DECEMBER 12 — The Court of Appeal must be commended for its written judgment soon after its oral judgment dismissing former prime minister Datuk Seri Najib Razak’s appeal against his conviction and sentence for misappropriating RM42 million belonging to SRC International Sdn Bhd.
In the 317-page full judgment of the appellate court’s unanimous decision, the three-judge bench ruled that the High Court did not make any errors in its decision, and upheld the conviction, RM210 million fine and the jail sentence on Najib..jpg)
A stay of execution of the sentences imposed by the High Court and affirmed by the Court of Appeal was, however, granted by the latter. Unfortunately, the reasons for grant of stay were not addressed by the appellate court in its judgment. (see the ejudgment here.)
This is unlike High Court judge Mohd Nazlan who considered Najib’s application for stay of execution. In his judgment, the learned judge said:
“Upon the conviction of the accused on the seven charges, the defence informed the court that the accused would be appealing against the conviction. The accused would also be appealing against the sentence. Under s 311 of the CPC and s 57 of the Courts of Judicature Act 1964, no appeal shall operate as a stay of execution, but the court may exercise its discretion to grant a stay of execution in accordance with well-established judicial principles and be based on the facts and circumstances of each individual case. The grant of a stay is only an exception to the general rule; hence, special or exceptional circumstances must be shown to exist before the discretion can be exercised in favour of a convicted applicant.” (see Public Prosecutor v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808)
Having considered the judicial principles, the learned judge found that the accused and the facts of the case “have successfully established the presence of special circumstances” for reasons, among others, that there are novel points of law involved, that the accused is also a first offender and has no previous convictions, and that it “appears unlikely that the accused would become involved again in another offence whilst at liberty as he is also presently answering criminal charges in two High Courts.”
The learned judge also granted stay of the sentence of fine despite accepting “that in practice a stay is not usually given for the sentence of fine for the reason that a fine already paid can be refunded should the sentence be set aside, as opposed to the loss of liberty which is irreversible.”
However, the learned judge considered that the above “is true only if the accused is genuinely able to pay the fine.” Otherwise, according to the judge, the fine is for all intents and purposes an indirect manner of sentencing the accused to a jail term, especially when a default provision is imposed.
The learned judge said:
“[The] core principle of the sentence of fine [is] a court should not impose a fine which it knows or ought to have known that the accused is not in a financial position to pay (see Chin Loke v Public Prosecutor [1967] 2 MLJ 13). In the instant case, this court, minded to impose the sentence of imprisonment under s 24 of the MACC Act, is bound by the penal provision of s 24 of the MACC Act to also pass a sentence of fine, and in accordance with the formula specified therein of which in this case, an extremely large sum of RM210m is the minimum. At the same time as submitted by the defence, another High Court (Civil Division) has also recently ordered the accused to pay RM1.69 billion in additional taxes and penalties.
“These, in my view, constitute extenuating and special circumstances justifying a stay of execution of the sentence of fine in this case.
“I therefore allow the application of the accused for a stay of the execution of the sentences of imprisonment and fine.”
Even though the learned judge’s decision on stay was not a matter before the Court of Appeal, the latter could have considered Najib’s application for stay pending appeal to the Federal Court in its judgment.
The Court of Appeal could have lent certainty to the law, at least on the principle of stay of sentence of fine.
*This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
