KUALA LUMPUR, Dec 13 — Datuk Seri Najib Razak’s trial involving 1Malaysia Development Berhad (1MDB) funds could not proceed this morning, following a change in his MySejahtera status twice this morning.
Datuk Hariharan Tara Singh, a lawyer for Najib, this morning informed the High Court that the MySejahtera status for both Najib and his lead defence lawyer Tan Sri Muhammad Shafee Abdullah were initially not blue, which meant they could not enter the court building at all.
He said Shafee was a casual contact, while Najib was a person under surveillance.
But both their MySejahtera statuses turned blue after they updated their profile, and they were then able to enter the court building and be in the courtroom itself, he said.
However, when they answered a questionnaire in the MySejahtera app again while in the courtroom, it again returned to the original colours that were not blue, he said.
“What happened, when they came in, they were stopped by the court security,” he said, adding that the court security personnel instructed both Najib and Shafee to “refresh their MySejahtera”.
“Now, miraculously, when both of them refreshed their MySejahtera, it turned blue, in that they are allowed to enter.
“Then they entered, upon them arriving here, we asked them how come you guys are here, we again told them, can you go to your status in MySejahtera and answer the questions accordingly.
“While in court, they updated the status and answered the questions accordingly. After the questions were answered correctly, it flipped back to the original position,” he said.
Hariharan said that the court interpreter had then informed that a person who is casual contact or a person under surveillance should step outside of the courtroom, noting that both Najib and Shafee were in the lobby just outside the courtroom and that they were not supposed to be even inside the building if they were under such categories.
High Court judge Datuk Collin Lawrence Sequerah then instructed both of them to undergo rapid Covid-19 test and for the Health Ministry to be informed of the test results, and to see whether this would result in any changes to their MySejahtera status.
“So what I am instructing now is for Tan Sri Shafee and the accused to take the rapid test now, if their test results come out, if it’s negative, can they please inform KKM (Health Ministry) so their status can be reassessed?” the judge said, adding that they would need to answer the questions again after having undergone the rapid test for Covid-19.
Hariharan said this would not be a problem as both Shafee and Najib had undergone the RT-PCR test for Covid-19 yesterday as previously instructed by the court and had tested negative, adding that both of them could do the rapid Covid-19 test today but that “the issue remains, they are still in contact with someone who is positive.”
The judge then replied: “It doesn’t matter, ask them to do it and inform KKM, if it’s still casual contact and person under surveillance, we can’t help it.
Hybrid idea for trial to go on?
Deputy public prosecutor Ahmad Akram Gharib applied for the High Court to conduct Najib’s 1MDB trial through hybrid proceedings, where the prosecution and prosecution witnesses and Najib’s lawyers could be present in court, while Najib and Shafee join the trial using video-conferencing.
Akram cited Section 15A of the Courts of Judicature Act which enables online court proceedings for civil or criminal matters in the interests of justice and a practice direction this year from the Chief Registrar of the Federal Court.
Akram also noted that the Court of Appeal had also heard an application from Najib and also delivered its decision on Najib’s appeal on his conviction in the SRC International Sdn Bhd case through the hybrid manner.
Hariharan objected to having the 1MDB trial proceed in a hybrid manner, arguing that hybrid proceedings would only be suitable for situations such as where no court witnesses are involved and where lawyers just present their arguments to the court without a need to see the demeanour or reaction of the witness or accused person.
But in a situation where the prosecution witnesses are scheduled for cross-examination in the 1MDB trial, Hariharan argued that it would be prejudicial to Najib as there may be situations where his lawyer needs to check with him and this could be overheard by all even if their audio is “muted” on video-conferencing platforms.
“If the witnesses were to react with a new factual answer that we are totally unaware of and we may need to clarify with the witness or the accused. Assuming we have a remote communication technology, even if we were to put on mute, my understanding is, the speaker is still on, and if we were to check something with the accused with Datuk Seri and whatever he says, it will be heard by everyone, there is no privileged communications as such,” he claimed.
Even if Najib and Shafee tests negative, Hariharan argued that they are supposed to undergo a 10-day quarantine with the quarantine period expected to end on December 15, adding: “My suggestion is we can always come back on 16th and proceed with the matter, proceed with cross-examination.”
The judge then said: “I will decide on the hybrid application tomorrow, but in the meantime, I need to know the status and once KKM has been informed, if it is negative, the status may well change, I don’t know, and we can proceed with physical hearing. I will wait until the results come.
“In case the status is blue, and I think it can change from day to day, and we can carry on instead of wasting time. I will stand down until the results are out, KKM is updated. Because if it turns to blue, we can continue, we don’t need all this, so I stand down.”
The High Court then stood down as it awaited the test results, to see whether it can still proceed with the trial today.
The Kuala Lumpur court complex only allows those with blue status in their MySejahtera to enter.
The blue status refers to the “low-risk” classification, while the yellow status is for “casual contacts with no symptoms” or “persons under surveillance”, and the orange status refers to the classifications of “casual contacts with symptoms”, “close contacts” and “suspected cases”, while the red status is for confirmed Covid-19 cases.
According to the MySejahtera website’s frequently asked questions section, a casual contact refers to individuals who were likely exposed to another person infected with Covid-19, while persons under surveillance are individuals who are at risk of being infected with Covid-19 such as those who had a history of travelling abroad within the last 14 days.
Based on the judiciary’s standard operating procedures to prevent Covid-19 that has been applicable to all courts throughout Malaysia since January 27 this year, those who are not allowed to be in court include those who have close contact with Covid-19 cases, are categorised as Person Under Investigation (PUI) or Person Under Surveillance (PUS), or have undergone a Covid-19 swab but have yet to receive their test results.
Earlier today at around 9.06am, Malay Mail had spotted both Najib and Shafee at the court building’s lobby at the ground floor, where court personnel checked their MySejahtera status.
By around 9.20am, Najib who was wearing a bright blue suit was seen in the courtroom and Shafee too was also seen present. But about half an hour or so later, or slightly past 10am, both of them had left the courtroom.
Court proceedings then started at 10.32am where the judge was informed of the latest status of the MySejahtera app for Najib and Shafee, with both of them not seen inside the courtroom.
The court then stood down at 11.07am, and proceedings resumed about an hour later at 12.04pm for the rapid Covid-19 test results to be informed to the court.
Hariharan updated the court by saying: “Our client and Tan Sri Shafee has conducted the saliva test, and updated their MySejahtera, the result is the same. Upon updating, it came out the same thing. I have also checked on the KKM guideline, and if you are within the casual contact or close contact, it appears the quarantine period is about 10 days.”
The lawyer confirmed that there is no quarantine order from the Health Ministry for both Najib and Shafee, but said it is more of a “social responsibility” for them to self-quarantine.
The judge then decided to adjourn the case until tomorrow.
In criminal trials, accused persons such as Najib are required to be personally present, to ensure fair trial.
When contacted by Malay Mail, Hariharan later confirmed that the saliva test results this morning showed both Najib and Shafee as testing negative for Covid-19.
The trial was initially scheduled this week for the cross-examination of two prosecution witnesses, namely former 1MDB chief financial officer Azmi Tahir and former 1MDB director Tan Sri Ismee Ismail.
