SOLICITOR General Kim Kyte-Thomas has argued that former Finance Minister Dr Ashni Singh and former National Industrial and Commercial Investments Limited (NICIL) Chief Executive Officer (CEO) Winston Brassington were reckless and breached their positions of trust when they sold prime state properties below market value.

Kyte-Thomas made the comments when she defended the state’s case against Singh and Brassington, who are both charged on three counts of misconduct in public office, contrary to the public law. They have challenged the charges, and presiding over the case is Chief Justice (CJ) (ag), Roxane George-Wiltshire.

On Wednesday, the state was given the opportunity to respond to the contentions of the appellants. Leading the defence, Kyte-Thomas highlighted that several contentions were made through written submissions; however, she addressed the issues of misconduct and recklessness, as those were the ingredients of the offence. Kyte-Thomas said that the allegation was made by the state that no valuation was done before those properties were sold. That is why the DPP, she said, made the contention that at least the minimum requirement should have been a valuation from the government’s valuation office.

“They have got to be prudent vendors. It’s not their personal property that can just be disposed freely. They were in a position of trust, holding public property on trust. And that is why I indicated in my submissions that the offence is in breach of trust. The ingredient of the offence,” Kyte-Thomas argued.

In addition to the no valuation being done contention, Kyte-Thomas also mentioned that a subsequent valuation was done by Rodriques Architects Associates; and the value at which the properties were sold was far below the value of the valuation done by Rodriquez.

The contention in that regard, she said, is that they took the time to do a valuation by ‘Rodrigues’, but then they sold it for almost half of that. “This is not property owned by Ashni Singh and Brassington… The offence is the serious departure from proper standards…abuse of the public’s trust of the office holder… You are dealing with the state’s property,” she continued to argue.

Kyte-Thomas also pointed to the appellants’ affidavits where they too accepted that the selling price must be a fair market value. “A valuation certainly will assist in determining what the market value is, even if there are other factors which can contribute, the valuation is the starting point…That is where the issue [sic] of conduct and recklessness comes [sic] in,” she said. The SG continued to argue emphatically on the grounds of the state’s contention, addressing issues identified by the CJ. The matter was then adjourned and is set to continue on Thursday, when a decision is likely to be made.

After the charges were made and heard in the Magistrates’ Court, the duo had filed fixed-date applications at the High Court against the decision of the director of public prosecutions (DPP) to charge them.

The first charge alleges that on Monday, December 28, 2009, by way of an agreement of sale and purchase, they “acted recklessly” when they sold to National Hardware Guyana Limited, lands amounting to 103.88 acres, property of the state for the sum of $598, 659, 398 (Vat exclusive) without first having procured a valuation of the said property from a competent valuation officer.

The second charge alleges that the duo on Tuesday, December 30, 2008, by way of agreement of sale and purchase “without due diligence” sold to Scady Business Corporation, land located at Liliendaal, ECD, amounting to 4,700 acres, also the property of the state for the sum of $150,000,000 knowing that the said property was valued at $340,000,000 by Rodrigues Architects Associates.

The final charge alleges that the former finance minister and the former NICIL CEO on Saturday, May 14, 2011, by way of agreement of sale and purchase, “acted recklessly” when they sold to Multi-Cinemas Guyana Inc. 10, 002 acres of land located at Turkeyen, ECD, property of the state for the sum of $185, 037,000 without first having procured a valuation of the said property from a competent valuation officer.

However, attorneys Anil Nandlall and Ronald Burch-Smith who are representing the duo are arguing that the allegations are illogical and incapable of truth. Their arguments were heard at several hearings before Acting Chief Justice (CJ) Roxane George, where the two attorneys emphasised that Singh and Brassington were acting as part of a collective. Singh as a member of cabinet and both Brassington and Singh as members of the board of directors. They stressed that their clients were simply carrying out the decision of these two agencies, and they have been charged and not the other members of the cabinet, nor the other members of the board.

Mr. Nandlall further emphasised that the charges filed are unprecedented and the charge of misconduct has never been instituted. The common law for misconduct of Public officer cannot be applied to Guyana, since it is not within the Constitution of Guyana, he said.
Addressing the question of “misconduct” as is used in the allegation, Nandlall argued that selling a property below market value is not unlawful; and there is no allegation that states that Singh and Brassington acted dishonestly.

The allegation said they acted “recklessly”, due to the fact that they executed transaction without valuation. So Nandlall questioned if selling a plot of land without collecting valuation certificate is against the law. Explaining in his own words that all the valuation is, is someone’s opinion, and not conforming to someone’s opinion doesn’t make you a criminal.