KUALA LUMPUR (Nov 12): The evidence adduced by the prosecution in the SRC International Sdn Bhd trial showed the company, set up as a strategic investment vehicle, was also designed for all intents and purposes to be used by Datuk Seri Najib Abdul Razak for his own private advantage, the High Court ruled yesterday.

Justice Mohd Nazlan Mohd Ghazali held that the former prime minister had enormous influence and wielded an overreaching position of power in SRC.

The judge said this when ordering Najib to enter his defence in the trial, after finding the prosecution had successfully established a prima facie case for all seven charges against him — one count of abuse of power, three counts of criminal breach of trust (CBT) and three counts of money laundering — involving RM42 million of SRC funds.

Justice Mohd Nazlan said the intention to obtain gratification in the case could be easily inferred from the circumstances, given Najib’s failure to avoid a conflict of interest or position at cabinet meetings, supplying the criminal intention against him.

Najib, 66, appeared calm when Justice Mohd Nazlan announced his decision before a packed courtroom.

Justice Mohd Nazlan said Najib has three options — to give a sworn evidence in the witness stand where he will be subjected to cross-examination, to give an unsworn statement from the dock where he cannot be cross-examined, or to remain silent in which case the court must proceed to convict him.

Najib chose to give his evidence under oath from the witness stand. The judge fixed Dec 3 to 19 for the ex-premier and other defence witnesses to testify.

A total of 57 prosecution witnesses had testified during the prosecution stage of the trial lasting 60 days.

In his decision yesterday, Justice Mohd Nazlan said based on totality of evidence, it can be construed that Najib was a shadow director of SRC and that it was on the former premier’s directive that RM1.8 billion from the first loan was transferred to two banks overseas.

“The accused has enormous influence as prime minister [then] and [in] SRC as he has the power to dismiss the directors,” said the judge, adding that this meant Najib was a shadow director.

Justice Mohd Nazlan sees Najib as being an agent under Section 4 of the Penal Code in respect of his official role as adviser emeritus of the company.

He said Najib’s control of SRC was “overwhelming” even though it was a private company. The former prime minister’s position as adviser emeritus meant the directors had to seek his approval, the judge said.

He added that imposing Article 117 changed SRC’s formation as Najib had full dominion over the company.

Justice Mohd Nazlan ruled that impropriety had been proven in the money flow from Gandingan Mentari Sdn Bhd to Ihsan Perdana Sdn Bhd and into Najib’s bank accounts.

The judge noted that former Yayasan Rakyat 1Malaysia chief executive officer (CEO) Ung Su Ling had testified she was directed by the late Datuk Azlin Alias — Najib’s principal private secretary — to transfer the money into the accused’s accounts.

Justice Mohd Nazlan also noted Nik Faisal Ariff Kamil, formerly SRC CEO, was the link to Najib and that SRC was deprived of the RM42 million.

The money was utilised for various purposes where 15 cheques were issued and these included the payment of Najib’s credit card debts, Justice Mohd Nazlan pointed out.

The judge also ruled that Najib’s claim that the money came from the Saudi Arabia royalty was beyond comprehension as the money was utilised earlier.

As such, Justice Mohd Nazlan ruled that elements of CBT had been proven.

On the three money laundering charges, Justice Mohd Nazlan held that the RM42 million in Najib’s accounts originated from unlawful activities, as established in the CBT charges.

“I find it that the accused knew the RM42 million were proceeds of unlawful activities or in the best case for the defence, the accused failed without reasonable excuse to take reasonable steps to ascertain whether or not the RM42 million were proceeds of unlawful activities,” he said.

The prosecution was led by Attorney-General (AG) Tan Sri Tommy Thomas, appointed Deputy Public Prosecutor (DPP) Datuk V Sithambaram, deputy head of the criminal division AG’s Chambers Datuk Ishak Mohd Yusoff, Datuk Suhaimi Ibrahim and other DPPs.

Tan Sri Muhammad Shafee Abdullah along with lawyers Harvinderjit Singh, Farhan Read and others appeared for Najib.

Najib is charged with abuse of power under Section 23 of the Malaysian Anti-Corruption Commission Act of using his positions as prime minister and finance minister to commit bribery involving RM42 million when he participated in or was involved in a decision on behalf of the Malaysian government to provide government guarantees for loans from Retirement Fund Inc (KWAP) to SRC amounting to RM4 billion.

If convicted, Najib faces a jail term of up to 20 years and a fine not less than five times the amount or value received or RM10,000, whichever is higher.

He also faces three CBT charges as the prime minister, finance minister and adviser emeritus of SRC, and in these capacities entrusted with the control of funds belonging to SRC totalling RM4 billion, having committed CBT to sums of RM27 million, RM5 million and RM10 million.

For CBT, Najib is liable to a maximum of 20 years in jail, whipping and a fine if convicted. However, due to his age, the whipping would not be imposed.

With regard to money laundering, Najib is alleged to have received RM27 million, RM5 million and RM10 million respectively, which were proceeds from unlawful activities via Real Time Electronic Transfer of Funds and Securities (Rentas) into two AmIslamic Bank Bhd accounts.

If convicted, he faces a maximum of 15 years in jail, and a fine of up to RM5 million or five times the amount, whichever is higher, for each charge under Section 4 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activities Act 2001.

 

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