Duncan: Prime suspect in Air India bombing, Ripudaman Singh Malik, seeks legal aid; owns 57 leaky rotten condos with million dollar repair bill; evidence discloses vast sums of money move in and out of the many business and personal accounts

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

HMTQ v. Malik,

 

2003 BCSC 1439

Date: 20030919

Docket: CC010287

Registry: Vancouver

Between:

Her Majesty the Queen

 

And

Ripudaman Singh Malik

 

 

Applicant

 

 

Before: The Honourable Madam Justice Stromberg-Stein

 

Reasons for Judgment

 

(IN CHAMBERS)

 

Counsel for the Crown:

J. Waddell, Q.C.

and S. Martorana

 

Counsel for the Applicant:

M.K. Woodall

Counsel for Ms. Raminder K. Malik:

 

A.I. Nathanson

 

Date and Place of Hearing:

August 5, 6, 7, 8, 11, 12, 13, 14 and September 2, 3, 4 and 5, 2003

 

Vancouver, B.C.

 

INTRODUCTION

 

[1]            Ripudaman Singh Malik applies for Charter relief by way of a Rowbotham order in aid of his constitutional right to a fair trial.  The Attorney General concedes Mr. Malik cannot receive a fair trial without the assistance of counsel. 

[2]            The issue is whether Mr. Malik has the means to pay for his defence or to make a contribution.  To date, pursuant to an interim funding agreement, the Attorney General has paid Mr. Malik’s 11 member defence team $3,615,572.33.  It is estimated the cost of counsel to the end of trial, exclusive of several hundred thousands of dollars of computer costs, will be $2,715,360.

JURISDICTION

 

[3]            With the agreement of the trial judge, the Associate Chief Justice assigned me, a judge of the trial court, to hear this Rowbotham application made during the course of the trial.  As a practical matter, this unusual procedure was necessary to preserve the appearance and perception of fairness and the integrity of the trial process because Mr. Malik testified on this application.  The trial judge, sitting alone without a jury in a lengthy and complex trial, must remain unaffected by any findings of credibility.  All counsel agree I have jurisdiction to deal with this Rowbotham application with one proviso: counsel say the composition and cost of the defence team, previously determined by the trial judge as necessary to a fair trial, is a matter which remains within his exclusive jurisdiction.  I add that I am not aware of any authority which supports my having jurisdiction to grant a stay of proceedings of another judge’s trial.

BACKGROUND

 

[4]            In October 2000, Mr. Malik was arrested and charged with multiple counts of first degree murder, and he is now being tried in what has become known as the Air India trial.  In 1985 a mid-air explosion downed an Air India flight killing 329 people.  A lengthy public investigation followed this notorious terrorist act.  From the outset Mr. Malik knew he was a prime suspect.  In 1997, he consulted a lawyer.

[5]            At his bail hearing in December 2000, Mr. Malik presented evidence that he and his wife were equal business partners in an import clothing business and various real estate holdings, including an 88 room hotel, which assets had a net worth of approximately $12 million.  The December 2000 Personal Net Worth Statement filed at the bail hearing revealed assets of $18,680,763.85, joint debts of $7,032,324.00, for a total net worth of $11,648,439.85. 

[6]            In November 2001, Mr. Malik approached the Attorney General to fund his defence as his trial was imminent and trial preparation was necessary.  He asserted that he had assets, although those assets were not in the form of cash, and liquidating them for his legal fees would require time.  In February 2002, negotiations between counsel for Mr. Malik and the Attorney General led to an interim funding agreement (“the Defence Counsel Agreement”).  This agreement acknowledged that Mr. Malik had assets to contribute to his defence, which assets would be liquidated or funds from those assets would otherwise be obtained and applied to his legal fees.  It was simply a matter of ascertaining the exact amount of Mr. Malik’s interest in the assets and canvassing options to maximize value.  

[7]            The Defence Counsel Agreement was entered into so funding could commence immediately.  The Attorney General advanced funds in good faith based on Mr. Malik’s representations. 

[8]            The Attorney General never agreed that Mr. Malik was indigent and continually sought more information to determine Mr. Malik’s true financial worth.  There was no question that Mr. Malik had an obligation to contribute to his legal fees; it was agreed that he would discharge this obligation by either paying or transferring his interest in all of his assets to the Province, or by liquidating his assets and applying the proceeds to his legal costs. 

[9]            The Attorney General was concerned about the delay in realizing funds from Mr. Malik’s assets and sought to formalize Mr. Malik’s indebtedness with security for that debt.

[10]        Subsequently, Mr. Malik claimed he was insolvent because his assets were insufficient to discharge his liabilities.  Mr. Malik said his unsecured creditors, all family members, took priority over his obligation to contribute to his legal fees.  He claimed his net worth was zero.  Because he was insolvent Mr. Malik claimed he had no duty to contribute to his legal fees; he was entitled to keep his interest in his assets with a gross value of several million dollars which he jointly owned with his wife; and he was entitled to continue to receive government funding with no requirement to contribute or repay those funds.

[11]        The Attorney General was concerned that Mr. Malik’s position was contrary to his obligations under Rowbotham principles and did not reflect his contractual obligations under the Defence Counsel Agreement to transfer all of his right, title and interest in and to all of his property, real or personal and to cooperate fully in the identification and transfer of that property and the assertion in favour of the Attorney General of those rights, title and interest.  Further, the Attorney General was concerned that since the Defence Counsel Agreement was signed, numerous transactions had taken place regarding Mr. Malik’s assets, including legal action against Mr. Malik by one brother.  The Attorney General moved to protect his interest by terminating the Defence Counsel Agreement.

[12]        Throughout all negotiations and meetings, the Attorney General was proceeding on the basis that Mr. Malik’s interest in his assets was net of secured liabilities he claimed were owing.  In September 2002, Mr. Malik claimed that his interest in his assets were net of all of his liabilities, including unsecured debts he asserted were owing to his wife, brothers and children.  He argued that after deduction of these liabilities he was insolvent.  During that time, his counsel, Mr. Woodall, provided an Indemnity Agreement executed by Mr. Malik reflecting this position.  The Attorney General disagreed with the proposed form of indemnity.  Discussions continued between counsel.  In a letter dated January 20, 2003, the Province gave notice that it required a general indemnity within 14 days.  Otherwise, the letter would serve as formal notice under the Defence Counsel Agreement that funding would be terminated effective April 30, 2003.  In a letter dated January 28, 2003, Mr. Woodall advised that Mr. Malik would not execute the indemnity required unless a court determined that it was a precondition to Rowbotham funding.  If the court held that it was a precondition, then Mr. Malik would sign it. 

[13]        In April 2003, the Attorney General abandoned his position that Mr. Malik provide an indemnity.  Instead, he sought to secure his position by way of security.  No agreement was reached.  There was an appearance before Mr. Justice Tysoe on May 14, 2003.  Mr. Justice Tysoe adjourned generally the Attorney General’s application with respect to security Mr. Malik must provide as a condition to the continued funding of his defence.

[14]        The matter next proceeded before me as a Rowbotham application.  

[15]        Mr. Malik has been denied legal aid and requires the assistance of counsel to receive a fair trial.

ISSUE

[16]        The issue is whether Mr. Malik has the means to pay or contribute to his defence.  Three questions are raised but only the first need be answered.

1.    Has Mr. Malik fulfilled the factual and evidentiary onus to establish indigency as defined in the Rowbotham jurisprudence; or has he disentitled himself by his actions?

2.    Alternatively, what amount, if any, is Mr. Malik required to contribute to his legal fees?

3.    If a contribution is required, are security documents a reasonable pre-requisite for any further funding?

MR. MALIK’S POSITION

 

[17]        Mr. Malik agrees he should contribute to legal fees the full value of his net worth.  His position is that his net worth is the value of his share of the assets, minus bona fide liabilities, minus the costs and taxes associated with liquidation.  Mr. Malik claims he has already paid approximately $650,000 in legal fees.  He argues the financial evidence shows he has suffered business reversals, he has no income or assets to contribute further to legal fees, and his net worth is less than zero.

MRS. MALIK’S POSITION

 

[18]        Mrs. Malik is an interested party in this application because the Attorney General argues her financial position is relevant.  Mrs. Malik argues it is not relevant.

[19]        Despite the fact that their business affairs are intertwined and they have been equal business partners throughout their 29 year marriage, Mrs. Malik argues that any contribution by Mr. Malik should be limited to his net share of their joint assets.

[20]        Mrs. Malik submits he is responsible for one half the amount outstanding on a mortgage registered against the home in her name alone, and that this debt is secured by an equitable charge over Mr. Malik’s interest in the hotel.  

RESULT

 

[21]        I agree with the Attorney General that Mr. Malik’s application should be dismissed.  As the discussion will show, Mr. Malik has failed to meet the factual and evidentiary onus to establish indigency as defined in the Rowbotham jurisprudence.  Even if his financial circumstances could be classified as difficult, they are not extraordinary.  Furthermore, he has not been prudent, has failed to prioritize legal fees, and has submitted erroneous, contradictory and unreliable evidence.  The evidence establishes a collective effort by Mr. Malik and the Malik family members to diminish the value of his estate.  If Mr. Malik is indeed indigent, it is because he has made himself so and he is not able to succeed on this application.

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