PUTRAJAYA: After being turned down twice by the Federal Court, Datuk Seri Najib Razak now has no choice but to go ahead with his final appeal in the RM42mil SRC International Sdn Bhd case.
The hearing proper starts tomorrow.
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Najib started the day waiting for the decision on his application to adduce new evidence in his appeal after the submissions on Monday. He was left disappointed.
The court dismissed the application, saying the lawyers had failed to “cross the high threshold” set in the matter.
The Pekan MP then asked the court to delay the hearing by three to four months as he had changed law firms just last month and his counsel would require time to go through the “voluminous” appeal records.
Najib had discharged Messrs Shafee & Co on July 25 and then engaged Messrs Zaid Ibrahim Suflan TH Liew & Partners (ZIST).
The five-member bench unanimously dismissed that application as well.
It said “an advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day”.
It also said Najib had to be treated like any other accused.
Najib’s lead counsel, Hisyam Teh Poh Teik, made an impassioned last plea before the panel, chaired by Chief Justice Tengku Maimun Tuan Mat, for the adjournment.
“In great humility, I am making this plea. I normally do not come to this court to ask for an adjournment unless it is absolutely necessary.
“There are strong points of law, serious arguments to canvas... the application I made now is made in good faith,” he said.
He said it was a “bona fide application” and was by no means a delay tactic.
However, the apex court noted that Najib had been reminded at least four times that the appeal would proceed as scheduled notwithstanding the change in solicitors.
The panel said the change in law firms at the eleventh hour was done with full knowledge of the dates of the hearing (Aug 15 - Aug 26) since April.
While it was Najib’s right to do so, the CJ said Najib could not turn around and say his new lawyers were not ready.
“The new lawyers, too, having accepted the brief, are not entitled to say they need more time to prepare, knowing fully well that the dates had been fixed well in advance,” she said yesterday.
In this regard, the panel referred to Rule 6(a) of the Legal Profession (Practice and Etiquette) Rules 1978.
The code stipulates that “an advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day”.
The court also said the request for adjournment was not supported by cogent or reasonable grounds and that considerable public funds would be wasted if it were allowed.
“We state again that while the appellant is entitled to his right to change counsel, he is not entitled to make this choice at the expense of the court, the prosecution or the entire justice system,” said the CJ.
In the morning, the court also dismissed Najib’s application to adduce fresh evidence, including “newly found” evidence on (now Court of Appeal judge) Justice Mohd Nazlan Mohd Ghazali’s supposed conflict of interest and bias when he found Najib guilty in the High Court.
Besides failing to cross the high threshold of Section 93 of the Courts of Judicature Act (CJA) 1964, Najib also failed to state exactly what the proposed additional evidence would prove or say on the charges brought against him, the court said.
“To our mind, there is no miscarriage of justice,” the CJ said.
She said that even without the additional evidence, the defence would still be able to “attack” points of law in the appeal.
Other judges on the bench are Chief Judge of Sabah and Sarawak Justice Abang Iskandar Abang Hashim and Federal Court judges Justices Nallini Pathmanathan, Mary Lim Thiam Suan, and Mohamad Zabidin Mohd Diah.
On July 28, 2020, the High Court convicted and sentenced Najib on seven charges involving criminal breach of trust (CBT), money laundering, and abuse of position, all involving SRC funds, totalling RM42mil.
He was sentenced to 12 years in jail and a fine of RM210mil.
The conviction and sentence were upheld by the Court of Appeal.
