Abuse of power charge against Najib defective: defence

The charges against Najib Abdul Razak in his RM42 million SRC International case are defective and suffice for the former premier to be acquitted, argued his defence.

Lead defence counsel Muhammad Shafee Abdullah (above) submitted before the Kuala Lumpur High Court today that the defects in the charges have prejudiced the accused by misleading him in how to prepare his defence.

Counsel was referring to the abuse of power charge, framed under Section 23 of the Malaysian Anti-Corruption Commission Act, which accused Najib of using his then position as prime minister and finance minister to get the government to approve two government guarantees RM4 billion in loans from the Retirement Fund Inc (KWAP) to SRC International in return for him to receive a gratification of RM42 million.

The prosecution said that Najib perpetrated this offence through two separate cabinet meetings between August 2011 and February 2012.

The RM42 million, allegedly from SRC International, was purported to have flowed into Najib’s personal accounts via three separate transactions of RM27 million, RM5 million and RM10 million between December 2014 and February 2015.

Shafee argued that the abuse of power charge posited two separate offences, the first being alleged abuse of power in relation to the first cabinet meeting in August 2011 which approved the first government guarantee, and the second the other cabinet meeting in February 2012 which approved the second government guarantee.

The first government guarantee was for the first tranche of a RM2 billion loan from KWAP to SRC, while the second government guarantee was for the second tranche loan of RM2 billion from the fund to the former 1MDB subsidiary.

Shafee further contended that unlike the single abuse of power charge which accused Najib of committing the offence for a RM42 million gratification, the accused was hit with three separate criminal breach of trust (CBT) charges split into RM27 million, RM5 million and RM10 million respectively.

The lawyer argued that this state of affairs should render the whole charge a nullity due to a breach of the rule against duplicity, a situation where a single charge contains more than one transaction.

“If Yang Arif (judge Mohd Nazlan Mohd Ghazali) convicts (Najib) under Section 23, he would not know if he is convicted for GG1 (the first government guarantee) or GG2 (the second government guarantee). He would not know as it is all in one (abuse of power) charge. That is how prejudiced it is,” Shafee submitted.

Shafee further submitted that Najib was prejudiced by the charge because the abuse of power charge did not state who gave the RM42 million gratification.

“Who paid the gratification? It is not stated (in the charge),” Shafee said.

The lawyer submitted that there was also uncertainty on who moved the RM42 million from SRC International and layered it through two other companies (Gandingan Mentari and Ihsan Perdana) before it ended up in Najib’s account.

He said that this ”state of chaos and sixes and sevens” seemed to be purposefully created.

“There was madness in both institutions, SRC (International) and the bank (AmBank, where Najib’s personal accounts were). Was there a method in the madness? Who was behind this madness?” Shafee asked.

The veteran lawyer also submitted that the defence’s case was bolstered by previous testimony by MACC investigating officer Rosli Husain that SRC International CEO Nik Faisal Ariff Kamil allegedly denied that Najib was involved in the matter.

Shafee was referring to Rosli’s testimony during the trial last year saying that the MACC recorded a statement from Nik Faisal in Jakarta, Indonesia, in 2015.

“Nik Faisal was interrogated in Jakarta. It (Nik Faisal’s statement recorded by the MACC) is a lot better than all the witnesses we (defence) tendered,” Shafee said, adding, "Nik Faisal denied Najib had knowledge of money sent from SRC".

He submitted that Najib should also be acquitted of the three money-laundering charges in relation to the RM42 million because these charges were dependent on the other charges against Najib which he claimed had not been proven.

“Unless you can show a crime has been committed, not necessarily by Najib Razak but by someone else and that the proceeds become proceeds of a crime, that does not solve it yet.

“The prosecution must show that on receiving the money (RM42 million), Najib knew it was proceeds of a crime, whether committed by himself or another person.

“In this case, if the predicate offences (other charges against Najib) drop, it is certain that the Amla (Anti-Money Laundering) charges would drop. The prosecution would have an uphill battle to prove Amla, like trying to climb Mount Everest with tennis shoes. It is impossible,” Shafee said.

V Sithambaram

In his rebuttal submission, DPP V Sithambaram countered that the single abuse of power charge was properly constituted and not duplicitous because the offence of using the position of a public officer was for the same gratification, which namely was the RM42 million.

He countered that if the prosecution followed the defence’s suggestion that the charge be split into two, then it would have resulted in even more prejudice against Najib as the two charges would amount to RM84 million rather than just RM42 million.

“As for (the defence’s contention of) prejudice (caused by allegedly improperly constituted charges), I say there has been no prejudice shown and the defence was nowhere being misled,” he said, adding that this was shown by the defence only raising this technical matter today near the end of oral submissions.

He asserted that the facts during the trial have established the link between Najib’s involvement in the two government guarantees, SRC International and the flow of RM42 million into the accused’s accounts.

“The fact that SRC took no action for a large sum RM42 million leaving SRC and the fact that the recipient (Najib) never took objection to it clearly confirms it was all done with knowledge. There is no sixes or sevens.

“It was all done to hide this offence from being shown to the world,” Sithambaram said, adding that this was due to Najib’s overarching dominion as a shadow director, among others, over SRC International.

The DPP emphasised that neither SRC International, Gandingan Mentari, Ihsan Perdana or even Najib himself had filed any legal action over the transfer of the RM42 million.

It was reported that former premier and finance minister Najib was not only advisor emeritus of SRC International but also chairperson of the board of advisors of the troubled sovereign wealth fund 1MDB. SRC International was formerly a 1MDB subsidiary before it became fully owned by Minister of Finance Inc (MOF Inc) in 2012.

At the end of oral submissions today, Nazlan fixed July 28 to deliver his verdict on whether the prosecution had proved its case beyond reasonable doubt against Najib or whether the defence has succeeded in raising reasonable doubt in the prosecution’s case. - Mkini