KUALA LUMPUR (March 11): A lawyer for UMNO today told the High Court that the prosecution seeking the forfeiture of funds seized from the Pavilion luxury condominium unit owned by OBYU Holdings Sdn Bhd has failed to show how the company had allegedly misappropriated the funds from 1Malaysia Development Bhd (1MDB).
Tania Scivetti for UMNO said the prosecution should have named former prime minister Datuk Seri Najib Razak as the respondent in the forfeiture hearing and not OBYU.
She added that even with assertion by investigating officers Senior Assistant Commissioner R Rajagopal and Superintendent Foo Wei Min that the money in Najib's accounts was allegedly siphoned from 1MDB during the Goodstar, Tanore and Aabar phases, they did not show material accounts from these three entities to show that the monies seized from the property came from the company.
"The prosecution claimed the monies were misappropriated allegedly from 1MDB and classified the losses under Section 409 for criminal breach of trust, Section 411 for dishonestly receiving stolen property of the Penal Code and Section 4(1) of the Anti Money Laundering, Anti Terrorism Financing and Proceeds from Unlawful Activity Act 2001.
"It is astonishing and illogical and does not make sense for the prosecution not to show the nexus with regard to 1MDB and the cash seized from the Pavilion residence, without showing how OBYU allegedly misappropriated the 1MDB funds.
"We say it is impossible for Deputy Public Prosecutor (DPP) Harris Ong Mohd Jeffrey Ong's in his affidavit to be satisfied the money there supports his contention that forfeiture is to be allowed," Scivetti said.
She appeared with Datuk Hariharan Tara Singh for UMNO, while Najib was represented by Tan Sri Muhammad Shafee Abdullah.
Scivetti said the notice for seizure is therefore defective as it should have named Najib as the respondent, and not OBYU.
OBYU is owned by Tan Sri Bustari Yusof, who is said to be a close associate of the former prime minister. The prosecution had stopped any proceedings against OBYU as it decided not to forfeit the condo unit where the loot was held.
UMNO and Najib are claiming the RM114 million cash seized from the unit belonged to the Malay nationalist party, not 1MDB.
Besides the cash, close to 12,000 pieces of jewellery, some 300 handbags and hundreds of watches were also seized. The hearing for forfeiture of these other items has not been fixed.
Prosecution denied monies owned by UMNO as it had secret account
The Edge reported last month that the prosecution denied the RM114 million cash, consisted mostly of foreign currencies of various denominations, belonged to UMNO as the party already had a secret account which was unaudited.
The prosecution, led by DPP Saifuddin Hashim Musaimi and DPP Liew Hong Bin, also quizzed that if these were UMNO monies why were they in various foreign currencies and denominations.
They further said that if indeed they were UMNO's funds — why then did UMNO leaders, such as former secretary-general Datuk Seri Tengku Adnan Tengku Mansor and treasurers Datuk Seri Ahmad Husni Hanadzlah and Datuk Seri Salleh Said Keruak, deny any knowledge that Najib was supposed to keep the monies for the 14th general election.
Hence, the prosecution maintained that the monies in question were proceeds from unlawful activities and originated from 1MDB and therefore, the prosecution and the government were entitled to seize them as they were stolen from the state fund.
"The monies were recovered from 35 bags seized by the police as affirmed by Superintendent Foo in his affidavit from the raid. They were also in various currencies and various denominations. UMNO president Datuk Seri Dr Ahmad Zahid Hamidi himself denied the political donations were in different currencies," the prosecution added.
Scivetti said if the prosecution shows that the monies were misappropriated from 1MDB, it must also show which officer of the fund it had allegedly taken the monies from.
Merely showing the purported money trail without producing the bank accounts to support the claim, it does not satisfy the provision for a forfeiture application, she added.
The lawyer asked the court to also dismiss the chart provided by Foo to show the money trail as this was not supported by any evidence.
Court rejects affidavit on 1MDB money trail
Earlier, presiding High Court Justice Datuk Muhammad Jamil Hussin allowed an application by Najib and UMNO to dismiss an affidavit filed by the prosecution through Rajagopal.
The affidavit was filed yesterday afternoon, after Shafee and Hariharan objected to it being filed in court without the prosecution filing for leave.
Shafee said he objected as parties had exhausted all affidavits with regard to the matter, thus affirming another 46 paragraphs to further show the money trail should not be allowed.
"The prosecution has the evidence since 2015, following the police investigations then, why file it late?" Shafee asked.
Hariharan also said the affidavit would prejudice them as submissions were already prepared without taking into consideration the new affidavit.
"It is against our client's right to a fair trial," he added.
On the other hand, DPP Liew said the prosecution should be allowed to put in this affidavit as it was not putting in new evidence, but was merely using the document to support its case.
"The court should allow this affidavit due to the magnitude and importance of this case involving huge sums of money," he added.
In the end, Justice Jamil ruled the court will disallow the affidavit from being used in the present proceedings.
The hearing continues on Monday with further submissions from Shafee and Hariharan and a reply by the prosecution.