PUTRAJAYA: Datuk Seri Gopal Sri Ram will continue leading the prosecution team in former prime minister Datuk Seri Najib Razak's ongoing 1Malaysia Development Bhd cases.
This was after a three-member Court of Appeal bench today dismissed Najib's appeal against the High Court's decision rejecting his bid to disqualify Sri Ram from prosecuting him in the cases.
In the unanimous decision, judge Datuk Yaacob Md Sam who led the bench said the court found that there was no merit in the appeal.
"There is no appealable error committed by the High Court judge in rejecting the appellant's (Najib) application which warrants appellate intervention.
"We therefore dismiss this appeal and the order of the High Court is affirmed," he said in the proceedings which was conducted via Zoom.
The other judges who presided were Datuk Abu Bakar Jais and Datuk Che Ruzima Ghazali.
Najib is appealing against the High Court's decision which dismissed his application to disqualify Sri Ram from leading the prosecution team in the 1MDB-linked cases.
Earlier, Najib's lawyer Tan Sri Muhammad Shafee Abdullah submitted that the appointment of Sri Ram as the ad hoc prosecutor was wrong because a prosecutor could not be in charge of the investigations as well.
He said according to the letter of appointment, former Attorney General (AG) Tan Sri Tommy Thomas had wrongly directed Sri Ram to be involved in the investigation and thereafter the prosecution of Najib.
Under the Criminal Procedure Code (CPC), he said the public prosecutor has nothing to do with the investigation.
"Section 376(1) of the CPC talks about the public prosecutor (role) is only in prosecution, nothing to with with investigation. The entire CPC and the constitution does not grant the AG any power of investigation," he said.
Shafee said from the letter, it was clear that the former AG had invoked his power under Section 376(3) the CPC to appoint Sri Ram as a senior deputy public prosecutor to 'spearhead the investigation' on 1MDB as well as the prosecution of the principal personalities responsible for the fraud.
"For purposes of their (DPP) prosecution, they cannot be investigators, they cannot be spearheading investigations for that is certainly beyond their jurisdiction.
"Because when a DPP is involved in the investigation as well as prosecution, he will no longer be impartial and he will not be fair because what he has investigated he will certainly want that to be proven. So there is no isolation of function," Shafee said.
On the issue of bias, Shafee referred to a revelation made by former AG Tan Sri Mohamed Apandi Ali in an affidavit on what had transpired in a meeting between the latter and Sri Ram as well the Whatsapp messages between them.
Shafee claimed that in the exchanges, Sri Ram already had pre-conceived view of Najib's guilt and had even referred to the former prime minister as 'Criminal Najib'.
Meanwhile, Sri Ram in his argument said he was not involved in the investigations into the cases adding that there was nowhere in the letter which states that he was tasked to conduct the investigation.
He said there was also no cogent evidence showing that he was involved in the investigation process.
"I did not go down and take statements from witnesses, nor did I take any photographs or go to the bank to seize documents or went along and arrested the accused," he said.
In reply to the issue on bias, Sri Ram said he was merely expressing his views in a private conversation with Apandi.
He said everyone is entitled to a private opinion and that whatever private opinion he may have that Apandi disagrees with is between them.
"The judge had said that he will ensure the fairness of the trial and a person accused is dealt with in accordance with evidence not opinion.
"I may have a strong opinion that Najib is a criminal but nevertheless that opinion is not what the court treats as evidence.
"At the end of it, what we (prosecution) have to prove is the ingredients of these serious charges of abuse of power," he said.
The former Federal Court judge also said it was his job as the prosecutor to be bias in favour of the public prosecutor to defend public interest.
Sri Ram added that the prosecution had shared all the relevant information with the defence in the case.
"There is no complaint of suppression of evidence, or tampering or coaching with witnesses," he said.
Najib's appeal is in relation to four of his 1MDB-linked cases including the ongoing trials over the misappropriation of RM2.28 billion of 1MDB funds and 1MDB audit report tampering, his case with former Treasury secretary-general Tan Sri Mohd Irwan Serigar Abdullah's case involving criminal breach of trust (CBT) charges totalling RM6.6 billion and the money laundering case involving RM27 million from SRC International Sdn Bhd's funds.