Six years on, Najib finds out today if he can walk free from 1MDB ...

Today, the High Court will decide on one thing only: Whether the prosecution has proved a ‘prima facie’ case against Najib in the 1MDB trial. — Picture by Yusof Mat Isa

By Ida Lim

Wednesday, 30 Oct 2024 7:00 AM MYT

KUALA LUMPUR, Oct 30 — Former prime minister Datuk Seri Najib Razak will know today if he has to defend himself in court against 25 criminal charges over 1Malaysia Development Berhad’s (1MDB) misappropriated RM2.27 billion funds, or if he will be acquitted and if the trial will just end there.

Najib was 65 when he was charged six years ago in September 2018 with four counts of power abuse and 21 money-laundering charges in relation to 1MDB’s RM2.27 billion, including over RM2 billion which was alleged to have entered his personal bank accounts.

Najib is now 71, with his 1MDB trial having started in August 2019 and gone on for five years. He is also a prisoner now, after having been convicted in a separate trial over ex-1MDB unit SRC International Sdn Bhd’s RM42 million.

One week before the High Court was to decide on his fate today in the 1MDB trial, Najib — after spending more than two years in jail — abruptly announced his apology to Malaysians over the 1MDB scandal.

Najib last week said he hopes to be proven innocent in court, claiming that he is not the mastermind of the scheme to cheat 1MDB of its money. Najib claims he did not work with Malaysian fugitive Low Taek Jho in the 1MDB fraud.

Najib continues to insist that he had believed that the large sums of money which entered his accounts were donations from Saudi Arabia, but the prosecution has disputed this and said an alleged Saudi prince’s four purported donation letters to Najib were fabricated.

At the start of the trial, the prosecution had also said that it would show that Low was the alter ego and mirror image of Najib, and that the two of them had “acted as one” during the 1MDB events.

What will happen today and why is it important?

The High Court will not be deciding today on whether Najib is guilty or innocent in the 1MDB case.

Today, the High Court will decide on one thing only: Whether the prosecution has proved a “prima facie” case against Najib in the 1MDB trial.

If yes, the High Court will order Najib to enter defence. If not, the High Court will order Najib’s acquittal.

So what is a “prima facie” case?

Based on the Criminal Procedure Code’s Section 180, a prima facie case is proven when the prosecution has presented “credible evidence” in court to prove each element of the offence, and when the accused’s failure to rebut this evidence would mean he should be convicted of the crime.

To prove this “prima facie” case, the prosecution in Najib’s 1MDB trial had called in 50 prosecution witnesses and presented evidence including multiple banking documents during 235 days of court hearing from August 2019 to May 2024.

Three choices if Najib ordered to enter defence

If trial judge Datuk Collin Lawrence Sequerah rules today that the prosecution has made out a prima facie case and Najib has to enter defence, the former finance minister will have three options:

1. Remain silent (This will result in a conviction, since a prima facie case is when an accused person would be convicted if they do not rebut the evidence against them.)

2. Give a sworn statement while testifying under oath from the witness stand(This means he will become his own defence witness, and the prosecution can cross-examine him.)

3. Give an unsworn statement from the accused’s dock(Since the prosecution would not be able to cross-examine and the judge would not be able to question the accused person, the court would typically give less weight or less value to the unsworn statement.

In other words, if Najib is ordered to enter defence, he will have the chance to call in defence witnesses and present evidence to rebut the prosecution’s case, before the court decides if he should be convicted or not.

If Najib is acquitted today, the prosecution can choose to appeal against the decision today, as long as it meets the required court deadlines.

How many criminal cases does Najib have again?

In total, Najib has five criminal cases against him in court, including this 1MDB trial involving RM2.27 billion funds.

The first is the RM42 million SRC case where he had been sentenced in 2022 to 12 years’ jail and RM210 million fine (which the Federal Territories Pardons Board in February this year reduced to six years’ jail and RM50 million fine).

The second case which reached a conclusion was the trial where Najib was accused of abusing his power to order changes to the auditor-general’s audit report on 1MDB before it was given to a parliamentary watchdog.

The High Court last year acquitted Najib and former 1MDB CEO Arul Kanda Kandasamy in that audit report case as it found that a prima facie case had not been proven, and both remain acquitted as the prosecution failed to meet deadlines to pursue an appeal at the Court of Appeal.

The remaining two trials have yet to start: Najib’s trial over six counts of criminal breach of trust involving RM6.6 billion in government funds also linked to 1MDB (currently scheduled to start on November 14), and Najib’s trial involving three counts of money laundering over SRC’s RM27 million (currently scheduled to start on April 21 next year.)