by RAHIMI YUNUS / pic by ARIF KARTONO
DATUK Seri Mohd Najib Razak’s (picture) defence, in the appeal against the conviction and jail sentence for misappropriating RM42 million from SRC International Sdn Bhd, contended that he was not dishonest as he believed the funds were Arab donations.
Defence counsel Harvinderjit Singh told the Court of Appeal that the judge at the high court had concluded that a prima facie case was established with the element of dishonesty in reference to Najib’s conduct after the RM42 million was transfer into his accounts.
The defence said this had been the basis that inferred Najib to have had knowledge that the funds were originated from SRC International.
“The trial judge in equating post-transfer knowledge with dishonesty fell into error.
“The mens rea element of dishonesty for criminal breach of trust (CBT) is based on ‘intention’ and not ‘knowledge’,” Harvinderjit said in the hearing in Putrajaya yesterday.
He said the trial judge had merely made inferences based on the surrounding circumstances of the RM42 million transactions, which were made via two intermediaries — Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd — as a form of “layering” mechanism.
He further said Najib’s involvement was based on transactions undertaken by former SRC International CEO Nik Faisal Ariff Kamil and Najib’s former private secretary Datuk Azlin Alias.
The lawyer said Najib did not have knowledge of the RM42 million transactions into his account could be further inferred and supported by how Najib’s bank accounts were operated by subterfuge to ensure cheques issued were not dishonoured and avoided enquiries.
As it was, he said Najib had always believed the RM42 million funds were parts of Arab donations and he was able to utilise them as he deemed fit.
The defence also argued that the minutes of a purported meeting between Najib and Nik Faisal, which was initially marked as ID (identification) before the trial judge changed it as evidence, could not be regarded as evidence.
A copy of the minutes was tabled to the board of directors on Sept 13, 2011, after the first RM2 billion loan from the Retirement Fund Inc to SRC International, where they were told to follow Najib’s instruction.
Harvinderjit said the burden is on the prosecution to prove the originality of the document, which they did not, thus the document should have been considered as secondary evidence.
Najib was found guilty of all the seven charges — one count of abuse of position, three counts of CBT and three counts of money laundering — relating to the misappropriation of RM42 million belonging to SRC International, a former unit of 1Malaysia Development Bhd.
He was sentenced to 12 years of jail and fined RM210 million for abuse of power involving RM42 million of funds misappropriated from SRC International.