PETALING JAYA: A lawyer said the three charges framed against Najib Razak for allegedly misappropriating RM42 million are defective and illegal.
Md Yusuf Md Idris said the charges against the former prime minister needed to be amended or else it could be a good ground for appeal if it could be shown that Najib had been misled by the error.
“I humbly believe that the prosecution should take all necessary steps to amend the charges as soon as possible to ensure that Najib is not confused,” he said in his blog posting.
He was commenting on three of the four charges preferred against Najib at the High Court yesterday. Najib claimed trial to all the charges.
In the first CBT charge, Najib as prime minister, finance minister and adviser to SRC International, is accused of transferring RM27 million from the company into his private bank account at AmIslamic Bank Bhd in Kuala Lumpur.
In the second charge, he is accused of transferring RM5 million from SRC International into his bank account during the same period.
In the third charge, he is accused of transferring another RM10 million from the company into his account.
The charges were drafted in Bahasa Malaysia.
Each of the charges under Section 409 of the Penal Code carries a maximum 20-year jail term or fine at the discretion of the court.
The lawyer said Section 409 states that “whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant or an agent, commits criminal breach of trust and shall be punished…”
Yusuf said it was pertinent to note the word ‘or’ in Section 409 meant that the prosecution should prove either one of the said limbs: that the accused was being in any manner entrusted with property; or the accused was having dominion over the property or both.
“The wordings used in the said charges are ‘diamanahkan dengan penguasaan ke atas harta’ which means entrusted with dominion over the property,” he said.
He said the wording in the charge sheet seemed to combine both limbs into one element, when, in fact, the two limbs mentioned were separate and the prosecution should either prove one of them or both.
“The question is ‘how do you entrust someone with dominion over the property? I believe that there is no such thing as that.
“It is either the accused is entrusted with the property or having dominion over the property,” he said.
Idris said “entrusted with dominion over the property” was an offence that is unknown to law and this was the ruling in the 2016 Court of Appeal decision in the case of Aisyah Mohamed Rose v PP.
He said the court held that the defect was curable under Section 422 of the CPC since there was nothing in the records of appeal to show that the appellants were confused and misled by the wordings of the charge.
Meanwhile, lawyer S N Nair said the prosecution was entitled to amend the charge anytime before it closed its case.
“It had been done in the trial of Anwar Ibrahim who was charged with abusing his power,” he said.
Nair said the defence raised a point of fact that the crime scene, Tivoli Villas in Kuala Lumpur, was not built in 1993 as stated in the charge.
“The then attorney-general Mohtar Abdullah applied to the court to make amendments and it was allowed,” said Nair who was a counsel for Anwar in that case.
Najib also faces a fourth charge of having used his position as prime minister and finance minister to obtain funds of RM42 million when he decided or was part of the decision that gave a government guarantee for loans worth RM4 billion from Retirement Fund Inc (KWAP) to SRC International Sdn Bhd between Aug 17, 2011 and Feb 8, 2012.