This article first appeared in The Edge Malaysia Weekly on March 6, 2023 - March 12, 2023

THE High Court on Friday acquitted former prime minister Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) president and CEO Arul Kanda Kandasamy over charges of audit tampering relating to 1MDB’s audit report covering the period Feb 27, 2009, to March 31, 2014 .

Court of Appeal judge Mohamed Zaini Maz­lan, who presided over the case in the High Court, ruled that the prosecution had failed to prove a prima facie case against Najib. He agreed with Najib’s defence that there is no causal link between the amendments made in the first audit report and the purported gratification received.

“There is no evidence to explicitly prove that the second accused (Najib) had directed the amendments made to exonerate him from civil and criminal liability. He was merely concerned that the report would be spun politically.

“The prosecution has failed to prove how the items removed or amended could give rise to civil or criminal liability against Najib. In my opinion, the items taken out or amended from the earlier audit report would not give rise to criminal or civil liability against the accused. The amendments as stated by the auditor-general (AG) are justified.

“I also observed that the items amended or taken out were known to the Public Accounts Committee (PAC) and openly discussed. Therefore, I find the presumption under Section 23(2) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 could not apply as the prosecution had failed to prove gratification,” the judge said. “He (Najib) is therefore acquitted and discharged.”

Charged with abetting Najib, Arul Kanda was also discharged and acquitted as Zaini said he was satisfied that the former 1MDB president had made a “true and full discovery” of all things for which he was examined.

He ordered that Arul Kanda be granted a certificate of indemnity under Section 63(3) of the MACC Act — the first case where a co-accused was offered a certificate of indemnity under this section of the act.

Central to the issue resulting in Najib’s acquittal was the testimony of former auditor-general Tan Sri Ambrin Buang, that the amendments were authorised by him.

“So, there is no unauthorised [amendment], you know. My purpose in appearing before the PAC was to explain why there was no tampering in the sense that it was done by others, outside my control. And I did all the amendments with due consideration to the justification and each and every specific proposal to amend certain parts of the report,” Ambrin had testified.

Zaini said the AG’s appointment and security of appointment are similar to that of judges, in that it is guaranteed under Article 105 of the Federal Constitution. As such, he observed that the AG could do his job without fear or favour.

“The AG (Ambrin) here in my observation is a very principled and no-nonsense person. He strikes me as determined to carry out his duties diligently, and does not suffer fools gladly. He would answer any questions posed to him to the point, and would not mince his words where required. He is the epitome of professionalism,” the judge said.

Zaini said the amendments made to the earlier audit report were based on the AG’s judgement and agreement.

“They were done based on further information and documents from the first accused (Arul Kanda). This would not have been necessary if 1MDB’s management would have been more cooperative before the publication of the earlier report. That the information came later, from Arul Kanda on 1MDB’s behalf, was also not extraordinary as the AG accepted that an auditee could participate in discussions on the audit report.

“There was no evidence that he (Ambrin) was forced to attend the meetings or make changes to the report.

“He retained the ultimate discretion of accepting any proposed amendments to the earlier report,” the judge added.

The court added that some 65 items were raised during the Feb 24, 2016, meeting, and Arul Kanda said he could only make suggestions, but it was the AG who could decide whether to accept his suggestions or otherwise.

“In his (Arul Kanda’s) view, the changes that were eventually made were proper as they were justified by the documents and information that he provided. The AG also agreed to this fact,” said Zaini.

The AG, the court said, was merely irritated that he had to redo the report.

Najib, 69, was charged with abuse of power as a public officer in his capacity as the then prime minister and finance minister in altering the 1MDB audit report prepared by the National Audit Department, which was to be tabled to the Public Accounts Committee in March 2016. This was allegedly so that no action could be taken against him by parliament.

Among the items removed included fugitive financier Low Taek Jho’s (Jho Low) presence at 1MDB board meetings, and portions of 1MDB’s 2014 financial statements.

The charge was framed under Section 23(1) of the MACC Act 2009.

If convicted, Najib could have been liable to a maximum of 20 years’ jail, and a minimum fine of RM10,000 or five times the amount of such gratification, whichever is higher.

Presently, Najib is serving a 12-year jail term and a RM210 million fine after being found guilty of abuse of power, criminal breach of trust and money laundering in the SRC International Sdn Bhd case.

Arul Kanda was charged with abetting Najib, and had taken the witness stand last June after the High Court allowed the prosecution’s application to call him as a witness. Questions were posed to him during examination-in-chief by the late Datuk Seri Gopal Sri Ram, who was acting as a senior deputy public prosecutor (DPP).

Apart from Arul Kanda, 15 other prominent prosecution witnesses testified, including the late Tan Sri Dr Ali Hamsa, former chief secretary to the government; Ambrin and Tan Sri Dr Madinah Mohamad who succeeded him; Tan Sri Shukry Mohd Salleh, former principal private secretary to Najib; and Tan Sri Mohd Bakke Salleh, former 1MDB chairman.

The trial began on Nov 18, 2019, and the prosecution closed its case on Sept 7 last year.

The prosecution was led by DPPs Kamal Bahrin Omar, Ahmad Akram Gharib, Mohamad Mustafa P Kunyalam and Deepa Nair, while Tan Sri Muhammad Shafee Abdullah, Muhammad Farhan Shafee and Alaistair Brandah Norman appeared for Najib.

Arul Kanda was represented by Datuk N Sivananthan and Jasmine Cheong.

When met after the proceedings, DPP Kamal Bahrin said the prosecution will study the decision and consult the attorney-general, who is also the public prosecutor in the case.

A notice of appeal has to be filed within 14 days should the prosecution choose to file an appeal.

Also present in the courtroom were Najib’s wife Datin Seri Rosmah Mansor and their daughter Nooryana Najwa Najib.

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