This article first appeared in The Edge Malaysia Weekly on December 26, 2022 - January 1, 2023
Rosmah found guilty, sentenced to jail and fined a whopping RM970 mil; appeal to be heard in June
By Tarani Palani
The appeal against the conviction and sentence of Datin Seri Rosmah Mansor has been fixed for June 2023, some nine months after she was found guilty on all three counts of graft pertaining to an RM1.25 billion solar-hybrid project involving 369 rural schools in Sarawak.
The wife of former premier Datuk Seri Najib Razak was sentenced to 10 years’ imprisonment and fined RM970 million. The fine — five times the gratification of RM187.5 million solicited and RM6.5 million received — is said to be the highest amount imposed by the High Court for a graft case.
Trial judge Mohamed Zaini Mazlan said that should Rosmah fail to pay the fine, she would be liable to a total of 30 years in jail as she faces 10 years in prison on each count. A stay was granted pending the disposal of her appeal and her RM2 million bail was extended.
In his decision, Mohamed Zaini found that the defence offered a bare denial and that the prosecution had succeeded in proving its case beyond a reasonable doubt. In his 116-page written judgement, the judge warned of the dangers of corruption which he stressed had become near-pandemic.
“Corruption has reached almost every level of society. It must be curtailed before it becomes a pandemic. If corruption is left unbridled, our society will come to accept it as a way of life or business,” he said.
In this trial, Rosmah is charged with soliciting RM187.5 million from Jepak Holdings Sdn Bhd’s former managing director, Saidi Abang Samsudin, in 2016 for the RM1.25 billion project awarded by the Ministry of Education. She is also charged with receiving RM1.5 million from Saidi at her private residence in Jalan Langgak Duta in 2017 and RM5 million at the then prime minister’s official residence, Seri Perdana, in 2016.
All three charges were framed under Section 16(a)(A) of the Malaysian Anti-Corruption Commission (MACC) Act 2009.
From the start of the trial in Feb 2020, when the self-styled former first lady arrived at the courthouse with an ambulance in tow due to hospitalisation for her ailments, to the numerous related applications, the trial has been anything but dull.
Just a few weeks before the decision, Rosmah filed a judicial review application, again challenging the legality of lead senior public prosecutor Datuk Seri Gopal Sri Ram’s letters of appointment, or “fiats” — but this time in the civil court. In her application filed on June 24, she sought a declaration to void her trial and a stay order of proceedings until the disposal of the judicial review.
She had resorted to the civil court after her previous application in the criminal court and subsequent appeals were dismissed. Two days before the court was due to hand down its decision in the solar-hybrid case, the High Court allowed the Attorney General’s Chambers’ (AGC) preliminary objection and dismissed Rosmah’s leave application.
Rosmah, represented by Datuk Jagjit Singh, Datuk Akberdin Abdul Kader and Azrul Zulkifli Stork, also filed an eleventh-hour application to recuse trial judge Mohamed Zaini. The application filed two days before the decision was seeking to recuse the judge based on a purported “leaked judgement” in late August. Rosmah said the existence of the alleged “judgement” had directly or indirectly caused her to lose confidence in the trial judge.
A substantial part of the decision day on Sept 1 was then taken up with arguments for this application, but it was eventually dismissed by Mohamed Zaini, who ruled that the “leaked judgements” were merely opinions written by the court’s research team, which were neither prepared for him nor on his instructions.
Separately, it was reported that the police are conducting a further probe into the leak after the AGC returned the investigation papers to them.
During mitigation of sentencing, right after the decision was delivered, Rosmah broke down in tears and appealed to the court for compassion, highlighting her contributions to the country. She said these included the Program Permata Negara (Permata) Foundation and the Association of Wives of Ministers and Deputy Ministers (Bakti). She had “never touched a single cent” from those foundations.
Rosmah’s appeals against her conviction and sentence in the solar-hybrid case and the recusal of Mohamed Zaini in the same case — he had previously dismissed her application that he recuse himself — are set to be heard in June 2023.
Separately, Rosmah’s RM7 million money laundering and tax evasion trial, which has yet to begin, is slated to be heard in May 2023.
Zahid the first sitting deputy prime minister to face a criminal trial
By Timothy Achariam
Datuk Seri Dr Ahmad Zahid Hamidi will enter 2023 as the first sitting deputy prime minister (DPM) in the dock when his corruption trial resumes on Jan 16 at the Kuala Lumpur High Court.
The Barisan Nasional chairman had a good 2022 in the courts, as he was acquitted in a separate criminal trial of all 40 graft charges after High Court judge Datuk Mohd Yazid Mustafa found that the prosecution had not made out a prima facie case against Zahid as it had failed to prove the element of graft.
Yazid found the three main witnesses in the trial — former Ultra Kirana Sdn Bhd (UKSB) directors Harry Lee Vui Khiun and Wan Quoris Shah Wan Abdul Ghani and former administrative manager David Tan Siong Sun — to be neither credible, trustworthy or believable and, thus, unreliable witnesses.
“There should be no weightage to their testimony,” he ruled.
A total of 18 prosecution witnesses had testified in the trial. Among them were former senior officers from the Ministry of Home Affairs, where Zahid was a minister, such as its former secretary-general Tan Sri Alwi Ibrahim, and UKSB witnesses, Lee, Wan Quoris and Tan.
Zahid faced 33 counts of graft for allegedly receiving S$13.56 million (RM43.39 million) from UKSB to facilitate the company’s foreign visa system (VLN) and one-stop services (OSC) in China. These charges come under Section 16(a)(B) of the MACC Act.
He was also on trial under Section 165 of the Penal Code for seven other bribery charges in his capacity as the home affairs minister then, for allegedly obtaining for himself bribes denominated in different currencies comprising S$1.15 million, RM3 million, €15,000 (RM67,032) and US$15,000 (RM67,548) from UKSB.
This case has not been put to bed yet, however, as the Attorney-General’s Chambers (AGC) has filed an appeal in the Court of Appeal against the High Court decision; the appeal is set to commence in 2023.
This past year also saw Zahid enter his defence against 47 charges — including alleged criminal breach of trust of RM31 million belonging to charitable foundation Yayasan Akalbudi, which he leads — and testifying in court.
It remains to be seen how Zahid will juggle his court cases while managing his ministerial duties, including the rural and regional development portfolio.
Faith in the judiciary and the AGC will be shaken if Zahid’s charges are withdrawn, but Zahid’s superior, Prime Minister Datuk Seri Anwar Ibrahim, has stressed on several occasions that his government will not interfere in ongoing court cases, pledging that he will ensure the independence of the judiciary, even though it involves his deputy prime minister, who heads a coalition party whose support for Anwar is crucial to his remaining prime minister.
Zahid will most certainly have to see out his trial, which could reach its conclusion in 2023.
It could be the year that, if Zahid is found guilty on all 47 charges, Malaysia will have its first convicted DPM.
Sentencing hearing of ex-Goldman banker Roger Ng still pending
By Tarani Palani
More than eight months after former Goldman Sachs Group Inc banker Roger Ng Chong Hwa was found guilty for his role in the theft of billions of dollars from 1Malaysia Development Bhd (1MDB), his sentencing in the US is still pending.
Ng’s sentencing has been rescheduled several times with news reports indicating that it was initially scheduled for September, then subsequently moved to November and again to December. The reason for the rescheduling is not clear. And now, according to a Reuters report, his sentencing is set for February 2023, about a year after his trial began in New York.
Following a trial that lasted two months, an American jury convicted Ng in April and he now faces up to 30 years in prison.
Ng was found guilty on two counts of conspiring to violate the US Foreign Corrupt Practices Act through bribery of government officials in Malaysia and Abu Dhabi via bond offerings that Goldman Sachs handled and the circumvention of Goldman’s internal governance controls. He was also convicted on a charge of conspiracy to launder money.
Ng is appealing the decision and has been handed over to US authorities until February 2024 to complete the appeal process there.
Hailing the verdict as a victory for the rule of law and Malaysians, US Attorney for the Eastern District of New York, Breon Peace, said that Ng was part of a scheme that was “brazen in its execution” and “massive in its greed”.
“The defendant and his cronies saw 1MDB not as an entity to do good for the people of Malaysia, but as a piggy bank to enrich themselves with piles of money siphoned from the fund,” he said.
Ng’s trial, delayed due to the pandemic, finally began at a federal court in Brooklyn on Feb 14 this year.
Likely the only Goldman banker to go on trial for the 1MDB scandal, Ng was indicted in Nov 2018 along with fugitive Low Taek Jho (Jho Low), who remains at large. The former Goldman banker was extradited to the US in May 2019 and subsequently pleaded not guilty to all charges.
The prosecution in the case had argued that about US$35 million (RM155.31 million) in “secret kickbacks” that Ng received for his role in the “brazen bribery and money laundering” scheme were funnelled through a shell company whose beneficiary was his mother-in-law, Tan Kim Chin.
The defence contended that Ng is “the fall guy” in the entire case and that the alleged kickbacks were from his wife’s legitimate business venture with Judy Chan, the ex-wife of Ng’s former boss Tim Leissner. Ng’s lawyer Marc Agnifilo also questioned the credibility of Leissner, the former Goldman Sachs Southeast Asia chairman, who was the prosecution’s star witness.
Leissner’s testimony saw headline-grabbing details, from his admission of extramarital affairs and that “he had lied a lot” — even to investigators at the onset of their meeting — to minimise his role in the scheme. But he insisted that his testimony was truthful and did not ensure a reduced sentence. He also testified that to allay suspicions, he and Ng crafted a “cover story” to explain the payments so that the banks processing the funds would not grow suspicious.
Leissner faced similar charges but pleaded guilty in August 2018 and agreed to cooperate. Among others, he was ordered to forfeit US$43.7 million of 1MDB funds.
Testifying as a defence witness, Ng’s wife Lim Hwee Bin said that she invested US$6 million in the mid-2000s in a company owned by Chan’s family. The US$35 million — received in 2012 and 2013 — was the return on that investment, she claimed.
Ng’s legal woes do not end with the US case. Back in Malaysia, he faces charges under the Capital Markets and Services Act 2007 (CMSA) in a trial that has yet to begin.
He faces four counts of violating the Capital Markets and Services Act 2007 (CMSA) for abetting Goldman Sachs in the sale of notes and bonds belonging to 1MDB subsidiaries by omitting material information and publishing untrue statements. He has pleaded not guilty.
Serba Dinamik’s corporate and legal quagmire
By Hafiz Yatim
Shares of Serba Dinamik Holdings Bhd were languishing at about 1.5 sen apiece before Christmas, a quandary the oil and gas services company found itself in, in part after making headlines in both corporate and legal circles this year.
Late last year, four of its senior executives were hauled up by the Securities Commission Malaysia (SC) for alleged criminal offences.
On Dec 28, 2021, its executive director Datuk Syed Nazim Syed Faisal, group chief financial officer Azhan Azmi, and vice-president of accounts and finance Muhammad Hafiz Othman were each charged by the SC under s 369(a)(B) of the Capital Markets and Services Act 2007 (CMSA) for making a false statement relating to the revenue recorded by the group in its financial report for the fourth quarter ended Dec 31, 2020.
Group managing director Datuk Dr Mohd Abdul Karim Abdullah was charged a day later. All four claimed trial.
However, less than six months after charging the executives, the SC and the Attorney-General’s Chambers offered the four the option of paying a compound.
Hafiz had an additional RM1 million compound imposed for falsifying the accounting records of a Serba Dinamik subsidiary.
Unsurprisingly, the offer was accepted and the compounds were settled in April. The criminal charges for submitting a false statement of RM6.01 billion revenue for FY2020 to Bursa Malaysia Securities Bhd on Feb 26, 2021, were withdrawn.
The SC said the compound offer was issued after the public prosecutor decided to accept a representation by the four executives. It said that the compound was issued under s 373(1) of the CMSA with written consent of the public prosecutor.
Sometime during the year, Serba Dinamik along with its subsidiaries had also taken Bursa Malaysia Securities to court after the bourse had directed it to make public a fact-finding update (FFU) pertaining to its false revenue, as highlighted by auditing firm KPMG and Ernst & Young.
In February, High Court judicial commissioner Wan Muhammad Amin Wan Yahya ordered Serba Dinamik to reveal the FFU within two market days, while another High Court judge Datuk Ahmad Fairuz Zainol Abidin also struck out the company’s bid for an injunction against Bursa’s compelling of the FFU.
Serba Dinamik and its subsidiaries face winding-up petitions by its creditors, including six financial institutions — Standard Chartered Saadiq Bhd, HSBC Amanah Malaysia Bhd, AmBank Islamic Bhd, MIDF Amanah Investment Bank Bhd, United Overseas Bank (Malaysia) Bhd and Bank Islam Malaysia Bhd — which are owed a total of RM1.7 billion.
The High Court on Sept 15 sanctioned the appointment of Victor Saw of PwC Malaysia as an interim liquidator for the companies after Serba Dinamik and its subsidiaries — Serba Dinamik Sdn Bhd (SDSB), Serba Dinamik Group Bhd (SDGB) and Serba Dinamik International Ltd (SDIL), which were represented by Mak Lin Kum — withdrew a stay application that had been filed a month earlier.
Positions of CoA president and CJM awaiting new appointments
By Hafiz Yatim
There are a number of senior judicial positions that need to be filled soon now that a new unity government has been installed, foremost of which are Court of Appeal (CoA) president and Chief Judge of Malaya (CJM).
The retirement of Tan Sri Rohana Yusuf and Tan Sri Azahar Mohamed as CoA president and CJM, in November and October respectively, left two of the four top judicial positions in the country vacant.
In addition, two Federal Court judges — Datuk Seri Mohd Zawawi Mohd Salleh and Puan Sri Zaleha Yusof — also retired earlier this year, resulting in another two vacant seats on the Federal Court. In short, this means at the apex court alone there are four vacancies.
After stepping down, Azahar and Mohd Zawawi applied last month to be practising lawyers, following in the footsteps of former Federal Court judge Datuk Seri Gopal Sri Ram, and former Chief Justice of Malaya Tan Sri Zulkefli Ahmad Makinudin.
Currently, the Chief Judge of Sabah and Sarawak (CJSS) Tan Sri Abang Iskandar Abang Hashim is temporarily overseeing the No 2 post of CoA president, while Federal Court judge Datuk Mohd Zabidin Mohd Diah is acting CJM.
Legal circles say it would be interesting to see if Zabidin, who has less than two years until his compulsory retirement, will be appointed as CJM. Zabidin is also a member of the Judicial Appointments Commission (JAC), a post he has held since July.
Under the Federal Constitution, a judge must retire at the age of 66, although a six-month extension is allowed.
As for Abang Iskandar, should he be elevated to the No 2 spot, the CJSS post would need to be filled. His successor is likely to be either Federal Court judges Datuk Abdul Rahman Sebli or Datuk Rhodzhariah Bujang as both hail from Sarawak.
The four vacancies would have to be decided by the JAC and Prime Minister Datuk Seri Anwar Ibrahim, and are likely to come from the CoA.
Even at the CoA, there are nine vacant positions to be filled as there are 24 judges at present, when normally there would be 33. The most junior of the appellate judges is Datuk Mohd Nazlan Mohd Ghazali, who was elevated last February. Since then, no one has been elevated from the High Court to the CoA.
Conference of Rulers proposed PM not appoint JAC members
It is interesting to note that Zabidin was the then High Court judge who acquitted Anwar in the Sodomy II case in 2012, while Nazlan convicted former premier Datuk Seri Najib Razak on all seven counts of criminal breach of trust, money laundering and abuse of power in relation to the SRC International Sdn Bhd case in July 2020.
Najib’s conviction and sentence were upheld by the CoA and Federal Court, and as of Aug 23, Najib began serving a 12-year jail sentence. The former PM was also fined RM210 million by the High Court.
Recently, the Conference of Rulers proposed that the prime minister not have a say in the appointment of the five members of the JAC so as to ensure the independence of the judiciary.
At present, the JAC comprises the top four in the judiciary, namely the Chief Justice, CoA president, CJM and CJSS, plus another five members — normally former judges or eminent persons — who have in the past been appointed by the PM.
The Yang di-Pertuan Besar of Negeri Sembilan, Tuanku Muhriz Tuanku Munawir, also proposed that the JAC Act 2009 be placed under the Federal Constitution and not remain as an Act of Parliament.
The Edge is given to understand that the names of judges to be elevated to the vacant posts as proposed by the JAC had been suggested to then prime minister Datuk Seri Ismail Sabri Yaakob, but it appears that Anwar, as the newly elected prime minister, may have a say in it.
Sultan Sulu’s US$16 bil claim hogs limelight in Malaysia’s international affairs
By Hafiz Yatim
What legal avenues will Malaysia pursue next year having been shocked out of its slumber by eight descendants of the Sultan Sulu who this year attempted to enforce billion-dollar claims against Malaysia’s assets in Luxembourg and the Netherlands?
In February, Spanish arbitrator Dr Gonzalo Stampa awarded almost US$15 billion in an international arbitration to the eight descendants who had taken proceedings against Malaysia in Madrid based on an 1878 agreement between then Sultan Mohamet Jamal Al Alam and Baron de Overbeck and Alfred Dent, which granted the British North Borneo Company perpetual sovereign rights to what are parts of Sabah today in return for an annual token payment of RM5,300.
Following the Lahad Datu incursion in 2013 by militants linked to the descendants of the Sultan of Sulu, Malaysia stopped paying the annual payment of RM5,300. This led to the claim and dispute, which was filed in Spain as the Philippines was its colony in 1878 (Sulu is part of the Philippines).
Malaysia contested Stampa’s appointment as arbitrator, which prompted him to move the proceedings to Paris. He arrived at the February decision without Malaysia’s participation in the proceedings.
Although the descendants attempted to enforce the claim in France, Malaysia managed to obtain a stay pending an appeal at the French Court of Appeal. The descendants then tried their luck in Luxembourg in July and two months later, in the Netherlands, with Malaysia contesting the claims.
As Malaysia is one of 170 countries that is a signatory to the New York Arbitration Convention, it appears to be bound by the arbitration judgment and the descendants of the Sultan of Sulu can make a claim in any of the countries that is a signatory to the convention and where Malaysia has assets.
The process of contesting the award would be a large legal wrangle and for this reason, the government formed a special task force to examine, monitor and formulate an action plan to address the issue. The task force was led by then minister in the Prime Minister’s Department Datuk Seri Wan Junaidi Tuanku Jaafar.
Following the 15th general election in November and the formation of a unity government, it is unclear whether the task force will resume its work and whether it will be headed by Datuk Seri Azalina Othman Said, Wan Junaidi’s successor.
Back home, several Sabah politicians have resorted to suing former attorney-general Tan Sri Tommy Thomas for misfeasance as he had issued a controversial letter dated Sept 19, 2019, in which Malaysia offered to pay compensation. The letter was used by the lawyers of the descendants of the Sultan Sulu to fortify their claim, arguing that the letter denoted liability.
Tommy denied the claim in his defence, saying that the contents of the letter were made known to the prime minister and foreign affairs minister during his tenure as AG.
The Sabah politicians, however, in reply to Tommy’s defence, maintained that he was liable as the open letter he sent to the lawyers of the descendants was relied on by Stampa and constituted a wrongful admission of liability on behalf of Malaysia, together with an offer of compensation.
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