KUALA LUMPUR (Oct 24): The prosecution in the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) trial made an application at the High Court here to amend three charges consisting of one of four predicate abuse of power charges and two money laundering charges against Datuk Seri Najib Abdul Razak, who is facing four abuse of power charges and 21 money laundering charges. 

The prosecution represented by deputy public prosecutor Kamal Baharin Omar informed judge Datuk Collin Lawrence Sequerah that they intended to amend the fourth abuse of power charge to reduce the amount Najib is alleged to have received from 1MDB funds by RM5 million. 

Kamal, during his submissions for the application to amend the charges, told Sequerah that they are seeking to amend it based on testimony by the 47th prosecution witness, Bank Negara Malaysia (BNM) analyst Adam Ariff Mohd Roslan, who had testified that RM5 million in Najib's account came from an unknown source which is not accounted for. 

The specific amendment to the charge concerns the purchase of Aabar Investments PJS Ltd (BVI)'s call options by 1MDB. 

"These options were given to Aabar (BVI) in 2012, (which) as alleged part consideration for International Petroleum Investment Company's (IPIC) guarantee for the notes that raised US$3.5 billion. In May and August 2014, 1MDB through its subsidiary 1MDB Energy Holdings Ltd obtained two loans totalling US$1.225 billion from Deutsche Bank AG.

"From these two loans, [Najib] received a sum of RM49,930,985.70 between June 23, 2014 and Dec 19, 2014," the prosecution said. 

Kamal told Sequerah that Adam had pointed out that the proceeds of RM45,837,485.70 that were credited into Najib's account between Oct 23, 2014 and Dec 19, 2014, from Vista Equity International Partners Ltd is found to be partially traceable to the US$975 million aforementioned two loan proceeds. 

"According to [Adam] out of the RM45,837,485.70 which were credited into [Najib's] account, RM5,360,065 came from an unknown source which cannot be confirmed due to limitation of documents," the prosecution said in its submission. 

The prosecution also added: "We are therefore amending the charge to make it absolutely clear the amount that was credited into the accused AmIslamic Bank which constitutes the offence in question".

DPP Kamal submitted that Article 145(3) of the Federal Constitution confers power to the public prosecutor (PP) to amend a charge. 

He adds that per case law, it is the PP's discretion to amend a charge at any time during the trial before the judgement. 

Besides this, the prosecution contends that the court is also given the discretion to amend charges to meet the fact of the case. 

"It's about the amount and we submit it is not prejudicial to the accused," DPP Kamal added. 

In their written submission, the prosecution elaborated that the amendment was made in good faith and does not affect the nature of the offence.

"In this case before Your Lordship, the amendment is made in good faith, ie to give the accused a clearer notice as to the manner he committed the offence he is being charged with as required by section 154 CPC. The amendment to the charge does not have the effect of changing the nature of the offence or having the effect of opening up a new trial,” he wrote. 

The new charge will read: 

“That you, between June 23, 2014 and Dec 19, 2014, at AmIslamic Bank Bhd, Cawangan Jalan Raja Chulan, No. 55 Jalan Raja Chulan, Kuala Lumpur, in the Federal Territory of Kuala Lumpur, as an officer of a public body, to wit, Prime Minister and Minister of Finance of Malaysia and the chairman of the Advisory Board of 1Malaysia Development Bhd (1MDB), did use your position for a gratification for yourself amounting to RM44,570,920.70,” 

The current charge states that Najib had allegedly received gratification amounting to RM49,930,985.70. 

As an effect of amending the fourth abuse of power charge, the predicate money laundering charges have to be amended as well which are the tenth and twenty-first money laundering charges. 

As for the 10th charge, Najib is accused of transferring monies from illegal activities to Tanore Finance Corp on Aug 2, 2013. 

The amount in the original charge was RM652.6 million. In the amended charge, the amount was reduced to RM515.66 million. 

As for the 12th charge, Najib is accused of transferring monies from illegal activity from his AmBank account (ending 694) to his other AmBank account (ending 880).  

The amount in the original charge was RM12.436 million. In the amended charge, the amount was reduced to RM11.411 million.

After Kamal finished his submission, Najib’s lawyer Tan Sri Mohamed Shafee Abdullah said that they are objecting to the application. 

“This is a very serious step in the prosecution's case and we need to look at it carefully and we would like to submit [in detail] tomorrow," he said. 

He added that the prosecution seems to suggest that the amendments simply only impacted the quantum but Mohamed Shafee contends that is not the case. 

He said that the defence has been doing their own tracing based on the documents provided by the prosecution and the defence's own set of documents. 

"We want to see whether the angle of defence we have taken and hardened up needs to be changed [...] prejudicially affects our defence. As such I ask for time until tomorrow [Oct 25] to respond." 

Sequerah allowed Mohamed Shafee to submit his arguments on Wednesday, Oct 25. 

The Edge is covering the trial live here.

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