Najib was never ‘shadow director’ of SRC, appeal court hears

 

Najib Abdul Razak was never a "shadow director" of SRC International, the Court of Appeal heard today.

The former prime minister’s lead counsel Muhammad Shafee Abdullah told the three-person bench that the trial judge in the RM42 million SRC corruption case had erred in labelling Najib as SRC’s shadow director.

On Nov 11 2019, Kuala Lumpur High Court judge Mohd Nazlan Mohd Ghazali ordered Najib to enter his defence to the seven criminal charges in the RM42 million SRC case, ruling that the accused was a shadow director with overarching influence over the company. 

Shafee made his submission before the Court of Appeal during the hearing of Najib’s appeal to quash his conviction and sentencing over the seven charges of abuse of power, criminal breach of trust (CBT), and money laundering in relation to RM42 million of SRC funds. 

The lawyer was seeking to answer a query posed by the bench back on April 19, when it asked “the main issue for the CBT is (whether) the appellant (Najib) falls in (within) the definition of director, ie shadow director. If he is not a director or a shadow director, will the charges collapse?”

During Najib's appeal proceedings on that day (April 19), the prosecution had answered in the affirmative.

Shafee submitted that trial judge Nazlan had wrongfully imported the definition of shadow director from the United Kingdom common law and Malaysia’s company law into Malaysia’s Penal Code.

Among the charges Najib was found guilty of were three counts of CBT, which were framed under Section 409 of the Penal Code.

The lawyer submitted that the trial judge did this by importing the definition of shadow director into Section 402A of the Penal Code, in order to try to explain the reference to "director" in that provision.

Section 402A defines director among others as “includes any person occupying the position of director of a company, by whatever name called, and includes a person who acts or issues directions or instructions in a manner in which directors of a company are accustomed to issue or act, and includes an alternate or substitute director, notwithstanding any defect in the appointment or qualification of such person”.

Shafee submitted that Najib does not fall under the ambit of shadow director as not only Section 402A does not clearly contain the term, but that Najib was never an insider in SRC.

The UK common law definition of shadow director is that the person is an insider of the company.

The lawyer instead contended that Najib was an outsider in relation to SRC.

Najib’s lead counsel Muhammad Shafee Abdullah

“Respectfully, the appellant (Najib) submits that the learned trial judge had misdirected himself in adopting too wide the definition of 'director'. In holding that the definition of 'director' is not exhaustive, emphasis was given to the word “includes” in Section 402A without taking into account the context, purpose and scheme of the offence under Section 409 of the Penal Code.

“An act (Penal Code) entailing penal consequences should not be applied to anyone who is not brought within it in express language. It is elementary that in dealing with a penal provision, the rule of strict construction require that the language shall be construed so that no case shall be held to fall within it which does not fall within the reasonable interpretation of the enactment.

“It is a well-settled rule of interpretation that we must primarily look to our own enacted law and its terms, and refer to the background of the English common law and precedents only where there is no repugnancy or in order to throw further light upon the principle taken from that source in order to take it part of the codified law of this country.

“Section 402A does not contain (definition of director which is the) same as that of ‘shadow director’ in (UK) common law.

“My client Najib was certainly not an insider in SRC, this has not been proven (by the prosecution).

“Hence, he cannot be a shadow director for the (trial) judge to convict my client on CBT (charges),” Shafee submitted before the bench chaired by Court of Appeal judge Abdul Karim Abdul Jalil.

Najib’s legal team is continuing their submission today before the bench, which is also comprised of Court of Appeal judges Vazeer Alam Mydin Meera and Has Zanah Mehat.

On July 28 last year, the Kuala Lumpur High Court convicted Najib on one count of abuse of power, three counts of CBT and three counts of money laundering in relation to RM42 million of funds from SRC.

In making the guilty verdict at the end of the defence stage on that day, trial judge Nazlan then sentenced Najib to 12 years in jail and a fine of RM210 million.

The lower court allowed the defence team's application for a stay of the sentence, pending the disposal of his appeal.

SRC, which was once a subsidiary of troubled sovereign wealth fund 1MDB, later became fully owned by the Minister of Finance Incorporated (MOF Inc).

Besides being the former premier, Najib also used to be finance minister (which made him then the sole shareholder of MoF Inc), SRC’s advisor emeritus, and chairperson of 1MDB’s board of advisors. - Mkini