PUTRAJAYA, April 8 ― Datuk Seri Najib Razak was selectively charged for criminal breach of trust (CBT) by misappropriation involving RM42 million SRC International Sdn Bhd funds, his defence claimed to the Court of Appeal today when noting others were wanted over the matter.

Defence lawyer Harvinderjit Singh said this during submission in Najib’s appeal hearing against the former prime minister’s conviction and prison sentence for the misappropriation of RM42 million in SRC International funds.

Harvinderjit claimed this was affirmed when Malaysian Anti-Corruption Commission (MACC) investigator Rosli Husain (PW57) had testified that the agency asked Interpol in May 2018 to issue "Red Notices” to four others for being jointly involved in the misappropriation of SRC International funds amounting to RM50 million which includes the subject RM42 million in Najib's three CBT charges.

The four were fugitive financier Low Taek Jho or Jho Low, SRC former director Datuk Suboh Md Yassin, SRC former chief executive Nik Faisal Ariff Kamil, and Redzuan Adamshah who is identified as Low's business associate.

A Red Notice is essentially a request to Interpol to law enforcement agencies worldwide to arrest the named person.

"Sometime in June or July 2018 Red Notices were issued against several others for CBT amounting to RM50 million.

"Having taken that position, the prosecution suddenly decided to charge Najib,” Harvinderjit said.

Citing court transcripts, Harvinderjit said Rosli's testimony reaffirmed that MACC's investigation findings were as it concluded for the Red Notices, which stated the RM42 million SRC International transactions were caused through CBT committed by Low and others.

"Jho Low had no official role in SRC but was involved in giving instructions to transfer the money to Najib's account from SRC,” he added.

Misappropriation by Najib as SRC's agent not proven

Harvinderjit further submitted that the offence of CBT by misappropriation is deemed complete when funds were removed from the subject trustee and must be further proven to have been done by an accused in the capacity as an "agent”.

In the CBT charges, it is provided that the CBT over the RM42 million was committed by Najib in the capacity as agent of SRC International, namely as the prime minister, finance minister and advisor emeritus at the material time.

In convicting Najib, the High Court found that misappropriation was caused by Najib as an "agent” through his control of SRC International, in particular through Nik Faisal and Suboh (mandated signatories of SRC International) who caused the disbursement of RM42 million that eventually made its way into Najib's bank accounts.

Between December 2014 and February 2015,  RM42 million of SRC International funds were moved through a layering process to its subsidiary Gandingan Mentari Sdn Bhd (GMSB) as well as to its purported corporate social responsibility partner Ihsan Perdana Sdn Bhd (IPSB) before being transferred into Najib’s bank accounts.

Harvinderjit argued that the prosecution contended that it was Najib who committed the offence as the ex-prime minister's principal private secretary at the time, the late Datuk Seri Azlin Alias, had given instructions on his behalf.

He argued that all the material fund transactions from SRC International including the RM42 million were affected through unauthorised persons and consequently could not be said to have been misappropriation of property lawfully entrusted of an agent of SRC since it took place outside the governance structure of the company.

Instead, he said the evidence as a whole supports the drawing of a favourable inference that RM42 million from SRC International were all carried out at the behest of Jho Low for his own purpose and benefits.

Contending further, Harvinderjit that there was no credible evidence to establish that the RM42 million funds were disbursed out of SRC International through any act of Najib, let alone any act undertaken by Najib in the agent capacities outlined in the CBT charges.

In the RM42 million SRC International case, Najib was sentenced to 10 years’ jail on each of the three counts of CBT and each of the three counts of money laundering, and 12 years’ jail and a RM210 million fine, in default five years’ jail, in the case of abuse of position on July 28 last year.

However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently.

The appeal hearing before Court of Appeal judge Datuk Abdul Karim Abdul Jalil who chaired a three-member panel alongside Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera continues.