PUTRAJAYA (Dec 7): The Court of Appeal will deliver its verdict on Datuk Seri Najib Razak's appeal to set aside his conviction and sentence in the SRC International Sdn Bhd trial on Wednesday (Dec 8) as originally scheduled.
This follows the appeals court's decision on Tuesday to dismiss the former premier's application to adduce fresh oral evidence.
The three-member bench comprising Justices Datuk Abdul Karim Abdul Jalil, Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera ruled that there "were no exceptional circumstances" which merited adducing the new evidence.
In a unanimous decision, the bench surmised that Najib's bid to adduce the evidence by calling Malaysian Anti-Corruption Commission (MACC) chief commissioner Tan Sri Azam Baki and former SRC investigating officer Rosli Hussein to be examined was not necessary as it did not fulfil the criteria as stated in Section 61 of the Courts of Judicature Act (1964).
Citing two cases, namely R v Parks and Murugayah v PP, Justice Abdul Karim said Najib had failed to "cumulatively satisfy" the requirements of the law.
He said the elements required for new evidence to be allowed — credibility, relevance and evidence — were not available in this case.
"The additional evidence is not necessary to the substantive appeals and no exceptional circumstances have been shown. Hence the application is hereby dismissed," the judge said.
He then said the decision on whether or not to set aside Najib's conviction and 12-year jail term and RM210 million fine would go on as planned on Wednesday morning.
The judge advised Najib and his team of lawyers, who were all under isolation and attended Tuesday's proceedings via Zoom, to do the same on Wednesday and attend the decision virtually if they could not make it to court.
"Whatever will be, we will proceed at 9am tomorrow," Abdul Karim said.
They had been asked by the court to attend the submissions despite their claim that they were on home isolation after coming in close contact with a Covid-19-positive patient, who is the mother of one of Shafee's legal team members.
Najib was threatened with arrest by Abdul Karim earlier on Tuesday because of his no-show in court in the morning.
Claiming that Najib's and his MySejahtera status showed that they were in close contact with a Covid-19-positive patient, Shafee said they would not be allowed to attend court in person. He also said that they were waiting to conduct PCR tests to see if they were infected.
Although Shafee tried very hard to get the submissions postponed, the judge insisted they be made on Tuesday as scheduled.
Deputy Public Prosecutor Datuk V Sithambaram said the application by Najib and Shafee was done in bad faith with the sole purpose of delaying the appeal decision.
"I submit they (Najib and his lawyers) kept it (the application) up their sleeves until after the appeal hearing and just before the decision date. The fact they intended to file [it now] shows that it is mala fide and its purpose is to scuttle or delay tomorrow's decision," he said.
Sithambaram also asserted that the evidence Shafee tried to adduce on behalf of his client was not fresh evidence but an "ingenious" way to have a retrial even though the Court of Appeal had not made a decision yet.
He said the new evidence bid was a "fishing expedition" by Shafee, stressing that it had nothing to do with the case.
In his supporting affidavit, Najib said the evidence that he was seeking to adduce in the application was a cumulation of matters from several events, statements and public announcements that happened recently.
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, where in his defence a total of 18 other witnesses testified besides himself.
"Tawfik and his two sons signed a statutory declaration to state that they were the beneficial owners of CEIL's account where the US$15.4 million was repatriated and consented to the Singapore Commercial Affairs Department making an application for it to be transferred to 1Malaysia Development Bhd's (1MDB) account."
The funds were said to be from Iron Rhapsody Ltd, a company based in the British Virgin Islands that was operated by Tawfik and one of his sons.
Najib's affidavit stated that between 2008 and 2009, Iron Rhapsody received US$16.219 million from companies owned by Jho Low as a result of 1MDB's Islamic Medium Term Notes of RM5 billion that were flipped in 2009.
Further, Najib said former attorney general Tan Sri Tommy Thomas in an interview recently admitted that he had known about Tawfik's alleged involvement since 2019. Tommy stated that the matter was still under investigation at that time.
The former premier said the opening of his accounts in AmBank and the receiving of monies into the accounts were manipulated by Jho Low and his cohorts.
"I verily believe that the evidence that has been credibly discovered and verified reveals the complicity of Zeti of Jho Low's schemes.
"I believe that Zeti's role in facilitating Jho Low resulted in no red flags or irregularities being raised on matters regarding the transactions in my accounts between 2011 and 2015 and further provided the means for Jho Low to carry out his manipulation," Najib added.
He further claimed that information regarding Zeti and her family was purposely not disclosed to him and the public at large by the prosecution.
This followed Zeti's appointment by former premier Tun Dr Mahathir Mohamad to be part of the Council of Eminent Persons.
Shafee argued on Tuesday that Zeti and her family had known Jho Low since 2008 and were bribed by him. This was why she did not raise matters regarding Najib's accounts to him during that time, the lawyer claimed.
He also claimed that Zeti had suppressed evidence of 1MDB and Jho Low's involvement in the matter.
On July 28 last year, High Court judge Mohd Nazlan Mohd Ghazali found Najib guilty on all seven charges in the SRC case.
He was found to have abused his power by using his positions, as prime minister and finance minister, to approve two loans of RM2 billion each by Retirement Fund Inc (KWAP) in 2011 and 2012.
He was also convicted of three counts each of criminal breach of trust and money laundering of RM42 million of SRC funds, which ended up in his personal accounts between Dec 26, 2014, and Feb 10, 2015.
The Edge will have live coverage of the court proceedings on Dec 8.
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