KUALA LUMPUR, Nov 18 -- The prosecution in the 1Malaysia Development Berhad (1MDB) audit report tampering trial which begins today will prove to the High Court that Datuk Seri Najib Tun Razak used his position as the Prime Minister and Minister of Finance to direct removal of material information in the 1MDB final audit report.
In an opening statement, Senior Deputy Public Prosecutor Datuk Seri Gopal Sri Ram who also a former Federal Court judge said the prosecution would show that Najib did what he did to avoid civil or criminal liability against him as a shadow director of 1MDB, as well as, in his positions to obtain gratification within Section 3 of the Malaysian Anti-Corruption Commission (MACC) Act.
"He (Najib) did so with a corrupt intention as required by section 23 of the MACC Act 2009," he said, adding that the prosecution would, by direct and circumstantial evidence, prove the extent to which the accused went to remove material from an official record to prevent disclosure of the true state of affairs.
Sri Ram said Najib knew, or it was certainly within his contemplation, that if the truth emerged, he would be exposed to civil or criminal liability for the reasons already stated.
"This is an objective fact which the prosecution will establish through the acts and omissions of the accused in the circumstances of the case," he told judge Mohamed Zaini Mazlan on the first day of Najib and former chief executive officer of 1MDB Arul Kanda Kandasamy alleged tampering of the 1MDB final audit report trial.
Sri Ram said 1MDB was a company in which Najib had a material interest and the former prime minister held shares in it, albeit as a 'Minister of the Crown'.
"He was also its preference shareholder and he exercised supreme power over it. The accused (Najib) are concerned himself in the affairs of 1MDB.
"Evidence will be led to show that the board and management of that company were accustomed to act upon his direction. Therefore, for the purposes of company law and indeed the general law he was a shadow director of 1MDB. As such, he would be both civilly and criminally liable for any breach of the duty he owed to the company," Sri Ram said.
Explaining the case, Sri Ram said monies belonging to 1MDB flowed into the account of a company called Good Star Limited which was controlled by Najib’s mirror image or alter ego, a man called Low Taek Jho or Jho Low, of whom the accused was particularly protective.
"Some of those monies also went to Najib’s stepson, Riza Shahriz Abdul Aziz. Najib also received large amounts of money belonging to 1MDB. Although he knew that the monies in question belonged to 1MDB, he lied to the world at large that they were a donation from Saudi Arabia," he said.
Sri Ram told the court that when the 1MDB scandal broke in early July 2015 and had received wide publicity, Najib began to cover his tracks.
"One of the steps, which the objective was to conceal the truth that Najib took to cover his tracks on the extent of his role and that of Jho Low in the business and affairs of 1MDB, gives rise to the charge in this case," he said.
Sri Ram said despite the fact that the report prepared by the Auditor-General was ready to be placed before the Public Accounts Committee (PAC) of Parliament, Najib took steps to have those passages that concerned him to be altered or removed in a meeting on 24 Feb 24, 2016, on his order.
"As a result of what transpired at that meeting the relevant passages as stated in Annexure A were amended or removed," he said.
Meanwhile, Sri Ram said Arul Kanda by his conduct, preceding the meeting in question, at that meeting and following it, abetted the accused in this transaction.
"I am duty-bound to inform the court that at the appropriate stage the public prosecutor will apply in writing under section 63 of the MACC Act to call the accused Arul Kanda to give evidence on the prosecution’s behalf. We will be addressing the court on this part of the case at the appropriate stage," he said.
Sri Ram said the prosecution would show that the evidence in the case is both credible and corroborated in material particulars.
"Further, the totality of the evidence will lead to the irresistible conclusion that not only was the crime in question committed but it was the accused who committed it.
"It is also our duty to inform the court that you may hear evidence from witnesses who may display an obvious bias in favour of the accused. Their evidence is necessary for the unfolding of our case. We will at the appropriate stage address the court on the way in which the evidence of such witnesses is to the evaluated," he said.
Sri Ram was assisted by DPPs Datuk Nik Suhaimi Nik Sulaiman, Mohammad Al-Saifi Hashim, Ahmad Akram Gharib, Rozaliana Zakaria, Mohamad Mustaffa P Kunyalam, Nadia Zulkefli, Hazmida Harris Lee, Tan Song Yan, Fatimah Hannah Abd Wahab, Munira Syahirah Mohamad Kamal, Nur Syakirin Yaccob and Wafa Zainal Abidin.
Najib is represented by counsels Tan Sri Muhammad Shafee Abdullah, Wan Aizuddin Wan Mohammed, Syahirah Hanapiah, while Arul Kanda is represented by counsels Datuk N. Sivananthan, Jasmine Cheong and Dhanyaa Shreeya Sukumar.
On Dec 12, 2018, Najib, 66, was charged with using his position to order amendments to the 1MDB final audit report before it was tabled to the PAC to avoid any action against him.
He was charged, in his capacity as a public officer, which was as the Prime Minister, with using the position to obtain gratification for himself, which was to evade disciplinary, civil or criminal action against him in connection with 1MDB, by ordering alterations to the 1MDB final audit report before it was finalised and tabled to the PAC, where he directly had interest in.
Najib was accused of committing the offence at the Prime Minister’s Department Complex, Federal Government’s Administrative Centre, the Federal Territory of Putrajaya between Feb 22 and 26, 2016.
The charge is framed under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 which carries a maximum 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.
Arul Kanda, 43, was charged with abetting Najib in making amendments to the report to protect Najib from being subjected to disciplinary, civil or criminal action in connection with 1MDB, at the same place and time and in accordance with Section 28 (1) © of the MACC Act 2009 read with Section 23 (1) & 24 (1) of the same act which provides for similar punishment, if found guilty.