KOTA KINABALU: Api-Api assemblywoman Christina Liew yesterday expressed her shock over the recent media statement issued by Borneo Samudera Sdn Bhd.
Christina, who is also a lawyer, described the report last Sunday as sensational and a selective report on the court’s ruling without the benefit of the whole judgement.
She said the media report amounted to damaging her credibility and integrity both as a lawyer and an elected representative of the people.
“The truth is of course it was very shocking for me. I have encountered a lot of hardship and difficulties whenever I take up class action especially against certain parties or departments but this is to the highest level.
“I will not be discouraged. It will just enhance my determination to continue my fight and struggle,” she said.
Asked if she suspected the move to be politically motivated persecution against her, Christina replied that if she spoke in her capacity as a lawyer, she did not view it as politically motivated.
“I would say no because this is the decision of the court,” she told reporters.
However, speaking in her capacity as a politician, Christina said that she would rather leave the judgement to the people.
“I am not here to comment on this. It will be the people to judge,” she said.
Christina also explained briefly on the matter, saying the smallholders came to see her in 2005 with their grievances on the joint venture agreement (JVA).
“After hearing them out and doing my due diligence, I decided to accept their appointment to act for them. Taking instructions and acting on their behalf,” she said.
Christina reiterated that she had in the past 10 years taken more than 10 class actions against relevant parties or authorities when there seemed to be injustices done.
“It was my professional duty to accept their briefs and instructions once I accepted their appointments. I had encountered difficulties acting as lawyer for clients on class actions before but this is the most challenging one above all,” she said.
She stressed however that despite the great difficulty, it would not deter her from continuing to represent and/or acting for the people who do not know or have difficulty understanding their contractual rights.
“I will continue the struggle for the people both as a lawyer and their elected representative,” she said.
Christina also described the case as a rare, complex and unique one.
Meanwhile, her lawyers, Nelson W. Angang and Chua Kuan E. who were present during the press conference released a statement on her behalf yesterday.
Nelson, in the statement said that there was a need to clarify the media report issued by Borneo Samudera Sdn Bhd last Sunday.
“The third defendant (Christina) having read the newspaper article realised that it was a selective report on the court’s ruling without considering and explaining the whole judgement,” said Nelson.
He said that it was the defendant’s case that the third defendant was at all times acting in her capacity as lawyer with instructions from her clients.
“She took instruction or acted on instructions from the clients,” he said.
He also said that it was the defendant’s case that there was no coercion and it was clear to her as a lawyer at the material time all parties knew what they were entering into.
He added that the defendants had filed an Appeal to the Court of Appeal against the judgement and at the same time had also filed an application for stay of execution against the order of the judgement.
“It was also mentioned that if the stay for execution was disallowed, they would make another application to the Court of Appeal.
“It was also explained during the trial as to the issue of the third defendant’s ex-staff acting as a buyer (the first defendant, Siti Rahfizah Mihaldin). It has been explained by the third defendant during the trial, the role and the purpose of the third defendant’s ex-staff in the transaction and that it was in accordance to the instructions given to the third defendant. We would take the argument further during the appeal proper of this matter,” he said.
Nelson said Borneo Samudera (BSSB) from the day of joint venture in 1998 until today was and still is in possession of the 817 smallholders’ lots.
“The possession was never taken away from them,” he stressed.
“It is the defendant’s case and based on the instructions given to her by the smallholders, that no dividends were ever declared and given to the smallholders since they entered the joint venture agreement with BSSB between 1998 to 2005 (the material time),” he said.
He then cited that according to the joint venture agreement terms, the smallholders injected their lots into the JVC (Cemasjaya Sdn Bhd) as their equity when they signed the joint venture agreement in 1998 and in return, they would receive share certificates to the value of their individual lots.
“They would become shareholders of the JVC (Cemasjaya Sdn Bhd). With no more than 30 per cent of profits to be declared by the company annually. However for eight years (1998 to 2005) they received only advances from a third party company called Bagahak Plantation Sdn Bhd, not dividends or advances from the JVC (Cemasjaya Sdn Bhd). As a result of these eight years of non-payment of dividends, the smallholders were unhappy and came to see the third defendant with their grievances on the joint venture agreement,” he said.
Nelson said that it was also explained during the trial that the third defendant, after listening to their grievances, studied their documents and consulted two other senior counsels, that the third defendant formed the legal opinion that Borneo Samudera Sdn Bhd had breached and repudiated the joint venture agreement.
“It is the defendants’ case that 817 smallholders instructed the third defendant that they wish to get out of the JVA (joint venture agreement) and sell their lots away to salvage the losses. Therefore the 817 smallholders then commenced action against BSSB in 2006, inter alia, for not paying dividends,” he said.
And with reference to the police report, as stated in the media, Nelson said that they were shocked to note that what was reported in the media that most of the smallholders had lodged a police report against the three defendants.
“It was not part of the reason for the decision and the finding of the judge but it was reported in the media as if giving the impression that it is part of the reason for the decision.
“The issue of some of the smallholders’ police reports lodged against the three defendants on the purported misleading them into signing the sales and purchase agreement is now ongoing in the Lahad Datu arbitration,” he said.
Nelson said they were more surprised on the issue that the smallholders were asked to sign or thumb print documents in blank as stated also in the media report (the second last paragraph of the media report).
“This allegation was also not part of the consideration and finding of the court,” he said.
Nelson added that there were two arbitrations going on presently: one is in Singapore whereby the arbitrator has yet to decide on the validity, effectiveness and enforceability of the JVA. Whether the condition precedents of the JVA were fulfilled at the material time as these condition precedents were found to be contingent.
“The other arbitration that is going on is in Lahad Datu. The arbitrator has yet to decide, inter alia, whether the Sale and Purchase Agreements were entered legally and whether these Sales and Purchase Agreements would be binding to the parties,” he said.
Last Sunday, it was reported that High Court Justice Chew Soo Hoo in his judgement on September 30, had ordered three people, including Christina, to pay damages to BSSB for unlawfully including the Bahagak Smallholders Scheme participants to breach their JVA with BSSB.
It was reported that the Justice in his judgement found that BSSB had proven the requisite conditions in law of inducement of breach of contract. BSSB had claimed damages of RM557,641,716.29.