This article first appeared in The Edge Malaysia Weekly on August 1, 2022 - August 7, 2022
LAST week marked the two-year mark since Datuk Seri Najib Razak was found guilty of seven charges of abuse of power, criminal breach of trust and money laundering in relation to RM42 million belonging to SRC International Sdn Bhd.
That his appeal process continues two years after the High Court handed him a 12-year jail sentence and fine of RM210 million is mind-boggling to many who are not aware of or following the various applications, appeals and delays — some inadvertent — that have dogged the case.
Take the latest development last week, for instance, when Najib shockingly dismissed his lawyers, Tan Sri Shafee Abdullah and Harvinderjit Singh, just ahead of his appeal at the Federal Court and appointed Zaid Ibrahim Suflan T H Liew & Partners (ZIST), with experienced criminal solicitor Hisyam Teh Poh Teik to lead the appeal.
In changing lawyers, Najib sought an adjournment from the Federal Court on his final appeal, which is set to commence on Aug 15 to 26. At a case management hearing last week, the Federal Court denied the request and maintained the set dates for the hearing to commence.
Federal Court deputy registrars Wan Fatimah Zahara Wan Yussof and Siti Hajar Mustaffa said Najib’s new lawyers will have to make an application in open court on Aug 15 if they wish to pursue an adjournment. This means that the lawyers will have to persuade the bench presiding over the final appeal to agree to an adjournment.
In the two years since the High Court verdict, Najib has gone on to appeal his sentence, and failed, at the Court of Appeal (CoA) and now faces his final appeal at the nation’s apex court (Federal Court).
Should he fail, and his sentence and verdict are upheld by the Federal Court, Najib would have to serve his sentence post-haste.
Since Najib was charged on July 4, 2018, in the Sessions Court, there has been a slew of occasions where he and his team have sought either to defer the trial or postpone it for one reason or another.
The Edge looks back at some of the delays Najib had sought in the SRC trial.
After Najib was charged on July 4, 2018, he put in an application to the High Court on July 18 for an interim gag order preventing the public and the media from discussing the criminal charges against him.
And on Oct 2 of that year, he applied for discovery of documents, which essentially meant that he was applying to obtain more documents related to the trial from the prosecution.
About a month later, he also applied via a fiat application for the prosecution to show lawyer Datuk Sulaiman Abdullah’s appointment letter from the Attorney-General’s Chambers as an appointed prosecutor.
The three applications were subsequently dismissed by High Court judge Datuk Mohd Nazlan Mohd Ghazali, who also set Feb 12, 2019, for the trial to commence. Unhappy with the date, Najib asked the court for a postponement of the trial because he was appealing the three decisions against him by Nazlan at the Court of Appeal. Nazlan rejected Najib’s request for an adjournment.
With the trial date looming, Najib, in a last-ditch attempt to delay the trial, filed an application at the CoA on Feb 7, five days before the trial was meant to start. The application was linked to the transfer of the case from the Sessions Court to the High Court. He then filed an appeal the next day to stay his case, pending his appeals.
On Feb 11, Najib was successful in deferring his trial as the CoA — a three-man bench chaired by Datuk Ahmadi Asnawi, together with Datuk Mohamad Zabidin Mohd Diah and Datuk Yew Jen Kie — ruled that there were “special circumstances” for a stay of the trial.
Ahmadi said that he was granting a stay of the trial because there was a possibility of the trial becoming null if it proceeded before Najib’s appeals. He also said that the appeal was not “delaying tactics” by Najib and his team to defer the trial.
The CoA then heard Najib’s four appeals in total on March 11, 12, 15 and 18. Three days later, he lost three of the appeals but won the appeal to challenge Sulaiman’s appointment letter.
The prosecution appealed to the Federal Court against the CoA decision on Sulaiman’s appointment while Najib appealed to the Federal Court against the three appeals he had lost at the Court of Appeal.
A fresh stay of the trial was then granted pending disposal of the appeals at the Federal Court.
On April 10, 2019, the Federal Court unanimously dismissed three of Najib’s appeals and ruled in favour of the prosecution’s appeal, which meant that the Attorney-General’s Chambers was not required to produce a letter of appointment of senior criminal lawyer Sulaiman, who was slated to be lead prosecutor in the SRC case.
The decisions on the four matters were separately read out by the three judges, then Chief Justice (CJ) Tan Sri Richard Malanjum, Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah and Federal Court judge Tan Sri Idrus Harun, who is the current attorney-general.
All in all, the four appeal applications by Najib delayed the SRC trial by almost two months.
Eventually, the trial did begin on April 3.
In the trial’s infancy, Najib, on April 26, made another application before Nazlan to strike out all seven charges against him as he claimed the charges were defective, delaying the trial further. Three days later, upon hearing submissions from Shafee and the prosecution, Nazlan ruled that there was no ambiguity in the charges and that the prosecution was allowed to frame the charges as they were, thus dismissing Najib’s application.
Surprisingly, Najib withdrew his appeal against Nazlan’s decision at the Court of Appeal.
Najib again applied and failed to obtain a list of witnesses and witness statements to enable him to prepare his defence in 2020 at the High Court. He had applied for the list and witness statements after he was ordered by the High Court on Nov 11, 2019, to enter his defence.
Again, he declined to appeal this decision at the CoA.
During the defence stage of Najib’s trial, his lawyers made another application before Nazlan, to call Dr Steven J Starch, an Australian expert witness, to examine 13 questionable documents.
Nazlan subsequently allowed this application but Najib did not call Dr Starch to testify due to an impasse relating to the terms of his appointment.
Najib also had made a couple of other applications, namely, to view the Malaysian Anti-Corruption Commission (MACC) witness statements of missing witnesses in the case and the defence’s right to interview an MACC officer before he took the witness stand.
Nazlan dismissed the application to compel Assistant Commissioner Mohd Nasharudin Amir to be interviewed by Najib’s lawyers.
In appealing against his conviction at the Court of Appeal, just as he had done at the High Court stage, Najib at the eleventh hour filed an application on Dec 2, 2021, to adduce more evidence in the trial in the form of calling MACC chief commissioner Tan Sri Azam Baki and former SRC investigating officer Rosli Hussein to testify.
Najib said he made the application following the MACC statement on Nov 19 regarding funds forfeited from former Bank Negara Malaysia governor Tan Sri Dr Zeti Akhtar Aziz’s husband Datuk Tawfik Ayman’s company in Singapore. The funds were allegedly from fugitive businessman Low Taek Jho, better known as Jho Low.
The funds, totalling US$15.4 million, recovered from Cutting Edge Industries Ltd (CEIL) — owned by Tawfik and another person, were recently returned to the MACC from the island republic.
Najib said the evidence was not available during his SRC trial, in which 18 other witnesses testified in his defence, apart from himself.
The CoA verdict was set for Dec 8 and the appellate court rejected Najib’s application to adduce further evidence and ordered that the decision on his main appeal be given the very next day as scheduled.
On the morning of Dec 7, when the CoA was to hear Najib’s submissions for the fresh evidence application, both Najib and Shafee did not turn up in court as they said they had been in close contact with a Covid-19 positive case.
The CoA bench, led by Judge Datuk Abdul Karim Abdul Jalil, was not pleased. Harvinder Singh Sidhu who appeared for Najib alone was warned that if the proceedings did not go on that very afternoon, the court would cancel Najib’s bail and issue a warrant of arrest.
Shafee and Najib then appeared in court via Zoom and proceedings commenced.
The next day, the Court of Appeal upheld the High Court sentence against Najib.
During his final appeal at the Federal Court, Najib also made a few applications to either delay or demand a re-trial in the SRC verdict.
In June, he filed another application at the Federal Court to adduce fresh evidence pertaining to High Court judge Nazlan, who had found him guilty.
Shafee said this was because Nazlan served as group general counsel for Malayan Banking Bhd (Maybank) and had participated in the decision to give 1Malaysia Development Bhd (1MDB) a loan of RM4.17 billion to partly finance the acquisition of Tanjong Energy Holdings Sdn Bhd.
Shafee said that Nazlan should have “disqualified” himself due to some opinions formed during the process of giving the loan. He also added that his team had only just become aware of it. This application will be heard when the appeal starts on Aug 15.
Shafee has previously said that they will ask for an acquittal if a re-trial is not possible.
Separately, Najib also applied and failed to appoint Queen’s Counsel Jonathan Laidlaw to represent him in the Federal Court after the High Court dismissed his application. The Edge has been given to understand that Najib will not appeal this matter at the Federal Court.
By Tarani Palani
On Sept 1, High Court Judge Justice Mohamed Zaini Mazlan is set to deliver his verdict on whether Datin Seri Rosmah Mansor is guilty or innocent of graft charges pertaining to a RM1.25 billion solar hybrid project for 369 schools in Sarawak for offences committed in 2016 and 2017.
The path to this date has been anything but smooth given that the trial began about 2½ years ago in February 2020.
Even then, there was a two-day delay and some drama when she arrived at the courthouse with an ambulance in tow.
The delay was because Rosmah had been diagnosed with cervical spondylosis, osteoarthritis in both knees, as well as chronic adrenal insufficiency after a medical check-up over that weekend, prompting her lawyers to say that their client was suffering from “life-threatening” ailments.
Sri Ram’s appointment as lead prosecutor challenged
As the trial progressed, there were other delays.
On Feb 18, 2021, Justice Zaini ordered Rosmah to enter her defence over all three graft charges in relation to the solar hybrid project for 369 rural schools in Sarawak after 23 prosecution witnesses testified against her.
In May, she filed an application — still ongoing — to challenge the appointment of Datuk Seri Gopal Sri Ram as senior deputy public prosecutor on the grounds that his letters of appointment or “fiat” were not valid. In her application, Rosmah also sought to declare the trial a nullity.
In rejecting her application on Sept 24, Justice Zaini ruled that Sri Ram’s appointment by then attorney-general Tan Sri Tommy Thomas was valid.
Justice Zaini also dismissed an application to stay the proceedings, ruling that a stay in criminal matters would be given only in the “rarest of cases”. This prompted Rosmah to appeal to the appellate court, which, on Oct 4, threw out her appeal to stay proceedings.
As such, the defence began their case on Oct 5, 2021, with Rosmah taking the stand.
After CoA and Federal Court dismissed challenge against Sri Ram appointment, Rosmah turned to civil court
On Dec 6, two months after the defence began their case, the Court of Appeal affirmed Justice Zaini’s ruling on Sri Ram’s appointment. CoA Judge Datuk Hanipah Farikullah, who led a three-member bench, ruled that the criminal court, empowered by the Criminal Procedure Code (CPC), did not have the jurisdiction to grant the declarations sought.
Rosmah persisted with a final appeal on the matter to the apex court, which concurred with the appellate court.
On May 27, 2022, a three-member panel led by Justice Datuk Seri Mohd Zawawi Mohd Salleh said there were other laws, such as the Courts of Judicature Act 1964, that confer inherent powers to the civil court.
This prompted Rosmah to turn to the civil courts. On June 24, she filed an application for judicial review at the civil courts to once again challenge Sri Ram’s appointment as lead prosecutor in the solar-graft trial revolving around the same issue of his fiat. The attorney-general/public prosecutor, government of Malaysia and Sri Ram — a former federal court judge — were named as respondents.
Leave (permission) for the matter has yet to be granted, but the Attorney-General’s Chambers (AGC) and Sri Ram have already filed applications opposing the leave. Both claim that this application is an abuse of the court process.
On Aug 4, High Court Judge Justice Datuk Ahmad Kamal Md Shahid will hear all submissions.
In the courtroom, attempts were made to impeach witnesses, but these were eventually dismissed. (To impeach a witness is to discredit the accuracy or truth of his or her testimony.)
On Sept 7, 2020, Justice Zaini dismissed Rosmah’s application to impeach key witness Saidi Abang Samsuddin, the former managing director of Jepak Holdings Sdn Bhd, which is at the heart of the graft trial.
The defence had attempted to impeach him, as they contended that there were contradictions in his testimony over how he had spent RM1.5 million that he had withdrawn from his account in 2017.
Saidi testified that he had withdrawn the money to be given to Rosmah, but her lawyers argued that he had used the money for other purposes.
The prosecution had also made a bid to impeach Rosmah herself over contradictions between her evidence in her current corruption trial and her statement as recorded by the Malaysian Anti-Corruption Commission (MACC) during investigations. This application was dismissed, however, on Dec 23, 2021.
There was also a slight delay in proceedings, following the defence’s eleventh hour decision not to call her husband — former premier Datuk Seri Najib Razak — to the stand, even though Najib’s 65-page witness statement had already been tendered in court and given to the prosecution.
Rosmah’s counsel had informed the court of the matter only on the morning of proceedings on Jan 10.
Only two witnesses have testified in Rosmah’s defence: Rosmah herself and former First Lady of Malaysia (FLOM) department head Datuk Seri Siti Azizah Sheikh Abod.
Similar to other trials, Rosmah’s case also faced Covid-related delays. For instance, the High Court in December 2021 considered hybrid proceedings after Rosmah’s MySejahtera status obstructed trial proceedings for the third time, but this did not materialise.
Rosmah had also missed several dates, as she was in Singapore to be with her daughter Nooryana Najwa, who had recently delivered her second child in a private hospital in the city state.
She missed a Dec 2, 2021, date before the CoA, but the panel, led by Justice Hanipah, did not issue an arrest warrant, as they accepted defence counsel Datuk Jagjit Singh’s explanation that his client’s absence was due to his oversight.
Earlier, on Oct 15, 2021, the High Court had allowed Rosmah’s application for her passport to be temporarily released to her from Oct 15 to Dec 6, 2021, to allow her to travel to Singapore, but laid strict conditions for her to leave for Singapore only from Oct 22, 2021, and stressed that she must return to Malaysia by Nov 21, 2021.
The trial at the High Court was also postponed because of this, prompting Justice Zaini to reprimand the defence that pandemic-related change in travel procedures did not change the court order, which was “sacrosanct” and to be respected.
Apart from Jagjit, Rosmah is also represented by Datuk Akberdin Abdul Kader in this matter.
Money laundering and tax evasion case yet to begin
Separately, Rosmah’s RM7 million money laundering and tax evasion case has yet to begin.
Her defence team is seeking to have Justice Zaini removed from presiding over the matter.
Justice Zaini had dismissed Rosmah’s first application on Dec 14 and her second on April 25, and her appeals will be heard at the CoA on Nov 22.
But he granted a stay of proceedings until her appeals are dispensed with at the CoA.
In her recusal application, Rosmah claimed that there was a risk of the High Court judge being prejudiced and biased against her, given that he had presided over her RM1.25 billion solar hybrid graft trial and other matters related to her family, namely the 1Malaysia Development Bhd (1MDB) audit report tampering trial and the 1MDB forfeiture case.
In dismissing the second application on April 25, the High Court judge said Rosmah’s second application was similar to the first. Justice Zaini also said the 1MDB audit report tampering trial did not concern Rosmah at all. It is worth noting that, in the 1MDB forfeiture matter, Justice Zaini had dismissed the case against Rosmah and her family.
As in the other matter, Rosmah is also seeking to recuse Sri Ram from prosecuting her in the money laundering and tax evasion matter. In the application filed on Jan 27, Rosmah claimed that AG Tan Sri Idrus Harun had exceeded his powers when he appointed Sri Ram as a senior deputy public prosecutor to spearhead the 1MDB-related investigations and to prosecute those involved.
In this trial, she faces 12 money laundering charges involving RM7,097,750 and five counts of failure to declare her income to the Inland Revenue Board.
She is represented by Datuk Geethan Ram Vincent, Datuk Firoz Hussein Ahmad Jamaluddin and Mohd Reza Rahim.
Initially, Sri Ram wanted both trials to run together, but the defence had asked for separate trials, which Justice Zaini granted.
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