FORMER Finance Minister Winston Jordan, who was slapped with a misconduct in public office charge on Tuesday for the sale of prime water-front properties to BK Marine Inc, was warned of the possibility of being prosecuted for the offence before completing the transaction.

In a legal opinion, dated January 18, 2019, to the then Ministry of Public Infrastructure, Attorney-at-Law Ronald Burch-Smith highlighted that “public officers should be concerned about whether a decision to sell government land at overly generous prices can result in civil or criminal sanction to them personally.”

The wharf, situated at Mudlots one and two, Lot F of Mudlot three and Lots A, B and D, North Cummingsburg Georgetown, was vested to BK Marine Inc. by the former A Partnership for National Unity + Alliance For Change (APNU+AFC) Government days after the March 2, 2020 elections.

The property, valued at approximately $8 billion, was offered for sale to BK Marine Inc. by former Chief Executive Officer (CEO) of the National Industrial and Commercial Investments Limited (NICIL), Horace James, for the sum of $202,602,759, but only a mere 10 per cent of the purchase price was paid by BK Marine Inc. for the property when it was vested by Jordan.

In 2006, NICIL leased the property to Brian Tiwarie, on behalf of BK Marine Inc., for a term of 20 years, with an annual rent of $10 million, plus Value Added Tax (VAT) subject to inflation.

The Agreement of Lease allowed BK Marine Inc. the option to purchase the premises for the sum of $110 million, subject to the condition that within four years of the Mayor and City Council (M&CC)’s approval of the construction plans, the scope of works shall be completed.

Further, a letter dated October 25, 2011 sent to BK Marine Inc. in respect of the wharf at the premises, stated that NICIL would be willing to transfer the leased property at a sale price of $110,000,000 plus VAT on a conditional offer, however, the agreement was never executed.

After the change of government in 2015, on October 23, 2017, former CEO of NICIL Horace James wrote BK International Inc. offering to sell the said property for the sum of $202,602,759, despite the breaches to the agreement.

Bruch-Smith, in his legal opinion, referenced the offence of Misconduct in Public Office, examining the elements of liability, and, using local case law for comparison, noted that “the sale of water-front property in and around Georgetown for $110,000,000 seems particularly generous in the current economic climate.”

He further noted: “A decision to revert to the 2006 rate, where the intended tourism development has been abandoned may be difficult to justify on economic or public interest terms. Ministers or other public officers who consent to these terms will be exposed to criminal prosecution.”

Burch-Smith also warned of civil proceedings, in that he noted, “The sale to BK International on what appears to be very favourable terms … may also give rise to civil claims against the decision makers.”