PUTRAJAYA, Dec 7 — The Court of Appeal has today dismissed Datuk Seri Najib Razak’s application to adduce new evidence to his SRC International Sdn Bhd case.

The ruling came a day before the court is set to deliver its decision on the former prime minister’s conviction appeal involving the misappropriation of RM42 million belonging to SRC International Sdn Bhd.

Judge Datuk Abdul Karim Abdul Jalil, who chaired the three-man bench, said the panel disallowed Najib’s application as he failed to cumulatively satisfy the requirements of the law.

Abdul Karim noted that fresh evidence must be evidence not available in trial, relevant, credible, and creates reasonable doubt in the prosecution’s case.

"We find that the appellant has failed to satisfy Section 61 of the Courts of Judicature Act that fresh evidence is required for the justice of the case.

"Under the circumstances, we find that the additional evidence was not necessary to the substantive appeals and no exceptional circumstances were shown for the court to take additional evidence in the instant appeal.

"Hence, the application is hereby dismissed. Now the delivery of decision tomorrow will proceed as fixed,” he ruled.

The other judges on the panel were Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera.

The unanimous decision was delivered via Zoom in a hybrid manner where Najib and his defence team partook in today’s hearing in their respective homes following an imposed quarantine order over their contact with a known Covid-19 patient.

Following today’s ruling, the delivery of Najib’s SRC International conviction appeal decision will resume as scheduled on December 8 at 9am, where Najib will be appearing via video conferencing as allowed by the court.

Court rejects Najib’s defence to postpone today’s hearing after quarantine period concluded

Prior to the parties’ submission before the court, Najib’s lawyer Tan Sri Muhammad Shafee Abdullah sought for a further postponement of today’s hearing to another date 10 days from their quarantine period which started today.

This follows the Court of Appeal ordering Najib’s lawyers to make their case through an online hearing this afternoon or Najib would risk arrest after neither Najib nor his bailors attended the scheduled hearing.

The other usual members of Najib’s legal team, who include Muhammad Shafee, Harvinderjit Singh and Farhan Read, were also not seen in the courtroom this morning.

Muhammad Shafee had argued that no one on the legal team was able to make their case before the court this afternoon despite proceedings being conducted online.

He further pointed out the necessary documents were all kept in their office which had rendered them unable to coordinate, as all of them were now undergoing self-isolation at home and separated from one another.

Thus, the senior lawyer asked for more time to put in their submissions since preparations were interrupted by the Covid-19 scare after a member of the team tested positive yesterday.

"So Yang Arif we are putting this on record, that this is unfair, as we were taken by surprise in the morning by this hybrid proceeding.

"This is a matter I have to put on record because it is not fair to us.

"We are complaining this is unfair and unequal, Yang Arif, and also the time constraints for us to appear in total disadvantage,” Muhammad Shafee said.

In a letter filed and addressed to the Court of Appeal’s registrar sighted by Malay Mail late last night, Muhammad Shafee had sought to vacate the hearing for both today and tomorrow, saying his son, Muhammad Farhan tested positive for Covid-19 on December 6.

In his letter, Muhammad Shafee said that Najib had also been present at the legal firm’s office yesterday to affirm several legal documents for filing.

Muhammad Shafee also told the court he strongly objected to the court’s remark about his client’s absence as akin to treating the court as a "coffeeshop”, stressing that this was not something Najib wanted to happen.

This was in reference to one of the two bailors for Najib who entered the courtroom at the Palace of Justice in the midst of proceedings and was subject to intense questioning from the judge about Najib’s whereabouts.

During the line of questioning, the bailor was seen struggling to reply the questions posed by Abdul Karim who then remarked that the court was not a place where one could come and go like a coffee shop as they pleased.

Despite Muhammad Shafee’s insistence of the handicap faced by the defence team in not being sufficiently prepared to make their case, Abdul Karim maintained his grounds for the hearing to resume at 12.30pm through Zoom.

"Yang Arif, we did everything possible to be compliant to the court.

"I respectfully ask Yang Arif that this matter be heard 10 days from now because of the compulsory quarantine that is imposed on our current status,” Muhammad Shafee submitted.

"Thank you, Tan Sri Shafee for the explanation given.

"We find that there is no reasonable reason for us to postpone this matter.

"We disallow, disagree with the application to postpone hearing after 10 days. We now ask Tan Sri Shafee to submit,” Abdul Karim ruled.

Prosecutors argue application done in bad faith, defence claims purported evidence suppressed during trial

Ad hoc prosecutor Datuk V Sithambaram argued that Najib’s last-minute application filed a week before the court is set to deliver its decision on the latter’s conviction appeal was mala fide in nature.

Sithambaram also submitted that the defence was instead attempting to seek a substantive retrial and not aiming to introduce additional evidence.

He pointed out that this was the case as there was no additional evidence to be introduced but merely reargument of an entire appeal by bringing in matters that happened years earlier before SRC International was even formed.

"It is disguised as an application for fresh evidence. Quite ingenious I would say.

"He is asking for a retrial of a trial for which the Court of Appeal has not even decided yet,” he told the court.

Prosecutors have in court affidavits opposed Najib’s last-minute application filed just last week (December 1) to bring in new evidence into court for the SRC case, stating that such purported evidence was irrelevant to the case as all the available and relevant evidence had already been produced in court previously. 

Among others, Muhammad Shafee argued that then former Attorney General Tan Sri Tommy Thomas had on November 24 candidly admitted to being aware of the alleged role of former Bank Negara Malaysia governor Tan Sri Zeti Akhtar Aziz and her husband in purportedly facilitating Low Taek Jho in matters relating to 1Malaysia Development Berhad (1MDB) and its subsidiary which included SRC International.

"Who conducted this trial? My learned friend Sithambaram did although he was more competent (prosecutor) but Tommy Thomas had at the time appeared as the number one (lead prosecutor), and he knew this and suppressed it from us.

As for the purported evidence taking place prior to SRC International’s formation, Muhammad Shafee said the prosecution was missing the point entirely.

For example, he claimed that Zeti and her family were bribed by Jho Low, which meant compromising her credibility and the country’s central bank authority since she was complicit to the crime as well.

"We are saying if as early as 2008 to 2009 Jho Low was greasing the palms the family of Zeti, couldn’t she have been made blind in her function as Bank Negara governor?

"If the learned trial judge had known if Jho Low was bribing the family of Zeti and by strongest inference Zeti too was bribed, why should she alert activities of Jho Low? That is relevance.

"instead of saying 2008 to 2009 being so far back where SRC International was not formed yet and therefore not relevant, we are saying Zeti knew Jho Low earlier than my client,” he said.

Najib’s application to add evidence to his SRC appeal was filed on December 1, which is about six months after the Court of Appeal had concluded hearing the appeal in May 2021.

Najib’s application was also filed after the Court of Appeal’s November 23 announcement that it would deliver its decision on the appeal on December 8.

The Court of Appeal is scheduled to give its decision tomorrow on whether Najib has succeeded or failed in his appeal against his conviction, fine and jail term in the SRC case.

Najib was appealing the High Court’s July 28, 2020 decision, which had found him guilty 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.