PUTRAJAYA, April 24 — Former prime minister Datuk Seri Najib Razak today failed to get two company secretaries of 1Malaysia Development Berhad (1MDB) to be compelled to appear in court as his defence witnesses, as the High Court found that his bid to get the duo was an abuse of court process.
1MDB trial judge Datuk Collin Lawrence Sequerah said Najib’s attempt to get 1MDB board documents from the two company secretaries was a “fishing expedition”, and that those documents were not relevant to the former finance minister’s charges.
The judge decided this afternoon to grant 1MDB’s application to set aside two subpoenas — court orders previously issued on Najib’s request — which would have required the company secretaries to come to court as witnesses.
In delivering the broad grounds of his decision on why the two company secretaries no longer need to appear in court, the judge agreed with all three points previously made by 1MDB’s lawyer Datuk Lim Chee Wee.
The three points were that the 1MDB documents that Najib wanted to get through the two company secretaries are documents covered by litigation privilege and legal professional privilege; and that the documents are irrelevant to Najib’s charges and the attempt to get them is an abuse of court process.
The judge found that the 1MDB board meeting documents that Najib wanted to get are privileged documents as it involves confidential information between 1MDB and its lawyers, and noted that 1MDB had not waived the privilege.
The judge also agreed that the privileged parts of the 1MDB board meeting minutes would be “inextricably intertwined” or unable to be separated from the non-privileged parts of the documents.
Najib is alleged to have committed the offences in this trial in events that took place before 2018, while his attempt to get the two 1MDB company secretaries to testify was to get 1MDB board documents from 2018 to 2024 for him to challenge the credibility of prosecution witnesses and find out why 1MDB had dropped some lawsuits.
Noting an Australian apex court decision where an accused person cannot compel privileged documents to be brought to court even though it may help in his defence, the judge also noted that these documents would not be relevant to Najib’s charges.
“Over and above this is the fact that the charges of the accused covered a certain time period whilst the documents sought for are well outside the timeframe. I find therefore the documents sought are irrelevant to the charges faced by the accused,” the judge said.
The judge found that Najib’s bid to get the 1MDB documents had been cast far and wide, saying: “It is in effect a fishing expedition.”
The judge also said that no one can question a plaintiff’s decision to file and withdraw lawsuits as it would be the plaintiff’s prerogative, and also said there was no merit to Najib’s allegations of a conflict of interest by the late lead 1MDB prosecutor Datuk Seri Gopal Sri Ram in relation to a 1MDB lawsuit.
The judge said Najib’s lawyers had already been given opportunities to cross-examine the prosecution’s witnesses, and said allowing the 1MDB company secretaries to be compelled to come to court could result in the prosecution’s witnesses being unable to respond to allegations on their credibility.
“In the circumstances, I allow the application to set aside the subpoenas sought for both witnesses,” the judge said when ruling in 1MDB’s favour.
The two subpoenas that were set aside were issued on February 4 and served on February 5 to the two 1MDB company secretaries, Saiful Nizam Yasin and Nor Faziana Zakaria.
1MDB was also represented today by lawyers Kwan Will Sen and Pang Huey Lynn.
Najib’s 1MDB trial will resume on May 5.
