PUTRAJAYA (April 15): The prosecution of Datuk Seri Najib Razak's SRC International Sdn Bhd appeal hearing at the Court of Appeal today asserted that the evidence of his conduct had established the former prime minister's clear initial plan to swindle money from the company.

As such, the fact that Najib had "deferred" the gratification of the RM42 million is irrelevant.

Ad hoc prosecutor Datuk V Sithambaram said today that the defence's argument based on the three-year gap between the approval of the government guarantees (GGs) until the gratification of RM42 million was received is inconsequential in this context.

Sithambaram stated that due to the clear interest Najib showed in his involvement with the inception of SRC and how he used his position to manipulate the approval process of the GGs, deferred gratification does not matter.

"In short, there is no nexus. The case law precedents above regard the actions taken by the appellant (Najib) from the start to finish as one single transaction.

"To hold otherwise will encourage would-be offenders to abuse their position and delay receipt of the gratification to a later point in time in order to escape criminal liability," he added.

Sithambaram concurred with trial judge Justice Mohd Nazlan Mohd Ghazali who stated in his ground of judgement that should this be allowed, it would result in a clear avenue for violators to escape criminal liability.

In his ground of judgement, Justice Nazlan had said: "To hold otherwise would violate the legal position and constitutes a departure from basic logic and common sense.

"This is because potential violators could flagrantly abuse their office and conveniently delay the receipt of the gratification to a later juncture in order to escape criminal liability altogether."

It has been established during the trial in the High Court that SRC was loaned RM4 billion from Retirement Fund Inc (KWAP) after cabinet meetings chaired by Najib as prime minister granted two separate GGs for the loan to proceed with no specified use.

Sithambaram added that the former premier could have taken out the monies at any time given his control over SRC and his conduct of treating SRC funds as his personal bank accounts.

The prosecution claimed that the appellant made three separate transactions of RM5 million, RM10 million, and RM27 million through Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd to his personal accounts, showcasing that he used the SRC funds, driven by personal interest.

This was all in response to the arguments brought forward by Najib's defence lawyer Farhan Read, who argued on Monday that his client could not be charged under Section 23(1) of the Malaysian Anti-Corruption Commission Act, claiming that gratification must be the immediate and intended result of one’s office.

However, Sithambaram argued that Najib's participation in SRC's inception, cabinet meetings for GGs' approvals showcased the appellant's clear interest in SRC and they were all part of a continuous plot to misappropriate monies belonging to SRC for his personal benefits and advantages.

"The chronology of events positively shows that the entire exercise of SRC beginning from its inception on Jan 4, 2011, the approval of the first loan by KWAP on July 19, 2011, the approval of the first GG by cabinet on Aug 17, 2011, the approval of the second GG by cabinet on Feb 8, 2012 and up to the approval of the second loan by KWAP on March 20, 2012, it only took a mere 14 months for all of the above to be completed," Sithambaram said.

He said this established a clear single criminal intent on behalf of Najib for the progression of the premeditated and continuous plot that ensured that SRC funds were available at his disposal.

On July 28, 2020, the High Court in Kuala Lumpur sentenced Najib to 12 years in jail and fined him RM210 million after Justice Nazlan found him guilty of all seven charges linked to the SRC case. The seven charges included one for abuse of power involving KWAP's RM4 billion loan to SRC, and three charges each of criminal breach of trust and money laundering involving RM42 million.

Today is day eight of Najib's scheduled 12-day appeal hearing at the Court of Appeal. Both the custodial and fine sentences were stayed pending the appeal against the conviction and sentence passed.

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