i. Eligibility Criteria

(1) Categorisation of Claimants

38. In view of the fact that the degree of evidence provided by the investors may vary substantially, SC proposes that the claims submitted be classified into categories to allow for just and fair treatment for the claimants within each category.

39. It is proposed for the claimants to be categorised into 8 Categories based on: (a) the Statutory Declaration claims; and (b) the completeness of supporting evidence tendered by claimants. These two elements are the pillars that form the basis of the assessment of the claims that have been submitted.

40. The 8 Categories are:

(i) Category A: Claimants who submitted proper Statutory Declaration claims and provided full evidence on both payment and investment;
(ii) Category B: Claimants who submitted proper Statutory Declaration claims and provided partial evidence, either on payment or investment only;
(iii) Category C: Claimants who submitted proper Statutory Declaration claims but did not provide any evidence on both payment and investment;
(iv) Category D: Claimants who submitted defective Statutory Declaration claims but provided evidence, either on payment or investment only;
(v) Category E: Claimants who submitted defective Statutory Declaration claims and did not provide any evidence on both payment and investment;
(vi) Category F: Claimants who did not submit Statutory Declaration claims and did not provide evidence on both payment and investment;
(vii) Category G: Claimants who submitted claims not related to SwissCash; and
(viii) Category H: Claimants who did not submit Statutory Declaration claims but submitted claims to SC previously and provided evidence on both payment and investment and Claimants who did not submit Statutory Declaration claims but provided evidence on payment and/or investment to the Administrator.

Statutory Declaration Claim

41. A Statutory Declaration Claim is considered proper if the claimant fulfills all these criteria:-
(i) Filled in:
• Name;
• NRIC number;
• Amount claimed;
(ii) Attested before a licensed Commissioner of Oaths / Notary Public / Lawyer / Solicitor / Justice of Peace / Police (senior officer and above) / Magistrate; and
(iii) Signed by investors or parent/guardian of investor who is a minor or legal representative.

In the event that any one of the above criteria is not fulfilled, the Statutory Declaration is deemed defective.

Supporting Evidence

42. In relation to the evidence, supporting evidence are deemed full evidence if the claimant produced both proof of payment and proof of investment. In order to prove payment, the amount claimed must be supported by a Remittance Advice (“RA”). In order to prove investment, investment certificates or emails or Short Message Service (“SMS”) confirming the investment must be submitted.

43. An RA must be supported by a Telegraphic Transfer Form, banker’s cheque / bank-in slips / customer copy cheques / internet transfer slips / cheques with bank statement attached as proof of clearance. All these documents must have the bank’s endorsement with the recipient as stated in the Statutory Declaration claim or in the narrative. In order to be accepted, the remittance date must also be on or up to seven days before the investment date.

44. Investment certificates, emails and/or SMS produced as evidence must contain:
(i) the name of the claimant;
(ii) SwissCash ID;
(iii) Investment ID;
(iv) investment date; and
(v) the amount stated must tally with the amount in the Statutory Declaration Claim.

45. If an EMF is produced as evidence, it can either be supported by an email or a SwissCash portfolio printout. However, only those bearing the status “Closed / Filled” will be accepted.

46. In the event that only one of the above is produced as evidence, the evidence supporting the claim is considered partial evidence.

(2) Cut-Off Date

47. A cut-off date for investments that are eligible for payout is proposed to be fixed at 21-6-2007, on which date, the Malaysian Communications and Multimedia Commission (“MCMC”) blocked access to the SwissCash website so that investors could no longer access the website. Therefore, any investments made after this date must not be taken into account for the payout.

(3) Upliners

48. The SC recommends that no payment shall be made to known upliners to discourage similar methods in operating illegal schemes.


ii. Payment Criteria

(a) Amount supported by evidence
49. Amount supported by evidence shall be based on investment certificates or emails or SMS confirming the investment or RA.

50. Investment certificates, emails, SMS and/or RA produced as evidence must contain the information as stated in Paragraphs 42 to 45 above.

51. Investment evidence which is also supported by RA is viewed more favorably as there is evidence of the investor having invested in the scheme. As such, it is proposed that in final computation, the portion of the investment which is supported by RA be subject to a 100% weightage whereas the remainder of the investment evidence not supported by remittance advise is subject to only a 75% weightage to reflect the higher payout ratio for claims supported by evidence of remittance.

(b) Returns

52. Out of the total claims received, approximately 7,682 claimants have declared that they have received returns amounting to USD6,892,534.00. Based on the estimated amount invested (total amount claimed plus returns declared) by claimants which have declared to have received returns which is approximately USD26,718,303.00, the average rate of return is therefore 26%.

53. In the circumstances, it is suggested that 26% be deducted from those who had not declared their return of investment or those who had declared a lower rate of return. For claimants who had declared a higher return of investment, the actual amount declared shall be deducted from their payout.

(2) Claimants who have provided SD and has not provided documentary evidence to support their claims (Category C)

54. In relation to the Category C claimants, they are those who have submitted proper Statutory Declaration claims but did not submit evidence of the investment. This is due to the fact that they had handed over their monies to the upliners and do not have proof of payment or proof of investment. Out of the total USD

52,108,093.00 sought in the Total Claims, Category C’s claims are in the amount of USD15,363,066, which is 29% of the Total Claims. The SC has compelling reasons for recommending a payout to Category C claimants of RM500 per person based on minimum USD1,000 Amount Claimed. In the event the Amount Claimed is lower than USD 1,000, the amount the claimant will receive shall be proportionately reduced.

(3) Claimants who have either not provided SD or have not provided relevant evidence (Categories E, F and G)

55. No payment will be made to claimants under Category E as they did not submit a complete SD nor any documentary evidence.

56. Category F are those who did not submit the SD nor the evidence required to support their claim and therefore, it is impossible to determine whether they had really invested in the SwissCash scheme. Accordingly, no payment will be made to this category as well.

57. For Category G claimants, they had submitted their claims but those claims are not related to SwissCash and therefore, they are not entitled to a portion from the Settlement Sum that has been clearly indicated by Court only to be applied for the investors in this particular scheme only.

(4) Claimants who submitted evidence previously to SC or Administrator but did not submit SD to Administrator (Category H)

58. It is recommended that claimants in Category H are entitled to payment as per Category A claimants as they have submitted proper claims with supporting evidence on both investment and payment, previously to SC or to the Administrator but did not provide the Statutory Declaration. Although they did not submit the Statutory Declaration, their previous claim had provided sufficient details and evidence to prove that they did invest in the SwissCash scheme and therefore they are equally entitled to a portion from the said Settlement Sum. It is proposed that the Administrator invite these investors to submit a Statutory Declaration to support their claims. For purposes of allocating funds to meet the claims of these investors, the payout ratio will be based on category A payout ratio.

However, upon submission of the Statutory Declaration, the claims will then be assessed and paid according to the eligibility criteria approved by this Honourable Court.

iii. Payout Ratio

59. As at 28-2-2010, the available Settlement Sum for distribution, less the costs and fees incurred by the SC and the Administrator is RM 32.8million.

60. Based on the Eligibility Criteria and categories of claims set out above, the SC recommends a proposed payout ratio for each category, which is as follows:-

*subject to a haircut depending on evidence submitted (if proof of RA is submitted, the proposed weightage attached will be 100%. However, if only proof of investment is submitted, the proposed weightage attached will be 75%, therefore there will be a haircut of 25% on claims submitted with only proof of investment)

Please go to SC website for the full text of the Affidavit.