Judge rules Roger Ng can testify in Najib’s 1MDB trial in Malaysia, despite US court order

PUTRAJAYA, April 23 — The High Court today ruled that former Goldman Sachs banker Roger Ng can appear as a witness and testify in former prime minister Datuk Seri Najib Razak’s 1Malaysia Development Berhad (1MDB) trial here in Malaysia, even though a US court order imposes restrictions on Ng.

Datuk Collin Lawrence Sequerah, the trial judge in Najib’s 1MDB trial here, said the High Court here is bound and subject to its own jurisdiction, and cannot be made subject to any foreign jurisdiction.

The judge said the US court order — a protective order — “does not bind this court”.

The judge also said he will not wait for Ng’s lawyers to ask the US court to make changes to the protective order to enable the former banker to testify in the 1MDB trial in Malaysia.

“This is a public interest case which has proceeded for far too long, this court is not prepared to wait for any variation sought,” he said.

Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah then requested to be given half an hour to interview Ng, and the judge then allowed the 1MDB trial to be adjourned for half an hour as requested.

The judge had made the ruling after hearing arguments from both Shafee and Ng’s lawyer on whether he should be called in to testify today.

Earlier today, Ng’s lawyer Datuk Tan Hock Chuan asked the High Court in Kuala Lumpur to give his client time to ask the US courts to make changes to the US court order first, before testifying in Najib’s 1MDB trial in the Malaysian courts.

Tan said the Prime Minister’s Department’s Protection Division had contacted his office on April 21 to say that a subpoena had been issued against Ng for him to be interviewed today and to be called as a defence witness tomorrow if necessary.

According to Tan, Ng’s US lawyers have said that the Eastern District of New York’s court’s protective order means that the former banker is not allowed to be interviewed or to testify in court on information discovered by Ng during the latter’s own US trial.

“The US attorneys have advised that after confirmation with the Department of Justice (DoJ), the protective order is still in effect today,” Tan said, referring to the US court order which was issued on July 23, 2019.

“US attorney also advised that the protective order applies to the whole defence team and Roger, and therefore the US attorney has advised that a motion be made to the court at Eastern District of New York to vary the protective order to allow my client to be interviewed, and if necessary, called by the defence in this case,” Tan had argued.

Tan said that Ng’s US lawyers had given the advice that he would be “exposed to criminal liability and criminal sanctions will be taken against him” if he were to be compelled to be interviewed and to testify in court here, since the US order is still in effect.

With Ng still waiting for a US court’s decision on his appeal on his conviction there, Tan said there was a concern that any breach of the US court order may be used against him in the appeal process.

“So if I may be allowed to sum up, it’s not a question of my client refusing to be interviewed or to be called as witness, but to be fair to him, there’s already an advice from his US attorney that he may be breaching the protective order for which he may face criminal sanctions, that is totally unfair to him,” Tan said.

Tan requested that Ng be called in as a witness on the next 1MDB trial dates in May, to enable his client’s US lawyers to get a variation of the US court order.

Shafee had argued that Ng can still appear in the courts here to be a witness in the 1MDB trial.

Shafee said Najib’s US lawyer had this morning provided legal advice to say that the US court order only prevents Ng from testifying in court about facts that he had learnt from documents disclosed by US prosecutors in the US trial.

Shafee said Najib’s US lawyer had also commented that the US court order does not stop Ng from testifying on what he remembers from his direct personal experience, or on public documents, or what he knows from other documents.

Shafee also said the High Court here has its own jurisdiction and that the 1MDB trial judge has his own judicial powers which cannot be limited.

Shafee also argued that Tan could use the Evidence Act’s Section 132 protection to say that whatever Ng says in the 1MDB trial here cannot be used against him in any court.

Under Section 132, when a witness is compelled to testify in court, the witness’s answer should not result in his arrest or prosecution or be proved against him in criminal proceedings in court. But this protection does not apply if the witness gave false evidence in court.

Tan however said he was unsure if a protection given by the Malaysian courts under Section 132 would help Ng, if the US DoJ takes action against his client for breaching the US court order: “It’s not good for my client to be put in peril.”

In March 2023, Ng was sentenced in the US courts to 10 years’ jail for several offences including conspiring to launder billions of dollars embezzled from 1MDB and conspiring to pay over US$1.6 billion bribes to government officials in Malaysia and Abu Dhabi.

Ng’s jail term in the US was deferred as he was handed over to Malaysia, and he returned to Malaysia in October 2023 where he was arrested by the police for further investigation to trace and recover assets misappropriated from 1MDB.

As of last December, Inspector-General of Police Tan Sri Razarudin Husain confirmed that Ng remains under police custody to help with ongoing police investigations on 1MDB.