KUALA LUMPUR (Oct 29): The High Court is set to deliver its decision on Wednesday on whether imprisoned former prime minister Datuk Seri Najib Razak has a case to answer for in the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) trial or whether he will be acquitted.

Trial judge Datuk Collin Lawrence Sequerah, who is now an appellate court judge, is set to deliver his decision at the end of the prosecution's case in the trial, where the ex-PM is charged with four counts of abuse of power for allegedly receiving gratifications worth RM2.27 billion and 21 money-laundering charges.

Prominent lawyer Datuk Baljit Singh Sidhu, who specialises in criminal law, said a prima facie case is established when the prosecution has presented credible evidence proving each element of the offence, which, if left unchallenged or unexplained, would justify a conviction.

In making this determination, Baljit said Sequerah must consider the question:

If I call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him based on the totality of evidence presented by the prosecution?

“If the answer is No, the prosecution has not established a prima facie (or a case to answer for), an order of acquittal shall be recorded. If the answer is Yes, the court shall call upon the accused to enter his defence pursuant to Section 181 of the Criminal Procedure Code (defence proceeding procedure),” Baljit added.

This is one of the five criminal cases levelled against Najib in 2018. He is already serving his prison sentence in the main SRC International Sdn Bhd criminal case since Aug 23, 2022, after the apex court dismissed his appeal and review bid.

In February, the Pardons Board reduced his initial 12-year jail sentence and a fine of RM210 million to six years and a RM50 million fine.

His 1MDB audit-tampering trial, in which he faced a charge of abuse of power with former 1MDB president Arul Kanda Kandasamy, had ended with an acquittal at the High Court in 2022.

In a slight twist of events, last week, Najib expressed regret that the multibillion-dollar scandal happened under his watch.

In a statement read outside the court by his son, Pahang executive council member Datuk Mohamad Nizar Mohamad Najib, the 71-year-old tendered an "unequivocal" apology to all Malaysians for his oversight.

Najib said that with the benefit of hindsight, he should have "acted differently" when various people had raised questions about happenings at 1MDB.

However, he maintained — in line with his defence in his myriad of court cases — that he honestly believed that the funds received were from Saudi Arabia, and not misappropriated from the strategic state development fund.

It is unclear who the apology was targeted at, and if it would have any bearing in the court of law.  

The prosecution wrapped up its case after 247 days, which stretched over six years. Najib was charged in 2018 and the trial commenced in 2019, and dragged on due to the Covid-19 pandemic and Najib's other SRC case.

A total of 50 witnesses took the stand, including former 1MDB chief executive officer Datuk Shahrol Azral Ibrahim Halmi, former 1MDB chairman Tan Sri Mohd Bakke Salleh, former second finance minister Datuk Seri Ahmad Husni Hanadzlah, former Bank Negara Malaysia (BNM) governor Tan Sri Dr Zeti Akhtar Aziz, and The Edge Media Group chairman Tan Sri Tong Kooi Ong.

In gist, the prosecution has put forth a case where Najib's actions were in line with someone who had a vested interest — to gratify himself and protect his interests.

The prosecution has also argued that infamous fugitive businessman Low Taek Jho (Jho Low) was Najib’s “mirror image” (alter ego), and that the two had worked hand-in-glove to siphon money out of 1MDB’s coffers.

During submissions, deputy public prosecutor Ahmad Akram Gharib said that Jho Low was an omnipresent character, and that prosecution witnesses had attested to Jho Low’s presence in 1MDB, and the influence he had over the running of the company and his relationship with Najib.

The prosecution highlighted that several witnesses had warned Najib fairly early on in the scandal that everything was not above board, but the then PM, who also helmed the Finance Ministry, kept mum.

The defence has countered that Najib genuinely believed the monies were a donation, which he spent on corporate social responsibility projects for the benefit of the public.

They also maintained that the 1MDB management had colluded with Jho Low behind Najib's back, and that the board had failed to adequately carry out their duties.

The defence, led by Tan Sri Muhammad Shafee Abdullah, argued that like any other company, 1MDB was governed by its memorandum and articles of association. Even when Najib was the sole shareholder and the chairman of the board of advisors, they argued that the board of directors was the "biggest organ" in a company, and that it made decisions and "pushed" it to the shareholder — Najib — for his consideration.

The defence had also tried to tear down the prosecution witnesses' credibility, arguing that the testimonies were peppered with "terrible hearsay", which was "calculated to be prejudicial" to Najib. They also questioned the lack of direct evidence showing that any of the instructions were directly from Najib.

The late Datuk Seri Gopal Sri Ram led the prosecution at the start of the case. The former Federal Court judge passed away in January 2023 due to a lung infection. He was 79 years old.

Should Najib's defence be called, the former prime minister has three options — to testify under oath from the witness stand; to testify from the dock while reading an unsworn statement where he cannot be cross-examined by the prosecution; or to choose to remain silent.

The judge has already reserved more trial dates until early next year, should Najib's defence be called.

Whatever the court's decision may be on Wednesday, Najib's legal troubles are far from over, as he has two other criminal trials awaiting him — one each related to SRC and 1MDB. Both trials have yet to begin. He is also a party to numerous SRC and 1MDB civil cases.

SRC is a former subsidiary of 1MDB.

Besides that, the ex-Umno president still has a pending case of criminal breach of trust of RM6.6 billion, involving the International Petroleum Investment Company (IPIC), where he is charged alongside former Treasury secretary general Tan Sri Dr Mohd Irwan Serigar Abdullah. That trial is slated to start next month.

Najib also faces a money-laundering trial involving RM27 million of SRC’s funds. That trial is set to begin in April next year.

Read also:
Najib offers unreserved apology, regrets that 1MDB scandal happened under his watch
1MDB-Tanore: Defence says Jho-Low 'mirror-image' of Najib theory lacks proof
Najib says didn't want to interfere with 1MDB investigations to avoid being accused of abusing power
Shafee: Power abuse charges against Najib akin to 'using a sledgehammer to kill a fly'