SRC judgement: So, what happened to the RM4 billion?

 

The Court of Appeal has ruled that the High Court which found Najib Razak guilty on seven charges of criminal breach of trust (CBT), money laundering and abuse of power was right in doing so.

The former prime minister will certainly appeal to the Federal Court to overturn this decision, just as certainly as he will burnish his public image in his continuing appeal to the court of public opinion.

But, for now, four judges are in total agreement about Najib’s guilt in the sordid affairs of SRC International Sdn Bhd – a former 1Malaysia Development Bhd subsidiary.

I found the observations made by the Court of Appeal very interesting and I’d like to share some of these, and my own thoughts, here.

On Dec 8, the three-member bench of judges dismissed Najib’s appeal against his conviction, 12-year jail sentence and RM210 million fine handed down by trial judge Mohd Nazlan Mohd Ghazali who had found the former prime minister guilty on all seven charges preferred against him.

Nazlan had found Najib, 68, guilty of abuse of power over the approval of a RM4 billion loan by Retirement Fund Incorporated (KWAP) to SRC between 2011 and 2012, CBT of RM42 million in SRC funds between Dec 24, 2014, and Feb 10, 2015, and money laundering of the same amount.

The three members of the Court of Appeal – Abdul Karim Abdul Jalil, Has Zanah Mehat and Vazeer Alam Mydin Meera – noted in their 317-page grounds of judgement that, among other things, SRC had received RM4 billion in total from KWAP in the form of two loans of RM2 billion each in 2011 and 2012.

It was also clear, bench chairman Abdul Karim said in reading the judgement, that some RM42 million which belonged to SRC was credited into Najib’s personal accounts in AmIslamic Bank between December 2014 and February 2015.

The judges said: “It should also be mentioned that testimonies of witnesses reveal that the significant bulk of the RM4 billion drawn down to SRC by KWAP was almost immediately upon receipt transferred to accounts outside the country and some of which now appeared to have been frozen by the relevant authorities in Switzerland. Its present status was not made clear at trial, nor at the appeal before us. When queried by this court as to what happened to the RM4 billion KWAP loan to SRC, counsel for the appellant answered that no one knows.”

The judges noted a total lack of evidence as to what purpose the RM4 billion in public funds were actually utilised and that “if indeed they were for the benefit of the government of Malaysia and its people, surely there would be some evidence of that”.

However, they added, “the glaring fact is that SRC defaulted on the loans repayment to KWAP, and the government had to incur further costs and expense.”

One can only hope the government or the police and the Malaysian Anti-Corruption Commission are pursuing this matter so that the money can be recovered. That’s RM4 billion, not RM40 or RM400. It’s hard-earned taxpayer money, after all.

Surely someone must know where the money went?

What has KWAP, Malaysia’s largest public services pension fund, done about it? And why have civil servants and government pensioners remained rather cool about this loss? Could it be because they are certain that no matter how much money is lost, they’ll still get their pension?

Let’s hope by the time this case reaches the Federal Court, someone has an answer. And I do hope the Federal Court will enquire about it because our recent governments have not exactly been known for being free with such information.

Regarding the RM42 million, however, we have an idea of how it might have been spent. The judges said the RM42 million, contrary to Najib’s assertion that he had used it for corporate social responsibility programmes of the company, had been used for his personal benefit and for his political purposes.

“The appellant had dishonestly misappropriated and dishonestly converted for his own use the entrusted property (RM42 million) which belonged to SRC International,” they said.

Whistleblower Sarawak Report had claimed in August 2016 that some of the money diverted from SRC International was used on beauty products, including anti-ageing growth hormones, and home renovations, but we really don’t know.

However, Najib has consistently denied using any of this money for his personal benefit.

Another issue addressed by the Court of Appeal that I found interesting was the exoneration of Najib by former attorney-general Apandi Ali in 2016. Apandi, you will recall, was appointed attorney-general by Najib to take over from Gani Patail who was summarily removed. I believe everyone is aware why Gani was removed, so I won’t go into that.

The judges actually dismissed Apandi’s media statements in defence of Najib by saying they “cannot be held to exonerate Najib of wrongdoing”.

In his defence that all his actions with regards to SRC International were in the national interest and that he had no personal interest, Najib had tried to rely on the testimony of individuals such as the former AG.

Apandi had testified that as AG he had exonerated Najib of any wrongdoing with regards to SRC International.

“He (Apandi) further testified that in January 2016, he had instructed MACC to close investigations against the appellant as he was satisfied that there was no evidence that the appellant had abused his position to approve the government guarantees for the SRC loans from KWAP. However, during cross-examination, DW14 (Apandi) agreed that the decision he made was based on available material in the investigation papers as at Jan 26, 2016. DW14 further agreed that he was not aware that thereafter a further 76 new statements and several further statements were recorded from witnesses relevant to the investigations.

“In any event, the general law is that the opinion of any person, even if that person is the former attorney-general, is not relevant in any court proceeding. The court forms its decision on cogent admissible evidence, not on the opinion of others, except when such opinion is an exception to the general rule, like that of an expert.”

They agreed with the trial judge that the opinion of Apandi could not replace the evidence before the court in arriving at a fair and just decision.

The judges also said: “The former AG’s opinion, which he stated during the press conference, was in respect of the state of affairs as at Jan 26, 2016, while the investigations were ongoing.

“Surely, that premature statement cannot bind a future AG from exercising his prosecutorial powers when additional evidence is collected.”

What was interesting for me, as someone who loves words, was the use of “opinion” and “premature statement” by the learned judges.

What Apandi uttered that fateful day when he “cleared” Najib of all wrongdoing, according to the court, was only his opinion. And, it was not even an expert opinion as otherwise they would have accepted it.

An opinion, as we know, is different from a statement of fact.

The phrase “premature statement” is very telling too, especially since the statement referred to was made by the government’s top legal officer. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.