Najib’s SRC appeal: No to introduce extra evidence, postpone hearing

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Federal Court rejects Najib’s bid to adduce fresh evidence and defer the hearing by at least three to four months.

FMT

Datuk Seri Najib Razak has failed to convince the Federal Court to allow him to adduce additional evidence in his final appeal against his conviction of misappropriating funds from SRC International Sdn Bhd.

The five-judge panel led by Chief Justice Tun Tengku Maimun Tuan Mat unanimously dismissed Najib’s attempt to introduce evidence related to recent discoveries concerning trial judge Datuk Mohd Nazlan Mohd Ghazali’s alleged conflict of interest.

Tengku Maimun ruled that Najib’s application lacked merit as the evidence his defence team claimed to be fresh has no relevance to the former prime minister’s knowledge of the RM42 million, which is the main issue in the SRC International case.

She said there was nothing to show any element of bias or conflict on Nazlan’s part from his previous employment in Maybank.

“It is not as if justice Nazlan’s (Mohd Nazlan Ghazali) previous role was a secret that his subsequent involvement came as a surprise.

“We also find no nexus of justice Nazlan’s previous employment with the bank and charges against the applicant as to suggest a conflict of interest.”

Tengku Maimun said the panel also disagreed that there would be a miscarriage of justice if the application was dismissed.

“For all the reasons we have stated, we find that the applicant has failed to cross the threshold under Section 93 of the Court of Judicature Act.

“The motion is hereby dismissed. We shall now proceed with the main appeal,” she said.

The other four judges on the bench were Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.

Leading the prosecution is ad hoc prosecutor V Sithambaram, who was assisted by deputy public prosecutors Donald Joseph Franklin, Sulaiman Kho Kheng Fuei, Mohd Ashrof Adrin Kamarul and Manjira Vasudevan.

Lawyers Hisyam Teh Poh Teik, Liew Teck Huat and Rueben Mathiavaranam appeared for Najib.

The apex court’s decision has dealt a major blow to Najib’s attempt to get a retrial or overturn the Kuala Lumpur High Court’s decision to convict and sentence him to 12 years’ jail and RM210 million fine for misappropriating RM42 million of SRC International money.

Meanwhile, the Federal Court has refused Najib’s application to postpone his final appeal, after making it clear that justice delayed was justice denied.

Tengku Maimun ordered the appeal hearing to begin at 9.30am on Thursday.

She said the defence application to postpone the hearing by three to four months just because they were not ready to proceed was unacceptable.

“To put it bluntly, the defence seeks an adjournment of these appeals for the simple reason that they are not prepared.

“However, the fixing of the dates of this appeal has been known from as far back as the case management in April, which is some four months ago.

“Parties were then advised that the Court would proceed on the dates fixed,” she said.

Touching on Najib’s decision to change counsel at the last minute, she said this was done with full knowledge of the dates that had been fixed for hearing.

She said it was obvious that the appellant took it upon himself to discharge his solicitors to the present ones, Messrs Zaid Ibrahim Suflan TH Liew & Partners (Messrs Zaid Ibrahim) who in turn appointed Hisyam Teh Poh Teik as lead counsel.

She pointed out that the court had no less than four times reminded the parties that the appeal would proceed as scheduled.

On Najib’s counsel’s arguments that he was not prepared to proceed with the case, Tengku Maimun cited Rule 6(a) of the Legal Profession (Practice and Etiquette) Rules 1978 which stipulated that an advocate and solicitor must not accept a brief he is reasonably certain of not being able to appear and represent the client on the required day.

“The general rule is that counsel shall make every effort to be ready for trial and appeals on the day fixed.

“It is the appellant’s right to discharge his former solicitors and appoint new ones. This is his right to do so but he cannot, after having made that decision, turn around and say that his new lawyers are not ready to proceed with the hearing of the appeals.

“The new lawyers too, having accepted the brief, are not entitled to say they need more time to prepare knowing fully well that the dates had been fixed well in advance,” she said.

Tengku Maimun also pointed out that Article 8 of the Federal Constitution and the Rule of Law demanded that the appellant be treated just like any other accused.

“As such, we state again that while the appellant is entitled to his right to change his counsel, he is not entitled to make this choice at the expense of the Court, the prosecution or the entire justice system,” she said.

Earlier, Hisyam had pleaded for three to four months to prepare for the appeal.

Hisyam had requested for an adjournment to the hearing of the appeal after stating that he needed time to prepare as he had just being appointed as lead counsel for the case.

“It is my fault…. It is not the appellant’s. I am aware of the rule of ethics.

FMT

“I hope the court can consider giving me sufficient time,” he said, adding this was no ordinary appeal, involving volumes of records concerning the case.

Hisyam added he had never asked for adjournments in the four and a half decades he had been practising as a lawyer.

The senior lawyer said he needed three to four months, adding this was not too long a time to ask given the circumstances.