This article first appeared in The Edge Malaysia Weekly on September 18, 2023 - September 24, 2023

NOT only were the prosecution’s two notices of appeal struck out last week in the 1Malaysia Development Bhd (1MDB) audit report tampering trial of Datuk Seri Najib Razak and former 1MDB president Arul Kanda Kandasamy, but the prosecution also came in for a strong rebuke by the court for its neglect and tardiness in not appealing within the time frame allowed, and for assuming that the court would allow the appeal merely because it was a “high-profile” case.

The rebuke was yet another black mark against the Attorney General’s Chambers (AGC), which has come under fire for its seeming insouciance in dealing with cases — even important ones — under its remit. In early September, the High Court had granted Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi a discharge not amounting to an acquittal of all 47 counts of graft, criminal breach of trust and money-laundering charges involving the misappropriation of Yayasan Akalbudi funds, after the prosecution said it would not be proceeding with the trial even though the judge had ruled that there was a prima facie case.

In striking out the notices of appeal last week, the Court of Appeal (CoA) affirmed the High Court’s acquittal on March 2 of Najib and Arul Kanda’s audit tampering charges.

What appeared galling to the CoA panel of judges, comprising Datuk Hadhariah Syed Ismail, Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin, was the AGC’s sloppy indifference to court guidelines and reminders.

“This is our unanimous decision,” declared Hadhariah, who helmed the panel. She pointed out that based on the chronology of events, there were three case managements on July 21, Aug 28 and Aug 30 when the prosecution was reminded to file its petition of notice, but failed to adhere to the court’s instructions.

Worse, the prosecution also failed to file for an extension of time, she observed, the deadline having passed on July 6. And even as the CoA sat, the prosecution had yet to make any such application.

“You can’t create your own timeline. You need to follow the CJA. Don’t give the excuse that it is a high-profile case, so therefore we don’t have to follow the CJA. It doesn’t matter if it is high profile or low profile, everyone has to follow the law,” she said in reference to the Courts of Judicature Act 1964 and specifically section 56, which gives the appeals court the discretion to allow an extension.

Deputy public prosecutor Datuk Yusaini Amer Abdul Karim had made a last-minute attempt to request for another case management date so that the prosecution could seek an extension of time to file its petition. His explanation that time was needed to study the documents in the “public interest” case, and that the latest instructions were from “the highest management of the AGC” — ostensibly referring to newly appointed AG Datuk Seri Ahmad Terrirudin Mohd Salleh — was met with scorn by the defendants’ lawyers and the court.

Arul Kanda’s lawyer Datuk N Sivananthan commented, “Even this morning (Tuesday), there was no application [for an extension]. [They are saying,] ‘we are going to file’… and as late as yesterday, an application could have been filed.”

Judge Hadhariah also pointed out that the prosecution could have filed the petition first and added to or amended it later.

Perhaps the writing was already on the wall as previously, there were questions as to whether the prosecution intended to continue with its appeal as it did not submit its petition of appeal, which was due in early July, despite filing the notice of appeal on March 9.

Najib was charged with abuse of power when he was prime minister and finance minister of having, between Feb 22 and 26, 2016, instructed amendments to the 1MDB audit report prepared by the National Audit Department (NAD). He is accused of having directed the amendments to protect himself from possible civil or criminal action over the 1MDB matter. The audit report was then tabled to the Public Accounts Committee (PAC) several weeks later in March 2016.

Among the items removed from the audit report were fugitive financier Low Taek Jho’s presence at the 1MDB board meeting on Sept 26, 2009, and also portions of 1MDB’s 2014 financial statements. Low did not hold any official posts in 1MDB but, as several witnesses have testified, was seen as Najib’s proxy in the company.

There were also two different financial statements ended March 31, 2014, which were submitted to the Companies Commission Malaysia, and the recommendation by NAD in the first audit report was to investigate why there were two separate statements.

A total of 16 prosecution witnesses, including Arul Kanda, testified at the trial under section 63 of the Malaysian Anti-Corruption Commission Act 2009, which states that whenever two or more persons are charged with an offence, the court may, on an application in writing by the public prosecutor, require one or more of them to give evidence as a witness or witnesses for the prosecution.

Prior to calling Arul Kanda to the stand, the prosecution had called former chief secretary to the government, the late Tan Sri Ali Hamsa; two former auditors-general, Tan Sri Ambrin Buang and his successor Tan Sri Madinah Mohamad; former 1MDB chairman Tan Sri Mohd Bakke Salleh; and several NAD officers including Datuk Nor Salwani Muhammad, who secretly recorded the meeting the department had with Arul Kanda.

Bakke testified to Low’s presence at the Sept 26 board meeting that he chaired; he also said that he had received a phone call from Najib on Low’s handphone. However, Bakke said that Low’s name did not appear as an attendee in the audit report.

Nor Salwani and Madinah testified that the earlier 1MDB report prepared by NAD was not tabled to PAC as 1MDB had sought amendments.

Madinah told the court that she was shown the first 1MDB audit report by Nor Salwani in 2017, after succeeding Ambrin, and testified that she decided to keep it and not destroy it. She also told the court of the differing versions of the audit report and that this was later raised by the Special Audit Task Force, and also the Council of Eminent Persons chaired by former AG Tan Sri Abu Talib Othman at the time.

In any event, trial judge Mohamed Zaini Mazlan appeared to be most influenced by the testimony of Ambrin that he was not forced to make the changes in the audit report after the exit meeting the department had with Arul Kanda on Feb 24, 2016.

Zaini did not call on the duo to enter their defence and in his written judgement, he said that the amendments made to the earlier audit report, which Ambrin considered to be a draft copy, was based on the auditor-general’s judgement and agreement.

“They were done based on further information and documents from Arul Kanda. This would not have been necessary if 1MDB’s management [had] 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 [auditor-general] 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 in his written judgement in acquitting the duo.

Zaini was of the view that Najib’s defence had also successfully proven that there was no causal link between the amendments in the first audit report and the purported abuse.

“There is no evidence to explicitly prove that 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 are justified.”

Notwithstanding that the acquittal of Najib and Arul Kanda in the audit tampering case has already been decided, the prosecution’s negligent handling of the appeal has left the legal community and public flummoxed by the careless and indifferent manner in which such a high-profile matter was undertaken.

Lawyer and Parti Pejuang Tanah Air information chief Rafique Rashid Ali questioned why the petition of appeal and extension was not sought by the AGC earlier, and also the quality of its work lately resulting in the embarrassing losses in high-profile cases.

Senior criminal lawyer Datuk Baljit Singh Sidhu also said the public should not be faulted for making adverse comments or coming to the conclusion that the AGC had acted deliberately so that the duo could be freed. He suggested that several heads in the chambers roll for the negligence.

Some are attributing the incompetence or slip-ups to a changing of the guard at the AGC as Tan Sri Idrus Harun retired on Sept 5, and was replaced by Ahmad Terrirudin on Sept 6. Time will tell whether standards and professionalism improve at the AGC.

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's App Store and Android's Google Play.