RM42m ‘Misappropriation’ In SRC Case Lacks Perspective

High Court Judge Nazlan may not have come to equity on RM42m SRC case with ‘clean hands’!

The Federal Court may be persuaded against “putting on blinkers” and Ruling that new evidence offered by former Prime Minister Najib Abdul Razak on the SRC International case may not be relevant to the main RM42m “misappropriation” charge.

In law, according to subject matter experts, misappropriation is the unauthorized use of another’s name, likeness, identity, property, discoveries, inventions, etc without that person’s permission, resulting in harm to that person. More on that later.

The jury may still be out on whether misappropriation, based on the money trail, fully satisfies the term “beyond reasonable doubt” i.e. the Test of the Burden of Proof in criminal cases.

The RM42m may not be the main issue in the SRC case. The case cannot be simplistically reduced in court to the proverbial Milo stealer’s plight. The Milo stealer – like the sardine stealer and the single mother who stole Infant Formula – was fined and jailed as soon as he or she left the supermarket with the suspect good/s. The Milo thief was not offered plea bargaining – an alien concept – based on “precedent” set by the Attorney General’s Chambers (AGC) and the court. The plea bargaining formula from memory on recent history goes: “I stole 10 chickens, I offer to return four chickens. I will keep, without prejudice, the other six chickens.”

The AGC expresses no objection on the chicken thief’s “temerity in law”, ostensibly covered by money laundering laws, and the court goes along without batting an eye on the “saya tak tahu” (I don’t know) syndrome. The chicken thief, like former Sabah Chief Minister Musa Aman, laughed all the way to the bank. It may be politically motivated out of court settlement which benefits the accused. Musa claimed that the RM380m he collected was political donation. Due diligence and forensic accounting could have proven otherwise. Unlike the chicken thief, none of the RM380m was taken away by the Inland Revenue Board (IRB) or under money laundering laws.

High Court Judge Nazlan did note in his Ruling that “Najib did not return the RM42m to the source/origin i.e. SRC International”. The judge did not elaborate on the comment. He could have held back on sentencing and conviction. Najib could have deposited the RM42m in court. The onus would be on SRC International to prove that they can claim the money. Najib wasn’t offered plea bargaining by the Attorney General. Plea bargaining would have facilitated an out of court settlement. In the rule of law, there can be no discrimination.

Easier Said Than Done On SRC Case

Of course, it’s easier said than done. We don’t know whether Najib has another RM42m to replace SRC’s RM42m which was deposited in his account/s by CEO Nik Faisal. Ironically, Nik Faisal and another person controlled the said accounts under Power of Attorney (PA). It was unfortunate that Nik Faisal was not produced as the material witness.

The real story, we are told, is that the RM42m approved by the SRC Board was the Company’s contribution as political donation. It was meant for corporate social responsibility (CSR) activities. See here.

The new Najib defence team has argued that Judge Nazlan, by not recusing himself on the case, may have given rise to the “conflict of interest” situation which albeitly would have been evident when charges were filed and/or before prima facie case was made out. Also, there was an unexplained RM1m+ in Judge Nazlan’s personal account/s. MACC probed him and sent the investigation papers to the AGC. 

AG has to pass back the investigation papers to the MACC for further and better particulars or take action directly or indirectly through MACC. In jurisprudence, there’s principle and Maxim that “he who comes to Equity must come with clean hands”. The fact that the Judge was probed is telling. He has also lodged a police report on the matter. That’s unprecedented.

The Federal Court may bend over backwards to be fair. It can lean towards Najib to mitigate for him based on the “benefit of the doubt” situation which arises from political donation. Also, Judge Nazlan was probed by the MACC for not coming to Equity with clean hands. Justice Augustine Paul, it would be recalled, mitigated for Anwar Ibrahim during Sodomy 1. Anwar’s case, it has been argued, wasn’t about the rule of law. It was the letter of the law, by itself, being seen as law. It wasn’t law.

It may take time to go through and weigh the additional evidence based on the rule of law. If the court decides against Najib’s application, probably based on the letter of the law, the hearing of his final appeal will begin. Deciding against the Motion on new evidence may be easy. Deciding for may take time. If the Motion is rejected, Najib can Appeal on the constitutionality of the rejection, the rule of law being the basis of the Constitution. If he succeeds in the Appeal on the Motion, there may be New Trial.

Judge Nazlan On New Evidence

True, Judge Nazlan could not have connected the dots when the new evidence was happening. He would only have realised that the “conflict of interest” had arisen when the prosecution read the charges. The judge could have immediately recused himself, but for some unknown reason/s, he kept the new evidence to himself. Apparently, Najib did not know about the new evidence until it appeared in anonymous package/s left on his doorstep. He may have had an inkling earlier, as alleged by the prosecution hired from the private sector, but could not connect the dots. He did not see the forest for the trees. The new evidence completes the Big Picture.

If Judge Nazlan had disclosed the new evidence earlier, Najib could have filed a recusal Application, and another judge may have not found a prima facie case and/or rendered a different Ruling. It was a fatal flaw in law that the former Prime Minister was denied that right, perhaps deliberately. I stand corrected.

In jurisprudence, law ultimately being the power of language, the Apex Court cannot Rule that Judge Nazlan’s failure to disclose the “new evidence”, as he was privy to them earlier, was irrelevant to the RM42m misappropriation charge. That’s carrying simplicity to the extreme. The Ruling should focus on the “conflict of interest” issue based on the rule of law.

Again, the court cannot say that Judge Nazlan’s role in the formation of SRC International, mentioned initially as strategic resource company, may have been aborted and therefore the evidence was irrelevant. Patently, it doesn’t matter whether the new evidence was irrelevant or otherwise to the RM42m misappropriation charge.

The bottomline: Judge Nazlan failed to clear the conflict of interest issue. To add insult to injury, Judge Nazlan held in the High Court Ruling that Najib – the court being oblivious to the new evidence – set up SRC International to benefit himself.  This was an extraordinary leap of faith in the perverse and a violation of the rule of law. Judge Nazlan was being self-serving in the Ruling. If it can’t been seen how he was self-serving, we can fall back on jurisprudence which holds that the court isn’t about truth, but only the law, based on the rule of law.

Hearsay

The prosecution may argue that the new evidence is hearsay since the accompanying Affidavits in Support were only signed by Najib. It appears that the signatures of those mentioned in the Affidavits are missing. In fact, notwithstanding the Official Secrets Act 1972, all potential Witnesses can file Witness Statements. That would facilitate examination in chief, cross examination and re-examination. Under the Evidence Act 1950, there must be corroborative evidence. Otherwise, it’s hearsay. See here.

And here.

According to lead counsel Hisyam Teh Poh Teh, as reported by the media, the Motion on new evidence met all the requirements under Section 93 of the Courts of Judicature Act. It met the criteria under established case law viz. R v Park, Ladd v Marshall and Anwar Ibrahim v Public Prosecutor. 

The stage for an Appeal before the Appeal proper may have been set for Najib’s new defence team on the Federal Court’s probably majority Ruling – unlikely unanimous – of new evidence on the RM42m SRC International case. The defence can take the cue from the legal arguments in dissenting Rulings if in favour of Najib.

If the Federal Court can’t be unanimous on the Motion for new evidence, based on consensus, it should probably Rule for a New Trial. 

Chief Justice Tengku Maimun Tuan Mat presides over the five-person apex court Panel.

Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, Federal Court judges P Nallini, Mary Lim Thiam Suan and Mohamad Zabidin Mohd Diah are the others members of the Panel. – New Malaysia Herald

About the writerLongtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.

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