PUTRAJAYA - Former premier Najib Razak suffered a number of setbacks on Tuesday (Dec 7) in his appeal against conviction and sentencing for graft in the SRC International case.
The Court of Appeal not only denied an attempt by his defence to postpone the hearing, but also issued an ultimatum for him to appear via Zoom for proceedings, and then dismissed his application to adduce new evidence to the case.
A verdict on the appeal is expected on Wednesday.
A three-man bench led by Justice Abdul Karim Abdul Jalil ruled that the additional evidence was not necessary, following lengthy submissions by the defence and prosecution, citing four grounds for new evidence to be allowed.
The evidence, Justice Abdul Karim said, must have not been available at the trial, be relevant as well as credible, and would have created reasonable doubt in the minds of the jury if taken together with other evidence during the trial.
"Having considered and further having heard lengthy submissions, the appellant has failed to successfully prove the four elements as adopted by our courts. In the circumstances, we acquired that the additional evidence was not necessary," the judge said, referring to the court's unanimous decision.
He added that the Court of Appeal would deliver its verdict through a "hybrid-style" hearing on the RM42 million (S$13.6 million) SRC International case.
Under Section 15A of Court and Judicature Act (Amended), the Federal Court, the Court of Appeal and the High Court are allowed to conduct proceedings through a live video or television link, or any other electronic means of communication.
In the Najib case, the panel of judges and the prosecution will be in open court, while the defence team will participate through videoconferencing platform Zoom.
Earlier on Tuesday, the defence applied to postpone that day's hearing on the basis that a member of its legal team had tested positive for Covid-19.
But, in rejecting the application, Justice Abdul Karim ordered proceedings to continue via hybrid hearing at 12.30pm via Zoom.
Najib and his legal team - with the exception of lawyer Harvinder Singh Sidhu - were not in court for the first half of Tuesday's hearing, but turned up later via Zoom after the judge set the 12.30pm deadline for Najib to appear.
"We can cancel the RM2 million bail and issue a warrant of arrest for Najib's non-attendance. You yourself (bailor) do not know why Najib is not here. You are just guessing. This is not a coffee shop, this is the court of law, do not just play guessing," said Justice Abdul Karim.
"We have two options... First, we revoke the bail, give reasons and seize the bail money or not. The second reason we cancel the bail is to issue an arrest warrant so that Najib can be arrested immediately and taken to court," he added.
"Second option is we order this hearing to be heard online, and this is a court order, we do not need consent from the parties whether to proceed or not. We have enough experience," the judge said, adding that it would take more than an oral explanation to substantiate the excuse for Najib's absence.
Late on Monday, defence lawyer Muhammad Shafee Abdullah informed the appellate court through a letter that his son Muhammad Farhan, who is also a lawyer in Najib' team, had tested positive for the coronavirus, while others in the team were now close or casual contacts.
Mr Muhammad Shafee, who is the lead counsel for Najib, asked the court to vacate the hearing for the proceedings both on Tuesday and Wednesday.
"On Dec 4, Muhammad Shafee, along with Muhammad Farhan and his wife, had attended a celebration and met with close friends and relatives, where Zahria Eleena Redza's family was also involved, including her mother, Datin Edwina Patricia Totu," Mr Muhammad Shafee said.
Ms Zahria is a lawyer at his firm.
After learning that Ms Zahria's mother had tested positive for the virus at 6.08pm on Monday, all the lawyers at the firm self-tested, and only Mr Farhan so far has tested positive.
"Based on the above reasons, we have the social responsibility towards the court and involved parties to inform everyone of the matter. We did not anticipate this to happen, but it is our responsibility to ensure the safety of those involved in this appeal," said the lead lawyer.
Najib was sentenced to 12 years in jail and fined US$50 million (S$68 million) in July last year for illegally receiving about US$10 million from SRC International, a former unit of now-defunct 1Malaysia Development Berhad.
He was found guilty of criminal breach of trust, abuse of power and money laundering.
Najib, 68, who maintains he is innocent, is out on bail.
If his conviction is upheld on Wednesday, he can appeal further to the Federal Court, his last legal recourse.