This article first appeared in The Edge Malaysia Weekly on March 30, 2020 - April 5, 2020

TESTIFYING for the defence, Tan Sri Dzulkifli Ahmad told the court that he believed proposed criminal charges against Datuk Seri Najib Razak, which the Malaysian Anti-Corruption Commission (MACC) had recommended in July 2015 and then again in December, could not stick as the former prime minister did not have knowledge of the RM42 million that was deposited in his accounts from 2011 to 2015.

But what if the person who received the money spends it, asked the government’s appointed ad hoc prosecutor Datuk V Sithambaram.

“Then, it is an offence,” conceded Dzulkifli, previously a senior deputy public prosecutor and the person appointed by Najib in 2016 to replace Tan Sri Abu Kassim Mohamed as MACC chief after the latter voluntarily stepped down because his recommendations were ignored.

Sithambaram then pointed out to Dzulkifli — one of Najib’s last witnesses to testify — that the seven counts of criminal breach of trust, abuse of power and money laundering of RM42 million from SRC International Sdn Bhd’s funds involving his personal accounts faced by Najib are based on 76 new witness statements that the MACC took in 2018.

That Najib spent the RM42 million is not disputed as the prosecution over the past 12 months has clearly shown the money trail for the expenditure.

Najib’s main defence is his belief that the money he freely spent — mostly on corporate social responsibility activities, he claims, but which the prosecution showed also includes hefty personal expenses, including home renovations and a luxury watch costing nearly RM500,000 for his wife — was from a purported RM2.6 billion donated by Saudi Arabia’s late King Abdullah Al-Saud, which was deposited in one of his AmBank accounts between 2012 and 2013.

If anything, he claims he was unknowingly drawn into a nefarious web of deceit by businessman Low Taek Jho, better known as Jho Low, who had contrived to defraud the state.

In all, the prosecution called 14 recipients of Najib’s cheques.

Indeed, April 3, 2019 — the day the trial began — was a historic day for the nation as not only did it encapsulate the spectacular rise and fall of Najib’s political career but also, more importantly, marked the first time a former prime minister was charged with a criminal offence.

Exactly 10 years to the day that he took his oath as prime minister, Najib sat in the dock at the Kuala Lumpur High Court before judge Mohd Nazlan Mohd Ghazali.

In its opening statement, the prosecution, led by then attorney-general Tan Sri Tommy Thomas, along with Sithambaram, said it would show that Najib, as the prime minister and finance minister, used his office and/or position to obtain for himself a gratification of RM42 million.

Thomas said the evidence would show that Najib was directly involved in the decision, on behalf of the government of Malaysia, to give government guarantees for loans amounting to RM4 billion that SRC took from Kumpulan Wang Persaraan (Diperbadankan) or KWAP, but which were later diverted and used for purposes other than officially stated.

He added that the evidence would show that Najib — also adviser emeritus of SRC — committed criminal breach of trust in respect of sums of RM27 million, RM5 million and RM10 million belonging to the state-owned entity that he was entrusted with, and that he would prove that Najib was involved in money laundering of the funds.

Thomas pointed out that Najib had spent lavishly at a Chanel store in Honolulu, Hawaii, and also forked out some RM157,000 for renovation works at his residences in Pekan and at 11 Jalan Langgak Duta, Kuala Lumpur. In addition, he made out numerous large cheques to various Barisan Nasional component parties.

That set the stage for the trial to commence.

Najib’s power and breach of trust

Many of the witnesses — particularly civil servants or those in positions of power at Najib’s pleasure — indicated that they had essentially acquiesced to Najib’s various requests, some albeit reluctantly, for fear of losing their jobs.

Former KWAP CEO Datuk Azian Mohd Noh testified that as Najib was the “ultimate boss”, she could not say that there was no influence over KWAP’s decision to ultimately approve two loans of RM2 billion each to SRC, even though KWAP’s investment panel had advocated lending only RM1 billion when SRC applied for the first loan in 2011. The panel advised that it was too risky to lend RM2 billion to a single unproven entity as SRC had no assets and very little capital then.

Referring to a letter from SRC CEO and managing director Nik Faisal Ariff Kamil to Najib requesting the loan and Najib’s annotation at the top of the letter that he “agreed to the loan”, Azian said, “When Najib, as PM, says he is agreeable to the proposal, [it] means that he is agreeable for KWAP to give the loan to SRC.”

She pointed that out a loan of that magnitude, and its approval even before a government guarantee was issued for it, was unprecedented in KWAP’s history.

Even Najib’s witness, former Treasury secretary-general Tan Sri Mohd Irwan Serigar Abdullah testified that obtaining a government guarantee usually takes a month on average, but that SRC had received one in a mere nine days.

A senior officer with the Ministry of Finance, Datuk Maliami Hamad, also testified to being asked to expedite the loan. Najib ordered a memorandum detailing SRC’s bid for the first RM2 billion loan to be expedited, he said, adding he was also asked to sign a letter on behalf of the ministry, ordering KWAP to release the loan before the government guarantee was issued.

SRC’s board was also cowed by Najib. His additional status as adviser emeritus of the company meant his decision overrode the board’s, former chairman Tan Sri Ismee Ismail maintained, even though Najib insisted that the board’s fiduciary duty was to the company and that it was not duty-bound to obey him.

In any event, Ismee alluded to the fact that board members such as himself were afraid to lose their positions — and lucrative perks — had they not followed Najib’s orders as he had the power to hire and fire.

Jho Low and Joanna Yu and Najib’s coded accounts

The court heard that between 2011 and 2013, Najib opened four current accounts with AmBank, which, with the approval of Bank Negara Malaysia, were secretly coded to conceal his identity. With the assistance of Jho Low, the bank’s then managing director Cheah Tek Kuang went to Najib’s house to facilitate the paperwork for the opening of the accounts, in which some RM2.6 billion was eventually deposited — money Najib claims was from King Abdullah but which the prosecution asserts was misappropriated from 1Malaysia Development Bhd (1MDB), the parent company of SRC.

Joanna Yu Ging Ping, a former AmBank relationship liaison manager, was the go-to person for the AmBank accounts of Najib and SRC. She frequently drafted instruction letters on behalf of Nik Faisal, who had been appointed the mandate holder for Najib’s accounts. Jho Low and Nik Faisal are now fugitives.

Excerpts from Yu’s BlackBerry Messenger (BBM) chat with Jho Low showed one instance in 2014, when she submitted a draft instruction letter to be signed by Najib as the account owner, for transfers of RM27 million from one of his AmBank accounts.

The BBM transcript showed an exchange between Yu and Jho Low, in which Yu tweaked the date of the instruction letter from Dec 24, 2014, to Dec 29, 2014. The draft letter was sent via email to Jho Low and, within a minute, he had replied to the email with Najib’s scanned signature.

Yu said Jho Low was the contact person in the event Nik Faisal could not be reached, although the former was not a mandate holder to Najib’s accounts.

“He wasn’t the mandate holder but he facilitated the account opening. At one time, he was the contact between the account holder (Najib) and the bank until the mandate was given to Nik Faisal. He seemed to be in touch with both the account and mandate holder. When I couldn’t reach Nik Faisal, I would text Jho [Low] and I will get a phone call from Nik Faisal.”

Moreover, Yu said Jho Low would often help facilitate the topping-up of Najib’s accounts, which were constantly overdrawn.

On occasions, even cash deposits would be made over the counter. The court heard that a mind-boggling RM12.38 million in cash or more was deposited in his accounts over a nine-month period from June 2014 to March 2015, so the cheques Najib wrote would not bounce.

So important clients were Najib and Jho Low that Yu conceded she had once transferred RM55,000 of her own money into Najib’s account so his cheques would not be dishonoured. She did not want the former prime minister embarrassed, she explained.

Yu has since left the bank and is now unemployed. During the trial, Najib commenced legal proceedings against AmBank Islamic Bank Bhd, AMMB Holdings Bhd and Yu for breach of duty and negligently sharing his account information with persons not authorised to manage those accounts.

Shocked that RM42 million was deposited in his account but did not seek clarification

Prosecution witness Datuk Dr Shamsul Anwar Sulaiman testified that Najib had been astounded and upset to hear that RM42 million had been deposited in his accounts from Ihsan Perdana Sdn Bhd.

Ihsan Perdana, headed by Shamsul, was a subsidiary of SRC, established to run its corporate social responsibility activities.

Najib’s dismay at the revelation aside, he made no attempt to clarify the unusual transfer with the bank, Sithambaram pointed out.

Najib has since attributed his lack of action to the fact that investigations had already been launched into 1MDB.

One of Najib’s contentions over the course of the trial is that he had no idea how much was flowing into his accounts or out of them because he was busy running the country and trusted his aides to manage his funds. Although he often wrote cheques running into the millions of ringgit, he said he did so only with a “sense” of what was in his accounts.

Husni resigned after Najib tried to kick him to the Ministry of Housing and Local Government

One of the last witnesses for the prosecution was Datuk Seri Ahmad Husni Hanadzlah, the former second finance minister, who on resigning in 2016, denied it was over 1MDB.

In court, however, he told a very different story. He revealed that Najib had ignored his advice on how to deal with the escalating problems at SRC and 1MDB, which were becoming a huge liability to the government.

Not only did Najib tell him to keep his own counsel, he was cut out from decision making and effectively reduced to “an errand boy”, he said.

But the straw that broke the camel’s back came in June 2016, when Najib told him after an Economic Action Council meeting to move to the Ministry of Housing and Local Government “to face new challenges”.

This was before the 1MDB rationalisation would be completed, and Husni — initially put in charge of the rationalisation — finally felt too slighted to stay on. He decided to resign from the government, but said he kept his peace “for the love” of Najib and his then coalition government.

Judge found prima facie case made out

On Nov 11 last year, Nazlan took an hour to deliver his decision that the prosecution had successfully established a prima facie case against Najib on all seven charges.

On Najib’s scribbled comment on a letter dated June 3, 2011, from SRC’s Nik Faisal to KWAP seeking a RM2 billion loan, he said, “Najib made a notation on the letter addressed to the Retirement Fund Inc (KWAP) CEO Datuk Azian Mohd Noh, stating in fact that he was agreeing to it and wanted Azian to look into it.

“It should be highlighted that KWAP is a statutory institution, which in effect reports to the finance minister and KWAP’s board members and whose investment panel members are appointed by the finance minister, under Sections 6 and 7 of the KWAP Act.”

The judge also said Najib was the “ultimate boss” in these instances and that Najib had informed then Treasury secretary-general and KWAP chairman Tan Sri Dr Wan Abdul Aziz Wan Abdullah to expedite the approval of the SRC loan. He stressed that this happened even after Wan Abdul Aziz and Azian had briefed Najib that KWAP was initially considered extending a loan of only RM1 billion.

“Crucially, Wan Abdul Aziz testified under cross-examination that he did not consider the said communication with the accused as an instruction from Najib. In addition, Azian, the former KWAP CEO, testified that there was no legal compulsion. [But] she could not deny that there was a certain amount of influence in the notation directed to her in the June 3, 2011, letter.

“This was due to the fact that Azian felt Najib was the prime minister and the minister in charge of KWAP and her ‘ultimate boss’,” Nazlan said, adding that before KWAP approved the loan, SRC had written to the Ministry of Finance seeking a government guarantee in anticipation of the RM2 billion loan.

He also noted Treasury deputy secretary-general Datuk Mat Noor Nawi had testified that the transfer of the share of ownership of SRC from 1MDB to Minister of Finance Incorporated was executed by Najib, who was also the finance minister.

“Such conduct and involvement exhibited by the accused instead serves only to demonstrate the existence of private and personal interest on the part of the accused in SRC, which interest, in my judgement, is in the nature that is envisaged under the law to fall within the ambit of Section 23 of the MACC Act,” the judge ruled.

“It is for the accused to rebut the evidence, and I find the element of abusing his position has been proved and as such a prima facie case should be called.”

Najib said ludicrous to steal state funds and put it into personal account

Najib’s time on the witness stand was encapsulated by him disagreeing with the prosecution’s stance that he was the main and only person who stood to gain from using his power over SRC.

In the dock, Najib testified that had he intended to cheat, he would not have been so careless as to credit the money into his personal account. “It is so ludicrous for me to take money from a Minister of Finance Inc company to begin with and in some way or manner, put it in my personal accounts.

If I had wanted to cheat, I would have been a stupid person to put it in my personal account.

“I’m not the most intelligent, but I’m not so stupid as to put stolen money in a personal account. I wouldn’t do something so bizarre.”

In a surprising turn at the trial, Najib also began to recite religious oaths in denying he had sought gratification with regard to the RM42 million.

He recited the sumpah laknat — an oath beseeching God to carry out divine retribution upon those who lie — which is often used by Muslims to strongly deny an accusation.

“As a Muslim, wallahi wabillahi watallahi ... I never sought any gratification and I did not know that the RM42 million went into my account at that material time,” he said.

Sunny in Hawaii but water everywhere in Malaysia’s east coast

During Najib’s re-examination by his lawyer, Tan Sri Muhammad Shafee Abdullah, he was asked to explain the purchase of a RM466,330.11 Chanel watch in 2014.

Najib had been on a golfing trip to Honolulu where he played a round of golf with the then US president Barrack Obama, after which he was supposed to meet his family for an end-of-the-year holiday and to celebrate the birthday of his wife, Datin Seri Rosmah Mansor, on Dec 10.

However, the holiday was not meant to be as Peninsular Malaysia’s east coast was inundated by some of the worst floods the nation had ever seen.

That was when Najib spent close to half a million ringgit on the watch for Rosmah, as credit-card records produced by the prosecution in court revealed — incidentally, just one of a number of exorbitant credit-card purchases abroad totalling RM3.93 million from August 2014 to January 2015.

In fact, by the prosecution’s calculations, Najib received and spent an astounding RM606 million over 19 months. The defence disputes the amount however, as it contends there was double counting in some instances.

Asked by Shafee to explain the purchase of the RM466,330 watch on Dec 22, Najib said he had bought it for Rosmah because he had to cut short his family vacation to fly back to deal with the floods.

But before that, he kept his date with Obama as he wanted to “establish a personal relationship with the most powerful man in the world at the time. This was for the country”.

“I explained the situation to my family and they were really sad that I have to leave them immediately and go back to Malaysia. They were disappointed with my decision,” he said. “[But] the flood was the worst in 70 years.”

Najib also said it was Rosmah who had purchased RM3.3 million worth of de Grisogono jewellery in Italy in August 2014, which was charged to his credit cards. The jewellery was for the wife of Qatar’s ex-prime minister Sheikh Hamad Jassim Jaber Al Thani, he said. “I paid for it with my card, but I asked my wife to choose.”

He told the court that he thought the money he was spending was from the Saudi donation and was his to spend freely.

However, the prosecution said Najib knew that the money was from SRC and had spent it thinking he would not get caught.

Najib vehemently denied the suggestion and maintained he had no knowledge of the RM42 million ever coming from SRC.

The funds were courtesy of King Abdullah, who had gifted the enormous donation to him personally to do as he wished, because the monarch “liked his style of leadership”, he insisted.

Astoundingly, he also indicated that as he did not want to be too dependent on Malaysian corporates for political donations — lest they expected a quid pro quo from his administration — he preferred to accept the unsolicited Saudi donation instead.

Was Najib launching 1MDB’s headquarters on Jan 11, 2010, or was he in Riyadh with King Abdullah?

To support his contention of King Abdullah’s support, Najib testified that on Jan 11, 2010, he had an unofficial meeting with the king in Riyadh, Saudi Arabia, where discussions relating to the alleged donations were made.

His witnesses, former ministers Datuk Seri Jamil Khir Baharom (in the Prime Minister’s Department) and Datuk Seri Anifah Aman (foreign affairs) as well as former Malaysian ambassador to Saudi Arabia Professor Datuk Syed Omar Alsagoff, testified that they were present at the meeting between the two men. Jamil Khir likened the relationship between the king and Najib to one of a “father and son”.

Yet, MACC investigating officer Mohd Nasharudin Amir told the court that an article in a newsletter published by the Islamic Development Department of Malaysia stated that Jamil Khir was addressing a gathering in Putrajaya on the day in question.

In addition, there were also pictures of the ex-minister giving his address at an auditorium in Putrajaya, said Mohd Nasharudin, who brought to court the newsletter dated February 2010.

Furthermore, it also emerged that Najib was not in fact in Saudi Arabia on the day as there are pictures circulating of him at the launch of 1MDB’s headquarters in Kuala Lumpur on the aforementioned date.

However, the MACC investigating officer said he was unable to procure a document on the launch from his fellow MACC officer.

Sithambaram said the documentation would have ascertained whether Najib was at the official launch of 1MDB’s corporate headquarters in Kuala Lumpur on the day or in Saudi Arabia as claimed.

Letters of donation and written statement of ‘Prince Al Saud’

Adding to the confusion were purported letters relating to the US$681 million donation that Najib claims were from King Abdullah.

MACC officers sent to Riyadh to confirm the letters told the court that they met a Prince Saud Abdulaziz bin Majed bin Abdulaziz Al Saud (Al Saud) at his palace but were not able to obtain a statement from him, owing to his “sovereign immunity”.

Instead, he was represented by his legal aide, Mohammad Abdullah Al Koman, who provided a statement and then signed it on behalf of the prince. It is unclear whether the statement by Al Koman qualifies as Al Saud’s statement.

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