PUTRAJAYA, April 19 — Entrusted with dominion over SRC International Sdn Bhd’s assets and properties, all of Datuk Seri Najib Razak’s conduct within the company was “planned, deliberate and premeditated” to achieve personal gain and benefit for himself, the Court of Appeal heard today.
Ad hoc prosecutor Datuk V. Sithambaram said this during rebuttal to Najib’s appeal hearing against his conviction and jail sentence for misappropriating RM42 million belonging to SRC International.
Sithambaram said evidence adduced clearly showed that Najib arranged the affairs of SRC International, where he was entrusted with dominion, when Najib assumed the role of the prime minister through the issuance of shareholders’ instructions that had to be followed by SRC’s Board of Directors (BOD).
This was made possible through the company’s Memorandum and Article of Association (M&A) that was drafted and structured to give sole power to the prime minister, who at all material time was Najib, to exercise his control over SRC International as only he could appoint or remove the directors of the company.
At the same time, Sithambaram said Najib became a shareholder by virtue of his official and representative position in the Finance Ministry.
Najib’s role was later formalised by assuming the title of ‘adviser emeritus’ to entrench his commanding position in SRC International, which enabled him to direct the SRC BOD as its master.
“His (Najib’s) cumulative role in all the positions proves that the appellant is the controlling mind behind SRC International.
“It is the appellant who played the role of prime minister, finance minister, Ministry of Finance Incorporated (MoF Inc) and adviser emeritus.
“The criminal intention of the appellant is executed by the appellant wearing different hats as PM, FM, MOF Inc and adviser emeritus.
“It is the mens rea of the appellant in executing the criminal intent in various capacities that enabled the appellant to commit the seven offences charged,” he said, stressing that evidence clearly established with certainty that Najib was entrusted with dominion and possessed “overarching control” over SRC International since its formation.
Sithambaram also said it was pertinent to note that in any company, shareholders appoints the BOD to manage the affairs and day-to-day running of the company which it shall act in the best interests of the company.
“However, in the case of SRC, the situation was reversed as the shareholder (Najib by virtue of PM and FM) was instructing the SRC BOD through the shareholder minutes on operational, business aspects which are within the purview of the SRC BOD,” he said.
Sithambaram further submitted that the corporate governance regime that was put in place within SRC International was specifically designed to provide ultimate control to Najib, and was very much part of the plan for Najib to direct and control the business affairs of SRC International.
He said this was corroborated through testimonies provided by former SRC International’s board of director chairman Tan Sri Ismee Ismail who is the 39th prosecution witness (PW39) and former SRC director Datuk Suboh Md Yassin who is the 42nd prosecution witness (PW42).
“All matters in the M&A which were to be managed by the SRC BOD were in fact managed by the appellant through the SRC BOD.
“There was not a material action that SRC took which was not the result of a decision by the appellant, whether as part of its management (being the de facto shadow director) or as a shareholder (being the corporate representative of MOF Inc),” he added.
Ultimately, Sithambaram said the combined roles played by Najib as the prime minister, the finance minister, the corporate representative of MOF Inc and the adviser emeritus, enabled him to execute his game plan to benefit from the funds of SRC International.
“The appellant placed himself in a position where the SRC BOD acted on his instructions rather than as independent directors.
“Whilst the law requires that the SRC BOD should always act in the best interests of SRC, it was actually acting (unknowingly) in the best interests of the appellant.
“The SRC BOD was rendered toothless and powerless by the most powerful man in the country.
“This resulted in the outflow of about RM4 billion of SRC’s funds overseas for dubious reasons. The funds have disappeared while the debt is still being paid by the Government from public funds,” he said.
In the RM42 million SRC International case, Najib was sentenced to 10 years’ jail on each of the three counts of CBT and each of the three counts of money laundering, and 12 years’ jail and a RM210 million fine, in default five years’ jail, in the case of abuse of position on July 28 last year.
However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently.
The appeal hearing before Court of Appeal judge Datuk Abdul Karim Abdul Jalil who chaired a three-member panel alongside Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera continues.