This article first appeared in The Edge Malaysia Weekly on April 12, 2021 - April 18, 2021
THE appellate court rebuked Tan Sri Muhammad Shafee Abdullah last week and ordered the lead counsel of Datuk Seri Najib Razak to be more temperate in his criticism of High Court judge Mohd Nazlan Mohd Ghazali after the former accused the latter of being “hopelessly incompetent” and lacking in criminal law experience in handling “the trial of the century”.
Shafee was referring to Nazlan’s judgment in Najib’s trial in July last year, which found the former prime minister guilty of all seven charges related to the misappropriation of funds belonging to state-owned SRC International Sdn Bhd.
But the lawyer’s aggressive stance from the start of Najib’s appeal against his convictions did not sit well with Court of Appeal judge Datuk Abdul Karim Abdul Jalil, who instructed Shafee to use more polite language. “Please use polite words and not say ‘poisoned judgment’ to describe where the judge had gone wrong. You can say that he erred in law or misdirected himself, but not the phrase ‘poisoned judgment’,” he cautioned.
Shafee agreed, but maintained that Nazlan had been hopelessly incompetent in dealing with the matter and, as a result, Najib may not have been given a fair trial, which violated his rights under Article 5.
Nazlan, whom Shafee said lacked criminal law experience, had replaced Datuk Mohd Sofian Abd Razak — the initial trial judge — following a routine transfer, said Chief Judge of Malaya Tan Sri Zaharah Ibrahim last year.
A University of Oxford law graduate, Nazlan worked at the Securities Commission Malaysia and Malayan Banking Bhd before becoming a High Court judge. Prior to presiding over Najib’s SRC trial, he heard business-related disputes at the Kuala Lumpur High Court’s commercial division.
Shafee argued last week that experienced judges from the Federal Court had been roped in for previous high-profile cases, pointing to the graft trial of Datuk Harun Idris and murder trial of Datuk Mokhtar Hashim as examples.
“If the judge meddles with the records, how can we trust his findings? It shows the judge could be biased. It is only trite law that someone who is supposedly well versed in the field [but] is hopelessly incompetent. Can [he] not be considered biased in this? There is no explanation of the blunder of this sort that had happened. By incorporating something that was not there, the element that had not been there, the judge ‘poisoned his grounds of judgment’,” he maintained, adding that the defence had made comparisons of the court transcripts and recordings of the trial.
Shafee further accused Nazlan of meddling with transcript records of the proceedings to further strengthen his judgement to convict Najib, who is the member of parliament for Pekan. This prompted Abdul Karim’s caution.
Prior to the commencement of the appeal on April 5, Shafee had sought an adjournment on the basis that the defence needed to obtain relevant documents and evidence from the US and Singapore.
The US documents are related to former Goldman Sachs senior executive Tim Leissener, who, in pleading guilty to charges in the US, admitted that he had bribed several officials tied to 1Malaysia Development Bhd (1MDB) and its related companies.
On the Singapore documents, Shafee pointed to allegations that fugitive businessman Low Taek Jho had transferred more than US$16 million to the Singapore bank accounts of the husband and two sons of former Bank Negara governor Tan Sri Dr Zeti Akhtar Aziz.
Shafee said he had been trying to get the documents from the US since last November through lawyers there, and that similar attempts had been made in Singapore. He asked the court for another month.
“If Jho Low could do this to the family of the Bank Negara governor — we know they are quite close — and the same character has been manipulating the former premier’s accounts, then we should be entitled to get the adjournment to try and get these documents,” he said.
Shafee also said he had applied to the KL High Court to get documents related to the ongoing 1MDB trial.
Abdul Karim, after consulting with fellow judges Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera, denied the request and ordered the appeal hearing to proceed.
Najib had no dominion over SRC — defence
Datuk Seri Najib Razak’s lawyers argued last week that fugitive businessman Low Taek Jho was responsible for the theft of millions of ringgit belonging to SRC International Sdn Bhd, and not the former prime minister as he did not control the board and had no knowledge of the money that had been deposited into his bank accounts.
Defence counsel Harvinderjit Singh argued that Najib should not have been ordered to enter his defence as the former premier did not have dominion over funds belonging to SRC, and hence the charges of criminal breach of trust should not stick.
Moreover, Harvinderjit maintained, as SRC did not have a proper corporate structure — the transfer of RM4 billion that was provided by Kumpulan Wang Persaraan (Diperbadankan) (KWAP) to a Swiss bank account did not go through the board of directors, for instance — to label his client as an agent or having control of the funds as a “shadow director” in accordance with Section 402A of the Penal Code, as High Court judge Nazlan Ghazali had found, was far fetched.
“Najib did not carry a formal director role in the company. He was merely there as an adviser emeritus of SRC by virtue of the government holding shares or interest in the company (through the loan given),” he said. “A shareholder may represent his interests, but the board of directors represents the interests of the company as a whole.”
For these reasons, the lawyer argued that Najib did not have control over the board. Instead, he pointed to Jho Low, whom he said had been working all along with SRC managing director Nik Faisal Ariff Kamil, SRC director Terence Geh, its then chief financial officer See Yoke Peng and even Yayasan Rakyat 1Malaysia (YR1M) CEO Ung Su Ling on the movement of the funds.
The defence’s contention that Jho Low had control over the SRC board of directors in the movement of the funds prompted judge Datuk Vazeer Alam Mydin Meera to ask whether the businessman had held any position at SRC. Harvinderjit replied, “None.”
When asked about the whereabouts of the RM4 billion loaned by KWAP, he replied,
Directive to transfer money to Najib came from Jho Low, not Azlin
Even though Ung testified that she had received a directive from Najib’s then principal private secretary, the late Datuk Azlin Alias, to transfer the said SRC funds to Najib’s bank accounts, phone records show otherwise, said Harvinderjit.
He added that BlackBerry Messenger chats between AmBank customer relationship manager Joanna Yu Ging Ping and Jho Low and Ung revealed that the directive had come from Jho Low, and not Azlin. “This showed the inconsistency in Ung’s testimony, which was not considered by the High Court, and this should have cleared Azlin’s name and [led to] an acquittal of Najib.”
Lead counsel Tan Sri Muhammad Shafee Abdullah pointed to the conflicting testimony of SRC director Datuk Suboh Md Yasin, who had agreed with the defence that Najib’s signature could have been forged and then cut and pasted to facilitate the transfer of funds in email directives given to AmBank, where SRC’s accounts were.
“The judge did not consider the inconsistent testimonies given by Suboh and the fact that SRC in its board of directors’ directives do not allow the transfer of funds using email or [other] electronics. Yet the bank, which has recently been fined by the government, had gone behind the client’s board of directors in allowing the transfer of SRC funds using this mode at Jho Low’s behest,” he said.
Based on Suboh and Ung’s testimonies alone, the former prime minister should not have been called to enter his defence, argued Shafee. “Yet, the defence found that the judge and court had seemed to supplement the gaps and, in fact, the judge had acted as if he was the second prosecutor, and this cannot be done.”
Harvinderjit said the prosecution and the High Court judge’s contention of Najib’s overarching influence on the whole matter was based only on a purported conversation between Najib and Jho Low, in which the former had asked the latter about his credit card status before he made a purchase.
The defence counsel said Najib did not know of the funds that had been transferred to his accounts and that Jho Low had informed him that these were still “Arab donation money”.
The defence will continue its submissions on Monday. Then, the prosecution, led by ad hoc prosecutor Datuk V Sithambaram, will reply to the defence’s submissions over the following four days.
The most senior politician ever convicted in the country, Najib was sentenced by the High Court in July last year to 12 years’ jail and a fine of RM210 million. His appeal has been fixed for 12 days, from April 5 to 22.
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