The prosecution failed to provide documentary evidence to prove 1MDB funds flowed into Najib Abdul Razak’s bank account, the High Court in Kuala Lumpur heard today.
The former prime minister’s counsel Tania Scivetti submitted this during the hearing of the government’s lawsuit to forfeit alleged 1MDB-linked monies and assets from Najib and 17 others.
On May 8, 2019, the Attorney-General’s Chambers (AGC) filed the 1MDB-linked forfeiture suit against Najib and the 17 others, comprising individuals and companies.
The legal action is over the seizure of hundreds of items, including luxury handbags and 27 vehicles, from the 18 respondents.
During the forfeiture suit hearing before judge Mohamed Zaini Mazlan, Scivetti contended that there were material gaps in the prosecution's narrative on how the money in Najib’s bank account originated from 1MDB.
The lawyer argued that the prosecution failed to provide documentary evidence such as 1MDB bank statements to show the flow of funds from the sovereign wealth fund via a circuitous route involving company Good Star Limited, and into Najib’s 694 account.
Good Star is allegedly linked to fugitive businessperson Low Taek Jho or Jho Low. He remains at large and is still being sought by authorities to assist in the investigation into the scandal.
Scivetti argued that the affidavits by investigating officers (IO) Senior Assistant Commissioner R Rajagopal and Superintendent Foo Wei Min merely disclosed movement of monies deposited into and transferred out of Najib’s account.
She contended that the mere setting out of the movement of monies is not sufficient to prove the seized properties were from unlawful activity.
The findings of the two IOs are relied upon by the prosecution in a separate, ongoing corruption trial against Najib in relation to RM2.28 billion of funds from 1MDB.
Today's hearing is for the prosecution's civil action to forfeit 1MDB-linked monies and assets from the 18 respondents.
“Apart from bare averments without any evidentiary support, there was no basis by both, Rajagopal and Foo, to arrive at the conclusion that monies received by the first respondent (Najib) from various entities were from the predicate offences of Section 409 and 411 of the Penal Code," Scivetti said.
Section 409 deals with the offence of criminal breach of trust (CBT) by a public servant, while Section 411 is in regard to the offence of dishonest receiving of stolen property.
“As there is no predicate offence committed, there can be no commission of an offence under Section 4(1) of the (Anti-Money Laundering, Terrorism Financing, and Proceeds of Unlawful Actitivies) Act,” she added.
Section 4(1) states that a person who engages, abets or attempts to engage in money laundering is liable to a fine not exceeding RM5 million, imprisonment not exceeding five years, or both.
“The prosecution failed to show the nexus between the watches and jewellery seized and any of those properties listed in the seizure notice were acquired with money from 1MDB.
“The affidavits by Rajagopal and Foo cannot justify the prosecution’s submission for forfeiture, and we thus ask for the (forfeiture application) to be dismissed,” Scivetti said.
Going into further detail, she claimed that Rajagopal failed to identify how Najib was entrusted with or ever had dominion over proceeds from two 1MDB bonds issuances amounting to US$1.367 billion (RM5.628 billion).
The prosecution contends that the proceeds were involved in the convoluted money trail in the 1MDB case.
In previous proceedings, the prosecution submitted that funds were laundered out of 1MDB in three phases spanning several years.
It claimed that during the Good Star phase, US$120 million allegedly entered Najib's account, then the Aabar phase saw US$170 million go into his account, then the Tanore phase when US$681 million was deposited into the account.
Scivetti also contended that Rajagopal failed to prove how Najib was purportedly involved in the alleged circuitous monetary flow from 1MDB and then into the former prime minister’s bank account.
The hearing before Zaini will resume on June 18, whereby the prosecution is expected to mount a reply against the submissions by Najib’s legal team.
In the 1MDB-linked forfeiture suit, Najib was named as the first respondent, followed by his wife Rosmah Mansor, stepson Riza Aziz, son Nor Ashman Razak, and daughter Nooryana Najwa as the second, third, fourth and fifth respondents respectively.
The others are Mohd Kyizzad Mesran, Senijauhar Sdn Bhd, Aiman Ruslan, Yayasan Rakyat 1Malaysia, Yayasan Semesta, Yayasan Mustika Kasih, Rembulan Kembara Sdn Bhd, Goh Gaik Ewe (the mother of Jho Low), former Goldman Sachs banker Roger Ng, lawyer Lim Hwee Bin, Kee Kok Thiam, Tan Vern Tact and Geh Choh Hun.
Kee, Tan and Geh are alleged associates of Jho Low, who is a key figure in the 1MDB matter.
Among the valuables seized on May 17, 2018, and on June 11, 2018, were 52 branded handbags, 10 watches and cash in different denominations – RM187,750 in old notes, RM21,150 in new notes, £320,500 in old notes, £2,700 in new notes, US$100, €20, S$40, 2,870,000 Sri Lankan rupees, 13,177.00 rupiah, 376 hryvnias (the Ukrainian currency), 50 francs, 10 rands, 531 riyals, and 740 Philippine pesos.
Also seized on the same day were four branded watches, 171 high-end handbags, and 27 pairs of shoes, while 40 luxury handbags were confiscated on June 11, 2018.
On Aug 2, 2018, some 27 Nissan Urvan vehicles were also seized.