Najib's SRC Trial: A-G’s opening statement

This article first appeared in The Edge Malaysia Weekly, on April 8, 2019 - April 14, 2019.

Mohd Nazlan presiding over court proceedings last Wednesday.

Two members of the defence team in court.

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1    IT is my duty and privilege to open the first trial in our courts against a former prime minister, who for nearly a decade, occupied the most powerful office in the land and wielded near absolute power, which carries with it enormous responsibility, which my office intends to discharge in order to establish that the accused is guilty of the seven charges that he is facing before your lordship.

 

2    The accused during his entire period in office as prime minister, at which time these offences were committed, simultaneously held the office of minister of finance, thereby combining maximum political power and control of the nation’s purse. In holding the office of the prime minister, and thus the nation’s highest elected public officer and head of government, the highest trust was reposed by our people in the accused.  In such circumstances, the law demands the highest standards of care in the discharge by the accused of his duties and obligations as trustee of public offices.  

 

3    Not being satisfied with the holding of the twin positions of prime minister and minister of finance, the accused was also appointed the chairman of the board of advisers of 1Malaysia Development Bhd (1MDB) and adviser emeritus in its fully-owned subsidiary, SRC International Sdn Bhd (SRC International). A common feature of both companies was that the true power in directing and managing their affairs did not lie with the board of directors, as is required by law and is the universal practice wherever companies carry on business, but in the person of the accused by virtue of his holding these two positions.  

 

4    The operation of Article 8(1) of the Federal Constitution that “all persons are equal before the law” is amply demonstrated by this trial.  A former prime minister is charged under due process in the ordinary court of the land, like any other accused.  The accused is not above the law and his prosecution and this trial should serve as precedents for all future holders of this august office.

 

5    This trial is the first of many kleptocracy-1MDB-linked prosecutions. As required under Section 179 of the Criminal Procedure Code, I will state briefly the nature of the offences charged and the evidence by which the prosecution proposes to prove the guilt of the accused.

 

6    In the instant prosecution, the accused is charged with the following offences:

•    One charge under Section 23 of the MACC Act 2009 for abuse of position;

•    Three charges under Section 409 of the Penal Code for criminal breach of trust; and

•    Three charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering.

 

7    To prove the prosecution’s case beyond a reasonable doubt, the prosecution will be relying on direct and circumstantial evidence, both oral and documentary, to prove that the accused, on the dates, times and manner as contained in the charges, is guilty of each of the charges against him.

 

One charge under Section 23 of the MACC Act 2009 for abuse of position

 

8    For the charge under Section 23 of the MACC Act 2009, evidence will establish that the accused at all material times, as an officer of a public body, to wit, as prime minister and minister of finance, used his office and/or position to obtain for himself a gratification of RM42 million. Evidence will abundantly establish that the accused was directly involved in the decision on behalf of the government of Malaysia to give government guarantees for the loans amounting to RM4 billion received by SRC International  from Kumpulan Wang Persaraan (Diperbadankan).

 

9    In proving the ingredients of Section 23 of the MACC Act 2009, evidence — oral, documentary and/or circumstantial — will be led by the prosecution to establish the following:

 

•    Proposed establishment of SRC International;

•    Proposed setting-up grant of RM3 billion;

•    SRC International’s request for a government loan for RM3.95 billion;

•    The appointment of SRC International’s board of directors, and the appointment of one Nik Faisal Ariff Kamil as CEO of SRC International;

•    Matters that led to the approval of the government of Malaysia through the Ministry of Finance for the issuance of a RM2 billion government guarantee in favour of SRC International;

•    Matters that led to the approval of the government of Malaysia through the Ministry of Finance for the issuance of a further RM2 billion government guarantee in favour of SRC International;

•    Monies totalling RM42 million, sourced from SRC International, were channelled through the company accounts of Gandingan Mentari Sdn Bhd (a wholly-owned subsidiary of SRC International) and Ihsan Perdana Sdn Bhd (purportedly appointed as SRC International’s corporate social responsibility partner);

•    The accused, between Aug 17,  2011, and Feb 8, 2012, as a result of the aforesaid, had received as gratification the said monies totalling RM42 million into his AmPrivate Banking-1MY no. 211-202-201188-0 and AmPrivate Banking-MY no. 211-202-201190-6 bank accounts.

 

Three charges under Section 409 of the Penal Code for criminal breach of trust

 

10    For the charges under Section 409 of the Penal Code, evidence will establish that the accused at all material times, as agent, to wit, as prime minister and minister of finance, and adviser emeritus of SRC International, whilst entrusted with monies belonging to SRC International, committed criminal breach of trust in respect of the RM27 million, RM5 million and RM10 million belonging to SRC International.

 

11    In proving the ingredients of Section 409 of the Penal Code for criminal breach of trust, evidence — oral, documentary and/or circumstantial — will be led by the prosecution to establish the following:

•    A special resolution was passed to amend SRC International’s Articles of Association to appoint the accused as adviser emeritus. As advisor emeritus, the accused shall advise the company’s board on material matters and matters of strategic interest to Malaysia, and that the board shall give due consideration to and implement any advice of the adviser emeritus in the best interest of the company;

•    That the accused had dishonestly caused himself to wrongfully gain RM42 million and/or caused SRC International to wrongfully lose RM42 million;

•    That between Dec 24 and 29, 2014, a sum of RM27 million belonging to SRC International was remitted to the accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account through the company accounts of Gandingan Mentari and Ihsan Perdana;

•    That between Dec 24 and 29, 2014, a sum of RM5 million belonging to SRC International was remitted to the accused’s AmPrivate Banking-MY no. 211-202-201190-6 account through the company accounts of Gandingan Mentari and Ihsan Perdana; and

•    That between Feb 10 and March 2, 2015, a sum of RM10 million belonging to SRC International was remitted to the accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account through the company accounts of Gandingan Mentari and Ihsan Perdana.

 

Three charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering

 

12     For the charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering, evidence — oral, documentary and/or circumstantial — will be led by the prosecution to establish the following:

•    That the accused on or about Dec 26, 2014, engaged in money laundering to wit by receiving RM27 million, being the proceeds of an unlawful activity, in the accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account;

•    That the accused on or about Dec 29, 2014, via a real-time electronic transfer of funds and securities (Rentas) instruction, remitted RM27 million, being the proceeds of an unlawful activity, from the accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account to the company account of Permai Binraya Sdn Bhd;

•    That the accused on or about Dec 26, 2014, engaged in money laundering to wit by receiving RM5 million, being the proceeds of an unlawful activity, in the accused’s AmPrivate Banking-MY no. 211-202-201190-6 account;

•    That the accused on or about Dec 29, 2014, via a Rentas instruction, remitted RM5 million, being the proceeds of an unlawful activity, from the accused’s AmPrivate Banking-MY no. 211-202-201190-6 account to the company account of Putra Perdana Construction Sdn Bhd;

•    That the accused on or about Feb 10, 2015, engaged in money laundering to wit by receiving RM10 million, being the proceeds of an unlawful activity, in the accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account;

•    That the accused on or about Feb 10, 2015, remitted RM10 million, being the proceeds of an unlawful activity, from the accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account to the accused’s AmPrivate Banking-MY no. 211-202-201190-6 account;

•    That the accused had issued a total of 15 personal cheques from his AmPrivate Banking-MY no. 211-202-201190-6 account totalling an approximate sum of RM10,776,514;

•    Evidence will also establish that in December 2014, the accused’s credit card was charged US$130,625 for expenses made at Chanel, an exclusive fashion store in Honolulu; and

•    Evidence will establish that the personal cheques were issued for, among others, payment for renovation works carried out at the accused’s residence at 11 Jalan Langgak Duta, Kuala Lumpur, the accused’s residence in Pekan, Pahang, and cheques issued to various Barisan Nasional component political parties.  

 

13    The burden is now on the prosecution to prove, beyond a reasonable doubt, that the accused, Mohd Najib Abdul Razak, is guilty of the criminal charges preferred against him at this trial.  

 

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