Prosecution’s case made out, Najib’s defence ‘incredible’, ‘inconsistent’, Federal Court says

 

The Federal Court bench was unanimous that the lower courts had not erred in their judgments. (From left) Chief Justice Tengku Maimun Tuan Mat, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and apex court judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Diah.

PUTRAJAYA: The Federal Court has held that former prime minister Najib Razak’s conviction on all seven charges preferred against him was safe.

In a unanimous decision contained in broad grounds of judgment and read out by Chief Justice Tengku Maimun Tuan Mat, the court said: “We are not satisfied that any of the findings of the courts below are perverse so as to warrant appellate intervention from this court.”

Tengku Maimun was referring to the findings made by the High Court when convicting Najib on July 28, 2020 and the Court of Appeal when affirming his conviction and sentence on Dec 8 last year.

Addressing the merits of the case, the chief justice said that the five-member apex court panel had examined all 94 grounds of appeal set out in Najib’s petition of appeal “in great detail”, noting that they disclosed “only two main complaints”.

They were, first, that the Court of Appeal had erred by finding that a prima facie case on all seven charges had been made out, and secondly, that the defence had raised a reasonable doubt on each of those charges.

Noting ad hoc prosecutor V Sithambaram’s submission that the evidence was “so overwhelming” at the close of the prosecution’s case, Tengku Maimun said: “We find that the learned High Court judge, undertook a very deep, detailed, objective and extensive analysis of the evidence to support his findings at the close of the prosecution’s case.”

“(W)e fail to see how and where any of the learned trial judge’s findings leading to the ultimate finding that a prima facie case had been made out, are perverse,” she added.

The apex court went on to hold that the trial judge had correctly found that the prosecution had established all ingredients of the seven charges to warrant calling Najib to enter his defence.

As regards the defence case, the court noted that Najib had never disputed that SRC International funds entered his personal bank accounts.

“Instead, he challenged the mens rea element of all the seven offences, that is, (he) denied knowledge that the funds were from SRC,” the judgment noted.

That defence, the court said, was “completely inconsistent and diametrically opposed” to Najib’s other defences that he had been the victim of a conspiracy between Low Taek Jho (a.k.a. Jho Low), Azlin Alias, Nik Faisal Ariff Kamil, and the bankers, and that the monies were donations received by him from Saudi Arabia.

“We have not been shown why (the High Court judge’s rejection of Najib’s defence was) incorrect,” the chief justice said, adding that his defence was “so inherently inconsistent and incredible” that, when considered in totality, it does not raise a reasonable doubt.

“We are unable to conclude that any of these findings, as affirmed by the Court of Appeal, were perverse or plainly wrong so as to warrant appellate intervention,” the chief justice added.

Earlier, the apex court judges addressed defence counsel Hisyam Teh Poh Teik’s application to discharge himself, which they rejected, and his subsequent refusal to put forward any submissions at the appeal hearing.

Noting that the application to discharge was made because Hisyam did not have sufficient time to prepare for the appeal, having taken up the brief less than a month ago, Tengku Maimun said: “While the appellant was entitled to change his counsel from Messrs Shafee & Co to the present ones, he did so mindful of the date of the appeals. He cannot then turn around and say, having changed them so late in the day and counsel having accepted the brief when they did, that new counsel and solicitors are not ready.”

Then, denying a request by Hisyam to discharge himself, Tengku Maimun said: “(The) court, in invoking its inherent power to prevent abuse of process and injustice, refused counsel’s application to discharge himself as that would have left the appellant unrepresented.”

Addressing Hisyam’s refusal to tender any submissions despite being given several opportunities to do so, the chief justice said that where an appellant and his counsel are physically present but deliberately refuse to participate in the appeal hearing, the court is empowered to proceed with the appeal.

“(Counsel) cannot… refuse to make submissions in protest of not being granted an adjournment. Adjournments are granted with the discretion of the court and they are not a tool to be used to hold the court to ransom,” said Tengku Maimun.

Sitting with the chief justice were the Chief Judge of Sabah and Sarawak, Abang Iskandar Abang Hashim, and Federal Court judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Diah.

Najib was arrested on July 3, 2018 and first charged the following day. His trial was conducted in the High Court over 79 days between April 2019 and March 2020 and saw 86 witnesses testify. He was convicted on July 28, 2020.

On Dec 8, 2021, a three-member Court of Appeal panel chaired by Abdul Karim Abdul Jalil unanimously upheld his conviction and sentence. The other judges who presided were Has Zanah Mehat and Vazeer Alam Mydin Meera. - FMT