The Court of Appeal was today told that Najib Razak was not a director or shadow director at SRC International to be found guilty of misappropriating RM42 million of the company’s funds.
The former prime minister’s counsel Muhammad Shafee Abdullah said trial judge Mohd Nazlan Mohd Ghazali had adopted the civil law and common law concept of shadow director from England to convict Najib.
“Section 402A of the Penal Code on the definition of a director was ‘something similar to the shadow director’ but it was not the same as in England.
“Najib was not an insider in the company as required under the Penal Code to have committed criminal breach of trust (CBT). Najib was the outsider. The prosecution also did not establish the elements of the CBT charge to be called to enter defence,” he added.
The veteran lawyer submitted this before a three-member bench led by judge Abdul Karim Abdul Jalil in the hearing of Najib’s appeal against his conviction and jail sentence for the misappropriation of RM42 million in SRC International funds.
The other judges on the bench were Has Zanah Mehat and Vazeer Alam Mydin Meera.
Shafee said the trial judge had erred in law in importing a common law from England to implicate the Pekan MP of the offence.
“It must be proven that the appellant had control and was entrusted with the RM42 million to be found guilty.
“The appellant submits that the trial judge committed a grave error by relying on the common law and stretching the language of Section 402A of the Penal Code beyond the natural and ordinary meaning of the provision,” he said, adding that this has caused serious prejudice and injustice to Najib.
The Kuala Lumpur High Court on July 28 last year sentenced Najib to 12 years’ jail and fined him RM210 million after finding him guilty on seven charges of criminal breach of trust, money laundering and abuse of position involving RM42 million in SRC International funds.
The hearing of the appeal continues.