Najib should not be called to defence just to satisfy prosecution’s curiosity, SRC trial told

Datuk Seri Najib Razak is seen leaving the Kuala Lumpur High Court Complex, October 23, 2019. ―Picture by Shafwan Zaidon
Datuk Seri Najib Razak is seen leaving the Kuala Lumpur High Court Complex, October 23, 2019. ―Picture by Shafwan Zaidon

KUALA LUMPUR, Oct 23 — Datuk Seri Najib Razak should not be called to enter his defence merely to satisfy the curiosity of the prosecution as to RM42 million ended up in his personal bank accounts, lawyers argued.

Today is the day of final submissions for Najib’s SRC International Sdn Bhd RM42 million corruption trial.

Defence lawyer Farhan Read argued that no accused party is called to the defence on the basis that they are required to provide an explanation over the offences allegedly committed by them.

“We do not call the accused to enter his defence for the joy to listen what the accused has to say, no doubt it will be interesting.

“Such attitudes should not fester in this August House and such thinking should not be encouraged,” said Read.

Lead defence lawyer Tan Sri Mohammad Shafee Abdullah later submitted that sections of the law that were used to charge Najib under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) required for a predicate offence to be committed to allow a conviction, something he told the court the prosecution had failed to prove.

Shafee said a predicate offence, in this case the commission of criminal breach of trust (CBT) under Section 409 of the Penal, needed to be proven in the trial first before an offence under the AMLA act can be committed.

“Every single item of the predicate offence needs to be proven at the trial of the predicate offence first.

“Then only they can transfer themselves, because when you have committed the predicate offence, then only you have committed an offence under AMLA,” he told High Court judge Mohd Nazlan Mohd Ghazali

Shafee then explained that under the provisions of AMLA, merely receiving the monies in a bank account does not constitute as an offence under the Act, then asserting the three AMLA charges brought against Najib should be dropped as its predicate offence of CBT was not proven.

“For someone to commit CBT, they have to be entrusted with a property or in a dominion that is entrusted, where he dishonestly misappropriated or converts the funds for his own use.

“As for the SRC funds, there are directors who are entrusted over them, and no one else.

“You have to be in a physical dominion over the property that amounts to trust, and my client does not have this dominion as he was just an Advisor Emeritus, where he cannot dispose of the assets of the company.

“So, the question is can a predicate offence mutate into an offence under AMLA, the answer is no; as an AMLA offence is a post predicate offence, distinct, and not the same,” Shafee argued.

Earlier, fellow defence lawyer Harvinderjit Singh had argued the prosecution tied Najib to the CBT offence by relying heavily on the testimony of the 49th witness, former Yayasan Rakyat 1Malaysia chief executive Ung Su Ling.

Harvinderjit suggested the prosecution had banked on Ung’s testimony of her having received instructions from Najib’s former private secretary, the late Datuk Azlin Alias, over transactions into Najib’s account with Azlin’s position as a proxy for the former prime minister enough to prove there was CBT committed.

“It is not consistent with the evidence of documents, where evidence showed they (bankers) were waiting for Su Ling’s clearance.

“In chats, she had said, ‘you can refer to him’, where she was clearly the character which was utilised by Jho Low to bank in almost RM12 million into the accounts when they went into overdraft,” he said, referring to fugitive financier Low Taek Jho.

“And despite that, the 49th witness said she ‘threw away my phone’, and yet in light of both circumstances, they say her evidence is correct,” Harvinderjit argued.

Also among the issues pointed out by the defence team was how some documents tendered in court should not be admissible as evidence, considering its authenticity, source, and that the court did not hear from the person who physically drafted and produced the implicated documents.

Harvinderjit argued there were documents presented in court that even several witnesses could not recall the exact time they viewed them, or if the first time they saw the documents was during their testimony in court.

“Where these documents are from, who collated them are all unknown, some are original copies while some are not.

“One person who we thought could help us was Joanna Yu, but she was also shown some folders and could not confirm where these documents came from, she doesn’t know if they were from Jho Low, from someone else within the bank or from the branch itself,” he said.

Yu was the prosecution’s 54th witness and was an AmBank relationship manager who oversaw Najib’s three personal accounts during the material time. 

In his closing statement, Shafee then said his client Najib should not be called to enter his defence over the seven charges, after taking into account the contradictions and factual dynamics that have been presented related to the case.

“This is a case that Your Honour should not call for the defence purely to satisfy Your Honour’s curiosity just to know what he (Najib) has to say, and not so ask him why Jho Low did what he did in the way he did it.

“Your Honour needs to assess the facts there for all the predicate offences, which there are none and then only for the AMLA offences,” he said.

Mohd Nazlan will deliver his judgement and decide if the prosecution has successfully proven a prima facie case against Najib at 10am on Nov 11.

Najib’s SRC International trial began on April 3 this year with the prosecution calling 57 witnesses to the stand.

Those who testified included former second finance minister Datuk Seri Ahmad Husni Mohamad Hanadzlah, former SRC International board chairman Tan Sri Ismee Ismail and Datuk Azian Mohd Noh who is former Retirement Fund Incorporated (KWAP) chief executive.

Out of the seven charges Najib faced, the Pekan MP is accused of committing three counts of criminal breach of trust over a total RM42 million of SRC International funds while entrusted with its control as the prime minister and finance minister then, and a separate charge under an anti-corruption law of abusing the same positions for self-gratification of the same RM42 million sum.

The remaining three of the seven charges are for allegedly money-laundering the same total sum of RM42 million.

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