KUALA LUMPUR: Datuk Seri Najib Razak was acquitted by the High Court of a power abuse charge over the tampering of the 1Malaysia Development Bhd (1MDB) audit report after the High Court found no causal link between the amendments he had ordered and the alleged gratification.
The former prime minister’s co-accused, former 1MDB CEO Arul Kanda Kandasamy, also walked away a free man after he was acquitted of an abetment charge.
Yesterday, Justice Mohamed Zaini Mazlan returned to the High Court to deliver his decision to a packed gallery here.
In his grounds of judgment, the Court of Appeal judge said he had given maximum evaluation at the end of the prosecution’s case and found no evidence to suggest or prove that Najib explicitly directed the amendments made to exonerate him from any civil or criminal liability.
“He (Najib) was merely concerned that the report could be spun politically. The prosecution has not established how the items removed or amended could give rise to civil or criminal liability to the second accused (Najib),” he remarked.
During the trial, the court heard from former National Audit Department (NAD) director Saadatul Nafisah Bashir Ahmad that four amendments were made to the 1MDB audit report, which included the removal of the two conflicting versions of 1MDB financial statements for 2014 and the presence of fugitive financier Low Taek Jho, or Jho Low, at the 1MDB board of directors meeting relating to the Islamic Medium Term Notes (IMTN) investment despite Low not holding any position or role in 1MDB.
The other two issues omitted from the report were business-related – the agreement between Country Groups Securities Thailand and ACME Time Ltd – and the delay in the issuance of IMTN bonds with government guarantee.
Justice Mohamed Zaini opined that the items removed or amended from the earlier audit report would not expose or give rise to any civil or criminal liability to Najib.
“The amendments, as stated by the (then) auditor general (Tan Sri Ambrin Buang), were justified,” he added.
The court also observed that the items amended or taken out from the audit report were “known to and openly discussed” by the Public Accounts Committee.
Saying the prosecution failed to prove a prima facie case against Najib, the judge ordered a discharge and acquittal for the former Pekan MP.
In Arul Kanda’s case, the court found that he was consistent throughout his testimony.
“It was evident that he answered the questions posed honestly and to the best of his ability. His testimonies were also compatible with the evidence produced and testimonies of other witnesses,” Justice Mohamed Zaini said.
The judge said he was mindful that Arul Kanda might attempt to minimise his part and amplify any wrongdoing of Najib but found that this was not the case.
“The first accused (Arul Kanda) did not attempt to camouflage shenanigans surrounding 1MDB. It is general knowledge that he had been publicly vilified for 1MDB affairs, as many of the problems caused were before his time.
“There was no evidence in this trial to suggest that he was complicit or responsible for the problems afflicting 1MDB nor were there any suggestions made by the prosecution,” the judge said.
The court then ordered for a certificate of indemnity under the seal of court to be issued to Arul Kanda, who was examined as a witness under Section 63(3) of the Malaysian Anti-Corruption Commission (MACC) Act 2009.
The certificate would bar all legal proceedings to be pursued against Arul Kanda in respect of the matters arising from the charges in the trial.
Both Najib and Arul Kanda were visibly elated as the charges against them were dropped without having to enter their defence.
Among those at the public gallery were Najib’s wife Datin Seri Rosmah Mansor and daughter Nooryana Najwa.
Asked whether the prosecution would file an appeal, DPP Kamal Baharin Omar said the team needed to study the full grounds of judgment and discuss the matter with the Attorney General first.
This is Najib’s third criminal case being heard in the courts. His first conviction and sentence came from the RM42mil SRC International Sdn Bhd case, which is currently at the leave application stage for a review at the Federal Court while the RM2.28bil 1MDB case is being heard at another High Court.
The prosecution in the 1MDB audit report tampering trial closed its case on Sept 7 last year after calling 16 witnesses.
Witnesses included the late Tan Sri Ali Hamsa who was the then chief secretary to the government, former auditors-general Ambrin and Tan Sri Madinah Mohamad, former 1MDB chairman Tan Sri Bakke Salleh and Saadatul Nafisah.
Najib, 70, was charged with abusing his position to order amendments to the 1MDB final audit report to avoid action being taken against him while Arul Kanda, 46, was charged with abetting Najib.
The offence was allegedly committed at the Prime Minister’s Department Complex at the Federal Government Administrative Centre in Putrajaya between Feb 22 and 26, 2016.
Both men were charged under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, which provides a jail term of up to 20 years and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.