KUALA LUMPUR (Dec 18): Defence lawyer Tan Sri Muhammad Shafee Abdullah has raised the question of former prime minister Datuk Seri Najib Razak’s right to a fair trial, in light of the Attorney General’s Chambers’ (AGC) application to have former Goldman Sachs banker Tim Leissner extradited to Malaysia, and also the removal of an Interpol Red Notice against fugitive businessman Low Taek Jho (Jho Low) some months ago.
Shafee reiterated that he is not seeking an adjournment of the verdict to the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) case on the former prime minister, which is scheduled for Friday next week (Dec 26). But he questioned the Malaysian authorities’ move in light of the statement issued by the AGC and the Prime Minister’s Department last week.
Shafee also said that Marc Agnifilo, the counsel for former Goldman Sachs banker Roger Ng, had stated that the US government is intentionally withholding exculpatory information in the form of material and representations made by Goldman Sachs to the government over the course of repeated meetings and presentations.
“The (US) government has intervened in the Southern District civil case, solely to ensure that a defendant in a foreign prosecution, namely the former Malaysian prime minister, is denied that which a judge in the Southern District has already ruled he should receive.
“Specifically, the (US) government does not want Najib (Razak) to have discovery provided by Goldman Sachs and Leissner that would indisputably advance Najib’s stated factual defence. Due to the protective order in the instant case (Roger Ng’s trial in the US), the counsel for Ng is not at liberty to describe the nature of the evidence, and we do not do so.
“However, counsel is free to say — any may be ethically obligated to say — that Goldman Sachs and Leissner are in possession of material that defendant (Najib) Razak does not appear to have, that would be consistent with his stated defence, as set forth in public documents,” Shafee said in reading what Agnifilo had said.
Shafee also said that while Ng, who was convicted of the Goldman Sachs caper in the US, did testify as a witness in 1MDB's trial, he was prohibited from explaining further due to the Southern District civil court’s ruling.
Thus, on Thursday, Shafee held a press conference in which he raised Najib’s right to a fair trial under Articles 5 and 8 of the Federal Constitution, in light of the US authorities and Malaysian authorities denying this piece of evidence that Ng may possess to exonerate his client.
He added the evidence of what could be helpful to Najib had been blocked by the US and local authorities.
Ng did not implicate Najib
Shafee said that when Ng, who has since been sent back to Malaysia in 2023, took the stand, he did not implicate Najib.
“On the contrary, he expressly denied any conspiracy involving Najib. This is important as Ng worked closely with Leissner and Goldman Sachs, all of which are the central financial architects with Jho Low as their master, in perpetrating the biggest fraud that we have ever seen.
“Further, Ng repeatedly stated that he is bound by a US court protective order issued by the US district court for the Eastern District of New York, which restricts him from answering questions on discovery materials from the US proceedings. This protective order remains in force. As a result, Ng declined to answer several material questions in court, materially limiting the evidential value of his testimony,” he said.
Shafee added that upon Ng’s return to Malaysia, Ng had, over several days, given lengthy statements to officers from the police’s Commercial Crime Department.
“This must include the materials which are exculpatory of Najib. This gives rise to a fundamental inconsistency that Ng was able to give detailed statements to Malaysian investigators, yet claimed he could not meaningfully testify in open court due to the protective order,” the senior lawyer added.
Najib’s counsel said that when read together with the AGC’s statement last week, it is evident that Ng has been cooperating with the Malaysian authorities and providing information that is potentially material to the case.
“This gives rise to a fundamental unfairness to Najib. While Najib declined to answer material questions in open court by invoking the protective order, he (Ng) nevertheless provided information to investigative authorities outside the courtroom. The very information that he withheld during his testimony could have been directly relevant and material to the defence, yet it was effectively shielded from scrutiny in the trial proceedings,” Shafee said.
When asked as to what to expect on Dec 26 — whether Najib’s defence would bring this matter up with trial judge Datuk Collin Lawrence Sequerah, who was recently elevated to the Federal Court — Shafee replied that the defence had been claiming that the former Umno president’s rights to a fair trial had been violated and that the defence was certain Sequerah would have considered the recent AGC’s press release.
“Nevertheless, we are not seeking an adjournment of the decision and are standing by our submissions,” he said.
On Dec 12, the AGC had said that the US government is considering Malaysia’s request for Leissner’s extradition. Leissner is one of the key figures in the 1MDB scandal.
“Malaysia has also responded to additional requests from the US for further clarification and information, and will give its full cooperation to ensure the extradition process proceeds smoothly," the statement read.