KUALA LUMPUR, June 24 — The High Court here today allowed for amendments to be made by the prosecution to the charges levelled against former prime minister Datuk Seri Najib Razak and former 1Malaysia Development Berhad (1MDB) chief executive Arul Kanda Kandasamy, in their joint trial over the alleged tampering of a federal audit report on 1MDB.
Justice Mohamed Zaini Mazlan allowed the amendments after hearing submissions from all three parties, which took slightly longer than two hours to complete, adding how the changes applied within the charge would not cause prejudice to Najib as alleged by his lead counsel, Tan Sri Muhammad Shafee Abdullah.
“Even if the amendments result in the goalposts being shifted, it will still remain within the pitch and they will still be able to aim their shots, and I am here to ensure they will be given every ample opportunity to mount their defence.
“In the abundance of caution, there is a right to recall and reexamine again any of the prosecution witnesses and I am confident the defence will have ample time to prepare their defence and I will ensure they are not put at a disadvantage.
“I find that the amendment does not cause any prejudice to the accused and this application is therefore allowed,” Mohamed Zaini said when reading out his brief judgment this afternoon.
The amendments within charges involved changing the words ‘disediakan’ (prepared) to ‘dimuktamadkan’ (finalised), while adding the word ‘semula’ (again), which applies to both Najib and Arul Kanda’s charge.
Najib’s altered charge now reads;
“That you between February 22, 2016, and February 26, 2016, at the Prime Minister’s Department, the administrative centre of the federal government, within the Federal Territory of Putrajaya, as a civil servant, that is the Prime Minister of Malaysia and Finance Minister of Malaysia had used your position to receive self-gratification, as protection from civil or criminal action concerning your role in the handling of operations of the company 1MDB, by the action of instructing that the 1MDB Auditor’s Report that was finalised by the Auditor-General (A-G) be amended as contained within Annexe A before the report was finalised again and presented to the Public Accounts Committee (PAC),” reads the new charge, with the amended words indicated in bold.
Identical changes were applied to Arul Kanda’s charge sheet as well.
Following Mohamed Zaini’s judgment, the new charges were then read out again to both Najib and Arul Kanda, where they acknowledged to the court that they understood the amendments which were made and again claimed trial.
Earlier during submissions by prosecutors Datuk Seri Gopal Sri Ram and Ahmad Akram Gharib, the court was told how the proposed amendments would not result in prejudice against the accused, with Akram explaining how the words inserted into charge would instead make it more accurate as opposed to raising its level of ambiguity as submitted by Shafee.
Akram also argued that considering how the trial is still in its early stages, with only seven witnesses called to testify so far, any discrepancies or issues that may arise from the amended wordings within the charge can still be dealt with by the defence.
“Once allowed, the charge as amended, will be read again to the accused, and they will have the opportunity to put in their defence.
“And prosecution witnesses up to now, except for prosecution witness number two, the accountant from the Prime Minister’s office, all the other witnesses either have not been crossed or are in the midst of cross-examination.
“The proposed amendment does not change the offence, nothing changes for the offence; the only change is the manner it was said to have been committed; we are not changing it, we are just making it clear.
“The changes will not cause injustice to the accused nor does it change the offence from the original charge; there is no male fide involved,” he said referring to the Latin legal term which means in bad faith.
Shafee then argued that such amendments are unlawful, that it shifts the goalpost for the defence in defending their client, and that such changes should not be made midway through a trial.
Meanwhile, Arul Kanda’s lawyer Datuk N. Sivananthan pointed out to the court that the amendments would not cause major alterations to their client’s case, and instead had pushed for the trial to continue as planned in the interest of justice.
“The amendments do not retract from my client, as whether portions were taken out from the (audit) report or not is up to this honourable court to decide.
“All we hope for is that the trial can go on, and that we don’t go into the trial dates for any of these applications,” he said.
In delivering his judgment, Mohamed Zaini concurred with the prosecution when he allowed for the amendments, pointing out how the trial is only eight days into proceedings and that most of the witnesses have not been cross-examined by the defence lawyers.
The judge again stressed the changes would not lead to prejudice against the accused, and that it would not put the defence teams at a disadvantage, as the court would ensure that all avenues to raise a defence will be afforded to all parties.
This comes after the court was told of the changes proposed by the prosecution, who had on June 17 said it would involve them correcting a ‘typo’ within the charges.
In 2018, Najib was charged in the Sessions Court in Kuala Lumpur for allegedly abusing his position to alter or cause to be removed portions of the 2016’s 1MDB audit report that was being prepared by the A-G, before it was to be presented to Parliament’s Public Accounts Committee (PAC).
Arul Kanda, in his capacity as 1MDB chief executive, had allegedly abetted Najib, according to the charge.