I’m not sure which AG Tommy Thomas is worse at — twisting on the dance floor or in court.
Let’s together try to make sense of all the facts that we have been getting from the press and other media sources. There are two ways of interpreting the facts: One is the PH mahacai method (targeted at an audience possessing an IQ below room temperature) and the other is known as logical reasoning.
Tommy’s prosecution team has so far done a great job in making Najib Razak look innocent.
Before we delve into the charges, let’s not forget the previous AG’s (Tan Sri Apandi) explanation in a press release on 26/1/2016 as to why Najib was not charged back then.
B. SRC INTERNATIONAL
With regards to the two investigation papers on SRC International, I am satisfied that no criminal offence has been committed based on the following reasons:
7.1 Under the MACC Act 2009
a. There are no evidence to show that YAB PM has abused his position during the Cabinet Meeting which approved the government guarantee on the RM4 billion loan to SRC International from Kumpulan Wang Persaraan (Diperbadankan) (KWAP);
b. Evidence also show that the loan approval process by KWAP and the loan guarantee approval by the Cabinet were properly done;
c. There are no evidence to show that YAB PM had solicited or was promised any gratification from any party either before, during or after the Cabinet decision was made;
d. The evidence as a whole does not disclose any conflict of interest on the part of YAB PM; and
e. MACC itself admitted that based on their investigation, there are no evidence from the witnesses that could show that YAB PM had committed any act of corrupt practice.
7.2 Under the Penal Code
a. There are no evidence to show that YAB PM had any knowledge and/or was informed that monies had been transferred into his personal accounts from the account of SRC International;
b. There are no evidence to show that YAB PM had given any approval for the transfer of monies from the account of SRC International into his personal accounts; and
c. Evidence show that at all material times, YAB PM was of the belief that all payments which were made by him were made from the donation received from the Saudi royal family which was earlier transferred to his personal accounts.
Based on the facts and evidence as a whole, I, as the Public Prosecutor, am satisfied that no criminal offence has been committed by YAB PM in relation to the three investigation papers.
You can download the full press statement here.
Tommy has conveniently totally ignored the previous AG’s statement above. Has Tommy’s prosecution team shown any evidence to prove otherwise any of the above? No, not a single shred of evidence. Tommy (or any pro-PH lawyer) should at least point out why he disputes any of the above — and back it up with facts — so that we know if Apandi was dishonest and had hidden evidence.
It’s logical that Najib didn’t know about the RM42 million
Now let’s also use some common sense to show that it is logical that Najib believed he was using money only from the donations. As has been established in court, Najib received USD681 million (RM2.6 billion) and returned USD620 million.
An amount totalling US$681 million was allegedly deposited into Najib’s accounts, and sometime later as seen from the bank documents, US$620 million was remitted back on instructions by the former premier, following a letter of authorisation issued, to which Uma Devi [Ambank manager, key prosecution witness] agreed.
What does this mean? Remember I said to use common sense. You don’t need to be lawyer.
What the return-to-sender of US$620 million (RM2.034 billion) means is that Najib never needed the RM42 million. And had he known that the RM42 million had gone into the account he would simply have returned RM1.992 billion (US$620 million or RM2.034 billion less RM42 million) to the donor. Common sense lah dey.
That’s one logical explanation. Another reason that Najib did not know about the RM42 million going into the account is that other people were tasked to operate and manage the account:
— Nik Faisal Ariff Kamil as an authorised personnel to manage all five of his AmBank bank accounts
— “In the June 2013 letter, Nik Faisal was authorised to make inquiries on the accounts’ status and details, including balance and confirming cheque amounts above RM250,000 on top of taking possession of the cheque books and account statements,” she said.
— Uma Devi also confirmed that Nik Faisal had himself sent a letter of instruction on July 31, 2013 to the bank, instructing that all bank account statements, correspondence and cheque books for Najib’s accounts be channelled under his care.
— The letter by Nik Faisal also authorised three individuals including two AmBank relationship managers Joanna Yu and Daniel Lee to take possession of these documents to be handed over to him.
Unless you’re a PH mahacai in denial with an illogical mind, it makes perfect sense doesn’t it?
Ambiguous and vague charges
PH mahacais claim that Najib is trying to delay the trial but the fact is that any delay is due to the incompetence or dirty tactics of the Prosecution. It appears that the AGC put together their case in a hurry and were ill-prepared — or because they deliberately withheld key evidence from the Defence. Tommy is under immense pressure to prosecute Najib one way or the other, even if the charges appear vague and nonsensical.
What matters first to Tommy is that Malaysians and the rest of the world sees that Najib is charged in court so that the PH government are not accused of being liars. Despite that, the PH government and leaders are still being called liars and hypocrites for not only the Najib trial turning into a fiasco but also for various other reasons (which I may blog about another time).
Najib’s lawyers of course asked the court to dismiss such ambiguous and vague charges
— Yusof [Najib’s lawyer] said the CBT charges against Najib did not specify how the offence was allegedly committed, noting that there were five possible ways under Section 405 of the Penal Code including dishonestly misappropriating, converting for own use, or dishonest use of a property.
— Yusof also argued that the CBT charges were not specific, saying that Najib must know if he was accused of committing the offences as an agent in his combined roles of prime minister, finance minister and SRC International advisor emeritus or as a result of each position separately.
— Najib’s lawyers argue that the prosecution would not be prejudiced if the court allows the challenge, as the prosecution is free to amend the charges or file fresh charges against Najib.
In layman terms, what this means is that Najib is obviously not afraid to face charges but the Prosecution must (have the balls to) make them specific e.g. that money was stolen from SRC, that he knew SRC’s money had gone into the account and yet spent it or he bought many pink diamonds with SRC’s money or the money went into his own pocket (and still not enough to be as rich as Mokhzani Mahathir and Mukhriz Mahathir).
The reason they could not be specific is because they don’t have evidence to prove Najib stole money or spent it on himself. So they have to prove other irrelevant things. For example, the Prosecution managed to prove in court that KWAP transferred RM4 billion to SRC and it made the headlines everywhere.
Well, you see, genius, that’s what usually happens when an institution lends money to a company. When you lend money to someone, you have to transfer the money to him. Otherwise the loan wouldn’t exist. KWAP gave a loan of RM4 billion to SRC (guaranteed by the government) so RM4 billion was transferred from KWAP to SRC. The loan is recorded in KWAP’s audited accounts.
And so that proves Najib stole RM42 million from SRC ya? Well done, Einstein. Give yourself a big pat on the back.
Benda boleh dakwa bawah AMLA buat apa buktikan Najib curi duit SRC
That’s why the Prosecution took the vague (read: cowardly) route, using AMLA to merely claim that money went into Najib’s account without showing us any evidence that Najib committed a crime. If they were more specific in accusing what Najib did, the Defence will easily be able to shoot down those charges. The trial would have been a non-starter, the prosecution would be embarrassed and Tommy Thomas would be looking for a dark hole to crawl back into.
The Judge was ambiguous in saying the charges were not ambiguous
The judge (Justice Mohd Nazlan, who took over the case when Justice Mohd Sofian was asked to recuse himself) dismissed the application without giving useful details for the layman to understand. The judge regurgitated the law and merely stated his position without addressing the specific points raised by the Defence.
“The money laundering, CBT and abuse of power are distinct offences and there is no duplicity. The charges also comply with Section 165 of the Criminal Procedure Code. There is no legal impairment in the charges and in the end it is the duty of the prosecution to present the charges and the court would evaluate it.”
The judge did not explain in what way the charges were specific and not ambiguous. We laymen see that the charges are not specific but the judge says they are technically in legal compliance therefore “there is no legal impairment”. That’s the judge’s prerogative but it doesn’t help people perceiving that he’s afraid to lose a promotion or his job after Mahathir had it made it clear that Najib’s trials are not to be delayed. (Lim Guan Eng had his charges dropped despite substantive evidence he was guilty as charged). Najib’s lawyers said they would be appealing the decision.
Nonetheless it’s strange that the Prosecution are afraid to agree because it merely means that they have to amend or file fresh charges — come back with specific charges instead of wishy washy ones. Why is Tommy so terrified of making the charges specific? Because it would make the chances of Tommy winning in court as good as Tommy winning a dancing competition.
Given the lack of clarity of the charges, this means that the Defence will just have to extract the details out of witnesses during cross-examination to prove specifically what-is and what-is-not from the Defence’s perspective — and then see if that is what the Prosecution meant to prove or disprove.
This may somewhat be a blessing in disguise because we will then get to see the Prosecution make a laughing stock of themselves again when more truthful details are revealed in court to add to the ones that have been making Najib look good. We can expect Tommy to keep objecting to the Defence’s line of questioning and request for information that would expose more holes in the twisted charges.
The Magnificent 7 Charges
The charges mentioned in Tommy’s ‘political’ opening statement were as follows:
a. One (1) charge under Section 23 of the MACC Act 2009 for abuse of position;
b. Three (3) charges under Section 409 of the Penal Code for criminal breach of trust;
c. Three (3) charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering.
Let’s look at it from a layman’s eyes.
a. One (1) charge under Section 23 of the MACC Act 2009 for abuse of position;
Tommy said that Najib used his office and/or position to obtain for himself a gratification of RM42 million. In other words, Tommy is claiming that Najib stole RM42 million or knowingly took money from SRC. And Tommy further claims that this was done by virtue of Najib being involved in the government decision to guarantee KWAP’s RM4 billion loan to SRC, which is where the RM42 million originated from.
(Note: Najib never denied that SRC’s money went into the account but that he didn’t know. Nor did Najib deny that RM2.6 billion went into his account but he denied that 1MDB’s money went into the account. PH mahacais like to claim that Najib denied any money going into his account).
But wait a minute. SRC is 100% owned by the government owned therefore why is it criminal for the government to guarantee a loan taken by SRC whether from KWAP, a bank or any lending institution? KWAP is not a crony nor related in any way at all to Najib. Further, as stated by the previous AG, “Evidence also show that the loan approval process by KWAP and the loan guarantee approval by the Cabinet were properly done”.
If it’s not criminal and does not benefit Najib, then the question of abuse of power does not arise. In fact, the previous AG had already stated, “There are no evidence to show that YAB PM has abused his position during the Cabinet Meeting which approved the government guarantee on the RM4 billion loan to SRC International from Kumpulan Wang Persaraan (Diperbadankan) (KWAP)”. How can there be abuse of power when it obtained cabinet approval?
I might be getting ahead of myself but it also makes us wonder if this is the reason the government did not guarantee the Sukuk proposed to be issued by the SPV to Tabung Haji (in having bought over TH’s assets for RM19.9 billion although the book value was only about RM10 billion by the time the assets were transferred to the SPV). If the PH government had guaranteed the Sukuk, nobody would accuse Tun Mahathir of abusing his power but at the same that would also apply to Najib as to the government’s guarantee on KWAP’s loan to SRC. Nampak?
b. Three (3) charges under Section 409 of the Penal Code for criminal breach of trust;
Tommy claimed that Najib committed CBT in respect of the RM42 million (which was the amount approved to fund CSR programmes) but these are stated as 3 charges because they comprised 3 payments of RM27 million, RM5 million and RM10 million. If the RM42 million was transferred one lump sum it would be only one charge but because it was split into three payments, it’s three charges. If payments were split into 100 payments then Najib would be facing 100 charges. So, don’t think that Tommy the Twister did such a great job coming up with 3 flimsy charges.
c. Three (3) charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering
Again, it’s the same 3 transactions (RM27m + RM5m + RM10m = RM42m) but Tommy wants to try his luck framing the charges under a different section of the law.
So, as you can see, the 1 + 3 + 3 = 7 charges are all the same thing but Tommy has to throw as much mud as possible at the wall — using three different sections of the law — hoping at least one will stick, as well as to give the false perception that with so many charges, people will perceive Najib must be guilty.
But the crux of the matter is, did Najib ask for the RM42 million to be paid into his account? No. Did he know that RM42 million was transferred to the account? No.
The only way for the Prosecution to prove that Najib knew is to produce written and oral communication (voice recording) between the bank and/or the authorised personnel handling the account and Najib.
Ad-hoc prosecutor Datuk V. Sithambaram accused the defence team of going on a “fishing expedition” to seek for documents that the prosecution was not relying on in the trial, arguing that Najib’s lawyers should first show the relevance of the items sought.
“We are saying these are documents we are not relying on, but they show how it is relevant, we will show it to them. We want to follow the correct procedure,” he said, suggesting it would “open the floodgates” where every prosecution witness may similarly be asked to bring in additional documents.
Of course lah the prosecutor would not rely on those records for their argument. Why not? Because they are prosecuting therefore relying on those documents (which would not make Najib look like a crook) would cause their case to self-destruct. So that was a pretty stupid reason given by Captain Obvious.
And further claiming it would ‘open the floodgates’ to more documents being requested from every witness merely indicates desperation on the Prosecution’s part to not let the Defence get hold of evidence that may clear Najib.
When met outside the courtroom, Shafee explained why Najib’s lawyers had sought to seek the seized items from Ambank officer Yu that are currently in Ahmad Farhan’s care.
Shafee claimed that Najib does not personally deal with his own accounts and delegates the task to others, further asserting that Najib was an alleged victim rather than part of a purported conspiracy by Low.
“We hope to prove that there are no instructions from the PM (Najib). Never. A lot of instructions came from those people who claimed to be nominees,” Shafee claimed.
“The communication will show whether Najib is complicit in the criminality or not, or is he a victim rather than a perpetrator,” he added.
Defence lawyer Shafee explained why he asked for those records:
“This case is very interesting. It is going to expose a lot of people. “And this is going to be almost like a movie, because the person you suspected the most turns out, I think in the end, to be a victim,” Muhammad Shafee Abdullah said.
He was speaking to reporters when met at the Kuala Lumpur Courts Complex after the ninth day of the trial this evening. Shafee made the remarks after claiming there is evidence that Najib did not issue banking instructions as claimed, and was even unaware of them due to manipulation.
This included emails that would allegedly demonstrate an attempt to block Najib’s bank statements from reaching his office and residence.
“That will come up in the emails. Because between (then Ambank relationship manager) Joanna Yu and somebody else, there are emails that say, ‘Do not show this to the Prime Minister’s Office’. “And (when) Joanna said ‘Can we send to 11 Langgak Duta (address of Najib’s residence)’, somebody said, ‘No no no no, super sensitive, do not send’,” he said.
The prosecution has not been able to prove that Najib personally deals with his own accounts, which is why the prosecution has not tried to argue their case from that angle. On the other hand if the records show that Najib was not involved in the communication authorising or confirming the RM42 million to be transferred into the account then the case gets thrown out the window.
Bank Negara knew about the donation
AmBank knew that donations went into the account. The prosecution witness also admitted Bank Negara Malaysia (BNM) knew that donations went into the account. That’s no surprise although brainless mahacais had always been barking that Najib did not inform BNM. What should be a surprise is if Zeti (BNM governor at that time) did not know. If Zeti truly didn’t know about USD680 million going into the account (which we find difficult to believe) then why expect Najib to have known about only RM42 million going into his account? On the other hand, if Zeti did know, why didn’t she speak up and instead let Najib be thrown under the bus? Zeti was later appointed as a member of Mahathir’s Council of Eminent Persons (CEP) and chairman of PNB.
After PH took over the government, it is common sense to assume that Tommy Thomas would also have known that BNM knew and yet he suppressed this fact from the public and the court. Although most of us with common sense knew BNM (and Zeti) must have known, it was only under cross-examination that the Defence lawyer extracted that confession out of the prosecution’s witness.
This caused Tommy Thomas to go into a panic. That’s why after having accused Najib of trying to delay the trial, the AG himself asked for the 1MDB trial to be postponed. He knew this ride is going to take longer than he had planned. Tommy needs more time to think of a way to counter the unexpected confession by the prosecution witness. Yes, it was the key prosecution witness, not the defence witness. Die lah like that.
Why is the confession relevant? Because the AGC won’t be able to prove that payments made from the AmBank account were from SRC rather than from donations, which was the whole purpose of the account being opened.
“Cross examined by Najib’s lawyer, Harvinderjit Singh, Uma Devi agreed that AmBank was made aware the RM2.6 billion was a donation, from one Prince Faisal bin Turki, and Blackstone Asia Real Estate Partners.”
Secondly, the Prosecution are also going to have to prove that the money was not donations but stolen from 1MDB, which they will never be able to do. Of course PH mahacais will insist that the burden of proof lies with Najib, which simply means that they too know that Tommy is running on empty.
Talk at the courts is the 11-member AGC team on the SRC case is facing a snag. Tommy Thomas was angered by the new revelations by defense that he screamed “lazy bum!” at his legal team.
Tommy’s unbecoming behaviour is certainly no morale booster for his team members, who are sick and tired with AGC being made used off to pander to Tun Dr Mahathir’s revenge and political witch hunting. His first case as prosecutor looks likely to end up as a loss. The case will fall apart the moment Shafee and his team start attacking the issue of entrustment and dominion over the money.
Even those who are not legally trained can see that Tommy Thomas is a greenhorn in criminal prosecution. His opening statement at the trial was a load of waffle and more of, as defence lawyer Shafee said, a political speech. People like me may not be experts in the technicalities of the law but we see that the only thing standing between Twisty Tommy and his goal is bullshit.
Najib’s supporters have so far been a having a field day on Facebook exposing the holes and flaws in the prosecution’s case. Instead of being shown evidence of RM2.6 billion or RM42 million being stolen, the prosecution is unwittingly revealing to us Najib installed a water tank at his house, gave money to the needy, cared for tahfiz students, cared for the Chinese community, paid for political operations etc etc…
The public have been demanding for the trial to be broadcasted live but we can all see why the PH government are too terrified to allow it — sebab takut kantoi, kena maki dan dibodohkan berjemaah.