PP v. DATO' SRI MOHD NAJIB HJ ABD RAZAK
HIGH COURT MALAYA, KUALA LUMPUR
MOHD NAZLAN GHAZALI J
[CRIMINAL TRIALS NO: WA-45-2-07-2018, WA-45-3-07-2018 & WA-45-5-08-2018]
21 AUGUST 2020

CRIMINAL LAW: Malaysian Anti-Corruption Commission Act 2009 – Section 23(1) – Public officer – Using office or position for gratification – Ingredients – Accused Prime Minister and Minister of Finance – Whether public officer – Government-linked company – Company owned and controlled by Minister of Finance Incorporated – Whether Minister of Finance Incorporated personified by accused as Finance Minister – Accused as Prime Minister and Advisor Emeritus of Company granted power by company's Memorandum and Articles of Association to appoint or dismiss members of Board of Directors, and control corporate and strategic decisions of company – Whether having overarching authority over company – Whether having 'interest' in company – Company applying for RM4 billion loans from Retirement Fund (Incorporated) – Loans approved following support by accused and guarantees provided by Government – Company transferring monies into accused's personal bank accounts – Whether constituting 'gratification' within meaning of s. 23(1) – Whether accused motivated by gratification in participating in Government decision to grant guarantees to company – Nexus between Government decision to grant guarantees and gratification – Whether needed to be proven – Whether accused suffering from conflict of interest situation vis-à-vis Government decision to grant guarantees – Presumption of existence of 'interest' – Whether applicable – Whether could be invoked against accused – Malaysian Anti-Corruption Commission Act 2009, s. 23(1), (2)

CRIMINAL LAW: Penal Code – Section 409 – Criminal Breach of Trust – Ingredients – Accused Prime Minister and Minister of Finance – Government-linked company – Company owned and controlled by Minister of Finance Incorporated – Whether Minister of Finance Incorporated personified by accused as Finance Minister – Accused as Prime Minister and Advisor Emeritus of Company granted power by company's Memorandum and Articles of Association to appoint or dismiss members of Board of Directors, and control corporate and strategic decisions of company – Whether having overarching authority over company – Whether treated by law as director and shadow director of company – Whether entrusted with dominion over property of company – Whether an agent of company – Company applying for RM4 billion loans from Retirement Fund (Incorporated) – Loans approved following support by accused and guarantees provided by Government – Company transferring monies into accused's bank personal accounts – Whether transfers actuated and initiated by accused – Whether accused committed misappropriation – Whether monies converted by accused for own use and benefit – Whether criminal breach of trust proven against accused – Penal Code, ss. 405 & 409

CRIMINAL LAW: Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Section 4(1) – Money laundering – Ingredients – Accused Prime Minister and Minister of Finance – Government-linked company – Company owned and controlled by Minister of Finance Incorporated – Whether Minister of Finance Incorporated personified by accused as Finance Minister – Accused as Prime Minister and Advisor Emeritus of Company granted power by company's Memorandum and Articles of Association to appoint or dismiss members of Board of Directors, and control corporate and strategic decisions of company – Company applying for RM4 billion loans from Retirement Fund (Incorporated) – Loans approved following support by accused and guarantees provided by Government – Company transferring monies into accused's personal bank accounts – Whether transfers actuated and initiated by accused – Whether monies proceeds of unlawful activity – Predicate offences, commission of – Whether proven – Unlawful activity – Particular and specific unlawful activity giving rise to illegal proceeds – Whether to be specifically identified – Whether accused ought to have but failed to ascertain sources of funds – Whether guilty of willful blindness

CRIMINAL PROCEDURE: Sentence – Adequacy – Public officer – Prime Minister cum Minister of Finance – Guilty and convicted of offences of using position for gratification, criminal breach of trust and money laundering – Appropriate and fair sentences