SRC appeal: Defence's BlackBerry Messenger evidence incriminates Najib, says prosecution

PUTRAJAYA (April 20): The BlackBerry Messenger (BBM) messages between purported master conspirator Low Taek Jho, or Jho Low, and former AmBank relationship manager Joanna Yu Ging Ping admitted by the defence as evidence had actually further incriminated former prime minister Datuk Seri Najib Razak of wrongdoing surrounding the RM42 million belonging to SRC International Sdn Bhd that went into his personal accounts, the prosecution argued today.

Ad hoc prosecutor Datuk V Sithambaram (pictured) said that based on the BBM messages, it could be established that Najib must have had knowledge of his finances as he had tasked Jho Low to ensure the accounts had funds for him, to gauge how much he could spend from those accounts.

In fact, the former premier had previously admitted during the trial at the High Court last year that he had communicated with his then principal private secretary, the late Datuk Azlin Alias, who informed him as to how much Najib could spend.

“The appellant (Najib) used Jho Low to verify his bank balances to ensure that he had sufficient credits/funds for credit card expenses and the cheques he had issued or was going to issue.

“These messages which were admitted by the appellant prove the knowledge of the appellant of his bank account balances and credit card balances.

“It is impossible for the appellant not to have knowledge of the total credit and debit of RM606,510,436.66 in his three new current accounts for three years he had operated them before closing all these accounts on March 9, 2015 as reflected in all the three account statements,” Sithambaram submitted at the Court of Appeal today.

Previously during the defence's submission of Najib's appeal against his conviction on April 7, defence counsel Harvinderjit Singh raised that Jho Low transferred the RM27 million and RM5 million without the former premier's knowledge.

Harvinderjit had argued that Najib did not have knowledge of where the monies in his personal account originated from, and that proved that the former premier therefore did not have dishonest intent, which is part of the elements required for the criminal breach of trust (CBT) charge.

In his rebuttal, Sithambaram pointed out that the evidence of the BBM messages compared with the financial statements of the former premier personal accounts coincided and highlighted that Jho Low had in fact been reporting back to Najib about the status of his finances.

If the BBM evidence that the defence brought forward in the trial is true, then Najib’s denial of knowledge should not be accepted, he contended.

Furthermore, Sithambaram submitted that Najib had never made any inquiries with the bank, let alone lodged any complaint, regarding the huge amount of funds going in and out of his accounts and did not take any action against AmBank for its alleged wrongful debiting of his accounts when the withdrawals took place.

"In light of the overwhelming evidence adduced by the prosecution that the appellant had full knowledge of the monies that were deposited into his accounts, the respondent (prosecution) submits that the appellant’s assertion that he had no such knowledge is patently false and untrue," he said.

In his grounds of judgement last year, High Court judge Justice Mohd Nazlan Mohd Ghazali said that in regard to finding Najib guilty of CBT, the prosecution had to prove dishonest intention.

"Thus, the learned judge, having evaluated the evidence in totality and in the absence of any credible explanation for the transfer of the RM42 million from SRC, correctly drew the inference that the appellant had the knowledge or had consented to the transfers and therefore has dishonestly misappropriated and converted the SRC funds amounting to RM42 million. The learned judge did not err when ruling that the prosecution had established all the ingredients of the CBT charges," Sithambaram said, in support of the judge's findings.

Previously it was reported that Najib thought that the money he used from the AmBank accounts were from the alleged RM2.6 billion Arab donation he had received.

Court of Appeal judge Justice Abdul Karim Abdul Jalil, who led the three-member bench, posed a question to the prosecution on how could Najib be dishonest if his state of mind was based on the belief that the monies came from the Arab donation.

To this, Sithambaram replied that this belief was only a claim made by the defence and that it should be the defence's burden to prove that the monies in Najib's account had in fact originated from the Arab donation.

Sithambaram added: “The appellant’s (Najib) sworn affidavit provided direct evidence which confirmed the appellant's knowledge that RM42 million was transferred into his account from SRC.”

He was referring to Najib's sworn affidavit in February 2016 in the civil suit he instituted against former transport minister Tun Ling Liong Sik, during which the controversy of 1MDB and SRC was publicised.

Justice Nazlan had found the former premier guilty of all seven charges including one count of abuse of power, three counts of criminal breach of trust and another three charges of money laundering in relation to the RM42 million SRC funds that went into Najib's personal accounts.

For this, Najib was sentenced to 12 years’ jail and fined RM210 million. He is now appealing against his conviction at the Court of Appeal.

The 14-day appeal hearing continues.

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