Supporters of former prime minister Datuk Seri Najib Razak are seen at the Palace of Justice in Putrajaya December 8, 2021. – Picture by Shafwan Zaidon
KUALA LUMPUR, Dec 9 — The three Court of Appeal judges that presided over Datuk Seri Najib Razak’s conviction appeal over the misappropriation of RM42 million of SRC International Sdn Bhd’s funds has affirmed the judiciary’s crucial role in eradicating corrupt practices within the society.
In their 317-page grounds of judgment that maintained Datuk Seri Najib Razak’s conviction, fine and jail sentence, the three judges — Datuk Abdul Karim Abdul Jalil, Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera — wrote that they “would have to do what is necessary to ensure that this modern day plague is eradicated for the good of the nation”.
“The law is indeed ‘no respecter of persons’.
“All men are equal before the law, and the courts apply the law equally to all,” they said in respect to their duties in upholding the rule of law.
The three judges also quoted several passages of the former Lord President of the Malaysian Supreme Court Sultan Azlan Shah’s judgment in former Selangor mentri besar Datuk Harun Idris’ corruption case.
Sultan Azlan had described Harun as a “patriot and leader” in the eyes of millions of our countrymen and women, but had “allowed avarice to corrupt him” in his political career.
“And some 45 years later these words still bear relevance to the appellant (Najib), and where we as a nation find ourselves at now.
“The ‘frightening decay in the integrity of some of our leaders’ that HRH warned us of, is still a scourge that plagues this beautiful nation,” the judges said.
Below are key points the panel of judges made in the Court of Appeal:
Najib’s Arab donation tale ‘surpassed even those from Arabian Nights’
The judges also weighed in on Najib’s defence that the money was a donation from Saudi Arabia’s royal family.
In dismissing Najib’s Arab donation defence from his SRC International trial as nothing more than a concoction that is completely bereft of any credibility, they wrote that the story ‘surpassed even those from the Arabian Nights’.
“This tale that surpassed even those from the Arabian Nights not only lacked credibility, but was contradicted and dispelled by the documentary evidence,” they said.
Arabian Nights, also known as the One Thousand and One Nights is a collection of Middle Eastern folk tales compiled in Arabic during the Islamic Golden Age.
Evidence failed in supporting assertion of SRC funds were for CSR purposes
In their full judgment, the judges noted that Najib had contended that the usage of the funds that were transferred from SRC International into his personal accounts were for purposes of corporate social responsibility (CSR) programs.
“The evidence however does not support this assertion, and the learned trial judge rejected this defence.
“The evidence clearly shows that the appellant not only misappropriated RM42 million, the subject of the three criminal breach of trust (CBT) charges, but also converted to his own use that which he had dishonestly misappropriated.
“The RM42 million, contrary to the appellant’s assertion that he used it for CSR programs of the company, had in fact been used for his personal benefit and for his political purposes,” they said.
The Bench also contended that Najib was never an authorised person to carry out CSR programs for SRC International, Gandingan Mentari Sdn Bhd (GMSB) or Ihsan Perdana Sdn Bhd (IPSB), and the actual usage of the funds by Najib belied the aforementioned defence.
Both GMSB and IPSB were subsidiaries appointed by SRC International for the purpose of conducting CSR programmes.
“The expenditures were for the personal benefit of the appellant, directly and indirectly, and in some cases for political purposes connected to and calculated to advance the appellant’s political career.
“In any event, the reason or purpose of expenditure after dishonest misappropriation is not relevant to a CBT charge,” the ruling said.
In any case, the judges posed the question as to why should SRC International’s funds flow through the appellant’s personal accounts for IPSB to carry out CSR programs.
“In any event, as correctly observed by the learned trial judge, whether the appellant approved the appointment of IPSB by SRC to undertake CSR work is immaterial as it is irrelevant to the charges against the appellant.
“In fact, the utilisation of the funds in some instances was purely personal as in the case of the payment to contractors for renovations to his private house. This can hardly be said to be CSR work,” they said.
Question remains as to why another document examiner not called since contention of signatures’ authenticity central to Najib’s defence
The judges also took cognisance of Najib’s defence in raising the issue of the authenticity of his signature on seven documents tendered by the prosecution, including a letter of instruction to AmBank for a fund transfer (P277).
They said Najib had testified that the signatures on P277 looks like his but wanted the document to be verified by an expert yet when given the opportunity by the court to do so, over the objections of the prosecution, Najib failed to fully avail himself of that opportunity.
Describing the challenge posed by Najib as perplexing and absurd, the court had noted that Najib never denied the authenticity of his signature at the time when his statement was recorded by the authorities, nor did the defence challenged Najib’s signature on P277 after copies were delivered before trial.
“The allegation is that the signature of the accused on the instruction letter (P277) is forged.
“Indeed it’s perplexing that the appellant chose to challenge the authenticity of his signature on P277, when he had never denied it at the time when his statement was recorded by the Malaysian Anti-Corruption Commission (MACC), nor did the defence challenge the appellant’s signature on P277 after copies were delivered before trial in accordance to section 51A Criminal Procedure Code.
“The appellant confirmed his signature on P277 with the MACC when he was the sitting Prime Minister, when it was entirely open to him to have disputed it as a forgery, if that was indeed the truth.
The judges then said they were in agreement with the prosecution that Najib was the best person to know whether his signature was authentic or forged.
“It is rather absurd for the appellant to claim that he became doubtful of his signature only after discovering that the original documents were not tendered as exhibits in court during trial.
“Whether the document was original or a copy, the appellant at first sight of the document would have known if the signature was his or otherwise.
“Thus, if the appellant genuinely believed the signature to be a forgery, it defies logic for the appellant to confirm issuance of P277 when questioned by the MACC, unless he had signed P277,” they continued.
Apart from P277, the judge also noted that Najib also challenged the authenticity of his signatures on SRC International shareholders’ resolutions which were crucial evidence to the case of the prosecution in proving Najib’s control over the company.
Calling it a belated attack by the defence on the authenticity and admissibility of the documents that were the fulcrum of the prosecution case, they further contended that Najib never challenged the authenticity of the appellant’s signatures on these documents until the defence stage.
“During the defence case the appellant made an application vide a Notice of Motion for a document examiner from Australia to examine these documents to ascertain whether the appellant’s signature on these documents were authentic.
This then culminated in the trial judge allowing the application after a lengthy argument where one Steven J. Strach had in the presence of representatives from both the prosecution and defence conducted a detailed forensic examination of the disputed documents on February 11 and 12, 2020.
“However, via a letter dated February 21, 2020 the defence informed the trial court that an ‘impasse has arisen relating to the terms of Strach’s appointment’ and that the defence was unable to proceed with Strach, and that there would be no report forthcoming from the document examiner, and that Strach would not be called to testify.
“Having stated that, the defence did not call any other expert document examiner in place of Strach.
“Apart from stating that an impasse had arisen between the defence and Strach, no credible reason was given as to the nature of the impasse that had arisen relating to the terms of Strach’s appointment.
“Since the appellant’s contention of forgery of these documents was central to his defence, one would have thought that he would have called another expert in place of Strach.
“However, no other expert document examiner was called,” they wrote.
Najib interfered with SRC International board’s function and acted like a shadow director
The appellate court also agreed with the submission by the prosecution that Najib did not execute his role as Minister of Finance (Incorporated) quo shareholder, when he had in actuality micro-managed SRC International.
Najib had in the trial contended that he was merely exercising his authority in pursuance of his official and representative capacity and thus his actions in that regard cannot be a basis to characterise him a shadow director.
However, this was dismissed by the appellate court in affirming the trial judge’s detailed reasoning as they did not find it to be flawed.
“The normal company governance structure allows for shareholders resolutions to regulate macro management affairs of the company and hence shareholders minutes are usually confined to the macro management aspect of the company’s affairs and do not descend to the level of dictating the day to day operations or micro-management matters, such as, where to open bank accounts, where to place the company funds, who the external auditors and solicitors should be.
“The appellant as MOF Inc, did not act within the scope of a shareholder’s representative, but interfered with the Board’s function and acted more like a shadow director, and by that as an agent within the wide meaning envisaged under section 402A of the Penal Code.
“To this end, it must be noted that the appellant’s role in directing the affairs of SRC through instructions to the Board members was not merely confined to him acting through MOF Inc, as its shareholder, but also as the Prime Minister and Advisor Emeritus as provided in the Articles of Association, whose authority in SRC was not based on the appellant wearing the MOF Inc shareholder’s hat, but independent of that.
“The actions of the appellant that the prosecution contends which go towards establishing the ingredients of the charges was executed by the appellant wearing different hats as PM, FM, MOF Inc. and Advisor Emeritus, which entrenched his commanding position in SRC, which in turn enabled him to direct the SRC Board as its overall master,” they said.
Najib has since filed his appeal to the Federal Court seeking to overturn the Court of Appeal’s unanimous ruling.
Yesterday, Najib failed in his appeal at the Court of Appeal, where he was seeking to overturn the High Court’s July 28, 2020 decision which found him guilty of all seven charges relating to SRC’s RM42 million.
The High Court previously sentenced Najib to 10 years’ jail for each of six charges (three counts each of criminal breach of trust and money laundering), as well as 12 years’ jail and a RM210 million fine with an additional five years’ jail if the fine is not paid for the abuse of position charge.
The High Court had ruled that Najib’s prison sentences would run concurrently or at the same time, which would mean a maximum imprisonment of 12 years for Najib.
Yesterday, a three-judge panel at the Court of Appeal 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.