KUALA LUMPUR, March 24 — A brief tiff erupted in the High Court this morning between the prosecution and Datuk Seri Najib Razak’s defence team over questions the defence posed to a witness in the ex-prime minister’s 1MDB trial.
The prosecution again complained to judge Datuk Collin Lawrence Sequerah that the defence were asking irrelevant questions of former 1MDB director Tan Sri Ismee Ismail, who is testifying as the 13th prosecution witness.
Najib is accused of misappropriating more than RM2 billion of 1MDB funds.
It started when Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah asked Ismee if the alleged backdating of an agreement involving a 1MDB deal was to avoid having to provide the value of assets for a purported investment as repeatedly requested by 1MDB’s auditor Ernst & Young.
Lead prosecutor Datuk Seri Gopal Sri Ram objected, saying that Ismee had answered this question.
Sequerah stepped in and suggested that the defence put in their arguments later at the submissions stage, as the matter was based on documents.
“But the conclusion that he’s supposed to come to, is based on documents, maybe it’s not fair to ask him to answer that. Can submit,” the judge said.
However, Shafee argued that Ismee was capable of answering his questions and did not need to be “rescued” by the prosecution.
“Nobody needs to rescue this witness because he’s done marvellously well,” Shafee said.
Sri Ram shot back: “I’m not rescuing this witness, I’m stopping an irrelevant question.”
Shafee then asked: “Is this question irrelevant?”
The judge then said the question asked is a matter for the submissions stage, noting that Shafee was asking Ismee to make inferences when the witness may or may not know about the matter.
But Shafee insisted that a witness would be able to answer based on the basic facts given.
The judge then said: “For what it’s worth, let him answer”.
Shafee then repeated his question to Ismee, asking the witness for his view in hindsight as 1MDB director on whether the backdating of a Murabahah agreement to March 31, 2011 (which is the cut-off date for 1MDB’s financial year) was chosen to avoid putting a value to the asset of the company’s investment.
“I guess, Yang Arif, there will be many reasons for the management to do that and what Tan Sri Shafee has mentioned could be one partial reason it is done,” Ismee said.
Previously, 1MDB had entered into a joint venture with its purported business partner PetroSaudi International Limited (PSI).
After having borrowed US$1 billion for a 40 per cent stake in the joint venture company 1MDB PetroSaudi Limited, 1MDB then converted the share into an Islamic loan to the same joint venture company.
1MDB agreed to sell off the 40 per cent share to the joint venture company, by giving on paper the Islamic loan via Murabahah notes to the joint venture company at a value of US$1.2 billion.
The judge intervened again when Najib’s other lawyer Datuk Hariharan Tara Singh asked questions that would require the expertise of a lawyer or prosecutor to answer.
At one point, Hariharan was showing criminal charges against former 1MDB general counsel Jasmine Loo and Goldman Sachs directors to Ismee, and asked if there be a civil liability on 1MDB if there is a breach of representation.
The judge noted that Ismee is “not a legal man” and that he would not be familiar with the matter asked and said this could be left to the submissions stage of the trial, with Hariharan then agreeing to submit arguments on it later on.
“You are asking him to form a legal opinion,” the judge told the defence lawyer.
Hariharan then went through the criminal charges under the Capital Markets and Services Act against Loo and a Goldman Sachs director over misleading statements and omission of material facts from the offering circular for bonds issued by 1MDB.
Noting that the Section 179 offence for false representation could see even directors liable and not just members of a company’s management, Hariharan then sought to suggest that 1MDB management had exposed Ismee and other 1MDB board members to possible criminal charges.
Sri Ram again said he objected to the question.
The judge then told Hariharan that it was unfair for Ismee to be asked matters that require legal expertise.
“I don’t think it’s fair to put that. You can submit there is some inference on whatever facts. But I don’t think it’s fair for the witness to answer. You know why? Because it involves him analysing elements of a charge like what a DPP would do, whether it would expose him to a criminal charge,” the judge said.
Hariharan tried to explain why he was asking this question and what he was seeking to show, but the judge did not accept his argument.
“You have established all that, you know, but your final question is whether what they did has exposed him to criminal liability, that requires him to make some sort of legal determination,” Sequerah said.
Hariharan then agreed to take this matter up during the submission stage.
On Tuesday, Sri Ram had also said Najib’s lawyers were asking irrelevant questions to Ismee, adding that he wanted to save the court’s time by urging against irrelevant questions.
The judge had also then remarked that he did not see any end in sight for the questioning of Ismee in the foreseeable future if Najib’s lawyers carry on with their questions that could have been left to the submissions stage, saying he could allow a bit of latitude but also telling Najib’s lawyers how they could ask the questions in a faster way.
Najib’s 1MDB trial resumes this afternoon.
