PUTRAJAYA (Feb 21): Tan Sri Muhammad Shafee Abdullah argued before the Federal Court on Tuesday (Feb 21) that none of the 94 grounds of appeal made by Datuk Seri Najib Razak's legal team to set aside his conviction and sentence in the SRC International Sdn Bhd case were addressed by the previous apex court bench that was led by Chief Justice Tun Tengku Maimun Tuan Mat.
Shafee, who is Najib's lawyer, claimed that only three paragraphs out of the eight-page judgement were about upholding the conviction and sentence, and it did not deal with the appeal grounds.
He told the five-member bench, led by Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli, that some of the 94 grounds are technical.
Shafee cited the position of a shadow director as one such issue.
“This is the first case in the whole world where a shadow director is said to have dominion of the fund. It is a question of law, which the ad hoc prosecutor did submit for a day, as well as the defence,” he claimed.
The senior counsel then said that nonetheless, the apex court did not address this matter, or any of the 94 grounds.
He added that in any judgement by the court, the written grounds should clearly explain why it accepted or rejected any points of law raised.
Regarding the abuse of power charge, Shafee asked how the court could consider Najib's presence in the Cabinet meeting to approve the government guarantees for the RM4 billion Retirement Fund Inc (KWAP) loans as a violation of Section 23 of the Malaysian Anti-Corruption Act 2009.
He further argued that even trial judge Datuk Mohd Nazlan Mohd Ghazali admitted that there were novel issues of law to be decided, like the issue of a shadow director, which the apex court chose not to address.
Najib without proper legal representation
Shafee said last August, the Federal Court did not allow the case to be adjourned, so that Najib's new counsel, Hisyam Teh Poh Teik, could prepare for the main appeal.
The court also did not allow Hisyam to discharge himself.
“The decision by the court not to grant an adjournment and not allowing Hisyam to discharge himself was akin to letting the former PM defenceless in conducting the appeal.
“You cannot expect the prosecution to give submissions favourable to the accused,” Shafee added.
Shafee said that as Najib was without effective legal representation, the court should have fairly scrutinised the 94 grounds and addressed them as it is considered ex parte (in the interest of a single side) instead of ignoring it altogether.
“It is as if the previous apex court bench was treating this as a judicial review technique and not a criminal case, and this is wrong,” he added.
When Abdul Rahman asked Shafee to clarify what he meant, the lawyer replied that the apex court should adopt a rehearing of the appeal as this is a criminal case, and not go into the decision-making process of the Court of Appeal.
“The apex court should consider whether the defence raised a reasonable doubt, and they should provide reason for their conclusion, as represented in the actual judgment [which was] just three paragraphs,” he added.
In their decision to uphold the conviction and sentence, the bench led by Tengku Maimun said while they had perused the 94 grounds made, it found the case to be a straightforward one, and that the findings of the High Court on the defence were correct.
“In concluding that the defence failed to raise a reasonable doubt on the prosecution case, we find that the learned High Court Judge had undertaken a thorough analysis of the evidence produced by the defence.
“Thus, we are unable to conclude that any of the findings of the High Court, as affirmed by the Court of Appeal, were perverse or plainly wrong so as to warrant appellate intervention. We agree that the defence is so inherently inconsistent and incredible that it does not raise a reasonable doubt on the prosecution case.
“In the circumstances, and 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,” Tengku Maimun said.
Najib is serving 12 years in jail and a RM210 million fine after his conviction and sentence were upheld by the Federal Court, where he was found guilty on three counts each of criminal breach of trust, money laundering of RM42 million of SRC funds, and abuse of power with regard to the RM4 billion KWAP loans to SRC, a former subsidiary of 1Malaysia Development Bhd (1MDB).
The former premier wants a review of the conviction and sentence maintained by the apex court, as well as a retrial.
The bench, which also comprises Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzhariah Bujang and Datuk Nordin Hassan as well as Court of Appeal judge Datuk Abu Bakar Jais, will continue hearing the review on Wednesday with ad hoc prosecutor Datuk V Sithambaram's reply.