DATO' SRI MOHD NAJIB HJ ABD RAZAK v. PP
COURT OF APPEAL, PUTRAJAYA
AB KARIM AB JALIL JCA
HAS ZANAH MEHAT JCA
VAZEER ALAM MYDIN MEERA JCA
[CRIMINAL APPEAL NO: W-05(SH)-(231-233)-07-2020]
8 DECEMBER 2021

Abstract – In a charge against a public officer for 'using his office or position for gratification' under s. 23(1) of the Malaysian Anti-Corruption Commission Act 2009, there is no duty on the part of the prosecution to prove the nature of the 'interest' that such an officer may have in the impugned action or decision forming the subject matter of the charge. 'Interest' is not an integral part of the offence under s. 23(1); not until the prosecution has decided to rely on and invoke the presumption in s. 23(2) of the Act. The word 'interest' has not been statutorily defined; notwithstanding, specifically for the latter scenario, once an interest that has gone beyond the accused's public office has been proved, the accused is caught by the ambit of s. 23(1) and is presumed in law to have committed the offence under s. 23(2) of the Act.

CRIMINAL LAW: Malaysian Anti-Corruption Commission Act 2009 – Section 23(1) – Public Officer – Using office or position for gratification – Appellant as Prime Minister and Minister of Finance – Whether a public officer – Appellant as Prime Minister, Minister of Finance and Advisor Emeritus of Government-linked company – Whether having potent power and overarching control over company – Company applied and granted RM4 billion loan by Retirement Fund (Incorporated) – Appellant chaired Cabinet meetings to approve loan – Whether having 'interest' in company – Whether 'interest' an integral part of the offence – Company transferring funds into appellant's personal bank accounts – Whether 'gratification' within meaning of s. 23(1) – Whether appellant suffering from conflict of interest situation vis-à-vis Government decision to grant guarantees – Presumption of existence of 'interest' – Whether applicable – Whether appellant properly convicted and sentenced – Malaysian Anti-Corruption Commission Act 2009, s. 23(1), (2)

CRIMINAL LAW: Penal Code – Section 409 – Criminal breach of trust – Ingredients – Appellant Prime Minister and Minister of Finance – Appellant appointed Advisor Emeritus of Government-linked company with overarching authority over company – Whether an 'agent' of company – Whether in law a director and shadow director of company – Whether entrusted with dominion over property of company – Company applied and granted RM4 billion loan by Retirement Fund (Incorporated) – Company transferring funds into appellant's personal bank accounts – Funds utilised by appellant – Whether appellant 'dishonest' – Whether had converted monies for own use and benefit – Whether had committed misappropriation – Whether had committed criminal breach of trust – Penal Code ss. 402A, 405 & 409

CRIMINAL LAW: Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Section 4(1) – Money laundering – Appellant Prime Minister and Minister of Finance – Appellant appointed Advisor Emeritus of Government-linked company with overarching authority over company – Company applied and granted RM4 billion loan from Retirement Fund (Incorporated) – Company transferring funds into appellant's personal bank accounts which appellant utilised – Whether appellant committed offences under s. 23(1) of Malaysian Anti-Corruption Commission Act 2009 and s. 409 of Penal Code – Whether funds received and spent proceeds of unlawful activity – Whether guilty of willful blindness – Whether had committed money laundering – Predicate offences under ss. 23(1) and 409 – Whether proven

CRIMINAL PROCEDURE: Sentence – Adequacy – Public officer – Prime Minister cum Minister of Finance – Convicted of offences of using position for gratification, criminal breach of trusts and money laundering – Fair and appropriate sentence

WORDS & PHRASES: 'Officer of a public body' – Section 23(1) Malaysian Anti-Corruption Commission Act 2009 – Prime Minister and Minister of Finance – Whether 'receiving remuneration from public funds' – Whether an officer of a public body

WORDS & PHRASES: 'And includes' – Section 402A Penal Code – Whether denoting three categories of company directors – Second category thereof – Whether denoting 'shadow director'

WORDS & PHRASES: 'Agent' – Section 402A Penal Code – Interpretation – Whether unnecessary for prosecution to prove agent-principal relationship once accused proven to be an agent within meaning of section – Whether to include 'shadow director' of company

WORDS & PHRASES: 'Entrustment' – Section 405 Penal Code – Whether need not be exclusive – Whether could be made jointly

WORDS & PHRASES: 'Dishonesty' – Dishonesty in relation to criminal misappropriation or criminal breach of trust – Import and purport – Intention to defraud or deceive – Whether immaterial – Whether only requiring an intention to cause wrongful loss or wrongly gain