Defence counsel Hisyam Teh pointed out that Nazlan was Maybank’s general counsel and company secretary from 2006 to 2015, and has knowledge of a few transactions, making the judge a potential witness
Putrajaya – Justice Mohd Nazlan Mohd Ghazali’s knowledge of the setting up of SRC International Sdn Bhd in 2010 may have impacted his judgment against former Prime Minister Najib Razak, Federal Court was told today.
Lead defence counsel Hisyam Teh Poh Teik said while Nazlan was Maybank’s general counsel and company secretary from 2006 to 2015, the bank had given a RM140 million loan to Putra Perdana Development Sdn Bhd (PPD), where SRC was a beneficiary, and also a RM4.17 billion loan to 1Malaysia Development Bhd (1MDB) for the acquisition of Tanjong Energy, making the judge a potential witness in both the SRC and 1MDB trial.
“At the minimum, even his (Nazlan) knowledge of those transactions and the entities and individuals involved demonstrates a real danger of bias,” Hisyam added.
“As a long-term employee of Maybank, his previous conduct may also be grounds for a reasonable person to believe that he cannot act with an objective mind. It is a matter of record that he was actively involved in the loan transactions which Najib is also currently accused of in another High Court,” the counsel said.
Nazlan, Hisyam said, would have given professional advice and opinion in a non-judicial capacity to Maybank and may have formed certain opinions and also influenced his judgement in the SRC case.
He added it would also be improbable that Nazlan does not have interests in the case, especially with regard to Maybank’s role in financing SRC through PPD and setting up of SRC, both of which are issues in the SRC case.
“The trial judge (Nazlan) had a conflict of interest which disqualified him from presiding over the SRC trial and consequently, whether he was in breach of the rule against bias for continuing presiding and adjudicated upon the SRC case,” the senior lawyer said.
Nazlan had found Najib guilty on July 28, 2020, of all seven charges, comprising one count of abuse of power with regard to the Retirement Fund Inc (KWAP) RM4 billion loan to SRC and three counts each of criminal breach of trust and abuse of power with regard to RM42 million of SRC funds.
For this, the former premier was sentenced to 12 years in jail and fined RM210 million, and this was upheld by the Court of Appeal on Dec 8 last year.
Maybank Investment Had A Role In Setting Up SRC, Defence Contends
The defence contended that Zain Bador, who is the director and head of project finance advisory at Maybank Investment Bank Bhd, had advised 1MDB’s chief executive officer Datuk Shahrol Azral Ibrahim Halmi on the formation of a strategic resource company between 2010 and 2011, resulting in SRC’s formation.
Zain also leads Bina Fikir Sdn Bhd, the consultancy firm which is under Maybank that advised on the formation of SRC.
Hisyam had cited Nazlan’s 800-page judgement where the judge, who has now been elevated to the Court of Appeal, had described that SRC was formed in Najib’s interests or at the accused’s behest to misappropriate the money, resulting in the transfer of money for his personal use in the AmIslamic bank account.
However, the senior lawyer said Nazlan had omitted any portions regarding Maybank’s role in his judgement.
Hisyam said while Najib may have prior knowledge of Nazlan’s previous employment with Maybank, the former premier only knew of the purported deals only in May after an anonymous envelope came to his house.
He contended the prosecution had not offered any evidence with regard to Maybank during the SRC trial.
Hisyam said the defence had fulfilled all the requirements under Section 93 of the Courts of Judicature Act to adduce further evidence.
“It is a fit case where the hearing (of the appeal) may be deferred till such time that the investigation on Nazlan’s role is completed, or in the alternative, this court may call for the record and see the statements themselves.
“These statements constitute material evidence which establishes the trial judge’s conflict of interest and bias in respect to the SRC trial,” he added.
“As a long-term employee of Maybank, his previous conduct may also be grounds for a reasonable person to believe that he cannot act with an objective mind. It is a matter of record that he was actively involved in the loan transactions which Najib is also currently accused of in another High Court,” the counsel said.
Nazlan, Hisyam said, would have given professional advice and opinion in a non-judicial capacity to Maybank and may have formed certain opinions and also influenced his judgement in the SRC case.
He added it would also be improbable that Nazlan does not have interests in the case, especially with regard to Maybank’s role in financing SRC through PPD and setting up of SRC, both of which are issues in the SRC case.
Clear Conflict Of Interest By Nazlan
“The trial judge (Nazlan) had a conflict of interest which disqualified him from presiding over the SRC trial and consequently, whether he was in breach of the rule against bias for continuing presiding and adjudicated upon the SRC case,” the senior lawyer said.
In the afternoon, ad hoc prosecutor V. Sithambaram began his submissions on the defence’s application to adduce more evidence, by saying that the documents (DSN16) were served to the defence. He added that if the defence received these documents, they would have known that Maybank was involved in the loan process.
He said that documents DSN14 and DSN16 are the same, in that they deal with the subject matter.
“With this document (DSN 16) they would already know that Maybank is somewhat involved in this (SRC),” he said.
Sithambaram then said that the amended notice of motion is before the court and is supported by six affidavits.
“What is important is that these affidavits are affirmed by Najib. The five persons who are testifying, if allowed, should have signed the affidavit,” he said.
He said that the MACC officers did not sign it, and there is no assurance that they will come and testify on Najib’s affidavits.
“This is hearsay upon hearsay,” he said.
He said should the application succeed, the court will not know what the new witnesses will say on the stand, and that Najib’s application is “pure conjecture” and “hearsay” because the witnesses have not confirmed what Najib is alleging.
“What will happen if the witnesses say something else which contradicts Najib’s affidavits? Then this whole thing will be a farce,” he said.
He called the affidavit for the application “self-serving” to Najib because no one is willing to put their neck out by testifying for Najib.
Sithambaram said before the commencement of the SRC trial, Nazlan’s position in Maybank was known publicly, and was the subject of several news reports.
He then moved on to DSN16, which he said was in possession of Najib’s legal team, before they were called to enter his defence.
He added that the document stated that 1MDB had authorised Maybank and its subsidiary Bina Fikir Sdn Bhd as consultants to create and establish a strategic resource company, not specifically to set up SRC.
He said the court finding Najib guilty does not have anything to do with the Maybank loan.
Nazlan had found Najib guilty on 28 July 2020, of all seven charges, comprising one count of abuse of power with regard to the Retirement Fund Inc (KWAP) RM4 billion loan to SRC and three counts each of criminal breach of trust and abuse of power with regard to RM42 million of SRC funds.
Najib was sentenced to 12 years in jail and fined RM210 million, and this was upheld by the Court of Appeal on 08 Dec last year. – New Malaysia Herald
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