Najib wins challenge against prosecutor appointment in RM42m case, loses three appeals

Datuk Seri Najib Razak is pictured leaving the Putrajaya High Court March 21, 2019. — Picture by Miera Zulyana
Datuk Seri Najib Razak is pictured leaving the Putrajaya High Court March 21, 2019. — Picture by Miera Zulyana

PUTRAJAYA, March 21 — Datuk Seri Najib Razak today won his bid to compel the prosecution to produce the appointment letter of private lawyer Datuk Sulaiman Abdullah as the lead prosecutor in his trial over RM42 million of SRC International Sdn Bhd funds.

However, Najib lost his three other appeals related to the criminal case.

Najib’s three unsuccessful appeals are over how his RM42 million case was transferred from the Sessions Court to the High Court, his previously unsuccessful applications for a gag order to prohibit the media from discussing the merits of his criminal cases, and his application to be given certain documents from the prosecution ahead of the trial.

The Court of Appeal was today scheduled to deliver its decision on these four appeal matters.

The judges’ decisions today were all unanimous, with the judges reading the broad grounds of their ruling and with the full grounds to be made available subsequently.

On the matter of Najib’s bid to have Sulaiman’s letter of appointment as deputy public prosecutor provided within three days, Court of Appeal judge Datuk Rhodzariah Bujang said the panel decided to allow his appeal.

In setting aside the High Court’s previous dismissal of Najib’s bid, Rhodzariah said Sulaiman’s letter of appointment did not fall within the scope of privileged communication that is protected by the solicitor-client privilege.

The three failed appeals

Justice Datuk Zabariah Mohd Yusof, who chaired the Court of Appeal’s three-man panel, said the High Court judge did not err when dismissing Najib’s bid for a gag order on his case.

“There has been no misdirections in law or facts by the learned (High Court) judge,” she said.

When dismissing Najib’s appeal on discovery of additional documents, Zabariah said: “We find there is no error of law or fact that merits our appellate intervention. We dismiss the appeal and affirm the decision of the High Court.”

Zabariah said the prosecution had duly complied with the requirements under Section 51A of the Criminal Procedure Code to provide the relevant pre-trial documents to Najib’s legal team, and that the latter is “not entitled to any further disclosure at this stage”.

The judge also highlighted that the possibility of witness tampering is a reason why there is a prohibition of disclosure of investigation statements.

“The threat of witness tampering is real,” she said, noting that the Court of Appeal agrees that public policy should protect against witness tampering.

The prosecution previously said it had delivered 31 volumes of documents, amounting to approximately 6,500 pages and inclusive of 26 witness statements, to Najib’s defence team.

In dismissing the appeal on the transfer issue which Najib failed, Justice Datuk Lau Bee Lan individually addressed the multiple points that Najib’s team had raised to support the appeal.

Among other things, Lau said the Court of Appeal found that the High Court judge was not transferring Najib’s case to himself, but had merely transferred it to the High Court on his own initiative under Section 417(2) of the Criminal Procedure Code as expedient in the interest of justice.

“Hence the issue of usurpation of powers of Chief Judge of Malaya does not arise,” she said. 

Najib's lawyer, Tan Sri Muhammad Shafee Abdullah, told the judges his client will bring the three unsuccessful appeals to the Federal Court.

He then asked for proceedings in Najib's trial to be stayed until the Federal Court decides on the appeals.

After hearing arguments from both Najib's lawyers and the prosecution that objected to a stay, the Court of Appeal has adjourned briefly to decide on Shafee's bid.

The Court of Appeal then decided to grant a stay on Najib’s trial until the appeals are decided on by the Federal Court.

Attorney General Tommy Thomas said the prosecution will be writing in to the Chief Justice in the next few days to request for an earlier hearing date for the appeals at the Federal Court.

The Attorney General’s Chambers’ head of prosecution division, Manoj Kurup, told reporters outside the court later that they will not contest the stay granted today as they want to expedite matters.