Tuesday, March 10, 2009

Criminal Breach of Trust

The Law Demystified Series 1: Criminal Breach of Trust



CRIMINAL BREACH OF TRUST:

The principal objective of criminal law is to punish an offender. The nature of the offences, for the purpose of these objectives, varies from offences ranging from theft to homicide, murder, etc. It is, however, imperative to note that the Indian Penal Code, 1860, not only deals with offences that are obviously criminal in nature, but also deals with intricate offences, earmarked with human intricacies and complexities like breach of trust, misappropriation of another's properties, etc. Against this background, let us take a look at the various aspects of criminal breach of trust, which offence is dealt with by our criminal statutes as a penal offence. The offence of criminal breach of trust in India closely resembles the offence of embezzlement under English Law. Offences committed by trustees with regard to trust property fall within the purview of criminal breach of trust. Similarly, a partner in a partnership firm can be held to be guilty of criminal breach of trust in respect of a partnership asset.

CRIMINAL BREACH OF TRUST -MEANING:
Section 405 of the Indian Penal Code defines criminal breach of trust. In a layman's language, criminal breach of trust may be defined as the fraudulent appropriation of another's property by a person to whom it has been entrusted, or into whose hands it has lawfully come. The ownership or beneficial interest in the property in respect of which the criminal breach of trust is alleged to have been committed, must be in some person other than the accused, and the latter must hold it on account of some person or in some way for his benefit.

ESSENTIAL INGEDIENTS OF CRIMINAL BREACH OF TRUST:
There are a few essential ingredients that are absolutely necessary to attract the provisions of S. 405 viz., criminal breach of trust. These are:i. The accused must be entrusted with property or dominion over the property;ii. The person so entrusted must-a. dishonestly misappropriate or converts to his own use that property, orb. dishonestly uses or disposes of that property or wilfully suffer any other person to do so in violation of-· any direction of law prescribing the mode in which such trust is to be discharged, or · of any legal contract, made touching the discharge of such trust.

CRIMINAL BREACH OF TRUST - PUNISHMENT:
Section 406 of the Indian Penal Code states that:"Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

AGGRAVATED FORMS OF CRIMINAL BREACH OF TRUST:
The Indian Penal Code also incorporates, within its ambit, provisions dealing with aggravated forms of criminal breach of trust. In these provisions, the ingredient which makes the offence more aggravated is the position and the nature of trust reposed in the accused, the abuse of which the law esteems as especially flagrant, blatant, thus calling for commensurately enhanced punishment. Such aggravated forms of criminal breach of trust as enumerated by the Indian Penal Code, 1860, are as follows: · Section 407 deals with criminal breach of trust committed by a carrier, wharfinger or warehouse-keeper, and the punishment for the same is imprisonment of either description for a term which may extend to seven years and a fine;· Section 408 deals with the same offence, viz., criminal breach of trust, committed by a clerk or servant and this offence shall be punishable by imprisonment of either description for a term which may extend to seven years and a fine;· Section 409 states that when a public servant commits the offence of criminal breach of trust, such person shall be punished with imprisonment of either description for a term which may extend to ten years and a fine.

Courtesy: Vijay Times News

http://www.lawstudent.in/cl_lawdemystified1.htm


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Action Against Prominent Businessmen Datuk Halim Saad and Anuar Othman For Criminal Breach Of Trust And Former Finance Minister Tun Daim Zainuddin For Abuse Of Power In The 756.7 Million Metramac Scandal.

Police Report Made By Tan Kok Wai
(Cheras Police Station , Monday):
Police Report By DAP National Organising Secretary And MP For Cheras Tan Kok Wai In The Cheras Police Station On 16 January 2006.


I am lodging a report against prominent businessmen Datuk Halim Saad and Anuar Othman for criminal breach of trust and former Finance Minister Tun Daim Zainuddin for abuse of power. My report is based on the judgment by Judge Datuk Gopal Sri Ram's on 12 January 2006 which represented the Court of Appeal’s judgment on the Metramac Corporation Sdn Bhd (Metramac case) W-02-1009-2003 and W-02-1013-2003. A copy of the Court of Appeal judgment comprising Gopal Sri Ram, Hashim bin Dato' Yusoff and Zulkefli bin Ahmad Makinudin is enclosed.

My report is based on the findings by the Court of Appeal as follows:-
In or about September 1990, there was a public demonstration at the toll booth established by the defendant along the Cheras highway protesting at the imposition of a toll. The Federal Government stepped in to deal with the situation. By its letter dated 12 September 1990 DBKL asked Syarikat Teratai KG Sdn Bhd (STKG) to suspend the collection of toll at the Cheras tollbooth. This spelled disaster for it was exposed to a loan repayment of RM 40 million which it had planned to pay from toll collection. In the second place, the whole of the shareholders funds amounting to RM 65 million would be wiped out.

DBKL in its letter of 20 October 1990 agreed in principle to take the option of terminating the first concession and paying compensation. But no figure was mentioned although the defendant had put forward an estimated sum of RM 764.2 million as compensation. An appeal to the then Minister of Finance, Tun Daim Zainuddin, fell on deaf ears. He simply told the defendant's then existing shareholders that the Federal Government was not in a position to pay the defendant any compensation.

By letters dated 12 November, 1990 and 24 November 1990 a company called UEM Bhd, a public limited company made an offer to purchase all the shares in STKG for a sum ofM$97.5 million. The shares were to be purchased by a company nominated by UEM. That company was Metro Juara Sdn. Bhd. which had merely two shareholders who were also its sole directors. These gentlemen were one Anuar Othman and one Dato Halim Saad. No one in his or her right mind will consider the choice of selling of their shares to Metro Juara at RM 97.5 million as a choice at all. All the independent evidence on record points to this being in reality a crude case of economic duress presenting itself in a more subtle form.

Now, the offer by UEM to buy out the defendant’s shares for RM 97.5million simply does not make any commercial sense. Here you have a company that has just had its loan and shareholders capital wiped out in one stroke. It had no money in its coffers. It had huge debts. It had no prospects of receiving any compensation from DBKL. So why pay RM 97.5 million for the shares of such a company? The answer is simple enough. Anuar Othman and Dato Halim Saad had something which the plaintiff did not. And that was the patronage of the then Minister of Finance, Tun Daim Zainuddin.

An agreement called the Share Sale Agreement dated 23 January 1991 was executed. Thereafter, the defendant's name was changed to Metramac Corporation Sdn Bhd. Not long after the take over, a strange thing happened. Where doors were once closed to the defendant before its take over, as if by the utterance of a magic spell all bureaucratic doors were opened to the defendant after its take over by Metro Juara. And, as if by the rub of a magic lamp, the Federal Government and DBKL who hitherto claimed to be impoverished suddenly found themselves flush with funds. They were now in a financial position compensate the defendant. The figures are staggering. In one way or another the defendant was to receiving total sum of M$756 million.
In its letter of 30 August 1991, DBKL said that it would pay the defendant RM312 million for the cost of works done. On 13 February 1992, the Federal Government in conjunction with DBKL agreed to subsidies the defendant with a sum of RM405 million to enable the defendant to meet the cost of financing the works to be undertaken under the agreement that was to be entered into between DBKL and the defendant. Mark you, at this point in time, not a stick of work had been done under the new concession agreement. On that very day, that is to say, '13 February 1992, two other events occurred. First, DBKL entered into another concession agreement with the defendant. I will refer to this as the second concession agreement.

Second, the Ministry for Public Works gave the defendant an undertaking to pay it RM 32.5 million as "payment for share premium" not "previously taken into account": So far as this case is concerned, the words within quotation marks are meaningless. Because they have no nexus whatsoever to any of the agreements entered into between the several parties. You may well ask how all this could have happened without the direct involvement of Tun Daim. It is also incomprehensible why the defendant as it was constituted immediately before the takeover by Metro Juara was not given this same financial support by the Federal Government. After all, at least two of the pre-takeover shareholders were either Government concerns or Government assisted concerns. And in the case of Tabung Haji, the ultimate beneficiaries would have been the poorer section of our society. I think that it is a fair question to ask why taxpayers' money was channeled into the hands of two private individuals - to profit them - instead of a wider section of the general public. It is not at all clear why the Minister for Finance used his power to favour Anuar Othman and Dato Halim Saad.

For the sake of completeness, it must be mentioned that the RM 32.5 million mentioned earlier was siphoned out of the defendant's account by Anuar Othman and Dato Halim Saad. An international misappropriation of such a company’s property, moveable or immoveable criminal breach of trust within section 405 of the Penal Code and, if the misappropriation is done by directors, as was the case here, it is the aggravated form of criminal breach of trust under section 409.

By doing so, the two businessmen could face a maximum 20-year jail term with whipping and fine upon conviction. The police should also investigate and take action against Tun Daim for clearly abusing his powers to profit the two individuals at the expense of public interest. This is my report.


Yours faithfully,

TAN KOK WAI
532A, Batu 3 ½ , Jalan Cheras, 56100 Kuala Lumpur.
Tel. No. 03-92857532


http://www.dapmalaysia.org/english/2006/jan06/bul/bul2905.htm


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The people behind Gerbang Perdana

SPECIAL REPORTS ARCHIVES

MALAYSIA TODAY SPECIAL REPORT ON GERBANG PERDANA SDN BHD
Raja Petra Kamarudin

(1) Gerbang Perdana Sdn Bhd, the Johor-Singapore 'Crooked' Bridge or 'Half-Bridge' contractor, is 20% owned by
(2) DRB-HICOM Berhad (3,680,000 shares), 20% owned by
(3) Detik Nagasari Sdn Bhd (3,680,000 shares), and 60% owned by
(4) Merong Mahawangsa Sdn Bhd (11,040,000 shares).(3) Detik Nagasari Sdn Bhd is 100% owned by
(5) Hyundai-Sime Darby Berhad (Change of name from Transwater Bina Sdn Bhd to Transwater Corporation Sdn Bhd on 03.04.1986, and to Transwater Corporation Berhad and to Hyundai Berjaya Corporation Berhad on 21.07.2003, and to Hyundai-Sime Darby Berhad on 26.04.2005).(4) Merong Mahawangsa Sdn Bhd is 50% owned by
(6) Ibex Corporation Amalgamated Sdn Bhd and 50% owned by
(7) Ibzi Holdings Sdn Bhd. (5) Hyundai-Sime Darby Berhad is 46.6% owned by Tan Sri Dato' Seri Vincent Tan Chee Yioun, 10.62% owned by Dato' Dr Tengku Retwan bin Tengku Mansor, 6.32% owned by Datuk Tengku Adnan bin Tengku Mansor, and 5.85% owned by The Estate of Dato' Wan Adli bin Dato' Wan Ibrahim (see full list below).(6) Ibex Corporation Amalgamated Sdn Bhd (suspected to be the nominee company of the previous Menteri Besar of Johor) is 65% owned by Dato' Yahya bin A. Jalil and 35% owned by Datin Mahmudah bte Md Ali.
(7) Ibzi Holdings Sdn Bhd is 99% owned by DYAM Tunku Ibrahim Ismail ibni DYMM Baginda Al-Mutawakkil Alallah Sultan Iskandar Al-Haj (The Tengku Mahkota of Johor) and 1% owned by Raja Zarith Sofia bte Raja Idris (his consort).

The full corporate and financial details of the above are as follows:

(1) Gerbang Perdana Sdn Bhd (Company Reg. No. 469478-X)
Registration Date: 26-09-1998 Registered
Address: 3374, GF Jalan 8/31Taman Sri SerdangSeri KembanganSelangor
Business Address: 3, Jalan 222Petaling Jaya Selangor

Type of Business: Design and Build Contractor for the Gerbang Selantan Bersepadu ProjectAuthorised Capital: RM50,000,000.00Paid Up Capital: RM18,400,000.00

Directors:Name & Address (IC No.) - Position - Appointment

(1) Dato' Yahya Bin A. Jalil (560819-01-6437) - Managing Director -02-01-1999
13, Jalan 12/1046200 Petaling Jaya Selangor
(Also owns 65% of Ibex Corporation Amalgamated Sdn Bhd that owns 50% of Merong Mahawangsa Sdn Bhd and that owns 60% of Gerbang Perdana Sdn Bhd)

(2) Mohd Musthafa Bin Lathif (590608-71-5147) - Alternate Director - 23-12-200326
Medan Athinahapan 2 Taman Tun Dr. Ismail Kuala Lumpur

(3) Yoong Hoi Shing (521121-01-5115) - Director - 06-01-200061
Jalan SS1/1947300 Petaling Jaya Selangor

(4) Kamal Hisham Bin Jaafar (700301-01-5853) - Director - 03-05-20026
Lorong MutiaraKampang Melayu Johor (Also Director of Ibzi Holdings Sdn Bhd and Merong Mahawangsa Sdn Bhd )

(5) Tan Sri Dato' Razali Bin Ismail (390414-02-5037) - Director - 02-01-19991802,
Desa Kudalari3, Lorong Kuda 50450 Kuala Lumpur

(6) Azahar Bin Abdul Aziz (550518-07-5397) - Director - 02-01-1999 27G,
Jalan Pandan Indah 1/17 Pandan Indah 56100 Kuala Lumpur

(7) Chock Eng Tah (571023-10-5227) - Director - 14-07-2003
38, Jalan USJ 2/51 UEP Subang Jaya Selangor

(8) Mohd Redza Shah Bin Abdul Wahid (630127-01-6269) - Director - 31-03-2006
6, Lorong PJU 7/21B Mutiara Damansara 47800 Petaling Jaya Selangor

(9) Kong Seng Huat (590327-06-5117) - Director - 28-08-2003
65, Jalan SS 26/9 Taman Mayang Jaya Selangor

(10) Datuk Mohd Khamil Bin Jamil (560120-08-6175) - Director - 31-03-2006
Lot 2929, Jalan 5Kemensah HeightsUlu Kelang68000 AmpangSelangor

(11) Anand Pon A/L Ponnudurai (561230-01-5351) - Director - 9-04-20027-08-
4, Pantai Hill ParkBlok 7, Fasa 5 Jalan Pantai 5920 Kuala Lumpur

(Shareholders:Co. Reg. No. - Name of Company - Total Shares
(1) 203430-W - DRB-HICOM Berhad - 3,680,0002)
(2) 339525-W - Detik Nagasari Sdn Bhd - 3,680,0003) 463227-X - Merong Mahawangsa Sdn Bhd - 11,040,000Financial Highlights (December 2003):Fixed Assets RM7,147,914.00Current Assets RM152,861,746.00 Total Assets RM -613,682.00Issued Capital RM7,609,000.00Paid Up Capital RM7,609,000.00Unappropriated Profit RM -10,668,353.00Long-Term Deffered Liabilities RM2,445,671.00Current Liabilities RM160,623, 342.00Operating Revenue RM201,078,016.00Profit Before Taxation RM -3,123,252.00Profit After Taxation RM -3,155,055.00Profit Attributes to Shareholders RM -3,155,055.00Unappropriated Profit Carried Forward RM -10,668, 353.00Unappropriated Profit Brought Forward RM -7,513,298.00

(3)
Detik Nagasari Sdn Bhd Company Reg. No. 0339525-WRegistration Date: 10-04-1995Registered Address:11th Floor, Menara BerjayaKL Paza, 179, Jalan Bukit BintangKuala LumpurBusiness Address:83, Jalan SS 25/2Taman Bukit EmasPetaling JayaType of Business: Construction & Infrastructure BusinessAuthorised Capital: RM100,000.00Paid Up Capital: RM100,000.00

Directors:Name & Address (IC No.) - Position - Appointment

(1) Kong Keng Ling (561105-08-5865) - Director - 25-09-19982)

(2) Datuk Wan Lokman Bin Dato Wan Ibrahim (460525-02-5129) - Director - 05-09-1996

Shareholder:Transwater Corporation Bhd (Company no. 0067617-M) -100% (Change of name from Transwater Bina Sdn Bhd to Transwater Corporation Sdn Bhd on 03.04.1986, and to Transwater Corporation Berhad and to Hyundai Berjaya Corporation Berhad on 21.07.2003, and to Hyundai-Sime Darby Berhad on 26.04.2005).Financial Highlights:Fixed Assets RM 1,321,800.00Current Assets RM 94,382.00Total Assets RM 1,416,182.00Current Liabilities RM 1,606,440.00Total Liabilities RM 1,606, 440.00Paid Up Capital RM 100,000.00Rev. & Other Reserves RM -290,258.00Net worth RM -190,258.00Total RM 1,416,182.00Turnover RM -3,588.00Profit Before Tax RM -130,153.00Profit After Tax RM -130, 153.00Profit & Loss for the Year RM -130,153.00(4) Merong Mahawangsa Sdn BhdCompany Reg. No. 0463227-XRegistration Date: 30-05-1998Registered Address:3374, FG Jalan 18/31Taman Sri SerdangSri KembanganSelangorBusiness Address: 3, Jalan 222Petaling JayaSelangorType of Business: Property Development Authorised Capital: RM1,000,000.00Paid Up Capital: RM 600,002.00

Directors:Name (IC No.) - Position - Appointment

(1) Anuar Hakim Bin Abdul Rahim (671127-06-5483) - Director - 09-12-1998

(2) Kamal Hisham Bin Jaafar (700301-01-5853) - Director - 24-09-2002 (Also Director of Gerbang Perdana Sdn Bhd and Ibzi Holdings Sdn Bhd)

(3) Dato' Yahya Bin A. Jalil (560819-016437) - Director - 30-05-1998

Shareholders (company no.) - % of shares:1) Ibex Corporation Amalgamated Sdn. Bhd (0065712-X) - 50%2) Ibzi Holdings Sdn. Bhd. (0483228-P) - 50%Financial Highlights (December 2000): Fixed Assets RM417,235.00Other Assets RM12,304,537.00Current Assets RM132,798.00Total Assets RM12,854,570.00Current Liabilitites RM9,555,270.00Long Term Liabiltites RM244,163.00Total Liabilitites RM9,799,433.00Paid Up Capital RM600,002.00Shares Reserves RM -44,,865.00Net Worth RM555,137.00Minority Interest RM2,500,000.00Total RM12,854,570.00Profit Before Tax RM -7,661, 183.00Profit After Tax RM -44,865.00Profit & Loss for the Year RM -44,865.00(5) Hyundai-Sime Darby Berhad (Change of name from Transwater Bina Sdn Bhd to Transwater Corporation Sdn Bhd on 03.04.1986, and to Transwater Corporation Berhad and to Hyundai Berjaya Corporation Berhad on 21.07.2003, and to Hyundai-Sime Darby Berhad on 26.04.2005).Authorised Capital: RM500,000,000.00Paid-Up-Capital: RM182,563,000.00

Directors:Name - Position - Appointed

(1) Yeoh Choon San - Managing Director - 28-11-20032)
- Independent Non-Executive - 7-7-20034)

(2) Yip Jon Khiam Non-Independent Non-Executive - 6-12-20045)

(3) Dato' Ahmad Zubair bin Haji Murshid - Non-Independent Non-Executive - 06-12-20046

(4) Dato' Kalsom binti Abd. Rahman - Independent Non-Executive -01-03-2005 7

(5) K Shekhar a/l S Krishnan ?Non-Independent Non-Executive - 31-03-2005

Shareholders:Shareholders - Shares Held - %1) Tan Sri Dato' Seri Vincent Tan Chee Yioun - 52,654,550 - 46.6%2) Berjaya Group Berhad - 52,654,550 - 46.6%3) Bizurai Bijak (M) Sdn Bhd - 52,276,550 - 46.26%4) Dato' Dr Tengku Retwan bin Tengku Mansor - 12,000,000 - 10.62%5) Batumadu Sdn Bhd - 12,000,000 - 10.62% 6) Arbaain bin Bakar - 12,000,000 - 10.62%7) Yeoh Choon San - 11,000,000 - 9.73%8) Datuk Tengku Adnan bin Tengku Mansor - 7,139,000 - 6.32%9) The Estate of Dato' Wan Adli bin Dato' Wan Ibrahim - 6,608,750 - 5.85%10) Angsana Embun Sdn Bhd - 6,608,750 - 5.85%Financial Highlights (April 2004):Fixed Assets RM39,336,055.00Other Assets RM4,407,956.00Current Assets RM264,419,305.00Total Assets RM318,163, 316.00Current Liabilities RM126,641,947.00Long Term Liabilities RM20,087,511.00Total Liabilities RM146,729,458.00Turnover RM1,013,598,578.00Profit Before Tax RM132,716,083.00Net Worth RM171,322, 588.00(6) Ibex Corporation Amalgamated Sdn BhdCompany Reg. No. 0065712-XRegistration Date: 19-12-1980Registered Address:Bangunan Ash Hiani, 3374, Jalan 18/31 Taman Sri SerdangSri KembanganSelangorBusiness Address: 3, Jalan 51A/222Petaling JayaSelangorType of Business: Property RentingAuthorised Capital: RM5,000,000.00Paid Up Capital: RM2,000,000.00Directors:Name (IC No.) - Position - Appointment1) Dato' Yahya Bin A. Jalil (560819-01-6437) - Director - 19-12-1990 2) Datin Mahmudah bte Md Ali (700301-01-5853) - Director - 04-12-1986Shareholders:Name - % of shares1) Dato' Yahya Bin A. Jalil - 65%2) Datin Mahmudah bte Md Ali - 35% Financial Highlights (December 1998):Fixed Assets RM6,041,716.00Other Assets RM677,280.00Current Assets RM2,488,599.00Total Assets RM9,207,595.00Current Liabilities RM9,319, 847.00Long Term Liabilities RM3,381,483.00Total Liabilities RM12,701,330.00Turnover RM1,061,035.00Loss Before Tax RM1,729,031.00Net Worth 朢M3,493,735.00(7) Ibzi Holdings Sdn Bhd Company Reg. No. 0483228-PRegistration Date: 11-05-1999Registered Address:157A Jalan Sri PelangiTaman PelangiJohor BahruJohorBusiness Address: Bukit PelangiJalan Pasir PelangiJohor BahruJohorType of Business: Investment Holding CompanyAuthorised Capital: RM5,000,000.00Paid Up Capital : RM 250,000.00Directors:Name (IC No.) - Position - Appointment1) DYAM Tunku Ibrahim Ismail ibni Duli Yang Maha Mulia Baginda Al-Mutawakkil Alallah Sultan Iskandar Al-Haj (5811220-01-5621) - Director - 01-08-2002 2) Raja Zarith Sofia bte Raja Idris (590814-08-5254) - Director - 01-08-20023) Kamal Hisham bin Jaafar (700301-01-5853) - Director - 01-02-2003 (Also Director of Gerbang Perdana Sdn Bhd and Merong Mahawangsa Sdn Bhd )Shareholders:Name - % of shares1) DYAM Tunku Ibrahim Ismail ibni DYMM Baginda Al-Mutawakkil Alallah Sultan Iskandar Al-Haj - 99%2) Raja Zarith Sofia bte Raja Idris - 1% Financial Highlights (not available - presumed DORMANT)Special Report on the NEP archives
Website - http://malaysia-today.net/reports/2006/06/people-behind-gerbang-perdana.htm



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We are a Community of Victims Against :

(1) Cold & Cruel Corporations

(2) Unscrupulous Employers, Businessmen, etc.,

(3) Confidence-tricksters, swindlers, charlatans, cheats, thieves, scoundrels, etc., portraying and masquerading as honest, decent and up-right citizens & genuine business people.

These dirty spineless crooks and scamsters ought to be charged for CBT (Criminal Breach of Trust) in the courts of law and justice. Justice must not only be done but must be seen to be done. Justice shall prevail!

(4) MCA, MIC and other component race-based or ethnic-based parties who kow-tow & kneel
before their political masters or political Gods, to pilfer and loot the country's wealth and the Rakyat's taxes.
These cronies beholden to the ruling elites, masquerading and posturing from their high-moral grounds-stance, worldly-sounding rhetorics and policies, but in reality are nothing more than paying lips-service.
Pulling the wool over the Rakyat's eyes all these years since Independence, until March 8th 2008, when Malaysia woke up from it's reticence and stupor, to send it's strongest message to the ruling elite's evil regime, namely the Govt. of the day, that "Enough is Enough!".

It's inevitable that change is imminent. It's only a matter of time.


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N/B:
Publishers, investors, movie-directors, film producers, are cordially invited to apply. Pls. send complete C.V. and resume to be short-listed for final interview.
Contact email: action4life.justice@gmail.com

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