This article first appeared in The Edge Malaysia Weekly on April 29, 2019 - May 5, 2019

AFTER nine days and 21 prosecution witnesses, Datuk Seri Najib Razak’s application for the charges against him to be dropped was heard last Friday, on the grounds that they are defective and constitute an abuse of the court process.

The defence in Najib’s SRC International Sdn Bhd trial wants the court to stay or quash the seven charges of criminal breach of trust (CBT), money laundering and abuse of power unless they are amended.

Judge Mohd Nazlan Mohd Ghazali, who is also presiding over Najib’s court proceedings, will decide on the application on Monday.

Counsel Datuk Mohd Yusof Zainal Abiden, who is former solicitor-general II, was brought in to specifically handle this application, along with Datuk Kamarul Hisham Kamaruddin, Datuk Chong Loong Men, S Devanandan and Alex Tan.

According to them, it is vital for the prosecution to properly frame the charges against Najib so as to meet the conditions and law of framing the charges as stipulated under Sections 152, 153, 154 and 155 of the Criminal Procedure Code, and not violate his rights to get a fair trial.

Yusof said the charges did not give Najib sufficient notice of the offences he is alleged to have committed.

He pointed to the three counts of CBT, where Najib was charged in his capacity as the prime minister, finance minister and SRC’s adviser emeritus when he was named as an agent to the charge.

However, he said based on the charges, Najib is left guessing whether he is being alleged as an agent to all three positions combined (prime minister, finance minister and adviser emeritus) or arising from each position. Thus, they lack specificity.

Yusof further submitted that it is unfair for the prosecution to charge Najib with three counts of CBT and a count of abuse of power at the same time and linking them with money laundering as CBT and abuse of power amounted to duplicity.

Prosecution: Najib agreed to a joint trial

Lawyer and appointed prosecutor Datuk V Sithambaram responded, saying that the charges under the Malaysian Anti-Corruption Commission (MACC) Act 2008, money laundering and CBT are not composed of the same ingredients of offences.

He also told the court that there is no duplicity in the charges, and until last Friday, 21 witnesses had testified and were cross-examined by counsel. He added that the charges are clear. “This shows that the accused has not been misled or that there is a miscarriage of justice done by the prosecution.”

He noted that the defence team, led by Tan Sri Muhammad Shafee Abdullah, did not object to the combined or joinder of charges for trial when the prosecution made the application and, in fact, supported it.

“Now, they (the defence) come and say there should be a misjoinder of the charges. The accused is never prejudiced in this case.

“Furthermore, the issue raised can also be done after the prosecution finished this case,” he said, adding under the law, the prosecution is also allowed to amend the charge during the trial.

For this reason, Sithambaram said, there is no basis for the defence to ask for a discharge of the charges made as the trial has already proceeded, and the prosecution asked that this application to be dismissed.

Since the commencement of the SRC trial on April 3, a total of 21 prosecution witnesses, ranging from Bank Negara Malaysia officers to Umno politicians and contractors who had carried out renovations at Najib’s Langgak Duta and Pekan homes, have testified before Nazlan.

The second week of the trial

Over the past week, 14 prosecution witnesses testified, including R Uma Devi, the Jalan Raja Chulan AmBank branch manager who had provided the transaction documents relating to Najib’s accounts with the bank to the authorities when the branch was raided in July 2015.

The documents include cheques, transfer instructions signed by missing former SRC managing director Nik Faisal Ariff Kamil — who was appointed an authorised signatory to Najib’s AmBank accounts — and bank statements.

Among the witnesses were Centre for Strategic Engagement Sdn Bhd co-founder Rita Sim Sai Hoon, former United Pasokmomogun Kadazandusun Murut Organisation treasurer-general Datuk Seri Marcus Mojigoh, Najib’s former political secretary Datuk Wong Nai Chee and Datuk Onn Hafiz Ghazi — a shareholder in consultancy firm Vital Spire Sdn Bhd, which had previously operated the malaysiandigest.com news portal — who were all recipients of cheques issued by Najib.

Last week also saw Uma Devi, 39, telling the High Court that all account holders are liable for the actions in their accounts if they are alleged to have flouted the law.

During cross-examination by counsel Harvinderjit Singh, she was asked whether an account holder who did not see his bank statements — for example, in the event that they were kept from him — would still be liable.

“The account holder is liable for all the transactions in the account,” said Uma Devi, referring to the terms of contract that the account holder is required to report any dubious transactions in his account.

She also said her predecessor, one Jayakumar, had told her that there would be issues with some of the accounts there, when she assumed duty on July 1, 2015.

Five days after she was appointed (July 6, 2015) the Jalan Raja Chulan AmBank branch manager, the bank was raided by Bank Negara and MACC officers.

During examination-in-chief by DPP Datuk Suhaimi Ibrahim and Sithambaram, Uma Devi said that to her knowledge, Najib did not make any complaints regarding the transactions in the five accounts, including those where he allegedly received huge sums of money and issued cheques for payments at the critical period when the transactions were made.

“There was no notification by Najib that there were discrepancies, or unauthorised transactions in the statements issued. There were no complaints made by Najib over how the three [of the five] accounts were managed,” she said to questions from Sithambaram.

She also testified that the sums of RM27 million, RM5 million and RM10 million were deposited or transferred to Najib’s accounts between Dec 26, 2014, and Feb 10, 2015.

This corresponds to Najib’s three charges for money laundering, where he received RM27 million and RM5 million on Dec 26, 2014, and RM10 million on Feb 10, 2015.

The trial will continue this week with Uma Devi’s cross-examination and the calling of new witnesses, who are expected to be bankers.

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