SRC conviction review: Najib should not be punished for poor advice by former lawyers, Shafee says

PUTRAJAYA, Jan 19 — Datuk Seri Najib Razak's lawyer today argued that his client was allegedly being punished for the actions of his then-solicitors or counsels in seeking more time to better prepare his final defence.

Telling the Federal Court during the former prime minister's bid to have his SRC International conviction and sentence reviewed, Tan Sri Muhammad Shafee Abdullah said Najib had merely asked to be treated like any ordinary person when Najib's then counsel made a request to postpone hearing his final appeal on August 16, 2022.

Citing court transcript, Muhammad Shafee said then counsel Hisyam Teh Poh Teik had sought a postponement of three months in relation to the scope and appeal of the present case.

Describing the SRC International case as "one of the most complicated commercial crime cases” he has ever handled, Muhammad Shafee said he would have needed at least two months to prepare his case, what more of Hisyam who was appointed lead counsel at the eleventh-hour.

Muhammad Shafee also said the postponement had been sought because Hisyam was not prepared to present the defence's submission citing time constraints, after Najib had elected to have the former discharged and appoint Zaid Ibrahim Sufian TH Liew & Partners (ZIST) and Hisyam as his solicitors and counsel respectively.

He then further singled out ZIST for not having prior experience in criminal laws, subsequently ill-advising Najib on criminal matters, going as far as claiming Najib was "hoodwinked" by two lawyers associated with the firm.

In fact, Muhammad Shafee said it was the new solicitors who had given Najib a guarantee that an adjournment could be sought.

He also rubbished notions of a purported conspiracy concerted between the newly appointed counsels to deliberately delay the trial.

Despite the defence's insistence in August back then, the Federal Court's five-judge panel led by Chief Justice Tun Tengku Maimun Tuan Mat unanimously dismissed the defence's bid for a postponement to be granted.

"There is a striking difference and what is the hurry that the Federal Court must embark to hear this appeal at the expense of a fair trial.

"Surely my client ought not to suffer through the fault of solicitors or counsel," he said.

Muhammad Shafee then noted any misconduct by counsels would be summarily dealt with by the Malaysian Bar, further stating that his client ought not to suffer through the fault of appointed solicitors or counsels.

The lawyer also touched on the Federal Court's decision to not allow Najib's counsel to discharge himself despite having made it clear he was unable to submit his case due to time constraints.

Hisyam had applied to discharge himself as Najib’s counsel if the Federal Court refused to defer hearing the final appeal but was thwarted by the same panel of five judges who reminded the lawyer that he had a duty to his client after accepting the appointment.

"You cannot stop a counsel from discharging himself. It is his right to discharge.

"He (Hisyam) was made to sit throughout the hearing and asked repeatedly whether he could submit and every time he would reply he was not prepared.

"If counsel had been allowed to discharge, which ought to have been because it is his right, the Federal Court would have to grapple with another situation of the appellant having no counsel," he said, adding that the prospect of adjournment will almost become a certainty then.

He said ZIST eventually discharged themselves which was allowed by the court without any issues while Hisyam was left with no option but to sit in the hearing without presenting his case.

"I can't help but submit this the refusal of adjournment and refusal to allow counsel to discharge himself has got nexus.

"I hesitate to submit this but I have to say the truth. I think the Federal Court doesn't want to grapple with the issue of an accused person without counsel," he said.

To which the court then asked Muhammad Shafee to clarify whether he was stating a supposition or a personal opinion.

"I am giving a conclusion that is irresistible," he replied.

A five-member panel presided over today's hearing with Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli leading; Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzariah Bujang, Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais on the bench.

Following his incarceration, Najib had since sought to challenge the Federal Court’s five-member bench’s August 2022 unanimous decision in affirming his conviction, sentence and fine meted out by the High Court for the misappropriation of RM42 million of SRC International Sdn Bhd fund.

On July 28, 2020, Justice Datuk Mohd Nazlan Mohd Ghazali found him guilty of seven charges: three criminal breach of trust charges, three money-laundering charges and one abuse of power charge at the High Court.

Mohd Nazlan, who is now a Court of Appeal judge, had sentenced Najib to 12 years in jail and fined him RM210 million in default five years imprisonment and his decision was upheld by the Court of Appeal on Dec 8, 2021.

The hearing resumes on February 20.