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Case Update: Burden is placed on Appellant to show concurrent findings were perverse to occasioned a miscarriage of justice

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26 August 2022

CRIMINAL LAW
Criminal Breach of Trust – Abuse of Power – Money Laundering – Malaysian Anti-Corruption Commission Act 2009 – Penal Code – Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001

Dato’ Sri Mohd Najib Bin Hj Abd Razak v Pendakwa Raya
Criminal Appeal No:05(L)-289-12/2021(W) |Federal Court
- see the grounds of judgment here

Facts The Appellant in this case is the former Prime Minister of Malaysia, Dato’ Sri Mohd Najib bin Haji Abdul Razak. He was charged in the Kuala Lumpur Sessions Court for criminal breach of trust, abuse of power and money laundering in relation to the misappropriation of RM42 million in funds belonging to SRC International, then an 1MDB subsidiary. After a full trial, the Appellant was convicted by trial judge Nazlan Ghazali of all charges and sentenced to 12 years’ imprisonment and a RM210 million fine. The Appellant then lodge an appeal with the Court of Appeal and was heard before a three-member panel comprising judges Abdul Karim Abdul Jalil, Has Zanah Mehat and Vazeer Alam Mydin Meera, who unanimously upheld both the conviction and sentence passed by the High Court. The Appellant then filed an appeal to the Federal Court. Hence, this appeal.

Issue Whether the existing findings and the application of the law to the facts by the lower courts were correct.

Held In unanimously dismissing the appeal, the Federal Court held that they were unable to conclude that any findings of the High Court, as affirmed by the Court of Appeal, were perverse or plainly wrong so as to warrant appellate intervention. The Federal Court agreed that the defence was so inherently inconsistent and incredible that it did not raise a reasonable doubt on the prosecution’s case. The five-member panel comprising Chief Justice Tengku Maimun Tuan Mat, Chief Judge of Sabah and Sarawak Abang Iskandar Bin Abang Hashim and judges Nallini Pathmanathan, Mary Lim and Mohamad Zabidin Bin Mohd Diah held that putting aside the personality of the Appellant, this was a simple and straightforward case of abuse of power, criminal breach of trust and money laundering. Further, the panel held that all Appellants in criminal appeals must understand that the burden is on them in the apex appellate Court to show that the concurrent findings were perverse and that those perverse findings occasioned a miscarriage of justice. In conclusion, having pored through the evidence, the submissions and the rest of the records of appeal, the Federal Court found that the Appellant’s complaints as contained in the petition of appeal was devoid of any merit. On the totality of the evidence, the Federal Court found the conviction of the Appellant on all seven charges safe and that the sentence imposed was not manifestly excessive. Hence the appeal was dismissed.

Zul Rafique & Partners
{26 August 2022}

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