Najib’s own misfortune to lose in appeal, no breach of justice, says Apex Court

Justice Ong pointed out that it was Najib’s own counsel who had refused to make oral submissions right from the onset of the appeal hearing last year, despite counsel Datuk Hisyam Teh Poh Teik being allowed to do so by Chief Justice Tun Tengku Maimun Tuan Mat, who led the previous apex bench that dismissed the appeal.

(Bernama) – The Federal Court in a 4-1 majority decision today ruled that Datuk Seri Najib Razak was actually the author of his own misfortune which caused his SRC International Sdn Bhd’s appeal hearings not heard by the previous panel.

Justice Datuk Vernon Ong Lam Kiat, when reading out the majority judgment, dismissed the former prime minister’s application to review the decision of the previous panel of the Federal Court which upheld his conviction and 12 years jail sentence and fine for misappropriation of RM42 million in SRC International Sdn Bhd funds.

“There was no denial of the applicant’s rights and there was no breach of natural justice in the case,” he said.

The majority decision was agreed to by Federal Court judges Datuk Rhodzariah Bujang and Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais.

Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli, who chaired the five-member bench, dissented.

Justice Ong pointed out that it was Najib’s own counsel who had refused to make oral submissions right from the onset of the appeal hearing last year, despite counsel Datuk Hisyam Teh Poh Teik being allowed to do so by Chief Justice Tun Tengku Maimun Tuan Mat, who led the previous apex bench that dismissed the appeal.

Touching on the postponement of Najib’s appeal that was raised by the defence, Justice Ong contended that the court had absolute discretion to allow or not any adjournment and the earlier panel had exercised their discretion judiciously.

“Therefore, there is no merit for a review of that decision,” said the judge.

On Najib’s bid for a review of the discharge of his counsel (Hisyam) from representing him during the appeal, the judge said that the court found the applicant’s contention that the court had no power to disallow the discharge of counsel was untenable as the power had been provided in Rule 137 of the Federal Court Rules 1995.

Meanwhile, on Najib’s application for a review of his conviction and sentence, the court held that the earlier panel had considered 94 grounds of appeal, written submissions and previous decisions of the lower courts which heard Najib’s case.

Thus, the majority judgment concluded that there was no merit for a review of the previous court’s decision to uphold the conviction and sentence against Najib, said the judge.

“The applicant contends that his right has been breached. However, here, it is clear that the applicant is the author of his own misfortune. We do not see any reason to review any decision of the earlier panel of the Federal Court.

“Having considered all the records, the court finds that all earlier convictions against the applicant are safe and that the sentences imposed against the applicant are not excessive, and, therefore, affirmed,” said Justice Ong.

On the application for review of Justice Tengku Maimun’s recusal, Justice Ong said that the law on recusal was also well-settled based on the principle of the “real danger of bias” test.

He said the decision by Justice Tengku Maimun to not recuse herself was supported by the other members of the panel in a separate judgment.

The judge further said that there was no quorum failure in any regard as a judge can hear any recusal made against them.

On Najib’s application to adduce new evidence on then High Court Judge Datuk Mohd Nazlan Mohd Ghazali, Justice Ong said the court agreed that the earlier Federal Court’s decision in denying the request was made on the correct assessment of the evidence before it.

He said the arguments by the applicant were also untenable.

“We stress that the review process under Rule 137 should not be abused. Accordingly, the review application is accordingly dismissed,” said Justice Ong.

The new evidence was on the discovery that in 2006 Mohd Nazlan was the general counsel and company secretary for Maybank Group, who had the ultimate overall responsibility for the management and administration of all legal departments within the entire group.

With today’s decision, it is the end of Najib’s attempt to be acquitted as his review application before the apex court was his last avenue via court proceedings.

This means Najib, 69, will serve out the remainder of his 12-year jail term in the Kajang prison.

On Aug 23 last year, the previous panel of the Federal Court, led by Justice Tengku Maimun, dismissed the appeal by the former Pekan MP to overturn the conviction and sentence. Najib began his 12-year jail term in Kajang prison on the same day.

Besides that, Najib had also filed for a royal pardon in September last year.

On Jan 5, this year, he also filed a petition before the United Nations Human Rights Council Working Group on Arbitrary Detention (UNWGAD) to ask for a release from prison or retrial of his SRC International case following an appeal hearing at the Federal Court which he claimed had serious defects and was contrary to the rules of international justice.

He filed the petition through Messrs Shafee & Co, at the office of the High Commission of Geneva via digital submission.

On July 28, 2020, the then High Court Judge (Mohd Nazlan, who is now a Court of Appeal judge) sentenced Najib to 10 years’ jail on each of the three counts of criminal breach of trust (CBT) and each of the three counts of money laundering, and 12 years’ jail and RM210 million fine, in default five years’ jail, in the case of abusing his position.

On Dec 8, 2021, the Court of Appeal upheld the High Court’s decision and rejected Najib’s appeal to set aside his conviction and jail sentence, as well as the fine.