This article first appeared in The Edge Malaysia Weekly on October 28, 2019 - November 3, 2019

WHILE the defence expressed confidence that High Court judge Mohd Nazlan Mohd Ghazali should grant a full acquittal — or at the very least, drop some of the charges against Datuk Seri Najib Razak — the prosecution team in the SRC International Sdn Bhd trial led by Attorney General Tan Sri Tommy Thomas submitted it had provided enough credible evidence on each and every essential ingredient of the seven offences to make a prima facie case against him.

On the three money-laundering charges, Thomas submitted that bank account holders were obliged to be vigilant to ensure that their accounts do not contain proceeds from unlawful activities.

He pointed to the contractual obligation by the customer — in this case, Najib — to check his account statement and verify the monthly bank receipts within a reasonable period, so as to detect any wrongful deposits into his accounts.

The onus should be on Najib, Thomas stressed, to explain how RM42 million was credited into his accounts when he was only entitled to an official salary of less than RM1 million a year.

“And in the plenty of cheques he issued, hundreds of them, is it not significant that not a single cheque bounced? That is remarkable,” he observed, implying Najib must have played a role in ensuring all the cheques were cleared.

Furthermore, on the defence’s assertion of the need to prove predicate offences in order for the money-laundering charges to stand, Thomas argued that the charge under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFA) could be a standalone charge.

Note that in this case, the AMLATFA charge is not on the utilisation of the RM42 million, but rather the receipt of the RM42 million — even though the prosecution had gone to great lengths to show how Najib had used the money in his accounts.

Therefore, the very fact that the amount had indeed gone into Najib’s accounts in itself should already be considered money-laundering of unlawful proceeds.

Appointed public prosecutor Datuk V Sithambaram pointed out the criminal breach of trust (CBT) and money-laundering charges relate to distinct offences which require different ingredients to prove the charges.

Receipt of the funds, Sithambaram argued, is the ingredient of the offence in money-laundering charges — whether is it the same RM42 million that relates to the CBT charge, is immaterial.

CBT offence is ‘completed’ when there is dishonesty

Sithambaram also submitted that the CBT offence is “completed” when there is a dishonest act in relation to the sum. “CBT is not an offence which counts loss from a consequence of the act. It is the act itself that is the offence. The offence is complete the minute there is misappropriation,” he said.

The prosecution team said Najib was dishonest, and indeed complicit in the whole affair, as he did not lodge a police report even though he was said to be “in shock” at seeing the huge sum of money in the accounts.

Again, the onus is on Najib, as owner of the AmBank accounts receiving the sums, to tell the authorities that the monies had been wrongly deposited upon learning of the matter.

Sithambaram denounced Najib’s expression of shock and being upset as pure “drama”, and that his conduct had clearly proved he had committed criminal breach of trust (CBT).

“[The accused] won’t be issuing cheque after cheque unless you knew someone was managing the account … unless he believes that the money in his account grows on trees,” he said.

Sithambaram also dismissed the defence’s claims that Najib thought the RM42 million was from an Arab donation and was only to be used for political purposes as he had used part of it to settle an outstanding sum of RM2.33 million that was overdrawn in one of his accounts.

Moreover, Najib personally issued a series of cheques from his accounts after receiving the funds. And in order to do that, he must have known there was money in the accounts.

Najib ‘directing an orchestra’

For the abuse of power charge, Thomas said Najib took numerous steps and measures to benefit from a deceitful plan that he had designed three years earlier when he mooted the establishment of SRC International Bhd.

Thomas pointed to Najib’s pinnacle role in SRC’s first RM2 billion loan application from Kumpulan Wang Persaraan Diperbadankan (KWAP) when SRC’s share capital as a Ministry of Finance Inc unit was only RM1 million. Nobody in the public sector would have given the RM2 billion loan, which is why both loans from KWAP were guaranteed by the government, Thomas asserted.

“So, they needed a guarantor for their loan and the accused, who is the prime minister and the finance minister then, turns up,” Thomas said, implying that Najib was central to the government’s guarantee of the loans.

“Accordingly, the prosecution submits that it has met the threshold required and, hence, a prima facie case has been made out against the accused on all the seven charges against him, and thus this Honourable Court ought to order the accused (Najib) to enter his defence in respect of all the seven charges preferred,” the prosecution wrote in closing.

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