This article first appeared in The Edge Malaysia Weekly on August 29, 2022 - September 4, 2022

DATUK Seri Najib Razak could be out of prison as early as 2030, even though he was sentenced to 12 years’ jail, should the authorities implement a one-third remission period. This would mean that his incarceration could be commuted to only eight years, beginning from Aug 23, 2022, when the Federal Court issued a warrant of committal.

The warrant was issued after the apex court delivered its verdict, which was to uphold the High Court’s conviction of Najib in July 2020 on all seven charges relating to SRC International Sdn Bhd. The Court of Appeal had also upheld the conviction at the end of 2021.

However, the former Umno president and Pekan member of parliament may be released earlier, should he manage to secure a pardon from the Yang di-Pertuan Agong. But even as his supporters are pushing for clemency, there is considerable opposition to such a move.

It is worth noting that Najib also has four other pending cases, for two of which the trials are ongoing, while the remaining two have yet to begin.

One of the ongoing trials relates to 1Malaysia Development Bhd-Tanore, in which he faces four counts of abuse of power and 21 of money laundering involving RM2.28 billion of 1MDB funds. The other also involves 1MDB and pertains to audit tampering, where he is charged together with the company’s former president, Arul Kanda Kandasamy.

Of the other two cases, which have yet to kick off, one pertains to money laundering of RM27 million belonging to SRC. The other is for criminal breach of trust of RM6.6 billion of government funds, which pertains to Abu Dhabi’s International Petroleum Investment Company (IPIC). Najib has been charged together with former Treasury secretary-general Tan Sri Mohd Irwan Serigar Abdullah.

Hence, in between doing time for the seven SRC crimes, Najib will be commuting a lot from Kajang prison to attend court proceedings.

However, perhaps the bigger question lingering on the minds of many Malaysians is the RM210 million fine imposed by the High Court and affirmed by the superior courts.

What happens should Najib not pay the RM210 million fine — in default of which he would face another five years’ jail — imposed for the RM42 million money laundering crime?

Criminal lawyers have differing views on the matter, which relates to Section 283 of the Criminal Procedure Code (CPC). Moreover, the Federal Court bench led by Chief Justice Tun Tengku Maimun Tuan Mat did not grant a stay of the sentence.

Section 283 of the CPC outlines the procedure or provisions for imposing a fine.

Two criminal lawyers are of the view that the fine has to be paid immediately since the sentence has been upheld with the court denying a stay of execution.

Mohammad Rafique Rashid Ali opines: “The payment has to be made immediately and if no payment has been made as of now, then Najib has to serve the extra five-year sentence. The reason is there is no stay granted in the payment of the fine. The stay of execution that was earlier granted by the High Court and the Court of Appeal in effect expired on Tuesday (following the confirmation of the conviction and sentence).

“There is no stay of the conviction and no stay of execution of the sentence. Therefore, if follows there is no stay on the payment of the fine of RM210 million. My view, if there is no court order by the apex court on the payment by instalments, then it would have to be paid immediately. As of now, we know he had been fined RM210 million.”

He adds that as the status of the payment is unknown, the courts, or the Attorney-General’s Chambers or Prisons Department, should enlighten the public on the status of the payment.

“My view (is) legally there is no confirmation that the fine has been paid, therefore his sentence of imprisonment of 12 years must be carried out plus the additional five years,” he says, unless Najib can show proof that he has paid the fine.

Another senior criminal lawyer, Datuk Baljit Singh Sidhu, who is also a Criminal Law Committee member of the Malaysian Bar, has similar views. If time was not requested for the payment of the fine, then it is immediate, he says, “Failing which, the in default period kicks in with the main sentence.”

The payment of the fine would have to be made at the Federal Court registry since the court had upheld the sentence.

At the end of the proceedings last Tuesday, Najib’s counsel Hisyam Teh Poh Teik indicated the defence may apply to review the verdict.

However, Tengku Maimun ruled that the five-person bench had made a decision and it could not stay the sentence pending a review.

Former Malaysian Bar president Salim Bashir is of the opinion that Najib would be given time to pay the fine as stipulated under Section 283 (g) of the CPC: The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if under the sentence the offender is liable to imprisonment for a longer period than six years then at any time previous to the expiration of that period.

“This means, it can be paid within six years or, if imprisonment is longer than six years, it can be paid before expiration of the entire sentencing,” he says.

Another senior lawyer who wanted to remain anonymous tells The Edge, should Najib not pay at the end of his sentence including remission (about eight years), then the default five-year period applies.

Bernama had earlier quoted lawyer Mohd Haniff Khatri Abdulla as saying that the former premier may pay the fine whenever he wants before the 12-year sentence expires.

Section 283 (f) of the CPC also stipulates the payment of instalments and, should the convict fail to pay the full amount, then the default jail term would be instituted but it would be done in proportion to the payment of the fine made. For example, if half of the RM210 million is paid, then Najib would be given an additional 2½ years’ jail instead of the full five years.

What is also interesting, as stipulated in the second half of Section 283 (g), is if the convict dies without paying the fine, the authorities could claim the amount from the person’s estate.

Salim and Rafique agree that should an individual fail to pay the fine and subsequently dies, the amount can be claimed to that value from the individual’s estate.

It remains to be seen whether Najib, who had declared in an affidavit of another court case that his assets are worth RM4.49 million, has paid the fine.

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