Najib’s lawyers’ miscalculated strategy

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The prosecution in Datuk Seri Najib Razak’s SRC International case has ripped into his application for a review of the Federal Court’s decision that confirmed his guilt and sentence.

Deputy public prosecutor Mohd Ashrof Adrin Kamarul said Najib’s application was without any merit and should be rejected.

He said the federal court had rightly decided to uphold Najib’s conviction and sentence, and his arguments of being denied a fair trial were misplaced.

Ashrof said Najib should look at the way his own lawyers handled the appeal, pointing out that apart from acting with blind confidence, they had also relied on mere speculation that their bid to adduce additional evidence at the apex court would succeed.

He said this miscalculated strategy that the federal court would adjourn the appeal hearings had blown up in their faces when the five-member bench outrightly rejected their arguments.

In his affidavit in reply to Najib’s motion for a review, Ashrof said there were transcripts to show the background facts leading to how Najib had dropped his lead counsel Tan Sri Muhammad Shafee Abdullah at the last minute and appointed Messrs Zaid Ibrahim, Suflan, TH Liew and Partners (Messrs Zist), and senior counsel Datuk Hisyam Teh Poh Teik days before appeal hearing at the Federal Court from Aug 15 to 23.

He said the transcript shows the game plan of the newly appointed solicitors in their preparation of the appeal, and their disproportionate emphasis on the motion to adduce additional evidence to recuse trial judge Datuk Nazlan Mohd Ghazali rather than arguing on the facts proper.

“The transcript is not mere opinion but a confession of the mind-set of the newly appointed counsels in terms of strategy and priorities in relation to how they wanted to handle the appeal.

“Clearly, the transcript shows the newly appointed counsel’s blind confidence that they would succeed in the motion for additional evidence and for the disqualification of Justice Nazlan.

“It further shows their complacency in dealing with the substantive appeals and their unwarranted expectation that an adjournment will be granted as a matter of right,” he said.

Ashrof said the Legal Profession Rules 1978 does not give absolute freedom to an advocate and solicitor to accept any brief without due consideration to the hearing date.

He said an advocate and solicitor is required to make every effort to be ready for trial on the trial dates but in Najib’s case his solicitors accepted the brief knowing that they would not be ready to proceed with the appeals.

Ashrof said Najib’s new counsels, along with his lead counsel Hisyam, his two assistants, two counsels from India and counsel from Singapore had at least eight weeks to prepare for the substantive appeal.

However, he said they chose to focus only on the motion to adduce additional evidence to recuse Nazlan and wantonly ignored the substantive appeals which were fixed for hearing.

“The appeals were scheduled for hearing four months earlier at the behest of the applicant’s solicitors and the court cannot be faulted for proceeding with the appeals as scheduled.

“Based on this, Najib’s application is devoid of merit and has failed to provide the necessary justification for the court to agree for a review,” he said.

Ashrof stated this in his affidavit in reply to Najib’s motion to review the Federal Court’s decision that confirmed his guilt and sentence in the SRC case.

In the application, Najib is seeking a review of the Aug 16 decision by the Federal Court to reject his application to adduce further evidence concerning Justice Nazlan.


Najib is seeking a review of the apex court’s decision on the same day to dismiss his bid to postpone his appeal hearing, and also a review of the court’s decision on Aug 23 to recuse Chief Justice Tun Tengku Maimun Tuan Mat.

He is also seeking a review of the court’s decision on Aug 23 to affirm his conviction and sentence. He is seeking a panel of seven judges in a bid to overturn the decision.

However, before a review can be heard, Najib will have to first gain leave from the Federal Court for the motion to have the review heard on its full merits.

A review can be heard under Rule 137 of the Federal Court Rules where the court could use its inherent jurisdiction to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the court process.

However, it is extremely rare that the apex court grants leave for a review as the threshold is high where the applicant will have to show that injustice has been done.

Najib, 69, was found guilty of abuse of power in relation to a RM4 billion loan given by Retirement Fund (Inc) (KWAP) to SRC between August 2011 and March 2012.

He was also convicted of criminal breach of trust and money laundering involving RM42 million of SRC funds between Dec 26, 2014, and Feb 10, 2015.

For this, Najib was sentenced to 12 years’ jail and fined RM210 million by the High Court, with the jail sentence and fine being upheld by the Court of Appeal on Dec 8 last year, and further affirmed by the Federal Court on Aug 23. – NST