PUTRAJAYA: The acquittal of former prime minister Datuk Seri Najib Razak and 1MDB former CEO Arul Kanda Kandasamy for the alleged tampering of the auditor-general’s audit report on 1MDB will remain as the prosecution failed to meet the deadline to continue the appeal against the duo’s acquittal.
The Court of Appeal said the decision to stike out the appeal was made since the prosecution did not file the required papers within the deadline to continue the trial and also due to its failure to file an application to extend the deadline, which was on July 6, 2023.
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As such, both Najib and Arul will remain free from charges over the alleged tampering of the auditor-general’s audit report on 1MDB.
A three-member Court of Appeal bench, chaired by Judge Hadhariah Syed Ismail, unanimously made the decision on Tuesday (Sept 12).
The other judges on the panel were Justices Ahmad Zaidi Ibrahim and Azmi Ariffin.
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Justice Hadhariah said the prosecution team had ample time to file for an extension of time on at least three occasions but failed to do so up until today.
“Based on the chronology of the case, there were three case management sessions conducted on July 31, Aug 28 and Aug 30.
“At all three times, the prosecution was instructed to file the petition but failed to follow the court’s order.
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“According to the law, if the petition fails to be filed within the stipulated time and there is no request filed to extend the time, then the appeal is considered as lapsed and withdrawn.
“Until today, on Sept 12, which is already over two months late, there is no petition filed and so we have made the decision to strike out this case. We follow the law, okay?” she said at the appellate court here on Tuesday.
Earlier, Najib’s counsel Tan Sri Muhammad Shafee Abdullah pointed out that according to Section 53(3) of the Courts of Judicature Act, if a petition is not filed within the time prescribed, the appeal “shall be deemed withdrawn”.
“The prosecution failed to file the petition despite being reminded to do so three times. If the prosecution is serious, they would have followed Section 53(3), otherwise, the law becomes nonsense,” he said.
Deputy Public Prosecutor Datuk Yusaini Amer Abdul Karim, when arguing his case, said that his team were seeking an extension of time given that the case is of public interest.
“Since this case is of public interest, we need time to do a proper study and Section 56 of the Courts of Judicature Act allowed for the filing of the appeal and provides the discretion to the court to allow this,” he said.
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However, Justice Hadhariah pointed out that since the prosecution team realised that the case is of public interest, the team should’ve made more efforts to expedite the filing of the petition instead of delaying it.
On March 3 this year, High Court Judge Mohamed Zaini Mazlan (now Court of Appeal judge) freed Najib and Arul Kanda without calling them to enter their defence.
The judge ruled that the prosecution had failed to prove a prima facie case against them.
Following that, the prosecution filed the appeal against their acquittals on March 9 this year.
The appeals were filed via a notice of appeal, but the prosecution was also required to file a petition of appeal as part of the appeal process within the deadline set under the law.
In his grounds of judgment, Justice Mohamed Zaini said he had given a maximum evaluation at the end of the prosecution’s case and found no evidence to suggest or prove that Najib explicitly directed the amendments made to exonerate him from any civil or criminal liability.
In Arul Kanda’s case, the judge found that he (Arul Kanda) was consistent throughout his testimony and that his statements were compatible with the evidence produced as well as the testimonies of other witnesses.
Najib, who is currently serving a 12-year jail sentence in Kajang prison for misappropriating SRC International Sdn Bhd funds, was charged with using his position to order amendments to the 1MDB final audit report before it was presented to the Public Accounts Committee to avoid any action being taken against him.
Arul Kanda, on the other hand, was charged with abetting the former prime minister in making the amendments to the report, to protect him (Najib) from being subjected to action.
The offence was allegedly committed at the Prime Minister’s Department Complex, Federal Government Administrative Centre, Putrajaya between Feb 22 and 26, 2016.
