Will Najib, Arul Kanda beat audit tampering charges? Court decides today
KUALA LUMPUR, March 3 — Almost three years since his trial began, former prime minister Datuk Seri Najib Razak will know today if he must enter his defence in the 1Malaysia Development Bhd (1MDB) audit report tampering trial in the High Court here.
Justice Mohamed Zaini Mazlan, now elevated to the Court of Appeal, is set to deliver his decision on Najib as well as whether former 1MDB president Arul Kanda Kandasamy’s testimony in the trial against Najib was truthful.
This trial, which started on November 18, 2019, took place over 43 days with 16 prosecution witnesses called to testify.
In this trial, Najib is accused of having abused his position as prime minister and finance minister between February 22 and February 26, 2016 by allegedly instructing for amendments to the 1MDB audit report — which was already ready to be presented to Parliament’s Public Accounts Committee (PAC) — before it was finalised.
Najib is accused of having done so to protect himself from civil or criminal action over his role in the handling of 1MDB operations.
Separately, Arul Kanda faces a charge of abetting the ex-PM in abuse of power with regard to 1MDB’s audit report, but also testified as the 15th prosecution witness in this trial.
What will today’s decision mean?
Najib is already serving his 12-year prison term and was fined RM210 million from his conviction for misappropriating funds from a former 1MDB subsidiary, SRC International Sdn Bhd. He is still trying to challenge his conviction and sentence.
Should Najib be ordered to enter his defence, this would be the second time since the SRC International case he will have to do so.
As this is only at the prosecution stage of the trial, the High Court would only have to decide if the prosecution has proven a prima facie case or shown that there is a case for Najib to answer, which will then determine if Najib can walk free today or if he has to defend himself.
If there is no prima facie case, Najib would be acquitted under Section 173(f)(ii) of the Criminal Procedure Code.
If prima facie is shown, Najib has three options to make his defence — by sworn evidence from the witness stand where he will be subjected to cross-examination; by an unsworn statement from the accused's dock; or remaining silent.
If Najib chooses to give a sworn statement, he will be the first to be called to the witness stand in accordance with Section 181 of the Criminal Procedure Code (CPC).
If Najib is called to enter his defence, the High Court will then only decide if Najib is guilty or not of the charge against him, after the defence stage is completed.
At the defence stage of the trial, the prosecution must also prove the case beyond reasonable doubt in order to convict, failing which Najib would be discharged.
As for Arul Kanda, he currently remains an accused person even though he had testified as a witness for the prosecution.
Former 1MDB president Arul Kanda Kandasamy arrives at the Kuala Lumpur Court Complex, March 3, 2023. — Picture by Yusof Mat Isa
Today, the High Court is expected to decide on Arul Kanda’s status, by deciding whether he had told the whole truth throughout his entire time as a prosecution witness in this trial.
If Arul Kanda was found to have been a truthful prosecution witness, he will be acquitted.
If not, he will merely be removed as an accused person from this trial before Zaini and will face the possibility of being put on trial before another judge if the prosecution chooses to press charges against him again.
The trial so far
At the start of the trial, the prosecution’s opening statement said they will prove Najib, in his capacity as the prime minister and finance minister at the time, took steps which resulted in the altering or removing of passages that were factually true in the auditor-general’s report on 1MDB which was to be tabled to the PAC in 2016.
Najib was alleged to have done so to conceal his and fugitive financier Low Taek Jho’s role in the misappropriation of funds, in order to avoid civil or criminal liability that Najib would face as the “shadow director” of 1MDB.
The prosecution had also said it would prove Arul Kanda had abetted Najib in this.
The four main amendments that were made to the auditor-general’s report on 1MDB as a result of Najib’s alleged actions include the removal of mention of Najib’s 2009 meeting with the Yang di-Pertuan Agong and his failure to disclose his agreement to delay a RM5 billion fundraising exercise to the Cabinet; removal of mention regarding Low’s presence in an 2009 1MDB board meeting; and removal of mention that 1MDB had two versions of the financial statement for the same 2014 financial year or that the two financial statements had differing information.
In his testimony as a prosecution witness, former chief secretary to the government, the late Tan Sri Ali Hamsa said Najib’s aide had described the 2016 report as a “crisis” and wanted mention of Jho Low omitted to prevent it from becoming political ammunition.
Ali also related that he was called by an “upset” Najib to the Prime Minister’s Office for a meeting ― the first of a series of other meetings that resulted in changes to the A-G’s 1MDB report that was later presented to the PAC.
Notably, Ali said the 1MDB coordination meeting that was held which led to changes made to its 2016 audit report, would not have happened without Najib’s instructions.
The meeting was attended by representatives from 1MDB (Arul Kanda), National Audit Department (then Auditor-General Tan Sri Ambrin Buang and Saadatul Nafisah Bashir Ahmad), Treasury (Datuk Seri Mohamad Isa Hussain and Asri Hamdin), Attorney General’s Chambers (Tan Sri Dzulkifli Ahmad), Prime Minister’s Office (Tan Sri Shukry Mohd Salleh) and Ali’s own senior private secretary Datuk Norazman Ayob.
Ali also revealed in court Tan Sri Muhyiddin Yassin’s removal from the Najib Cabinet in 2015 was likely because the then deputy prime minister had asked too many questions about 1MDB, while similarly disclosing former attorney general Tan Sri Abdul Gani Patail’s removal of office the same year for possible fraternisation with Muhyiddin.
After changes were made to the auditor-general’s report following the meetings between 1MDB and government officials, instructions were made to destroy all of the copies.
It was later revealed that one of the draft reports eventually survived.
Notably, key evidence in the trial took the form of a voice recording of a 2016 meeting to alter the auditor-general’s audit report on 1MDB, which was covertly made by government auditor Datuk Nor Salwani Muhammad who revealed during the trial that she had placed the recorder in her colleague’s pencil case.
Ali previously said a voice recording — lasting around two hours and 40 minutes — of a February 2016 meeting to discuss changes to the audit report revealed how “national interest” and the protection of the then prime minister’s reputation were used to justify such changes.
Another witness, former auditor-general Tan Sri Ambrin Buang, also told the court of 1MDB’s failure to provide documents to the NAD which caused the audit to last almost a year instead of the estimated five months.
Apart from the failure to provide documents in a timely manner, Ambrin also said 1MDB was found to have performed poorly and was not profitable as its business model of borrowing money to carry out operations landed it in debt.
He also told the court it was he who gave the order for Nor Salwani to save the only surviving copy of the final audit report on 1MDB after they were forced to make changes.
Like Ali, Ambrin also testified that the Najib administration in 2016 was deeply concerned that the NAD’s findings on the financial state of affairs of 1MDB would harm the then prime minister’s reputation.
Ambrin’s then subordinate, Saadatul Nafisah Bashir Ahmad also testified in court that the auditor-general and his team came under pressure during a February 2016 high-level meeting to remove information from the final audit report on 1MDB.
Another key witness, Najib’s former principal private secretary Tan Sri Shukry Salleh affirmed the former PM directed him to have the NAD redact sensitive information including Jho Low’s involvement from its audit report on 1MDB in 2016.
Nearing the tail-end of the trial, Arul Kanda took to the stand as a prosecution witness, admitting that the 1MDB management had actively suppressed information from the NAD during an audit on the Finance Ministry-owned company in 2015.
The prosecution rested its case on September 7, 2022.