Dato'Sri Mohd Najib bin Hj Abd Razak v Pendakwa Raya (W-07-6-02/2019)

On 4.7.2018, the Applicant) was arraigned before the Kuala Lumpur Sessions Court (KLSC) on the following offences: a. A charge for an offence under section 23 of the Malaysian Anti-Corruption Commission Act (MACC Act) registered as WA-61R-10- 07/2018; and 3 | P a g e b. 3 Charges for offences under section 409 of the Penal Code registered as WA-61K-2-07/2018. [hereinafter collectively referred to as the “said two cases”]

The pleas were duly taken in the Sessions Court and the Applicant claimed trial to all the four charges aforementioned.

Thereafter, the prosecution issued two certificates dated 3.7.2018 under section 60 of the MACC Act for the said two cases to be transferred to the High Court (HC).

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After pleas were taken from the Applicant and upon application by the Applicant, granted an interim gag order prohibiting sub-judice publication. At the same time, the matter was set down on 8.8. 2018 for 4 | P a g e case management and also for hearing of the gap application by the Applicant.

On 8.8. 2018, the Applicant was produced before the Sessions Court and the prosecution preferred three additional charges under s.4 (1) (b) of the Anti-Money Laundering and Financing of Terrorism Act (AMLATFA) against him. It was registered as No.WA-61R-11-08/2018.

Thereafter, pursuant to the Certificate dated 7.8.2018 issued by the prosecution under s.418A of the Criminal Procedure Code (CPC) for the case to be transferred to the High Court, the Registry accordingly transferred the case No.WA-61R-11-08/2018 and registered it in the High Court [Criminal] No. 3 as case No. WA-45-5-08/2018 before Justice Mohd Nazlan bin Mohd Ghazali [“Justice Nazlan”].

Justice Nazlan, upon the pleas being duly taken and upon the application of the prosecution, ordered that the earlier two High Court cases and Case No.WA-45-5-08/2018 [hereinafter collectively referred to as the “said three High Court cases’] be jointly tried.

Further, Justice Nazlan, upon hearing the submissions of the parties, dismissed the gag application. Dissatisfied, the Applicant appealed against the said decision vide Court of Appeal Criminal Appeal No. W- 05-415-08/2018.

The three cases were scheduled to be heard on 12 February 2019.

Thereafter, the Applicant filed the following applications: 5 | P a g e a. On 2.10.2018, Notice of Motion for discovery of certain documents in the prosecution’s possession [“discovery application”]; and b. On 26.11.2018, Notice of Motion for production of appointment/authorization document relating to the appointment of Datuk Haji Sulaiman Abdullah’s appointment under section 379 Criminal Procedure Code [“the Fiat application”].

On 18.12.2018, the High Court heard both the discovery application and the Fiat application and dismissed them both.

Dissatisfied, the Applicant filed two notices of appeal both dated 21.12.2018 and appealed to the Court of Appeal vide Court of Appeal Criminal Appeals No. W-05-1-01/2019 and W-05-2-01/2019 respectively.

On 14.1.2019, the prosecution applied to the High Court for a mention date for the prosecution to amend the existing charges preferred against the Applicant.

The High Court fixed the mention on 28.1.2019.

On 15.1.2019, the Applicant through his solicitors wrote to the Court for an adjournment of the trial of the three High Court Cases on 12.12.2019 to be adjourned pending the appeals on the Applicant’s Sub-Judice application, discovery application and Fiat application [hereinafter collectively referred to as “the three appeals”].

On 22.1.2019, the Court rejected the adjournment application. 6 | P a g e

On 23.1.2019, the Court of Appeal fixed the hearing of the three appeals on 7.2.2019 and 8.2.2019. On the same day, the prosecution notified the High Court and the Applicant vide the letter dated 23.1. 2019 that the prosecution intended to frame additional charges against the Applicant on 28.1.2019, the date fixed for mention.

On 28.1.2019, three new charges under section 409 of the Penal Code and 4(1)(a) of AMLATFA were preferred against the Applicant in the High Court itself under the case No. WA-45-5-08/2018 as “Pertuduhan Keempat” “Pertuduhan Kelima” and “Pertuduhan keenam” respectively. At the same time, the three charges under section 409 of the Penal Code and the charges under section 4(1) of AMLATFA were amended. The Court directed service of further section 51A documents.

On 7.02.2019, the prosecution withdrew the three transfer certificates issued under s.418A of the CPC and s.60 of the MACC Act “out of abundance of caution” and to ‘avoid any possible argument in the future that the transfer of the case was a nullity’, in light of the decision in Semenyih Jaya Sdn Bhd V Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526 and Indira Gandhi Muthi v Pengarah Jabatan Agama Islam Perak [2018] 3 CLJ 145. The prosecution also applied for an order of DNAA in respect of the three new charges under section 4(1)(c) of AMLATFA to avoid troubling the court from deciding on the issue of the joinder of the trial applied by the prosecution.

Thereafter, the Public Prosecutor informed the Court that following the withdrawal of the transfer certificates, the three High Court cases would revert to the Sessions Court and he would cause an application to be made under section 417 Criminal Procedure Code to have the cases transferred 7 | P a g e to the same Judge in the High Court. However, the Public Prosecutor proceeded to invite the Judge to act suo motu as an alternative under section 417(2) of the Criminal Procedure Code as it was expedient for the ends of justice under section 417(1) (e) of the same Criminal Procedure Code. This was however, strenuously objected by the applicant’s counsel.

Despite the said objection and request by counsel for the Applicant for a full argument to be taken on 12.2.2019, the learned Judge proceeded to exercise his discretion under section 417(2) of the Criminal Procedure Code to order the transfer the three High Court cases from the Sessions Court to his Court under section 417(1)(e) being expedient for the ends of justice.

Dissatisfied, counsel for the Applicant informed the High Court of the Applicant’s intention to appeal and applied for stay of the proceeding for trial from 12.12.2019 to 29.3.2019. The prosecution objected. The learned Judge dismissed the stay application on the ground that “the mere prospect of the trial, if pursued, being rendered a nullity does not justify it being constructed as to form a special circumstances to warrant a stay of the proceedings.”

Aggrieved by the High Court’s orders, hence this application by the Applicant to stay proceedings. 8 | P a g e Court’s ruling

When hearing a stay application, we bear at the foremost of our mind that the Court ought not be concerned with the merits of the appeal. See-Jagdis Singh A/L Banta Singh v Putlet Rank (M) Sdn Bhd [2013] 4 MLJ 213. The Court should only hear the stay application and not the appeal. See - Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380. It is incumbent upon the Applicant to satisfy the Court that there exist a special circumstance warranting the grant of a stay of proceeding. See - Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004]

The crux of the Applicant’s contention is that unless stay is granted, there is a very real chance that the trial will become a nullity. It was submitted that after the prosecution had withdrawn the three transfer Certificates, the Learned High Court Judge should have sent the three High Court Cases back to the Sessions Court and to have them registered in the lower court registry; the High Court Judge should not have, at the suggestion of the prosecution, transferred the cases to his own court without going through the correct procedure.

Mr. Shafee, learned counsel for the Applicant, also contended that the provision in section 417 Criminal Procedure Code does not provide for withdrawal of the Certificate issued thereunder, thus the prosecution having filed the transfer Certificate thereunder has no power to withdraw the same. In so doing, the prosecution has usurped the power of the High Court. What the learned High Court Judge and the prosecution did was a nullity. 9 | P a g e

In response, the prosecution contended that the nugatoriness is in respect of the appeal and not pertaining to the trial itself. In the event the appeal is allowed the trial can be de novo and that is nothing unusual.

The Prosecution submitted that Kosma’s case is a civil case and in view that the three High Court cases are criminal cases, the stay should not be allowed.

Reliance is placed on Dato'’ Seri Anwar bin Ibrahim v Public Prosecutor [2011] 5 MLJ 535, in which, after the defence was called, the Appellant applied for stay citing Kosma’s case. The Court of Appeal held that seriousness of the offence is a relevant factor to grant the stay. It was submitted that the nature of the offences in the present case is serious and the applicant used to hold the highest office of the land.

Reliance is also placed on the Privy Council case of Christian and Others v R [2004] UKPC 52. In that case, there were a series of appeal, one trial had not yet begun and was expected to start within the next few days. The issue at hand was of constitutional importance. Their Lordships considered that the balance of advantage is that the proceedings should not be stayed. It would not be satisfactory for trials of this importance to be interrupted, given the stage the matters have now reached. The interest of justice are best served by allowing the members of the Supreme Court to consider the evidence while it is still fresh in their minds, to proceed to a verdict in each case, and, if conviction follow and the court proceeded to sentence, to decide what sentences should be imposed. 10 | P a g e

It was submitted that the three High Court cases are going to start the next day; the trial must proceed, nugatoriness does not apply. If finally the Federal Court decides that the trial is a nullity, there will be a re-hearing.

It was further submitted that delay tactics is also a relevant factor to consider in a stay application. In this case, the Applicant had tried every opportunity to delay the trial via the three applications and the three appeals but has not been successful.

It was submitted that Sharma J. [as he then was] in Public Prosecutor v Tangaah [1972] 1 MLJ 207 [referred to in Ch’ng Poh @ Ch’ng Chong Poh Lawan Pendakwa Raya [2016] 1 LNS 1750] emphasized that the policy of the law that criminal cases should be disposed of with the least possible delay.

We have considered the AG’s submission that the offences preferred against the Applicant is serious in nature and that they were allegedly committed in the Applicant’s capacity as the former prime minister and finance minister of Malaysia; that it is a case of national, international and public interest. Thus, it is desirous that the trial of the case should commence on the date as scheduled.

However, we are satisfied that the Applicant has shown that there are special circumstances warranting a stay of the proceeding of the trial.

In the case of Rowstead Systems Sdn Bhd v. Bumicrystal Technology

(M) Sdn Bhd [2005] 2 CLJ 471, the Court of Appeal in allowing the stay of proceeding application opined that it is more expedient to grant stay if refusal thereof would render the proceeding a nullity in the event the 11 | P a g e appeal is allowed and this would result in a waste of time and effort by all persons involved.

Based on this authority, we opined that nullity of trial is a special species of special circumstance.

It is our unanimous view that if the stay is not granted in this case and the trial is allowed to proceed on the scheduled date, in the event the Court of Appeal allows the Applicant’s appeal, it would render the proceeding of the trial a nullity and that would result in a waste of time and energy of all parties and a waste of public money.

We do not find any evidence of delay tactics on the part of the Applicant.

Upon being satisfied that there is a special circumstance to warrant a stay, it is inevitable that we allow the motion as prayed for. Dated: 4 March 2019 Sgd YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For the Applicant: Tan Sri Mohd Shafee with eight others (Messrs Shafee & Co.) For the Respondent: Tommy Thomas (Attorney General) with four others 12 | P a g e (Attorney General’s Chambers)