Introduction
The appellant, former Prime Minister of Malaysia, Dato’ Sri Mohd Najib bin Haji Abdul Razak was charged with seven offences against his conduct in relation to a company called SRC International Sdn Bhd (‘SRC’).
The High Court found him guilty and convicted him on all seven charges. The sentence imposed on the appellant is an aggregate concurrent custodial sentence of twelve years and a fine of RM210 million (in default 5 years imprisonment). The Court of Appeal affirmed the conviction on all seven charges and the sentence imposed.
He then challenged the conviction and sentence in the Federal Court.
In the Federal Court
In the absence of any submissions from the appellant, the Federal Court turned its attention to the 94 grounds of appeal in the petition of appeal. The main complaints were as follows:
- The Court of Appeal erred in fact and in law by finding that the High Court Judge had correctly found that the prosecution had made out a prima facie case on all seven charges.
- The Court of Appeal erred in fact and in law by finding that the High Court Judge had correctly appreciated the defence. It was argued that the defence managed to raise a reasonable doubt on all seven charges.
Decision
The findings of the high court are correct and the defence failed to raise reasonable doubt.
Reason for the decision
According to the Court, “the respondent illustrated how the evidence was so overwhelming that at the close of the prosecution case, the learned trial judge was satisfied in law and in fact that all the ingredients of all the seven charges were satisfied to warrant calling for defence.”
“We have considered these submissions and find that the learned High Court Judge undertook a very detailed and objective analysis of the evidence to support his findings at the close of the prosecution case.”
As such, the Court failed to see how and where any of the learned trial judge’s findings leading to the ultimate finding that a prima facie case had been made out, are perverse.
Besides, the respondent managed to highlight how the defence was completely inconsistent and incoherent, and unworthy of belief:
“The respondent maintains that the defence was unworthy of belief because, on the one hand, the defence maintained that the RM42 million said to have been wrongfully gained by the appellant to the wrongful loss to SRC was not within the knowledge of the appellant. On the other hand, the appellant also maintained that he was framed in a conspiracy hatched by one Low Taek Jho (‘Jho Low’), Azlin Alias, Nik Faisal Ariff Kamil, and the bankers. The appellant also maintained the defence that the monies that were credited into his personal AmIslamic bank accounts, i.e. Accounts 880 and 906 which are the subject of the last six charges, were received from Arab Donations from Saudi Arabia. The respondent contended in essence, that they had always maintained at trial that these defences are completely inconsistent and diametrically opposed to one another.”
The Court agreed, stating that “we agree that the defence is so inherently inconsistent and incredible that it does not raise a reasonable doubt on the prosecution case.”
Other matters addressed by the Federal Court
In the words of the Federal Court, “Putting aside the personality of the appellant, this is a simple and straightforward case of abuse of power, criminal breach of trust and money laundering.”
Besides, although the trial itself took a long time (at least 86 days) due to the number of witnesses involved, the sheer number of documents and due to the fact that a great part of the trial took place during the Covid-19 Pandemic, “these considerations do not in themselves render the case complex.”
In regards to the absence of submissions from the Appellant, the Appellant counsel had invited the Court to consider the case of Lee Kwan Woh v Public Prosecutor, underscoring his point the denial of his right to submit amounts to a denial of the appellant’s right to a fair trial. He then submitted that this right to a fair trial included a right for counsel to adequately prepare his submission, thereby entitling him to an adjournment.
The Court rejected this, stating that “Unlike Lee Kwan Woh, this is not a case where the appellant was denied a right to submit as suggested by counsel. On the contrary, learned counsel was invited repeatedly to submit but persistently refused to do so. We reiterate our grounds when refusing the prior application for an adjournment.”
“None of the authorities cited deal with the specific situation where an application for discharge has been refused in the exercise of the inherent jurisdiction of the Court. In other words, not being discharged, Tuan Haji Hisyam Teh (the Appellant Counsel) is under a continuing duty to protect the appellant’s prosecution of the appeals by submitting on the merits of the same.”
Conclusion
These appeals are therefore unanimously dismissed and the conviction and sentence are affirmed. The 12-year sentence and RM210 million fine are thus upheld.
