SRC case the worst abuse of position by highest-ranking person, says trial judge

High Court judge Mohd Nazlan Mohd Ghazali said he would not hesitate to find that the case could be characterised as one that fell within the range of the worst kind of abuse of position, CBT and of money laundering because not only of how the crimes were committed, but more importantly also it involved a huge sum of RM42 million.

The judge said the RM42 million had an element of public impact as the money belonged to the Ministry of Finance Inc – government funds, and could have originated from the RM4 billion financing from the state pension fund (KWAP), and which status of the bulk of RM4 billion was told to be an indeterminate obscurity.

“And perhaps most importantly it involved the person who at the material time was the highest-ranking authority in the government,” the judge said in his 801-page grounds of judgment dated Aug 21, which formed part of the appeal record sent to the Court of Appeal.

Justice Mohd Nazlan said there was little merit in the court pontificating and lamenting on why the accused had done what he did, despite (or because of) his undisputed standing at the apex of the vast wealth of power and unparalleled authority.

“The accused (Najib), I repeat is a person with a keen intellect and must surely have a firm sense of right and wrong. I need only in concluding emphasise three points. Firstly, the accused has been convicted of seven serious criminal charges which he had committed when he was the Prime Minister of the country, thus betraying the public trust of this august office.

“Secondly, he must as a consequence be punished in accordance with the law.

“Thirdly, it now falls upon me to fulfil my judicial oath to preserve, protect and defend the Constitution in sentencing the accused by ensuring that the provision of Article 8 of the Constitution that all persons are equal before the law is upheld,” he said.

The judge also pointed out that Najib did not express any remorse and even maintained his defence of no knowledge of the RM42 million from SRC in his mitigation speech.

Justice Mohd Nazlan said he could not deny that Najib was the Prime Minister of the country nor could one question that the accused had made contributions to the well-being and betterment of the people of this nation, probably in many different ways, for he was after all the Prime Minister for nine years.

He said political history would continue to debate whether he had done, on balance, more good than harm.

“But this very process would arguably be inimical to the ideals of a clean administration that does not tolerate corruption and abuse of power,” he said.

The judge said that no one, not even one who was the most powerful political figure and the leader of the country enjoyed a cloak of invincibility from the force of the law.

He further said the ascension of the accused to the pinnacle of leadership of the nation and his grip on political power reposed in him by the citizens of the country, the position of trust in its system of constitutional democracy.

“His conviction of all seven charges concerning abuse of position, criminal breach of trust and money laundering constitutes nothing less than an absolute betrayal of that trust.

“For this reason, I consider the conviction of the accused for abuse of position under Section 23 of the Malaysian Anti-Corruption Commission Act as the most serious transgression amongst the three given his position of trust as the nation’s Prime Minister and Finance Minister when the offences were committed,” he said.

On Najib’s defence that he did not know the money which came into his accounts was from SRC, the judge said in his assessment, the accused must have known about the remittance of RM42 million from SRC.

“It is incredible for him not wanting to find out about the source of the funds in his accounts which enabled him to issue many personal cheques.

“The three, Datuk Azlin (late Datuk Azlin Alias, who was Najib’s former principal private secretary), Jho Low (Low Taek Jho) and Nik Faisal (former SRC chief executive officer Nik Faisal Ariff Kamil) were all on evidence in contact with him on matters related to the accounts. This must certainly have included the key information such as the remittance of the RM42 million. Merely relying on a ‘sense’ that there were sufficient funds is astonishing,” he said.

The judge said Najib’s testimony confirmed the role of Jho Low in the management of the accused’s accounts on top of the involvement of Nik Faisal and the late Azlin.

He said the accused testified that Jho Low’s main responsibility was to ensure sufficiency of funds in these accounts so that the accused could continue issuing personal cheques out of these accounts.

“He was also the conduit for the alleged Arab donation sources. This is still very much consistent with the case of the prosecution earlier that the accused caused the transfers through Nik Faisal and Datuk Azlin.

“The evidence of the accused that Jho Low was primarily involved in the management of the personal accounts of the accused was also consistent with the evidence in the Blackberry Messenger (BBM) chats between former AmBank relationship manager Joanna Yu and Jho Low,” he added.

The judge concluded that having considered all relevant considerations, especially recognising that each of the seven charges of serious offences reflected a scenario of a near-worst imaginable case given the premeditation and sophistication in the manner these offences were committed, the loss of public funds of RM42 million belonging to SRC which was instead used for the accused’s own benefit and advantage, and most critically, the fact that these grave offences were committed by the accused when he held the ultimate position of public trust as the Prime Minister of the nation, an appropriate sentence should be imposed on the accused.

The judge said he decided that a jail term was an appropriate sentence for each of the seven charges and a very large amount of fine of at least RM210 million must be imposed to commensurate with the seriousness of the criminal wrongdoing and to reflect the degree of public disapproval vis-à-vis the offence in question.

On July 28, Justice Mohd Nazlan sentenced the Pekan MP to 10 years’ jail on each of the three cases of CBT and each of the three cases of money laundering and 12 years’ jail and a fine of RM210 million, in default five years’ jail, in the case of abuse of position.

However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently. He is currently out on a RM2 million bail in two sureties pending appeal.

On July 30, Najib filed the notice of appeal against the conviction and sentences while the prosecution had on Aug 7, filed a cross-appeal to increase the whole sentence imposed on Najib.

The Court of Appeal had fixed Oct 15 for case management of the appeal and the cross-appeal.