PRESS STATEMENT: application to nullify Najib Razak’s trial in the High Court

Today, on behalf of Dato’ Sri Mohd Najib in the SRC Case, an application to adduce further evidence has been filed in the Federal Court. This media statement is a summary of the motion and affidavit which has been filed in Court today. The further and additional evidence is intended primarily to persuade the Federal Court to nullify the trial of the High Court as it infringes the rules against bias and fair trial principles.

The further evidence sought to be adduced relates to the recent discovery that the trial judge in the SRC Case, Yang Arif Justice Dato’ Mohd Nazlan bin Mohd Ghazali (“Justice Nazlan”) was in 2006, the General Counsel and Company Secretary for the Maybank Group who had the ultimate overall responsibility for the management and administration of all legal departments within the entire group.

Justice Nazlan’s failure to disclose his knowledge on the setting up of SRC

Some documents which have recently been brought to our attention divulged that Maybank Investment Bank Bhd was the body responsible to propose the establishment of SRC International and that Maybank Investment through its wholly owned strategic advisory division, Bina Fikir Sdn. Bhd was tasked with the research and advisory matter pertaining to the establishment of SRC.

One of the documents was a letter by Maybank Investment Bank was engaged by 1MDB in relation to establishment of SRC. According to the letter, Maybank Investment were to prepare and deliver a Draft Strategy and business plan which includes, amongst others, the potential shareholders & shareholding structure and the potential organization structure of SRC and funding plans and potential involvement of the Government of Malaysia to assist 1MDB/SRC to achieve its objectives.

The involvement of Maybank through Maybank Investment and Bina Fikir Sdn Bhd in the setting up of SRC was never brought up by the prosecution at any point of the SRC trial and no witness from Maybank, Maybank Investment and Bina Fikir Sdn Bhd was called or offered by the prosecution.

The further evidence sought to be adduced taken cumulatively credibly confirms that Justice Nazlan was involved and/or had knowledge of Maybank Investment’s role in advising the setting up of SRC in his role as the General Counsel and Company Secretary to Maybank. Justice Nazlan, by virtue of his position and assignment of functions would have to be responsible in the overall handling of all legal matters within the Group. Maybank Group would include Maybank Investment and Bina Fikir Sdn Bhd. In any case, Justice Nazlan would have actual knowledge of the relevant advisory work vis-à-vis SRC matters or at the minimum he is imputed with constructive knowledge by virtue of his said position.

Justice Nazlan had willfully failed to disclose his role and/or involvement and/or knowledge on Maybank Investment’s role through Bina Fikir Sdn Bhd in the setting up of SRC. Having this knowledge concealed from the defence, Justice Nazlan had made findings in his grounds of judgment against Dato’ Sri Najib that he had overarching control over SRC and that he had engineered the formation of SRC and was involved in the crafting of SRC’s governance structure and general structure in order to place himself through his various ministerial position in order to secure the dominant overarching and unassailable position in SRC. This finding in Justice Nazlan’s decision is squarely contradictory to the factual matrix known to him.

RM140 million loan from Maybank to Putra Perdana Development (PPD)

Further, Justice Nazlan as the General Counsel and Company Secretary of Maybank was also the Head of Corporate & Legal Services. By virtue of his position, Justice Nazlan would have had constructive knowledge if not direct knowledge of the RM 140 million loan facility given by Maybank to PPD. The proceeds of the Maybank loan facility forms part of the subject matter of the RM42 million relating to the charges against me.

A Maybank officer by the name of Fazilah binti Abu Bakar, who was the Secretary to the Credit Committee had given a statement to MACC and confirmed that Justice Nazlan as the General Counsel was reported to concerning this matter of the RM 140 million loan to PPD, a matter deliberated by the Group Management Credit Committee (“GMCC”). Fazilah further stated to the MACC that generally, matters and dealings concerning GMCC and Credit Risk Committee (“CRC”) must be known by Justice Nazlan and there have been instances where Justice Nazlan had personally contacted Fazilah concerning matters of GMCC and CRC over similar situations.

In light of this, Justice Nazlan would have known or have a good suspicion that the RM 42M subject matter of the charges against Dato’ Sri Najib had never had its source from the RM4 billion KWAP loan as the source was clearly the RM140M loan from Maybank undertaken by PPD. InJustice Nazlan’s deliberation of the SRC Case, the issue of the source of the RM42M, whether it emanates from the RM4 billion KWAP loan or from the RM140M PPD loan from Maybank is germane for any arbitrator of facts to grapple with in order to fully understand the charge in relation to the abuse of power, criminal breach of trust and money laundering. Justice Nazlan’s involvement of the matters relating to RM140M by PPD has brought Justice Nazlan too close for comfort to be the judge trying the SRC case as he is totally in conflict of interest.

Maybank’s loan facility to 1MDB of RM4.17 billion

The documents recently obtained further reveals that Justice Nazlan, on 12th March 2012, acted as the General Counsel and Company Secretary to Malayan Banking Berhad in the deliberation and decision making of a loan facility of RM 4.17 billion to 1MDB for the acquisition of Tanjong Energy. Maybank Investment Bank, which is a fully owned subsidiary of the Maybank Group was responsible as the arranger of the RM 6.17 Billion loan to 1MDB for the purposes of acquisition of Tanjong Energy Holdings. The other RM 2 billion loan was given to 1MDB by RHB under the arrangement by Maybank Investment Bank.

A Maybank Investment Bank officer by the name of Michael Oh-Lau, who was the Managing Director, Head of Debt Markets confirmed that Justice Nazlan attended Maybank’s Board of Directors meetings in relation to the deliberation of the RM4.17 billion loan to 1MDB. Michael Oh-Lau confirmed that in early 2015, when 1MDB was at the verge of defaulting on the payments for the RM4.17 billion loan, Justice Nazlan as Maybank’s General Counsel was deeply involved where he was briefed of every step taken by Maybank in the proposed actions against 1MDB and Tanjong Energy Holdings. Justice Nazlan had also advised the management and the Board or Directors of the Maybank group towards resolution of the issue. Michael Oh-Lau also said that Justice Nazlan had personally sought the Board of Directors’ approval through a circular resolution vide a letter dated 10th February 2015, to the Directors of Maybank, entitled “Board Approval via Director’s Circular Resolution – Powertek Investment Holdings”. The said letter was never produced to the defence by the prosecution in the SRC Case.

The facts adumbrated earlier would conclusively put Justice Nazlan in the position of being a potential witness in the 1MDB case. Dato’ Sri Najib was charged in Kuala Lumpur Sessions Court in relation to the 1MDB case on 20th September 2018 when the trial of SRC has not even begun. In spite of having personal knowledge of his involvement in the matter of the loan to 1MDB and knowing that Dato’ Sri Najib was being charged and tried in a different High Court (for the 1MDB matter) where he could be a potential witness, Justice Nazlan had failed / neglected / omitted to make a declaration of his personal involvement/knowledge/interest to parties in this case. Justice Nazlan was very much aware that SRC was at one time wholly owned by 1MDB and later became directly owned by MOF INC as was the case of 1MDB. Therefore, SRC and 1MDB are associated companies having the same shareholder. The involvement of Justice Nazlan in the said 1MDB loan issue illustrate the extent of Justice Nazlan’s broad scope of his duties as Group General Counsel and Company Secretary.

Relevancy of the proposed additional evidence

The additional evidence sought to be adduced would, amongst others, show:

(a) The setting up and incorporation of SRC was not solely at the behest of 1MDB proposing to Ministry of Finance where Dato’ Sri Najib was the Minister of Finance at the material time. The evidence of involvement of other entities in the setting up, incorporation and the governance structure would determine that the inclusion of Articles 67 and 117 in the Memorandum and Articles of SRC was not made at Dato’ Sri Najib’s behest (contrary to Justice’s Nazlan’s findings in the SRC grounds of judgment;

(b) Justice Nazlan’s findings of “overarching control” over SRC and that SRC was the creature Dato’ Sri Najib created in order to serve his corrupt and selfish interest would be unfounded and/or erroneous;

(c) If these documents and/or information were disclosed, the personal involvement of Justice Nazlan as the General Counsel and Company Secretary of Maybank and Maybank Investment’s involvement in the setting up and incorporation of SRC would have unfolded;

(d) The personal involvement of the Justice as the General Counsel and Company Secretary of Maybank and Maybank Investment’s involvement in relation to the loan given to PPD in which the proceeds of the same flowed into Dato’ Sri Najib’s accounts which forms the subject matter of the charges against him in the SRC case would have unfolded;

(e) The fact that Justice Nazlan knew of his personal involvement in the setting up of SRC but concealed it to the defence amounts to a conflict of interest which has led to a real danger of bias. The personal involvement of the learned trial judge in matters pertaining to the RM4.17 billion loan to 1MDB puts him in situation of conflict as he becomes a potential witness in an intimately related criminal case against Dato’ Sri Najib which was ongoing simultaneously with the SRC trial;

(f) The evidence that has now been credibly discovered and verified reveals the suppression of evidence by the prosecution and/or the investigating authorities where they knew and ought to have known of the existence of these evidence and yet had failed to disclose it to the defence as facts favouring the defence.

MESSRS SHAFEE & CO. 7th June 2022