PROSECUTING CORRUPTION AND MONEY-LAUNDERING: THE
NAJIB RAZAK EXPERIENCE
Izzat Fauzan*

I. BACKGROUND
Although the investigation into the matter began as early as 2015, only on 4 July 2018 wasformer prime minister of Malaysia Dato’ Seri Mohd Najib bin Hj Abdul Razak charged with two(2) sets of offences, the first being a charge for using his office for gratification under theMalaysian Anti-Corruption Commission Act, the second being three (3) charges for criminal
breach of trust under the Penal Code. On the 7 August 2018, three (3) charges for receiving
proceeds of unlawful activities were brought against him under the Anti-Money-Laundering Act.
Trial commenced on 3 April 2019, and the former prime minister was called to enter his defence
on 11 November 2019 on all seven charges.
II. THE MALAYSIAN ANTI-MONEY-LAUNDERING ACTThe Malaysian Anti-Money-Laundering Act1 (“AMLA”) provides a very wide definition ofwhat constitutes money-laundering under Malaysian law. Section 4 of AMLA makes it an offence
if someone, in relation to proceeds of an unlawful activity or instrumentalities of an offence,
engages in a transaction, 2 or, acquires, receives, possesses, disguises, transfers, converts,exchanges, carries, disposes or uses3 said proceeds, or, removes from or brings into Malaysia4 said
proceeds, or, conceals disguises or impedes the true nature origin location, movement, disposition,title of, rights with respect to, or ownership of said proceeds.5
The law allows for the court to draw an inference from any objective factual circumstancesthat a person knows, has reason to believe or has reasonable suspicion that the property is theproceeds of unlawful activities,6 or without reasonable excuse fails to take reasonable steps toascertain whether or not the property is the proceeds of an unlawful activity or an instrumentalityof an offence.7

Deputy Public Prosecutor, Special Litigation Unit, Attorney General’s Chambers, Malaysia. The following is adiscussion on the events that transpired up to the end of the Prosecution’s case and the findings of the High Court of
Malaya in Public Prosecutor v Dato’ Sri Mohd Najib bin Hj Abd Razak as of 11 November 2019.
1
Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2011 [Act 613].
2
Section 4(1)(a) AMLA.
3
Section 4(1)(b) AMLA.
4
Section 4(1)(c) AMLA.
5
Section 4(1)(d) AMLA.
6
Section 4(2)(a) AMLA.
7
Section 4(2)(b) AMLA.
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In proving the mens rea of an accused under AMLA, the Malaysian Court of Appeal ruled inAzmi Osman v PP and another appeal8 as follows:
The doctrine of willful blindness imputes knowledge to an accused person who has
his suspicion aroused to the point where he sees the need to inquire further, but hedeliberately chooses not to make those inquiries. Professor Glanville Williams has
succinctly described such a situation as follows: “He suspected the fact; he realised
its probability but he refrained from obtaining the final confirmation because hewanted in the event to be able to deny knowledge. This, and this alone is willfulblindness.” (Glanville Williams, Criminal Law 157, 2nd edn, 1961). Indeed, in thecontext of anti-money laundering regime, feigning blindness, deliberate ignorance
or willful ignorance is no longer bliss. It is no longer a viable option. It manifests
criminal intent.
The prosecution need not prove that the proceeds are from a specific unlawful activity in theevent that the proceeds are derived from one or more unlawful activities9 and that a person may becharged and convicted of an offence irrespective of whether there is a conviction in respect of aserious offence, or foreign serious offence or that prosecution has been initiated for the commissionof a serious offence or foreign serious offence.10
The above was affirmed by the Malaysian Court of Appeal in Aisyah Mohd Rose & Anor. v
PP which decided as follows: “… we acknowledge that pursuant to s. 4(2) of AMLATFA, theconviction for an offence under s. 4(1) can be sustained even without the conviction for a predicateoffence…”
11III. THE MALAYSIAN ANTI-CORRUPTION COMMISSION ACT
In relation to the Malaysian Anti-Corruption Commission Act12 (‘MACCA’) offence of using
office for gratification, the law provides that the prosecution needs to show that the accused is anofficer of a public body, and that he had used his position to obtain gratification, whether forhimself, or his relative or associate. What the prosecution needs to prove is that the person charged
was an officer of a public body13 and had abused his position for gratification, whether for himself
or another person who is his relative or associate. In the absence of direct evidence to show thatthe position or office was abused by the accused, the law presumes that there was such an abuse
when the accused makes a decision or takes any action in relation to a matter either the accused or
his relative had an interest in.14 In relation to the gratification received, the law presumes that inthe event that it was proven that gratification has been received, accepted, obtained, solicited, given,promised, offered, or any agreement or attempt to do any of the aforementioned, it was presumed
to have been done corruptly.15[2015] 9 CLJ 845.
Section 4(3) AMLA.
10
Section 4(4) AMLA.
11[2016] 1 CLJ 529.
12
Malaysian Anti-Corruption Commission Act 2009 [Act 694].
13
Section 3, MACCA.
14
Section 23(2), MACCA.
15
Section 50, MACCA.
89- 70 -IV. CHALLENGES FACED
The prosecution was unable to call Nik Faisal Ariff Kamil (‘Nik Faisal’) and Low Taek Jho(“Jho Low”) as witnesses. They both remain wanted by the Malaysian authorities. Nik Faisal wore
several hats in the SRC incident. He was appointed as the CEO and a director of SRC International
Sdn. Bhd. (“SRC International”), and he was also made to be the “Authorized Personnel” to deal
with the personal bank accounts of the former prime minister. Jho Low, however, held no official
position in SRC International or any of the other companies involved. However, he was painted tobe the invisible hand behind the entire scheme.
As the prosecution was unable call Nik Faisal and Jho Low as witnesses, the prosecution had
no choice but to rely on contemporaneous documentary evidence. The documents seized by theauthorities, however, were both voluminous and a mixed bag of original documents and copies ofdocuments, which fell short of the primary evidence rule. In dealing with this, the MACCA andAMLA provides that documents, including copies of documents obtained by the investigating
authority, are admissible in evidence in any proceeding.
Section 41A of the MACCA provides:
Where any document or a copy of any document is obtained by the Commission under thisAct, such document shall be admissible in evidence in any proceedings under this Act,notwithstanding anything to the contrary in any other written law.
Section 71 of AMLA provides:
Where the Public Prosecutor or any enforcement agency has obtained any
document or other evidence in exercise of his powers under this Act or by virtue of
this Act, such document or copy of the document or other evidence, as the casemay be, shall be admissible in evidence in any proceedings under this Act,notwithstanding anything to the contrary in any written law.
It was the contention of the accused that the bulk of the documents adduced by the prosecution
were not admissible by virtue of the fact that the documents produced were not primary evidence,
the requirements of admitting secondary evidence were not met, the makers of the documents were
not called, there was no proof of the execution on the documents produced and that section 41Aof the MACCA was not applicable as it does not apply retrospectively as it only came into forcein October 2018.
The prosecution contended that the documents produced are admissible, as the accused was inessence, merely challenging the irregularity and inadequacy of the method of production of the
documents, and that such challenges should be raised at the earliest possible moment and failure
to do so would amount to a waiver of the right to object to, and admission of, the documents.
Further to the above, it was also submitted that the documents were admissible by virtue of the
non-obstante clauses in both the AMLA and MACCA, i.e. sections 41A of the MACCA and 71 ofAMLA, respectively.

- 71 -V. FINDINGS OF THE HIGH COURTThe High Court ruled that the prosecution had proven a prima facie case and that the former
Prime Minister was called upon to enter his defence. In relation to the argument concerning thedocuments and the applicability of section 41A of MACCA and section 71 of AMLA, no oral
pronouncement of the ruling was made in open court. However, the Court relied on the contested
documents indicating that it was accepted to form part of the evidence admitted before the court.

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