KUALA LUMPUR, June 1 — Datuk Seri Najib Razak's alleged spending of RM42 million of SRC International Sdn Bhd does not constitute criminal breach of trust (CBT), Najib's defence lawyer said at the High Court today.

Defence lawyer Harvinderjit Singh argued that the alleged misappropriation of the company's funds was instead committed by "third parties”, citing former SRC chief executive Nik Faisal Ariff Kamil and fugitive financier Low Taek Jho or Jho Low as those responsible instead.

He also pointed out how the 57th prosecution witness and Malaysian Anti-Corruption Commission (MACC) investigating officer Rosli Husain testified that an Interpol Red Notice was issued to both Nik Faisal and Low on charges to jointly commit CBT.

"Since the very beginning, the defence has argued that Low’s entire role was to carry out subterfuge in relation to the transfer of the millions of ringgit in and out of the accused’s account without the accused’s knowledge,” he said during the defence’s oral submission before High Court judge Mohd Nazlan Mohd Ghazali.

He also pointed out how the prosecution's 54th witness, former Ambank relationship manager Joanna Yu Ging Ping had spoke to unauthorised person (Low) in regards to the material fund transactions into Najib's bank accounts where "Low manipulated the accounts without the account holder's knowledge”.

Harvinderjit therefore said these transactions were outside the governance structure of SRC and therefore cannot be said to have been misappropriation of property lawfully entrusted or within the control of an agent of SRC.

He said the three CBT charges against his client for alleged misappropriation of SRC funds as an agent entrusted with public funds, would therefore not be proven.

"In his defence, Najib did not instruct or have any involvement in the RM42 million transactions is consistent with the evidence adduced in the defence case.

"In order to sustain the CBT charges, the evidence as a whole must 'prove' either through findings of fact or inferences which are only consistent with the guilt of Datuk Seri Najib that Datuk Seri Najib misappropriated the RM42 million.

"Given the above, the evidence falls short of proof beyond reasonable doubt,” he said.

Earlier during the hearing, Harvinderjit also argued that the prosecution was using defence witnesses, in particular his client, to close any gaps in its ongoing case.

Harvinderjit said the prosecution were relying on Najib's purported evidence that three people were responsible for depositing money into bank accounts belonging to the accused.

The three people were identified as Low, Najib's former principal private secretary Datuk Azlin Alias and Nik Faisal.

This is despite that the prosecution’s main case was that Najib had alleged dominion on the funds and allegedly conspired with the three in the fund transfers.

"The accused don't even know the three pumped money into his accounts. There were no charges of abetment against them.

"The charges are that Najib allegedly committed CBT of RM42 million. But the charges did not state conspiracy.

"So what happened was that the prosecution tailored their case,” he said.

Harvinderjit said the prosecution must prove its case based on prima facie evidence which resulted in the court directing Najib to enter defence.

He also submitted that during the defence stage of the trial, the prosecution cannot introduce new evidence through responses obtained from Najib's cross-examination during the defence stage.

Thus he said the prosecution has not been able to prove that Najib has control in the transfer of RM42 million of alleged SRC International funds into his bank accounts.

The High Court previously fixed three days from June 1 until June 3 to hear the oral submissions by both defence and prosecution, after the defence closed its case on March 11.

Out of the seven charges Najib faced, the Pekan MP is accused of committing three counts of criminal breach of trust over a total RM42 million of SRC International funds while entrusted with its control as the prime minister and finance minister then, and a separate charge under an anti-corruption law of abusing the same positions for self-gratification of the same RM42 million sum.

The remaining three of the seven charges are for allegedly money-laundering the same total sum of RM42 million.