DEBUNKED

Najib’s 1MDB Trial: Day 12

September 24, 2019

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Judge suspends ruling on whether portions of witness’ testimony are hearsay.

9.30am: Accused Najib Razak enters the court and takes a seat at the front row of the public gallery to await proceedings to begin.

10am: Proceedings begin and Najib enters the dock.

Also seen in court are lead DPP Gopal Sri Ram and other DPPs as well as lead defence counsel Muhammad Shafee Abdullah and other members of the defence team.

10.05am: Najib’s defence team begins submitting their objection against the alleged hearsay in former 1MDB CEO Shahrol Azral Ibrahim Halmi’s Witness Statement.

The alleged hearsay portions deal with Jho Low, such as his alleged closeness with Najib in 2009.

10.03am: Shafee argues that some of Shahrol’s statements about Low are hearsay and cannot be corroborated. He says these statements cannot be admitted as evidence.

10.18am: Najib’s defence submits that Low is not in court to prove what Shahrol claimed the wanted businessperson said.

“(Testimony on) what the accused (Najib) told him (Shahrol), that is allowed as he (Najib is here in court) and the principles of natural justice kicks in.

“But when it comes to Jho Low, natural justice principle is not here as I cannot question Jho Low (on what Shahrol claimed the fugitive financier said to the witness),” Shafee tells the court.

Under law, natural justice refers to the right to fair hearing and rule against bias.

10.38am: Shafee says Shahrol has quoted Low to “save himself” while Low is not available for cross-examination on the witness stand.

“Low is not here…he’s not around to prove it.”

10.45am: The court hears from Shafee that relying on hearsay evidence had seen even superior courts wrongly convicted a suspect.

Citing the 2009 case of Chan King Yu versus public prosecutor, Shafee says that the man who had earlier been convicted by a Magistrate and later by the Court of Appeal for a drug offence, was finally acquitted by the Federal Court.

It was cited that the prejudicial element was a police officer citing in court about a piece of information that he received on the accused, which the Federal Court ruled as hearsay.

Shafee says the Federal Court decided that the court cannot allow a police officer to cite such information in court.

“(Even) two superior courts, and Court of Appeal, convicted this man.

“This is to demonstrate to Yang Arif that even superior court makes mistake,” Shafee submits.

11.03am: Shafee refers to the previous witness Amhari’s description of Low as a master manipulator.

Shafee: He (Low) could still be manipulating…this witness and the true situation at TIA and 1MDB. Why should we take anything that a witness says that Low said as the truth?

The lawyer concludes his submission.

11.05am: In wrapping up his argument objecting the inducement of hearsay evidence in Shahrol’s testimony, Shafee says allowing such evidence can lead to injustice and unfair trial.

He then invites the prosecution to produce in court Jho Low, whom Shahrol had been citing many times in his testimony.

“Yang Arif, I don’t think it’s out of place for me to say, the IGP has said that we (Malaysia) have identified Jho Low, where he is.

“The PM said, the DPM said it. And if the IGP said it, they must have determined where he is.

“I would like to invite Jho Low to be produced, so we can determine the truth.”

11.06am: Court is in recess.

11.30am: Shahrol’s testimony on Jho Low is not hearsay as it has direct bearing on whether Najib had been misled by the wanted businessperson, the court hears.

Sri Ram submits this is because the context of what Shahrol testified hearing Low said will show whether Najib had been misled, which is the crux of the accused’s defence.

“The context in which the statement is made, the charge against the accused (Najib) and the charge is that he used his office and position.

“In that context, his (Najib) defence appears to be he was misled by Jho Low.

‘The prosecution is therefore entitled to show he was not or could not have been misled by Jho Low.

“What Jho Low told the particular witness (Shahrol) is of particular importance,” Sri Ram says.

11.49am: The court hears that Shahrol has committed double hearsay by testifying what Jho Low told him based on what Najib allegedly told the fugitive businessperson.

This is in the submission by Shafee on the defence’s objection to parts of the 8th witness’ Witness Statement involving Jho Low and Najib.

“In quoting my client, there has been double hearsay. He (Shahrol) is not saying what my client is saying, but what Jho Low heard from my client, then tell me (Shahrol).

“This is double hearsay and it is certainly inadmissible,” Shafee argues.

He adds that it is Najib’s state of mind that is relevant and should be proved or disproved, not that of Shahrol or Jho Low.

11.55am: Sri Ram submits that the witnesses’ actions on Low’s instructions and the accused’s conduct and state of mind at the time are all relevant.

He wraps up his submission.

12.10pm: After hearing submissions from both Shafee and Sri Ram on the defence’s objection against inducement of ‘hearsay’ evidence in the trial, the judge says he will suspend his decision.

Justice Collin Lawrence Sequerah says: “As I said earlier, the ruling can be suspended to the end.”

Sequerah then orders for the trial to resume.

12.15pm: Shahrol takes the stand and resumes his testimony under examination-in-chief by Sri Ram.

12.25pm: The court hears from Shahrol that the Sultan of Terengganu Tuanku Mizan Zainal Abidin, who was also the then Yang Dipertuan Agong, wanted his sister to be appointed as a director in Terengganu Investment Authority (TIA) in 2009.

Shahrol, who was the CEO of TIA which later became 1MDB, said this was what Jho Low had told him then.

“After this resolution was done, Jho Low informed that His Highness Tuanku Mizan had decreed for TIA board of directors to appoint his sister to be one of TIA directors to represent the interest of Terengganu state.”

12.36pm: Sri Ram asks the witness about letters that he signed.

Witness then reads his statement.

Sri Ram: Why was the government guarantee letter prepared by a private firm?

Shahrol: It is faster.

12.40pm: Shahrol testifies that they all worked at a frantic pace in the obtaining of government guarantee for TIA bonds issue in 2009.

“The pace was extremely frantic. We were moving at superspeed because of a sense of urgency.”

Shahrol: We needed to prove something to the stakeholders that we can be trusted to deliver.

12.50pm: The court hears that Jho Low had in 2009 loaned the company’s precursor some RM70,000 to increase its share capital.

Shahrol said Low had transferred the money into his bank account for this purpose.

He said the RM70,000 was regarded by the company as a form of director’s loan and was later reimbursed by TIA through Shahrol’s account.

However, according to the witness, Low had told Shahrol “later, later” when informed that the reimbursement is ready to be transferred back to Low.

“After a while, I stopped asking. I then used the money for charity purposes.”

Shahrol is then asked by Sri Ram if he remembers what was among the charities that he had channelled the money to.

Shahrol then tells the court that one he could remember was sponsoring orphans to watch the Upin dan Ipin performance at Istana Budaya.

12.53pm: The court hears from Shahrol that Tengku Rahimah Puteri, who is the sister of Tuanku Mizan Zainal Abidin, was appointed as a director of TIA on May 17, 2009.

Shahrol testifies that the appointment was made through a directors’ resolution signed by another director, Ismee Ismail, and himself.

12.55pm: The court breaks for lunch.

2.33pm: Court resumes.

Shahrol reads his witness statement.

2.40pm: Shahrol tells the court that there was no request made by the state government to include its representative in TIA Bhd’s board of directors.

Shahrol in his testimony says the absence of Terengganu representative was despite TIA being fully owned by the Terengganu Menteri Besar Incorporated.

“This was because there was no request from Terengganu MB whatsoever to the company during that material time.

“Thus, TIA had continued its bonds issuance plan as already agreed by TIA’s board of directors.

“At that time, all dealings with the Terengganu state government was also managed by TIA advisers, namely Jho Low and Dato’ Aziz Akhir.

“I myself had never dealt with the Terengganu state government.”

For the record, Aziz is the husband of Tengku Rahimah Puteri, who is the sister of Terengganu ruler, Tuanku Mizan Zainal Abidin.

2.47pm: Najib ordered the TIA bond issuance to proceed despite the Terengganu palace’s directive for it to be suspended, the court hears.

Shahrol says that Najib issued this order while the witness was at his official residence in Langgak Duta on the night of May 22, 2009.

Shahrol says Najib had told him “You go ahead, I will talk to Tuanku”.

“I received this as an order and mandate from the prime minister as finance minister to proceed with the TIA bonds because he was the minister responsible in giving the government guarantee (for the bond issuance),” Shahrol says.

The witness said this is how Najib reacted when Shahrol told him that Sultan Mizan had directed for the TIA bond issuance to be suspended pending the fulfilment of certain conditions.

Shahrol testifies that Jho Low was also there at Najib’s official residence at the time.

3pm: The court hears that TIA bonds worth RM5 billion were sold for RM4.369 billion on May 26, 2009, through an agreement between the company and AmInvestment Bank Bhd.

Shahrol says the difference included the fees of between RM100 million and RM200 million to AmBank as lead arranger.

However, he cannot recall the exact amount of fees that went to the bank.

Shahrol, to a question by Sri Ram, tells the court that he was informed by police that the two companies belonged to Jho Low.

He says the police told him this when he was called to facilitate investigations last year on the bonds that were sold to the two companies based in Singapore and Hong Kong.

“I can’t recall their names now, who then resold the bonds at par value back to entities in Malaysia,” he tells the court.

The remaining amount of the difference between RM500 million and RM600 million, according to Shahrol, was due to the bonds being sold at a discount.

Shahrol testifies that TIA was not informed at that time to whom the bonds were sold with a discount.

3.25pm: The court hears that TIA Bhd had proposed its evolution into Malaysia Development Bhd (MDB) based on feedback from Mubadala CEO, Khaldoon Khalifah Al Mubarak.

Shahrol says the proposal was made to Najib through a letter dated June 25, 2009.

According to Sharol, Khaldoon was on the TIA board of advisers and later became a member of 1MDB’s board of advisers but never attended any official meeting.

Shahrol says TIA had asked for feedback on the change of concept from TIA to 1MDB from Mubadala, which was a world-renowned sovereign wealth fund.

3.37pm: Najib at times indicated to Shahrol to follow Jho Low’s instructions, the court hears.

Shahrol tells Sri Ram this during the examination-in-chief.

Sri Ram: Did he (Najib) tell you to follow Jho Low’s instructions?

Shahrol: Najib never told me to follow Jho Low. However, he indicated on one or two occasions, when I queried Najib on bringing back funds entrusted to SRC International. This was most likely in 2010 or 2011, in which Najib told me to talk to Jho (Low).

3.47pm: Jho Low’s work pattern in relation to 1MDB was to have pre-discussions with decision-makers before formalisation to ensure no objections, the court hears.

Shahrol says the official letters that followed were a mere formalisation of the discussions he had with Jho Low, who had already discussed with Najib.

“It is the formalisation of discussions I had with Jho Low, which he had already discussed with various stakeholders, including Najib.

“In that month of July 2009, after only working three to four months alongside Jho Low, I recognise a working pattern which is always that there is pre-discussion with decision-makers to ensure that whatever has been put down or will be put down (on paper) in the letters had already been agreed to and will receive no objection.

“This is to allow TIA and 1MDB to move very quickly and eliminate typical back and forth,” Shahrol said.

When Sri Ram asks whether it is like a boomerang, Shahrol without missing a beat replies “You said it, not me”.

4pm: Shahrol tells the court that in his years as 1MDB CEO, all major decisions as per the company’s Article 117 of Memorandum of Association were delivered to him through Jho Low.

According to his testimony, Article 117 of 1MDB’s M&A stipulated that all decisions by the company regarding its financial activities, investments, restructuring, interests, securities and national policies must take into account the view of the prime minister as representative of the federal government.

Shahrol testifies that Jho Low would always email him or used Blackberry Messenger to send documents of talking points and action plans.

This includes details such as the objectives of TIA, rationale behind loan taking and government-to-government relationship between Petrosaudi International and 1MDB, as well as Aabar/IPIC and 1MDB.

“Sometimes or whenever the need arose, we would also go to his (Jho Low) house at Jalan Kia Peng where Jho Low would explain on further steps that I have to take.

“Jho Low would say that these actions were instructions that had received blessing from Datuk Seri Najib, who carried the mandate of Article 117 to be accomplished by all of us who are in the working team.”

4.15pm: Najib sought an amendment to 1MDB’s Memorandum and Articles of Association (M&A) to remove ambiguity that the prime minister is the origin of the sovereign wealth fund’s authority.

Shahrol tells the court that the change of ‘federal government of Malaysia’ to ‘prime minister’ by Jho Low in 1MDB’s M&A was to achieve this purpose.

“I remember that the change from ‘federal government of Malaysia’ to ‘prime minister’ was an order from Jho Low who said Najib wanted the amendment.

This was to ensure there is no ambiguity that the origin of 1MDB’s authority is only from the prime minister. This change was made on Aug 11, 2009,” Shahrol says.

4.27pm: Shahrol continues giving evidence.

Shahrol: Najib was the ultimate decision-maker. He has the ultimate power to make every decision.

He has the power to appoint the board and advisers.

I would also seek advice from Jho Low for any urgent matters. He was the unofficial adviser for TIA and 1MDB.

Najib can also sack the CEO, CFO and the CIO in line with article 117 M&A.

Court adjourns to 9.30am tomorrow.

Earlier reports:

Sept 23, Najib’s 1MDB Trial: Day 11

Sept 19, Najib’s 1MDB Trial: Day 10

Sept 18, Najib’s 1MDB Trial: Day Nine

Sept 18, Najib’s Ex-Aide Led MACC to Raid on Jho Low’s Apartment

Sept 18, Najib’s 1MDB Trial Halted Briefly for Najib to See Eye Specialist