Prosecution Insists 1MDB Ex-CEO’s Claims of Jho Low’s Remarks Exempt from Hearsay Rule

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The prosecution in the 1Malaysia Development Berhad (1MBD) corruption trial has tried its best to produce fugitive businessman Low Taek Jho @ Jho Low to testify in the trial but its efforts have failed, the High Court was told today.

Deputy public prosecutor Datuk Seri Gopal Sri Ram said the prosecution through the Malaysian Anti-Corruption Commission (MACC) was unable to find the Penang-born businessman and this will be shown throughout the trial.

He said this when submitting on evidence in the testimony of former 1MBD chief executive officer (CEO) Mohd Hazem Abdul Rahman which Najib’s lead defence counsel Tan Sri Muhammad Shafee Abdullah said was hearsay.

Shafee has argued that parts of Hazem’s statement involving Jho Low and Najib’s knowledge of the fugitive businessman’s plan to siphon millions of Ringgit from the sovereign wealth fund was merely hearsay.

He also quoted a few lines from the witness statement which outlined that Jho Low had told Hazem that 1MDB was formed to inject funds to Umno when Najib was its president.

Sri Ram argued that Hazem should be given an opportunity to testify first and the court could decide on hearsay evidence at the end of the prosecution’s case.

He said the witness testimony will not be comprehensible if some excerpts from it were removed.

However, Shafee argued the court should not wait (to make the decision) at the end of the prosecution case.

“The court should make the decision whether this paragraph should be omitted when and where the matter arises.

“Hearsay statement cannot be given in examination-in-chief or at any given time. What is inadmissible remains inadmissible,” he said.

Shafee will continue his submission on the issue on Thursday.

Shafee on Monday made an oral application to drop certain paragraphs in Hazem’s 118-page witness statement.

Hazem was the 1MDB chief operating officer before he took over as the CEO on March 25, 2013.

He stepped down from the post in 2015.

Why the prosecution say Jho Low’s remarks to ex-1MDB CEO are not hearsay

Today, Sri Ram argued that the current situation in which those such as Low could not be located meant that what Mohd Hazem claimed to have heard from Low would fall under Section 32(1)(b) of the Evidence Act, which is an exception to the hearsay rule.

In other words, Sri Ram was arguing that the parts of Mohd Hazem’s witness statement that Shafee was objecting to would not be hearsay as they come within Section 32(1)(b).

Under Section 32(1)(b), written or verbal statements of relevant facts made by persons in various categories — such as those who are dead or cannot be found or whose attendance in court as witness cannot be procure without unreasonable delay or expenses — would be considered relevant facts under the law, when the statement was made by such persons in the ordinary course of business.

When arguing why the statements which Mohd Hazem attributed to Low and other individuals should come under Section 32(1)(b), Sri Ram said these were statements made to the former 1MDB CEO in the ordinary course of business.

Sri Ram pointed out that Najib’s legal team already accepted that various individuals involved in the 1MDB affair such as Low, Terence Geh, Jasmine Loo cannot be found and have been charged in absentia, while the 1MDB investigation officer would be able to show that attempts were made to find them but they could not be found.

What the Federal Court said about Section 32(1)(b)

Shafee claimed today that the hearsay exception of Section 32(1)(b) did not apply to Mohd Hazem’s witness statement, but Sri Ram cited a 2011 Federal Court decision to back his argument that this provision applies to the former 1MDB CEO’s evidence.

Sri Ram read out excerpts of the Federal Court judgment, noting that Section 32(1)(b) was stated as covering both written and verbal statements.

Also reading out the 2011 Federal Court judgment which further cited two other court cases, Sri Ram noted the Federal Court as having observed that communication in the “ordinary course of business”  indicates those made in the routine of business, and that it need not be in any formal business setting and it could even be a communication between a husband and wife in one of the cases cited.

Sri Ram then went on to say that the Section 32(1)(b) provision applies to Mohd Hazem’s witness statement, and that the parts that Shafee had objected to — including Low’s alleged remarks to Mohd Hazem — should be admitted in court as evidence.

“So Your Lordship would have to look at all the circumstances of the case to decide whether or not it’s in the usual course of business for Jho Low to make these statements, and whether it’s a routine they followed throughout the period in which they were in communication. For those reasons, we say it is incorrect to submit that that section can never apply.

Miera Zulyana

“If communications between husband and wife can be in the ordinary course of business, then surely persons who are dealing with company affairs could be in the ordinary course of business. That would be our argument. So, it would be wrong to say it can never apply,” Sri Ram then said.

Miera Zulyana

Najib, 67, is facing four charges of having used his position to obtain gratification totalling RM2.3 billion in 1MDB funds and 21 counts of money laundering involving the same money.