PUTRAJAYA (Aug 30): The Court of Appeal (COA) on Wednesday fixed Sept 12 to probably decide on the status of the prosecution’s appeal against the acquittal of Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) president and chief executive officer Arul Kanda Kandasamy over abuse of power with regard to the 1MDB audit report.
The date has been fixed for mention in the open court, where the presence of the former prime minister and Arul Kanda would be required.
This was decided by COA deputy registrar Muhammad Noor Firdaus Rosli, following case management held online.
This was confirmed for The Edge by Arul Kanda’s counsel Datuk N Sivananthan, who appeared with Jasmine Cheong. Alaistair Norman appeared for Najib, while deputy public prosecutor Ng Siew Wee appeared for the prosecution. Alaistair also confirmed the outcome of the case management on Wednesday.
On Monday, it was reported that the prosecution had yet to submit its petition of appeal, which was due in early July.
This brings questions on whether the prosecution is continuing with its appeal against the acquittal or otherwise. This follows the defence's argument that the appeal can be considered defective with the petition not filed.
The petition should contain the grounds of the losing party's appeal against the decision delivered that led to the acquittal of Najib and Arul Kanda.
On July 21, Arul Kanda filed a representation in a bid for the prosecution to drop the appeal.
Under Section 53(1) of the Courts of Judicature Act, the appealing party has to file the petition of appeal within 10 days upon the completion of the record of appeal.
Section 53(3) of the Act stipulates that if a petition is not filed within the time prescribed by this Section, the appeal shall be deemed to have been withdrawn, but nothing in this subsection shall be deemed to limit or restrict the powers of extending time conferred upon the COA by Section 56.
This may explain the appellate court fixing the date on Sept 12.
On March 3, the former prime minister was acquitted of abuse of power with regard to the audit report, while Arul Kanda was also acquitted of abetting Najib, without their defence being called.
COA judge Mohamed Zaini Mazlan, who was presiding over the trial in the High Court, ruled that there was no prima facie case against the duo.
The judge agreed with Najib’s defence team that the prosecution had failed to prove a causal link between the amendments made in the audit report to the first audit report and the purported alleged gratification.
“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 to Najib. In my opinion, the items taken out or amended from the earlier audit report would not give rise to criminal or civil liability to the accused. The amendments as stated by the auditor general are justified.”
Zaini also observed that the items amended or taken out were known to the Public Accounts Committee 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 in his verdict.
Najib, 70, 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 before the Public Accounts Committee in March 2016. This was allegedly so that no action could be taken against him by Parliament.
Arul Kanda was charged with abetting the former prime minister.
Among the items removed included fugitive financier Low Taek Jho’s (Jho Low) presence in 1MDB board meetings, and portions of 1MDB’s 2014 financial statements.
The charges were framed under Section 23(1) of the MACC Act.