SRC was one-man show by Najib - DPP

He said this was because the appellant’s (Najib) overarching authority and control over the affairs of SRC completely rendered the BOD as puppets dancing to the tune of its master (Najib).

"It was a one-man show … he kept everyone away and was in control of the SRC funds through the company's chief executive officer Nik Faisal Ariff Kamil. Najib micro-managed the company to the extent of deciding the appointment of SRC lawyers, auditors and which banks operated its accounts, functions usually carried out by the directors.

"The appellant’s unique position in SRC, since its incorporation and subsequent conversion to an MOF Inc company, clearly proves that the appellant was not merely acting in an official capacity as part of the government mechanism.

"The appellant's control and dominion over SRC is evident from the fact that he had acted in his own name and not in the name of a principal, when he himself signed all the shareholder instructions that were subsequently executed by the SRC BOD," he said.

During the material time, Najib was the prime minister, finance minister and advisor emeritus of SRC which was later placed under the Ministry of Finance Incorporated (MoF).

He submitted this before a three-member bench led by Judge Datuk Abdul Karim Abdul Jalil in the hearing of Najib’s appeal against his conviction and jail sentence for the misappropriation of RM42 million in SRC International funds. The other two judges on the bench were Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera.

The Penang-based veteran criminal lawyer said that the appellant, although not a director formally appointed, was in fact the shadow director of SRC by virtue of the fact that the SRC BOD was accustomed to act on the instructions of Najib.

"It is pertinent to note that in any company, the shareholders appoint the Board of Directors to manage the affairs and day-to-day running of the company which it shall act in the best interests of the company.

"However, in the case of SRC, the situation was reversed as the shareholder was instructing the SRC BOD through the shareholder minutes on operational, business aspects which are within the purview of the SRC BOD.

"Former SRC chairman Tan Sri Ismee Ismail and former SRC director Datuk Suboh Md Yassin confirmed that the BOD had to follow the instructions from the appellant and to execute them. Thus, the real shareholder of SRC was indeed the appellant.

"It is clearly evident from the shareholder minutes that, instead of allowing the SRC BOD to conduct the affairs of SRC, the appellant took charge of the company and gave specific instructions to divert the funds of SRC overseas, via Dubai, Hong Kong and Switzerland. The purpose of the utilisation of these funds overseas had nothing to do with the purpose for which SRC obtained the funds from the Retirement Fund Incorporated (KWAP), namely for natural resources development," he said.

Sithambaram insisted that Najib was acting solely for his personal benefit as SRC did not utilise the RM4 billion loan from KWAP for the purpose for which it was granted and had nothing to show for it as confirmed by the 45th prosecution witness, former Treasury secretary-general Tan Sri Wan Abdul Aziz Wan Abdullah.

"The evidence of PW45 did not show a single project that was undertaken or completed by SRC by utilising the RM4 billion loan given to it. The monies just disappeared," he said.

The Kuala Lumpur High Court had on July 28 last year sentenced Najib to 12 years’ jail and a RM210 million fine after finding him guilty on seven charges of criminal breach of trust, money laundering and abuse of position, involving RM42 million in SRC International funds.

The hearing of the appeal continues.