KUALA LUMPUR, Sept 15 — Former prime minister Datuk Seri Najib Razak intends to have former attorney general Tan Sri Tommy Thomas testify as a witness in court over a purported leaked internal memorandum by the Attorney General's Chambers (AGC) regarding his joint trial with former treasury secretary-general Mohd Irwan Serigar Abdullah over RM6.6 billion of government funds.
Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah told the High Court today that his client wants to have Thomas called as a witness.
He said the alleged leaked memorandum is related to his client's defence that there has been an alleged abuse of process.
“Just to let the public prosecutor know so that the prosecution understands the complexity and serious intention on both our part. For my part, it's not only the seven plus five investigating officers that we will be wanting to call as witnesses.
“We will also be calling Tan Sri Tommy Thomas because he will be the first legal officer who was involved in this abuse of process," Shafee said.
Before that, Irwan Serigar's lead defence lawyer Datuk K. Kumaraendran had informed the prosecution that he would be calling in the officers who were involved in the alleged memorandum as witnesses.
“Those responsible in the memorandum, I will be calling them as witnesses if and when necessary, so I'm giving adequate notice to my learned friend,” he said.
Today’s hearing is for case management as the prosecution is supposed to update the High Court on the status of the representations by both Najib and Irwan Serigar to the AGC.
The trial proper has yet to start.
Typically, accused persons can send in representation letters to the attorney general to seek the dropping of charges or to ask for alternative charges with lower penalties.
But deputy public prosecutor Muhammad Saifuddin Hashim Musaimi made no mention of the representations and instead asked for the High Court to fix trial dates.
Both Shafee and Kumaraendran too did not mention the representations.
Shafee then raised the matter of an alleged leaked internal AGC memorandum dated September 10, 2019 which he said is now in the public domain.
He argued that the head of the prosecution team working with seven deputy public prosecutors and five investigating officers had allegedly come to an agreement that this RM6.6 billion case does not meet the minimum threshold for charges against both Najib and Irwan Serigar, or for a prima facie case to be secured.
“Yang Arif, we are officially making an application in this court so that we can improve on the statement of defence that we are to make, to ask my learned friend from the prosecution to take a stand and confirm that this leaked document, is in fact true, it exists,” Shafee said.
He added that he would seek get the prosecution to confirm the alleged leaked memorandum exists in this case, and is a genuine document.
“I don't think he's in a position, not fair for him to confirm the contents. But this leaked document is in fact true and genuine,” he said.
Shafee said the alleged memorandum was addressed to Thomas when the latter was still the AG and that it was also copied to the AGC's current head of prosecution Datuk Manoj Kurup.
He said this matter should have been taken very seriously and that it would be relevant to Najib's defence that there was an “abuse of process by the former AG".
He insisted that this case is “political persecution, especially when the former AG Tommy Thomas said he was a political appointee which is absolutely ridiculous”.
“So we need confirmation of this,” he said.
In response, Kumaraendran said he had the greatest respect for Shafee, but does not think the court is the "proper forum" to discuss such matters at this point.
He also said it was not fair for Shafee to discuss this matter at this time.
But Shafee argued that the alleged internal memorandum would be a source for one of Najib's defence in this trial.
Muhammad Saifuddin however said the alleged memorandum is outside the prosecution's case and that he could not comment at this point about the defence's intention to call in witnesses regarding the alleged leaked document.
Before the judge set the trial dates for this case, Shafee told the court that he is also handling a separate trial in which Najib is accused of misappropriating RM2.28 billion of 1Malaysia Development Berhad (1MDB) funds.
He said that that trial is ongoing and is expected to continue till March next year.
Kumaraendran requested for trial dates to be fixed in January or February 2024, saying that his client Irwan Serigar was first charged on October 25, 2018 and that it is almost five years now.
“If we are going to get a date next year, it's going to be the fifth year and if the case goes on, I don't think we will finish until 2026. And this case is the longest-ever in history in this court, the charge has been pending over my client for over five years before it commences.
“I want the court to also consider the impact on my client. He's unable to leave the country for almost five years, psychological stress he has undergone for the charge hanging over his head. He has to appear in court every time the case is fixed, Yang Arif, he cannot proceed with his career advancement,” he said of Irwan Serigar.
He added that his client has law examinations and is unable to advance his career further while waiting for this case to be dispensed.
Judge Datuk Muhammad Jamil Hussin scheduled 30 dates in 2024 for the hearing of the trial, namely June 4 to 6, 10 to 13, 19 to 20, 24 to 27, and July 2 to 4, 9 to 11, 15 to 18, 22 to 25 and 29 to 31.
In October 2018, Najib and Irwan Serigar pleaded not guilty to six charges of criminal breach of trust involving more than RM6.6 billion in government funds which were paid to the International Petroleum Investment Company (IPIC).
Najib and Irwan Serigar were jointly accused of committing all the offences at the Finance Ministry Complex, Putrajaya between December 21, 2016, and December 18, 2017.
They were charged under Section 409 of the Penal Code read together with Section 34 of the same code which provides for a maximum of 20 years in jail and whipping as well as fine upon conviction.
Najib had a few years ago sent in his first representation and had in early August sent in his second representation to the Attorney General's Chambers, while Irwan Serigar had in February 2020 sent in his first representation and had in March also sent in a second representation to the AGC.
Shafee later told reporters outside the courtroom that both Najib and Irwan Serigar have not received answers from the AGC on their representations, and that he will send in a reminder.
Shafee claimed that former AG Thomas had charged Najib and Irwan Serigar despite the advice given in the purported leaked memorandum, adding that this memorandum will be raised in court if the prosecution goes on.
“We also have promised we will call all the seven deputy public prosecutors, five investigating officers who gave the opinion, we will also subpoena Tommy Thomas because one of our biggest defences is that this is an abuse of process,” he said.
He hinted that Najib might initiate a civil suit against those involved, in a bid to seek compensation.
“If this is an abuse of process, we maintain a civil proceeding against all those responsible, especially Tommy Thomas for malicious prosecution and abuse of process for damages against him by these two gentlemen, my client included,” Shafee said.