KUALA LUMPUR (Oct 25): Lawyer Tan Sri Muhammad Shafee Abdullah told the High Court here that three 1Malaysia Development Bhd-Tanore (1MDB-Tanore) charges against his client, former prime minister Datuk Seri Najib Razak, were proffered in haste five years ago, and that the prosecution should either maintain the charges or drop them altogether — instead of seeking to amend them.  

Shafee said the three charges should not be amended in the current late stage of the trial, but instead withdrawn or left as they are.

Deputy public prosecutor (DPP) Kamal Baharin Omar said that the prosecution is making an application to amend three out of the 25 charges against Najib to lower the amounts of money misappropriated.

Kamal said that this is based on the testimony of Bank Negara Malaysia analyst Adam Ariff Mohd Roslan, a witness in the trial, who said that RM5 million in Najib's account came from an unknown source, which was not accounted for.

Therefore, the prosecution intends to amend one of the charges to reduce the amount allegedly misappropriated by RM5 million.

In this specific charge, Najib is accused of using his position to gain gratification amounting to RM49,930,985.70 for himself.

The prosecution is seeking to amend the quantum to RM44,570,920.70.

The difference of RM5,360,065.00 is based on Adam's testimony that the source of these funds is untraceable.

Shafee, in submitting against this application before judge Datuk Collin Lawrence Sequerah, said that it is important to point out that this trial began on Sept 20, 2018 after a change in government.

Highlighting Adam's testimony, Shafee said Adam was engaged merely to understand the route of the money flow, but only completed his report four years later in 2022, after Najib was charged and while the trial was ongoing. The senior lawyer said he found this rather surprising.

"[This] can only mean one of two things — that he didn't engage [with] urgency to complete [the report], or [the witness] may not have the documents that he wanted," Shafee said. "The conclusion is that Najib was charged prematurely without those facts having emerged [at that material time]."

Apart from the above-mentioned charge, the prosecution is also seeking to amend the 10th and 21st money laundering charges against Najib, also to a lesser amount.

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

The amount in the original charge was RM652,600,000. The amended charge would reduce the amount to RM515,666,277.51.

As for the 21st charge, Najib is accused of transfering monies from illegal activities from his AmBank account (ending 694) to his other AmBank account (ending 880).

The amount in the original charge was RM12,436,711.87. The amended charge would reduce the amount to RM11,411,646.34.

The prosecution said that it is changing the amount based on investigating officer ACP Foo Wei Min's testimony. Foo is the 48th prosecution witness in the trial.

He had testified that in relation to the RM652,600,000 (in the 10th money laundering charge) which Najib returned to Tanore, it had co-mingled with "clean monies", which were already in Najib's account.

Foo said that the actual illegal money that was transferred out was RM515,666,277.51. He asserted that he had stated the amount as RM652 million so as to "not confuse the court".

Shafee argued that the prosecution had known this since Foo finished his report in 2018, even before proffering the charges against Najib.

Sequerah then asked Shafee if he was insinuating that the prosecution had improper motive, after Shafee said that the prosecution was “trying to shift the goalpost” in the late stage in the trial, and that this should not be allowed.

"[To say] that they had changed the goalpost, so to say, at this point in time...that is serious," Sequerah said.

Shafee said that the prosecution may not be doing this on purpose, but the fact is it sat on the "real" figures for five years.

Sequerah then asked how the lower amounts would be prejudicial to Najib. Shafee, however, insisted that there would be prejudice against his client.

Shafee added that any amendment to the charges should have taken place the moment the prosecution discovered any discrepancy.

DPP Ahmad Akram Gharib said that the amendments to the charges are actually beneficial to Najib as the amounts allegedly misappropriated would be lower.

“If he is found guilty, the penalty is five times the amount he received, therefore it would be a lower amount that he would have to pay. This is beneficial to the accused and not prejudicial,” he said.

DPP Kamal Baharin Omar added that while they are only seeking to amend the amounts of money which was misappropriated, the main ingredients of the offence remain the same.

“While the amounts [allegedly misappropriated] are lower, the main ingredients of the charges remain the same,” he said, adding that should the court allow the amendments, it would not be prejudicial to the accused, because the defence still has other recourse in the trial, such as recalling witnesses.

This trial, where Najib is the only accused, will continue before Sequerah on Thursday.

* This article has been amended for accuracy.

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