Prosecution: Najib’s lawyers treated final appeal hearing with complacency, entitlement, expecting adjournment

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New lawyers’ obstinate insistence that they needed more time and an adjournment to prepare for the said appeals was a strategy gone wrong.

  • New lawyers overly confident that the application for adjournment would be allowed
  • Najib’s lawyers had no ‘Plan B’ if the application to adjourn the appeal hearing was denied

The granting or refusal of an adjournment is an exercise of discretion by the Federal Court which Datuk Seri Najib Razak’s defence counsel had treated complacently with a sense of entitlement during the final appeal hearing last year, prosecutors said today.

Telling the Federal Court during the former prime minister’s bid to have the apex court’s decision reviewed, ad hoc prosecutor Datuk V Sithambaram said the exercise of discretion does not fall within the purview Rule 137 of the Rules of the Federal Court 1995 — which the present review is based on — since Rule 137 is subjected to the most stringent of controls.

“The inherent jurisdiction of the Federal Court pursuant to Rule 137 cannot be construed as conferring unlimited power to review its earlier decision for whatever purpose. The Court must not be too eager to invoke the rule.

The court must be satisfied that the case to be reviewed falls within the limited categories of cases that warrant the invocation of Rule 137,” he explained.

Touching on complacency, Sithambaram said Najib’s previous solicitor and counsel, Zaid Ibrahim Sufian TH Liew & Partners (ZIST) and Datuk Hisyam Teh Poh Teik (both elected after lead counsel Tan Sri Muhammad Shafee Abdullah was discharged), had expected Najib would be entitled to an adjournment despite clear instruction of the Federal Court that the main appeals would proceed on the scheduled dates.

He said Najib was well aware since April 2022 that the hearing was four months later in August 2022, with the Federal Court entirely justified in proceeding with the appeal and refused postponement.

“We submit that Messrs ZIST and Hisyam’s obstinate insistence that they need more time and an adjournment to prepare for the said appeals is a strategy gone wrong.

Shafwan Zaidon

“Despite having read the records of appeal, some six to eight weeks before the hearing of the said appeals, Datuk Mohd Zaid Ibrahim of Messrs ZIST maintained a blind confidence that they would succeed in the said motion for additional/further evidence and for the disqualification of Justice Datuk Mohd Nazlan Mohd Ghazali.

“Messrs ZIST and Hisyam came to court expecting adjournment to be granted to the applicant as a matter of right,” he said at today’s hearing at the Palace of Justice.

Citing Rule 6 of the Legal Professional (Practice and Etiquette) Rules 1978, which clearly provides that an advocate and solicitor shall not accept a case unless they are reasonably certain of being able to represent their client at the predetermined hearing dates, he said circumstances seems to suggest the brief was accepted to seek an adjournment of the appeals instead.

Sithambaram explained that by convention, lawyers would also prepare a ‘Plan B’ to submit their case nevertheless in the event where their bid for adjournment is dismissed by the court.

In Najib’s case, Sithambaram said there was no “Plan B” and his defence lawyers subsequently filed an application to recuse the Chief Justice from hearing the appeals and have them heard before another panel when the adjournment sought was not successful.

“This was again nothing but another desperate attempt to scuttle the hearing of the appeals,” he said.

Ultimately, Sithambaram said Rule 137 cannot be used as a further avenue of appeal or to review the correctness of the court’s own earlier judgement on the issue of fact or law as ultimately, they are questions of opinion.

“We submit that the applicant had failed in substantiating that the Federal Court’s decision delivered on August 16 and 23 last year resulted in injustice or is the result of abuse of court process,” he said.

A five-member panel presided over today’s hearing with Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli leading; Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzariah Bujang, Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais on the bench.

Following his incarceration, Najib had since sought to challenge the Federal Court’s five-member bench’s August 2022 unanimous decision in affirming his conviction, sentence and fine meted out by the High Court for the misappropriation of RM42 million of SRC International Sdn Bhd fund.

On July 28, 2020, Justice Datuk Mohd Nazlan Mohd Ghazali found him guilty of seven charges: three criminal breach of trust charges, three money-laundering charges and one abuse of power charge at the High Court.

Mohd Nazlan, who is now a Court of Appeal judge, had sentenced Najib to 12 years in jail and fined him RM210 million in default five years imprisonment and his decision was upheld by the Court of Appeal on Dec 8, 2021. – MMO