DEBUNKED

Najib’s SRC Trial: Defence Lawyers Argue It Wasn’t Najib, Blame Jho Low and Nik Faisal

June 1, 2020

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Defence contends that prosecution did not prove Najib’s control of SRC funds.

As the SRC International Bhd trial involving Datuk Seri Najib Razak inches to its end stages, lawyers representing him today argued that the former prime minister had done no wrong.

Instead, his defence team said if anyone should be blamed for misappropriating RM42 million of the company’s money it should be third parties – namely notorious fugitive businessman Low Taek Jho @ Jho Low and former SRC chief executive officer Nik Faisal Ariff Kamil.

Najib’s lawyer, Harvinderjit Singh, contended that the prosecution had failed to prove its case against the accused beyond all reasonable doubt.

In a lengthy oral submission which began before High Court Judge Mohd Nazlan Mohd Ghazali at 9.30am today, Harvinderjit also touched on the element of knowledge in terms of the RM42 million which had been banked into his client’s accounts.

He said Najib did not have any knowledge of this transactions which happened in December 2014 and February 2015.

Referring to an affidavit in a civil suit against former MCA president Tun Ling Liong Sik where Najib had admitted receiving the RM42 million, Harvinderjit said that did not amount to an admission of guilt.

He said the affidavit cannot be relied on to convict his client of corruption and criminal breach of trust charges.

The defence argued that Najib had all the time thought the money was part of a donation from the late King of Saudi Arabia but only knew in 2016 that the RM42 million was from SRC following media reports.

Najib, 67, is facing charges of using the office of the prime minister for gratification, criminal breach of trust (CBT) and money laundering.

According to the charges, Najib as a public officer, namely Prime Minister and Minister of Finance, had used his office for gratification amounting to RM42 million by involving himself in the decision of the Government of Malaysia on August 17, 2011 and February 8, 2012 to provide SRC with Government Guarantees amounting to RM4 billion.

He was accused of committing the offence under Section 23 of the Malaysian Anti-Corruption Commission (MACC) Act.

On the CBT charges, Najib was accused of misusing the money under Section 409 of the Penal Code.

On the third charge under Section 4(1)(b) of the Anti-Money Laundering Act, Najib was accused of receiving proceeds of unlawful activity amounting to RM42 million in his account. His trial began on April 3, 2019 and spanned over 57 days, during which 57 prosecution witnesses were called.

The prosecution closed its case on August 27 last year before the court ordered Najib to enter his defence on all the charges on November 11, 2019.

Nazlan then ruled that the prosecution had established a prima facie case against the former Umno president.

He ruled that on the MACC charge, there was no dispute that Najib was a public officer and had involved himself in the Cabinet meetings on August 17, 2011 and February 8, 2012.

He said Najib had therefore ‘taken an action or decision’ and the prosecution had thus established its case under the MACC Act.

He said the second requirement of the Act where Najib was accused of acting ‘in relation to a matter he had an interest in’ had also been established as the accused’s interest was beyond his professional and public office and was instead a private and personal interest.

Nazlan said Najib was behind the establishment of SRC which was designed to be and did in fact become a vehicle utilised for his own private advantage through his overarching control over the company.

He ruled that the existence of this interest in SRC could be seen from a series of acts and conduct of Najib related to the setting up of SRC, the RM4 billion loan given to SRC by the Retirement Fund Inc (KWAP), the government guarantees and other events which demonstrated that the accused had acted beyond his public office and in pursuance of a private interest in the company.

The judge said it was obvious that Najib had clearly acted in conflict between his public duty and his private interests in SRC in relation to matters relating to the company including the Cabinet Meetings to approve the government guarantees.

“Unlike other MOF Inc companies, Najib wielded considerable powers and control over SRC from the time of its incorporation including the powers to appoint and remove directors, amending the company constitution to solidify his position.

“He did this by creating the position of Advisor Emeritus. He further issued shareholder resolutions which compelled the board of SRC to follow all important decisions in the company,” he said, adding all evidence established showed that the acts were not in the interest of the government.

Ruling that the prosecution had established that Najib indeed used his position for gratification, Nazlan said the RM42 million was gratification the accused intended to obtain and did in fact obtain.

He said there was in existence a continuous plot pursued with criminal intent and Najib had abused his position by participating in the Cabinet Meetings for gratification which materialised when the RM42 million was received in his accounts.

On the CBT charges, he said Najib’s overarching control over SRC International as the sole shareholder and Advisor Emeritus was all encompassing.

He said the Board of SRC were at all times accustomed to act in accordance with Najib’s instructions and shareholder resolutions which formed the basis of their decisions.

Nazlan said given the controlling position of Najib as prime minister, shareholder resolutions and as Advisor Emeritus, he (Najib) was found to have true control and ultimate power in SRC.

He ruled that evidence also showed there was dishonest misappropriation of RM42 as instruction to transfer the money was done on the authorisation of a link person to Najib.

He said Najib had knowledge that money was deposited into his accounts was from SRC based on several factual circumstances.

On the AMLA charges, he said the receipt of the RM42 million into Najib’s accounts was established in the documentary and oral evidence relating to the bank records.

He said Najib had knowledge that the money was from the account of SRC and therefore proceeds of unlawful activity.

Alternatively, he said Najib had failed to take reasonable steps to ascertain whether the RM42 million was the proceeds of unlawful activity.

The defence case began on December 3, 2019 and spanned 31 days. Najib chose to testify under oath and his lawyers called a further 18 witnesses before closing their case on March 11.

In his defence, Najib argued that the decision to approve the setting up of SRC was made by the Economic Planning Unit (EPU) without compulsion.

He said the reasoning behind the establishment of the company was towards ensuring continuous security of the supply of energy.

Najib said this was a key national area of development identified in the 10th Malaysia Plan and the Energy Policy.

His lawyers argued that Najib endorsed the decision in furtherance of national interests.

On the issuance of the government guarantees, he argued that this was done in pursuance of the national interests intended to be met through SRC’s proposed activities.

He argued that all due processes were complied with and at each stage at KWAP and at Ministry of Finance (MOF) and subsequently at both Ministerial and Cabinet level, decisions were made by all parties based on considerations to further the national interests intended.

His lawyers said Najib participated in the Cabinet Meetings as per the usual processes in government and his actions were not to pursue any private interests.

They argued that Najib did not act corruptly or with any intention to obtain gratification from funds of SRC as it would be absurd given that SRC was an MOF Inc company and such transactions would be easily discovered.

Najib also dismissed instructing anyone to transfer funds into his accounts and contended that he always believed that funds in his accounts in 2014 onwards were from further donations being made to him by Arab royalty.

Najib’s team argued that the accused’s utilisation of funds in the accounts since 2011 were not towards personal enrichment or wealth but were towards corporate social responsibility (CSR) initiatives for political, social, communal and charitable causes and also for the 13th General Election (GE13).

Najib’s lawyers will continue with their submissions tomorrow. – NST

Earlier reports:

Mar 11, Najib’s SRC Trial: Day 90

Mar 10, Najib’s SRC Trial: Day 89

Mar 9, Najib’s SRC Trial: Day 88

Mar 9, Latheefa and Shafee Visibly Upset with Each Other

Mar 9, Apandi Stands by 2016 Statements Clearing Najib of Wrongdoing

Mar 5, Najib’s SRC Trial: Day 87

Mar 4, Najib’s SRC Trial: Day 86

Mar 3, Najib’s SRC Trial: Day 85

Mar 2, Najib’s SRC Trial: Day 84

Feb 27, Najib’s SRC Trial: Day 83