Najib did not complain or return RM42 mln but used it to his liking - Judge

Justice Datuk Abdul Karim Abdul Jalil said the natural thing for any account holder who had mistakenly or inadvertently received funds through his account was to return it and correct the error, but Najib did not do any such thing when the RM42 million was transferred into his accounts.

In a 54-page of summary judgment, the judge said that Najib never raised any complaint with the bank for these funds being wrongly credited into his accounts but he was quite content to receive and utilise the funds to his liking.

"It has never been shown that utilisation of the funds had anything to do with SRC International or its business. The learned trial judge (Mohd Nazlan Mohd Ghazali) took this to mean that the transfers into his bank accounts must have been done with the appellant's knowledge for otherwise he would not have spent the RM42 million.

"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 accounts.

"The court also agrees with the learned trial judge's finding that the evidence adduced by the prosecution clearly showed that the movement of RM27 million, RM5 million and RM10 million from the SRC bank accounts was an act of dishonest misappropriation," he said.

Justice Abdul Karm said the RM42 million ultimately ended up in Najib's bank accounts and was never diverted to any other accounts but utilised by the appellant (Najib).

He said that once the funds went into the appellant's bank accounts, he utilised the funds by issuing several cheques.

"In the circumstances, the appellant would know the funds being credited into the bank accounts and would in law, be responsible and accountable for the activities in his accounts," he added.

The judge also agreed with the trial judge that the all-important element of misappropriation of entrusted property by the appellant had been clearly established.

He said the evidence clearly showed that the appellant misappropriated RM42 million, the subject of the three criminal breach of trust (CBT) charges and converted to his own use, what he had dishonestly misappropriated.

Justice Abdul Karim said that although the appellant contended that the funds were used for corporate social responsibility (CSR) programmes, the actual expenditures were for his personal benefit, directly and indirectly, and in some cases, for political purposes connected to and calculated to advance the appellant's political career.

The judge said the court also agreed with the High Court judge's finding that Najib had arranged the affairs of SRC International, whereby he was entrusted with its assets and properties.

"This was evident after his appointment as Prime Minister, whereby by virtue of that position he issued shareholder's instructions that had to be complied with by the SRC board.

"The appellant's role was formalised when he became Advisor Emeritus, by authorising an amendment to the Articles of Association which allowed for the creation of that position.

"This appointment entrenched the appellant's commanding position in SRC, which further enabled him to direct the SRC board to act according to his command.

"Ultimately, the appellant's cumulative role arising from his position as Prime Minister, Finance Minister and Advisor Emeritus, clearly shows him to be the directing and controlling mind of SRC," he said.

On the Arab donation, the judge said the evidence clearly showed that the funds originated from SRC International and ended in Najib's personal accounts.

"If it were a personal donation from the Saudi royal family to the appellant, then there was no reason for it to be deposited into SRC's account. SRC is a government-linked company owned by MOF Inc," said Justice Abdul Karim.

On the money laundering charges, the judge said the court found that the funds of RM27 million, RM5 million and RM10 million received by the appellant through his personal bank accounts were the proceeds of unlawful activities, thus the element of the offence under Section 4(1) AMLA had been established.

He said the bench was of the same view with the High Court judge that Najib's contention that he had justifiable reasons not to suspect anything untoward in the flow of the RM42 million into his accounts was simply flawed.

The judge further said that Najib had deliberately shut his eyes and chose not to verify the origins of the funds but instead, relied wholly on others while at the same time, spending the money for his own purposes and benefit.

The court, hence, dismissed Najib's appeal to set aside his conviction and 10 years' jail on each of the three cases of CBT and each of the three cases of money laundering.

Justice Abdul Karim said the bench did not find that both the 12 years' jail sentence and RM210 million fine for abuse of position imposed by the High Court judge to be grossly excessive.

"The term of imprisonment and fine imposed are wholly adequate and commensurate with the nature of the offences," he added.