Najib fails in bid to quash 1MDB audit report tampering charge


THE High Court here today dismissed Datuk Seri Najib Tun Razak’s (picture) application to strike out the charge of tampering with the 1Malaysia Development Berhad (1MDB) final audit report, that he is facing with 1MDB former chief executive officer, Arul Kanda Kandasamy.

Judge Mohamed Zaini Mazlan made the decision after finding that the charge against Najib, 67, was not misleading as alleged by the former premier.

The Pekan MP and his lead counsel, Tan Sri Muhammad Shafee Abdullah, however, were not present at today’s proceedings.

Reading his 25-page judgment, Justice Mohamed Zaini said the applicant’s contention that the charge is misleading, that the audit report could not possibly be subjected to further amendments, is flawed.

“Contrary to the applicant’s contention that the Malay word ‘muktamad’ has no English equivalent, the Dewan Bahasa dan Pustaka’s translation of the word in English is ‘final’, and therefore, the word ‘muktamad’ could not be said to have a stricter connotation than the word ‘final’,” he said.

Explaining further, the judge said, the applicant could nevertheless argue that a ‘final’ report could not be subjected to any further changes, and still contend that the charge is misleading, as a report that has been finalised could not possibly be finalised again.

Justice Mohamed Zaini said this, however, seems to be the crux of the prosecution’s case, as the accusation levelled against the applicant is that he allegedly took steps to direct the final report be amended, when it had already been allegedly finalised.

“There will subsequently be a need for the court to ascertain whether the report was indeed finalised, and if so, whether it was amended, or as the prosecution has framed it ‘finalised again’, pursuant to the applicant’s bidding. I am therefore of the view that the charge is not misleading,” he said.

On Najib’s contention that the prosecution witnesses’ evidence did not support the facts in the case and that the charge did not disclose an offence known to law, the judge opined that although some of the prosecution witnesses have completed giving their evidence-in-chief, the prosecution’s case has not come to an end.

He further said the witnesses that the applicant had referred to have not finished giving their evidence, in that the cross-examinations have not been completed and as the norm, a witness could only be said to have completed giving evidence in a trial upon the completion of the re-examination.

“Would it be wise to make a final determination on the prosecution’s case at this stage? I think not. What the applicant has done in referring to some of the witnesses’ testimonies is akin to a snapshot of the case, it does not give an absolute picture of the prosecution’s case.

“It is similar to piecing together some pieces of the jigsaw puzzle, where it will merely amount to giving a semblance of what the finished product could be, but stops short of giving one a complete picture. Even if the witnesses that the applicant had referred to were material witnesses, and that the excerpts of their testimonies do not support the prosecution’s case, there are other witnesses that the prosecution has yet to call, and documents that have yet to be produced,” he said.

Justice Mohamed Zaini was of the view that it would be hazardous for the court to speculate on the outcome of the prosecution’s case at this stage and the outcome of the prosecution’s case should not, and cannot be done in tranches.

He added that it is undesirable for the court to embark on a speculative exercise of determining whether the charge against the applicant is baseless at this juncture when the prosecution’s case has not been completed.

“It is incumbent for the trial judge to subject all the evidence proffered by the prosecution on a maximum evaluation basis at the end of the prosecution’s case, and not on a piecemeal basis. It will be riding roughshod over that duty if it was undertaken prematurely,” he said.

Justice Mohamed Zaini further said that an application to set aside or quash a charge should only be allowed in the rarest of circumstances where there is a miscarriage of justice and it is incumbent on the applicant to show that the charge is oppressive and an abuse of the court’s process.

He said what amounts to an oppressive and an abuse of the court’s process should be considered on a case-to-case basis, and should not be cocooned in only several aspects.

“It would suffice to state that circumstances such as a charge based on a non-existent law, or double jeopardy cases would be prime examples. The grounds submitted by the applicant, as convincing as he thinks they are, should only be considered at the end of the prosecution’s case, for it would be premature for the court to at this stage consider them without availing itself of all the evidence that the prosecution will submit.

“The grounds do not meet the high threshold required to set aside or quash the charge against him. The applicant’s application is therefore dismissed,” he said.

At today’s proceedings, lawyer Syahirah Hanafiah represented Najib, while deputy public prosecutors Nadia Zulkefli and Hazmida Harris Lee appeared for the prosecution.

Najib applied to be acquitted and discharged from the charge of tampering with the 1MDB Audit Report as he claimed the charge is misleading, did not disclose any offence, and is therefore oppressive and an abuse of process.

The former prime minister is on trial with using his position to order amendments to the 1MDB final audit report that had already been ‘finalised’ by the Auditor-General, before it was ‘finalised again’ and presented before the Public Accounts Committee (PAC) to avoid any action being taken against him.

Najib allegedly committed the offence at the Prime Minister’s Department Complex, Federal Government’s Administrative Centre, the Federal Territory of Putrajaya, between Feb 22 and 26, 2016.

He was charged under Section 23 (1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, which provides for a jail term for up to 20 years and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.

Meanwhile, Arul Kanda, 44, was charged with abetting Najib in making amendments to the report to protect the Pekan MP from being subjected to disciplinary, civil or criminal action in connection with 1MDB, at the same place and time and in accordance with Section 28 (1) (c) of the MACC Act 2009 read with Section 23 (1) & 24 (1) of the same act which provides for similar punishment, if found guilty.

The trial, which has so far called seven witnesses to testify including former Chief Secretary to the Government Tan Sri Dr Ali Hamsa and former Auditor-General Tan Sri Ambrin Buang, is fixed to resume on Aug 24.