In full judgment, Court of Appeal says Najib can’t plead ignorance about transactions in own accounts

KUALA LUMPUR, Dec 9 — Datuk Seri Najib Razak cannot plead ignorance to the transactions in his personal bank accounts to avoid criminal liability as it is by law for an account holder to have knowledge of their account’s banking activities, said the Court of Appeal.

The appellate court explained this in its 317-page full judgment for its unanimous decision yesterday to reject Najib’s appeal against his conviction and sentence for misappropriating RM42 million belonging to SRC International Sdn Bhd

Justice Datuk Abdul Karim Abdul Jalil, who chaired the three-judge bench, said the primary responsibility for the manner in which bank accounts were operated was solely with the account holders.

“The appellant cannot plead ignorance of the transactions in his bank accounts to avoid criminal liability.

“The customer of a bank is required by law to have knowledge of the banking activities in his account,” he said in the ruling.

Abdul Karim further wrote that this statement of law applied squarely to the actions of the mandate holder Nik Faisal Ariff Kamil, who was authorised by Najib to operate the former prime minister’s bank accounts.

“The appellant cannot feign ignorance of what went on in his account, and distance himself from the actions of his mandate holder.

“The instructions from Nik Faisal to AmIslamic Bank as the mandate holder are deemed in law to be the instructions of the appellant,” he said.

Accordingly, Abdul Karim said Najib’s knowledge of the fund’s movement into his bank accounts and his dishonest intention were borne out by the added evidence of him issuing the instruction letter dated December 24, 2014 (P277) to AmIslamic Bank and the timing of the arrival and usage of the funds.

In the judgment, the bench also asked why a discredited chief executive of SRC International would be retained by Najib as the bank signatory for SRC International as well as the appellant’s personal account mandate holder.

“The only plausible answer seems to be that the appellant wanted Nik Faisal to remain in these important positions so as to facilitate transfer of funds out of SRC at his whims and fancies.

“Had Nik Faisal not continued as the authorised signatory of the SRC bank accounts, the transfers of the RM42 million could not have been done, for it to ultimately find its way into the appellant’s bank accounts, where Nik Faisal is the mandate holder.

“This was an arrangement of convenience for the personal benefit of the appellant,” he said.

Ample evidence to debunk Najib’s claimed ignorance

The three-men bench also contended that there was ample evidence to debunk the contention by the appellant that he did not know the transactions, balances and sources of his personal accounts.

This is despite the fact that Najib raised the defence of ignorance, that he did not know the transactions, balances and sources of his personal accounts as he did not manage them.

Key evidence, they said, manifested in the form of BlackBerry Messenger (BBM) chats between Low Taek Jho, also known as Jho Low, and former AmBank relationship manager Joanna Yu Ging Ping (PW54) where reference was made to prior conversations between Low and the appellant.

“The appellant himself had confirmed this fact. There is also a correlation between the BBM messages and the appellant’s credit card spending in Italy and Hawaii.

“The appellant admits that the BBM chats showed that Jho Low was in communication directly with the appellant, and through Datuk Azlin, with regards the appellant’s bank balance so that the appellant could gauge how much he could spend based on the available balance in the accounts.

Datuk Azlin Alias was Najib’s then principal private secretary. Azlin was among six people killed in a helicopter crash in Semenyih, Selangor that took place in April 2015.

“The appellant also admitted that it is the job of Datuk Azlin, Nik Faisal and Jho Low to ensure that there were sufficient funds in his bank account to ensure his cheques were honoured,” he said.

Abdul Karim further noted that the aforementioned evidence was contrary to the appellant’s contention that he never knew his bank balance for the five years he used the accounts since he had delegated that to his mandate holder.

“Despite this evidence the appellant had testified that he only learnt of Jho Low’s role in his bank account during the trial.

“This is patently false and it is completely at odds with his own admission at trial that Jho Low was responsible for ensuring sufficient funds in his personal bank accounts,” Abdul Karim added.

No reason why government would go out of its way to assist SRC International

As for the two government guarantees provided for the RM4 billion loan given to SRC International through the Retirement Fund (Incorporated) (KWAP), the judges pointed out that there was simply no reason why the government would go out of its way to assist the former 1MDB unit.

“It is a newly incorporated company without any track record. The speed and manner with which the loans were approved by KWAP, without proper diligence; the manner in which the government guarantees were arranged and approved, which were described by witnesses as being rushed and expedited; and the disbursement of the colossal sum of RM4 billion from the country’s pension fund, and the manner in which the disbursed loan amounts were spirited out of the country when there were no discernable investments that required the funds does not help the appellant’s case.

“In fact, these facts demolish the appellant’s defence,” they said.

Furthermore, they said there was a total lack of evidence as to what purpose the RM4 billion of public funds were actually utilised, if indeed they were for the benefit of the government of Malaysia and its people, which surely would have some sort of semblance to that.

“However, the glaring fact is that SRC defaulted on the loans repayment to KWAP, and the government had to incur further costs and expenses.

Thus they said it begged the question of what benefits did Najib’s action bring to the Malaysian government when the two Cabinets he chaired approved the government guarantees for the RM4 billion loan to be disbursed.

“Given this, under no circumstances could the actions taken and decisions made by the appellant at the two Cabinet meetings be said to be for the interest or advantage of the government.

“The appellant’s decisions and actions with regards to SRC were done over a period of time by continuous acts and inter-connected events, primarily for his own personal benefit.

“The motivation to participate in the Cabinet meetings and approve the government guarantees is to create access to SRC’s funds, including the RM42 million that ultimately entered the appellant’s personal accounts,” the ruling added.

Najib has since filed his appeal to the Federal Court seeking to overturn the Court of Appeal’s unanimous ruling.

Yesterday, Najib failed in his appeal at the Court of Appeal, where he was seeking to overturn the High Court’s July 28, 2020 decision which found him guilty of all seven charges relating to SRC’s RM42 million.

The High Court previously sentenced Najib to 10 years’ jail for each of six charges (three counts each of criminal breach of trust and money laundering), as well as 12 years’ jail and a RM210 million fine with an additional five years’ jail if the fine is not paid for the abuse of position charge.

The High Court had ruled that Najib’s prison sentences would run concurrently or at the same time, which would mean a maximum imprisonment of 12 years for Najib.

Yesterday, a three-judge panel at the Court of Appeal ruled that the High Court did not make any errors in its decision, and upheld the conviction, RM210 million fine and the jail sentence on Najib.

The High Court previously sentenced Najib to 10 years’ jail for each of six charges (three counts each of criminal breach of trust and money laundering), as well as 12 years’ jail and a RM210 million fine with an additional five years’ jail if the fine is not paid for the abuse of position charge.

The High Court had ruled that Najib’s prison sentences would run concurrently or at the same time, which would mean a maximum imprisonment of 12 years for Najib.

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