Najib’s counsel, Muhammad Shafee argues that the striking out application should be allowed in order to prevent oppression and an abuse of court process against the accused.
The Kuala Lumpur High Court has fixed Aug 7 to deliver its decision on former Prime Minister Datuk Seri Najib Razak’s bid to strike out his charge of tampering with the 1Malaysia Development Bhd (1MDB) audit report.
Justice Mohamed Zaini Mazlan set the date after hearing submissions from ad hoc prosecutor Datuk Seri Gopal Sri Ram and Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah today.
The defence team made the striking-out bid on the basis that Najib’s charge under Section 23 of the Malaysian Anti-Corruption Commission (MACC) Act did not disclose an offence and was “oppressive” against the former prime minister.
Previously, Mohamed Zaini set today to hear the striking out application.
During submissions, Muhammad Shafee argued that the striking out application should be allowed in order to prevent oppression and an abuse of court process against the accused.
He argued that oppression and abuse of the court process were seen in the prosecution being allowed to amend the 1MDB audit report tampering charges against Najib, among others.
On June 24, the court allowed the prosecution’s application to amend the charge against Najib as it ruled he would not suffer from any prejudice or injustice due to the amendment.
“There is a serious defect in the amended charge, rendering it groundless. The prosecution has no glimmer of a hope to secure a conviction against my client.
“There is no case…why are they hassling my client. It is an abuse of process to put an accused through the hardships of a trial when the charge is pregnant with flaws.
“There can be an abuse of (court) process, so it (the striking out bid) is to safeguard the accused from oppression or prejudice.
“This court has jurisdiction to either strike out or stay the charge in order to prevent the abuse from continuing.
“We say there is a serious defect in the charge, making the charge groundless,” Shafee submitted.
Shafee then made reference to the witness statements of three prosecution witnesses that he claimed bolstered the notion that there was no case against Najib and thus the charge should be struck out.
Gopal Sri Ram submitted that there was a very high threshold to be met before an accused could be said to have been oppressed or suffer from an abuse of the court process.
The former federal court judge argued that an accused being merely being hit with a charge cannot be said to have been oppressed.
“Oppression must be something more than a mere bringing of a charge (against the accused). It (must) involve the surrounding circumstances around the charge,” Sri Ram said among others.
Najib is accused of using his position to obtain immunity from legal action by instructing for amendments to be made to the finalised report before it was tabled to the Public Accounts Committee (PAC).
Former 1MDB CEO Arul Kanda Kandasamy is accused of abetting in the crime.
Sri Ram also dismissed Shafee’s arguments that the charges against Najib should be dropped based on settled cases by telling the judge that the references cited by the lawyer were inapplicable.
“The cases he cited are as useful to your lordship as footwear is to a limbless torso.
“Our charge says the accused abused his position to obtain gratification. The high test of oppression and abuse of process has not been met in their application to dismiss this charge,” he said, much to the amusement of everyone in the courtroom.
Sri Ram argued that the striking-out bid should be dismissed as the prosecution was still at the preliminary stage of presenting evidence before the court.
He said only seven witnesses, including former chief secretary to the government Ali Hamsa and former auditor-general (A-G) Ambrin Buang, had testified so far.
The defence has not completed cross-examining four crucial witnesses – Ali Hamsa, National Audit Department (NAD) director Nor Salwani Muhammad, Ambrin Buang and former NAD audit director Saadatul Nafisah Bashir Ahmad.
Sri Ram said whether the charge, as it stands, is good in law or otherwise, cannot be determined at the current stage.
“Najib must prove that the prosecution’s actions against him, through the charge, are very oppressive,” he added.
Earlier, at the start of proceedings today, Najib was seen sitting in the dock as Shafee was about to start submitting for the defence.
Zaini noticed Najib in the dock and asked Shafee what was the mode of the striking out application, to which Shafee replied it was via a notice of motion.
“This is a (hearing of a) notice of motion so there is no need for your client to be sitting in the dock,” the judge informed Shafee as today was not set to hear the main trial of the 1MDB audit report tampering case.
The veteran lawyer then spoke briefly to Najib after which the accused exited the dock and took a seat in the front row of the public gallery.
Najib, 67, is accused of abusing his position to order amendments to the 1MDB final audit report to avoid any action being taken against him while Arul Kanda is charged with abetting Najib in making the amendments to the report.
Both of them were charged under Section 23(1) of the MACC Act 2009, which provides a jail term of up to 20 years and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.
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