General Division of the High Court · Decided 12 May 2017

PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others

[2017] SGHC 102Case no. Suit No 542 of 2012

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Grounds of decision

Official text from eLitigation

[1] The present proceedings arose out of a contract between the plaintiff, PT Sandipala Arthaputra (“Sandipala”), and the second defendant, Oxel Systems Pte Ltd (“Oxel”), for the supply of microchips (“chips”) from the first defendant, STMicroelectronics Asia Pacific Pte Ltd (“ST-AP”). These chips were needed to fulfil Sandipala’s obligations under an Indonesian Government contract to produce electronic identification cards for its citizens.
[2] The trial took place over 22 days between March and May 2016. Numerous highly contentious issues arose across the various claims and the counterclaim between the parties. For this reason, it is convenient to begin with a list of the main individuals involved in the suit and an overview of the disputes that have arisen.
Dramatis Personae
[3] Sandipala is an Indonesian company that was incorporated in 1987. It carries on the business of, inter alia, the production of personalised electronic identification cards. In late 2010 or early 2011, Sandipala was in considerable financial difficulties and was insolvent. On or about 19 January 2011, Paulus Tannos (“Mr Tannos”) purchased majority shares in Sandipala, to use it for new businesses. Most of the shares that were purchased were placed under the name of his wife, Lina Rawung (“Mrs Rawung”). Mr Tannos injected considerable capital into Sandipala.
[4] As at 4 March 2011, the Board of Management of Sandipala was constituted as follows:
(a) President Director: Mr Tannos
(b) Director: Ms Catherine Tannos (“Ms Tannos”)
(c) Director: Ms Pauline Tannos
(d) President Commissioner: Mrs Rawung
[5] Apart from Sandipala, Mr Tannos also controlled another company, PT Megalestari Unggul (“MLU”) in which he was the majority shareholder and its managing director.
[6] ST-AP is a company incorporated in Singapore in 1994. It carries on the business of, inter alia, marketing and selling chips and is part of the STMicroelectronics Group of companies (“ST”). The third defendant, Mr Vincent Cousin (“Mr Cousin”) was at all material times ST-AP’s country manager for Indonesia.
[7] ST had a Microcontrollers, Memory and Secure MCU product group (“MMS”) which included a Secure Microcontroller Division (“SMD”). Ms Marie-France Florentin (“Ms Florentin”) was the General Manager of the SMD and also an employee of STMicroelectronics (Rousset) SAS, a French company (“ST-F”). Mr Claude Dardanne (“Mr Dardanne”) was the head of MMS and Ms Florentin’s direct supervisor.
[8] The chips marketed by ST-AP are essentially manufactured in France by MMS and ST-F. These are then shipped to ST-AP’s customers. It appears that whilst the chips are made in France, finishing work is sometimes done overseas such as in Taiwan.
[9] Oxel is a company incorporated in Singapore in 2009. It is in the business of the supply and sale of chips for use in personalised electronic identification cards or “smart cards”, and it has the licensing rights to sell a software suite known as PAC, which was one of the operating systems for the chips. Oxel is wholly owned by Execorp Limited, a company incorporated in the British Virgin Islands. Mr Andi Bharata Winata (“Mr Winata”) is Oxel’s Sales and Marketing Representative in Indonesia.
The key events
Sandipala’s participation in the tender
[10] In early 2011, the Ministry of Home Affairs of the Indonesian Government (the “MHA”) invited tenders for the production and supply of personalised electronic identification cards which were referred to as “E-KTP Cards” for the Indonesian population (the “Tender”). Detailed requirements were set out including those touching on the chips and the operating system. Of especial significance was the obligation for each applicant to submit two chips for evaluation. The specific operating system that was to be masked onto the chips was not prescribed, save that it must be an “open operating system”, though this term was initially undefined. This led to questions from a consortium participating in the Tender, and the MHA subsequently clarified that an open operating system was one that could be put into the two types of chips specified.
[11] After Mr Tannos purchased majority shares in Sandipala, Sandipala entered into discussions with members of a consortium led by Perusahaan Umum (Perum) Percetakan Negara (“PNRI”) (collectively the “PNRI Consortium”) to include Sandipala in its bid for the Tender. Thereafter, Sandipala became a member of the PNRI Consortium by way of a Consortium Agreement dated 28 February 2011.
[12] The PNRI Consortium comprised the following companies: (a) PNRI; (b) Perusahaan (Persero) Superintending Company of Indonesia (“Sucofindo”); (c) Sandipala; (d) PT Quadra Solutions (“Quadra”); and (e) Perusahaan (Persero) PT Len Industri (“Len Industri”). The roles and responsibilities of the consortium members were divided as follows:
(a) PNRI, the leader of the PNRI Consortium, was responsible for, inter alia, dealing with chip manufacturers and to produce a portion of E-KTP Cards.
(b) Sucofindo was responsible for conducting training seminars and classes.
(c) Sandipala was responsible for producing a portion of E-KTP Cards, personalising the same and thereafter distributing the E-KTP Cards, including those produced by PNRI.
(d) Quadra and Len Industri were jointly responsible for procuring and installing the necessary systems, such as the central government database, fingerprint and iris information collection systems and the key management system.
[13] Shortly after Sandipala joined the PNRI Consortium, the PNRI Consortium submitted its tender proposal to the MHA. Whilst the evidence could have been clearer, it appears that the PNRI Consortium decided to use the following chips (made by different manufacturers) in their tender proposal: (i) NXP P308G0P3 (“NXP P3 chip”); and (ii) ST23YR12 (“ST23YR12 chip”). There is dispute and uncertainty as to the identity of the operating system provided with the ST23YR12 chip for the tender submission. I pause to note that the actual tender submission documents were not placed before the Court as Sandipala’s position was that these documents were with PNRI.
[14] The tender submission process comprised three distinct stages. A brief description of each stage has been set out below:
(a) The Proposal Stage: Various participating consortiums submitted their tender proposals which provided for the technical aspects of the E-KTP Card production process. This included the specifications of the chip to be used in the E-KTP Cards. At this stage, each tender proposal would be assessed and some would progress to the next stage of the tender submission process.
(b) The Proof of Concept (“POC”) Stage: At this stage, the processes of population data collection, mass production and personalisation of E-KTP Cards were demonstrated to the MHA. This involved, inter alia, the use of a sample set of the proposed chips encoded with the proposed software and operating system. The successful consortiums would then proceed to the next stage.
(c) The Costs Stage: At this stage, the remaining consortiums would submit their quotes for costs of population data collection as well as production, personalisation and distribution of the E-KTP Cards to the MHA.
[15] As part of the POC Stage of the Tender, the MHA conducted tests and evaluations of the chips provided by the PNRI Consortium at various locations between May and June 2011. This included one session at Sandipala’s factory on 20 May 2011 (“the POC test”). The evidence as to what chips and operating system were tested by the MHA at Sandipala’s factory was decidedly murky. Whilst it is clear that the NXP P3 chip and operating system were tested and evaluated by the MHA, it is entirely unclear whether the ST23YR12 chip was ever tested and evaluated. The simple reason is that the ST23YR12 chip encoded with RUA or RUB operating system was not ready in time for the POC test. Whilst Mr Tannos claims there were other tests, the only test in evidence is that on 20 May 2011.
[16] On 21 June 2011, the MHA formally announced that it would award the Tender to the PNRI Consortium for the production and supply of 172,015,400 personalised E-KTP Cards for the Indonesian population which were to be produced and supplied in the years 2011 and 2012 (“the E-KTP Project”). The PNRI Consortium entered into a written agreement with the MHA on 1 July 2011 (“the E-KTP Card Production Agreement”).
[17] It bears noting that two types of chips used by the PNRI Consortium in their tender proposal (as stated above at [13]) were approved for use in the E-KTP Cards: (a) the NXP P3 chip manufactured by NXP Semiconductors Group (“NXP”); and (b) the ST23YR12 chip manufactured by ST. No operating system was specified.
[18] On 9 June 2011, Sandipala entered into a further agreement with the other members of the PNRI Consortium (“the 9 June Consortium Agreement”). Under the 9 June Consortium Agreement, Sandipala was supposed to produce 132m blank E-KTP Cards and personalise all E-KTP Cards.
[19] The 9 June Consortium Agreement was subsequently amended pursuant to “the First Amendment to Distribution of Agreement Rights and Obligations of the Members of Consortium” dated 26 July 2011 (“the Amended Consortium Agreement”). Under the Amended Consortium Agreement, Sandipala’s share of work was reduced to producing, personalising and supplying 60% of the E-KTP Cards (ie, from about 132m E-KTP Cards to approximately 103m E-KTP Cards). The remaining 40% of E-KTP Cards were to be produced, personalised and distributed by PNRI.
[20] PNRI used the NXP P3 chip and operating system to meet its obligations. Initially, Sandipala also used the NXP P3 chip and system in respect of the E-KTP Cards due in 2011. Thereafter Sandipala decided to move away from the NXP P3 chip (as discussed below at [29]). The reason why this decision was made by Sandipala is unclear.
[21] I pause here to explain the words “produce”, “personalise” and “distribute” in the context of the E-KTP Project. Production refers to the process by which a microchip is embedded into the body of a plastic card. This entails an automated process using a card production machine. The plastic card must be laminated and security features printed on the card.
[22] Personalisation refers to the process of saving the personal information of an individual (such as his photograph, name, address etc) onto the chip. Special “personalisation machines” must be used for this purpose. Manufacturers/suppliers of personalisation machines include the Muehlbauer Group of companies (“Muehlbauer”) and Datacard Asia Pacific Limited (“Datacard”). Security is an extremely important part of the personalisation process. The personal information of Indonesian citizens are held in Indonesian Government database. The personalisation machine will be connected to that database so that the relevant information can be transferred and stored in the chip embedded into the E-KTP Card. It stands to reason that the software or operating system in the chip, personalisation machine and the database and other components of the system must be compatible. Of especial importance is the need for the software in the chip to be compatible with the Key Management System (“KMS”), which is essentially security software.
[23] Distribution refers to the act of sending the personalised E-KTP Card to the Indonesian Government’s E-KTP Card Distribution Centres throughout Indonesia where the cards are checked and activated using card reader machines connected to the Indonesian Government’s system.
Sandipala took steps to purchase chips and personalisation machines
[25] MLU provided funds to Sandipala to finance the E-KTP Project. The MLU funds were provided by Bank Artha Grahaand secured by personal guarantees signed by Mr Tannos, Ms Tannos and Mrs Rawung.
[26] What follows is an overview of the main steps taken by Mr Tannos and Sandipala to secure chips and personalisation machines to meet Sandipala’s obligations.
[27] By late June 2011, when the Tender was awarded to the PNRI Consortium (and indeed likely much earlier), it would have been obvious that a good deal of assets would have to be acquired to meet the obligations under the tender award. In particular, it was essential that sufficient personalisation machines be obtained for use at the POC test by the MHA and indeed thereafter for the actual tender award. It appears that the personalisation machines used for the POC test were from Muehlbauer. Subsequently, around June 2011, Sandipala purchased 14 “MX6000” machines from Datacard which were to be used to personalise electronic identification cards.
[28] Under the E-KTP Card Production Agreement with the MHA, 172,015,400 E-KTP had to be produced and personalised for 2011 and 2012. There was an urgent need for Sandipala to source for the chips to produce its 60% share of the E-KTP award for 2011 and 2012.
[30] Between August and November 2011, Sandipala received or obtained quotations from a number of other entities for the supply of chips that could be used in producing E-KTP Cards. These entities included Ubivelox International Pte Ltd (“Ubivelox”), ST-AP, Oberthur Technologies (“Oberthur”), Hongda as well as Oxel.
[31] On 4 August 2011, Mr Tannos, Mr Cousin and Mr Soung Jin Kim (“Mr Kim”) of Ubivelox met regarding the possible sale of ST-AP’s chips to Sandipala. On the same day, Mr Tannos received separate quotations from Mr Cousin and Mr Kim for ST23YR12 chips that were encoded with the Ubivelox operating system.
Sandipala places order for chips with Oxel
[34] Between October 2011 and early November 2011, Mr Tannos had several meetings with Mr Winata, the details of which are heavily disputed. I will come to these meetings later on in this judgment. On or around 9 November 2011, Sandipala entered into an agreement with Oxel under which Oxel agreed to supply 100m chips described as “ST-Micro ST23YR12AW0NPACA” at the price of US$0.60 per unit (“the Agreement”). These are ST23YR12 chips which are encoded with Oxel’s proprietary PAC software for the chip’s operating system. The PAC operating system was owned by one of Oxel’s suppliers, Logii Inc (“Logii”).
[35] The key terms of the Agreement were as follows:
(a) Sandipala would purchase and take delivery of a “Committed Quantity” of 100m chips.
(b) The chips would be delivered in batches according to the following timeline.
(i) The first 10m would be delivered in the fourth quarter of 2011 to the first quarter of 2012 (“Q4 2011”).
(ii) The second batch of 30m would be delivered in the first quarter of 2012 to the second quarter of 2012 (“Q1 2012”).
(iii) The third batch of 30m would be delivered in the second quarter of 2012 to the third quarter of 2012 (“Q2 2012”).
(iv) The fourth batch of 30m would be delivered in the third quarter of 2012 to the fourth quarter of 2012 (“Q3 2012”).
(c) Sandipala would make a 20% down payment based on the committed quantity of chips, such down payment being payable at the beginning of each quarter. A down payment of US$1.2m was made by Sandipala on 14 November 2011.
Sandipala requests for samples
[39] On 11 November 2011, Ms Tannos wrote to Kris Zhang of Oxel (“Mr Zhang”) to request for samples of Oxel’s chips because Sandipala needed them for testing. On the same day, Mr Zhang replied that “[t]he samples are being taken care now and our rep in Indonesia will contact you”. On 22 November 2011, Ms Tannos again requested samples of the chips. It is not disputed that no samples were eventually provided. Oxel’s evidence is that they told Ms Tannos that because the first delivery of chips was due in late December 2011, Sandipala was free to do what it wanted with those chips.
[40] On 19 December 2011, the PNRI Consortium held a meeting without Sandipala and decided to redistribute the printing and personalisation works as between Sandipala and PNRI. The result of the meeting was that Sandipala had its blank card printing and personalisation works reduced from 103m and 172m respectively to 60m for both. It is significant to note that the decision to reduce Sandipala’s work allocation took place about three days before the first batch of Oxel’s chips were delivered to Sandipala. The legal basis under which PNRI Consortium reduced Sandipala’s share was never made clear in the present proceedings.
Sandipala receives Oxel’s chips
[41] Oxel’s chips were delivered in batches, with the first delivery taking place sometime in December 2011. The initial batches of the chips contained ST23YR18 chips bearing 18kb of memory which was not the same as the ST23YR12 chips that were stated in the Agreement. There is a dispute as to which batches of the chips contained the ST23YR18 chips. Sandipala claims that the first three shipments of the chips sent by Oxel contained 18kb chips whereas Oxel claims that only the fourth shipment contained 18kb chips which was a result of a shipping error.
[42] In any case, the E-KTP Cards that were produced using Oxel’s chips could not be personalised as they were encoded with an operating system that was incompatible with the E-KTP infrastructure.
[43] Sandipala’s case is that it only discovered the problem with Oxel’s chips in early January 2012 whereas the defendants’ case is that Mr Tannos (and therefore Sandipala) had known at all material times that Oxel’s chips would not work unless changes were made to the E-KTP infrastructure. Of particular importance were changes to the KMS. It is undisputed that attempts were made to seek MHA’s approval for changes to be made to the E-KTP infrastructure so that Oxel’s chips could be used and that such approval was not granted.
The meetings between Mr Tannos, Mr Winata and Mr Cousin in 2012
[45] There were on-going discussions between Mr Tannos, Ms Tannos, Mr Winata and Mr Cousin in 2012, after the alleged discovery that Oxel’s chips did not work. Three of such conversations, which were secretly recorded, are noteworthy.
[46] The first took place on 13 January 2012 between Ms Tannos, Mr Jerry Chum of Sandipala and Mr Cousin. The second conversation took place on 22 January 2012 between Mr Tannos and Mr Cousin. It was clear at this point that the MHA had rejected Oxel’s chips. The third discussion took place between Mr Winata, Mr Tannos, Ms Tannos and Mr Cousin on 21 April 2012. The first and second conversations were secretly recorded by Mr Cousin and the third was secretly recorded by Mr Winata.
[47] On 27 February 2012, Sandipala received a letter from Oxel’s lawyers seeking payment of arrears. Shortly after, on 29 February 2012, Oxel’s lawyers filed a police report on behalf of Oxel alleging that Sandipala had cheated and defrauded Oxel. On 28 June 2012, Sandipala commenced the present proceedings.
[48] As the rest of the events leading up to the transactions between the parties are hotly disputed, I will set out a brief overview of each party’s pleaded case before proceeding to outline the issues that arise for determination in the present case.
The cases put forth by the parties
Sandipala’s case
[50] According to Sandipala, the PNRI Consortium, through Quadra and its sub-contractor, Softorb, contracted with ST-AP to supply 100,000 pieces of electronic chips for use in the tender evaluation (“the Tender Evaluation Chips”). There was an agreement between the PNRI Consortium and ST-AP which required the latter to submit on behalf of the PNRI Consortium written technical specifications in relation to the electronic chips that ST-AP recommended for use in the production of the E-KTP Cards. If the PNRI Consortium was successful in the Tender, it was to source the same type of electronic chips from ST-AP for the mass production of the E-KTP Cards.
[51] Sandipala also claims that ST-AP was furnished with the details of the Indonesian Government’s requirements, specifications for the E-KTP Cards and the electronic card reading system in use by the Indonesian Government. On the basis of the aforesaid information, ST-AP determined the appropriate type of electronic chip as well as software operating system to be encoded on it and supplied 100,000 pieces of such electronic chips together with the written specifications of such chips for use in the tender evaluation. These chips were ST23YR12 loaded with RUB operating system developed by Softorb.
[52] Most critically, Sandipala pleads that the E-KTP Cards made with the Tender Evaluation Chips worked successfully with the card reading system used by the MHA during the POC test. As a result, the Indonesian Government awarded the Tender to the PNRI Consortium. It was in this context, says Sandipala, that it entered into the Agreement with Oxel. Sandipala claims to have been under the false impression that the chips that were to be supplied under the Oxel Agreement were “the same” as the Tender Evaluation Chips. ST-AP on the other hand points out, amongst other matters, that the ST23YR12 chips loaded with RUB software did not in fact arrive in time for the POC test. Further, the ST23YR12 chip was approved by the MHA without any reference to an operating system.
Sandipala’s claims against Oxel
[53] Sandipala’s primary claim against Oxel is founded on a breach of the Agreement which, according to Sandipala, contained the following terms:
(a) An express or implied term that Oxel would supply 100m units of chips that were identical to the Tender Evaluation Chips and/or chips that would correspond to sample chips that had been provided by ST-AP.
(b) An express or implied term that Oxel would supply chips that were fit for the particular purpose that had been made known to Oxel, ie, for the production of E-KTP Cards.
(c) An implied term that Oxel would supply a batch of sample electronic chips to Sandipala for functional testing before mass producing the chips.
[54] Sandipala also claims that Oxel has breached its duty of care by:
(a) negligently offering to supply Sandipala with chips that could not be used to produce E-KTP Cards;
(b) failing to inform Sandipala that the chips proposed to be supplied could not or could possibly not be used to produce E-KTP Cards; and
(c) failing to provide any assistance to Sandipala after Sandipala discovered that the chips actually supplied could not be used to produce E-KTP Cards.
Sandipala’s claims against ST-AP
[55] Sandipala’s claim against ST-AP is founded on a breach of a collateral contract, the terms of which have been pleaded as follows:
(a) ST-AP would supply chips that were identical to the Tender Evaluation Chips and ensure such chips be supplied to Sandipala under the Agreement.
(b) All the pleaded terms in the Agreement which relates to the specifications of the chips were incorporated into the collateral contract such that ST-AP was obliged to supply chips that conformed to those specifications and ensured that they be supplied to Sandipala through Oxel.
[56] Sandipala also claims against ST-AP for breaching its duty of care by:
(a) fraudulently and negligently misrepresenting to Sandipala that Oxel would supply Sandipala with chips that could be used to produce E-KTP Cards when ST-AP knew otherwise or was not sure of that;
(b) failing to alert Sandipala to the fact that the chips that ST-AP proposed to supply through Oxel could not or could possibly not be used to produce E-KTP Cards; and
(c) failing to provide any assistance to Sandipala after Sandipala discovered that the chips actually supplied by Oxel could not be used to produce E-KTP Cards.
Sandipala’s claims against Mr Cousin
[57] Sandipala claims against Mr Cousin for making the following misrepresentations which he knew to be false or was reckless as to their truth:
(a) Oxel was the exclusive distributor for ST-AP’s chips in Indonesia.
(b) The chips offered by Oxel in its quotation were the same type of chips as the Tender Evaluation chips.
(c) Oxel would be able to procure from ST-AP and supply Sandipala the same type of chips as the Tender Evaluation chips.
Sandipala’s claims against all the defendants
[58] Against all of the defendants, Sandipala claims that they conspired and combined with each other with the intention of causing harm to Sandipala, namely, by offloading on Sandipala, chips that could not, or could possibly not be used to manufacture E-KTP Cards.
[59] Significantly, Sandipala has also pleaded that it had entered into the Agreement pursuant to a unilateral mistake of fact, namely, that Oxel was to provide chips that were the same as the Tender Evaluation Chips, and the Agreement is therefore void.
ST-AP’s and Mr Cousin’s case
[60] At the outset, it bears noting that Mr Cousin’s position is generally aligned with that of ST-AP. Their position which has been touched on already has been summarised as follows in their closing submissions:
(a) The PNRI Consortium did not use any ST23YR12 chips for concept testing and evaluation at the POC Stage even though it was ultimately awarded the Tender on the basis that the NXP P3 chip and ST23YR12 chips were approved for use in the E-KTP Project.
(b) ST-AP played no part in the preparation of the PNRI Consortium’s tender proposal or at the POC Stage.
(c) Mr Tannos was at all times aware that the chips that were to be supplied under the Agreement would not work unless certain system modifications were made. He then set out to procure governmental approval for the relevant system modifications with an eye to increasing Sandipala’s production allocation and share of the profits within the PNRI Consortium.
Oxel’s case
[61] Oxel’s position in the proceedings is broadly similar to that of ST-AP and Mr Cousin. According to Oxel, it had upheld its end of the bargain and arranged for the supply and delivery of chips pursuant to the Agreement. But after accepting nine shipments of these chips, Sandipala refused to accept further deliveries. Mr Winata, on behalf of Oxel, gave evidence that Mr Tannos had set out to look for 100m chips encoded with an operating system that was different from that approved by the MHA when it awarded the Tender to the PNRI Consortium. Mr Winata’s position was that he told Mr Tannos that he could not help because Oxel’s chips were encoded with a specific operating system, ie, the PAC operating system and would not be compatible with the card system that had been approved for the E-KTP Project without first making extensive technical modifications to the other parts of the smart card system. Even if such modifications were technically possible, those modifications would have to first be approved by the MHA.
[63] Oxel counterclaims against Sandipala for breaching the Agreement. Oxel has also counterclaimed that the people behind Sandipala, namely, Mr Tannos, Ms Tannos and Mrs Rawung, conspired and combined together to cause Sandipala to breach the Agreement and/or extricate Sandipala from its obligations under the Agreement without having to bear the consequences of a breach of contract.
The issues in the trial
[64] The key factual disputes in these proceedings are as follows:
(a) Whether ST-AP recommended or determined suitable chip hardware for use in the tender evaluation;
(b) Whether ST-AP supplied chips for use in the tender evaluation; and
(c) Whether Mr Tannos/Sandipala was aware that Oxel’s chips would not work with the existing systems that were in place.
[65] On the basis of my findings on the above factual issues, I will proceed to evaluate the claims advanced by Sandipala against the defendants in the main suit as well as the claims advanced by Oxel against the defendants in the counterclaim.
Decision
[66] I preface my decision with a brief explanation of some of the fundamentals of a smartcard project. A smartcard system consists of many parts, including the smartcard reader, personalisation systems, databases, card printers, security and access control systems. All of these systems are designed to work together with a common interface/protocol that is used for communication. The requisite components of a smart card system are supplied by various players in the industry. These players include:
(a) Chip manufacturers (such as ST and NXP): These companies manufacture chips that are found in smartcards. Such chips come in a variety of forms such as wafers, dual-in-line (“DIL”) packaging and modules.
(b) Card manufacturers (such as Sandipala): These companies are the ultimate recipients of the chips and would use those chips to produce smartcards.
(c) Suppliers of operating systems or software developers (such as Softorb, Danatel and Oxel): These companies are primarily involved in the buying and selling of chips that are encoded with proprietary operating systems that they either own or have a licence to use.
(d) Distributors (such as AdvanIDe and Excelpoint): These companies focus on sales and marketing.
[67] I turn now to assess the evidence in relation to the three key factual disputes that I have outlined above at [64]. These findings will then form the basis on which the merits of Sandipala’s claims and Oxel’s counterclaims will be determined.
Whether ST-AP recommended or determined chip hardware/software for use in the tender evaluation
[68] Sandipala pleaded that Softorb contracted with ST-AP for the latter to: (a) determine the appropriate type of electronic chip and software operating system to be encoded on it for use in the tender evaluation; and (b) submit written technical specifications of such chips for the PNRI Consortium’s use during the tender evaluation. Sandipala’s case was also that ST-AP acceded to these requests and made the necessary recommendations. I note however, that Sandipala did not call any witness from Quadra and this point was not pursued by Sandipala in its closing submissions.
[69] Sandipala’s pleadings refer to a data sheet for the ST23YR12 chip (which sets out the technical specifications of the chip hardware) (“the Datasheet”) that attached an addendum (which described generic features of the Softorb OS to be encoded on the ST23YR12 chip) (“the Addendum”). It is not disputed that the Datasheet and the Addendum were both signed by Mr Cousin.
[70] ST-AP/Mr Cousin’s position is as follows. First, there is no evidence that Softorb was a sub-contractor of Quadra or the PNRI Consortium; Softorb was merely one of the software developers that were vying for a stake in the E-KTP Project. Secondly, ST-AP did not recommend any chip hardware or software operating system to Softorb for use in the tender evaluation. In relation to the signed Datasheet and Addendum, their response is that these documents were prepared by Softorb for use in Softorb’s pitch to the consortiums that were participating in the Tender and as such, cannot be interpreted as reflecting the chip hardware and software that ST-AP had recommended to be used by the PNRI Consortium.
[71] Having considered the evidence and arguments, I reject Sandipala’s allegation that ST-AP had recommended the chip hardware and software that were to be used in the tender evaluation. There is no evidence to support Sandipala’s assertion that Softorb was the subcontractor of Quadra or the PNRI Consortium or that ST-AP had recommended to Softorb the chip hardware and/or software that could be used in the tender evaluation. In contrast, the evidence placed before the court is consistent with ST-AP/Mr Cousin’s case that Softorb was acting as an independent software developer which intended to make a pitch to various consortiums for the use of its software with ST-AP’s ST23YR12 chips in the tender evaluation.
[73] Secondly, the Datasheet and the Addendum do not support the allegation that ST-AP recommended the chip hardware and/or software for the PNRI Consortium’s use in the tender evaluation. It appears that these documents originated from Softorb, not ST-AP; they were attached to an email that was sent from Softorb to Mr Cousin on 7 April 2011. Although the documents bear Mr Cousin’s signature, I accept his explanation that Softorb had requested him to sign on them so that Softorb could submit them to the consortiums it was working with. I also accept Mr Cousin’s explanation that he had signed the documents without knowing which consortium they would be provided to. In particular, I find his explanations to be consistent with the fact that there is no evidence to support the allegation that Softorb had been acting on behalf of Quadra or the PNRI Consortium at the material time.
[74] Further, I find the date on which the Datasheet and the Addendum were sent to ST-AP to be rather significant. In Mr Tannos’ affidavit of evidence-in-chief (“AEIC”), he deposed that the details of the PNRI Consortium’s tender proposal had mostly been decided on by the time Sandipala joined the PNRI Consortium on or around 28 February 2011 and therefore, Sandipala did not have a say in any decision-making aspects of the bidding, tender process or the technical specifications or requirements of the E-KTP Cards. It is thus illogical for the PNRI Consortium to have later sought recommendations from ST-AP in April 2011. This much Mr Tannos conceded during cross-examination.
[75] In view of the above, I accept ST-AP/Mr Cousin’s case that they did not recommend any chip hardware or software for the PNRI Consortium’s use in the tender evaluation. Given the evidence, it is not surprising that Sandipala did not argue in its closing submissions that ST-AP/ Mr Cousin had recommended the chip hardware and/or software to be used by the PNRI Consortium in the tender evaluation. Instead, the focus of its submissions was on its claim that ST-AP/Mr Cousin had known at all material times the specifications of the chip hardware and/or software that was eventually submitted by the PNRI Consortium and approved by the Indonesian Government. I will address this contention later on.
Whether ST-AP supplied chips for use in the tender evaluation
[76] I turn now to Sandipala’s claim that ST-AP had supplied chips for use in the tender evaluation. Sandipala pleaded that ST-AP had supplied 100,000 chips (ie, the Tender Evaluation Chips as defined above at [50]) to Softorb pursuant to a contract entered into sometime in April or May 2011, and that these Tender Evaluation Chips were delivered to Quadra or Softorb in April or May 2011. Sandipala further pleaded that it had collected for the purpose of the tender evaluation 10,000 of the Tender Evaluation Chips from PNRI’s factory in May 2011. Sandipala also pleaded that 1,000 of the Tender Evaluation Chips that were collected from PNRI’s factory were used to personalise cards which were then tested and evaluated by Sandipala’s employees in May 2011 in the presence of inter alia, officials from the MHA.
[77] This pleaded position is factually unsustainable upon a closer look at the sequence of dealings between Softorb and ST-AP from January to April 2011.
(a) Sometime in December 2010 or early January 2011, Softorb informed ST-AP that it wished to purchase a small quantity of encoded ST23YR12 chips, both in DIL form and in module form, for initial testing, followed by 100,000 chips in module form.
(c) On 11 February 2011, an encrypted file containing Softorb’s operating system was submitted to ST-AP. This operating system was given the code reference “RUA”.
(f) On or around 2 April 2011, five units of ST23YR12 chips in DIL form were delivered to Softorb for testing. The batch of ST23YR12 modules encoded with the RUA operating system were also shipped sometime in early April 2011.
(g) On 20 April 2011, Softorb requested ST-AP to halt production of the 100,000 ST23YR12 modules. Softorb had tested the initial batch of ST23YR12 DILs and modules but could not get the RUA operating system to work. Following investigations, Softorb informed ST-AP that there had been an error in the manner in which it had previously generated the RUA code and that it had to submit a new operating system to ST-AP.
(k) On or about 6 July 2011, the five ST23YR12 DILs encoded with the RUB operating system were shipped out to Softorb.
(l) On 12 July 2011, Softorb issued a ROM Code Validation Form to ST-AP, confirming that the ST23YR12 DILs delivered to Softorb had been tested and were working fine with the RUB operating system, and that ST should commence production of the additional 100,000 ST23YR12 modules encoded with the RUB operating system.
(m) The 8,000 units of ST23YR12 modules encoded with the RUB operating system were shipped to Softorb in two batches on 21 July 2011 and 11 August 2011.
(n) The 100,000 ST23YR12 modules encoded with the RUB operating system were subsequently shipped out in two batches on 26 September 2011 and 30 September 2011 respectively.
[79] In the light of the above facts and concessions, Sandipala changed tack and claimed that a “chip emulator” (instead of the physical chips) encoded with the RUB operating system could have been tested during the tender evaluation. This assertion or suggestion arose after Mr Tannos read Mr Bruno Louis S Vanhoucke’s (“Mr Vanhoucke’s”) AEIC in which Mr Vanhoucke (an employee of ST-AP) stated that Softorb had asked ST-AP to provide a chip emulator and that he had attended to Softorb’s request.
[80] I note first that the alleged use of a chip emulator has not been pleaded; Sandipala’s pleaded case was that actual physical chips had been used. Secondly, the alleged use of a chip emulator is inconsistent with the evidence before the court.
(a) Oxel’s expert, John Lam (“Mr Lam”), gave evidence that he had never heard of any government tender for smartcards where the government permitted the use of a chip emulator during the POC Stage. According to him, testing had to be done on a physical smartcard because the government would need to satisfy itself of the tenderer’s capability to produce the physical smartcard to be used in the government project. Mr Vanhoucke also gave evidence asserting that an emulator could not have been used as actual components were required for testing.
(b) Sandipala’s own expert, Choong Wan An (“Mr Choong”), acknowledged at trial that the E-KTP documents had stipulated that physical chips were required for testing at the POC Stage, and not emulators. While he sought to suggest that the Indonesian Government officials could have exercised their discretion and allowed testing to be carried out using an emulator, he admitted that he was merely speculating as he had not seen any documents that reflected what was actually tested and evaluated during the POC Stage. He also conceded that the POC Stage involves a “very thorough process” and that tests are not conducted on just one card, but a set of ten to 20 cards. I note that his suggestion that an emulator could have been used is inconsistent with his own description of testing that is usually conducted at the POC Stage:
[81] Mr Tannos then shifted his position and adopted a theory posited by Mr Choong, which claimed that ST-AP chips encoded with RUA operating system could have been tested. However, when pressed to confirm that this was indeed his case (as opposed to mere speculation), Mr Tannos appeared hesitant, stating only that he “was not involved in the [POC], as [he] mentioned many time[s]”.
[82] Mr Tannos’ hesitation to confirm his position was unsurprising in light of the undisputed fact that the initial batch of chips encoded with the RUA operating system could not work. If those chips had been tested, it would be extremely surprising that the Indonesian Government would have awarded the Tender to the PNRI Consortium. Therefore, I find that it is highly unlikely that the chips that were encoded with the RUA operating system were tested as part of the tender evaluation. I note also that Sandipala has not adduced any documents showing exactly what chip and software were tested at the POC Stage.
[83] In the face of these difficulties, Sandipala changed tack again and claimed that the “Tender Evaluation Chips” were only a means of identifying the chips in the pleadings and these chips may not have in fact been used for the tender evaluation. The new position was that it had wanted chips identical to the 100,000 chips that ST-AP had actually supplied to Softorb in September 2011.
[84] I agree with the defendants that these claims are quite different from what has been pleaded by Sandipala. Sandipala had identified the Tender Evaluation Chips by reference to what it said had been tested at its factory in May 2011. Since it has been established that the chips supplied by ST-AP to Softorb could not have been tested then, Sandipala should not then be permitted to make such a glaring departure from its original pleaded position.
[85] Before leaving this issue, I add that I find Sandipala’s evidence in relation to the dealings between Softorb and ST-AP to be extremely unsatisfactory. Mr Tannos, the main actor behind Sandipala, admitted that he had no personal knowledge of ST-AP’s dealings with Softorb; he was only informed of Softorb’s involvement in PNRI’s sourcing of chips only after the dispute had arisen in mid-2012. He also confirmed that he did not know:
(b) Details of any alleged dealings between Quadra or Softorb and ST-AP as of the first half of 2011. In particular, Mr Tannos conceded that he did not even know whether Softorb was procuring chips for the PNRI Consortium.
(c) The specifications of the chips or the software that was ultimately proposed by the PNRI Consortium during the tender submission.
[86] Even though Mr Tannos did not have experience of the electronic smart card industry, he clearly is a seasoned business man. The general tenor of his evidence was that he had little information on the technical aspects of the tender award and that he had no direct knowledge of what chips had been tested and approved. This was so even though POC testing had taken place at Sandipala’s own premises. It bears repeating that Sandipala is but one member of the PNRI Consortium. Even if Sandipala and Mr Tannos did not have direct knowledge of the chips and operating system, it is difficult to accept that he did not or could not find out the necessary information from other PNRI Consortium members such as Quadra.
Whether Sandipala knew from the outset that the chips that were to be supplied by Oxel would not work with the pre-existing systems
[87] After having evaluated the evidence and arguments, I accept the defendants’ contention that Sandipala knew from the outset what it was purchasing under the Agreement; its claim that it had been tricked into purchasing chips that could not work was an afterthought.
[88] I will examine the evidence on related sub-issues in the sections that follow. These related sub-issues are:
(a) Whether Sandipala was instructed by PNRI to procure chips of the type that were approved by the MHA from ST-AP;
(b) Whether Sandipala was shopping around for different operating systems;
(c) Whether Mr Tannos had embarked on steps to modify the existing card system; and
(d) Whether Sandipala’s reaction in 2012 was consistent with one who had been defrauded.
Whether Sandipala had been instructed by PNRI to procure from ST-AP chips of the type approved by the MHA
[89] According to Sandipala, the initial arrangement within the PNRI Consortium was that PNRI would purchase all 172m chips required for the E-KTP Project and sell Sandipala the chips it required at a price of US$0.60. Sandipala claims that PNRI later reneged on that agreement and in early July 2011, instructed Sandipala to purchase from ST-AP chips of the type that were approved by the MHA. This was said to corroborate Sandipala’s claim that it only wanted to purchase such chips. It also claims that this was the context in which Mr Tannos was introduced to Mr Cousin by Mr Isnu Wijaya (“Mr Isnu”) of PNRI for the purpose of Sandipala’s purchase of chips from ST-AP.
[90] I do not accept these assertions. The documentary evidence did not reflect the alleged agreement that PNRI would purchase all 172m chips required for the E-KTP Project and sell Sandipala the chips it required. On the contrary, as mentioned earlier, the evidence shows that Sandipala had been in direct contact with NXP since early-June 2011 to obtain the details of the pricing of NXP’s chips. This is evident from an email sent by Mr Tannos to Mr Isnu on 11 June 2011 which he stated “I am still waiting for the final price from NXP”.
[91] Further, Sandipala’s claim that it had been specifically instructed to purchase chips from ST-AP simply does not make sense. Sandipala had up to that point been using only NXP chips and it was Mr Tannos’ own evidence that Sandipala had the right to choose between NXP’s or ST-AP’s chips for the production of E-KTP Cards. I cannot see any reason why Sandipala would unquestioningly follow PNRI’s instructions to purchase chips from ST-AP. For these reasons, I reject Sandipala’s claims that it had been instructed by PNRI to purchase chips from ST-AP and had been introduced to Mr Cousin for that purpose.
Whether Mr Tannos had been shopping around for other operating systems
[92] As summarised earlier, it is clear that in the second half of 2011 and prior to entering the Agreement with Oxel, Mr Tannos had been shopping around for chips and alternative operating systems from various companies. These include ST chips encoded with Ubivelox operating system as well ST chips with Oberthur software. Indeed, it bears repeating that Sandipala had even been offered ST23YR12 chips encoded with RUB software by ST-AP.
[93] Nonetheless, Mr Tannos denied that he had been actively sourcing for other operating systems. According to him, quotations received regarding Ubivelox’s products were unsolicited. He claims that the meeting between Mr Kim and himself was the product of Mr Cousin’s initiative and was held with the intention of introducing an alternative software supplier to Mr Tannos without his knowledge that the software had not been approved for use in the E-KTP Project. As for the Oberthur discussions, Sandipala submits that its course of dealings with Oberthur evidenced a desire to only procure “Tender Evaluation Chips encoded with the approved software for the E-KTP [P]roject”. Given the significance of these dealings and the credibility of Mr Tannos’ evidence, the evidence on his dealings or contacts with Ubivelox and Oberthur is discussed in more detail below.
(1) The dealings with Ubivelox
[94] On 4 August 2011, Sandipala received two quotations for ST23YR12 chips encoded with an operating system from Ubivelox, a Korean company that was in the business of providing smart card solutions. The first quotation (“the Ubivelox Quotation”) was attached to an email from Mr Kim, then Managing Director of Ubivelox’s Singapore subsidiary, to Mr Tannos. The Ubivelox Quotation included quotes for Ubivelox’s KMS, maintenance for KMS, Ubivelox’s Security Access Module (“SAM”) and various forms of chips encoded with the Ubivelox operating system. Ubivelox quoted US$0.45 per chip for “Wafer + OS” and US$0.52 per chip for the “Module + OS”. The second quotation was attached to an email sent from Mr Cousin to Mr Tannos (“the ST-Ubivelox Quotation”). The ST-Ubivelox Quotation was for ST23YR12 wafers encoded with Ubivelox’s operating system at US$0.45 per chip.
[95] Mr Kim, who was called as Oxel’s witness at trial, provided an account of how his meeting with Mr Tannos came about, what transpired at the meeting and the context in which he sent Mr Tannos the Ubivelox Quotation. According to him, his business associate, Mr Ruddy Hartanto, informed him that Mr Tannos wanted to meet to discuss possible opportunities in relation to the E-KTP Project. He agreed and flew to Jakarta to meet with Mr Tannos, Mr Hartanto and Mr Cousin on 4 August 2011. Mr Kim said that Mr Tannos had expressed interest in purchasing ST23YR12 chips encoded with Ubivelox’s operating system, a new KMS and SAM to be used together with the Ubivelox operating system. Mr Kim testified that Mr Tannos asked for a quotation for these items which he (Mr Kim) then provided after the meeting.
[96] Mr Kim also said that Mr Tannos’ request for a quotation for a new operating system, KMS and SAM struck him as odd because it seemed that Mr Tannos wanted to use those components in place of what had been approved by the Indonesian Government for the E-KTP Project. Mr Kim said that he warned Mr Tannos that these changes would require redevelopment as well as modification work and that the Indonesian Government would have to approve and accept the modifications. Mr Kim also noted that Mr Tannos said he was aware of that and did not appear concerned. Since Mr Tannos seemed to know what he was doing and appeared to be a serious potential customer, Mr Kim prepared that the Ubivelox Quotation that set out the prices of the Ubivelox KMS, maintenance for the KMS, the Ubivelox SAM and chip module encoded with Ubivelox operating system.
[97] In his AEIC, Mr Tannos claimed that the Ubivelox Quotation was unsolicited and that he had received it before he met with Mr Cousin and Mr Kim. Mr Tannos also claimed that his meeting with Mr Kim took place at the initiative of Mr Cousin who was trying to convince him to use chips encoded with Ubivelox’s operating system. According to Mr Tannos, he declined to purchase the chips encoded with Ubivelox operating system since he was not prepared to accept chips different from the Tender Evaluation Chips.
[98] On the whole, I find Mr Kim to be an honest witness and his account is consistent with and supported by the contemporaneous evidence. First, I am unable to accept Mr Tannos’ claim that the Ubivelox Quotation had been sent to him before the meeting on 4 August 2011. The brevity of Mr Kim’s email attaching the Ubivelox Quotation suggests that some discussion had taken place prior to that email and therefore is more consistent with Mr Kim’s evidence that he had sent the Ubivelox Quotation after the meeting on 4 August 2011. Significantly, Mr Tannos accepted under cross-examination that there was a discussion during the 4 August 2011 meeting about a quotation being sent after the meeting.
[99] Secondly, it is clear from Mr Kim’s evidence and the Ubivelox Quotation that Mr Tannos had, at the very least, demonstrated some interest in the Ubivelox operating system. I find it quite unlikely that Mr Kim would have prepared a quotation for these items if Mr Tannos had not demonstrated any interest in such items. Further, the fact that the Ubivelox Quotation included items such as the KMS and the SAM is also telling. These components were required for the purpose of modifying the system so that the Datacard machines could personalise ST chips. Their inclusion in the Ubivelox Quotation is consistent with Mr Kim’s evidence that he had explained these components to Mr Tannos and had informed Mr Tannos that the use of new software would require redevelopment as well as modification work. This undermines Mr Tannos’ claim that he was not seeking to reinvent the wheel and was only looking for Tender Evaluation Chips.
[100] I find no reason to disbelieve Mr Kim’s account of the meeting on 4 August 2011 since he was an independent witness who had no interest in the outcome of the proceedings. While Mr Tannos suggested that Mr Cousin had sought to persuade him (Mr Tannos) to consider the use of alternative operating systems, I do not accept this suggestion since I do not see why Mr Cousin would have an incentive to procure a change in the operating system since he was at all material times representing ST-AP, a hardware manufacturer.
(2) The dealings with Oberthur
[101] Separately, it will be recalled that in September 2011, Mr Tannos exchanged a series of correspondence with representatives of Oberthur.
(a) On 3 September 2011, Leow Sue Wei (“Ms Leow”) of Oberthur sent Mr Tannos a quotation for 1m “ID ONE modules … Product Specs compliant to the specification based on the tender of the National Administration of NIK-based Citizenship ID” at a price of US$0.425 per chip. The price included “Perso Services per Card”.
(b) On 7 September 2011, Ms Leow sent Mr Tannos a revised quotation for 30m “ID ONE modules (Using ST23 Series – NXP P3/P5 Series)” at a price of US$0.43 per chip. Similarly, the price included “Perso Services per Card”.
(c) On 8 September 2011, Mr Tannos replied to say that “the price of chips is OK” and requested for 20 samples of both ST-AP’s and NXP’s chips for testing by the MHA. In the same email, Mr Tannos also asked that a draft sales agreement be sent to him.
(d) On 10 September 2011, Mr Tannos informed Peter Wong (“Mr Wong”) of Oberthur that Sandipala’s manager, Mr Yulianto, would meet with Oberthur’s technical manager.
(e) On 15 September 2011, Mr Wong sent Mr Tannos a document explaining that Oberthur would provide a “Common Personalisation System” which would support the personalisation of the Oberthur operating system using multiple chips. The document also described the provision of a “Standalone [KMS]” that would be used for “key exchange between the government KMS and the perso bureau KMS”.
(f) On 16 September 2011, Mr Wong informed Mr Tannos that:
[102] The aforementioned correspondence between Mr Tannos and the representatives of Oberthur contradicts Mr Tannos’ claim that he was only looking for chips that were identical/similar to the Tender Evaluation Chips. Importantly, he was informed that there were limitations to the existing Datacard Production System which could only personalise the “P3 NXP Module”. Notwithstanding that, he had contracted to purchase 30m chips from Oberthur. I note in particular that the document attached to Mr Wong’s email dated 15 September 2011 had also included a reference to a KMS that would be provided by Oberthur. This corroborates Mr Kim’s evidence that Mr Tannos was interested in making modifications to the existing card system that would be achieved by procuring, amongst other things, a new KMS.
[103] Apart from an intention to modify the E-KTP infrastructure, Mr Tannos’ dealings with Oberthur also showed that he was sourcing from Oberthur cheaper alternative chips. This puts paid to his claim that he did not want to purchase chips that were different from the Tender Evaluation Chips. Besides the NXP P3 and ST23YR12 chips that had been approved by the Indonesian Government, the quotations issued by Oberthur included the NXP P5 chip which had not been approved.
(3) The dealings with Hongda
[104] Apart from Ubivelox and Oberthur, it appears that Mr Tannos was in contact with Hongda which was a chip distributor. In his AEIC, Mr Tannos said:
[105] Again, Mr Tannos tried to dissociate himself from his dealings with Hongda by claiming that his meeting with Hongda was unsolicited. Under cross-examination, Mr Tannos admitted that he had “many meetings with Hongda”. However, he maintained, quite unconvincingly, that what he did in those meetings was to insist on a proposal for Tender Evaluation Chips which Hongda could not provide. In this regard, I agree with the submission of ST-AP/Mr Cousin that it is more likely that Mr Tannos’ discussion with Hongda went beyond the proposal stage. It would be illogical and indeed unnecessary for Mr Tannos to have “many meetings with Hongda” so as to insist on a proposal that Hongda could not provide. The inference that Mr Tannos’ discussion with Hongda went beyond that is further reinforced by the following exchange between Mr Tannos and Mr Winata on Blackberry Messenger. Mr Winata said:
I note also that Mr Tannos’ reply is inconsistent with his evidence that his dealings with Hongda were limited to his insistence on a proposal which Hongda did not provide. If that was the case, it would not have been necessary for him to “stop” his dealings with Hongda.
(4) The dealings with Oxel
[107] There is a dispute as to how and why Mr Tannos was introduced to Mr Winata of Oxel. Mr Tannos claims that Mr Cousin had introduced Mr Winata to him. On the other hand, Mr Cousin claims that it was Mr Tannos who actively persuaded Mr Cousin to introduce him to Mr Winata but Mr Winata refused to meet Mr Tannos. According to Mr Cousin, Mr Tannos was eventually introduced to Mr Winata by one Jack Budiman (“Mr Budiman”). Mr Winata confirmed that he had refused Mr Tannos’ approaches until October 2011 when he finally agreed to meet Mr Tannos on account of Mr Budiman.
[108] This dispute of fact is significant because Sandipala’s case that there was a conspiracy between ST-AP and Oxel (to offload on it chips that could not work) would be severely damaged if it was Mr Tannos who had actively sought an introduction to Mr Winata.
[109] I pause here to note that Mr Budiman was supposed to give evidence at the trial but ultimately did not do so. However, I am not inclined to draw any adverse inferences against Oxel for Mr Budiman’s absence from the trial. I find unimpressive Sandipala’s suggestion that Mr Budiman got cold feet about testifying in Singapore. I accept Oxel’s explanation that Mr Budiman was ready to appear in the first tranche of the trial but was unable to make it to Singapore on the new dates when the dates for his appearance at trial was shifted because (inter alia) Mr Tannos’ cross-examination lasted longer than expected. I do not think that anything more than that should be inferred from his absence. Further, even if Mr Budiman’s evidence were put aside, I find Mr Cousin’s and Mr Winata’s evidence that it was Mr Tannos who had actively courted Mr Winata to be supported by an exchange between Mr Tannos and Mr Cousin on Blackberry Messenger in September 2011. For easy reference, the relevant part of the Blackberry chat is reproduced as follows:

The judgment continues past this page. Read the rest at eLitigation.

PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others

Grounds of decision

Dramatis Personae

(a) President Director: Mr Tannos

(b) Director: Ms Catherine Tannos (“Ms Tannos”)

(c) Director: Ms Pauline Tannos

(d) President Commissioner: Mrs Rawung

The key events

Sandipala’s participation in the tender

Sandipala took steps to purchase chips and personalisation machines

Sandipala places order for chips with Oxel

Sandipala requests for samples

Sandipala receives Oxel’s chips

The meetings between Mr Tannos, Mr Winata and Mr Cousin in 2012

The cases put forth by the parties

Sandipala’s case

Sandipala’s claims against Oxel

Sandipala’s claims against ST-AP

Sandipala’s claims against Mr Cousin

Sandipala’s claims against all the defendants

ST-AP’s and Mr Cousin’s case

Oxel’s case

The issues in the trial

Decision

Whether ST-AP recommended or determined chip hardware/software for use in the tender evaluation

Whether ST-AP supplied chips for use in the tender evaluation

Whether Sandipala had been instructed by PNRI to procure from ST-AP chips of the type approved by the MHA

Whether Mr Tannos had been shopping around for other operating systems

(1) The dealings with Ubivelox

(2) The dealings with Oberthur

(3) The dealings with Hongda

(4) The dealings with Oxel