This article first appeared in The Edge Malaysia Weekly on August 22, 2022 - August 28, 2022

THE prosecution concluded its submissions in the Federal Court last week with ad-hoc prosecutor Datuk V Sithambaram clearly laying out the case for why the conviction of former prime minister Datuk Seri Najib Razak on seven charges in relation to SRC International Sdn Bhd should stand.

Sithambaram’s points were succinct and convincing, backed up in many instances by documentary evidence, and the onus will now be on Najib’s lawyers to rebut the prosecution’s case.

Sithambaram said Najib had played an important role in approving the government guarantee for the RM4 billion Retirement Fund Inc (KWAP) loan in August 2011 and March 2012, resulting in the disbursement of the loan (over two tranches) and that this had proven the abuse of power element to the charge.

Even though the Economic Planning Unit (EPU) of the Prime Minister’s Department led by Tan Sri Nor Mohamed Yakcop had initially given SRC International a RM20 million grant and suggested the so-called strategic resource company source the remainder of the funds needed from commercial banks, Najib had intervened.

As finance minister at the time, he had instructed KWAP to consider increasing the loan, even though SRC did not have a track record as it was a new company or the ability to repay the loan. This was unprecedented, former finance secretary-general Tan Sri Irwan Serigar had testified previously, and something he had not seen in decades of service with the government.

SRC decided on an easier route as it zoomed in on KWAP as a lender. SRC managing director Nik Faisal Ariff Kamil wrote a letter in June 2011 addressed to Najib directly, and he as the PM and finance minister at the time, minuted Datuk Azian Mohd Noh, the CEO of KWAP, to look into SRC’s request for the RM3.95 billion loan.

Although KWAP’s investment panel was hesitant to give a company with no track record such a massive loan, Najib persuaded then-KWAP chairman Tan Sri Wan Abdul Aziz Wan Abdullah to give SRC an initial RM2 billion loan, and a year later in 2012, to disburse another RM2 billion.

“Eventually, the KWAP investment panel approved a financing of RM2 billion in 2011, and an additional RM2 billion in 2012, as a result of interference by the appellant,” Sithambaram said.

Immediately after the funds were transferred into SRC accounts, they were transferred overseas. Strangely, as the prosecution pointed out, the funds were not used to fulfil SRC’s main objective of investing in potential strategic resources for Malaysia’s future.

More than RM3 billion was transferred overseas after 2012, and the whereabouts of the funds, or whether they are still available, remains unknown.

However, as the federal government stood as guarantor for the loans, it is on the hook for them.

The funds having been transferred overseas and purportedly “stuck”, Najib prevented the then second minister of finance, Datuk Seri Ahmad Husni Hanadzlah, from attempting to recover the funds from overseas as he essentially instructed the latter to “keep out of it”.

Sithambaram said Najib had overarching influence in SRC as he held the golden share in the company along with his powers as adviser emeritus, not to mention as premier and finance minister.

As finance minister, he had the power to appoint and sack any company director who, being compliant, gave him control over the company and its decision-making process.

In the prosecution’s argument to uphold the criminal breach of trust (CBT) charges, it pointed out that the RM42 million that was lost between Dec 26, 2014 and Feb 10, 2015, originated from SRC even though the funds had made their way into Ihsan Perdana Sdn Bhd (IPSB), Gandingan Mentari Sdn Bhd and Yayasan Rakyat 1Malaysia (YR1M) as conduits to hide the transactions.

“The money trail shows that RM42 million originates from SRC’s AmBank account. It does not matter where SRC got the money from, but the evidence showed that it was the SRC funds that entered Najib’s accounts,” Sithambaram explained, as he submitted bank statements as evidence.

Moreover, whenever there was a shortage of funds in Najib’s AmBank account, he had asked either Nik Faisal, Low Taek Jho (Jho Low) or his late former private secretary Datuk Azlin Alias to top up the account to ensure there were sufficient funds.

While Najib initially said he did not know the origins of the funds, Sithambaram pointed to the ex-premier’s affidavit in his previous civil suit against former MCA president, Tun Dr Ling Liong Sik (for defamation, which was later withdrawn), in which he had acknowledged the existence of the funds.

To further prove the point, the prosecution team, which also comprised DPPs Donald Joseph Franklin, Sulaiman Kho Kheng Fuei, and Mohd Ashrof Adrin Kamarul, illustrated it with a flow chart and bank records.

“Despite this, Najib did not raise suspicions or complaints to the bank, and testimonies of the bank officers showed that the former premier did not file a legal action nor did he attempt to return the money,” Sithambaram added.

“If the appellant expects Jho Low to put in the money, where would the money come from? Surely as the PM (prime minister) and finance minister, you would want to know where it is coming from. You cannot be reckless about it,” Sithambaram said, adding that Najib’s claim that Jho Low was manipulating his bank accounts should not be accepted by the court.

He also debunked the idea that the money came from Arab donations as it is preposterous to think the Arab royal family was monitoring Najib’s accounts.

“It was Jho Low who was masquerading as the Arab royals in putting (in) the money. Najib himself cannot answer as to why Jho Low had done this (transferred the RM42 million). The only reason is that he, being the most powerful man in the country, was using Jho Low for his own benefit,” he contended.

In relation to the money laundering charges, Sithambaram said the prosecution had proven that the proceeds were from unlawful activities, namely the CBT element of the charges.

He said the offences initially came from CBT and hence the money that entered Najib’s two accounts and his expenditure showed this was money laundering from unlawful activity.

“The burden is on Najib to show that the proceeds are lawful,” he said, noting the former premier had failed to do so.

“This follows that it went through various intermediaries before ending up in Najib’s accounts,” he contended, adding that the High Court judge was satisfied there was the predicate offence, namely the CBT charge, that is linked to the money laundering charges.

“The thrust of the prosecution’s case is that the accused had knowledge of the funds coming in, yet he did not question where they originate from. The deliberate failure after being informed in July 2015 by Ung Su Lin of YR1M and one Datuk Dr Shamsul Anwar Sulaiman of IPSB, the two people who informed Najib they had put money into his account, yet he did nothing. This shows criminal intent,” he stressed.

Sithambaram observed that there is no defence to the money laundering charges, as Najib had failed to determine the source of the funds.

As the defence chose not to submit, Sithambaram suggested to the apex court that they could rely on the submissions from the court below to arrive at a decision on whether to dismiss the appeal by Najib or to accept the appeal without any submissions.

Najib’s lead counsel Hisyam Teh Poh Teik had indicated to the apex bench at the end of the week’s proceedings that he would not be making any submissions on Tuesday when the case resumes, even though Chief Justice Tun Tengku Maimun Tuan Mat had suggested that he submit orally on the matter as he would still have three days to prepare.

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