Friday 29 Mar 2024
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This article first appeared in The Edge Malaysia Weekly on April 5, 2021 - April 11, 2021

At the Court of Appeal this week, former prime minister Datuk Seri Najib Razak will seek to overturn the guilty verdict meted out by the High Court last year at the SRC International Sdn Bhd trial where he was found guilty of all seven charges. This was the first of five trials in which he faced charges related to state-owned 1Malaysia Development Bhd (1MDB).

At the trial last year, the seven charges were for abuse of power involving a RM4 billion loan provided by Kumpulan Wang Persaraan (Diperbadankan) (KWAP) to SRC, three counts of criminal breach of trust (CBT) involving RM42 million received in Najib’s personal accounts from the KWAP loan, and three counts of money laundering. High Court judge Mohd Nazlan Mohd Ghazali sentenced the former premier to 12 years’ jail and a fine of RM210 million.

The first former prime minister in the country to be charged in court and sentenced to jail, Najib is allowed two appeals. He was granted a stay on his jail sentence and fine pending the outcome of his appeals to the appellate court and, if unsuccessful, to the Federal Court.

Najib’s case at the Court of Appeal for 12 days beginning Monday (April 5) is important for his political career if he intends to contest and defend the Pekan parliamentary seat at the next general election. A convicted person who is sentenced to more than a year’s jail and fined more than RM2,000, and has not received a pardon, is disqualified from being a member of either house of parliament under Article 48(1)(e) of the Federal Constitution.

So, if the former Umno president wants to contest and defend his parliamentary seat at the 15th general election, it is absolutely necessary for him to succeed in having his conviction and sentence set aside.

Najib’s 307 reasons

The former prime minister’s appeal will be heard by a three-member bench as his lawyers seek to disprove the findings of the High Court judge. Nazlan’s 500-plus-page judgment has been published by the Malaysian Current Law Journal in hardcover.

Najib commenced his appeal in December last year. Through his lawyers’ petition of appeal, he stated 307 reasons why the court should set aside his conviction and sentence.

One of the points in the petition argues that Nazlan was wrong in finding Najib’s action of not returning the RM42 million and that it proved detrimental to his defence as Najib and his legal team, led by Tan Sri Muhammad Shafee Abdullah, denied that the money in his personal accounts was ever from SRC. They asserted and maintained that the money was a political donation from the late King Abdullah of Saudi Arabia.

In his 42-page petition, Najib claimed that the judge was wrong to reject his defence over King Abdullah’s alleged contribution. He also took aim at a number of witnesses, whom he claims were “not credible”.

Najib said Nazlan had erred in finding former Yayasan Rakyat 1Malaysia (YR1M) CEO Ung Su Ling a credible witness and accepting her testimony. It was revealed in court by Najib’s lawyers that she had worked with fugitive businessman Low Taek Jho (Jho Low) before joining YR1M and as such, her credibility was questionable, they said.

In addition, they said they would prove that Najib was not given a just and fair trial and that the actions of the judge and the prosecution had purportedly violated the former premier’s rights to such a hearing as enshrined in the Federal Constitution.

The lawyers further contended that Nazlan was wrong in his finding that the former premier’s action of not allowing then second finance minister Datuk Seri Ahmad Husni Hanadzlah to attempt to retrieve the said SRC funds from Switzerland had indicated Najib’s interest in the matter.

Ahmad Husni testified that he had wanted to go to Switzerland in 2013 to help retrieve the SRC funds that were frozen by the Swiss authorities after a portion of the RM4 billion loan granted by KWAP was transferred there. While testifying in his own defence, Najib argued that he wanted Ahmad Husni to explain his plan to recover the funds.

According to his lawyers, Nazlan was also wrong to find that their client was a “shadow director” of SRC, which they argue goes against Section 402A of the Penal Code’s definition of an “agent” or “director”. In addition, they contended that the judge had erred in dismissing the possibility that Najib’s bank accounts had been manipulated by other individuals.

Another contention was that Nazlan had been wrong in not considering Najib’s mitigating circumstances and in sentencing the former premier to a long-term jail sentence and heavy fine. They added that he was wrong in not considering the duplication of the money laundering and CBT charges as only one of these should have been made against Najib.

To overturn the conviction, Shafee will have to convince the three-member bench of the deficiencies in Nazlan’s judgment.

Ad hoc prosecutor Datuk V Sithambaram and the prosecuting team will be defending the High Court’s findings. What may be of interest to many is whether the prosecution will continue with its stated move to appeal for a much sterner sentence for Najib.

12-day appeal

The dates for the hearing of the appeal at Putrajaya’s Palace of Justice are April 5 to 8, 12 to 15 and 19 to 22.

Najib faced three CBT charges as a public servant and agent of the government, namely the prime minister, finance minister and adviser emeritus of SRC, for allegedly misappropriating RM27 million and RM5 million in December 2014 and another RM10 million in February 2015.

The funds were found to be part of the RM4 billion loan, which was granted in two tranches of RM2 billion each by KWAP to SRC. The three charges were framed under Section 409 of the Penal Code, which provides for imprisonment of up to 20 years, whipping and a fine upon conviction.

On the charge of abuse of power, Najib was accused of using his position as prime minister and finance minister to commit bribery involving RM42 million through his participation or involvement in the decision to provide government guarantees for the RM4 billion loan granted to SRC by KWAP.

Thousands of pages of submissions have been prepared by Najib’s defence team, after which the prosecution will make its reply.

Worst kind of abuse of position

In his judgment, Nazlan said, “I would not hesitate to find that this case can be characterised as one that falls within the range of the worst kind of abuse of position, of CBT and of money laundering because of not only how the crimes were committed but, more importantly, it also involved a huge sum of RM42 million and had an element of public impact as the RM42 million belonged to an MOF Inc company.”

The judge also found the former premier to be unremorseful. “The accused did not express any remorse and even maintained his defence of no knowledge of the RM42 million from SRC in his mitigation speech. Yet, I cannot deny he was the prime minister of the country,” he said.

“The use of that property by others can never be justified under any circumstances. This is immutable and cannot be obfuscated by any diversions that certain portions of the monies out of the RM42 million were expended for charitable purposes.

“There is quite simply no virtue in donating what one does not own. SRC International Sdn Bhd was established to spearhead the promotion of alternative energy resources for the country. The recipients of the spending by the accused are many and various but unmistakably for the accused’s own purposes and benefits.”

SRC, which was a subsidiary of 1MDB, was later placed directly under Minister of Finance Inc.

 

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