PUTRAJAYA (March 16): A five-member Federal Court bench led by Chief Justice Tun Tengku Maimun Tuan Mat has unanimously dismissed Datuk Seri Najib Razak's (pictured) appeal to adduce more evidence to the SRC International Sdn Bhd graft case in a bid to overturn his conviction and sentence.
Chief Justice Tengku Maimun on Wednesday (March 16) said the former prime minister's application to adduce fresh evidence did not comply with the requirements set by the court for it to consider allowing further evidence in the case.
"The court of appeal was correct in dismissing the application to adduce further evidence. We find there was no appealable error in the matter. Hence, the appeal is dismissed,” she said.
The Chief Justice laid down circumstances where further evidence could be adduced, namely that the evidence must not have been made available during the trial proper, that it is relevant and credible, and that it would have raised reasonable doubt in the minds of the jury or trial judge in arriving at the decision of a case.
"The court finds these requirements have not been met and (the evidence Najib seeks to adduce) is not relevant," she said, adding that what the defence was trying to adduce relates to charges Najib faces in another trial — the on-going 1MDB-Tanore case — and not the present case.
"Here, the issue in question is the knowledge of the appellant (Najib) in relation to the sum of RM42 million. We do not see how the proposed additional evidence is relevant to the issue of knowledge," she said.
Chief Justice Tengku Maimun also ruled that Najib's right to be heard had not been infringed upon when his application to adduce further evidence was heard last Dec 7 at the Court of Appeal (CoA).
According to the court's appeal and court recording system, she said the court found that Najib's lead counsel Tan Sri Dr Muhammad Shafee Abdullah was given one hour 22 minutes to submit on the issue, while ad hoc prosecutor Datuk V Sithambaram was given 63 minutes to reply.
As the application by Najib was filed at the eleventh hour on Dec 2 and the CoA was to deliver its decision on Dec 8, the appellate court had proceeded to hear the matter in a hybrid manner due to the Covid-19 situation in the country, said Chief Justice Tengku Maimun said.
“The argument of not being able to access documents does not hold water as the appellant’s counsel could use technology. In the circumstances, we ruled that the appellant had not been deprived of the right to be heard based on Article 5 of the Federal Constitution.
“The appellant (Najib) suffered no prejudice and was not denied the right to be heard,” she added.
The other members of the bench were CoA President Tan Sri Rohana Yusuf, Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, and Federal Court Judge Justice Datuk Seri Mohd Zawawi Mohd Salleh.
The evidence Najib was trying to adduce to the SRC case, in which he has been sentenced to spend 12 years in jail and fined RM210 million, relates to a statement issued by the Malaysian Anti-Corruption Commission last November about a sum of US$15.4 million being returned from Singapore.
The sum was linked to Datuk Dr Tawfiq Ayman's company Cutting Edge Industries Ltd, which is said to have received the money from fugitive businessman Low Taek Jho.
Tawfiq is the husband of former Bank Negara Malaysia (BNM) governor, Tan Sri Dr Zeti Akhtar Aziz.
The defence, through Shafee, contended that Jho Low had managed to infiltrate those holding high posts in government institutions, namely BNM, before the said transactions in relation to Najib's SRC International case happened. Besides that, Najib's defence also contended that a former minister in charge of SRC International, namely Tan Sri Nor Mohamed Yakcop, had allegedly received money from Jho Low.
“Jho Low was doing something where he penetrated into the system as he had a bigger plan. We are saying that Jho Low did not do it for nothing, as he is the ultimate beneficiary (of the funds),” the senior counsel said.
He added that while the prosecution argued that the transactions involving Tawfiq happened in 2009 — which was before SRC International’s formation — these transactions actually showed that Jho Low was already trying to infiltrate the system and institutions then.
Shafee further contended that the managing director of AmBank Bhd at the time, Cheah Tek Kuang, testified that he had checked with Zeti over the large sums coming in, which the former premier said he thought were donations.
“The (BNM) governor was the last bastion to ensure the transactions are alright (legitimate), but it seemed this had been taken care of much earlier,” Shafee said, alluding to the possibility that Zeti had been compromised through Tawfiq.
Shafee also said there were others who had been managing Najib's accounts without his knowledge, including Jho Low, with the help of some AmBank officers.
The senior counsel said only one person — former SRC International Sdn Bhd managing director Nik Faisal Ariff Kamil, who is still at large — was supposed to manage Najib's accounts.
But Shafee said Nik Faisal could also have been compromised, as he also allegedly received funds from Jho Low.
“This is important as my client depended on the bank (AmBank) and BNM (to look after the transactions into his accounts) but they failed to do so,” he added.
Meanwhile, Tawfiq, despite the allegations levelled against him, last month denied knowing former Goldman Sachs banker Tim Leissner or Roger Ng Chong Hwa. The latter has been indicted in the US and is facing trial.
Leissner, the star witness in Ng's trial, told the court in New York that Tawfiq had been bribed in order to speed up transactions involving 1Malaysia Development Bhd.
Tawfiq has denied receiving bribes from anyone. “I wish to categorically state that throughout my entire life, I have never received any bribes from anyone,” he said in a statement issued on Feb 24, adding he also never met or communicated with Ng, or Leissner.
The prosecution, led by ad-hoc prosecutor Datuk V Sithambaram, told the apex court on Tuesday (March 15) that whether 1MDB funds went into Tawfiq's account in 2009 or not had no bearing on Najib's SRC case, as he was charged with committing graft from 2011 to 2015, while SRC, once a wholly-owned subsidiary of 1MDB — only existed in 2011.
In the SRC case, Najib was found guilty of abusing his power with regards to the RM4 billion loan given by Retirement Fund Inc (KWAP) between August 2011 and March 2012 to SRC, for which he was sentenced to 12 years in jail and fined RM210 million in default of five more years of imprisonment.
He was also convicted of three counts each of criminal breach of trust and money laundering involving RM42 million of SRC funds deposited into his accounts between Dec 26, 2014 and Feb 10, 2015. For each of these six offences, the former Umno president and Pekan Member of Parliament was sentenced to 10 years in jail.
As the court had ordered the jail sentences to run concurrently, Najib will only spend 12 years in jail.
He is appealing his conviction and sentences at the Federal Court, after the CoA unanimously upheld the High Court's verdict last Dec 8.