KUALA LUMPUR: The High Court ruled today that the defense’s claims of bias and shoddy investigations surrounding the 1Malaysia Development Berhad (1MDB) case involving Datuk Seri Najib Tun Razak lack merit.
Justice Datuk Collin Lawrence Sequerah (now Court of Appeal judge) said this was because the investigations were commenced in 2014 when the accused was still the prime minister and resumed thereafter in 2018.
“With regard to the allegation that Datuk Seri Najib was asked certain questions when his statement under Section 53(3) MACC Act was taken, I find that this has not caused prejudice to the accused in light of the nature of the cross-examination of the prosecution witnesses, in particular PW49,” he said when reading his 41-page summary of the ruling for almost two hours.
The 49th prosecution witness (PW49) was an investigating officer from the Malaysian Anti-Corruption Commission (MACC), Senior Supt Nur Aida Ariffin.
Earlier, Justice Sequerah ordered Najib, 71, to enter his defence on four charges of using his position to obtain RM2.3 billion in gratification from 1MDB funds and 21 money laundering charges involving the same funds, after finding that the prosecution had established a prima facie case at the end of the prosecution’s case.
Justice Sequerah also dismissed the defence’s contention that the four graft charges and 21 money laundering charges were defective, duplicitous, ambiguous, and therefore bad law and in violation of Section 163 of the Malaysian Criminal Procedure Code (CPC).
He said upon a perusal and examination of all four charges, it is clear that they contain the time, the place, and stated the offences for which the accused is charged.
“All the four graft charges and 21 money laundering charges therefore fulfil all the legal criteria required of a charge as provided for under Sections 152, 153, and 154 of the CPC,” he said.
He said Section 422 of the CPC provides that any irregularity in charges can be cured provided the accused was not prejudiced in any manner and no failure of justice was occasioned.
“I do not find that the accused has been misled or has suffered prejudice in relation to the charges proffered. In any event, Section 156 of the CPC states that any errors or omissions (which I do not find to be the case here), with respect to the charge are not to be regarded as material unless the accused was in fact misled as a result, which has not been the case here,” he said.
In his judgment, Justice Sequerah stated that the prosecution had successfully established that the accused was an officer of a public body in respect of all four charges of abuse of power under Section 23(1) of the MACC Act, which involves the misuse of office or position for gratification.
The judge noted that there was no serious challenge to the accused’s position as the Prime Minister, Minister of Finance of Malaysia as well as the Chairman of the 1MDB Board of Advisers and, therefore, the accused was an officer of a public body at the material time.
“The evidence shows that the accused took the first action, inter alia, from the evidence of PW11 (Tan Sri Mazidah) who was the Deputy Head Secretary (Cabinet) in the Prime Minister’s Department which proved that the accused did on 1 April 2009 attend the Cabinet Meeting; presented a Memorandum of the Ministry of Finance; obtained the consent of the Cabinet for the provision of a guarantee by the Government of Malaysia to Terengganu Investment Authority Berhad (TIA) to enable TIA to obtain domestic and foreign market loans of up to RM5 billion by way of Islamic Medium-Term Notes (IMTN) Programme,” he said.
He noted that the prosecution’s evidence revealed that Najib showed interest in TIA Bhd from its inception and played a central role in the government’s takeover of TIA, which was later renamed 1MDB.
The judge added that the accused was also instrumental in leading the Cabinet to consent to the provision of a guarantee by the government to enable TIA to obtain the RM5 billion IMTN loan.
He said an examination and evaluation of the evidence revealed that Najib had acted in matters where he had a vested interest, and these actions formed the essential facts needed to establish a rebuttable presumption that the accused had misused his office or position for gratification under Section 23(2) of the MACC Act.
He said the money trail report also showed that between Feb 23 2011 and June 14, 2011, approximately USD20 million (RM60,629,839.43) of the proceeds credited into the accused’s AmIslamic Bank account from an account at Riyadh Bank, Saudi Arabia were found to be traceable to the issuance of the IMTN bond in 2009 and the Syndicated Term Loan in 2010.
Regarding the second charge concerning the acquisition of Independent Power Producers (IPPs) Tanjong Energy Holdings Sdn Bhd and Mastika Lagenda Sdn Bhd, the judge said the prosecution adduced evidence to show that the accused took certain actions leading 1MDB to enter into these transactions.
He further said that the money trail traced by Bank Negara Malaysia analyst Adam Ariff Mohd Roslan (PW47) showed that the funds totaling RM 90,899,927.28, which were deposited into the accused’s account, originated from the bond issuance intended for the acquisitions of Tanjong Energy’s IPP (1MEL) and Mastika Lagenda’s IPP (1MELL).
