KUALA LUMPUR, Dec 2 — Datuk Seri Najib Razak’s application yesterday to add on more evidence to his appeal just days before the Court of Appeal is scheduled to deliver a decision may be perceived as a "last minute” application, but he is not the one at fault, his lawyer argued today. 

Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah said that any delay would be due to the Malaysian authorities’ alleged suppression of evidence, and said that it was only from November 19 to November 24 that certain information related to the application became available.

Shafee said that Najib’s legal team did not delay in filing this application for the appeal in the case involving RM42 million of former 1Malaysia Development Berhad (1MDB) subsidiary SRC International Sdn Bhd.

In a press conference held at his law firm’s office, Shafee said he was speaking to the media to explain why the application was made and to respond to guesswork or accusations about the motives for the application.

Shafee said there were accusations that the application "may have some other motive” and there were also questions on "why is it a last minute application”.

"You know this last minute application is not caused by us, because on November 19 MACC disclosed this, November 22, the law minister and November 24, Tommy Thomas,” Shafee said in the hybrid press conference that was also held via the video-conferencing platform Zoom, referring to information that was made publicly available recently.

While wishing that such information could have been told earlier to Najib’s legal team, Shafee said it was not too late, and suggested that the alleged suppressed evidence could still be added into the SRC appeal as the Court of Appeal has not delivered its decision.

"As long as the decision is not given, the matter is still pending, but the decision itself has been pending for the last six months.

"So the fact that we discovered this by sheer accident and coincidence is not our fault, we discovered it beginning from November 19, culminating in November 24, and we filed this yesterday. 

"We didn’t delay at all. Within days of discovering this, we made some affirmation, my client made a police report, so what I would expect is for the Court of Appeal to make a decision whether to allow or not to allow. We thought we should make this application as early as possible, otherwise we will be accused of not using this evidence which has been concealed from us for so long,” he said.

"As you can appreciate, who delayed all this? It’s the authorities, on November 19, only bagi tahu (tell),” he later said.

Shafee was referring to the Malaysian Anti-Corruption Commission’s (MACC) November 19 announcement that Singapore had on November 12 refunded US$864,813.27 from former SRC CEO Nik Faisal Ariff Kamil to the Malaysian government and that Singapore had previously helped Malaysia recover US$15.4 million from a company belonging to former Bank Negara Malaysia governor Tan Sri Zeti Akhtar Aziz husband Datuk Tawfiq Ayman and Samuel Goh.

Shafee was also referring to law minister Datuk Seri Wan Junaidi Tuanku Jaafar’s November 22 reply in the Dewan Rakyat regarding a question on transactions involving Zeti’s family, with the minister having replied that such matters were only known in 2019 and that the police’s investigation on those mentioned were ongoing.

As for the November 24 event, Shafee was referring to former attorney general Tommy Thomas’ comments in an interview about the alleged role of Zeti and her husband in purportedly facilitating Low Taek Jho in 1MDB matters and that there were investigation papers on Zeti that were not yet completed during his tenure as AG.

Insisting that Najib had allegedly not been given a fair trial due to alleged withholding of information from the authorities, Shafee said Zeti would be an important witness in the SRC trial if Najib had known of such information.

"If he had known about it, Zeti would be a very critical witness for the prosecution to call. At least the court or us would call Tan Sri Zeti, and we could cross-examine her,” Shafee said, adding that Najib’s legal team would then be able to ask about her family’s alleged "involvement” with Low.

During the SRC trial, the prosecution had offered Zeti as a witness that Najib’s lawyers could call to testify in court as a defence witness. But Zeti did not appear in court for the SRC trial as a witness as she was not called.

When asked why Najib’s lawyers did not call Zeti as a defence witness in the SRC trial even though she was available as a witness, Shafee gave the reason of not knowing yet of her family’s alleged receiving of funds from Low.

"When Zeti was offered to us, you know we don’t have Tan Sri Zeti’s statement, we don’t know what Zeti said. The rule of a good defence, you don’t call a witness who you don’t know what he or she will say,” he said, later adding that Najib’s lawyers would have asked Zeti to be a witness if they had known that she was being investigated and would have then be able to "make an issue” out of it.

Lawyer Tan Sri Shafee Abdullah speaks to reporters at the Kuala Lumpur High Court Complex February 18, 2021. — Picture by Yusof Mat Isa

Shafee hoped that the Court of Appeal would fix a hearing date earlier for this application, but said it is unknown if it would decide to proceed with delivering the decision on Najib’s appeal against his SRC conviction and sentencing on the scheduled date of December 8 or if the appeal decision would be "slightly delayed”.

"We have been waiting six months for the judgment, what is it to wait for a few weeks for real justice to be delivered,” he said.

Shafee said it would also be within the Court of Appeal’s discretion to not even entertain the application and to proceed with delivering the appeal decision, while also noting that other possible options that the court could do would be to partially allow some of the new evidence or to disallow the addition of new evidence.

"Well, if they refuse to hear, that means they will deliver judgment of whatever they had more or less decided in favour or against us, but the fact that we made the application and assuming it is refused — assuming we lost — it becomes part and parcel of our appeal, because we made the application, it will be a grounds of judgment,” Shafee said.

Regardless of whether the Court of Appeal decides in the SRC appeal in favour of Najib or the prosecution, Shafee said he expected it to be further appealed: "I’m sure either way it will go to the Federal Court.”

As for Najib’s travel plans, Shafee said his client is expected to return from Singapore on December 5 and to return his passport by December 6, but said it was unclear what the latest quarantine measures are.

Najib had appealed the High Court’s July 28, 2020 decision, which had convicted him of all seven charges relating to SRC’s RM42 million.

The High Court had sentenced Najib to 10 years’ jail for each of six charges (three counts of criminal breach of trust and three counts of money laundering), and had also sentenced him to 12 years’ jail and a RM210 million fine with an additional five years’ jail if the fine is not paid for the abuse of position charge.

The High Court had decided that all jail sentences would run concurrently or at the same time which would mean a maximum imprisonment of 12 years for Najib.

The Court of Appeal had scheduled December 8 to deliver its decision on Najib’s appeal against his conviction, fine and jail sentence in the SRC case.