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2022 MarsdenLR 1790
FEDERAL COURT PUTRAJAYA
DATO SRI MOHD NAJIB ABD RAZAK – Appellant
Versus
PP & OTHER APPEALS (NO 4) – Respondent
[Criminal Appeal Nos: 05(L)-289-12-2021(W) 05(L)-290-12-2021(W) & 05(L)-291-12-2021(W)]
The Federal Court upheld the convictions and sentence of the former Prime Minister, confirming established legal principles on abuse of power, criminal breach of trust, and money laundering.
Headnote:(A) Malaysian Anti-Corruption Commission Act 2009 – Section 23 – Penal Code – Section 409 – Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Section 4(1)(b) – Seven charges of abuse of power, criminal breach of trust, and money laundering against the appellant were upheld by the Federal Court after thorough consideration of established law and the appeal records without any meritorious grounds for appellate intervention. (Paras 1, 5, 28, 39)
(B)
Appeals – The appellant's counsel repeatedly refused to make submissions during the appeal process despite being provided opportunities by the court, leading to the court proceeding in the absence of any submissions from the appellant. (Paras 17, 22, 39)
Facts of the case:
The appellant, former Prime Minister, was convicted of multiple charges concerning illicit financial activities related to SRC International Sdn Bhd and was sentenced to twelve years and a fine of RM210 million. (Paras 1-3, 39)
Findings of Court:
The court affirmed the decision of the High Court, confirming that adequate grounds for conviction were established and that the sentence was not deemed excessive. (Paras 28, 39)
Issues
: The main issues included whether the High Court made errors in evaluating the prosecution's prima facie case and if the defence raised a reasonable doubt regarding the charges. (Paras 29, 30)
Ratio Decidendi:
The court concluded that the appellant's counsel's refusal to submit did not preclude the court from dismissing the appeals, as there were no perverse findings or errors to warrant revision of the lower court's ruling. (Paras 21, 39)
Result:
Appeals unanimously dismissed.
Introduction
[1] The appellant in this case is the former Prime Minister of Malaysia, Dato' Sri Mohd Najib bin Haji Abdul Razak. He was charged with seven offences against his conduct in relation to a company called SRC International Sdn Bhd ('SRC'). The High Court found him guilty and convicted him on all seven charges. The sentence imposed on the appellant is an aggregate concurrent custodial sentence of twelve years and a fine of RM210 million (in default 5 years' imprisonment). The Court of Appeal affirmed the conviction on all seven charges and the sentence imposed. In these three appeals before us, the appellant challenges the conviction and sentence.
[2] We must state that the respondent has not challenged the measure of the sentence imposed against the appellant.
[3] The seven charges against the appellant are, in summary, simply these. The first charge relates to abuse of power under s 23 of the Malaysian Anti- Corruption Commission Act 2009 ('MACC Act 2009'). The next three charges are on criminal breach of trust under s 409 of the Penal Code while the last three charges are under s 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFAPUAA 2001').
[4] At the outset, we state that Counsel for the appellant, Tuan Haji Hisyam Teh, impressed upon us with considerable fervour that these appeals concern strong serious points of law and fact. In point of fact, we find that there is nothing complex in these appeals. Putting aside the personality of the appellant, this is a simple and straightforward case of abuse of power, criminal breach of trust and money laundering.
[5] The trial itself took an aggregate number of at least 86 days (57 for the prosecution case and 29 days for the defence). It is understandable that the trial took that long because of the number of witnesses involved, the sheer number of documents and due to the fact that a great part of the trial took place during the Covid-19 Pandemic. However, these considerations do not in themselves render the case complex.
[6] The area of the law is very much settled. There is an abundance of cases on abuse of power under the MACC Act 2009 and money laundering under AMLATFAPUAA 2001. The Penal Code too, was first enacted in 1936 and s 409 and the entire body of law on criminal breach of trust has developed since then. There are to our minds, no novel legal issues on this area of the law. The issues in these appeals mostly concern findings of fact and the application of settled law to the facts. It bears mentioning, and this will be elaborated in greater detail later, that as the apex Court, our role is not to make new findings of fact but to consider whether the existing findings and the application of the law to the facts are correct.
[7] Before we proceed to state our decision, we must first address some preliminary issues.
Preliminary Issues
Counsel For The Appellant's Refusal To Make Submissions
[8] These appeals were fixed for hearing on the 15th of August to the 19th of August 2022 and the 23rd of August to the 26th of August 2022. This constitutes a total of nine days.
[9] The first two days of the appeal, the 15-16 August 2022, were spent on the appellant's motions to adduce additional evidence. We considered the motions and on 16 August 2022, after careful deliberation, we unanimously dismissed them with written grounds stating our reasons for doing so. On the same day 16 August 2022, we instructed parties to proceed with the substantive merits of the appeals. Tuan Haji Hisyam Teh, Counsel for the appellant then stated that he and his team, being the new lawyers for the appellant, were not prepared to argue the appeals and moved to adjourn the appeals for three to four months.
[10] We stood down to consider the application for adjournment and on 16 August 2022 itself
