Shocking to read in the media that RM114 million worth of seized assets have been returned to Najib - but then his criminal trial is far from over.
Some RM114 million in seized cash and assets from a raid at the Pavilion residences on May 17, 2018, have reportedly been returned to former prime minister Datuk Seri Najib Razak and Umno.
Before the trial was even over, the prosecution applied to FORFEIT the seized monies/assets - that mean to enable the government to take it all. This is ODD as the trials itself is still not over, and thus the Burden Of Proof that to forfeit these said items is very high before the other related trial is over.
This was not a case where Najib applied to court for the return of his monies and assets seized. It is not a case where some other claiming to be the true owner applied to court - but an application by the Prosecution to FORFEIT the money and assets now. Why I wonder did the Prosecution even do this - they should have waited for the other trials to be over first.
Now, even when the Prosecution failed in their application to FORFEIT, did the trial judge order the return of the said properties/monies to Najib. NO, Judge did not make any such order.
On May 20, High Court Judge Datuk Muhammad Jamil dismissed the application by the prosecution to forfeit the money that was seized by the police at Pavilion Residence on May 17, 2018.
In dismissing the application, Muhammad Jamil said the applicant failed to prove that the money, amounting to RM114,164,393.44, was proceeds from money laundering.
However, he made no order for the money, which is with Bank Negara Malaysia (BNM), to be returned to the owners.
The Judge was right - no outright forfeiture. Money, after all will be very difficult to be linked to money laundering - That money linked to the offence could be some other money kept in some other place.
In a criminal trial, say theft of a necklace or some other items, the said items are not returned to the owner - they have to wait until trial is over, because this is EVIDENCE that need to be submitted to the court. Of course, the accused's lawyer will challenge this - but even these potential evidence is not there in court, to be examined, challenged by lawyers - it is very difficult. So, the owners usually get it back after the trials are over - and, if there is an appeal, until after all appeals are over. Court in trial, will take and keep all evidence safe.
Sometimes, when it comes to maybe 'perishable items', etc - the courts may allow the owner to take it - but this is RARE. For after all, prosecution in criminal trials must tender EVIDENCE - a photograph of the evidence alone may simply not be sufficient.
The media report states that monies and assets have been returned. Is the prosecution not going to tender these evidences in court? Once assets are returned, is there not a HIGH RISK the accused may tamper or even dispose of these evidence? Money could also be sent out of the jurisdiction. Remember the about RM2.6 billion that was allegedly in Najib's account, the prosecution should have immediately frozen that monies to prevent it from being dissipated - but then, there they failed to do so - and money flowed out of the jurisdiction of the Malaysian courts - Najib said he returned the 'donation'.
Now, the monies were with Bank Negara - so, safe and sound. The other assets seized are most likely in the 'evidence lockers' of the prosecution, marked and kept safe from any tampering.
Hence, the returning of these seized items/monies now simply raises much questions...Further, it is not the court's decision, but '...based on inquiries made to the investigative officer...'. Who is that officer? Is he an officer of the police or MACC, or is he an investigative officer of the prosecution. How come? At the end of the day, reasonably the decision is that of the Public Prosecutor (who is also in Malaysian the Attorney General). Maybe the Attorney General must explain.
Deputy Public Prosecutor Faten Hadni Khairuddin told Astro Awani that the seized assets have been returned to both aforementioned parties last June 17, based on inquiries made to the investigative officer.
It was all returned on June 17 - but why was the people of Malaysia informed of this decision. Why did the Public Prosecutor come out and make a statement then before it was handed back to Najib and others?
In this case, the whole of Malaysia is VERY CONCERNED as we followed the police raids and the seizure of these properties.
Worse still, in this case Najib is already a convicted criminal after full trial in another case - though he has appealed the decision.
Another point of concern in the media report, is that the prosecution filed a forfeiture application not against Najib (and/or UMNO) - but against one OBYU Holdings. Why did they do that? Will that not be taken as the seized assets did not even belong to Najib or UMNO - but one OBYU Holdings(because they owned the premises from where the items were seized). Was Najib and UMNO also a party in the said forfeiture proceedings. {sorry could not find the Judgment of that case, which would have made things a bit clear}. If you cannot prove conclusively that the assets were fruits of money laundering, then I am of the opinion you should never file a FORFEITURE application, worse still when the other criminal cases are still pending in court.
Well, this seemed to have happened when Tommy Thomas was Public Prosecutor/Attorney General - maybe, he could explain this? Was it not really assets belonging to Najib? What is happening? Was Najib simply providing storage for items belonging to OBYU Holdings? Or did OBYU Holdings still own the said assets - as Najib had yet to settle payment in full? Maybe Tommy Thomas should explain... A forfeiture application should be against the OWNERS of the assets/monies - not a landlord???
So, why did they return it to Najib and UMNO? Has Najib and/or UMNO even proved that it all belongs to them? What exactly belongs to Najib, and what exactly belongs to UMNO? Do the 306 handbags belong to UMNO? Mmmm...In 2019, the prosecution filed a forfeiture application against OBYU Holdings to seize various items, including 11,991 units of jewellery, 401 watch straps and 16 watch accessories, 234 pairs of spectacles and 306 handbags as well as cash in various denominations amounting to RM114,164,393.44.
Of late, many are very concerned about the DEALS being struck between the Prosecution and the accused/suspects, where criminal charges are not made, or criminal cases are discontinued - and then the accused is GIFTED with an ACQUITAL - which means cannot even charge them for the same charge even if very strong evidence comes to be available later. Many of these deals, is simply by the payment of some sum..
Well, some financial institutions have also made such deals with persons who owe them millions - No civil suit if they agree and pay back a sum of monies. However, if you owe less, then not only will you be sued, but maybe also made bankrupt or wound-up(if it was a company). So, the RICH gets away scot free. Some say, the lesson to be learned, is to make sure you owe millions or more, then you can get away with it. Some say the logic behind this, is that these financial institutions prefer getting back some and not risk getting anything at all (or a much lesser amount).
That may be the case with CIVIL SUITS - but this warped logic should not apply to criminal cases. If the accused wants he can PLEAD GUILTY, and when it comes to sentencing, the fact that he/she has returned the monies/goods is a MITIGATING FACTOR - it will go towards lowering the sentence the court will hand out.
Not charging a person who committed a crime, or discontinuing midstream and getting an acquittal because the accused/suspect agrees to return part of the monies should really END. How many such cases has there been in Malaysia?
Now, when it comes to offences of 'kleptocracy', corruption, money laundering, etc, it is DIFFICULT for the prosecution to find the needed amount of evidence to charge and successfully convict. It may be reasonable to assume, the person caught for such offences may have numerous other offences committed but not discovered or there is an inadequacy of evidence. The problem is escalated when the investigation requires having to go out of Malaysia - or the evidence is there but is out of jurisdiction of the Malaysian courts. It is difficult for Malaysia to get a person overseas to turn up in court to be a witness in a criminal case, or even get a foreign institution/government to give us needed evidence in their possession.
Hope that our Attorney General and/or the PM (or defacto Law Minister) can come out and explain what is happening. Explain also why the said monies/assets returned to Najib/UMNO. Why were we not informed of this in mid-June when the prosecution decided to do this...
I am confused, and I am sure many in Malaysia are similarly confused...
See related posts:-
Power of PM(Government) to influence police, prosecutors and Judges? Why ask PM to intervene in cases, when he has no such power?
Was the ACQUITAL of Musa Aman wise? Should not the proceedings just be discontinued - with OPTION to charge again preserved?
Prosecutor: RM114m-worth of seized assets in 1MDB forfeiture case returned to Umno, Najib
.jpg "Datuk Seri Najib Razak is pictured at the Kuala Lumpur High Court May 20, 2021. ― Picture by Hari Anggara")
KUALA LUMPUR, Aug 5 ― Some RM114 million in seized cash and assets from a raid at the Pavilion residences on May 17, 2018, have reportedly been returned to former prime minister Datuk Seri Najib Razak and Umno.
Deputy Public Prosecutor Faten Hadni Khairuddin told Astro Awani that the seized assets have been returned to both aforementioned parties last June 17, based on inquiries made to the investigative officer.
“[Assets] were returned to the [Najib] through his representative because the applicant did not file an appeal,’’ she said, referring to the prosecution.
On May 20, High Court Judge Datuk Muhammad Jamil dismissed the application by the prosecution to forfeit the money that was seized by the police at Pavilion Residence on May 17, 2018.
In dismissing the application, Muhammad Jamil said the applicant failed to prove that the money, amounting to RM114,164,393.44, was proceeds from money laundering.
However, he made no order for the money, which is with Bank Negara Malaysia (BNM), to be returned to the owners.
In 2019, the prosecution filed a forfeiture application against OBYU Holdings to seize various items, including 11,991 units of jewellery, 401 watch straps and 16 watch accessories, 234 pairs of spectacles and 306 handbags as well as cash in various denominations amounting to RM114,164,393.44.
At the time of writing, Malay Mail is trying to verify whether the assets returned also included the aforementioned physical items that were seized on May 17, 2018. - Malay Mail, 5/8/2021
Govt fails in bid to forfeit RM114 million seized from Pavilion Residences
KUALA LUMPUR: The government has failed in its bid to forfeit RM114 million in cash that was seized by police during a raid at the Pavilion Residences in 2018, soon after the fall of then prime minister Datuk Seri Najib Razak-led Barisan Nasional (BN) administration.
High Court judge Datuk Muhammad Jamil Hussin ruled that the Attorney-General's Chambers (AGC) had failed to prove that the money originated from 1Malaysia Development Bhd (1MDB) or funds obtained from a criminal breach of trust (CBT) offence.
However, he did not rule on the release of the monies which is kept in Bank Negara Malaysia's vault, causing confusion to both parties.
Earlier, Jamil in his decision said the investigation officer failed to establish a money trail to prove that the cash originated from unlawful activities.
"He (investigating officer) also failed to identify the person who had the power to control 1MDB funds.
"Furthermore, there is no evidence to show several sums of the RM114 million were converted into foreign currencies. - New Straits Times, 20/5/2021
In future, thieves can keep the money they stole, Dr M says on RM114 million returned to Najib
He also says that who is in power depends on the Agong and MPs.
Dr Mahathir Mohamad today said he feared that a recent decision to return more than RM100 million confiscated from former prime minister Najib Razak could be good news for those accused of stealing.
“In the future, if you steal and you can prove that it (the money) is not from somebody, that it is yours, and that somebody has given you a gift of a billion dollars, then if the court says there is no proof that you have stolen, you keep the money.
“So I think in the future, thieves might take that advantage. If they cannot prove that you have stolen, the money is yours,” he told a press conference today.
He was asked to comment on a report that some RM114 million was returned to Najib in June, after the Kuala Lumpur High Court dismissed the government’s forfeiture suit for the money said to have been misappropriated from state investment fund 1MDB.
The court ruled that the prosecution had failed to prove that the money was obtained from illegal activities or that it had originated from 1MDB.
Najib had claimed that the money – part of hundreds of millions in cash confiscated during raids by the Malaysian Anti-Corruption Commission weeks after his fall from power three years ago – was being kept by him on behalf of Umno.
MalaysiaNow earlier reported that it could not be confirmed whether Najib had returned the money to his party.
In the 2018 raids on properties linked to Najib, authorities also confiscated a stash of luxury items including jewellery, watches and handbags valued in the hundreds of millions of ringgit, which investigators believe are linked to the 1MDB scandal.
On July 28 last year, the High Court sentenced Najib to 12 years in jail and fined him RM210 million after finding him guilty of seven counts of criminal breach of trust, money laundering and abuse of power involving RM42 million in funds from former 1MDB unit SRC International.
Mahathir was also asked for his comment on a question recently posed by DAP MP Tony Pua, on whether the opposition should tolerate the Perikatan Nasional (PN) government in order to stop Umno “kleptocrats” from coming back to power.
“It is up to the Yang di-Pertuan Agong and the MPs.
“If they give majority support to Umno, then Umno becomes the government. But if no one gets a majority, it is up to the Agong, or it will be decided through an election. But elections cannot be held,” he said.
Yesterday, Pua said any return of Umno to the prime minister’s post would see the party consolidating its political power “to emerge even stronger” after the next general election.
“And when any Umno leader becomes PM, wouldn’t all the kleptocrats be
set free (or possibly even regain power)?” Pua asked, adding that the
opposition could alternatively tolerate the PN government “just a little
while longer” to prevent Umno’s return. - MalaysiaNow , 5/8/2021
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