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Kartika Ratna Thahir v PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina)

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Case Law

Kartika Ratna Thahir v PT Pertambangan Minyak dan Gas
Bumi Negara (Pertamina)
[1994] 3 SLR 257; [1994] SGCA 105
Suit No:

CA 204/1992

Decision Date:

25 Aug 1994

Court:
Coram:

Counsel:

Court of Appeal
Karthigesu JA, L P Thean JA, Yong Pung How CJ
Bernard Eder QC, Michael Hwang and Francis Xavier (Allen & Gledhill) for the appellant, David
Hunt QC, Wong Meng Meng and Alvin Yeo (Wong Meng Meng & Pnrs) for the respondents

Judgment

[Please note that this case has not been edited in accordance with the current Singapore Law Reports
house style.]
Judgment
reserved.
LP Thean JA (delivering the judgment of the court):
1
This appeal arises from the decision of Lai Kew Chai J on an originating summons taken out by the Sumitomo
Bank Ltd for interpleader reliefs in the face of competing claims to 19 separate and discrete deposits with the Asian
Currency Unit (ACU) of the Singapore branch of the bank.

Facts

2
The relevant facts that gave rise to the proceedings below have been fully set out in the judgment of the
learned judge, reported in [1993] 1 SLR 735. For our purpose, we need only to rehearse them briefly as follows.
The respondents (Pertamina), an Indonesian state enterprise, were created on 15 September 1971 by Law No 8
of 1971 of the Republic of Indonesia. They undertook major economic development projects at the direction of
the Government of the Republic of Indonesia. One such undertaking was the gigantic development of a huge
industrial complex for steel-making and related industries, which encompassed the redevelopment of the
existing steel-making plant, in Cilegon, northwest of Java, Indonesia. On 31 August 1970, a company, PT
Krakatau Steel (PTKS) was incorporated and its task was to build the infrastructure, comprising the harbour,
water and power supply and a railway line to connect the harbour to the steel mill. PTKS was also responsible
for the development of the steel plant. However, Pertamina were financially responsible for the infrastructure
facilities. In fact, Pertamina virtually took over effective management and control of the construction of the
infrastructure facilities in Cilegon as from about June 1973. In many cases, they contracted for the building of
the infrastructure facilities. These facilities may be broadly described as follows: (i) a new power generation
equipment which was to provide the vast quantity of electricity required for the new electric arc furnaces to
produce the steel; (ii) an improved water supply system to provide water for the steel mills; and (iii) a new
harbour and a new railway link for the import of raw materials required for the steel-making process and for the

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export of finished products. It was in relation to these facilities that two German contractors, Siemens AG
(Siemens) and Klockner Industrie Analagen GmbH (Klockner), entered into the picture. Siemens contracted to
provide the power generation equipment and Klockner and its related companies contracted to build and equip
the water supply system.
3
Gen Haji Achmad Thahir (Gen Thahir) was employed by Pertamina and at the material time was the
general assistant to the then president director of Pertamina, Gen Ibnu Sutowo (Gen Sutowo). Gen Thahir was
appointed to the office with effect from 14 October 1968 and at all material times his total salary was about
US$9,000 a year. He held that position until 23 July 1976 when he died. At the date of his death, there stood as
having been deposited with the Singapore branch of the Sumitomo Bank Ltd (the bank) 17 separate and discrete
ACU deposits denominated in deutschemarks, in the names of “Mr HA Thahir and/or Mrs KR Thahir”,
amounting in aggregate to DM53,972,374.12. As at 23 July 1973, the maturity dates of these deposits ranged
between a few days and over four months. In addition, there were two other separate and discrete ACU deposits,
one time deposit maturing on 18 August 1976 and the other payable on demand, which were denominated in US

dollars in the sums of US$593,249.31 and US$608,959.42 respectively; both these deposits were also in their
joint names. Mrs KR Thahir is Mrs Kartika Ratna Thahir, the appellant in this appeal (the appellant).
4
The first deposit in the series was made on 25 May 1973, and, thereafter, by the end of May 1974, ten
other deposits were made, all of them in the name of Gen Thahir. Subsequently, in early June 1974, Gen Thahir
visited the Singapore branch of the bank and opened a joint fixed deposit account in the names of Gen Thahir
and the appellant. The account was opened with a sum of DM2,273,478.46 which was deposited on 10 June
1974. By the end of 1975, the Singapore branch of the bank had a total of 19 deposits, all of which, with the
exception of one, was in the sole name of Gen Thahir. Sometime in the later part of 1975, Gen Thahir visited the
Singapore branch accompanied by the appellant. On this visit, Gen Thahir requested the bank to transfer all the
deposits in his sole name to a joint fixed deposit account in the names of Gen Thahir and/or the appellant, and
the transfer was effected by the bank on 19 January 1976. As we have related, about six months later, on 23 July
1976, he died.
5
Three days after the death of Gen Thahir, a claim was made at the Jakarta office of the bank by two sons
of Gen Thahir by his earlier marriage that all the ACU deposits belonged to the estate of the deceased and the
bank was requested to freeze the ACU deposits until such time as the respective interests in the estate had been
determined. The Singapore branch of the bank was duly informed of this demand. On 27 July 1976, the
appellant personally called at the Singapore branch of the bank and demanded payment of four sums, namely,
DM3,287,591.13, DM2,364,187.60, DM2,659,204.26 and US$608,959.42 and further demanded that the

balance of the ACU deposits be transferred to her sole name. On the same day, one of the children of Gen Thahir
by his earlier marriage, Mr Ibrahim Thahir, called at the Singapore branch of the bank and directed the bank not
to pay out any money to the appellant from the ACU deposits until the respective beneficial interests of the
appellant and the estate of Gen Thahir were determined. On the following day, Mr Ibrahim Thahir called at the
bank again and he was accompanied by Mr Abubakar Thahir and Mr Faruk Thahir, two other sons of Gen
Thahir by his earlier marriage. They repeated the earlier demands.
6
Faced with these competing claims, the bank took out the originating summons seeking interpleader
reliefs and named the appellant the first defendant and M/s Abubakar Thahir, Ibrahim Thahir and Faruk Thahir
collectively as the second defendants. Later, by an order of court made on 4 February 1977, M/s Abubakar
Thahir and Ibrahim Thahir were appointed to represent the estate of Gen Thahir for the purpose of those
proceedings. About three months later, Pertamina came into the picture; on 6 May 1977, they gave notice to the
bank claiming to be entitled to the ACU deposits on the ground that they were wrongfully acquired by Gen
Thahir by way of bribes while being employed by Pertamina and the acquisition was contrary to his duty as an
employee of Pertamina. In response, the bank applied to the High Court for Pertamina to be joined as a
defendant, and by an order made on 24 June 1977, Pertamina was added as a defendant in those proceedings. By
a subsequent order made on 12 March 1980, (i) Pertamina was ordered to be the plaintiffs; (ii) the appellant, the
first defendant; and (iii) M/s Abubakar Thahir and Ibrahim Thahir representing the estate of the Gen Thahir, the
second defendants, on a trial of an issue which we shall state in a moment.
7

On 30 June 1981, it was agreed by all the parties concerned that the two ACU deposits in US dollars
would remain in US dollars and the 17 ACU deposits denominated in deutschemarks would be converted into
one single US dollar deposit. As at 27 March 1992, the total amount of the ACU deposits, including interest,
was US$81,757,260.74.
The issue below
8
The parties came to an agreement as to the terms of the issue to be tried, and for the purpose of this
appeal, it is only necessary to set out the first issue, as amended by an order of court made on 2 December 1988.
We shall call this “the amended first issue”, which is as follows:
Whether, as the plaintiffs affirm and the first and second defendants deny, the plaintiffs are entitled to the
moneys being the ACU deposits and interest or proceeds in the Sumitomo Bank Ltd [the said moneys] in
the names of HA Thahir and/or Kartika Ratna Thahir and whether such entitlement arises either under the

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law of the Republic of Singapore as the governing law and/or under the law of Indonesia as the law of the
place having most connection with the rights, obligations and duties of the persons hereinafter referred to
on one or more of the grounds following:
(a)

belong to the plaintiffs absolutely;

(b)

are held subject to a trust in favour of the plaintiffs and not otherwise;

(c)

as being moneys held and received for the plaintiffs’ use;

(d)
being the proceeds of crime or otherwise obtained unlawfully and/or in breach of contract by the
said HA Thahir, should not be disposed of otherwise than to the plaintiffs;
(e)

that the first defendant, having assisted the said HA Thahir in his dishonest and fraudulent design
and/or having participated therein, is in any event liable to the plaintiffs as a constructive trustee thereto.
Decision below
9
The issue was tried before Lai Kew Chai J and he delivered a reserved judgment on 3 December 1992.
The learned judge on the evidence before him found that the moneys in the bank came from Siemens, as to
DM15m, and Klockner, as to DM35m, approximately; that Pertamina had paid Siemens and Klockner, inter
alia, sums of money in respect of the Krakatau Steel project and the infrastructure facilities in the amounts
which were set out in an annexure to his judgment, annexure B, and that there were linkages between those
payments and Gen Thahir’s ACU deposits denominated in deutschemarks; that all the 17 ACU deposits
denominated in deutschemarks were bribes which Siemens and Klockner had paid to Gen Thahir. With respect
to the two ACU deposits denominated in US dollars, the learned judge found that Pertamina had failed to
discharge their legal and evidential burden of proof, and, accordingly, they had no claim to these two sums. The
learned judge held that Pertamina’s claims at law and in equity are governed by the law of Singapore. The claim
at common law is for money had and received and such claim arises in the place of receipt which, in this case, is
Singapore. That claim lies against the person bribed and it also lies against a volunteer who is the recipient of the
money. As for the claim in equity, he found that Gen Thahir held the bribes and all interest earned in the bank as
constructive trustee for Pertamina and that the appellant was hand in glove with Gen Thahir in his dishonest
schemes to receive the bribes and she participated in and/or was privy to the receipt of the bribes, and
accordingly, by reason of her own complicity and conduct, she also became a constructive trustee when she

became a joint account holder and when the legal title thereto vested in her solely upon the death of Gen Thahir.
The learned judge went further and held that under Indonesian law, Gen Thahir was in breach of his contractual
obligation to Pertamina and his death was no bar to a claim in contract, and, further, that Gen Thahir’s receipt of
the bribes and his violation of the Indonesian law and regulations also constituted an act of tort against
Pertamina, and the Indonesian court would have the power to order, and would have ordered, the payment to
Pertamina of the bribes as a proper remedy for his tort. Under Indonesian law, Gen Thahir was a mandatory of
Pertamina and, as such, the Indonesian court would have ordered Gen Thahir, as a mandatory, to pay the bribes
over to Pertamina and would have declared that Pertamina had a proprietary claim to the bribes. As regards
Pertamina’s claim against the appellant, the learned judge found that under Indonesian law the transfer of the
ACU deposits to the joint names of Gen Thahir and/or the appellant was null and void, and as such the appellant
had never obtained, and never could have obtained, any legal title to any of the 17 ACU deposits.
The appeal
10
Against his decision, this appeal has been brought by the appellant; there was no appeal by the
representatives of the estate of Gen Thahir. Following the appeal, Pertamina filed a respondent’s notice, which is
in the nature of a cross-appeal against the learned judge’s decision on the two ACU deposits denominated in US
dollars on which the learned judge held that Pertamina had no claim.
11
At the commencement of the hearing of this appeal, the appellant applied by way of a motion to strike out
the respondent’s notice. We allowed the motion and struck out the respondent’s notice but not on the grounds as

contended by the appellant. We held that the respondent’s notice suffered from a fundamental defect which was
not curable. The learned judge’s decision was that Pertamina had no claim to the two US dollar deposits and that
the bank was to hold the deposits pending, among other things, the outcome of the trial of the second issue
between the appellant and the representatives of the estate of Gen Thahir as to who is entitled to that sum.
Pertamina in the respondent’s notice contended, inter alia, that the learned judge should have found that the two
US dollar deposits were proceeds of bribes and therefore should be paid to Pertamina. This cross-appeal, if
successful, would affect the interest of the estate of Gen Thahir in the two deposits but the representatives of the
estate were not a party in the present appeal. A proper party to the cross-appeal was therefore not before the
court and, on that ground, the cross-appeal could not proceed and be maintained. We accordingly struck out the
respondent’s notice. The proper course to take, if Pertamina wished to appeal against the learned judge’s
decision on the two deposits, is to file a separate notice of appeal joining the appellant and the representatives of
the estate of Gen Thahir as respondents. That they had not done.

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Issues on appeal
12
We now turn to consider this appeal. From the respective cases filed by the parties, the issues before us
are as follows:
(i)
whether, in order to succeed on the amended first issue, it is essential that Pertamina have a
proprietary claim to the ACU deposits;
(ii)
whether the 17 ACU deposits denominated in deutschemarks were bribes which Siemens and
Klockner had paid Gen Thahir, and if so, whether the appellant was privy to the receipt of those bribes;
(iii)
whether, as a matter of conflict of laws, Pertamina’s claim is governed by Singapore law or
Indonesian law or both; and
(iv)
whether, under the relevant law governing the claim, Pertamina have a proprietary claim to the
ACU deposits and interests.
First issue: whether there must be a proprietary claim
13
This issue turns on the nature of the proceedings instituted below. The proceedings were an interpleader
taken out by the bank faced with adverse claims to the moneys held by them, and the court was asked to
investigate the real interests of the competing claimants to the moneys in question. The Supreme Court Practice
1993 in para 17/1/1 at p 272 describes interpleader proceedings thus:
Interpleader is a proceeding by which a person, from whom two or more persons claim the same property
or debt, and who does not himself claim the property or dispute the debt, can protect himself from legal
proceedings by calling upon the two claimants to interplead — that is to say, claim against one another —
so that the title to the property or debt may be decided. [Emphasis added.]
14
The essential question is, therefore, which of the claimants is entitled to the moneys. Counsel for the
appellant argued that, in order to succeed, Pertamina must show that they have a proprietary claim to the ACU
deposits. Pertamina, on the other hand, disputed this and posited a single essential issue: whether Pertamina were
“entitled to” the deutschemark deposits, under either Singapore or Indonesian law, on any of the grounds stated
in the amended first issue. As we see it, the appellant and Pertamina are competing claimants to the ACU
deposits. As the amended first issue recognizes, the essence of it is “entitlement” to the moneys. Hence, even if
what Pertamina maintain is the essential issue, their “entitlement” to the deposits must still be founded on some
title or proprietary interest they have in the deposits. It is not enough for Pertamina to show that they have a
personal claim against Gen Thahir and/or the appellant for recovery of the bribes. They must show that, on one
or more of the grounds stated in the amended first issue, they have some title or proprietary interest in the
deposit. Counsel for the appellant is therefore right when he contended that Pertamina must establish a
proprietary claim in order to succeed on the amended first issue.
15
In Tay Yoke Swee v United Overseas Bank & Ors, this court held that a party’s claim adverse to the claim
of another party to a fund, in respect of which an interpleader relief is sought, must be one relating specifically
to the fund and must be a proprietary claim to the fund and not a personal claim against the other party for an
unliquidated amount or for an account. In holding that the interpleader relief was not available to the applicant,
who took out the interpleader summons, this court concluded thus, at p 225:
In our opinion, on the material before us, the second and third respondents have no claim on the remaining
one-third surplus; that surplus belongs to the appellant. They may have a claim against the appellant in
contract and for an account; that is a personal claim and has yet to be determined. Such a claim is not
adverse to the appellant’s claim to the fund.
16
Accordingly, in this case, if the claim of Pertamina is only a personal claim against Gen Thahir and the
appellant, as opposed to a proprietary claim to the deposits, such claim does not confer on Pertamina any
entitlement, interest or title in the moneys such as to enable them to succeed in the interpleader proceedings. In
our judgment, in order to succeed, Pertamina must show that they have a proprietary claim to the moneys under
the system of law that governs the claim.
Second issue: whether deposits were proceeds of bribes
17
This issue raises several questions of fact. The first is whether Pertamina had established that all or
substantially all of the 19 ACU deposits emanated from, or were directly linked to, their payments to the
German contractors under their contracts in relation to the Krakatau steel project or some other projects of
Pertamina. This in turn involves consideration of two questions: (i) whether Pertamina did in fact pay to the
German contractors the amounts or some of the amounts as they alleged, and (ii) whether the 19 ACU deposits
denominated in deutschemarks were proceeds of bribes and/or secret commissions which the contractors paid to

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Gen Thahir in return for the payments made to them by Pertamina. Pertamina sought to prove that they had from
time to time made payments to Siemens and Klockner pursuant to their contracts or PTKS’s contracts with them
for materials supplied and work done in relation to the Krakatau steel mill and the infrastructures in Cilegon
industrial complex and these payments were those as set out in annexure B; that Klockner had paid to Gen
Thahir bribes at the rate of 13% of each payment made by Pertamina, and similarly Siemens had paid bribes to
him but at the rate of 5% of each of Pertamina’s payment; that Gen Thahir had opened his ACU account with the
Singapore branch of the bank and placed to the credit of his account 19 deposits — 17 denominated in
deutschemarks and two denominated in US dollars; and that 11 out of the 19 ACU deposits matched the
instalments paid by Pertamina to the German contractors in the sense that each of these deposits represented a
precise or substantially precise percentage of the relevant instalment and was paid to the ACU account of Gen
Thahir soon after the payment of the instalment to the contractors. In respect of the eight unmatched deposits,
this was divided into the six unmatched deutschemark deposits and the two US dollar deposits; the latter two
deposits are not relevant and will not be dealt with here, as it has been held by the learned judge that Pertamina
had no claim to them. Voluminous documentary and viva voce evidence was adduced by Pertamina. In
particular, there was the evidence given by one Mr Nur Usman, who was treasurer of the foreign currency
department of Pertamina responsible for payments to foreign contractors, including Siemens and Klockner, and
also the evidence of several officers in the accounts department of Pertamina. Having considered their evidence
and the documents produced with regard to payments made to Siemens and Klockner, the learned judge said, at
p 778:
… Having considered their oral evidence, I am satisfied that in truth and in fact Pertamina had paid
Siemens and Klockner sums of money in respect of the Krakatau steel project and the infrastructure
facilities.
18
The learned judge proceeded further and dealt with the evidence relating specifically to the 11 instalments
paid to the German contractors as set out in annexure B, and examined the documents produced evidencing such
payments: see pp 778–780 of his judgment. He then came to the following conclusion, at p 780:
In the circumstances, my finding is that Pertamina, by the oral evidence of Mr Nur Usman and the other
officers whom I have named, have proved their payments to Siemens and Klockner which are set out in
annexure B. Further, the evidence of Mr Balasubramaniam and Mr Muthu Palaniappan proved Pertamina’s
payment through BNP. In the course of the trial, I have also allowed and admitted evidence pursuant to s
32 of the Evidence Act (Cap 97). These evidence independently satisfied me that Pertamina had made
payments to Siemens and Klockner as they allege and as set out in annexure B.
19
The learned judge next turned to “another source of evidence led by Pertamina to prove their payments to
Siemens and Klockner”: that was the evidence of one Mr Ronald Grund, an accountant who had worked in the
audit department of Arthur Yong & Co, the accountants of Pertamina. Grund was engaged by Pertamina to
examine all the relevant accounting and other records of Pertamina and see if there was any relationship between
Pertamina’s payments to the contractors and Gen Thahir’s ACU deposits. He collected and collated all the
accounting and other records and documents of Pertamina showing payments made to the contractors and related
these payments to the ACU deposits, and it was his evidence that there were linkages between the 11 matched
ACU deposits with the instalment payments made to the contractors. The learned judge accepted his evidence.
He said at p 781:
It was Mr Grund who first discovered the linkages between Pertamina’s payments and Gen Thahir’s ACU
deposits. By a sophisticated computerized programme, he was able to pair off Pertamina’s payments and
the ACU deposits. The percentages of 13% for the Klockner matches, 5% for the Siemens matches, and
the 10% for match 11 were established by his investigative efforts. His entire methodology and the validity
of his findings were confirmed by a piece of evidence which emerged in the early stages of this trial. I
refer to the lack of any documentary evidence bearing on Pertamina’s payments so far as the 10% match
11 is concerned. As has been noted earlier, documents which emerged from discovery during the trial
confirmed that Pertamina had paid Siemens for the power station and the airport projects in Batam Island,
Indonesia. Having reviewed his evidence, I was satisfied that his evidence proved two important issues of
fact in this case. First, his evidence as a whole proved that Pertamina had paid Siemens and Klockner the
sums set out in annexure B. Secondly, his evidence also proved the linkages between Pertamina’s
payments and Gen Thahir’s DM ACU deposits.
20
In addition to all this evidence, there was the appellant’s own affidavit affirmed on 1 February 1980 and
filed in the proceedings below, in which she made no attempt to deny receipt by her husband of “the moneys in
the said deposits”. Her position was that Pertamina were aware of it and that there was nothing surreptitious
about her husband’s activities. She said, inter alia, the following:
My late husband’s only position with Pertamina was that of assistant to the president director, Lt Gen Dr
Ibnu Sutowo. As head of [Pertamina], Gen Sutowo was second only to the President of Indonesia and he
was ‘Pertamina’. My late husband never acted in any manner concerning his role in Pertamina either
directly or indirectly without the knowledge, permission and consent of the president director. In
particular, the president director was fully aware of my late husband’s financial affairs and of the fact that

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he received and held the moneys in the said deposits. There was never any suggestion that any part of
these moneys belonged to or was intended for the benefit of [Pertamina] or that he must account therefor
to [Pertamina]. It is quite wrong, therefore, to suggest that my late husband received or held any funds ‘in
secret’.
21
Lastly, there was also the evidence of Gen Moerdani, Minister of Defence and Security of the Republic of
Indonesia. He was instructed by the President of Indonesia to recover the bribes taken by Gen Thahir.
Accordingly, he established contact with the appellant and had several meetings with her in Geneva,
Switzerland. In summary, his testimony was to the effect that the appellant had told him, at a meeting in Geneva
sometime before 19 or 20 September 1977, that the moneys at the Singapore branch of the bank came from the
Krakatau Steel project. She further told him that the account at the bank was ‘some sort of collecting point’ for
moneys that had been paid by Pertamina to Klockner and Siemens. She specifically mentioned that DM15m and
DM35m came from Siemens and Klockner respectively and that payments were made on every occasion when
Pertamina made a payment to its contractors and that it amounted to 21% at a particular time. The appellant also
told Gen Moerdani that this account would be divided into three equal parts: the first to Gen Sutowo, the second
to Mr Junus Rani and the third to Gen Thahir. She further disclosed that there were two other accounts at the
Singapore branches of the Chase Manhattan Bank and the Hong Kong Bank but the amounts in these accounts
were relatively small and that they were to cover daily expenses. They amounted to US$1.2m. Gen Moerdani
was severely cross-examined by counsel for the appellant and, at the end of the day, his testimony was accepted
by the learned judge who said, at p 775:
At the end of the day, I was left in no doubt that he was clearly and unquestionably undergirded by the
armour of truth. I have no hesitation in accepting his evidence as the whole truth. I therefore find as a fact
that Mrs Kartika Thahir did admit to Gen Moerdani that the moneys in Sumitomo Bank came from
Siemens, as to DM15m, and Klockner, as to DM35m.
22
It was argued before us on behalf of the appellant that Gen Moerdani’s evidence was untrue and/or
unreliable and/or irrelevant. But, no basis for any such assertion was put forward. On the evidence before him,
the learned judge was justified in accepting his evidence.
23
In conclusion, the learned judge found that all the 17 ACU deutschemark deposits were bribes which
Siemens and Klockner had paid Gen Thahir. He said, at p 781:
In view of the overwhelming evidence, I find that in truth and in fact all 17 ACU deposits denominated in
deutschemarks were bribes which Siemens and Klockner had paid Gen Thahir. I would summarize my
reasons as follows. I rely on the admissions of Mrs Kartika Thahir which she made to Gen Moerdani.
Secondly, there is no evidence that Gen Thahir or Mrs Kartika Thahir had any fortune anywhere near the
sums we are looking at. Gen Thahir’s tax returns do not begin to explain any legitimate source or sources
of the ACU DM deposits. Thirdly, the 11 matched deposits, their percentages in relation to Pertamina’s
payments and the dates of their initial deposits in most part following such payments are all telltale
indications of bribes. Fourthly, I refer to Gen Thahir’s and Mrs Kartika Thahir’s misrepresentations to Mr
Hotta and Mr Yamaura of the Sumitomo Bank. I am convinced that Gen Thahir had struck his dishonest
deals with the German contractors and to the knowledge of Mrs Kartika Thahir; they were making banking
arrangements to deposit the bribes in a shroud of secrecy. Fifthly, I turn to the six unmatched deposits in
deutschemarks. I place great reliance on Mrs Kartika Thahir’s admissions. She confessed to Gen Moerdani
that the DM50m in the bank came from Siemens (as to DM15m) and Klockner (as to DM35m). Quite
apart from her admissions, and some of the foregoing reasons, it is not unlikely in this case, as Mr Grund
had explained, that there could be a number of reasons why these six deposits were unmatched.
24
The appellant took issue with the findings of the learned judge and contended that the payments made by
Pertamina to the German contractors were not proven; that there was no sufficient evidence to justify the
conclusions on the 11 matches; that, as far the six unmatched deutschemark deposits were concerned, Pertamina
had not adduced any admissible evidence to prove any payments which Pertamina might have made to Siemens
or Klockner from or out of which those parties might have paid commissions to Gen Thahir. We find no merit in
these submissions. The learned judge’s findings of fact were arrived at after a detailed examination of the
evidence before him. The findings were reinforced by the appellant’s failure to explain the source or sources of
the deposits and her admissions to Gen Moerdani in Geneva. In our opinion, these findings are unassailable.
25
It was submitted that the learned judge appeared to suggest that there was a “duty” on the part of the
appellant to explain the source of the ACU deposits, and, in the absence of such explanation, he drew inferences
adverse to the appellant; by so doing the learned judge reversed the burden of proof which should have been on
Pertamina. This contention is unfounded. The learned judge was fully aware as to where the burden of proof lay;
he discussed this at some length in his judgment: see p 776. Pertamina had satisfied him that they had made out
their case. He then looked to the appellant for some explanations as he was entitled to do, but no explanation
was forthcoming. There was ample evidence adduced before the learned judge which showed that Pertamina had
paid to the German contractors the instalments detailed in annexure B; that over a period of about two and a half
years 17 ACU deposits denominated in deutschemarks had been made to the credit of the ACU account of Gen
Thahir with the Singapore branch of the bank; that, of these deposits, 11 of them matched the instalments in

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annexure B, and that at the date of Gen Thahir’s death, the aggregate amount of these 17 deposits was
DM53,972,374.12. Taking a common sense approach, any reasonable and sensible tribunal would look to the
appellant or those representing the estate of Gen Thahir for an explanation for, or information of, the source or
sources of such enormous wealth which came to Gen Thahir in such a short space of time. No explanation or
information whatsoever was forthcoming, either from the appellant or anyone on her behalf or on behalf of Gen
Thahir.
26
For the reasons we have discussed, we are in entire agreement with the learned judge’s finding that all the
17 ACU deposits denominated in deutschemarks were bribes which Siemens and Klockner had paid Gen Thahir.
On the evidence before the learned judge, we do not see how he could have arrived at any other conclusion.
27
The next question is whether the appellant was privy to Gen Thahir’s receipt of the bribes. The learned
judge found that she “was hand in glove with Gen Thahir in his dishonest schemes to receive the bribes and that
she participated in and/or was privy to the receipt by Gen Thahir of the bribes which funded the 17 ACU
deposits denominated in deutschemarks.” This finding was challenged before us and it was submitted on behalf
of the appellant that the learned judge was wrong to infer her knowledge and participation in her husband’s
schemes to receive the bribes. We are unable to agree. There was ample evidence available for such an inference
to be drawn. There was the evidence that the appellant actively participated with Gen Thahir in opening the
accounts and negotiating the precise terms with Mr Shozo Hotta, chairman of the Sumitomo Bank Ltd. The
appellant’s own affidavit, affirmed on 1 February 1980 (to which we have referred), is particularly telling as to
her knowledge of her husband’s activities. In addition, there were her admissions made to Gen Moerdani in their
discussions. In the face of all this evidence she had not come forward to give any evidence to the contrary.
Third issue: which is the governing law?
28
This is a conflict of laws issue and the question is which of the two systems of law, Singapore law or
Indonesian law, governs the determination of the claim of Pertamina. Before the learned judge and also before
us, parties have in their arguments dealt with the claim as follows: (i) claim at common law and (ii) claim in
equity. The learned judge has considered this issue on that basis. As a matter of convenience, we shall also
consider this issue along that line, first with reference to the claim at common law, and secondly the claim in
equity, though it seems to us unnecessary to categorize common law claims and equitable claims in an issue
involving conflict of laws for the purpose of determining the relevant substantive law applicable.
29
On this issue, the arguments before the learned judge, as well as before us, centred around the following
rule stated in Dicey & Morris on The Conflict of Laws (12th Ed, 1993), at p 1471:
Rule 201
(1)
The obligation to restore the benefit of an enrichment obtained at another person’s expense is
governed by the proper law of the obligation.
(2)

The proper law of the obligation is (semble) determined as follows:
(a) If the obligation arises in connection with a contract, its proper law is the proper law of the
contract;
(b) If it arises in connection with a transaction concerning an immovable (land), its proper law is
the law of the country where the immovable is situated (lex situs);
(c) If it arises in any other circumstances, its proper law is the law of the country where the
enrichment occurs.

30

With reference to this rule, the learned judge said as follows, at p 785:
I shall now set out what in my view is a proper reading of r 203 of Dicey and Morris. Whilst the obligation
to restore an unjust benefit may or may not arise in connection with a contract, the receipt of bribes, in all
circumstances, will always fall under sub-r 2(c). The primary concern of parties in such a case is always to
obtain recovery of moneys in the place of receipt or the place of enrichment. Its law should logically be
the proper law of the obligation. I am aware that the Dicey and Morris explanation of sub-r 2(c) of the rule
refers to the situation where benefit is conferred upon another person with whom no prior contract exits. In
the authors’ contemplations were circumstances where moneys were wrongly credited due to a mistake of
fact: eg Chase Manhattan.

31
The appellant’s argument is that r 201(2)(a) is the rule that provides the relevant choice of law in this case
and that r 201(2)(c) only applies “in any other circumstances”, that is, in circumstances where the obligation
does not arise “in connection with a contract” and “a transaction concerning an immovable”. The present case
was founded on the “assertion that Gen Thahir was in breach of some “duty” as an employee of Pertamina, ie in
connection with a contract of some kind and, therefore, the proper law was Indonesian law.” Counsel for the

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appellant relied on the following commentary on r 201(2)(c) in Dicey & Morris at p 1476:
Where money is paid to, or a benefit is conferred upon, another person with whom no prior contract exists,
and it is alleged that the money is recoverable, eg because of a mistake of fact, the enrichment is likely to
be most closely connected with the law of the country in which it accrued. Thus, if A who is resident in
England owes money to B, but by mistake pays it to X who is resident in France, X’s enrichment and
therefore A’s claim for its restitution are likely to be most closely connected with French law. In this case,
the proper law of the obligation is that of the country in which the immediate benefit was received. If the
payment had been made at the Paris branch of an English bank to be credited to the account of X at the
London office of the same bank, it is arguable that the proper law of the obligation is English law, ie that,
in this case, the law of the country in which the immediate benefit was received is less closely connected
with the obligation than the law of the country in which the ultimate enrichment occurred.
32
He submitted therefore that r 201(2)(c) only applied when there was no prior contract. This, in our
opinion, is too restricted a reading of the commentary and it detracts from the “all other circumstances” role of
r 201(2)(c). The above commentary should be read in the context of restitution for moneys paid under a mistake
of fact.
33

It is important to set out the following passage in Dicey & Morris which states the scope of r 201(2)(a):
Although the obligation to restore an unjust benefit does not arise from a contract, it may, and very
frequently does, arise in connection with a contract. This is the case where a party seeks to recover money
paid pursuant to an ineffective contract, eg by reason of a total failure of consideration or as a repayment
of money paid under an illegal contract or where he claims a quantum meruit for work done or services
rendered under a contract which turned out to be void. In all these and similar cases, it is submitted that the
existence and the scope of the obligation to restore the benefit are governed by the law which governs the
contract, or by what would have been the governing law of the contract, if it had been validly concluded.
[Emphasis added.]

34
It is clearly not possible to say that recovery of bribes falls within the category of recovery of money paid
pursuant to an ineffective contract or that it constitutes a similar case.
35
In this case, Pertamina’s claim at common law is for money had and received. With regard to the basis of
this claim, it is instructive to refer to T Mahesan s/o Thambiah v Malaysia Government Officers’ Co-operative
Housing Society Ltd, in which the Privy Council held that where an agent has been bribed, the principal has, as
against the briber and the agent bribed, two distinct remedies: (i) he may recover the bribes as money had and
received, and (ii) he may recover damages for fraud, under which he can recover the amount of actual loss
sustained in consequence of his entering into the transaction in respect of which the bribe was given. Lord
Diplock in delivering the judgment of the Board explained the basis of such claim at p 380:
By the early years of the 19th century it had become an established principle of equity that an agent who
received any secret advantage for himself from the other party to a transaction in which the agent was
acting for his principal was bound to account for it to his principal: Fawcett v Whitehouse (1829) 1 Russ &
M 132. The remedy was equitable, obtainable in the Court of Chancery, and there appears to be no
reported case at common law for the recovery of a bribe by a principal from his agent before the Judicature
Act 1875. …
This right of the principal to recover the amount of the bribe from the agent does not depend upon his
having incurred any loss as a result of his agent’s conduct: Reading v A-G [1949] 2 KB 232; [1951]
AC 507. But the giving of the bribe was treated in equity as constructive fraud on the part of the giver and
where it was given in connection with a contract between the principal and the briber, the principal was
entitled to rescission of the contract. [Emphasis added.]
36
Later, after referring to the case of Bagnall v Carlton and Mayor, Alderman and Burgesses of the
Borough of Salford v Lever, he said, at p 381:
The liability of the briber to the principal for damages for the loss sustained by him in consequence of
entering into the contract in respect of which the bribe was given is a rational development from his
former right in equity to rescission of the contract. The cause of action against the briber was stated by
Lord Esher MR and Lopes LJ [in Salford Corp v Lever] to be fraud, and, since the agent was necessarily
party to the bribery, it follows that the tort was a joint tort of briber and agent, for which either or both
could be sued. [Emphasis added.]
37
It is clear from the judgment that the basis or origin of the claim lay in the fact that equity regarded the
giving of a bribe as a constructive fraud on the part of the giver, and as the bribed agent was necessarily a party
to the bribery, it follows that the receiving of the bribe was equally a constructive fraud on the part of the bribed
agent. In our opinion, the principal’s remedies against the briber and the bribed agent have no contractual origin
or connection. In our opinion, the basis of this claim is equity. In so far as the bribed agent is concerned, in

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equity it is unconscionable for him to retain the bribe and he is obliged to hand it over to the principal. We agree
with the trial judge that, in this case, the obligation to restore the bribes does not arise in connection with the
contract and that it falls within r 201(2)(c). Accordingly, in our judgment, it is governed by Singapore law.
38
We find support for our view in the case of Re Jogia (a bankrupt), ex p Trustee of the Property of the
Bankrupt v D Pennelier & Co Ltd. There, an action for money had and received was brought by the trustee in
bankruptcy to recover, inter alia, moneys paid out by the bankrupt’s agent to the defendant (a French company)
after the date of the receiving order. The main question was whether leave to serve the writ out of jurisdiction
under O 11 of the English RSC should be granted. The arguments before the court raised, inter alia, the question
whether such a claim fell within what is now the English RSC O 11 r 1(1)(d) on the basis that the quasicontractual obligation of the French company to restore the payments to the trustee fell to be treated as “made”
in England and therefore governed by English law. Sir Nicolas Browne-Wilkinson V-C did not regard such
obligation as made or arising in England, notwithstanding the fact that payment in that case was made pursuant
to a contract between the bankrupt and the French company. He held that r 201(2)(c) in Dicey & Morris was
“sound in principle” and applied it. He said, at p 495:
As at present advised, I am of the view that quasi-contractual obligations of this kind arise from the receipt
of the money. I find it difficult to see how such obligation can be said to be ‘made’ or ‘arise’ in any place
other than that of the receipt. As to the proper law, Dicey & Morris, The Conflict of Laws (10th Ed, 1980),
p 921, expresses the view that, save in cases where the obligation to repay arises in connection with a
contract or an immoveable, the proper law of the quasi-contract is the law of the country where the
enrichment occurs. This accords with the American Restatement and seems to me to be sound in principle.
39
Both counsel for the appellant and Pertamina addressed this court on two additional cases reported since
the decision of Lai Kew Chai J. The first is Hongkong and Shanghai Banking Corp Ltd v United Overseas Bank
Ltd. There, U, an employee of the plaintiffs in their branch in Manila, transferred moneys belonging to the
plaintiffs from their branch in Manila to New York and finally to Singapore. U then collected a substantial part
of the funds by means of separate demand drafts, one of which was for the sum of US$200,000. The draft for
US$200,000 was used to establish an ACU account with the defendants. The plaintiffs sought a declaration that
they were entitled to the moneys in the ACU account with the defendants. One of the issues raised was: what
law governed the plaintiffs’ claim to the money? Michael Hwang JC in determining this question applied r 201
(2)(c) of Dicey & Morris on The Conflict of Laws and held that the law of the obligation to restore the benefit of
an enrichment is the law of the country where the ultimate enrichment occurred, and, in that case, the ultimate
enrichment occurred in Singapore. Accordingly, the law of Singapore was held to be the governing law.
Rule 201(2)(a), however, was not considered notwithstanding the existence of a contract of employment
between U and the plaintiffs, which presumably was governed by the law of the Philippines, and consequently
the distinction between paras (a) and (c) of r 201(2) was not argued. In the circumstances, the learned judicial
commissioner was bound to apply Singapore law. For that reason, this case is not of much assistance here.
40
It is the second case, Arab Monetary Fund v Hashim (No 9), which is of importance, and the facts there
bore some similarity with those in the case at hand. It arose out of a single payment of US$1.8m made by a
company, BSS, to a Swiss bank account in Switzerland. The plaintiffs alleged that the payment was a bribe paid
to their president, Hashim, as their agent in connection with the building of their offices in Abu Dhabi. The
building contract for the offices was made between the plaintiffs and a company, BSME. Both BSS and BSME
were part of the Bernard Sunley group of companies. The plaintiffs claimed the amount or damages from BSS
and BSME, as payers, and from Hashim, as payee. There was no shortage of foreign (ie non-English)
connections in the case. First, the contract of employment between the plaintiffs and their agent, Hashim, was
governed by the law of Abu Dhabi and was performed in Abu Dhabi where the plaintiffs and Hashim, for the
period of his employment, were resident. Secondly, the building contract for the construction of the offices in
Abu Dhabi was governed by the law of Abu Dhabi. Thirdly, payments were made by the plaintiffs to BSME, a
Lebanese company registered in Abu Dhabi, for the purposes of the building contract and administered locally in
the Gulf from Dubai. Fourthly, although the agreement between Hashim and the Bernard Sunley group to pay
the bribe was made in London, it resulted in the US dollar payment being made by BSS in London to a Swiss
bank account for Hashim; in other words, the place of receipt of the fund was Switzerland.
41
The plaintiffs argued that the claims should be governed by English law. The claim arose directly or
indirectly out of a corrupt agreement between the contractors and the plaintiffs’ agents and the agreement was
made in England. This and other factors led to the conclusion that English law should govern the claims. The
defendants, on the other hand, contended to the effect that the law of Abu Dhabi governed all the claims.
Hashim was employed in Abu Dhabi and their relationship was governed by the law of Abu Dhabi. The building
was built in Abu Dhabi and the building contract was governed by the law of Abu Dhabi. Evans J, after having
referred to these rival contentions, then considered r 201(2) of Dicey & Morris on The Conflict of Laws and held
that the law of Abu Dhabi governed the claims.
42
It seems to us clear that, from the facts and arguments in that case, there emerged three choices before
Evans J: the law of Switzerland, which was the place of receipt of the bribe; the law of England