There is no basis to suggest that Nazlan’s professional involvement in Maybank may affect the findings. We are not in any way convinced that Nazlan’s finding denotes a biased judge or (that he) gained from his previous employment in Maybank.”
PUTRAJAYA (Aug 16): A five-member bench at the Federal Court on Tuesday unanimously dismissed former Prime Minister Datuk Seri Najib Razak's second bid to adduce further evidence in his SRC International Sdn Bhd trial.
Chief Justice Tun Tengku Maimun Tuan Mat who led the bench ruled that there was no basis to suggest that then High Court judge Datuk Nazlan Mohd Ghazali’s employment in Maybank shows a conflict of interest or bias in his judgement against Najib.
“We fail to see how any of the proposed additional evidence relates to the first charge on abuse of power. The prosecution denies that Maybank (Maybank Investment Bank Bhd) was involved in the establishment of SRC International Bhd in the manner suggested by the applicant (Najib), but even if MIB was involved, the question is how is MIB and by extension Justice Nazlan’s involvement in any way material to the question of abuse of power on the part of the applicant as Prime Minister and/or Minister of Finance?”
"There is no basis to suggest that Nazlan's professional involvement in Maybank may affect the findings. We are not in any way convinced that Nazlan's finding denotes a biased judge or (that he) gained from his previous employment in Maybank."
With that, Tengku Maimun dismissed the application.
The Chief Justice also said that the evidence which Najib sought to adduce was already available to the defence, as the prosecution had served them the documents on Maybank’s board minutes on Nov 4, 2019 for the 1MDB trial, before his defence was called in the SRC case.
“It bears mentioning here that counsel for the applicant (Najib) in the 1MDB trial and the SRC trial was the same, that is Tan Sri Muhammad Shafee Abdullah. The document was thus available to Najib for use in his defence in the SRC case and the supposed involvement of MIB (Maybank Investment Bank), which is mentioned in his affidavit even before the commencement of the trial.
“Since the test is one of availability, and the document was available to him even if he was not served in relation to the present SRC case, he could have obtained or raised suspicions regarding the possible existence of the document.... then asked such other evidence to be produced before him and this could have been obtained by reasonable diligence.
“It is not as if Nazlan’s previous employment with the Maybank group of companies was a secret to any party, such that his subsequent involvement with them came as a surprise,” the bench reasoned earlier.
The other judges who were part of the proceedings were Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, and Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.
The bench ruled that the defence had to fulfill certain conditions to adduce more evidence.
The court must be satisfied that the evidence is not available to the trial, the material to be adduced is relevant, that the evidence is to be believed, and that there might be reasonable doubt in the minds of the jury.
Najib is trying to adduce new evidence from three Malaysian Anti-Corruption Commission (MACC) officers who recorded the statement of trial judge Datuk Mohd Nazlan Mohd Ghazali while investigating him. He is also seeking to re-examine MACC investigating officer Rosli Hussain and 1Malaysia Development Bhd former CEO Datuk Shahrol Azral Ibrahim Halmi.
Besides this, the defence sought to adduce evidence from three Maybank employees, namely Zain Bador, Fazilah Abu Bakar and Micheal Oh-Lau.
Notably, Zain is a director at MIB subsidiary Bina Fikir Sdn Bhd.
Nazlan was Maybank's general counsel and company secretary from 2005 to 2015.
The defence had argued that during his tenure at the banking group, Bina Fikir had proposed the formation of a strategic resource company in 2010.
During the SRC trial, it was revealed that Shahrol Azral had mooted the establishment of SRC, which was sanctioned by then Minister in the Prime Minister's Department Tan Sri Nor Mohamed Yakcop.
Najib's new defence lawyers also tried to link Nazlan to Maybank's 2012 loan for SRC's parent company 1MDB amounting to RM4.17 billion for its purchase of Tanjong Energy Holdings Sdn Bhd and another RM140 million loan to Putra Perdana Development Sdn Bhd (PPD) in 2014.
They contended that it was the PPD money which made its way to SRC, before it was transferred into Najib's AmBank Islamic personal accounts.
The defence contended that the proposal to set up the strategic resources company and decisions on the loans were made when Nazlan was the bank's general counsel.
The lead defence counsel Hisyam Teh Poh Teik argued that this put the judge in a position of conflict, and he should not have presided over the trial.
The prosecution meanwhile disputed the relevancy of the attempt to adduce the additional evidence, as the Maybank loans do not involve SRC because the company is not the bank's client.
In addition, the issue only concerned 1MDB, which is the subject matter of one of Najib's court cases and is presided over by High Court judge Datuk Collin Lawrence Sequerah.
They further argued that the allegations are hearsay, and the defence's heavy reliance on an affidavit by the former premier, who claimed to have received the new information through an anonymous source, was made in bad faith and to scandalise the court.
The defence is seeking to call the five witnesses as mentioned above to adduce evidence, or for the court to nullify the High Court proceedings.
Prior to this, Najib through his previous lawyers led by Tan Sri Muhammad Shafee Abdullah had also applied to the Court of Appeal last year to adduce further evidence in relation to former Bank Negara Malaysia governor Tan Sri Zeti Akhtar Aziz and her family allegedly receiving funds from fugitive businessman Low Taek Jho. This was dismissed by the appellate bench last year.
The Federal Court then heard Najib's application last March, but this was shot down by a five-member apex court bench that was also led by Tengku Maimun.
Najib was found guilty by Nazlan on July 28, 2020, of a charge of abuse of power with regards to the approval of the Retirement Fund Inc (KWAP) loan of RM4 billion to SRC between August 2011 and March 2012.
He is also convicted of three counts each of criminal breach of trust and money laundering of RM42 million of SRC funds between Dec 26, 2014 and Feb 10, 2015.
As a result of this, the high Court sentenced him to 12 years in jail and fined RM210 million.
The conviction and sentence was upheld by the Court of Appeal on Dec 8, last year, resulting in this final appeal.
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Download the Federal Court's broad grounds on the motions to adduce further evidence here.