PUTRAJAYA: The Federal Court, in a 4-1 majority decision Friday, ruled that Datuk Seri Najib Tun Razak was actually the author of his own misfortune which caused his SRC International Sdn Bhd’s appeal hearings not heard by the previous panel.
Justice Datuk Vernon Ong Lam Kiat, when reading out the majority judgment, dismissed the former Prime Minister’s application to review the decision of the previous panel of the Federal Court which upheld his conviction and 12 years’ jail sentence and fine for misappropriation of RM42 million in SRC International Sdn Bhd funds.
“There was no denial of the applicant’s rights and there was no breach of natural justice in the case,” he said.
The majority decision was agreed to by Federal Court judges Datuk Rhodzariah Bujang and Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais.
Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli, who chaired the five-member bench, dissented.
Justice Ong pointed out that it was Najib's own counsel who had refused to make oral submissions right from the onset of the appeal hearing last year, despite counsel Datuk Hisyam Teh Poh Teik being allowed to do so by Chief Justice Tun Tengku Maimun Tuan Mat, who led the previous apex bench that dismissed the appeal.
Touching on the postponement of Najib’s appeal that was raised by the defence, Justice Ong contended that the court had absolute discretion to allow or not any adjournment and the earlier panel had exercised their discretion judiciously.
“Therefore, there is no merit for a review of that decision,” said the judge.
On Najib’s bid for a review of the discharge of his counsel (Hisyam) from representing him during the appeal, the judge said the court found the applicant’s contention that the court had no power to disallow the discharge of counsel was untenable as the power had been provided in Rule 137 of the Federal Court Rules 1995.
Meanwhile, on Najib’s application for a review of his conviction and sentence, the court held that the earlier panel had considered 94 grounds of appeal, written submissions and previous decisions of the lower courts which heard Najib's case.
Thus, the majority judgment concluded that there was no merit for a review of the previous court’s decision to uphold the conviction and sentence against Najib, said the judge.
"The applicant contends that his right has been breached. However, here, it is clear that the applicant is the author of his own misfortune. We do not see any reason to review any decision of the earlier panel of the Federal Court.
"Having considered all the records, the court finds that all earlier convictions against the applicant are safe and that the sentences imposed against the applicant are not excessive, and, therefore, affirmed,” said Justice Ong. On the application for review of Justice Tengku Maimun’s recusal, Justice Ong said that the law on recusal was also well-settled based on the principle of the “real danger of bias” test.
He said the decision by Justice Tengku Maimun to not recuse herself was supported by the other members of the panel in a separate judgment.
The judge further said that there was no quorum failure in any regard as a judge can hear any recusal made against them.
On Najib’s application to adduce new evidence on then High Court Judge Datuk Mohd Nazlan Mohd Ghazali, Justice Ong said the court agreed that the earlier Federal Court’s decision in denying the request was made on the correct assessment of the evidence before it.
He said the arguments by the applicant were also untenable.
“We stress that the review process under Rule 137 should not be abused. Accordingly, the review application is accordingly dismissed," said Justice Ong.
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