Najib claims SRC charges defective, court to decide challenge on Monday

Datuk Seri Najib Razak arrives at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon
Datuk Seri Najib Razak arrives at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon

KUALA LUMPUR, April 26 ― The High Court will decide next Monday Datuk Seri Najib Razak’s challenge against all seven charges he is currently facing in an ongoing trial over RM42 million of a 1MDB-linked company’s funds.

Najib had previously filed an application claiming the charges against him in the trial over SRC International Sdn Bhd’s RM42 million were “defective in form and substance” and amounted to an abuse of court process.

Najib is seeking for all the seven charges — comprising alleged abuse of position, criminal breach of trust, money-laundering — to be stayed or quashed unless amended.

He is also seeking for the trial to be suspended until there is a final decision on his challenge against the charges.

After hearing arguments from both sides on Najib’s application for almost three hours, High Court judge Mohd Nazlan Mohd Ghazali said: “I will give my decision Monday 9am.”

Datuk Mohd Yusof Zainal Abiden is pictured at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon
Datuk Mohd Yusof Zainal Abiden is pictured at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon

Earlier, former Solicitor-General II Datuk Mohd Yusof Zainal Abiden, who represented Najib, argued that the prosecution must be “clear and specific” when framing charges to enable the accused to know exactly the case against him.

“Otherwise he won’t be able to effectively prepare his defence,” he argued.

Yusof said the CBT charges against Najib did not specify how the offence was allegedly committed, noting that there were five possible ways under Section 405 of the Penal Code including dishonestly misappropriating, converting for own use, or dishonest use of a property.

Yusof also argued that the CBT charges were not specific, saying that Najib must know if he was accused of committing the offences as an agent in his combined roles of prime minister, finance minister and SRC International advisor emeritus or as a result of each position separately.

He contended that the prosecution could not charge Najib with the two different offences of CBT and abusing his position to receive a bribe over the same RM42 million at the same time.

“It is an either-or situation. If you charge criminal breach of trust, you have to show entrustment of money under him and he misappropriated; or the money was never under his control but he abused his position and have received gratification as stated in the charge,” he said when arguing the offences involved different situations.

Yusof also argued that Najib cannot be put on trial for money-laundering while also facing charges of CBT or abusing his position, as he would allegedly not be able to defend himself.

“Receiving illegal money per se is not an offence, only when you receive it knowingly, only then it becomes an offence,” he said in explaining the money-laundering offence under local laws.

By being tried over those two other types of offences together with the money-laundering offence, Najib would not be able to rebut the legal inference under anti-money laundering laws that he knew or had reason to believe or had reasonable suspicion that the money he received is illegal, Yusof argued.

“So from the word go, when you charge him under AMLA (anti-money laundering law), you are depriving him of all defences in law,” he said.

Datuk Kamarul Hisham Kamaruddin is pictured at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon
Datuk Kamarul Hisham Kamaruddin is pictured at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon

Lawyer Datuk Kamarul Hisham Kamaruddin, also representing Najib today, similarly said the charges should be specific and said the issue at stake for his client was a fair trial.

Najib’s lawyers argue that the prosecution would not be prejudiced if the court allows the challenge, as the prosecution is free to amend the charges or file fresh charges against Najib.

Datuk V. Sithambaram is pictured at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon
Datuk V. Sithambaram is pictured at the Kuala Lumpur Court Complex April 26, 2019. ― Picture by Shafwan Zaidon

Ad-hoc prosecutor Datuk V. Sithambaram argued, however, that Najib’s application is “premature”, as they could challenge the charges at the end of the trial after all evidence has been heard.

Sithambaram argued that Najib was not prejudiced, as the way the defence lawyers have cross-examined the prosecution witnesses during the ongoing trial showed that they were clear about the charges against Najib.

“It’s quite clear the defence has no difficulty in the conduct of this case as the charges stand,” he said.

Sithambaram pointed out that the prosecution had provided 35 volumes of about 7,000 pages of documents that it was relying on for the trial to Najib, noting that the defence lawyers could and actually did continue to apply for more documents as allowed.

Sithambaram also highlighted that Najib’s lead defence lawyer, Tan Sri Muhammad Shafee Abdullah, had previously in court agreed to all seven charges to be put on trial together, quoting the latter as having said: “Therefore can be tried together, in fact, it should be tried together to save judicial time and in the interests of justice.”

Najib’s challenge was filed in the morning on April 3, which was the scheduled first day of trial.

On that day, Najib’s lawyers had wanted the challenge to be heard before the trial started, but the prosecution objected this as an alleged backdoor attempt to delay the trial.

Mohd Nazlan had on April 3 said the trial would start, as the challenge was only filed that morning to challenge charges filed months ago and the challenge could be heard after trial started. The hearing of the challenge was later fixed for today.

Najib’s trial has so far seen 21 prosecution witnesses testifying in the first nine days.

The trial was previously set to run until May 10 and is expected to resume next Monday.

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