KUALA LUMPUR (June 5): The High Court on Friday has partially allowed Datuk Seri Najib Razak’s discovery application to seek several documents in relation to settlements 1Malaysia Development Bhd (1MDB) and its four subsidiaries have with various entities.
Judicial Commissioner (JC) Mohamad Redzuan Idrus ordered 1MDB to provide the former prime minister a complete list, schedule or tabulation of all monies, assets or property recovered, returned, repatriated, or realised by 1MDB or entity acting on their behalf or for their benefit, arising out of or in connection with the subject matter of this action.
In addition, the court also directed that a complete list, schedule, or record of all legal proceedings commenced, pursued, settled, discontinued and/or intended to be pursued by 1MDB and its subsidiaries arising out of or in connection with the subject matter of this action and all documents evidencing, recording, or relating to any recovery, repatriation, restitution or return of monies within or outside Malaysia, be provided to Najib.
Besides this, the court also ordered that Najib be provided with all documents relating to any settlement, compromise and/or resolution entered into with any party in connection with the subject matter of this action and all documents setting out the terms and conditions of such settlements, including but not limited to payment terms, releases and discharge provisions, admissions (if any) and/or confidentiality clauses.
Mohamad Redzuan directed 1MDB and its subsidiaries to furnish the documents to Najib or his solicitors within 21 days from today (June 5).
However, the disclosure the JC ordered is subject to a protective order that it must not be disclosed to anyone except the judge/JC, court personnel, the parties to this suit, and their respective solicitors or counsel.
“Only redacted versions of the documents (and derivative cause papers/submissions), as verified by the plaintiffs, may be filed electronically,” the JC said.
The court, however, declined Najib's 17 other discovery applications consisting of, among others, accounting and valuation reports and proposed recoveries.
In this civil suit brought by 1MDB against Najib and others, Najib had filed the discovery application on March 27 this year for the documents to be produced for inspection and copying, and in the event of 1MDB and its subsidiaries failing to produce the affidavits and documents, for the claim by 1MDB on the former PM and defendants to be struck out.
Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah said his client wanted the documents since 1MDB and its subsidiaries had made recoveries in the assets since the suit had been filed, to the sum of RM31 billion, whereas the claim against his client was RM23.4 billion.
There should be no double claim or double dipping
Shafee said the defence wanted to make sure that there is no double claim or double dipping in the plaintiffs' claim against the former prime minister.
1MDB’s counsel Lee Shih, who appeared with Raphael Kok, said that while their clients are willing to share some of the documents before the trial scheduled in August this year, some of the documents are classified as confidential not only under the Official Secrets Act 1972, but also under the Mutual Assistance in Criminal Matters Act 2002 (MACMA), and with foreign parties.
They said as there were settlements with AmBank, Goldman Sachs, and other entities, these settlements are subject to confidentiality with these other parties and MACMA assistance by the Attorney General's Chambers, which 1MDB may not have been privy to.
Lee and Kok said should the court grant the order, there should be limited access, as they do not have all the documents, including the valuation reports of the assets returned — for example, the paintings or buildings returned.
Further, should the court grant the order, they wanted to be given 21 days to hand over the documents, not seven days as requested in Najib’s application.
Shafee, who appeared with co-counsel Datuk Tania Scivetti, said they have no objection to the documents being handed over within 21 days.
Suit dates back to 2021
1MDB and the four subsidiaries had filed the US$8 billion suit in 2021, where 1MDB along with 1MDB Energy Holdings Ltd, 1MDB Energy Ltd, 1MDB Energy (Langat) Ltd, and Global Diversified Investment Company Ltd (previously known as 1MDB Global Investment Ltd) are named as plaintiffs.
They had named Najib and seven other former senior 1MDB staff, several of whom are still missing, as defendants.
Those named include 1MDB deputy chief financial officer and executive finance director Terence Geh Choh Heng, former general counsel Jasmine Loo Ai Swan, executive director of business development Casey Tang Keng Chee, former director of investments and chief investment officer Vincent Beng Huat Koh, former chief financial officer and subsequently chief operating officer Radhi Mohamad, former director of investments Kelvin Tan Kay Jim, and former chief investment officer Nik Faisal Ariff Kamil.
In the statement of claim, the plaintiffs alleged that the defendants, including Najib as the former chairman of the board of advisers, had facilitated the companies to enter into sham agreements to create a circuitous trail of money, to ease or conceal the misappropriation of 1MDB funds.
Prior to this, the plaintiffs had a Mareva injunction imposed on Najib by the High Court in 2023, to freeze US$681 million in assets. The decision was upheld by the Court of Appeal and the Federal Court.