KUALA LUMPUR (May 7): Imprisoned former prime minister Datuk Seri Najib Razak will find out next week if he will have to fork out over US$1 billion to SRC International Sdn Bhd or if he will be granted a temporary reprieve pending the full disposal of his appeal.
The High Court on Thursday heard Najib's application to stay (pause) a judgement given in late March which found him liable for US$1.18 billion of losses suffered by SRC, as well as a separate US$120 million of company funds which ended up in his private bank account.
Court of Appeal judge Datuk Ahmad Fairuz Zainol Abidin, sitting in the High Court as the trial judge, will decide on the matter on May 13.
In gist, the ex-PM's lawyers contend that this was a case of special circumstance which warranted a stay. They cited, among others, the substantial payment sum, especially against an individual and not a company or other such entities.
SRC contends that in monetary judgements such as this, the courts usually choose to not deprive the plaintiffs of the "fruits of its judgement" (awarded damages) unless there are special circumstances. They stress that no such special circumstance exists in this instance.
Najib's counsel argues stay granted even in tax cases
Counsel Muhammad Farhan Shafee, appearing alongside a team of lawyers from Messrs Shafee & Co for the ex-PM, argued that even in tax cases — where the courts firmly adhere to the 'pay first, contest later' doctrine — stays have been granted in some cases.
Farhan stressed the significance of the sum, which was akin to a ministry's budget or even some companies' market capitalisation.
"[In terms of sums] awarded in civil action against individuals and even companies, this would be somewhere right at the top. Stays have been granted for quantum which are far less — where they don't even touch the RM100 million threshold," he said.
He added that there were unique factors which apply to Najib. These include that he is currently in prison, has about US$19 billion in fines and liabilities arising from court judgements concerning SRC and 1Malaysia Development Bhd (1MDB), and his tax case.
Farhan also argued that SRC was wound up in January 2026, so the likelihood of recovering any sum, should Najib’s appeal be successful, was unrealistic.
SRC counters personal hardships, size of sum don't amount to special circumstance in granting stay
Counsel P Gananathan, acting for SRC, argued that discretion in granting a stay is based on passing the special-circumstance threshold.
Gananathan, leading a team of lawyers from Messrs Lim Chee Wee Partnership, stressed that personal hardships, size of sum, loss of reputation and personal integrity, and/or fear of not being able to recover the sum in case future appeals are successful, do not meet this threshold.
He said that these were the "ordinary consequence" which any defendant would face when a monetary judgement is made against them.
"However sympathetic those facts may appear, there remains consequence of enforcement. They are not, in law, exceptional," he said.
He also highlighted that the winding-up order for SRC includes that all monies received by the liquidator are to be paid into the SRC Group Trust Account held in the name of and operated by Minister of Finance Incorporated (MOF Inc) for the benefit of the SRC group.
"Any sums recovered in the execution of the judgement herein will ultimately be held and administered by MOF Inc, which would effectively be held by the Government of Malaysia for the benefit of the plaintiff," he said.
In his decision in March, judge Ahmad Fairuz also dismissed Najib's third-party claim against the company's former directors: Tan Sri Ismee Ismail, Datuk Suboh Md Yassin, Datuk Mohammed Azhar Osman Khairuddin, Datuk Shahrol Azral Ibrahim Halmi, and Datuk Che Abdullah @ Rashidi Che Omar.
Counsels for the respective third parties were present on Thursday and objected to the stay.