KUALA LUMPUR (April 8): The Court of Appeal bench hearing former premier Datuk Seri Najib Razak's appeal against the guilty verdict in his SRC International Sdn Bhd graft trial reminded his defence team that they are supposed to finish submissions for their case today and that they should stop repeating what they had submitted previously.
Justice Datuk Abdul Karim Abdul Jalil, who is leading the three-member bench, interrupted submissions by counsel Harvinderjit Singh at times, asking him to move on as the issue he was covering had been submitted at length.
“You must submit on the law to show where the judge had erred with regard to his findings on misappropriation or criminal breach of trust (CBT) under Section 403, 405 and 409 of the Penal Code. This is the Court of Appeal you know,” he said.
The focus of submissions for yesterday and today are on Najib’s CBT charges.
Najib’s defence began their case on Monday, and the prosecution is scheduled to reply to their submissions over four days from next Monday. In total, an unprecedented 12 days have been allocated for the appeal hearing.
At times, Justice Abdul Karim also told Harvinderjit that senior counsel Tan Sri Muhammad Shafee Abdullah had submitted on the issues and the defence should move on to other matters.
Sitting with the top judge are Justices Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera.
Harvinderjit indicated at the end of the proceedings yesterday that they may only finish their case next Monday.
Najib, the highest-level politician in the country back then, was found guilty by the High Court last July 28 of abuse of power, CBT and money laundering of RM42 million of SRC funds.
For this, he has been sentenced to 12 years' jail and fined RM210 million, which the Pekan Member of Parliament (MP) is appealing against.
In the past few days, the former premier's defence team has been focusing on their argument that the High Court should not have called Najib to enter his defence.
They contended that High Court Judge Justice Mohd Nazlan Mohd Ghazali did not have the necessary acumen to preside over a criminal trial dubbed the “trial of the century”.
'Non-calling of SRC CFO detrimental to prosecution'
Harvinderjit went on today to say that the prosecution and court had not sufficiently proven the CBT case as they did not call the company's then chief financial officer (CFO) See Yoke Peng.
He said to prove misappropriation, the court should have called See, but the prosecution did not do so in their stage of the trial despite the fact that she was in an email thread concerning two of the SRC fund transfers.
“What is the relevance in the evidence that the RM42 million had been stolen or misappropriated as a result of acts of someone else — as the former premier should not be considered an agent of SRC? In this case, we can see that the amount was stolen by other people via the documents that were either forged or not forged.
“The most important witness is the finance manager (See) in light of the misappropriation. Her name appeared in seven [out of 17] total emails on the transfers of funds from SRC, including two [to Najib]. She should have been called to testify by the prosecution that she spoke to [former SRC managing director] Nik Faisal Ariff Kamil or former director Datuk Suboh Md Yasin to effect the transfers.
“The prosecution did not call her but she was offered to us. However, why should the defence call her to close the gap created by the prosecution? The burden is not on us to prove otherwise as that burden falls on them.”
Harvinderjit cited a passage from Justice Nazlan's 801-page judgement, which noted: “As such if the argument of the defence is that Jho Low (fugitive businessman Low Taek Jho) was the real mastermind, which is not implausible from the evidence of the BBM (BlackBerry Messenger) messages between him and Joanna Yu (PW54), such a version would still be entirely consistent with the prosecution case and does not in any manner dilute the involvement of the accused in the criminal enterprise as charged,” the High Court said.
Najib's counsel said this conclusion in the judgement represented a serious misdirection by Justice Nazlan which sought to explain away the material gap in the prosecution’s case in ignorance of a clear favourable inference which was inconsistent thereto.
“The trial judge’s findings wrongly enlarged the case against Najib. The judge enlarged the case as it was the prosecution's case that Jho low was never involved but it enlarged the case beyond the charges. This was very grave misdirection and would create a lot of unnecessary problems if not corrected.
“The burden must be on the state [prosecution] and not for the case of the court to enlarge the perspective of CBT. To do what he (Justice Nazlan) did is completely in error,” he said.
During the trial, the prosecution explained that they did not call See because the banks had cleared the company's cheques and there was no dispute about the fund transfers.
"Looking at the whole issue, there was no protest about the transfers. Only SRC can dispute why money was taken from its accounts. Until today, there has been no complaint or action against AmBank over the funds being transferred out from the company," ad hoc prosecutor Datuk V Sithambaram submitted during the trial.
The hearing continues.