Goldman Sachs Group Inc. is about to learn a whole lot more about the Malaysian legal system. Three units of the U.S. investment bank and two former employees face criminal charges in the Southeast Asian country relating to their role in raising $6.5 billion for the scandal-plagued state investment fund 1MDB. Malaysia alleges that Goldman misled investors in three bond sales it arranged for 1MDB while knowing the money raised would be misappropriated. Goldman says it will vigorously defend against the charges.
1. How long will this take?
Not necessarily that long. On Monday, case hearings are due to start in the Kuala Lumpur courts, which may fix the trial’s start date. Trials in Malaysia are supposed to start within 90 days of the charges being filed, though that can slip. For example, former Malaysia Prime Minister Najib Razak’s trial on 1MDB-related corruption charges was due to begin in February, seven months after charges were first laid. It has since been delayed indefinitely.
2. What would a trial look like?
Criminal court proceedings are public and open to all, barring exceptions made by a judge or a court gag order. (Najib’s lawyers have sought such an order for his case to prevent a “trial by media.”) Malaysia’s legal system won’t be altogether alien to western companies and lawyers, since it’s fashioned on English common law. (Malaysia gained independence from Britain in the 1950s.) So there’s a presumption of innocence for defendants and a requirement by prosecutors to prove a case beyond reasonable doubt. Goldman’s cases would be tried by a judge, highlighting one difference from English law: Malaysia scrapped juries in 1995. The seriousness of the charges -- which carry fines for businesses and jail terms of up to 10 years and fines for individuals -- means defendants are required to attend. A trial might be delayed or lengthened if the prosecution attempts to subpoena overseas-based personnel. “We want Goldman Sachs here,” said Malaysia’s prosecutor M Kurup.
3. How will Goldman respond?
Goldman said the charges came without a chance for the firm to provide its view. “Certain members of the former Malaysian government and 1MDB lied to Goldman Sachs, outside counsel and others about the use of proceeds from these transactions,” the bank said in a statement. “1MDB, whose CEO and board reported directly to the prime minister at the time, also provided written assurances to Goldman Sachs for each transaction that no intermediaries were involved.” According to Nizam Ismail, a partner at RHTLaw Taylor Wessing LLP in Singapore, a criminal conviction against one or more Goldman units could “affect their status as fit and proper persons” and impact their standings as licensed entities. “Regulators that are regulating Goldman entities worldwide will be watching developments in Malaysia closely,” he said in December. In the U.S., criminal convictions against banks used to be considered a death sentence, but they’ve become common-place after a spate of currency-rigging cases.
4. What are the charges and who filed them?
The defendants were all charged under the Capital Markets and Services Act 2007. Goldman’s units were charged with making false statements and the individuals with abetting the firm to make those statements. Attorney General Tommy Thomas, who filed the charges, was appointed the nation’s top prosecutor in June, weeks after Prime Minister Mahathir Mohamad’s shock election victory over Najib. Thomas replaced Mohamed Apandi Ali, who had cleared Najib of criminal wrongdoing in one of several Malaysian 1MDB investigations that came to nothing.
5. Which individuals are facing charges?
Former Goldman partner Tim Leissner is in the U.S., where he has pleaded guilty to bribery charges. His former deputy, Roger Ng, had already been arrested in Malaysia in November and is fighting extradition to the U.S. He has pleaded not guilty to the Malaysian criminal charges, and Malaysia has said it will extradite Ng after its own proceedings are complete. Criminal charges were also filed against Malaysian fugitive financier Low Taek Jho -- the alleged central figure in the scandal -- and an ex-1MDB employee, Loo Ai Swan. Leissner confessed to U.S. prosecutors that he bribed officials to get Goldman hired for the bonds deals, and that he and others arranged the fundraising as debt offerings because that would generate higher fees for the bank. Goldman has blamed rogue employees for any wrongdoing in relation to 1MDB, telling U.S. prosecutors it was deceived by Leissner. The whereabouts of Low and Loo, who were charged in absentia, remain unknown. Court proceedings can go ahead in their absence.
6. How robust is Malaysia’s legal system?
According to the non-profit World Justice Project, Malaysia ranks 53rd out of 113 countries assessed in its rule of law index. Within those rankings, Malaysia’s handling of criminal justice ranks just outside the top third of countries -- above the likes of Greece, South Africa and China. Data showing conviction rates of criminal prosecutions is not available.
7. Has Malaysia seen a case like this before?
Nothing as international on this scale. There’ve been plenty of corporate scandals, but mostly domestic-based. Malaysia is seeking fines in excess of $3.3 billion from Goldman, made up of the $2.7 billion which U.S. prosecutors allege was misappropriated by a small group of Malaysians from the 2012 and 2013 bond sales, plus Goldman’s $600 million in fees from the deals.
8. Why is Malaysia doing this?
It’s another front in the new government’s bid to retrieve some of the billions of dollars allegedly pilfered under Najib’s watch. Such was the furor over 1MDB, Malaysia’s voters in May threw out Najib’s ruling coalition for the first time in 61 years. (Najib denies wrongdoing.) If Malaysia won a trial on home soil, it may face a challenge to enforce any ruling, since the Goldman units are incorporated in the U.K., Singapore and the U.S. Malaysia may also be entitled to money from any settlement or conviction by prosecutors in the U.S., Singapore, Switzerland and beyond, though it’s unclear how the different inquiries affect each other. “Malaysia’s charges suggest it may be operating on a different timetable than U.S. authorities, possibly making a joint resolution more difficult,” wrote Alison Williams, a Bloomberg Intelligence senior analyst, in a note. Where there are criminal prosecutions in several jurisdictions, said Nizam, law enforcement agencies “could discuss with one another on the more appropriate jurisdiction for the case to proceed first.”
To contact the reporters on this story: Yudith Ho in Kuala Lumpur at firstname.lastname@example.org;Chanyaporn Chanjaroen in Singapore at email@example.com;Anisah Shukry in Kuala Lumpur at firstname.lastname@example.org
To contact the editors responsible for this story: Marcus Wright at email@example.com, Grant Clark
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