Sri Ram, Apandi's conversation were between two 'brothers', no bias - prosecution

The message conversation between former federal court judge Gopal Sri Ram and then attorney-general Mohamed Apandi Ali was merely a discussion between "two brothers", the Kuala Lumpur High Court heard today.

Deputy public prosecutor Ahmad Akram Gharib submitted that the WhatsApp conversation in 2018 does not indicate bias by Sri Ram in seeking to charge former prime minister Najib Abdul Razak.

"The whole tone of the conversation was between two brothers.

"This is a brother (former) judge telling another brother (former) judge about his humble opinion," he said.

"Sri Ram has never 'buat heboh' (tell everyone) that he did not like Najib. This was just something (personal conversation) between the two (Sri Ram and Apandi).

"The applicant (Najib) has failed to show a single prosecutorial misconduct by Sri Ram, regardless of whatever (alleged) meeting or WhatsApp (between Sri Ram and Apandi)," Akram told judge Mohamed Zaini Mazlan.

Najib is seeking to recuse Sri Ram from prosecuting the former premier's 1MDB audit report tampering case.

The former prime minister's recusal application relied on an affidavit by Apandi, who alleged that Sri Ram had tried to coax him (Apandi) to play a role to arrest Najib.

In a posting on his Facebook last year, Apandi claimed that Sri Ram had approached him at his house in January 2018, supposedly under the instruction of former prime minister Dr Mahathir Mohamad.

Copies of the WhatsApp conversation between Apandi and Sri Ram were produced in previous court proceedings. The message was supposed to have been sent after the alleged January 2018 meeting.

On June 12 last year, it was reported that Najib had filed an application to disqualify Sri Ram as special prosecutor for the former prime minister's 1MDB audit report tampering trial.

Meanwhile, during today's proceedings, Akram further reiterated that ad-hoc DPP Sri Ram does not suffer from any form of bias against Najib as he (Sri Ram) had behaved most professionally.

The DPP said this could be seen even in the current proceedings, where Sri Ram declined to advise the DPP how to handle the prosecution's response against Najib's recusal application.

"In the preparation of this written submission, it is mine, not his.

"He is so professional that he does not even want to know what is going on (regarding the prosecution's preparation against Najib's recusal bid)," he said.

"I emailed this (copy of prosecution's written) submission to him (Sri Ram), but he did not want to read it.

"He said that it is my matter; that I should deal with it. I sought his advice, but he did not wish to (advice out of concern of being seen as interfering in the matter).

"Therefore, to say he (Sri Ram) is biased is not correct. They could not show any piece of evidence to show that Sri Ram has professional misconduct," Akram submitted.

In response, Najib's lead defence counsel Muhammad Shafee Abdullah countered that the present disqualification application was not meant to punish anyone but serve as protection against bias.

"The disqualification we seek here is not punishment of anybody or GSR (Sri Ram), but to meet (counter) substantive fear of bias, on the matter of predetermination (of guilt).

"It is protection for parties and the public as well as for the wider interest of justice.

"Justice must not only be done but seen to be done," he submitted.

The lawyer added that the present disqualification bid does not seek to nullify the whole 1MDB audit report trial that has proceeded so far, but merely to see that DPPs conduct the prosecution with no bias.

At the end of proceedings today, Zaini fixed Feb 15 for the decision on Najib's application to disqualify Sri Ram.

In the ongoing 1MDB audit report tampering trial, Najib is charged with using his position to order amendments to the sovereign wealth fund's final audit report before it was presented to the Public Accounts Committee (PAC), in order to prevent any action against him.

Co-accused and former 1MDB chief executive officer Arul Kanda Kandasamy is charged with abetting Najib in making the amendments.

The charges are framed under Section 23 (1) of the MACC Act 2009, which specifies a jail term of up to 20 years and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.

Najib has previously filed multiple unsuccessful bids at separate courts to recuse Sri Ram from prosecuting in the 1MDB-linked criminal cases.

Among these legal bids was the one on Aug 28, where the Kuala Lumpur High Court dismissed Najib's judicial review application that sought to disqualify Sri Ram from prosecuting in these trials.