Columnists

Reasons why the court dismissed Najib's appeal

LAST Friday, I was given a copy of the executive summary of the Court of Appeal's decision on Datuk Seri Najib Razak's appeal against his conviction and sentence by the Kuala Lumpur High Court in July last year.

It was 54 pages long. According to news report, the full text of the judgment is 317 pages long. This commentary is based on the summary, not the full judgment.

Right away at paragraph (6) of the summary, the Court of Appeal stated: "Upon carefully reading the Appeal Records, grounds of judgment of the High Court and reading the very lengthy… written submissions of both parties, we are of the unanimous view that the appeals lack merit and the conviction on all seven counts is safe to stand undisturbed."

The Court of Appeal explained that in a criminal appeal, the duty of an appellate court is to consider "whether the conviction is right and safe" — paragraph (39).

The court held that there was no misdirection on the part of the trial judge on the assessment of the prima facie case, nor was there any enlargement of that finding as contended by the appellant — paragraph (47).

Citing established case law, the court then stated that a series of acts separated by intervals in time could still form one transaction and can be construed as a continuous transaction for one specific criminal intent.

In the present appeal, the appellant's involvement in this criminal enterprise can be seen from the incorporation of SRC, to the approvals of KWAP loans, which were secured by government guarantees, in which the appellant was involved in the approval, right up to the time when a part of the SRC funds amounting to RM42 million was deposited into the appellant's bank account for his personal interest and benefit.

The evidence clearly shows a series of events that ultimately form the narrative of a single transaction — paragraph (73).

The court then referred to the appellant's defence that "all his actions as regards to SRC were for the national interest", relying on the testimony of several witnesses, including then attorney-general Tan Sri Apandi Ali.

The court stated that the opinion of any person, even an A-G, is not relevant in any court proceedings because the court forms its decision on cogent evidence, not on the opinion of others, except the opinion of an expert — paragraph (75).

The court stated that the appellant was actively involved in ensuring the KWAP loans were disbursed to SRC.

However, after the funds had been disbursed, the appellant became indifferent to their whereabouts, how they were used, and for what purposes. He even instructed the second finance minister then to keep off SRC.

Once the funds had been secured by SRC, over which the appellant had overarching control, he was free to utilise them for his personal benefit. This is manifested by the flow of the RM42 million from SRC into his personal accounts.

The court concluded: "This is not something that can be said to have been done in the national interest. There is no national interest here, just a national embarassment" — paragraph (77).

According to the court, the appellant was in fact "the directing mind of SRC". He took charge of the affairs of SRC and gave instructions to the board to "divert the funds of SRC overseas", where its utilisation had nothing to do with the purpose for which SRC obtained the funds from KWAP — paragraph (90).

The court stated that the "natural thing" for any account holder who has mistakenly received funds into his account is to return them and correct the error, but the appellant did nothing.

"Thus, the entirety of the evidence fortifies the learned judge's inference that the appellant certainly had knowledge of the RM42 million that was transferred into his account" — paragraph (105).

On the appellant's claim that the funds were a donation from the Saudi royal family, the court said the evidence clearly shows the funds originated from SRC.

The court concluded that the whole story was "a fabrication and that the appellant could not honestly believe that the RM42 million is from the Saudi royal family" — paragraph (111).

In essence, Najib's appeal was dismissed last week because the Court of Appeal considered it as having no merit, and that the conviction and sentence by the trial judge are "safe to stand undisturbed".

The writer was a federal counsel at the Attorney-General's Chambers and visiting professor at Universiti Teknologi Malaysia. He is now a full-time consultant, trainer and author

Most Popular
Related Article
Says Stories