1MDB trial: Unfair to Najib for prosecution to shift ‘goalposts’ by amending charges after five years, Shafee argues

KUALA LUMPUR, Oct 25 — It will be unfair to former prime minister Datuk Seri Najib Razak if the prosecution is allowed to make changes to three of the 25 charges that he is facing in the 1Malaysia Development Berhad (1MDB) trial in relation to RM2.2 billion funds belonging to 1MDB, his lawyer argued today.

Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah was objecting to the prosecution’s application to amend the three charges, as he argued that it would prejudice his client’s defence.

Shafee also claimed it would be unfair to Najib for the amendments to be made five years after he was first charged in 2018.

“I therefore conclude on this note that prosecution has to be conducted on the principle of absolute fairness and no unfairness be visited on the accused person.

“And this application, we submit, due to its late stage and due to the initial representation made during all five years, it is, therefore, unfair to allow the prosecution to amend and change the goalposts and therefore provide a ground for oppression onto the accused’s defence,” Shafee said this afternoon.

Shafee then said the prosecution will have two options of either dropping the charges or continuing the case without amending the charges: “Either they maintain the current charges without the application, or they withdraw the three charges that are relevant to the current application. They have got two choices. Meanwhile, we therefore urge the court not to allow the application by the prosecution.”

Saying that the prosecution should press charges only after a thorough investigation and should not use the courts’ powers to amend charges as a safety net, Shafee also suggested that Najib was charged in the 1MDB trial in a hurry.

Shafee highlighted the principle that the prosecution must not charge based on mere conjecture, adding: “And I add, especially not to appease public outcry or external pressures, and this is what I submit happened in 2018, as soon as there was a political change in May, my client was very quickly brought before the court in a hurried manner, and that is why we have got so many of these issues that are now before Yang Arif.”

Lead defence lawyer Tan Sri Muhammad Shafee Abdullah said the prosecution will have two options of either dropping the charges or continuing the case without amending the charges. — Picture by Miera Zulyana

Earlier this morning, Shafee said Najib’s 1MDB case started on September 20, 2018 and that it was just two to three months after the May 2018 election and a change of government.

Shafee said the 47th prosecution witness, Adam Ariff Mohd Roslan, was engaged in 2018 to analyse the money trail of 1MDB funds and only completed it in 2022.

Shafee argued this could mean that Adam Ariff was either not having the urgency to complete it quickly or may not have the documents required, claiming that the conclusion is that Najib “was charged prematurely without those facts having emerged”.

Shafee also said the 48th prosecution witness, Assistant Commissioner of Police Foo Wei Min, actually knew the actual figures involved in two money laundering charges even before Najib was charged and that it meant the prosecution knew that the two charges allegedly “carry a wrong figure”.

When using the First In First Out (FIFO) method to analyse the alleged flow of 1MDB money said to be laundered through Low Taek Jho’s associate’s company Tanore Finance Corp to Najib’s accounts, Foo said he had identified the amount of illegal funds to be a lower amount than the money that was transferred through banks.

While Foo had said he had opted to use the same amount in banking transactions instead of the lower amount in order to avoid confusing the courts, Shafee claimed that Foo’s decision had confused the court.

When the judge asked how Najib would be prejudiced when the amount involved in the two money laundering charges is a lower amount, Shafee insisted that it would prejudice his client as the defence team had been basing their case on the original amount in the charges.

“But suddenly he disengages us totally. He has scuttled our defence by saying no, no, that’s purely a figure I purposely put because I don’t want to confuse the court. He has not only totally confused the court but totally put the defence in disarray. That is where the prejudice comes about,” Shafee claimed.

Having noted that the prosecution was only applying to amend the charges almost near the end of the prosecution’s case, Shafee argued that charges must be amended as soon as the prosecution discovers a need to do so.

Shafee argued that the prosecution did not need Adam Ariff’s confirmation to know that a RM5 million-odd transaction was unexplained and should not have included this figure in an abuse of power charge, claiming that this means that the prosecution was delayed in asking for an amendment of this charge.

“Five years after the trial, they want to amend the charge. The charge is the basis of the entire proceeding,” he said, highlighting that the prosecution is only seeking to amend the three charges after almost 50 prosecution witnesses have been called. So far, the prosecution has called 48 witnesses.

Shafee argued that it would be prejudicial to the defence if the new charge is contrary to the arguments that Najib’s legal team have already made during the 1MDB trial, as it would have to change course to counter a different allegation from the prosecution.

“So the timing is very important and we are saying five years certainly is an inordinate delay,” Shafee later also said this morning, having argued that injustice was more likely to happen the longer the interval between the time of being charged and the time the charges are amended.

This afternoon, deputy public prosecutor Kamal Baharin Omar said the 1MDB case is very complicated which involved layering of funds during money laundering activities, and argued that the prosecution applied to amend the three charges after clarifying with both Adam and Foo in their court testimony on their analysis of the money flows to Najib’s bank accounts.

Responding to the accusation by Shafee of “delay” by the prosecution in seeking to amend the charges, Kamal Baharin argue that the prosecution can only apply to amend charges after evidence is presented in court first.

“With leave of the court, prosecution is entitled to amend at any stage of the trial. We need to lead evidence in order for us to amend the charge, Yang Arif,” he said.

Kamal Baharin argued that Najib will not be prejudiced if the court allows the amendment of the three charges, as Najib’s lawyers can recall prosecution witnesses.

He argued that Najib will also not be prejudiced as the main ingredients of the offences that Najib is accused of will remain the same, and only the amount involved would be changed.

Deputy public prosecutor Ahmad Akram Gharib argued that the prosecution’s application to amend the three charges faced by Datuk Seri Najib Razak is not done in bad faith and does not breach any constitutional protection and rights. — Picture by Sayuti Zainudin

Deputy public prosecutor Ahmad Akram Gharib also argued Najib would not be prejudiced, arguing that it would be more beneficial to him as the accused person if the prosecution is allowed to amend the charges, as the potential penalty faced upon conviction would also become lower.

The power abuse and money laundering charges that Najib is facing imposes fines at five times the amount of sum involved in the charges.

Ahmad Akram highlighted that the current charges involve the full amount of banking transactions, and that the prosecution only wants to change the charge to be on the illegal portion of the funds in the same transactions.

“However, in the beginning, the full amount, the whole transaction is that amount in the original charge, so it doesn’t change anything, except for the amount involved as being wrong,” he said this afternoon.

Ahmad Akram argued that the prosecution’s application to amend the three charges faced by Najib is not done in bad faith and does not breach any constitutional protection and rights.

This afternoon, Shafee however questioned why the prosecution did not amend the charges in 2018 when it allegedly knew of these facts then.

Shafee also sought to counter Akram’s argument by saying that the issue of amending the charge is not about the possible lower fine during sentencing, as the issue is that the charges are the only guidance for Najib to defend himself and related to the issue of whether he would be found guilty or not.

Shafee said the prosecution should not need to amend the charges if it claims that it would make no difference to the case, and if it claims the amount of funds that were transferred is the same and that only the unlawful portion of the funds is different.

Shafee is expected to present his final arguments tomorrow before judge Datuk Collin Lawrence Sequerah on why the prosecution should not be allowed to amend the three charges.

Yesterday, the prosecution made an application to the High Court to amend three of the 25 charges that Najib is currently facing in the 1MDB trial, by changing only the amount of funds stated in each of the three charges.

In the 1MDB case, Najib is facing power of abuse charges and 21 money laundering charges.

The prosecution wants to amend the amount in Najib’s fourth power of abuse charge from RM49,930,985.70 to RM44,570,920.70.

Based on Malay Mail’s calculations, this will result in the total 1MDB-linked funds that Najib is accused of having committed power abuse in four charges as decreasing from RM2,282,937,678.41 (RM2.28 billion) to RM2,277,577,613.41 (RM2.277 billion).

As for the 21 money laundering charges, the prosecution wanted to amend the 10th money laundering charge which Najib was accused of committing by transferring money from unlawful activities, by reducing the amount involved from RM652.6 million to RM515,666,277.51 (RM515.67 million).

The prosecution also applied to amend the 21st money laundering charge involving the transfer of funds, by reducing the amount of RM12,436,711.87 to RM11,411,646.34.