KUALA LUMPUR (July 22): The High Court on Monday dismissed former prime minister Datuk Seri Najib Razak and ex-Treasury secretary general Tan Sri Dr Mohd Irwan Serigar Abdullah’s application to be given a discharge not amounting to an acquittal (DNAA) in their joint trial in relation to six counts of criminal breach of trust (CBT) of government funds of US$1.2 billion (RM6.6 billion) paid to the International Petroleum Investment Company (IPIC).

The defence had asked for a DNAA because the prosecution had yet to furnish them with 100-plus pages of documents from two ministries and the Cabinet secretariat to Najib and Irwan in order for them to submit their defence, as required under Section 62 of the Malaysian Anti-Corruption Commission (MACC) Act 2009.

Some docs served last Friday, after office hours

Senior counsel Datuk K Kumaraendran, representing Irwan, said the prosecution had tried to serve seven bundles of documents to his law firm’s office at 5.45pm last Friday (July 19), but the office was already closed.

For these reasons, the senior lawyer applied for a DNAA until the prosecution could serve the documents as required, as the balance of documents needed to be declassified.

A DNAA means that the charges against Najib and Irwan is withdrawn by the court, but the prosecution can recharge them with the same charges to face the trial once the documents are in order.

The sentiments for a DNAA were echoed by Najib’s counsel Muhammad Farhan Muhammad Shafee, who said that the prosecution had tried to serve the documents to his office at 6pm, but the office was already closed.

He said in Najib’s case, the defence would have to present the documents from the seven bundles to the former prime minister and seek instructions, as Najib is presently serving his jail sentence in Kajang, and for this reason, they also applied for a DNAA.

Over 100 pages yet to be declassified

Deputy public prosecutor Muhammad Saifuddin Hashim Musaimi, leading the prosecution, said they had tried their best to serve the documents, but there were two bundles of documents with 100-plus pages of documents which had yet to be declassified.

He added that 10 of the documents are with the Ministry of Energy Transition and Water Transformation (Petra), another 29 with the Ministry of Economy, nine with the Cabinet, and two were related to the Ministry of Transport’s Malaysian Land Transportation Commission (SPAD), which has now become the Land Public Transport Agency (APAD).

Saifuddin said the prosecution could not control the declassification of the documents under the Official Secrets Act, as it had to be done by the ministries, and the prosecution had requested them to do so in June.

“However, the ministries and agency have not been able to declassify the documents until today,” Saifuddin said. Despite this, the prosecution was prepared to continue with the trial with formal witnesses.

However, Kumaraendran and Farhan objected and continued to press for a DNAA, saying that they needed the documents to prepare their defence, as required under Section 62, and without them, their defence would be prejudiced as they did not know how to prepare their case.

Section 62 of the MACC Act stipulates that once delivery of documents by the prosecution, pursuant to Section 51A of the Criminal Procedure Code, has taken place, the accused shall, before commencement of the trial, deliver the following documents to the prosecution:

(a) a defence statement setting out in general terms the nature of the defence and the matters on which the accused takes issue with the prosecution, with reasons; and

(b) a copy of any document which would be tendered as part of the evidence for the defence.

Final postponement, judge warns

Following this, High Court judge Datuk Muhammad Jamil Hussin ruled not to grant a DNAA, and directed the prosecution to continue with the case on Nov 14, which he stressed would be the final postponement date.

“This court is vacating the (pre-set) trial dates in August, September, and October. Three months should be sufficient for the remaining documents to be given. This is the last adjournment,” the judge added.

Prior to this, Jamil had deferred the trial twice in June; the last being on June 19, ordering the trial to proceed on Monday before the objection was made.

Najib and Irwan are jointly charged with CBT, following a diversion of government funds to pay IPIC in 2017.

This follows 1Malaysia Development Bhd (1MDB) borrowing US$1.2 billion from IPIC in 2015. The sum was repaid by 1MDB under a settlement agreement inked in 2017. 1MDB said at the time that it raised the funds for repayment via asset sales, but did not give details.

The subject of the diversion is the subject of the six CBT charges, as the RM6.6 billion government funds were initially allocated for, among others, Bantuan Rakyat 1Malaysia, the East Coast Rail Link (ECRL) project, and funds for the Kuala Lumpur International Airport (KLIA). There was also a sale of some Bank Negara Malaysia land to repay IPIC.

In February 2023, IPIC and its subsidiary Aabar Investments PJS agreed to pay the Malaysian government US$1.8 billion (RM8.26 billion). The settlement was in respect of the legal proceedings in the London Court of International Arbitration and the London High Court.

However, it is not known whether the sum has been repaid to the Malaysian government. As for the 'settlement', representation letters have been sent by both Najib and Irwan. The outcome of that has not been determined until now.