Najib walks free if court gives him benefit of the doubt on RM42m ‘SRC’ case

No matter what happens in the High Court, the RM42m “SRC” case will move to the Court of Appeal, and finally the Federal Court.

The High Court and/or the Court of Appeal, the Federal Court, might find that it would be unsafe to convict Najib.

The issue is whether there was criminal wrongdoing.

Ignorance is no excuse in law.

Anyone can draft any agreement. The issue is whether it will stand up in court. There’s no such thing as watertight.

When you plug a loophole, two new loopholes will open up.

In fact, law is all about loopholes.

The court is not the place for grandmother’s stories. The court knows what to disregard.

Talking a lot in court does not help. In fact, it might be counter-productive.

The court will not hold it against you if you talk less. In fact, it might even be helpful.

The court is not about ethics, moral values, theology, sin, God, justice or the truth.

The court is only about law.

We go to court to get justice. The court decides on the basis of law.

We are dragged to justice i.e. taken to court.

It’s law that decides.

The test of the burden of proof in criminal cases is “beyond reasonable doubt”.

This is a very high threshold. 95 per cent.

The test of the burden of proof in civil cases is “balance of probabilities”.

The threshold here is low. 51/49.

The civil test can be used in criminal cases if the accused refuses to be cross examined and makes a statement from the dock. This happened in Sodomy II.

A case is about Opinions that can stand up in court, the issues in conflict, the facts, the law applicable, and who the judge believes.

Ultimately, it’s the parties in conflict that decide on the fate of a case. The judge merely declares on the basis of submissions from both sides.

Mangsa scam ini bukan hilang duit, tapi dapat duit RM42m dan belanja semua.

The fact that Najib did not offer to return the RM42m can be held against him.

He can’t claim to have been scammed when he ended up with RM42m in his account and spent it.

Defence lawyer Shafee Abdullah stupidly admitted that it would be difficult to prove that Najib was scammed. He was like a drowning man clutching at straws.

Shafee blamed Jho Low, the AmBank staff and the SRC CEO. Jho Low was one of those reportedly tasked with banking in political donations into Najib’s account. The then PM didn’t bother with the details.

The court will disregard irrelevant material.

Jho Low, a female AmBank staff and the SRC CEO are not on trial.

The court will probably say the RM42m cannot be linked with the RM4b loaned to SRC by KWAP.

The RM42m was transferred long after the RM4b loan.

The bank did not ask Najib for the source of the RM42m. If it had, and he had failed to answer and/or not given a satisfactory answer, he could have been charged on the matter. Of course, the bank was in a difficult position since Najib was then Prime Minister.

The key ingredients of the charges against him are abuse of power, conflict of interest and criminal breach of trust.

The court might say that Najib should be given the benefit of the doubt if he believed that funds in his accounts came from political donations.

Najib probably did not know how much was in his account.

How many people know how much they have in their bank account?

Previously, any donation over RM1K had to reported to the IRD.

Now, any donation over RM5K has to be reported to the IRD.

That was not the issue in court.

In Australia, not so long ago, a bank credited A$4.5m into a Malaysian student’s account by mistake.

By the time the bank discovered the mistake, she had withdrawn the money and spent it.

The bank took her to court and lost.

The court said that she had the right to spend money in her account.

The student thought her parents had banked in the A$4.5m. The court did not have to go into this claim.

The issue was the bank wanted the money returned and accused the student of theft and fraud. The court dismissed the allegations. In any case, the bank could not prove the allegations.

Probably, there was an appeal in the Australian case.

Read further here . . .

The fact that Najib did not offer to return the RM42m can be held against him.

The trial Judge is scheduled to deliver his verdict on July 28.

Although a prima facie finding normally ends in a guilty verdict, there have been occasions when it ends in an acquittal – when the defence team (after presenting its case) succeeds in raising reasonable doubts in the mind of the trial Judge.

It happened before to Datuk Seri Anwar Ibrahim, in his Sodomy II case. On 15 May 2011, the trial Judge held that a prima facie case had been proven and called Anwar to enter his defence.

However, on January 9, 2012, he found Anwar not guilty, acquitted and discharged him. When the prosecution appealed, in 2014 the Court of Appeal found him guilty.

On further appeal to the Federal Court, the conviction was upheld. The rest is history.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

2 thoughts on “Najib walks free if court gives him benefit of the doubt on RM42m ‘SRC’ case”


    Nowadays, I am reluctant to read The Sarawak Report. It’s misleading readers.

    The Sarawak Report has become just a bit of truth mixed with a lot of bullshit.

    They should stick to investigative journalism and uncover scandals.

    If not for me, Rewcastle would have lost the case brought by Hadi against The Sarawak Report.

    There’s no way she can prove that Hadi received RM90m from Najib.

    I advised Rewcastle to summon Hadi to the witness stand and cross examine him on his statement in Malaysia that “corruption is not a sin in Islam”.

    Hadi immediately conceded, withdrew the case, and paid compensation.

    Only one charge is necessary to send a person to jail.

    If there are 40 over charges, all dropped before, it shows they are weak.

    It’s important not to talk too much in court although it knows what to disregard.

    The court will not penalise a person for talking as little as possible.

    The prosecutor talked too much in court.

    The court is not about the truth, but the law.

    The court is not about ethics, moral values, theology, sin, God, justice or the truth.

    The court is ONLY about law.

    Having said that, the 46 charges cannot stand up in court.

    There’s a very big difference between political donations and money laundering.

    No court will consider conspiracy theories.

    The law is an educational process, not for the accused or claimant, but the people.

    Laws are there not to be enforced but just in case they can be enforced.

    Those who lose in court have the right to know why they lost.

    The AG does not have to give any reasons if he or she varies a case, amends, withdraws or drops charges.

    Anyone can appeal twice from the court of first instance to the superior courts.

    The other side, or the AG, can likewise appeal.

    The superior courts will not re-hear a case.

    They will only look at errors in facts and errors in law.

    An appellant must first obtain leave to appeal before lodging the appeal.

    In practice, the leave application and the appeal are lodged at the same time.

    The letter of the law alone is not law.

    The rule of law is not only about the letter of the law but the spirit of the law too, with greater emphasis on the latter.

    Letter of the law alone is about rule BY law. It’s not law at all but dictatorship. There’s no democracy.

    Opinion is not law.

    Only the court can declare law.

    Law exists, and has always existed, based on common sense, universal values and the principles of natural justice.

    The Constitution is not law but as the ultimate political document, setting out the governing institutions of state, it has force of law and hence goes on to be the supreme law of the land.

    Adat, likewise, is not law.

    Adat, being based on customary practices, has force of law.

    There’s no need to incorporate Adat in an Act, Enactment or Ordinance or the Constitution to make it law. The Article in the Constitution on law must be read within its proper context.

    The Malaysia Agreement 1963 (MA63) is not law but as the ultimate political document, providing the basis for Sabah and Sarawak to be in Malaysia in Equal Partnership with Malaya, it has force of law.

    There’s case law that states that only those parts of MA63 incorporated in the Federal Constitution is law. The Federal Constitution referred to the Article in the document on law.

    The case law is an error in law. There’s no need to incorporate MA63 in the Constitution.

    MA63 exists whether incorporated in the Constitution or otherwise.

    Some things are beyond the Constitution, the law and the court.

    No court, for example, will go against a head of state — Agong, sultans, Governors — if he does not remain above the fray.

    A head of state can be forced to step down and brought to the Special Court but not for not remaining above the fray.

    Liked by 1 person

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