KUALA LUMPUR (March 5): In the SRC International Sdn Bhd's US$1.18 billion civil suit against former prime minister Datuk Seri Najib Razak, lawyers for the company have alleged that out of the RM4 billion loan given by Retirement Fund Inc (KWAP) to SRC International over two disbursements in 2011 and 2012, US$120 million made its way to Najib’s AmBank account.
Datuk Lim Chee Wee, the lead counsel for SRC International, described the SRC International case as a “multi-jurisdictional fraud” in his opening statement at the trial before High Court (Commercial division) judge Datuk Ahmad Fairuz Zainol Abidin. Lim contended that the company became a victim orchestrated by Najib’s multiple wrongdoings in his various roles as a public officer — namely as Prime Minister and Minister of Finance, Advisor Emeritus of SRC, and in truth a shadow director.
“SRC International was set up as a special purpose vehicle on Jan 7, 2011, to invest in conventional and renewable energy, natural resources and minerals sector.
“These investments were ultimately meant for the rakyat, with the expectation that those in power would act in good faith for the benefit of the public. Those in power having all the avenues open to them, were duty bound to act solely in a manner that would be of public good. In short, as custodian of the country’s coffers,” he added.
Lim said the unthinkable happened in this case, that an abuse of power took place and they would attempt to prove it, and that Najib wielded supreme authority to ultimately cause harm and injury to the company which was set up with the public's interest in mind.
Najib is presently serving a 12-year jail sentence and RM210 million fine, which was recently reduced to six years jail and a RM50 million fine, following a partial pardon by the former King.
Lim said a portion of the RM4 billion loan from KWAP made its way to a Swiss BSI account, followed by elaborate transactions with Enterprise Emerging Market Fund in Curacao, and then to Blackstone Asia Real Estate Partners Ltd in British Virgin Island, and then to Singapore, where a sum of US$120 million made its way back to Najib’s bank account.
Action against Najib
The senior lawyer said the action against Najib is for fraud, breach of fiduciary duties and breach of trust, conspiracy, tort of misfeasance in public office, conversion, dishonest assistance and knowing receipt of assets belonging to SRC International.
Najib has pulled in several former directors of SRC International, namely Datuk Suboh Md Yassin, Datuk Shahrol Azral Ibrahim Halmi, Tan Sri Ismee Ismail, Datuk Mohammed Azhar Osman Khairuddin and Nik Faisal Ariff Kamil, as third party respondents.
Nik Faisal, who was Najib’s proxy in managing his AmBank accounts, is still at large having fled the country much earlier.
Lim claimed that Najib was the ultimate controller of SRC and its board of directors by virtue of being the chairman of the board of advisors, and in wearing different hats, influenced and directed decisions of the board. He said that Nik Faisal was Najib's proxy and accessory (to the crime) and that both were beneficiaries of the decisions taken.
The actions by Najib and Nik Faisal had resulted in losses of US$1.18 billion, which are accountable for pursuant to the purported investment schemes.
Following this, SRC International is seeking several declarations in this case namely that Najib is liable for the breaches of duties and trust, that Najib and Nik Faisal are liable for and to pay the US$1.18 billion losses from the investment funds, an order for Najib to compensate the US$120 million and Nik Faisal to pay US$2 million to SRC, and that the company is entitled to trace the amount, as well as general, exemplary and aggravated damages.
SRC International co-counsel P Gananathan said the plaintiff would show how the KWAP loans were to be utilised within Najib’s purview and influence.
He added that SRC invites the court to observe the role of Nik Faisal who is the company’s former CEO and was the link between Najib and the board of directors of SRC, who were accustomed to act in accordance with the former premier’s instructions.
“The directors were updated by Nik Faisal and were essentially adopting shareholder resolutions of SRC by Najib which were brought to the attention of the directors of SRC at board meetings.
“The court will also hear evidence of circumstances where the board of SRC International were accustomed to act on the directions or instructions from Najib where there was an absence of shareholders resolutions or minutes,” he added.
The action by SRC International is one of 16 suits filed by the company since 2021 to recover the losses. Of the 16 suits, two have been settled and this case against Najib is the first to go to trial.
In addition, there is a separate suit filed by SRC International and its subsidiary Gandingan Mentari Sdn Bhd against Najib for RM42 million, where the court granted a Mareva injunction against the disposal of assets by Najib.
The first witness to be called in this civil suit is former BSI banker Kevin Swampillai.