PUTRAJAYA (March 21): A three-member Court of Appeal bench here today dismissed three of four appeals by former premier Datuk Seri Najib Razak in relation to his seven charges of criminal breach of trust and abuse of power regarding RM42 million of SRC International Sdn Bhd funds.
SRC International is a former subsidiary of 1Malaysia Development Bhd (1MDB).
The panel led by Datuk Zabariah Mohd Yusof, however, allowed Najib's appeal against senior lawyer Datuk Sulaiman Abdullah's appointment as the prosecutor.
Zabariah ordered Attorney General Tommy Thomas to produce the certificate of appointment on Sulaiman's appointment as the prosecutor within three days.
Najib is appealing on four matters, namely wanting a gag order against the media from discussing his case, challenging the appointment of Sulaiman as a prosecutor, wanting more documents to the case and questioning the transfer of the case from the Sessions Court to the High Court following the withdrawal of the Section 418 Criminal Procedure Code certificate.
The other judges were Justices Datuk Rhodzariah Bujang and Datuk Lau Bee Lan.
Zabariah read her brief grounds regarding the gag order and wanting more documents from the prosecutors, while Rhodzariah allowed Najib's appeal regarding Sulaiman.
Lau read her grounds with regard to the transfer of the case following the withdrawal of the Section 418 Criminal Procedure Code certificate to maintain the trial at the High Court.
Basically, the bench ruled that High Court judge Justice Mohd Nazlan Mohd Ghazali was right in his decision not to allow the gag order, further documents to the defence and his decision on the transfer.
"There is no error in the judge's decision with regard to these matters which warrants the appellate court's intervention," Zabariah and other judges ruled.
However, what is important in all four matters is with regard to giving more documents where the court ruled that the prosecution had fulfilled the Section 51A requirement of the Criminal Procedure Code of handing pre-trial documents.
Zabariah said the prosecution was right in not giving witness statements which it recorded under Section 30 of the Malaysian Anti-Corruption Commission Act 2009 and under Section 40 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activities (AMLATFPUA) 2001 for fear of witness tampering.
She cited a Federal Court case which is against disclosure of such documents
"The is no legal basis or no foundation that could support the right to inspect the documents (by the defence) at the pre-trial stage. On pre-trial, the prosecution has met the requirements under Section 51A and the appellant (Najib) is not entitled to any disclosure at this stage as the documents were obtained during the course of the investigations.
"Documents obtained during the course of investigations are considered privileged documents as there is a fear in the likelihood of witness tampering.
"The threat of witness tampering is real and relevant to public policy, as the court should protect against witness tampering," she said, adding the prosecution also need not provide a list of witnesses at the pre-trial stage.
On the gag order, the judge said the finding by the High Court judge that the plaintiff failed to meet the threshold for a prior restraint gag order is correct.
"Such relief sought is found to be unfounded and we do not want to interfere with the High Court judge's findings," she said.
Lau ruled the transfer of the case back to Nazlan himself was in order as he was exercising his power on his own initiative as a High Court judge.
"His order that the cases be tried before the same High Court is not an usurpation of the Chief Judge of Malaya's powers. The usurpation does not exist as Nazlan was acting on his own initiative," Lau said.
Meanwhile, Rhodzariah in granting the only Najib appeal said they are unanimous in granting the appeal as this court rules the privilege of confidentiality does not extend to the said letter of appointment to Sulaiman.
Following the decision, both parties then submitted on the issue of a stay of proceedings of the trial where Havinderjit Singh and lead counsel Muhammad Shafee Abdullah said if the trial proceeded it may lead to an annulity should the Federal Court reverse the Court of Appeal decision.
Thomas said if possible the prosecution was prepared to have the case start next week as case management for this case is fixed tomorrow.
Thomas said there is no stay of proceedings in criminal proceedings unlike in civil.