KUALA LUMPUR (March 15): Datuk Seri Najib Razak's lawyer maintained today that the alleged 1Malaysia Development Bhd (1MDB)-linked money recovered during a police raid at the Pavilion Residences condominium three years ago totalled RM160 million, and not RM114 million as claimed by the authorities.
The former premier's lead counsel, Tan Sri Muhammad Shafee Abdullah, claimed in the High Court that the police raid at the condominium unit owned by OBYU Holdings Sdn Bhd was not done according to procedure.
Sarawak businessman Tan Sri Bustari Yusof owns OBYU.
"They (police) called the building manager to conduct the raid (in 2018) without the presence of Bustari or Najib. In the end, the search list was given to the building manager," said Shafee.
According to the lawyer, Najib only received a copy of the search list on June 1 that year while the raid was conducted on May 17 under a worldwide media coverage.
"The money that is claimed to have been recovered in the raid was RM114 million (while) Najib said it was RM160 million," Shafee told the court which was hearing the Malaysian government's application to forfeit assets allegedly linked to 1MDB.
UMNO and Najib are claiming the seized assets which included cash and jewellery from the Pavilion Residences condominium.
They claim that the money belonged to UMNO and hence should be returned to the party and not seized by the authorities.
Shafee also claimed that the Pavilion raid conducted without Najib's presence had violated the former premier's rights under Article 5 (liberty of a person) and Article 13 (rights to property) of the Federal Constitution.
"This in itself is procedural unfairness on our client and there has been a break in chain of evidence during the seizure as the raid was conducted by a person with the rank of an SAC (senior assistant commissioner) and not a corporal.
"However, the items were then given to the present investigating officers and this was not done according to procedures as there were no labels where the items were retrieved. This also culminated with the fact that my client is not named as a respondent in this forfeiture proceedings and what is named instead is OBYU.
"However, the prosecution dropped its claim against OBYU, the owner of the condo. Hence, the application notice for forfeiture by the prosecution in maintaining OBYU as the respondent, and not my client or his wife Datin Seri Rosmah Mansor, is defective," he said.
The court, he added, should take into consideration that a defective application cannot be allowed and the prosecution should not be given a chance to rectify this.
Citing an Irish case, Shafee said when there is a violation of constitutional right in a forfeiture case, the court should side with the respondents and this case it should be in Najib's favour.
Questionable move by DPP
Shafee also referred to an affidavit by Deputy Public Prosecutor (DPP) Harris Ong Jeffrey Ong which stated that the claim was not from 1MDB or SRC International Sdn Bhd funds.
"I confirm after reviewing the papers there should be no prosecution under Section 4(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activity Act 2001," he said in reading Harris Ong's affidavit.
"My client is faced with money laundering charges to the amount of RM2.28 billion of 1MDB funds and RM42 million of SRC funds. The DPP in his affidavit in this OBYU initially said it was satisfied that there should not be any prosecution under money laundering yet they proceeded in charging my client for 1MDB and SRC," he said.
According to Shafee, what Harris Ong was saying was that the money had nothing to do with 1MDB or SRC and this went entirely against the prosecution's assertion, that they based this case on 1MDB.
"We say Najib is a victim of an abuse of the court process. The prosecution cannot be allowed to change the course of action to rectify their case to say now there is prosecution against Najib," he said.
Shafee said from what is seen, the prosecution had failed to show that the monies of RM114 million were from 1MDB as they claimed and they cannot blow hot and cold air on it now.
He said the application to forfeit the said cash from the raid should be dismissed and this should be applicable with other properties seized in the condo raid.
"For these reasons, and questions surrounding the prosecution's application and adopting the submissions from the UMNO lawyers earlier, we say the forfeiture application should be dismissed on a balance of probabilities, and the money should be returned to UMNO," he said.
Shafee also wanted the court to take notice that Najib was the one who wanted to move towards regulating political party donations and had discussed the matter with then MACC chief commissioner Tan Sri Abu Kassim Mohamed, but the move was allegedly rejected by the opposition.
The prosecution, led by DPP Saifuddin Hashim Musaimi, told Justice Datuk Muhammad Jamil Hussin that they would need some time to reply on the submissions made by Shafee and UMNO lawyers Datuk Hariharan Tara Singh and Tania Scivetti.
Justice Jamil then fixed March 29 to hear the prosecution's reply.
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