Court allows Najib's three 1MDB charges to be amended; says nothing sinister and he can still recall witnesses

KUALA LUMPUR, Nov 6 — The High Court today allowed the prosecution to make changes to three of the 25 charges faced by former prime minister Datuk Seri Najib Razak in the 1Malaysia Development Berhad (1MDB) trial.

Trial judge Datuk Collin Lawrence Sequerah said all that was changed were the amounts of 1MDB money specified in these three charges, and that Najib's defence would not be prejudiced as the prosecution's narrative remained unchanged.

The judge also said there was “nothing sinister or mala fide” about the amendment to the charges that Najib is facing, referring to mala fide which is the Latin term for bad faith.

“And in any way, a safeguard is provided in Section 162 of the Criminal Procedure Code which allows the defence to recall witnesses but only for the specific purpose of addressing amendments made, namely the amount amended in the charge,” the judge said.

The three amended charges were then read out to Najib, who was wearing a blue suit and a tie.

Najib pleaded not guilty to all three amended charges.

Among other things, the judge said the Criminal Procedure Code's (CPC) Section 158 allows the court to alter or add to a charge before a judgment is delivered, and said this does not impose a duty on the court to do so.

Stating that the prosecution has to apply to the court for amendment of charges, the judge said this means the court's power to amend charges is not impinged on as the court still holds this power.

He said the prosecution was well within its powers to seek the amendment to Najib's three 1MDB charges as it was being done before the prosecution closes its case in the trial, noting that the prosecution via the public prosecutor has powers under the Federal Constitution's Article 145(3) and the CPC's Section 376(1) over the conduct of prosecution which would include the power to amend charges.

The judge also noted that the three amendments requested by the prosecution to reduce the amount of money involved in the three charges against Najib were due to court testimony by the 47th and 48th prosecution witnesses, Bank Negara Malaysia analyst Adam Ariff Mohd Roslan and one of 1MDB's investigating officer Assistant Commissioner of Police Foo Wei Min.

The judge said the two prosecution witnesses had specific knowledge of the money trail in the 1MDB case and whether the amount of money which was received in Najib's bank account was "fully or partially gratification or proceeds of unlawful activities" based on the money trail.

The judge noted that during the two witnesses' testimony, it emerged that certain amounts of the money were from unknown sources and could not be said with certainty to have originated from unlawful proceeds.

The judge said the CPC's Section 152 is aimed at having an accused person be informed with certainty and accuracy on the exact nature of the charge against him, which he said would obviously "include the precise amount of funds" as the accused person would otherwise be severely prejudiced in his defence.

"In this case, it is only the figures or amount of the charges which are sought to be amended. The prosecution's narrative with regard to its case thus remains unchanged, and so the defence cannot be said to be prejudiced. Thus there is nothing sinister or mala fide in this exercise as alleged by the defence," he said.

The judge then highlighted the safeguard in CPC's Section 162, which among other things states that an accused person shall be allowed to recall any witnesses in relation to any changes made to charges, whenever the court has altered or added to any charge after the trial commenced.

As for Najib's status as a former prime minister, the judge said: "Article 8 of the Federal Constitution places all accused persons before the court on an equal footing and the rule of law requires he be treated similar to any accused person."

The judge then concluded by ruling that the prosecution's application to amend all three charges is allowed, and directed for the amended charges to be read out to Najib and for his plea to be taken.

Najib's lead defence lawyer Tan Sri Muhammad Shafee Abdullah later informed the High Court that his client would want to exercise his right under the CPC's Section 162 to recall prosecution witnesses, but that his legal team is still working out the full list of witnesses that they intend to recall.

Lead prosecutor Kamal Baharin Omar later said the prosecution would need the names of prosecution witnesses that Shafee intends to recall as soon as possible, for the prosecution to make arrangements to issue subpoenas for the witnesses to return to court to testify.

On October 24, the prosecution applied to amend three of the 25 charges that Najib is facing in the 1MDB trial, by reducing the amount of funds stated in each of the three charges.

In the 1MDB case, Najib is facing four power of abuse charges and 21 money laundering charges over 1MDB funds.

Following the amendments, the amount in Najib's fourth abuse of power charge was reduced from RM49,930,985.70 to RM44,570,920.70.

Based on Malay Mail’s calculations, this resulted in the total 1MDB-linked funds that Najib is accused of having committed power abuse in four charges as decreasing from RM2,282,937,678.41 (RM2.28 billion) to RM2,277,577,613.41 (RM2.277 billion).

As for the money laundering charges which Najib was accused of committing by transferring money from unlawful activities, the amount involved in the 10th money laundering charge was reduced from RM652.6 million to RM515,666,277.51 (RM515.67 million), while the amount in the 21st money laundering charge was reduced from RM12,436,711.87 to RM11,411,646.34.

This resulted in the five counts of money laundering involving the transferring of funds being reduced from a total of RM2,196,786,711.87 (over RM2.19 billion) to RM2,058,827,923.85 (over RM2.05 billion).

Today, the trial judge also decided that 11 statements of accounts or documents from local banks that the prosecution is presenting in the 1MDB trial are admissible as evidence due to Section 71 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act, while also saying that the weight to be given to these documents as evidence must be established by the prosecution and will be a matter for the court to decide on.

The 1MDB trial proceedings were then vacated for the rest of the day as two lawyers in Shafee's law firm had tested positive for Covid-19, and is expected to resume tomorrow morning if Shafee and the rest of Najib's legal team test negative for Covid-19.