PUTRAJAYA, April 13 — The High Court was incorrect in saying Datuk Seri Najib Razak must be held accountable for abuse of power using a criminal standard in the misappropriation of RM42 million SRC International Sdn Bhd, the Court of Appeal heard today.
Najib’s lawyer Farhan Read said this during submission in the hearing of Najib’s appeal against the former prime minister’s conviction and jail sentence for misappropriation of RM42 million SRC International funds.
Apologising beforehand to the three-member bench for his sharp-tongued remark, Farhan said trial judge Mohd Nazlan Mohd Ghazali appeared “motivated” to hold Najib to account, arguing that the ex-PM should have been made to answer in a general election instead.
“There appears a desire to hold the accused (Najib) to account. The criminal law is not the correct avenue to hold the accused to account,” he said.
Najib was prime minister from April 2009 until May 2018 when the Barisan Nasional administration under his leadership suffered an unprecedented general election defeat, losing to Pakatan Harapan and ending the coalition’s uninterrupted rule since the country’s independence.
While agreeing with the trial judge that SRC International’s failure was a huge loss to Malaysia, Farhan said the judge’s desire to hold someone accountable was misplaced.
“The learned judge saw it as a moral imperative, fact of the matter the only Malaysian left to be held accountable in the case is Najib,” he said.
This, he said, as “key players” in the case such as fugitive businessman Low Taek Jho who is also known as Jho Low and former SRC International chief executive Nik Faisal Ariff Kamil have since absconded.
“We can sympathise with the judge’s struggle but we cannot sanctify His Lordship’s assessment of the evidence nonetheless,” he added.
Earlier, Farhan submitted that Najib’s conduct as the finance minister at the time, which is said to demonstrate his interest in SRC International, was not consistent with guilt.
Yesterday, Farhan also submitted that Najib did not have a pecuniary interest in SRC International and that the trial judge had erred in its judgement against Najib.
He argued that the trial judge’s conception of an interest as being composed of “conduct and control” was insufficient to establish that Najib had pecuniary interest in the company.
According to the trial judge, the ‘conduct’ alluded to Najib’s endorsement for the formation of SRC International and the chairing of two Cabinet meetings to grant two government guarantees for a RM4 billion loan from Retirement Fund Incorporated (KWAP).
“Without pecuniary interest, conduct doesn’t become relevant,” he said.
Whereas the ‘control’ encompassed the insertion of several provisions into the company’s Memorandum and Articles to grant Najib control over the board of SRC International as advisor emeritus and the placement of SRC International under the Ministry of Finance Incorporated Department which made Najib sole shareholder of SRC International through his position as Minister of Finance Incorporated.
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 tomorrow with the prosecution’s reply.
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