KUALA LUMPUR, May 31 — Former prime minister Datuk Seri Najib Razak is the accused who is facing criminal charges in the trial involving over more than RM2 billion belonging to 1Malaysia Development Berhad (1MDB), lead prosecutor Datuk Seri Gopal Sri Ram pointed out today in court.

Arguing on behalf of the prosecution, Sri Ram was objecting to Najib’s two applications to the High Court to have the prosecution provide documents related to former Bank Negara Malaysia governor Tan Sri Zeti Akhtar Aziz’s family’s companies, companies linked to fugitive businessman Low Taek Jho, and investment banking company Goldman Sachs.

Sri Ram argued that the documents that Najib was seeking to help him in his defence in the 1MDB trial were actually not relevant to the power abuse and money laundering charges against Najib as the accused person in the same trial.

"I think the starting point of all these applications is the charges before Your Lordship. The essence of the charges — the predicate offences is that the accused abused his position and obtained a pecuniary advantage. The evidence in support of that allegation is the only relevant evidence as far as this case is concerned,” Sri Ram said.

"The first application is the Tan Sri Zeti application. My Lord, Tan Sri Zeti is not on trial, the accused is on trial,” he added.

Sri Ram also argued that the High Court can decide on the weight to be given to Zeti’s evidence after she had testified in court, but said it is not for the court to make interim findings of credibility of witnesses at this stage. Zeti is a potential prosecution witness in the 1MDB trial who has yet to be called to testify.

"What Zeti’s family have received is not relevant at all to whether the accused abused his position,” Sri Ram said.

Sri Ram argued that Najib’s application for the documents were "frivolous” and were bad as it sought to make a "collateral attack” upon issues for trial which is not permissible under the law, noting that facts affecting the credibility of witnesses is a "collateral fact”.

"If the evidence which goes to show that Tan Sri Zeti’s family received money is irrelevant, there’s no relevance at all to the charges of the case, the prosecution does not have to serve a copy in advance, that is not part of our case.

"Our case is the accused is literally in fact the shadow director of 1MDB, running these affairs, using these boys as his agents and using Jho Low. My Lord will recall I said in the opening statement, Jho Low was Najib’s mirror image, he used Jho Low, and he and Jho Low acted in tandem. That was the evidence of Shahrol,” Sri Ram said, although noting that he was not asking the High Court to accept this immediately but said the court would be asked to eventually determine the credibility of former 1MDB CEO Datuk Shahrol Azral Ibrahim Halmi as a trial witness.

Sri Ram also said it would be for Najib’s lawyers to put the question to Zeti when she testifies on whether her family had received money from Low, but again stressed that this was not a relevant fact for the prosecution’s case involving Najib.

"He can ask Tan Sri Zeti about all these companies and see what she says. As far as Tan Sri Zeti’s application is concerned, whether Bank Negara knew about it, or Tan Sri Zeti knew about it, or red flags were raised or not is wholly irrelevant, it is the accused’s state of knowledge, and that we say is to be inferred from his conduct,” Sri Ram said, noting previous court testimony where Najib was said to have given thousands in cash to his former aide Datuk Amhari Efendi Nazaruddin for trips abroad on 1MDB-linked matters.

As for the second application by Najib which sought for Goldman Sachs data and also former Goldman Sachs official Tim Leissner’s Hong Kong mobile phones, Sri Ram pointed out that the prosecution does not actually have these materials that Najib is asking for.

"Here the documents are not even in our possession, we have no control whatsoever,” he said.

"So to expect us to go to Hong Kong to collect evidence for the accused is to ask us to perform the duties of the defence counsel,” he later added.

Lawyer Tan Sri Muhammad Shafee Abdullah addresses reporters during a press conference at the Kuala Lumpur High Court May 20, 2021. ― Picture by Hari Anggara

Earlier during the hearing, Najib’s lawyer Tan Sri Muhammad Shafee Abdullah sought to argue that the documents related to Low’s companies and Zeti’s family’s companies were relevant to his client’s defence in the 1MDB trial over the monies that flowed into his bank account.

"The defence would be Datuk Seri Najib genuinely believes the money came from Saudi Arabia. If he knows that they came from sources that are not those that he believed in, he did not have the knowledge that in fact these were money rerouted through so many layering and that may have come into his account, he denies knowledge because there was no way he could have discovered.

"As Datuk Seri Najib was then the prime minister, he would obviously be completely dependent on several individuals and several institutions to be performing their jobs and reporting to him in the event something is really not right,” Shafee said.

Shafee then argued that 1MDB’s board and senior management had failed in their duties to Najib and had purportedly completely misled him in an alleged active conspiracy with Low, and that Najib’s second level of protection which is his own bank had also allegedly failed him due to its purported conspiracy with Low.

Shafee further claimed the last bastion of protection that Najib had was Bank Negara which also failed him in relation to red flags that should have been raised over the huge sums of money coming into Najib’s bank account if it was "unclean money.”

Shafee argued that it was not a "sheer coincidence” that all three institutions had purportedly failed, claiming: "It is because there is some level of compromise and conspiracy in these institutions and in the relationship of these institutions.”

Shafee argued that it would be relevant for Najib’s lawyers to have the documents over Zeti’s family’s allegedly receiving substantial funds from Low to show alleged "compromise”, adding that her credibility as a prosecution witness in Najib’s 1MDB trial would be an issue that Najib’s lawyers could explore when she testifies.

Among other things, Shafee argued that the prosecution should not suppress evidence that is in the accused’s favour, but should disclose information such as Zeti’s family’s alleged receiving of the funds. 

Shafee said that having such documents given to Najib’s lawyers ahead of time would be in the interest of justice, as he would otherwise ask Zeti — when she takes the witness stand — for this information and also ask for the trial to be deferred to enable him time to study the documents.

Arguing that Najib’s application on companies linked to Zeti’s family and Low was not without merit, Shafee claimed: "It is not casting a wide net. It is not a fishing expedition at all, because we have stated in the greatest detail what documents we want, and Yang Arif will note all these we have not gotten from thin air because all these are true, Singapore has investigated, Singapore has provided not just to MACC but to Bank Negara.”

In stressing the importance of getting various documents, Shafee reiterated Najib’s defence that he was not even aware as prime minister and finance minister of the alleged misappropriation by 1MDB management purportedly in tandem and in alleged conspiracy with Low.

Shafee noted 1MDB had recently filed lawsuits against former 1MDB CEOs — who are also prosecution witnesses in this trial — which he claimed meant there was evidence against them, adding that Najib was purportedly being "blamed” over 1MDB: "1MDB — one man is being blamed when there is a host of them who had conspired. As prime minister, how could he be monitoring in a microscopic way and doing a microscopic supervision? He cannot.”

As for the application related to Goldman Sachs data and Leissner’s mobile phones, Shafee said Najib’s lawyers’ request to the US authorities was denied as the latter said such materials are located in Hong Kong.

Shafee argued that the attorney-general can request for such documents in Hong Kong to be brought to Malaysia under the Mutual Assistance in Criminal Matters Act.

Shafee said Najib’s lawyers wanted to know who are the 1MDB officials that Leissner had admitted to bribing to identify whether these included those who are testifying as witnesses in the 1MDB trial and whether they are "accomplices.”

Senior Deputy Public Prosecutor Datuk Seri Gopal Sri Ram at the Kuala Lumpur Court Complex February 18, 2021. — Picture by Firdaus Latif

Sri Ram later responded by saying that Najib’s lawyers have to put questions to prosecution witnesses on whether they had received bribes, also noting that whether any witness had received a bribe would only be related to their credibility as witnesses.

"So far nothing has been put and I have demonstrated convincingly from re-examination of Shahrol that he did not receive a sen from anyone, nor did he receive a sen from 1MDB.”

Sri Ram also remarked that it would be a "strange conspiracy” for others to have allegedly conspired with Low but with the accused person Najib being the beneficiary or benefitting from the alleged conspiracy without knowing that the money came from tainted sources as claimed by Shafee.

Among other things, Sri Ram noted that the mutual legal assistance procedures are only for when the prosecution wants to seek for evidence outside of Malaysia and then applies to the court to obtain such evidence, and said the prosecution has no duty to prove the defence’s case and that the court cannot compel the prosecution to make such an application to seek evidence overseas. 

Shafee later confirmed that the court could not direct the attorney-general to obtain such overseas information, but could only suggest for such actions to be taken.

Sri Ram also argued that the documents sought by Najib are not relevant to the facts in issue in the 1MDB trial: "Let’s assume whatever my learned friend (Shafee) says is true, that Goldman Sachs bribed members of the board of 1MDB, does that mean the accused (Najib) is innocent?”

"All it means is that they are witnesses whose evidence has to be treated with caution,” Sri Ram said, adding that he had already informed the court at the start of the 1MDB trial that some witnesses would have to be examined with caution and that this for the High Court to do so at the end of the prosecution’s case instead of at this premature stage.

Sri Ram pointed out that there was nothing to stop Najib’s lawyers from subsequently recalling any prosecution witnesses if necessary to ask about the payment of the alleged bribes.

Sri Ram also indicated that the prosecution may itself recall the 1MDB trial’s prosecution witness Amhari -- who had already testified previously — to return to the witness stand, as the prosecution intends to produce as additional evidence a tape recording of Najib’s conversations with third parties including an Abu Dhabi member of the royalty with Amhari also mentioned in it.

"We came to know about this only after Amhari completed his evidence, so we will be making an application at the appropriate stage,” he said.

Shafee later replied by saying among other things that the documents sought are not just related to the credibility of witnesses in the 1MDB trial, but would also be used to show how other individuals had purportedly conspired with Low without Najib’s knowledge.

"We are just one person here, Datuk Seri Najib. He is pitted against the entire machinery of the government which can be utilised in any way they like to gather evidence, to secure evidence from overseas or locally to put in court. 

"All these evidence you must not merely secure it if it’s in favour of you, if you know of any evidence that is favourable to the accused, you must do something about it, either you call witnesses or make available to the defence,” he said.

Shafee also agreed that Zeti is not on trial in the 1MDB case: "All these witnesses are not on trial, but their credibility is on trial. Zeti is not on trial but their credibility is on trial and that’s why it is relevant.”

After hearing arguments from both the prosecution and Najib’s lawyer, High Court judge Collin Lawrence Sequerah fixed July 12 for the delivery of his decision on the two applications by Najib.

In Najib’s first application filed on March 24, he is seeking for bank account statements from 2008 to 2020 for eight entities (companies linked to Zeti’s family — Iron Rhapsody Limited, Cutting Edge Industries Limited, companies linked to Low — Aktis Capital Singapore Private Limited, Country Group Securities Public Company Limited, ACME Time Ltd (BVI), as well as 

Butamba Investment Limited, Central Holding Limited and law firm Sherman and Sterling LLC), as well as company information of the eight entities such as their directors, their members, their beneficiary owners and records of their communications with banks on transactions and their accounts and other related bank documents.

In Najib’s second application filed on April 5, he is seeking for Leissner’s Hong Kong mobile phones and their transcript and passwords, data on Goldman Sach’s servers including Leissner’s communications and data on Leissner’s work mobile phones, the 2020 settlement agreement between Goldman Sachs and the Malaysian government, all communications including correspondence between the Malaysian government and Attorney-General’s Chambers with Goldman Sachs.

No trial during total lockdown

Najib’s 1MDB trial was previously scheduled to resume tomorrow (June 1), but is not expected to proceed due to the nationwide total lockdown from June 1 to June 14.

Deputy public prosecutor Ahmad Akram Gharib today confirmed to Malay Mail that the 1MDB trial will not be heard during the total lockdown period, and said the trial would resume on the next date given once the lockdown ends.

Hearing dates for the 1MDB trial were previously scheduled for much of June, including June 1 to June 3, and June 8 to June 10.

Other trial dates for the 1MDB trial have also been fixed throughout all the remaining months of this year from July to December.