Najib was not dishonest in using RM42m as he did not know where funds came from, his lawyer tells court

PUTRAJAYA, April 12 — Datuk Seri Najib Razak did not dishonestly misappropriate RM42 million from SRC International Sdn Bhd since he did not know of the fund’s source and subsequent utilisation of it does not prove the element of dishonesty under criminal breach of trust (CBT), the Court of Appeal heard today.

Najib’s lawyer Harvinderjit Singh said this during submission in Najib’s appeal hearing against the former prime minister’s conviction and jail sentence for misappropriation of RM42 million SRC International funds.

Harvinderjit earlier cited how the trial judge in the prima facie ruling concluded that the element of ‘dishonesty’ was established by reference to several instances of Najib’s conducts post-transfer of the RM42 million into his bank accounts as the basis for inferring that Najib had ‘knowledge that the funds were credited into his account originated from SRC International.

“The trial judge in equating post-transfer ‘knowledge’ with ‘dishonesty’ fell into error.

“The mens rea element of ‘dishonesty’ for CBT is based on ‘intention’ and not ‘knowledge’,” he said.

He then claimed that the trial judge had merely made inferences based on surrounding circumstances in which the RM42 million was transacted through two intermediaries — Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd — as a form of ‘layering’ mechanism, whereby Najib’s involvement was based on transactions undertaken by former SRC International chief executive Nik Faisal Ariff Kamil and Datuk Azlin Alias’s involvement as testified by the 49th prosecution witness (PW49).

Harvinderjit submitted that the funds from SRC International were transferred into Najib’s accounts through indeterminate means, thus subsequent utilisation is not an act of misappropriation since the offence is only relevant where usage of the fund was the act of removing the funds from the owner.

“The evidence doesn’t hold up conclusively and irresistibly inferred Nik Faisal (as one of SRC’s mandated signatories) signed the transfer letters (of RM42 million funds).

“On the part of Azlin Alias, PW49’s testimony was highly questionable as evidence (from Blackberry Messenger communications) showed she was acting for Jho Low.

“The evidence itself did not infer dishonesty (on Najib’s part). None of those actions were related to the accused.

“Merely inferring based on the conduct of third parties is no ground to infer the accused has knowledge before the money left SRC International,” he said.

Azlin was Najib’s former principal private secretary who died in a helicopter crash in April 2015 while PW49 is former Yayasan Rakyat 1Malaysia (YR1M) chief executive Ung Su Ling.

Harvinderjit said the fact that Najib did not possess knowledge of the RM42 million transactions into his account could be further inferred and supported through the manner in which Najib’s bank accounts were being operated with subterfuge efforts undertaken to ensure cheques issued were not dishonoured to avoid enquiries in the accounts to be made.

This, he said, was evident through the involvement of fugitive businessman Low Taek Jho or Jho Low who had specifically instructed for Najib’s bank statement not to be delivered to him but instead kept by then AmBank relationship manager Joanna Yu Ging Ping, also the 54th prosecution witness.

Najib always believed money in bank accounts were remnants of ‘Arab donations’

Harvinderjit said some RM162 million was transferred to Najib’s new bank account after an old bank account belonging to Najib that was used to receive prior donations was closed in August 2013.

As such, Najib was of the reasonable belief that the funds in his accounts were funds he was able to utilise as he deemed fit.

“He believed the money was a contribution from the then Saudi Arabia’s King (Abdullah),” he said in his submission that Najib had no intention to cause wrongful loss to anyone or cause wrongful gain to himself.

Harvinderjit said this was further fortified through the fact that no issues were raised when three letters on the Arab donation corresponding with donations received between 2011 and 2013 respectively when they were provided to AmBank and Bank Negara Malaysia then governor Tan Sri Zeti Akhtar Aziz at that time.

“One of the transferors of funds was namely Prince Faisal Turki, who was held out to be a member of the Saudi royal family and perhaps more tellingly, Ministry of Finance, Riyadh.

“All of these facts supported the belief held by Najib that the monies were donations from Saudi Arabia,” he said.

Harvinderjit however said the trial judge came to a wrong inference in finding Najib guilty as he claimed it was Low instead who had been putting money from SRC International into the ex-prime minister’s bank accounts.

He said the source of the funds stemmed from the belief during a meeting with King Abdullah arranged by Low through non-diplomatic channels which transpired on January 2010, in which the monarch had expressed support for Najib.

It was only later in the same year that Low told Najib that King Abdullah’s support would be in the form of donations.

Najib had in August 2014 returned RM2.034 billion (US$620 million) after receiving multiple transactions amounting to RM3.2 billion in the form of ‘donations’ between 2011 and 2013.

In the RM42 million SRC International case, Najib was sentenced to 10 years’ jail on each of the three counts of CBT and each of the three counts of money laundering, and 12 years’ jail and a RM210 million fine, in default five years’ jail, in the case of abuse of position on July 28 last year.

However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently.

The appeal hearing before Court of Appeal judge Datuk Abdul Karim Abdul Jalil who chaired a three-member panel alongside Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera continues.