Najib, Irwan get DNAA in RM6.6b IPIC CBT case

Former premier Najib Abdul Razak and former treasury secretary-general Mohd Irwan Serigar Abdullah were granted a discharge not amounting to an acquittal (DNAA) over six criminal breach of trust (CBT) charges involving RM6.6 billion.

The Kuala Lumpur High Court today allowed the defence teams' DNAA bid, following the prosecution's failure to hand over several classified documents crucial to the two accused to prepare their defence.

The criminal case has been longstanding since Najib and Irwan were first charged before the Kuala Lumpur Sessions Court on Oct 25, 2018. The case was later transferred to the High Court.

The CBT criminal case against Najib and Irwan is linked to alleged payments of RM6,636,065,000 government funds to the International Petroleum Investment Company (IPIC).

During open-court proceedings this morning, judge Muhammad Jamil Hussin pointed out that the prosecution failed to abide by the requirements of Section 51A of the Criminal Procedure Code (CPC).

The “disclosure” provision requires the prosecution to reveal information and disclose documents that it intends to produce in the case against an accused person, before the commencement of a trial.

"I use the (court's) inherent power to grant DNAA to both accused due to the prosecution not complying with Section 51A of the CPC.

"The DNAA does not prejudice the prosecution as the two accused can still be recharged (in future if the prosecution wishes to do so).

"The case was registered in 2018 and yet the trial could not commence and in spite of many rescheduling of trial dates, the prosecution still not abide by Section 51A of the CPC," Jamil ruled.

Power to grant DNAA

Earlier during today's proceedings, Najib's counsel Muhammad Shafee Abdullah argued the case should be granted DNAA because the prosecution's conduct amounted to an abuse of process and oppressed the accused.

Irwan's counsel K Kumaraendran adopted Shafee's arguments, pointing out that the case hung over the accused's head over the past six years.

In response, deputy public prosecutor Muhammad Saifuddin Hashim Musaimi responded that the attorney-general is empowered by Article 145 of the Federal Constitution to initiate or discontinue criminal court proceedings.

The prosecutor pointed out that they have already handed over some declassified documents to the defence teams.

However, the prosecutor left it to the trial court to decide on the defence's DNAA bid.

DNAA is governed by Section 254 of the Criminal Procedure Code, which expressly states that a criminal court can grant DNAA if prosecutors inform the judge they decline to prosecute further.

The two accused's lawyers argued that case law empowers the criminal court to use its inherent power to grant a DNAA even if prosecutors do not expressly make such an application.

Today's ruling is over Najib and Irwan’s third attempt for DNAA. The first attempt was in March 2022 and the second was in July this year. The court rejected the earlier attempts.

The documents yet to be declassified from the Official Secrets Act 1972 are from three ministries, namely the Economy Ministry, the Natural Resources and Environmental Sustainability Ministry, and the Transport Ministry.

On Oct 25, 2018, before the Sessions Court, Najib and Irwan pleaded not guilty to the six CBT counts.

The charges

Najib and Irwan allegedly committed all the offences at the Finance Ministry Complex in Putrajaya between Dec 21, 2016, and Dec 18, 2017.

They were charged under Section 409 of the Penal Code, read together with Section 34 of the same code, which carries a maximum jail term of 20 years, caning, and a fine.

However, since the duo are above 50, they would be spared caning if convicted.

On the first count, Najib, 71, and Irwan, 67, were jointly charged - in their capacity as finance minister and treasury secretary-general entrusted with RM1.2 billion belonging to the government - with committing CBT.

For the second count, they were jointly charged - in the same capacity - with committing CBT of RM655 million belonging to the government.

On the third charge, they were jointly accused - in their capacity as public servants and holding the same positions - of committing CBT of RM220 million belonging to the government in Federal Consolidated Fund under “Belanja Mengurus di Bawah Maksud B11 Perkhidmatan Am Perbendaharaan, Aktiviti 021700 KL International Airport Berhad” that were entrusted to them.

The duo was also jointly charged with CBT of RM1.3 billion, which was entrusted to them by the Federal Consolidated Fund under “Maksud B11 Perkhidmatan Am Perbendaharaan, Aktiviti 020500 Subsidi Dan Bantuan Tunai”, belonging to the government.

On the fifth and sixth counts, they were jointly charged with committing CBT of CN¥1,950,000,000 (RM1,261,065,000) and RM2 billion, respectively, that belonged to the government.

Najib is serving a six-year jail sentence over a separate abuse of power case involving RM42 million of funds from SRC International, a former subsidiary of troubled Malaysian sovereign wealth fund 1MDB.

The former finance minister is also facing ongoing criminal trials in the RM2.27 billion 1MDB abuse of power case and the RM27 million SRC money laundering case.

Previously, Najib incidentally was acquitted in another criminal case involving 1MDB's audit report case.

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