Monday, September 2, 2019

Najib's 1MDB trial- Prosecution's opening gambit seems rather strange, suggests someone has devised a means of defeating the precedent in Dato Harun Idris v PP

by Ganesh Sahathevan

In his opening speech in Najib Razak's 1MDB trial (otherwise known as the Tanore trial) lead prosecutor Gopal Sri Ram said:
"But it was the accused who played the pivotal role. His objective was to enrich himself,"

Having said that the first few witnesses called have been called to give evidence of Najib's charitable and party political works.As reported by the Malay Mail:

Testifying as the sixth witness for the 1Malaysia Development Berhad (1MDB) trial, Datuk Wong Nai Chee said rather than making payments directly to AD Network and Akademi Kewartawanaan dan Informasi Taima (AKIT), a personal cheque was issued in 2013 worth RM246,000 directly to Tan Sri Lim Soon Peng who would then disburse the funds.

Wong said the payments made to Lim were for back to back payments for AD Network who managed the “Ah Jib Gor” Facebook and AKIT which managed the Chinese Weekly.

Wong had earlier explained that the companies were tasked to help bridge the gap between the former administration and the Chinese community by presenting an “objective” view of policies introduced.

Wong was responding to questions during cross-examination by Najib’s defence lawyer Tan Sri Muhammad Shafee Abdullah who asked why the payments were not made directly to the two companies.

Shafee had also asked Wong whether Najib could have utilised government machinery to conduct the same activities as the two companies and whether the government component would be more effective.

“It had never happened before because all this while he has been using his personal cheque,” said Wong.

No wonder Shafee jumped at the opportunity presented him by the prosecution. He has already signalled that he will continue to argue strongly that Najib thought all that money was part of the stream of donations he had come to expect from his Saudi friends,and that in any case he returned the bulk of it after utilising what was needed for party and charitable works. 

In doing so it does look as if the defence is taking advantage of a gift from the prosecution that will enable the defence to overcome the obstacle of the precedent set in the case of Datuk Harun Idris (see decision below).

In that case the Court rejected the argument that Datuk  Harun was not guilty of any crime because the money he procured he procured for UMNO. Najib has attempted to persuade the public, and now the courts of the same. However, he can now do so with the advantage of showing that even the prosecution agrees that unlike Harun,he not only distributed the "donations" but even returned what he did not need.

Why the prosecution would give Najib this advantage is unclear and it is as unclear as to why the prosecution, having said that "the accused ....played the pivotal role....his objective was to enrich himself"  did not then  present the already substantial evidence of the cashflows from 1MDB  into Najib's personal accounts.


Criminal Law and Procedure -- Transfer of case from subordinate court to High Court on certificate of Attorney-General -- Whether legal -- Whether section 418A Criminal Procedure Code ultra vires the Constitution -- Corruption -- Admission of statement to police -- Evidence of other possibloffences, wrongly admitted -- Evidence of system -- Evidence Act, 1950, ss 15, 24, 29, 54 -- Criminal Procedure Code (FMS Cap 6), ss 138, 177, 417 and 418A -- Fedederal Constitution, Articles 4(1) and 8 Bribery and Corruption -- Whether accused solicited gratification -- Whether gratification was solicited corruptly -- Gratification soliciteas inducement to obtain approval of application for State land -- Whetheaccused solicited and accepted money corruptly -- Whether accused "agent" -- Prevention of Corruption Act,1961, ss 3, 4 and 9 Constitutional Law -- Legislation giving discretion to Attorney-General to issue certificatfor transfer of case from subordinate court to High Court -- Whether contrary to Federal Constitution -- Right to Equality -- FederaConstitution Articles 4(1) and 
This was an appeal from the decision of Raja Azlan Shah FJ. ( [1977] 1 MLJ 15).The appellant had beenconvicted on three charges of corruption, in that he as Mentri Besar of Selangor (a) solicited the sum of$250,000 for U.M.N.O. as an inducement to obtain the approval of the Executive Council in respect of anapplication for a piece of State land; (b) being a member of a public body accepted for U.M.N.O. the sum of$25,000 as inducement to obtain such approval and (c) accepted for U.M.N.O. the sum of $225,000 as aninducement to obtain such approval.The learned trial judge sentenced the appellant to one year's imprisonment in respect of the first charge and2 years' imprisonment in respect of each of the second and third charges, all the sentences to runconcurrentlyHe also ordered payment of the sum of $225,000 to U.M.N.O.SelangorThe appellantappealed.On appeal it was argued (a) that section 418A of the Criminal Procedure Code (under the provisions of whichthe case of the appellant had been transferred from the subordinate court to the High Court for trial) wasinconsistent with Article 8 and therefore unconstitutional and void by virtue of Article 4; (b) that the verdictwas not supported by such evidence as was admissible.
(1) section 418A of the Criminal Procedure Code is not discriminatory, as although it uses thewords "any particular case" it does not apply specifically to the particular case against theaccused. The section applies to all criminal cases triable in a subordinate court;(2) a preliminary inquiry is not a fundamental right guaranteed by the Constitution; if the accusedhad been tried in the Sessions Court he would not have had the use of depositions before trial;Page 1

and at the trial in the High Court he also enjoyed the chance of not being called upon for hisdefence at the close of the case for the prosecution. By being tried in the High Court he did notrun the risk of greater penalty, for if he had been tried in the Sessions Court he would havebeen liable to the full penalty prescribed by law. In any event the trial in the High Court followedthe same rules of procedure and evidence as would have been followed in the Sessions Courtand so there was no question of the accused being denied a fair and impartial trial. Theaccused also had a right of appeal and a provision for appeal, it has been held in the Indiancases, may cure any defect in the law;(3) even if (contrary to the view of the court) the law may be regarded as discriminatory, there wasreasonable classification in it, there was a nexus between it and the object of the law and therewas a principle or policy in it to guide the Attorney-General in the exercise of his discretionunder section 418A. The Attorney-General when acting under the section 418A will beexpected to transfer to the High Court only cases of unusual difficulty or of unusual importance.Sections 417 and 418A of the Criminal Procedure Code are vehicles for the Attorney-Generalto exercise his power under Article 145(3) of the Federal Constitution and it is for him to judgewhich case is difficult or important enough to be given an early trial after a transfer to the HighCourt under section 418A;(4) it is obvious that the scheme of the amendments to sections 138, 417 and 418A is to expediatetrials, and there is an obvious classification, a classification clearlconnected with theunderlying principle of administratioof justice that an alleged criminal should be placed on trialas soon as possible after the commission of the crime as the circumstances of the case wouldpermit and this classification cannot be regarded as unreasonable and not having a nexus withthe object of the amendments, namely speedy trial;(5) the statement made by the appellant to the officer of the National Bureau of Investigation wasadmissible by virtue of section 15(1) of the Prevention of Corruption Act, 1961 , and also byvirtue of section 29 of the Evidence Act which provides that if a confession is otherwiseadmissible, that is, if the court is satisfied that it is made voluntarily, it does not becomeinadmissible simply because it was made in answer to questions which he need not haveanswered whatever may have been the form of those questions;(6) evidence relating to cheques paid by the appellant out of the U.M.N.O. Special Fund to hispersonal account was wrongly admitted and should not have been used to discredit theaccused, but in this case there was, apart from that evidence, enough evidence to support thefinding of guilt;(7) evidence of the receipt of other donations received by the appellant was rightly admitted inevidence to rebut the defence that a voluntary and honest donation had been given in thiscase;(8) there was enough evidence to support the conviction as the evidence showed that theappellant did solicit the $250,000 corrupty from the bank as an inducement for the ExecutiveCouncil to approve the bank's application and that he did accept the two sums corruptly;
1977 2 MLJ 155 at 156 
(9) in the circumstances of the case the appellant was an agent within the meaning of section 4(a)of the Prevention of Corruption Act and he was correctly charged on the alternative charges.However in the circumstances it would not be proper or expedient to order the appellant to beconvicted under that section also;(10) the penalty ordered by the learned trial judge should have been ordered to be paid to theFederal Government.

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