Thursday 28 Mar 2024
By
main news image

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

STRIP away the high-profile nature of the appeal and the various side issues, and the case before the Federal Court last week was clear. Indeed, it was simple and straightforward, the apex court declared in handing down its verdict in the appeal by Datuk Seri Najib Razak against his conviction on seven charges involving funds of SRC International Sdn Bhd.

Anticipated to stretch over nine days, the appeal was concluded earlier than expected. In fact, it was over after only five days of hearing, with most of the time expended on various motions or applications by the defence/appellant.

While the earlier-than-expected conclusion of the appeal could be attributed to the defence’s decision not to submit on the merits of the appeal, the grounds of judgment by the five-person bench led by Chief Justice Tun Tengku Maimun Tuan Mat revealed that the judges did not have to grapple with complicated matters of law and fact. And that given the weight of evidence presented before them, only one conclusion could be reached.

“At the outset, we state that counsel for the appellant, Tuan Haji Hisyam Teh, impressed upon us with considerable fervour that these appeals concern strong serious points of law and fact. In point of fact, we find that there is nothing complex in these appeals. Putting aside the personality of the appellant, this is a simple and straightforward case of abuse of power, criminal breach of trust and money laundering.”

Tengku Maimun reminded everyone that the country’s highest court would not be making any new findings of fact. “The role of the apex court, as is settled law, is not to make any new findings of fact on the evidence on record or to substitute those findings with its own.

“In the light of this, all appellants in criminal appeals must understand that the burden is on them in the apex appellate court to show that the concurrent findings were perverse and that those perverse findings occasioned a miscarriage of justice. In those circumstances, appellate intervention by the apex court is warranted to correct those findings, resulting in an outright acquittal or an order for retrial — depending on the circumstances.”

Because the appellant declined to make a submission, the apex court said it had relied on the 94 grounds of appeal in the petition of appeal, which it observed could be distilled into two main points of complaint. “Firstly, that the Court of Appeal erred in fact and in law by finding that the High Court judge had correctly found that the prosecution had made out a prima facie case on all seven charges.

“Secondly, that the Court of Appeal erred in fact and in law by finding that the High Court judge had correctly appreciated the defence. It was argued that the defence managed to raise a reasonable doubt on all seven charges.”

However, the apex court said the respondent (prosecution) had referred to documentary evidence that established that the appellant had expended the RM42 million (of SRC funds). And over the course of two full days, the respondent had also successfully “illustrated how the evidence was so overwhelming that at the close of the prosecution’s case, the learned trial judge was satisfied in law and in fact that all the ingredients of all seven charges were satisfied to warrant calling for defence. We have considered these submissions and find that the learned High Court judge undertook a very detailed and objective analysis of the evidence to support his findings at the close of the prosecution’s case.”

Tellingly, the bench also observed that the defence had failed to rebut the prosecution’s case. “We agree that the defence is so inherently inconsistent and incredible that it does not raise a reasonable doubt on the prosecution’s case.

“In the circumstances, having pored through the evidence, the submissions and the rest of the records of appeal, we find the appellant’s complaints as contained in the petition of appeal devoid of any merit. On the totality of the evidence, we find the conviction of the appellant on all seven charges safe. We also find that the sentence imposed is not manifestly excessive.”

The other members of the bench were Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim and Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.

 

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's AppStore and Androids' Google Play.

      Print
      Text Size
      Share