In Case You Missed This Week’s Show, Listen Here
When the BVI commercial court returns next week to the consideration of Government’s alleged ownership of 51% of a company set up to develop the controversial Layou River Economic Citizenship property, much is expected to turn on the cross examination of former Ambassador to Beijing David Hsiu and his henchman Kieron Pinard-Byrne.
It’s a story of documented evidence versus self serving oral submissions after the fact and incompatible with the truth.
As you follow the on-going saga, pay careful attention to the timeline in so far as it concerns the gift of the shares, the various confirmations of the share transfer and the failure to register the share transfer as required:
November 18, 2005 – Lucy Ma director of Rich Victory writes to PM Skerrit advising him that arrangements have been finalised for the transfer of Rich Victory’s 51% shareholding in Shangri-La ($69.3 million) to the Government of Dominica on the eve of the official opening of the first phase of the Layou development project or sooner if mutually agreed. Letter named Kieron Pinard-Byrne as escrow agent for the shares.
November 28, 2005 – PM writes to Felix Chen
“Please be informed that my Government has officially received from Rich Victory Investment Limited transfer of its 51% equity of record in IDM’s parent company”.
NOTE: IDM’s parent company is the Shangri-La International Holdings Limited
The 51% equity in Shangri-La carried a May 2005 value of 25.5 million U-S dollars or 69.3 million EC dollars
Letter copied to Ambassador David Hsiu and Ambassador Ye Dabo
Letter delivered to Felix Chen in China by David Hsiu’s assistant
76 days later…
February 12, 2006 – PM signs as transferee a Shangri-La International Development Holding Limited Instrument of Transfer:
“We Rich Victory Investment Limited, a company incorporated under the laws of the British Virgin Islands (the transferor) in consideration of the sum of one U-S dollar paid to us by the Government of the Commonwealth of Dominica (the transferee) do hereby transfer to the transferee twenty five thousand five hundred shares of Shangri-La International Development Holding Limited”.
The signatories on that Instrument of Transfer are Rebecca Chang and Lucy Ma – directors of Rich Victory – the transferor; Roosevelt Skerrit representing the Government of Dominica as transferee; and Kieron Pinard-Byrne as witness.
NOTE: Copy of signed document was delivered to Felix Chen in Dominica by Kieron Pinard-Byrne
April 17, 2006 – Boss & Young, counsel for Rich Victory, writes to Felix Chen following consultations with David Hsiu:
“Dominica Government will not become 51% of company until the First Phase development project at Clark Hall Estate has been completed; your shareholder is still Rich Victory Investment Ltd.”
April 18, 2006 – Board of Directors of Shangri-La approve the transfer of 51% of the company’s issued share capital to the Government of Dominica
April 19, 2006 – PM writes to Felix Chen
“I refer to our meeting on April 18, 2006 and hereby confirm my government’s summary position on key issues as discussed…
“… The appointment of KPB Chartered Accountants as the company’s auditors is hereby ratified… Finally, I would note that the existing disputes amongst the company’s shareholders needs to be resolved to ensure the future success of the company. I therefore hereby mandate that the company expands the scope of the Auditor’s engagement to make recommendations for the resolution of all such disputes and that the disputing shareholders fully cooperate with the company’s auditors to ensure that the mediation process is carried out as a matter of urgency”.
NOTE: Letter copied to Ambassador David Hsiu and Kieron Pinard-Byrne
Letter delivered to Felix Chen in Dominica by Rebecca Chang
April 27, 2006 – Kieron Pinard-Byrne writes to Sino Union (Felix Chen) confirming that in the matter of Government shares in Shangri-La, he is in possession of a duly executed Directors Resolution to effect and issue the share certificate through the Shangri-La’s registered agent
“As you are aware I have been holding the executed transfer in escrow pending completion of the first phase of the project but recent instructions are that registration must now proceed…”
May 03, 2006 – PM writes to Felix Chen
“You have requested the company’s auditors to advise you on who will be the director representing the Government of Dominica in Shangri-La.
“Please be advised that Shangri-La’s present Board of Directors should remain in place until the company’s Annual General Meeting of shareholders expected to be held within the next two months. Government will therefore not appoint a representative to the Shangri-La Board until the meeting.
“In the circumstances, we shall continue to liaise on all corporate matters for which government’s instructions and/or advice is required through Mr. Kieron Pinard-Byrne of KPB Chartered Accountants, the company’s auditors.
NOTE: Letter copied to Ambassador David Hsiu and Kieron Pinard-Byrne, KPB Chartered Accountants
Letter was faxed to Felix Chen in China from the office of Kieron Pinard-Byrne in Dominica
June 13, 2006 – Auditor Keiron Pinard-Byrne issues a draft audit report in which he questions the compatibility of the equity voting rights of Government as the majority shareholder with certain provisions of the agreement
“We also note that pursuant to the transfer of 51% majority control of the Group to the Government of Dominica in February 2006 that certain provisions of the Agreement may in the future be incompatible to the equity voting rights of the new majority shareholder and/or may be unenforceable by the parties.
“In the circumstances the status of this Agreement as a matter of priority needs to be reviewed as between the parties thereto”.
June 19, 2006 – Ambassador David Hsiu writes to PM Skerrit resigning as Government’s honorary Liaison officer for Clarke Hall Estate Development projects and confirming formal recognition of Government’s majority shareholding in Shangri-La.
“It was therefore just and fitting in the long term best interest of Dominica that 51% of the equity ownership of Clarke Hall Estate be formally transferred to the Government of Dominica. I so advised and the formal transfer from the silent (majority) joint venture partner was executed in February 2006”
(The attorneys who will cross-examine both Hsiu and Pinard-Byrne believe this particular letter from then Ambassador Hsiu, the mastermind behind this elaborate scheme of trickery and deception, is materially significant in the factual matrix of the efficacy of the contract)
July 04, 2006 – Pinard-Byrne writes to Felix Chen about a delay in registering the transfer of shares that has nothing to do with the Government of Dominica:
“I would note that this further delay in procedure to register the subject transfer does not in any way affect Government’s 51% ownership of the Shangri-La Group in accordance with the approved transfer document”.
July 18, 2006 – Auditor Keiron Pinard-Byrne issues what he later described as “a damning but entirely professional and justified qualified auditor’s report” to the shareholders of Shangri-La
July 24, 2006 – Chairman of Rich Victory Lucy Ma writes mediation/consultation letter to Pinard-Byrne in which it is confirmed that:
“On February 12, 2006, Rich Victory Investment Ltd. transferred 51% of its equity in Shangri-La to the Government of Dominica for US$1 to compensate the Commonwealth of Dominica for that failure of specific performance and default; resulting in Rich Victory Investment Ltd suffering substantial financial loss and damage. Mr. Felix Chen approved the said transfer on April 18, 2006”.
August 14, 2006 – Kieron Pinard-Byrne issues a mediation report with no input from Felix Chen and/or Sino Union one of two parties in the dispute he allegedly mediated
August 29, 2006 – Kieron Pinard-Byrne writes to the Board of Directors of Shangri-La confirming receipt of share application forms from the Government of Dominica in respect of its 51% stake in Shangri-La
November 4, 2006 – PM Skerrit writes to Ambassador David Hsiu objecting to the May 2005 sale of Rich Victory shares to Felix Chen and accusing Ambassador Hsiu of using concessions granted by government for personal multi-million dollar profit. That letter referred to the Ambassador’s conduct in the matter as unacceptable, intolerable, irresponsible, and against the people’s interest. Significantly, the Prime Minster also asked his Ambassador to repay Mr. Chen the 20 million U-S dollars used to purchase the 40% interest in Shangri-La
November 08, 2006 – Pinard-Byrne claims (in 2008) that he “learned from the Prime Minister via telephone that it would be unacceptable to government to pursue the intended transfer further”
November 24, 2006 – Escrow Agent, Pinard-Byrne, cancels the Instrument of Transfer
September 28, 2007 – Attorneys for Rich Victory Investments Ltd King and Wood: “In the auditor mediation report… you will note that at a certain point in time, our client intended to transfer our shares in Shangri-La to the government of the Commonwealth of Dominica… The proposed transfer of the shares to the government was never complete and our client still remains the 55% shareholder of Shangri-La”.
That September 28, 2007 correspondence to Deloitte and Touche, auditors for the Sino Union also contains a threat to wind up Shangri-La in the British Virgin Islands sometime after October 12, 2007
November 8, 2007 – Prime Minister Roosevelt Skerrit tells parliament that “the Government of Dominica owns the equitable interest in the majority shares in Shangri-La”
February, 2008 – Hsiu files suit in the BVI seeking to liquidate the Shangri-La. The government of Dominica is not named as a party to the action.
May, 2008 – Felix Chen files suit in the BVI seeking a rectification of the share register of the Shangri-la and names the government of Dominica as a defendant.
The record shows that Pinard-Byrne, presumably on instructions from David Hsiu, embarked on a consistent course of conduct in which he frustrated his own duty to register the share transfer in favour of the very Government that he agreed to serve
In November 2005, he accepted from Lucy Ma’s letter, the narrow terms under which his escrow agency for the share transfer was designed to operate. He was obligated to hold the share transfer instrument in escrow until completion of the 1st phase of the project or sooner if mutually agreed.
That is the only condition on record authenticated with signatures in written correspondence
Yet after the fact, Pinard-Byrne was somehow able to concoct this elaborate case widening the terms of his escrow agency and introducing conditions for the transfer of the shares that were never agreed. He actually concedes that “conditions were not reduced to writing by the parties”. But then he hastens to add:
“They were nevertheless agreed between them and were fully binding on them and upon me as their appointed escrow agent… Moreover, I appreciated that until the required 2005 audited financial statements of the company were available, it would have been premature for the Prime Minister to submit to his Cabinet a paper seeking Government approval for the conditional instrument of transfer”.
In his 2008 affidavit, Pinard-Byrne claims that he had two separate meetings with the Prime Minister during which it was made clear to him that “the government (Dominica having a Cabinet form of Government, the instrument of Transfer was subject to the approval of Cabinet) would only accept the transfer of a 51% shareholding in the company, if the following conditions were fulfilled to its satisfaction:
(a) Unqualified audited financial statements of the company for the year ended December 31st, 2005, and other such due diligence as may be advisable
(b) Completion of the 1st Phase High School Project
Also in his 2008 affidavit Pinard-Byrne claims that on July 18, 2006, he issued “a damning but entirely professional and justified qualified auditor’s report” to the shareholders of Shangri-La as a result of which he claimed (in 2008) “government could not be expected to accept membership in the company and did not do so in accordance with the first condition attached to the instrument of transfer”.
In 2007, Pinard-Byrne told the media:
“It is alleged that I am a witness to a forged Shangri-La International Development Holding Limited Instrument of Transfer. That allegation is untrue. On the contrary the subject Instrument of Transfer necessarily required a due diligence process and was rendered null and void by Auditors Reports to That Company’s shareholders and Directors dated June 13, 2006 and July 18, 2006…”
There is no specific statement in either report that renders null and void the transfer of the 51% majority shareholding in Shangri-La to the Government of Dominica
The court has already been asked to cast a jaundiced eye on Pinard-Byrne’s use of alleged discussions, alleged oral agreements and alleged instructions unsupported by documents on account of the very serious credibility questions that they raise.
{ 1 comment… read it below or add one }
pinard is not to be trusted. he is the same man who was advising Maroni on the finances of Marpin, why did he allow maroni to go thus far and condemn him today. He is an irish crook and will soon be found out.Ask Grace Tonge about him, she knows. He will eventualy be driven out of Dominica for good.