Incorrect to say Najib had direct control over 1MDB, lawyer says in forfeiture suit

The High Court was today told that it was incorrect for the prosecution to say that former prime minister Najib Razak had direct control over 1MDB to exercise his power which allegedly caused the money from the sovereign wealth fund to flow into his personal bank accounts.

Lawyer Tania Scivetti, representing Najib, said based on the affidavits of senior assistant commissioner R Rajagopal and superintendent Foo Wei Min regarding the alleged money trail involving funds going from 1MDB into the Pekan MP’s account, there was no documentary evidence that the money flowed into his account due to his (Najib’s) instruction.

“Rajagopal has wrongly interpreted Article 117 of the Memorandum and Articles of Association (M&A) wherein he averred that all business decisions made by the 1MBD board of directors having financial implications must be referred to and approved by Najib.

“He also does not exhibit any written approval where Najib had exercised his power pursuant to Article 117 of the M&A, nor he does state that the former prime minister had invoked his power under Article 117(c) of the memorandum (to cause the money movement),” said Scivetti.

She said this during her submission in the government-linked forfeiture suit against Najib and 17 others before judge Mohamed Zaini Mazlan.

Scivetti further argued that the affidavits by the two investigating officers merely disclosed the movement of money deposited into and transferred out of Najib’s account, and that the mere setting out of the movement of money was not enough to prove that the seized properties were from unlawful activity.

“Foo, in his affidavit, avers that during investigations, he applied the first in, first out (Fifo) method on Najib’s Ambank account number ending with 9694 and found that apart from utilising it for personal use, Najib had utilised and transferred the funds into his own Ambank account number ending with 1880, 32 political parties, 131 companies and 60 individuals.

“Again, there is no evidence of the alleged movement of money from 1MDB into any purported accounts of Good Star Ltd, Aabar Investments PJS and Tanore Finance Corp to even warrant Foo to do a Fifo analysis,” she said.

Citing Foo’s affidavit, Scivetti also contended that there was no nexus between the alleged 1MDB funds in Najib’s Ambank accounts and the seized luxury watches and jewellery.

“Foo said based on his investigation, the foreign companies had transferred the funds allegedly misappropriated from 1MDB to the account of several foreign companies and this illegal money was then utilised for the purchase of luxury handbags and watches.

“But there was no evidence furnished by Foo to show the link between the watches and the funds allegedly misappropriated from 1MDB. Likewise, there were no receipts to link the seized watches and jewellery with the bank statement by Foo. Therefore, there is no evidence at all before this court that the seized properties were proceeds of unlawful activity,” she said, urging for the dismissal of the forfeiture application.

The hearing before Zaini will resume on May 7.

On May 8, 2019, the Attorney-General’s Chambers filed a notice of forfeiture over hundreds of items including branded handbags and 27 vehicles seized from Najib, Rosmah, their three children and 13 individuals and companies, said to be linked to 1MDB.

Money amounting to more than RM18 million in several accounts at Bank Islam Malaysia Bhd, Al-Rajhi Bank Bhd, Malayan Banking Bhd, CIMB Bank Bhd, RHB Bank Bhd, Public Bank Bhd, AmBank Bhd and Hong Leong Bank Bhd was also frozen between Aug 16, 2018, and March 11, 2019.

The application named Najib as the first respondent followed by Rosmah, Riza Aziz, Nor Ashman Razak Mohd Najib, Nooryana Najwa Mohd Najib, Mohd Kyizzad Mesran, Senijauhar Sdn Bhd, Aiman Ruslan, Yayasan Rakyat 1Malaysia, Yayasan Semesta, Yayasan Mustika Kasih, Rembulan Kembara Sdn Bhd, Goh Gaik Ewe, Ng, Lim, Kee Kok Thiam, Tan Vern Tact and Geh Choh Hun as the second to 18th respondents.

The application was filed on grounds that the prosecution, acting under Section 56 (1) read together with Section 376 of the Criminal Procedure Code, was satisfied that the items seized between May 17, 2018, and March 11, 2019, were related to an offence under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 or the result of illegal activities involving the respondents.