Below is the summary of key findings at the end of the prosecution’s case, written by trial judge Datuk Collin Lawrence Sequerah, and upon which, among others, he based his decision on Wednesday to call for the accused, former prime minister Datuk Seri Najib Razak, to enter his defence for four abuse of power and 21 money-laundering charges, for allegedly receiving gratifications worth RM2.27 billion in the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) trial.

The following account constitutes just a summary of the key findings at this stage of the trial. It does not contain all the findings on all the issues raised up to this point of the trial.

It further does not also disclose or refer to all the relevant evidence of the trial up to this stage.

It also does not comprise the full and comprehensive reasons or the full and comprehensive grounds of the decision which will be contained in the written grounds of judgement later.

1. The accused is a former prime minister of Malaysia and stands charged with 4 offences under Section 23(1) of the Malaysian Anti-Corruption Commission Act (MACC) Act 2009 and 21 offences under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLA) (Act 613). 

2. The prosecution has closed its case and submissions, both written and oral, have been made. 

3. The duty upon the court at this stage as required by law under Section 180 of the Criminal Procedure Code (CPC) is to subject the totality of the evidence of the prosecution to a positive and maximum evaluation of the credibility and reliability of all the evidence adduced in order to determine whether the elements or ingredients of the offences as framed in the charges have been established.

4. The four charges of using office or position for gratification (abuse of power) under Section 23(1) of the MACC Act and Charges 1 to 9 under Section 4(1) (a) of AMLA have been assailed by the defence for being defective, duplicitous and ambiguous, and therefore bad in law and in violation of Section 163 of the Malaysian CPC.

5. Upon a perusal and examination of all four abuse of power charges under Section 23(1) of the MACC Act, it is clear that they contain the time and place and it stated the offence with which the accused is charged. 

6. All the four charges therefore fulfil all the legal criteria required of a charge as provided for under Sections 152, 153 and 154 of the CPC.

7. In respect of Charges 1 to 9 under Section 4 of AMLA, which are also alleged to be incorrect and illegal and bad for multiplicity, I find that they also contain the time and place and it stated the offence with which the accused is charged and no prejudice is thus occasioned to the accused.

8. I find all 21 charges under AMLA fulfil all the legal criteria required of a charge as provided for under Sections 152, 153 and 154 of the CPC.

9. Section 422 of the CPC provides that any irregularity in charges can be cured provided that the accused was not prejudiced in any manner and no failure of justice was occasioned. 

10. I do not find that the accused has been misled or has suffered prejudice in relation to the charges proffered. 

11. In any event, Section 156 of the CPC states that any errors or omissions (which I do not find to be the case here), with respect to the charge are not to be regarded as material unless the accused was in fact misled as a result, which has not been the case here. 

12. Under all the circumstances, this court finds no merit in the contention by the defence that the four abuse of power charges under Section 23(1) of the MACC Act and the charges under Section 4 of AMLA were defective, duplicitous, ambiguous and in violation of Section 163 of the CPC.

13. The defence submitted that the nature of the accused’s supposed interests has not been specified in the four Section 23(1) charges under the MACC Act. The Court of Appeal (COA) decision in PP v Datuk Seri Najib Razak [2021] MLJU 2485 made it clear that the interest element is not an integral part of the offence under Section 23(1), it being an offending provision. 

14. A perusal and examination of each of the four charges reveal that the interests of the accused have been clearly spelt out and also the specific action that he took. 

15. This court finds thus that there is no merit to the contention that the prosecution failed to specify the accused’s specific interest in the four charges so as to render it defective. 

16. The prosecution through investigating officer (IO) Nur Aida Arifin (PW49) has adduced documents as listed in Annexure A and B to her witness statement as exhibits.

17. The defence however has raised an objection on the admission of documents on the grounds, inter alia, that that the documents produced by PW49 must identify the exact maker or contributor of such documents before it can be admitted in evidence. The prosecution has sought to admit these documents under Section 41A of the MACC Act. 

18. The existence of a non-obstante clause (notwithstanding anything to the contrary in any other written law) will operate to exclude the method and mode of proof prescribed by the Evidence Act 1950. The Latin maxim generalibus specialia derogant means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law. As AMLA and the MACC Act are special statutes, the maxim would operate to exclude the operation of the Evidence Act 1950 which is a general law.

19. If Parliament had intended to place limits on the manner in which these documents are obtained, as contended for by the defence, it would have expressly said so in no uncertain terms. 

20. In the premises, I find that the documents obtained by the MACC through the IO are admissible. 

21. Section 41A of the MACC Act supersedes the general provision in Chapter VA of the Evidence Act in respect of the admissibility of documents from foreign jurisdictions obtained through the MACMA. 

22. In any event, the MLA documents may be admitted as evidence and marked as exhibits under Section 8(3) of the MACMA Act 2002, subject to the assessment of weight under Section 8(4) of the same. 

23. The defence has submitted that Section 41A does not apply retrospectively. As matters relating to admissibility of documents are evidential in nature, Section 41A applies retrospectively. 

24. As the IO (PW49) had obtained these documents including copies of documents in the course of investigation under the MACC Act, the requirements of Section 41A has been fulfilled. Accordingly, all the documents as listed in Annexure A and B to the witness statement of PW49 are admissible in evidence.

25. In the premises, all documents obtained by PW49 in the course of investigations which were previously marked as IDP (including the documents obtained under the MACMA) are now converted to P exhibits. 

26. Therefore, the documents in the Lampiran Baru, Lampiran Tambahan and in Annexure G are rendered admissible. The admissibility of these documents, however, does not determine the weight to be accorded to these documents. The weight or the probative value to be accorded to these documents is a matter for assessment by this court.

27. During the course of the prosecution case, certain witnesses, namely PW8, PW9, PW10, PW12, PW13, PW15, PW16, PW41, PW44 and PW50, testified to having verbal communication with the following individuals who were not called by the prosecution as witnesses:

(a) Low Taek Jho (also known as Jho Low);  
(b) Datuk Azlin Alias;  
(c) Geh Choh Heng (Terence Geh); and  
(d) Nik Faisal Ariff Kamil. 

28. The defence submitted that evidence given by these prosecution witnesses were inadmissible on grounds of offending the hearsay rule. The prosecution on the other hand submitted that these communications may be admitted under certain well recognised exceptions to the hearsay rule.

29. The prosecution contended that Section 32(1)(b) of the Evidence Act can be utilised to admit these verbal communications.

30. The necessary conditions that must be fulfilled in order for these statements to be admitted are as follows:

(i) Statements — either written or verbal; 
(ii) Must be of relevant facts; 
(iii) Made by a person who cannot be found; and 
(iv) in the ordinary course of business. 

31. The case of Tan Mooi & Ors v Tengku Mohd Saad & Ors [2018] Supp MLJ 492 has settled the position that statements admissible under this Section can be verbal. 

32. The matters testified to by these witnesses inter alia were in respect of the reasons why certain action and conduct were taken by them in regard to matters concerning the running of the business of 1MDB and their belief that the instructions emanated from the accused who held an elevated position and thus were relevant to the facts in issue.

33. The evidence that Jho Low was not within the jurisdiction principally came from the testimony of PW50 who had been in communication with him for some time. Exhibits D949 (A-H) and D796 in respect of charges filed against Jho Low in abstentia were tendered by the prosecution. 

34. Evidence was also given that there was an income tax case against him and that he was no longer a resident in Malaysia. The prosecution has therefore proven that Jho Low is a person that cannot be found. 

35. Under all the circumstances, judicial notice can also be taken that Jho Low is someone who cannot be found.  

36. The demise of Datuk Azlin in a tragic helicopter crash on April 4, 2015 was widely reported in the media. 

37. Both these persons were charged in abstentia and also had civil suits filed against them in abstentia. Under all the circumstances, the finding of this court is that the condition that these were persons who cannot be found were fulfilled. 

38. PW8 (special officer to the accused) communicated with Jho Low, Datuk Azlin and Terrence Geh in relation to matters involving 1MDB. 

39. PW9 was the chief executive officer of 1MDB from March 23, 2009 until March 2013. During that period, he communicated with Jho Low pertaining to instructions made by the accused in his capacity as the chairman of the 1MDB’s board of advisors and as the minister of finance and prime minister to PW9 in his capacity as the CEO of 1MDB.

40. PW9 also communicated with Datuk Azlin and Terrence Geh in relation to matters involving 1MDB. PW9 also communicated with Nik Faisal. 

41. PW10 was the first chief operating officer of 1MDB and later its CEO. 

42. Similar to the case with PW9, PW10 had communicated with Jho Low pertaining to instructions made by the accused in his capacity as the chairman of the 1MDB’s board of advisors and as the minister of finance and prime minister to PW10 in his capacity as the CEO of 1MDB.  

43. PW12 was the chief financial officer of 1MDB between June 1, 2012 and December 2017, and was responsible for the financial matters of 1MDB during that period, during which he was in constant contact with Jho Low and Datuk Azlin Alias as well as Terence Geh in matter pertaining to 1MDB.

44. PW13 was involved in Terengganu Investment Authority (TIA) and a board member of 1MDB between September 2009 and 2016. PW13 had communicated with Jho Low on matters relating to TIA/1MDB and had met Jho Low in the presence of the accused on numerous occasions. He had also received emails from Jho Low from time to time on 1MDB matters.

45. PW15 was involved in TIA and subsequently as the chairman of 1MDB’s board of directors (BOD) on Aug 11, 2009, and left on Oct 19, 2009.

46. PW15’s evidence showed the relationship between the accused and Jho Low during the 1MDB meeting on Sept 26, 2009, when PW15 received the accused’s instruction to proceed with the joint venture (JV) with PetroSaudi International Ltd (PSI) over Jho Low’s handphone. 

47. PW16 was a special officer of the accused and involved in arranging a number of vacations for the accused and his family members. Jho Low was also involved in the organisation of these vacations and there were constant communications between PW16 and Jho Low in relation thereto.

48. There was also evidence of this in the form of photographs and emails. 

49. PW41 was the relationship manager (banker) in charge of the accused’s bank accounts and testified to matters involving the accused bank accounts in AmBank, particularly the ‘9694’ account. She had communicated with Jho Low via BlackBerry Messenger (P1479) in respect of these bank accounts. 

50. PW44 was a BSI banker in charge of various investments made by 1MDB and its subsidiaries. His evidence showed the role played by Jho Low in arranging for investments made by 1MDB and the transactions thereto. 

51. PW50 was the legal counsel of 1MDB between May 2011 and November 2013. She gave evidence about Jho Low’s role in the affairs in 1MDB as well as Jho Low’s close association with the accused. 

52. Upon a consideration of all the circumstances, including the nature of the relationship that some of these witnesses had with the accused, the finding of this court is that the said communications were made in the ordinary course of business. 

53. The established authorities in respect of the applicibilty of Section 32(1)(b) of the Evidence Act stipulate that the words in the subsection “in the ordinary course of business” ought to be given a broad and liberal connotation. See Tay Choo Foo v Tengku Mohd Saad & Ors [2009] 2 CLJ 363 placing reliance upon the Indian case of Devi Singh v Phulma AIR [1961] HP 10 where it was held that to hold otherwise would result in the shutting out of proof of facts on which on account of lapse of time direct evidence is not available.

54. Upon an examination of the evidence given by the above witnesses, this court’s ruling is that communications made between the relevant prosecution witnesses and the persons who cannot be found were made relating to matters pertaining to the running of the affairs of 1MDB and related matters and thus were in fact made in the course of their ordinary business, thereby falling under the exception to the hearsay rule pursuant to Section 32(1)(b) of the Evidence Act 1950. 

55. I also find that these oral communications are admissible under the rule enunciated in the case of Subramaniam v PP [1956] 1 MLJ 220 where the purpose is to establish by the evidence, not the truth of the statement, but the fact that it was made. 

56. Based upon the reasoning above, this court also finds that the related documents listed in Annexure E are also admissible.

57. This court also finds all the other documents listed in Annexure E are also admissible upon similar reasoning.

58. The thrust of the defence's submissions in respect of the credibility of certain prosecution witnesses is premised inter alia, upon the accused being an unwitting victim and scapegoat of the scheme formulated by these witnesses to defraud 1MDB behind the back of the accused and because of their self-serving and vested interests, are unworthy of belief. 

59. Amhari Efendi (PW8) admitted that he received monies from Jho Low. Jasmine Loo (PW50) also admitted that she was given cash and gifts by Jho Low and that Jho Low gave her RM100 million between 2011 and 2014 as part of their JV to make investments.  

60. Shahrol Azral (PW9) only received a salary and bonuses for his position in the company.

61. Tan Sri Dr Zeti Akhtar Aziz (PW43), a former Bank Negara Malaysia (BNM) governor, was alleged to have had an ulterior motive to serve as her family members were also implicated. 

62. Despite the allegations levelled against them, these witnesses were not accomplices and were candid about their acceptance of certain favours and gifts. In this regard, there is no legal presumption that an interested witness should not be believed. 

63. I find the testimonies of these witnesses in relation to the role of the accused with regard to the charges proffered were consistent and it further constituted a common thread of evidence which was not coincidental with regard to the involvement of the accused and his relationship with Jho Low and other persons who were not called. 

64. In the overall scheme of things, this court also finds that there ultimately would be no motive for these witnesses to testify and to frame up the accused who was at the time wielding enormous powers as the prime minister and finance minister. 

65. Considering the evidence as a whole including the provisions of Articles 68,93 and 117 of the company’s Memorandum and Articles of Association (M&A), the accused stood at the apex of the decision-making process. 

66. It would be tantamount to suicide for these witnesses to deliberately give evidence against the accused given the latter’s position at the time.

67. It is important to bear in mind that at the end of the day, these witnesses were not the ones on trial and notwithstanding the allegations against them, I find that their evidence in respect of the main facts in issue in the trial are capable of belief.  

68. Therefore, upon a perusal and analysis of the evidence and based upon the demeanour of these witnesses, this court finds that despite the accusations levelled, the credibility of these witnesses remains intact with regard to the main facts in issue in this case.

69. The finding of this court in respect of the rest of the prosecution witnesses is that their credibility is also intact and capable of belief. 

70. The prosecution has already called the directors of 1MDB to testify to the relevant facts in issue as was essential to unfold the narrative of the prosecution case.

71. There was therefore no necessity to call all the other BOD members to testify.  

72. The defence has alleged biased and shoddy investigation on the part of the prosecution. 

73. This court however finds no merit in this contention as the investigations in respect of 1MDB were commenced in 2014 when the accused was still the PM and resumed thereafter in 2018. 

74. With regard to the allegation that Najib was asked certain questions when his statement under Section 53(3) of the MACC Act was taken, I find that this has not caused prejudice to the accused in light of the nature of the cross-examination of the prosecution witnesses, in particular PW49.  

75. The accused is charged for four offences under Section 23(1) of the MACC Act.

76. First, that the accused was an officer of a public body at the material time. Second, that he used his position in the manner described in each of the charges for the gratification specified in the respective charges for himself.

77. In respect of this ingredient which is common to all the four charges, reference is made inter alia to Exhibits P1, P3, P4, P5, P7 and P10. The evidence inter alia of PW1, PW2, and PW3 is also referred to. 

78. It is evident that the accused received remuneration from both Parliament and the Prime Minister’s Department.  

79. The accused was also an officer of a public body by virtue of his position as the chairman of the board of advisers of 1MDB (refer to Article 93(2)(a) of 1MDB’s M&A — Exhibit P329) and to Section 3 of the MACC Act; Article 160 of the Federal Constitution; Section 66 of the Interpretation Acts; Article 43 of the Federal Constitution; Section 57(1)(h) and Section 56 of the Evidence Act. 

80. There was no serious challenge to the accused’s position as the prime minister, minister of finance of Malaysia as well as the chairman of the board of advisers of 1MDB and that the accused was an officer of a public body at the material time. 

81. Based upon the above, I find that the ingredient that the accused was an officer of a public body has been proven in respect of all the four charges of use of office or position for any gratification (abuse of power) charges under Section 23(1) of the MACC Act.

82. The second element of Section 23(1) that must be established is that the accused had used his position for gratification for himself.

83. Subsection 23(2) of the MACC Act provides that when an officer of a public body makes any decision, or takes any action, in relation to any matter in which he has an interest, whether directly or indirectly, he shall be presumed to have used his office or position for gratification, unless the contrary is proved.

84. The evidence to show that the accused took the first action inter alia came from the evidence of PW11 (Tan Sri Mazidah Abdul Majid) who was the deputy head secretary (Cabinet) in the Prime Minister’s Department which proved that the accused did on April 1, 2009: 

i. attended the Cabinet meeting; 
ii. presented a Memorandum of the Ministry of Finance (MOF) No.216/2639/2009 (Exhibit P242A); 
iii. obtained the consent of the Cabinet for the provision of a guarantee by the government of Malaysia to TIA to enable TIA to obtain domestic and foreign market loans of up to RM5 billion by way of an Islamic medium-term notes (IMTN) programme.

85. For the second action in the first charge, PW11’s evidence inter alia is referred which shows that the accused did on July 29, 2009:

i. attended and chaired the Cabinet meeting;
ii. presented Nota Jemaah Menteri No.H553/2009 entitled “Nota daripada Menteri Kewangan: Penubuhan Malaysia Investment Berhad” (Exhibit P857) signed by the accused in his capacity as the minister of finance; and 
iii. approve the acquisition of TIA by the government of Malaysia and further caused TIA’s name to be changed to 1Malaysia Development Bhd (1MDB).

86. To prove the third action in the first charge, reference is made to the evidence inter alia of PW15 (Tan Sri Mohd Bakke Salleh) who referred to the Minutes of the Special Meeting of the BOD of 1MDB dated Sept 26, 2009 (Exhibit P361). 

87. In re-examination, PW15 also testified as to the impact of the phone call he had with the accused on his mind vis-a-vis the JV with PSI.

88. The evidence showed that the accused did on Sept 26, 2009:

i. have a teleconversation with PW15 who was about to chair the 1MDB BOD meeting; and
ii. directed the BOD of 1MDB during a special meeting at The Royale Bintang Damansara to pass a resolution authorising 1MDB to participate in a JV with PSI.

89. To show that the accused took the fourth action in the first charge, the evidence inter alia of PW9 (Datuk Shahrol Azral), PW13 (Tan Sri Ismee) and PW50 (Jasmine Loo) is referred to, which show that the accused had:

i. signed the Minutes by Representatives of Holding Company (MR) with regard to investment of an additional RM1 billion under the murabaha financing agreement with 1MDB PetroSaudi Ltd (Exhibit P418) and Special Rights Redeemable Preference Shareholder Resolution in Writing (SRRPS) with regard to investment of an additional RM1 billion under the murabaha financing agreement with 1MDB PetroSaudi Ltd (Exhibit P419); and thereby
ii. caused the BOD of 1MDB to pass a circular resolution (Exhibit P417) authorising an investment of an additional RM1 billion (or equivalent in US dollars) under the murabaha financing agreement dated March 31, 2010 with 1MDB PetroSaudi Ltd.

90. PW9, PW13 and PW50 testified that Exhibits P418 and P419 (the MR and the SRRPS) respectively were signed by the accused on May 16, 2011.

91.The evidence led by the prosecution revealed that the accused displayed interest in TIA from the inception and played a central role in the taking over of TIA by the government and in subsequently changing the name to 1MDB.

92. The accused also was instrumental in causing the Cabinet to consent to the provision of a guarantee by the government to enable TIA to obtain the RM5 billion IMTN loan.

93. The evidence adduced show that without the involvement of the accused in his role as the minister of finance and as the prime minister in certain key actions, the JV would not have taken off. 

94. In addition to his role as the PM, minister of finance, sole shareholder and chairman of the board of advisors, the accused had a definite interest in the events leading up to the formation of the JV and beyond. 

95. Without the accused signing the SRRP and MR, it would not have been possible for 1MDB to release the further US$330 million loan. 

96. An examination and evaluation of the evidence showed that Najib had taken such actions in matters in which he had an interest which were the basic facts necessary to raise the rebuttable presumption that the accused had used his office or position for gratification under Section 23(2) of the MACC Act in respect of the first charge.

97. Although this element need not be proved at the end of the prosecution case (see the COA decision in the SRC International Sdn Bhd case), for the sake of completeness and in order to complement the undertaking of the maximum evaluation of the prosecution case, the testimony by PW47 and the money trial report showed that between Feb 23, 2011 and June 14, 2011, a total sum of approximately US$20 million equivalent to RM60,629,839.43 of the proceeds that were credited into the accused’s account at AmIslamic Bank, specifically AmPrivate Banking — MR (account No.211-202-200969-4) from an account at Riyadh Bank, Saudi Arabia, were found to be traceable to the issuance of the IMTN bond in 2009 and the syndicated term loan in 2010.

98. The second amended charge relates to the acquisition of two independent power producers (IPPs), namely Tanjong Energy Holdings Sdn Bhd and Mastika Lagenda Sdn Bhd. 

99. The prosecution led evidence to show that the accused took certain action and caused 1MDB to enter into these two transactions.  

100. In respect of the first acquisition, the accused approved the acquisition through the MR in his capacity as the finance minister pursuant to Section 147(6) of the Companies Act 1956 on Feb 9, 2012.  

101. The accused had also issued SRRP minutes in his capacity as a holder of special rights of the company on the same date approving the said acquisition for a bid price amounting to RM10.6 billion.

102. PW9 testified as to the fact that the accused was aware of the fundraising structure for the acquisition of the Tanjong Energy IPP, and that the said acquisition could not have materialised without the action of the accused in signing the MR (P456) and the SRRP (P457). 

103. In respect of the second action, the evidence adduced showed that 1MDB embarked for the acquisition of Genting Sanyen’s IPP (Mastika Lagenda). The purchase price for that acquisition was RM2.75 billion. 

104. The action taken by the accused showed that he issued the MR and SRRP minutes in his capacity as a holder of special rights i.e. the minister of finance on Aug 10, 2012 approving the said acquisition at an aggregate purchase price amounting to RM2.75 billion.

105. PW9 testified that this acquisition could not have materialised without the issuance of the MR and the SRRP. 

106. The accused also signed a letter in his capacity as the minister of finance dated Aug 3, 2012, which allowed 1MDB to incur further indebtedness pursuant to Section 6 of the Loan Guarantee (Bodies Corporate) Act 1965. 

107. For the acquisition of the Genting Sanyen/Mastika Lagenda IPP, another US$1.75 billion bond was issued by the Bank of New York Mellon as a result of which US$1,640,000,000.00 was paid into 1Malaysia Energy (Langat) Ltd's (1MELL) bank account on Oct 19, 2012. 

108. A consideration of all the evidence showed that the accused had taken such actions in matters in which he had an interest which were the basic facts necessary to trigger the presumption under Section 23(2) of the MACC Act in respect of the second charge. 

109. Although this element need not be proved at the end of the prosecution case (see the COA decision in the SRC case), for the sake of completeness and in order to complement the undertaking of the maximum evaluation of the prosecution case, the money trail done by PW47 shows that the money that ended up in the accused’s 9694 account (RM90,899,927.28) originated from the bond issuance meant for acquisitions of Tanjong Energy’s IPP (1MEL) and Mastika Lagenda’s IPP (1MELL). 

110. This phase was in relation to a JV between 1MDB and Aabar (ADMIC), which the accused, as the minister of finance, approved, where the International Petroleum Investment Company (IPIC) was to guarantee Aabar’s investment. 

111. As the minister of finance, the accused had approved the two sets of internal memos approving the fundraising by the government. The first internal memo dated Feb 18, 2013 shows approval by accused as the minister of finance for the government to issue a letter of support for the fundraising of US$6 billion.  

112. On the same day, a ‘Memorandum Jemaah Menteri daripada Menteri Kewangan’ was sent to the Cabinet to be tabled. The memo was presented and approved by the Cabinet on Feb 20, 2013. 

113. Sometime in March, there was another internal memo that was prepared to supercede the earlier one where the fundraising amount was reduced to US$3 billion and certain terms were altered. 

114. In March 2013, the accused agreed to all terms and conditions proposed by Goldman Sachs. Another ‘Memorandum Jemaah Menteri daripada Menteri Kewangan’ was sent to the Cabinet to be tabled, which the Cabinet approved on March 13, 2013. 

115. PW9 and PW13 testified that when they were shown by PW50 the Directors’ Circular Resolution in Writing (Exhibit P529) to be signed, the DCR was attached together with Exhibit P530, the MR signed by the accused in his capacity as the minister of finance, and P531, the Special Rights Redeemable Preference Shareholder Resolution signed by the accused in his capacity as the sole shareholder of IMDB.  

116. Thereafter, the DCR (Exhibit P529) was signed by the BOD. 

117. Evidence was led thus that the accused had approved the execution of a JV agreement between 1MDB and Aabar. 

118. On March 12, 2013, the accused attended the signing ceremony of the JV between 1MDB and Aabar Investments PJS amounting to US$6 billion that was held at the Prime Minister’s Office. 

119. The prosecution evidence shows that on March 14, 2013, the accused signed a letter of support (LOS) to raise a loan through the issuance of bonds by 1MDB in the sum of US$3 billion. 

120. On March 19, 2013 the disbursement was made immediately by Bank of New York Mellon Group to 1MDB GIL’s account.

121. The evidence on the speed of the fundraising transaction was given by PW26, PW42, PW9 and PW10. 

122. Despite the defence's allegations of the involvement of others with regard to the decision-making process, it was the accused who had taken action in various capacities, namely at the 1MDB stage as the sole shareholder, the MOF stage, and at the Cabinet stage.  

123. The accused was therefore the ultimate decision-maker. He had also not seen fit to lodge any police reports in respect of the alleged involvement of others. 

124. A consideration of all the evidence above showed that the accused had taken such actions in matters in which he had an interest which were the basic facts necessary to raise the presumption under Section 23(2) of the MACC Act in respect of the third charge. 

125. The evidence of PW47 had showed the flow of money from the US$3 billion bond issuance purportedly for the development of the Tun Razak Exchange (TRX) had ultimately been diverted into the accused’s bank account. 

126. The fourth charge or phase relates to the purchase of the Aabar options by 1MDB given to Aabar in 2012 as alleged part consideration for IPIC’s guarantee for the notes that raised US$3.5 billion. This phase is also known as the “option buyback”. 

127. In 2014, 1MDB through its subsidiary company undertook an initial public offering (IPO) of its energy division. In order to successfully undertake the IPO, the company must ensure that it was free from any financial or minority interest or risk being rejected for listing on Bursa.

128. The option buyback phase involved the redeeming of Aabar's 49% stake in 1MDB Energy Sdn Bhd under 1MDB Energy Ltd (1MEL) and also 49% of 1MDB Energy (Langat) Sdn Bhd under 1MDB Energy (Langat) Ltd (1MELL), which was executed in Phase 2. 

129. In order to redeem the options held by Aabar, 1MDB had to seek financial sources to finance the termination option payment to Aabar.

130. The evidence to show that the accused had taken action in respect of this charge came from PW9, PW10, PW12 and PW13 respectively.

131. The accused approved the two loans to buy back the shares from Aabar. 1MEHL entered into two term loan agreements with Deutsche Bank Hong Kong, the first of which was a US$250,000,000.00 first loan which constituted the first action in this charge.

132. On May 22, 2014, the BOD approved a DCR. In the DCR, the approval of the 1MDB BOD was given to terminate the Aabar options agreement and also approval for 1MDB Energy Holdings Ltd to obtain a loan not exceeding US$300 million from Deutsche Bank AG. 

133. According to PW9, the DCR was received together with the SRRP and MR attached which had been approved by the accused.  

134. PW10 also testified that it was the practice in 1MDB that when the BOD received the DCR, the shareholder resolution and MR signed by the accused were attached together and originally undated. 

135. Although there was no SRPP and MR tendered by the prosecution in respect of this transaction, the evidence of the prosecution witnesses was sufficient to establish that the DCR for the US$250 million was accompanied by the SRPP and the MR duly approved by the accused. 

136. Evidence was led to show that the first loan taken by 1MDB amounting to US$250 million would not have materialised without the approval by the accused.  

137. The purpose of the second loan of US$975 million was to refinance the US$250 million and also to pay the remaining outstanding payment to Aabar. 

138. PW10 confirmed that the BOD signed the DCR for the US$975 million loan. When this DCR was received by the directors, the shareholder resolution and MR were already signed by the accused. 

139. The accused also signed the letter of approval and support which also evidenced that the accused was aware of the existing US$250 million obtained by 1MEHL.  

140. From the evidence led, the loan amounting to US$975 million would not have materialised without the accused’s approval. 

141. A consideration of all the evidence above showed that the accused had taken such action in matters in which he had an interest which were the basic facts necessary to trigger the presumption under Section 23(2) of the MACC Act in respect of the fourth charge. 

142. Although this element need not be proved at the end of the prosecution case (see the COA decision in the SRC case), for the sake of completeness and in order to complement the undertaking of the maximum evaluation of the prosecution case, the evidence showed that the sum of RM44,570,920.70 credited into the accused’s account at AmIslamic Bank AmPrivate Banking were found to be traceable to the US$250 million and the US$975 million loan proceeds of 1MEHL in 2014.

143. TIA’s conversion to 1MDB and Articles 117, 68 and 93 of the M&A.

a. The accused was instrumental in changing TIA’s name to 1MDB. Evidence shows that the accused caused amendments to be made to Articles 117, 68 and 93 to place himself in sole control of important matters concerning the business and affairs of the company. 
b. PW26 in her testimony also confirmed that Articles 68, 93 and 117 in 1MDB's M&A are not present in any other M&As of other companies under MOF Inc.

144. The Public Accounts Committee (PAC) hearing 

a. PW15 testified that two weeks ahead of testifying before the PAC in 2016 about the affairs of 1MDB, PAC’s then chairman Datuk Seri Hasan Arifin met him twice to brief him on what to say at the hearing, with the objective being to safeguard the name of the accused and Jho Low. 
b. PW15 testified that this was on the instructions of the accused. 

145. Relationship with certain influential Arabs while on holiday

a. Evidence was led by PW16 that the accused and his family had met with Arab royalty, namely from Kuwait, Saudi Arabia and Abu Dhabi, while on holidays in Europe.
b. Most notably, PW16 said that on one such occasion, the accused had met with Mohamed Badawy Al-Husseiny, who was a director of Aabar Investments PJS. 
c. PW16 further said that Jho Low was also present. 

146. The bailout in China 

a. PW8 who was the accused former special officer testified that he was instructed personally by the accused to go to China on a secret mission and offer infrastructure projects in return for money to bail out 1MDB and SRC.

147. Secret mission to Abu Dhabi 

a. PW8 testified that the accused had in 2016 assigned him to meet Mubadala Investment Co group CEO Khaldoon Khalifa Al Mubarak to settle the 1MDB-IPIC dispute outside the International Court of Arbitration.  

148. Termination of KPMG

a. The investment in Brazen Sky became the major scrutiny by the auditors (KPMG) in 2013 and KPMG refused to sign off the accounts because 1MDB failed to produce documents that were required by the auditors to sign off on 1MDB’s accounts.
b. The accused instructed KPMG to complete and sign off on its audit of 1MDB’s 2013 financial statements within two weeks although KPMG had yet to receive crucial documents and information on a US$2.318 billion purported investment by 1MDB. PW14 described the instruction by the accused to the audit firm as a form of intimidation. Notwithstanding, KPMG was still unable to sign off on the accounts as they were still lacking documents from 1MDB. 
c. As a result, on Dec 31, 2013, the accused terminated KPMG as the auditor for 1MDB with immediate effect, and replaced it with Deloitte KassimChan.

149. The ousting of finance minister II 

a. PW20, Datuk Seri Ahmad Husni Hanadzlah, who was the second finance minister, testified that he attempted to caution and raise certain concerns of his with the accused in relation to the establishment of 1MDB and the PSI-1MDB JV, but was told in no uncertain terms to stay away from matters involving 1MDB.

150. Fast-tracking of government guarantee for 1MDB’s US$3 billion bond

a. PW26 testified that in 2013, the Malaysian government fast-tracked the issuance of a government guarantee for a new US$3 billion borrowing in 2013 by a 1MDB subsidiary without following the proper procedures.

151. No reports lodged with the authorities and banks 

a. Despite the fact that by 2015, the publicity about the financial scandal involving 1MDB surfaced, PW8 said that he received no instructions from the accused to lodge any reports with the authorities. 

152. The Edge Media Group chairman attempts at clarification went unheeded

a. The Edge Media Group chairman, PW43, Tan Sri Tong Kooi Ong, testified, on March 6, 2015, he went to the accused’s house in Langgak Duta to seek clarification regarding the problems arising regarding the affairs of 1MDB.
b. PW43 told the accused during this meeting that Jho Low should be held accountable for the diversion of US$700 million to Good Star and should face prosecution but as a response, the accused went to the door and opened it for him to leave.

153. Certain other action taken by the accused

a. A special task force led by the then attorney general, Tan Sri Abdul Gani Patail, comprising several authorities was formed for the purpose to facilitate and investigate the allegations against 1MDB as well as the transactions of monies deposited into the accused’s accounts.  
b. The task force however was disbanded upon the instructions of the accused on July 27, 2015. 
c. Further, there was evidence led that the accused had taken steps to cause the removal of the MACC’s chief commissioner, while the AG who replaced Abdul Gani had closed the case.
d. In 2016, the accused caused the removal of paragraphs containing two versions in the 2014 1MDB audit report, among others, the removal of Jho Low's name from the Minutes of the Special Board of Directors Meeting dated Sept 26, 2009. 
e. Sometime in July 2015, the accused instructed the then BNM governor (PW46) to release a statement stating there were no wrongdoings involving the monies that were credited in his accounts. However, this was refused by PW46. 

154. Top-down approach

a. PW9, PW10, PW12 and PW13 testified that it was a common practice in 1MDB to prepare the DCR, SRRP and MR regarding a decision to be made by 1MDB, even if it was not discussed in any meetings.
b. This method was described as involving a “top-down" approach where 1MDB's management will execute these projects only after receiving approval from the accused. The BOD would then follow and agree with the accused’s decisions and subsequently sign the DCR. 
c. The approach adopted in 1MDB constituted cogent evidence of the top-down approach as testified to by the prosecution witnesses. 

155. The chairman of the board of advisors (CBOA meetings)

a. The prosecution referred to Exhibits P331, P396 and P414 being the minutes of CBOA meetings as evidence that the accused had acted in his capacity as the chairman of the board of advisers of 1MDB notwithstanding that the meetings were held between the accused and PW9.
b. This evidence supported the fact that the position of the CBOA had existed in 1MDB as stipulated in Article 92 of the M&A and that the accused had exercised his powers in his capacity as the chairman of the CBOA.

156. The nine audio recordings 

a. PW49 referred to nine audio recordings she obtained in the course of her investigations which showed that there were attempts to cover up the 1MDB issues by the accused with the help of a number of individuals. 

157. The statement of the accused given under Section 53 of the MACC Act

a. In his statement, the accused admitted to receiving the monies into his accounts as stated in the four corruption charges. He also admitted on Pages 6 to 7 of D1801 with respect to these monies having been sent and that cheques were issued personally to various parties, which constituted part of the 21 AMLA charges. 
b. The accused admitted that he had full control and authority over the spending of his bank accounts at AmBank and not Nik Faisal, Azlin or Jho Low.  
c. The accused also stated on Page 23 that pursuant to an event dubbed as “peristiwa 916” (on Sept 16, 2008), there was a need for him to find political funding to avoid any Members of Parliament from Barisan Nasional from jumping ship to another party and thus causing him to lose political power. 
d. This admission by the accused lent credence to the evidence of PW19 (Tan Sri Mohd Sidek Hassan) who testified that 1MDB was initiated as a political fund for Barisan Nasional.  
e. Amhari’s (PW8) evidence also reiterated the fact that 1MDB was used as a fund for the accused’s political purposes.  
f. The evidence has shown that the accused could not have obtained the funds were it not for his positive action with regard to 1MDB in which he had vested interests. 
g. The accused further in his statement alluded to the role played by Jho Low in relation to all fundraising exercises mentioned in the four MACC charges. 
h. An examination and consideration of all the evidence and circumstances as stated above, and viewed as a whole, also amounted to cogent evidence that the accused had taken action in 
relation to matters in which he had vested interests constituting a sufficient basis for the raising of the rebuttable legal presumption under Section 23(2) of the MACC Act.  
i. The various courses of action taken above also constituted conduct that is relevant (see Section 8 of the Evidence Act).  
j. Based upon the evidence adduced by the prosecution, this court finds that the accused has not rebutted the presumption under Section 23(2) in respect of all the four abuse of power charges on a balance of probabilities.

158. There were no benefits that the actions of the accused had brought to the government of Malaysia and no interest or advantage had accrued to the government.  

159. Under all the circumstances therefore, this court finds no merit in the contention by the defence that the accused was entitled to the defence under Section 24(4).  

160. PW50 testified that that sometime in 2015 when she was in London, she met Jho Low and also saw Kee Kok Thiam, Datuk Shamsul and Dennis See. 

161. According to PW50, she heard Jho Low instruct Kee to prepare a letter from Prince Saud to confirm that the monies deposited were a donation from Saudi Arabia. 

162. This was in response, according to PW50, to the inquiry by Datuk Shamsul to Jho Low as to certain allegations that the monies that had been deposited into the accounts of the accused were monies from 1MDB. 

163. PW50 said that she then left the room and when she returned, she saw Kee preparing the said letter, namely (D1451) (IDP1478) date June 1, 2014. 

164. This piece of evidence supports the case for the prosecution that the funds received by the accused were not in fact donations from the Arabs but as a result of the actions and vested interests of the accused as stated in the charges proffered.  

165. This further raises the reasonable inference that the other letters in respect of the Arab donations were of questionable origin. 

166. Based upon a maximum evaluation of the evidence by the prosecution at the end of the prosecution case, this court finds that all the ingredients of all the four charges under Section 23(1) of the MACC Act 2009 have been successfully made out which if unrebutted would warrant a conviction. 

167. This court therefore finds that a prima facie case has been made out against the accused in respect of all the four charges and calls upon the accused to make his defence on all the four charges.  

168. The accused is charged with 21 charges of money laundering amounting to RM2,081,476,926.00 under Section 4(1)(a) of AMLA over a period from March 22 until Aug 30, 2013. 

169. The respective 21 acts of money laundering which constitute the charges can be conveniently categorised as follows: 

a) nine charges of receiving proceeds of an unlawful activity 
b) five charges of using proceeds of an unlawful activity; and
c) seven charges of transferring proceeds of an unlawful activity 

a) Nine charges of receiving proceeds of an unlawful activity 

i. The following were led in evidence, inter alia, by the prosecution.
ii. Prosecution witnesses Uma Devi (PW37), Joanna Yu (PW41) and Cheah Tek Kuang (PW39) testified that the accused had opened a bank account number 2112022009694 with AmIslamic Bank Bhd, Cawangan Raja Chulan, No.55, Jalan Raja Chulan, Bukit Ceylon, Wilayah Persekutuan Kuala Lumpur, on Jan 13, 2011, which was designated as AmPrivate Banking-MR (Account 9694).
iii. Documentary evidence was also tendered to show the opening statement of Account 9694, AmIslamic Bank Bhd's payment slip for RM500 for opening of the said account.  
iv. Evidence was also led to show that the sum of US$681,000,000.00, which originated from bank account number 8550299001 registered under the name of Tanore Finance Corp, at Falcon Private Bank, Singapore was transferred to the accused’s Account 9694. 
v. The total sum in Malaysian ringgit equivalent was RM2,081,476,926.00.

b) Five charges of using proceeds of an unlawful activity 

i. Evidence was led by the prosecution to show that from the funds derived from illegal activities, the accused did by way of several cheques from Account No.9694 make payment to several entities and persons. 
ii. On Aug 2, 2013, a cheque No.571854 amounting to RM20,000, 000.00 was issued to Umno. 
iii. On Aug 7, 2013, a cheque No.571857 amounting to RM100,000.00 was issued to Umno Bahagian Batu Kawan. 
iv. On Aug 7, 2013, a cheques No.571858 amounting to RM246,000.00 was issued to Lim Soon Peng. 
v. On Aug 12, 2013, a cheque No. 571859 amounting to RM2,000,000.00 was issued to ORB Solutions Sdn Bhd. 
vi. On Aug 14, 2013, a cheque No. 571856 amounting to RM303,000.00 was issued to Semarak Konsortium Satu Sdn Bhd. 
vii. All the witnesses called from the abovesaid entities, including Wong Nai Chee (PW5) in respect of the payment made to Lim Soon Peng, testified to receiving the cheques. 
viii. They were also other documentary evidence tendered which showed the cheques being issued, received and honoured. 

c) Seven charges of transferring proceeds of an unlawful activity

i. The prosecution led evidence to show that the accused had transferred funds from Account 9694 to the Tanore account and his newly opened AmIslamic Bank No.211-202-201188-0 AmPrivate Banking-1MY (Account 1880).
ii. The accused transferred a total of RM2,034,350,000.00 to Tanore through five tranches commencing on Aug 2, 2013, and ending on Aug 23, 2013.  
iii. In respect of charges 20 and 21 (amendment), evidence was led to show that a total of RM161,411,646.34 was transferred by the accused from Account 9694 to Account 1880 through two transactions.
iv. The evidence also revealed that there was a letter of instruction from the accused dated Aug 26, 2013 to close his Account 9694 and his savings account of 211-002-009048-1 and had given instructions in respect of the balance amount in Account 9694. 

The identified amounts (monies) were proceeds of an unlawful activity.

170. The charges against the accused in respect of money laundering comprised the money deposited in the accused’s bank Account 9694 amounting to RM2,081,476,926.00.  

171. Based on the definition of “property” above stated, the monies in the said bank account falls under paragraph (a), i.e. assets of every kind, and the bank cheques are encapsulated in paragraph (b).

172. Thus, the said money and bank cheques are “property” as defined under AMLA. 

173. The definition of unlawful activity means any activity which is related, directly or indirectly, to any serious offence or any foreign serious offence.

174. The definition of a serious offence means inter alia, any of the offences specified in the Second Schedule. 

175. A charge under Section 23 of the MACC Act is listed as one of the offences in the Second Schedule. 

176. In light of my finding in respect of the third charge under Section 23(1) of the MACC Act, the prosecution has thus sufficiently proven that the said property was as a result of an unlawful activity.

177. The prosecution had also adduced evidence through Adam (PW47) (referring to BNM analyst Adam Ariff Mohd Roslan) who tendered a money trial report (P155) and Phase 3 chart (P805) in order to show that the monies received in Account 9694 belonging to the accused were as a result of the action he took with respect to charge No.3 under Section 23(1) of the MACC Act. 

178. The time frame between the acts of the accused and the receipt of the funds was also proximate. 

179. This method of demonstrating that the funds deposited into the account of the accused 9694 totalling US$680,999,988.00 were from Tanore was explained by ACP Foo Wei Min (PW48). 

180. PW48 explained that this method was used in order to differentiate between clean monies and illegal monies when the funds were co-mingled as was the case here. This led to the amendment of some of the charges. 

181. Based upon the available evidence, this court finds that the said properties were as a result of the unlawful activity.

182. The definition of money laundering in Section 3 of AMLA stipulates the knowledge or mens rea element of the offence as follows: 

“Where- 
(aa) as may be inferred from objective factual circumstance, the person knows or has reason to believe, that the property is proceeds from any unlawful activity; or 
(bb) in respect of the conduct of a natural person, the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity;” 

183. The prosecution has led evidence to show that these objective factual circumstances as stipulated in paragraph aa) and in bb) can be reasonably inferred from the following conduct by the accused: 

184. The accused maintained three current accounts at the same bank, which were opened on the same day, i.e. on July 31, 2013, immediately after Account 9694 that received proceeds from Tanore was closed on the instructions of the accused.  

185. There were code names assigned for all the accused’s personal accounts at the bank, such as Account 9694 as AmPrivate Banking-MR, and Account 1880 as AmPrivate Banking-1MY. 

186. Evidence was led that the accused was very much in control and in charge of the accounts at AmIslamic Bank, despite appointing a mandate holder such as Nik Faisal. According to the accused’s statement, he had the knowledge as to the transactions that took place and the purposes for which it was intended.

187. Tan Sri Zeti (PW48) said that the accused had asked her to declare that he had not committed any wrongdoing. 

188. Joanna Yu (PW41) testified as to the role played by Jho Low with respect of the accused’s Account 9694 in ensuring sufficiency of funds and said that this was with the knowledge of the accused although Nik Faisal was the mandate holder. 

189. Evidence was led that Akademi Kewartawanan dan Informasi Taima was engaged for the publication of a Chinese weekly, and AD Network was paid as the administrator of a Facebook page. This was done, according to PW5, to counter negative perceptions from the Chinese community regarding the government of the day. Payments for these services were made to Tan Sri Lim Soon Peng with the intention of facilitating back-to-back payments to both entities and to avoid linking the accused. 

190. PW8 testified that ORB Solutions Sdn Bhd was established to carry out branding promotion for 1Malaysia and to manage the accused's social media which incidentally was the only client of the company.  

191. PW45 said that Semarak Konsortium Satu Sdn Bhd was appointed verbally to provide international media team services and English speech writing for the accused from March 2011 to April 2014 and received a total of RM22,981,688.00 out of which RM303,000.00 were proceeds of unlawful activities.

192. In light of the enormous sums of funds deposited, namely US$681,000,000.00 and the sums returned of US$620,000,000.00 into the accused’s accounts, it was incumbent upon him to take reasonable steps to ascertain whether or not the property were proceeds of unlawful activities.

193. The above instances of conduct as well as the respective acts of receiving, using and transferring the proceeds by the accused were also relevant under Section 8 of the Evidence Act and therefore admissible to reasonably and justifiably infer knowledge on the part of the accused with respect to the charges in respect of all the 21 charges of money laundering under Section 4(1) (a) of AMLA. 

194. Under all the circumstances, I find that the accused was also ‘’wilfully blind” with regard to his failure to inquire into the origin of these funds when the circumstances were such that he ought to have done so. 

195. Under the circumstances and based upon the evidence, I find that the prosecution had also proven the mens rea in respect of all the AMLA charges. 

196. The issue in relation to the Arab donations has been addressed earlier. 

197. In all the circumstances of the case and based upon the available evidence, and upon conducting a maximum evaluation of the prosecution case, this court finds that the prosecution has successfully proven each ingredient of all the offences under Section 4(1) (a) of AMLA which if unrebutted would warrant a conviction. 

198. This court therefore finds that a prima facie case has been made out against the accused in respect of all the 21 charges under Section 4(1) (a) of AMLA.  

199. This court accordingly calls upon the accused to make his defence in respect of all 21 charges under Section 4(1) (a) of AMLA.

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