoings”. Arjoon stated in his written complaint that in November 2010 before the criminal charges against him and the others were dismissed Jagdeo inquired from a relative if he was willing to accept full pension and benefits “in return for dropping the lawsuit”. He said that “I decided to accept and the President arranged for me to meet Dr. Nanda Gopaul at the Office of the President who admitted that I did no wrong and agreed for Legal Fees to be paid by NBS and that I can get full pension and benefits. Surprisingly, NBS Lawyer Ashton Chase sent a letter advising approximately half of my monthly pension and lump sum due, stating this was agreed to after discussion at the highest level”. Arjoon said that he then rejected this deal.
According to Arjoon, in June 2007, he and the two managers requested an investigation and it was his son and daughter who went to Finance Minister Dr. Singh with an envelope containing a letter and attachments.
Dr. Singh told them “let me assure you that your father is absolutely innocent!” Arjoon said in his complaint. He said that weeks later a team of Bank of Guyana (BOG) officers conducted an investigation, but neither he nor the other two managers were interviewed. “One of the BOG officers later confided that the BOG report confirmed the innocence of the CEO and 2 Managers, however, while the CIOG involvement was evident that was not included in the report (for fear of retaliation) but Dr. Singh and the Governor of the BOG were apprised of this fact. Dr. Singh never replied to the letter (but) other sources from the BOG revealed that this BOG report confirmed that the 3 officers were innocent but that they were told to duck the report”, he said.
He said that he spoke to Dr. Singh about the wrongful charges and the non-payment of his pension/benefits and his response was that he was surprised I have not received my pension and benefits but said to me: “you can hold your head high.”
Moore said he had inquired from Dr Luncheon whether Dr Singh did order an investigation by the Bank of Guyana of the NBS following the fraud and whether the report of the probe was deliberately suppressed to the detriment of anyone. To date, Justice Moore said that there has been no response from Finance Minister Dr Singh.
The 25-page finding also contained information on various aspects of the investigation including the police file, letters to the DPP and Luncheon, the report of the investigating rank and forged documents.
With respect to the DPP, Moore stated that he wrote to her suggesting that the “Police investigation into the NBS fraud be re-opened and assessed by a fresh mind”. He said that in reply the DPP said that she would willingly advise the police in this regard once there was new or additional evidence. However none was available.
In his report, Moore quoted a section of the DPP’s letter in which it was said that Arjoon was seemingly using the fact of the discharge of his case “to support his allegation that there was no evidence against him”.
She stated that “There were three (3) charges and they were all discharged. The reason for the discharge is the account holder from whose account the money was withdrawn, by a Power of Attorney in her absence, migrated and did not testify in two (2) of the charges. She testified in chief for the other one (1) charge but never returned to court to complete her testimony. Owing to her not testifying the persons charged, including Mr. Arjoon, were discharged.
Consequent to the money being withdrawn from her account and the account being closed she brought a civil action against New Building Society and New Building Society settled with her. She received all her money which was stolen from the account and then migrated and never returned to Guyana to testify and complete here testimony resulting in all the accused being discharged”.
The investigation
Moore in addressing the police file said that he received a copy of the complete file on the matter from the Commissioner of Police, Seelall Persaud during May 2014 and it was at this point that he retained Chester with the permission of the commissioner. He said that Chester observed that what was received was not the complete file and after some of the deficiencies were pointed out to the commissioner a second file was received. The Ombudsman said that given the fact that the Exhibits referred to as “eleven pages of notes at Minister meeting”, were absent from both files, in his second letter to the commissioner he asked that a special effort be made to locate the missing document in view of the allegations made by Arjoon.
“I eventually received a letter from the Commissioner with an attachment from O.C. Fraud to the effect that the “eleven pages…” were not found and a note that the Investigating Rank, Asst. Supt. Paul Wintz, had died”, the report stated.
He said that a review of the police file stated that on 31st October, 2006 a man claiming to be Compton Chase presented a Guyana Passport in his name and a General Power of Attorney to Amrita Prashad, an employee of the NBS, at the NBS Head Office for the purpose of making a withdrawal of $15,000,000 from the account of Bibi Shamila Khan. He did not present a bank book for the account. It was stated that Prashad extracted the Index Card for Save and Prosper account #4745 in the name of Bibi Shamila Khan.
The person claiming to be Compton Chase told Prashad that the account holder was in Canada and could be reached on telephone No. 647-868-9552, the report stated adding that Prashad took the documents to Imran Bacchus another employee of NBS who recorded particulars from Chase’s Passport and the Power of Attorney on the index card.
Prashad then took the documents to NBS Supervisor Kumar Ragobar who examined them and referred her to Operations Manager, Kent Vincent because the amount of the withdrawal was above the limit ($1 million) he, Ragobar, could have authorised.
According to the file, Operations Manager Kent Vincent examined the documents and in particular compared the signature on the Power of Attorney with that on the index card, was apparently satisfied and he took the documents to Maurice Arjoon.
Arjoon instructed Vincent to contact Bibi Shamila Khan to verify the withdrawal request and the Power of Attorney. Vincent instructed the NBS telephone operator to make the call to the telephone number provided by Chase, to Bibi Shamila Khan, which she did and made a record of the call in a book for recording outgoing overseas telephone calls.
The report from the investigating rank said that “The telephone operator placed the call, and shortly after connected a female who identified herself as Bibi Shamila Khan to Kent Vincent. He identified himself and requested from the female her passport number, date of birth, date of issue and last local address which proved to be correct as per index card. He also asked her if she had made anyone her Power of Attorney and she told him that Compton Chase has been appointed by her, and she had authorized the withdrawal of $15,000,000.00 from her account which had an approximate balance of $69,000,000.00, which was also correct”. The rank said in his report that the telephone operators inquired from the female about her pass book but she said that it had been misplaced. Vincent then told Chase that he had spoken to Khan and was awaiting a fax to confirm the transaction and asked him to return the next day.
The next day the female called Vincent who indicated that he did receive the fax but that it was not too clear. The women re-sent a clearer one which was later approved by Vincent. Cheques were then prepared in the requested amounts.
The rank said that on November 16, the same female telephoned Vincent and indicated that she needed to make another withdrawal. A fax was sent with instructions and two cheques for 20,500,000.00 payable to M. Hussain and $2, 164,000.00 payable to Compton Chase were prepared.
On December 8, 2006 the woman called again and cheques made out to M. Hussain for $10,200,000.00 and Daniram for $10,300,000.00 for the amount of $20,500,000.00 were prepared.
It was stated that Dr Zainool Safi and his wife Bibi Shamila Safi nee Khan went to the NBS on 3rd January, 2007 to update their joint account and (Bibi Shamila) to close a joint account in the names of herself and her sister. The bank book was presented for updating. Bibi withdrew all the money from the joint account. Because it was the Christmas season the couple were told to leave their bank book which needed updating and uplift same at a later date
However Dr. Safi said that when he examined the book on his return to the NBS on 19th January, 2007, he discovered to his horror that all the money in the account had been withdrawn.
After a preliminary investigation the withdrawals were treated as fraudulent and Police investigations commenced.
Justice Moore also stated in his report that from his observation the power of attorney in the name of Compton Chase was forged. He said further that the Consul General, Danny Doobay, denied that the Power of Attorney was authenticated at the Consulate General in Toronto and pointed out all the false stamps and other false features on the forged document.
No criminal act
In his conclusions the Ombudsman said that in his opinion, it is clear that the senior management of the NBS accepted the passport and power of attorney presented by “Compton Chase” as genuine documents.
He said that it is clear that on this basis, Kent Vincent accepted the Canadian telephone number supplied by “Chase” as the telephone number of Bibi Shamila Khan and believed that the person he spoke to by telephone was indeed her.
“The standard required for conviction of a criminal offence is proof beyond a reasonable doubt for every element of the offence – the acts as well as the mental ingredients. Without intending any disrespect to anyone, I would state that carelessness, most species of negligence, foolhardiness or even stupidity are not the standard of proof of guilt for a criminal offence. I do not hereby state any finding or conclusion that anyone at the NBS should be blamed for any of these”.
He said that if Kent Vincent honestly and genuinely believed that he was dealing with Bibi Shamila Khan, his actions cannot be regarded as criminal and “this is the crucial issue that any court would have to grapple with before it could make a finding of guilt”.
He said “I am therefore at a loss to fathom why the three senior managers were placed before the Court before the arrest of the person calling himself Compton Chase”.
He said that he cannot substitute his own judgment for that of the DPP as the constitutional provision stated that she is subject to the discretion of no one. He pointed out that on August 29, 2014 he did write to the DPP outlining the observation of the investigating rank that the fraud was perpetuated with the help of the three managers, all employees who had the inside knowledge that Khan’s account was dormant and used the opportunity to conspire with Chase.
However, the Ombudsman said he also pointed out to the DPP that Ashley Legall, who had assumed the name of Compton Chase, was arrested in October 2007 and had given an unsigned statement pointing at the mastermind and also implicating two supervisors of the NBS in the fraud. Legall had also stated that the mastermind was involved in the backtrack business and this could explain how he had access to passport information which was used during the fraudulent transaction.
The Ombudsman then stated in the letter “I am writing to enquire whether you would agree that the information provided by Legall warranted a review of the earlier conclusion that the fraud was perpetrated with the help of Maurice Arjoon and the other two senior managers.
“Even if it was decided to press with the prosecution of the three senior managers, would you agree that the information provided by Legall ought to have been disclosed to the defence?”
To date Moore said, he has not received a reply from the DPP.
The ombudsman said that “the humiliation and trauma suffered by these persons and their families must have taken a toll on their health, not to mention the effects of these events on the morale of the NBS staff” while stating that it is difficult for him to “fathom” why the three managers were charged. He said it was even more difficult to fathom how fresh charges were laid against the three managers, Amrita Prashad, Ashley Legall and others after Legall had named the suspected mastermind.
The missing exhibit, he said indicates interference that was highly irregular. “The fact that this document was removed from the Police file is not surprising”, Moore said adding that Dr Singh has to date not commented on the allegation by Arjoon that he deliberately suppressed the Bank of Guyana Report.
“I have no jurisdiction to pronounce on the action of the NBS Board in firing the managers and I therefore refrain from any comment. I however trust that the three senior managers and Ms. Amrita Prashad who clearly appear to me to have suffered grave injustice when they were charged, would receive their due”, he stated.
