Written by: Averroes
(1.0) Introduction
On the 8th of December 2021, the Court of Appeal dismissed Najib's appeal and upheld the verdict of the High Court. The next day, Najib's last attempt to acquit himself is by appealing to the country's apex court, which is the Federal Court.
His case involved the 1MDB or the SRC International case where it was said that he swindled large sums of money for personal use. In the 'Dirty Money' documentary on Netflix, it was shown that monies from the 'State Sovereign Wealth Fund', that is 1MDB or its ex-subsidiary, SRC International which is now owned by MOF Inc, was used to purchase tiaras, rings, yacht, luggages of monies at Najib's property, financing the 'Wolf of Wall Street' Film.
Jho Low also took the opportunity by attending several lavish parties and the public had been questioning as to how he was able to buy a private jet and met celebrities, including Leonardo D'Caprio. How was he able to generate such a vexatious amount of money?
It was truly a panache of a lifestyle and it caught the attention of the people.
(2.0) Court of Appeal
In Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2022] 1 MLJ 137, the facts could be simply summarised as follows.
Najib used his position as the Prime Minister and Finance Minister to allow two government guarantees were given to the Retirement Fund (KWAP) so that it could disburse RM4 billion loan to SRC International.
That large amount of RM4 billion to SRC apparently went overseas and until today, we don't know what has happened to that colossal amount of monies. However, we do know that from that RM4 billion, RM42 from SRC International was deposited to several different accounts of two other companies, which are GMSB and IPSB.
The RM42 million in the two companies then ended up in Najib's two personal accounts (Account 880 and 906). The prosecution argued that, because that he had the authority and was in control of SRC International as the Prime Minister, Finance Minister and Advisor Emeritus as well as the sole shareholder in MOF Incorporated, he must have colluded in this grand contrivance.
Therefore led to him charged for seven charges on gratification, criminal breach of trust and money-laundering after the long-ruling BN coalition governed the country for more than 60 years since independence.
Najib wanted to challenge the High Court's decision of his seven criminal charges related to the Malaysian Anti-Corruption Commission Act 2009 (MACC Act), the Penal Code (PC or CBT) and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities 2001 (AMLA).
Previously, he was sentenced to 12 years jail and a fine of RM210 million, which default results in five years jail on the MACC charge. He was sentenced to 10 years jail for the three CBT charges and 10 years for the three AMLA charges. However, the sentences ran concurrently, not consecutively, so the maximum years of his sentencing would be 12 years.
If it ran consecutively, he would have to serve 72 years in prison.
However, the Court of Appeal still found him guilty of all the seven charges and he had to serve his punishment, but Najib applied for a stay of execution. This is the court's decision;
Gratification
The law applicable is under sections 23(1) and 23(2) of the MACC Act that on a balance of probabilities and Najib failed to raise reasonable doubt on the prosecution, the MACC charge was safe. The law stipulates that "Any officer... uses his... position for any gratification... for himself... commits an offence."
What Najib says
Najib maintained that, his decisions with respect to SRC International were all made for national interest and not for personal gains. There was no connection between his involvement and the government's decision to guarantee KWAP's RM4 billion loan to SRC International.
He did not know that the RM42 million which came into his account was from SRC International. He said that, even if the money came into his account, someone might have transferred it for their own ulterior motive and benefit.
It could be implied here that, someone transferred the money to his account to frame him politically as a kleptocrat.
Court held
If Najib did it for national interest, then why did he rush to have the RM4 billion loan made, or that there was no investments in the energy sector from the monies. Also, it is questionable as to why need a large bulk of money of RM4 billion to be loaned with interests for the country's development.
It is very suspicious as to why RM4 billion loan would be given to SRC International since it is a new company and has no track record.
Najib clearly had influence, ever since the formation of SRC, his intervention in the loan application from KWAP, his governmental approval of guarantees and his unabashed demeanour where he dismissed attempts to locate where did the RM4 billion monies went.
This meant that he did not even try to find how did RM4 billion went missing, inquired SRC how it was spent or utilised and for what purpose. Sections 23(1) and 23(2) of MACC Act were fulfilled that it was sufficient that Najib had used his "position to obtain gratification."
This was apparent when he issued two Cabinet decisions for governmental guarantees, with the intent to obtain gratification.
Criminal Breach of Trust (CBT)
Section 405 of PC; is the law that "entrusted with property, or with any dominion... dishonestly misappropriates, or converts to his own use... violation of any direction of law.... commits breach of trust."
Section 409 of the PC is read with section 405 of PC to be applied to agent or public servant.
Najib says
Najib defended that he was only acting as MOF Inc and SRC as the company's sole shareholder only, not as an 'agent'. The act of MOF cannot be regarded as the Finance Minister's act. It was actually the board of directors of SRC which had actual authority of the monies in SRC, not him.
There were no evidence to show that Najib misappropriated the RM42 million funds or that it was in his personal accounts. He tendered that the monies that got into his account were donations from the Saudi Royal Family, which Jho Low was close to and told him of it.
Court held
Despite Najib denying his involvement or knowledge of RM42 million coming into his personal accounts, he used it nevertheless and never made attempts to return the monies. Any person who was curious about money randomly popping up in their bank accounts would not use it.
He did not make any police reports, made any inquiries or complaints. There were no evidence indicating that the monies were used for lawlful purposes or connected to SRC or national interest. Indeed, the RM42 million came from SRC International.
Najib pinned the blame on Jho Low for the the random amount of money in his accounts. Since they were good friends between 2011-2015, there is no reason why Jho Low would have manipulated him. From the Blackberry Messenger texts and chats, showed that Najib and Jho Low regularly communicated with each other about his personal accounts.
He contacted Jho Low, Dato Azlin and Nik Faisal to ensure that the monies in his accounts were sufficient so that he could estimate how much he could spend. It was their job to assure the monies were issued with cheques and honoured. Therefore, Najib must have known about the RM42 million in his account was from SRC International.
Hence, under section 402A of the PC, Najib was indeed the 'agent' or was the company's controlling and directing mind. He had the authority and dominion over the SRC funds through the board of directors.
He had dishonestly misappropriated and converted his own use of the RM42 million from SRC, which is a wrongful gain and a wrongful loss to SRC, which included the renovation of his own home.
Money-Laundering
Section 4(1)(a) and (b) of AMLA states that; "any person engages in, or attempts to engage in; or who abets the commission of money laundering, commits an offence"
Section 3 of AMLA defines money laundering in three definitions, but the relevant is as "engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity"
Also, 'unlawful activity' means "any activity which is related, directly or indirectly to any serious offence or any foreign serious offence"
'Serious offence' means "any of the offences specified in the Second Schedule or the abetment of any of those offences."
The Second Schedule of AMLA includes section 409 of PC for CBT.
Najib says
Since it cannot be proven where the RM42 million came from into his account, and that the gratification and CBT charges were defective, he did not commit 'unlawful activity' for money-laundering.
Court held
The 'Doctrine of Willful Blindness' applied that Najib was not vigilant and di not take steps to make sure that the RM42 million that came into his accounts were not from 'unlawful activity'. The element of mens rea was fulfilled for money laundering as he did not inquire, probe or took steps to verify the the source of the money.
Since the CBT charge was proven, section 4(2)(a) of AMLA was proven and he knew where the source of money came from.
The Saudi Arabia donation was a ruse or a fairytale. Najib did not prove the RM42 million came from the Saud family and it was manifestly clear that it was from SRC International. Even if it was a donation, why did it have to go to SRC International to begin with, not just his personal account?
(3.0) Conclusion
The SRC International case is still in progress and under appeal to the Federal Court. However, this is a criminal case. Najib is also being sued under a civil suit, by SRC International to recover RM5 billion from him. His application of stay was also rejected by court.
It is estimated that Najib's criminal case will take 6 to 9 months, and with his lawyers' tactics of lagging the proceedings, such as calling in the Queen Counsel or hand getting bitten by a dog, it might take longer.
(4.0) References;
Achariam, T. (December, 2021) Najib has filed notice of appeal to apex court. Retrieved from, https://www.theedgemarkets.com/article/najib-has-filed-notice-appeal-apex-court
MalayMail. (February, 2022) SRC US$1.18b lawsuit against Najib fixed for trial in February-March 2023. Retrieved from, https://www.malaymail.com/news/malaysia/2022/02/24/srcs-us1.18b-lawsuit-against-najib-fixed-for-trial-in-february-march-2023/2043730
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