Lawyer Muhammad Shafee Abdullah said trial judge Mohd Nazlan Mohd Ghazali adopted the civil law and common law concept of a shadow director from England to convict the former prime minister.
The senior lawyer said while Section 402A of the Penal Code on the definition of a director was “something similar to a shadow director” but it was not the same as in England.
“The appellant was not an insider in SRC as required under the Penal Code to have committed criminal breach of trust (CBT),” he said in his submission at the hearing of the appeal by Najib against his conviction and sentence.
The appeal is being heard by a three-member bench chaired by Abdul Karim Abdul Jalil. The others are Has Zanah Mehat and Vazeer Alam Mydin Meera.
Shafee said the prosecution also did not establish the ingredients of the CBT charge to be called to enter defence.
He said the trial judge erred in law to import an unwritten law (common law) from England to implicate Najib for the offence.
Shafee said it must be proven that the appellant had control and was entrusted with the RM42 million to be found guilty.
“The appellant submits that the trial judge committed a grave error by relying on the common law and stretching the language of Section 402A of the Penal Code beyond the natural and ordinary meaning of the provision,” he said.
“This has caused serious prejudice and injustice to the appellant.”
On April 19, ad hoc prosecutor V Sithambaram submitted before the bench that the running of SRC International was a one-man show by Najib as he had sidelined the board of directors.
Sithambaram said Najib kept everyone away and was in control of the SRC funds through the company’s then chief executive officer and director, Nik Faisal Ariff Kamil.
He said Najib micromanaged the company to the extent of deciding the appointment of lawyers and auditors and which banks to operate the company’s accounts, functions usually carried out by the directors.
He said Najib was all the more powerful because he was the prime minister, finance minister and adviser emeritus of SRC, which was later placed under the Ministry of Finance Inc (MoF).
“He was the agent of SRC in his capacity as ‘shadow director’ because he could hire and fire the de jure directors,” he had submitted.
Earlier, lawyer Farhan Read, who concluded his submissions on Najib’s abuse of power charge, said this bench must intervene as Nazlan had also misdirected himself.
“Asking the appellant to enter defence based on evidence by discredited prosecution witnesses is totally misplaced,” Farhan said.
Najib was accused of abusing his power as the prime minister by giving government guarantees on SRC International’s RM4 billion loan from Retirement Fund Inc.
He was also charged with three counts of CBT and three money laundering charges in relation to RM42 million belonging to SRC, a former unit of 1MDB.
In July last year, Nazlan sentenced him to 12 years’ jail and fined him RM210 million after finding him guilty of the seven charges.