Najib's Conviction Explained

History was made on 28 July 2020 when former Prime Minister Najib Razak was convicted for all 7 charges in the SRC trial. The conviction and sentence was delivered in the High Court by Justice Mohd Nazlan Mohd Ghazali. On the same day, the former political leader secured release with additional RM1 million bail. Two days later, he filed an appeal against both his conviction and sentence. Some question whether justice was served when they read that Najib Razak was not put to jail immediately; others cry foul after hearing that their political leader was convicted guilty of misappropriation of funds.

Among the widespread media publicity and controversy surrounding this criminal trial, this article aims to be a neutral ‘compass’ that navigates criminal procedure against the backdrop of Najib Razak’s infamous SRC decision – starting from sentencing right up to the appeal.

Sentencing

The Criminal Procedure Code Act 593 (“CPC”) is the Act governing criminal procedure in Malaysia. As codified in Section 183 of the CPC, if an accused is convicted, the court shall pass sentence according to law[1].

Additionally, sentencing is a matter of judicial discretion of the trial court[2]. Judicial discretion as envisaged by Lord President Raja Azlan Shah (as he then was) in Bhandulananda Jayatilake v PP serves as guidance –

“I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable.”[3]

The former Prime Minister was found guilty on 7 charges and the penalties for each charge can be broken down as follows:

Charge: Abuse of power[4]

Penalty: 12 years imprisonment and fine of RM210 million

Charge: 3 counts of criminal breach of trust[5]

Penalty: 10 years imprisonment each

Charge:3 counts of money laundering[6]

Penalty: 10 years imprisonment each

A quick calculation tells us that the total jail term is 72 years, so why was Najib sentenced to serve only 12 years imprisonment?

The answer is because Justice Nazlan ordered for all jail sentences to run concurrently, and not consecutively[7]. When jail sentences are ordered to be served concurrently, the maximum sentence will subsume the other sentences.

Generally, where two or more distinct offences have been committed, sentences of imprisonment are made consecutively. On the other hand, where the offences committed are in the course of a single transaction, the sentences of imprisonment are made concurrent[8].

Mitigation

On the day of the decision, Najib’s counsel applied to postpone the mitigation hearing. This application was rejected by Justice Nazlan and the hearing was heard on the same day[9].

As a matter of practice, the court will hear mitigation for the accused before passing sentence[10]. Some common mitigating / aggravating factors include age of the offender[11], record of the offender (i.e. absence or presence of previous convictions)[12], guilty plea[13] and background of the offender[14]. There are no real restrictions as to what can or cannot constitute a mitigating / aggravating factor.

Additionally, public interest is an essential consideration in sentencing. The oft-quoted passage from the judgment of Hilbery J. in R v Kenneth John Ball best expounds the role of public interest in sentencing –

“In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it.”[15]

The court in its exercise of judicial discretion balances among others, public interest against the mitigating factors. To illustrate, mitigating factors submitted in Najib’s hearing such as his contribution to economic growth was characteristic of his position as former Prime Minister and Finance Minister. Conversely, public interest could preponderate over the submitted mitigating factors considering the nature of the crime (i.e. corruption) and the position of the accused (i.e. holding the highest office in the country).

To conclude, mitigating and aggravating factors are numerous and dependent on the peculiarity of each case. There is no ‘formula’ or hard and fast rule to ‘calculate’ how each factor could affect the severity of the sentence.

Appeal

The criminal justice system does not necessarily end once a judgment is pronounced at the end of a trial. An accused is given the right to appeal against his conviction, and for the purpose of this article, the author will only look at the procedure for appeals to the Court of Appeal.

The Court of Appeal has jurisdiction to hear and determine any appeal from the High Court[16] and has the power to confirm, reverse or vary the decision of the High Court. It may order a retrial or remit (i.e. return) the matter to the trial court or may make any order that is just[17].

The procedure to appeal to the Court of Appeal is depicted in the infographic below:

As of 30 July 2020, the former Prime Minister Najib Razak has filed a notice to appeal both his conviction and sentence.

So, what happens to the previous sentence since an appeal was filed? Will he still be sent to prison pending the appeal? No.

This is because the former Prime Minister was granted a stay of execution, with an increased bail.

Bail

In simple terms, bail is a form of security to ensure the attendance of an accused at Court. This means that the accused will still have their freedom and need not be under arrest, detention or any kind of restraint pending a trial or an appeal[18].

However, not all offences will warrant an automatic bail. Whether or not bail can be granted is dependent on the type of offence that the accused was charged with[19].

In situations where the accused is charged by offences other than the ones under the Penal Code, the offence is only bailable if it is punishable with imprisonment for less than three years or punishable with fine only[20]. If the offence is punishable with death or imprisonment for three years or more, it is considered as non-bailable[21].

Bail pending appeal

Does the Court have the power to grant bail pending an appeal? In short, yes. The Court of Appeal and the Federal Court has the power to order for bail pending appeal against conviction under Section 57 and Section 89 of the Courts of Judicature Act 1964 respectively.

Despite this, bail is not automatic. The Court usually considers the following factors[22]:

a) The gravity of the offence;

b) The length of time in prison and the length time for appeal to be heard;

c) Whether difficult questions of law are involved;

d) Whether the accused is a first-time offender;

e) The possibility of repeating offence; or

f) Whether security imposed is sufficient to ensure attendance at appeal.

It is important to note that the list above is not exhaustive, and that the applicants must also show that their cases fall within the ‘special or exceptional circumstances’ category[23]. In KWK (A child) v PP[24], the judge quoted the judgment in Re Clarkson (1986) VR 583:

“If the principle that special or exceptional circumstances must be shown to warrant admitting a prisoner to bail pending appeal is regarded as meaning only that the applicant bears a burden and must put forward, as justifying the grant of bail, something that is not present in most or all cases, then the statement of principle has failed adequately to convey the practice of the court and the principle on which it acts. It is probably for this reason that judges have on occasions expressed the requirement as one of "very" exceptional circumstances.”

In situations where bail pending appeal against conviction is granted, it is logical to question if the sentence pronounced by the judge is executed or not.

Stay of execution pending an appeal

An application for a stay of execution means that the party is applying to postpone the sentence pending hearing at the appellate court. A general reading of Section 311[25] shows that granting a stay is an exception to the general rule. Except for the punishment of whipping – where stay is granted automatically, a stay is only granted by exercise of the Court’s discretion[26].

In the case of our former Prime Minister, his defence counsel argued the following to establish ‘special circumstances’[27]:

a) Disallowing the stay would cause grave inconvenience and impinge on Najib’s right to defend himself in his other cases;

b) The hefty fine of RM210 million is unprecedented.

Due to the above, Justice Nazlan allowed the stay application as he stated that[28]:

“I find that the applicant has fully established special circumstances for the court to grant a stay of execution for the imprisonment and stay of the payment of the fine as well.

…

I also ordered for bail to be increased by another RM1 million with two sureties to be paid by tomorrow.”

Since stay application was allowed and the bail was recently paid by the former Prime Minister on 28 July 2020, he does not need to serve his sentence while waiting for the appeal to be heard. It is important to note that although the stay application is allowed, Najib’s status as an accused is now changed to a convict.

What’s Next

Existing MP Status

As Najib is appealing against both the High Court conviction and sentence, he need not vacate his existing Parliamentary seat immediately[29]. Disqualification as member of Parliament may only take effect 14 days from when the court decides on the appeal[30]. If Najib decides to file a petition for pardon, disqualification will take effect immediately after the pardon petition is decided[31].

Future elections

The immediate implication of Najib’s conviction and sentence is that he will not be able to run for office for a period of 5 years notwithstanding the current appeal[32]. This 5-year prohibition does not apply if Najib is granted a royal pardon by the Yang di-Pertuan Agong[33].

Conclusion

An accused’s journey in the criminal justice system does not end once a trial is over. As can be seen in the case of our former Prime Minister, there is still a long way to go before there is any kind of finality. As the rakyat of the country, we should ensure that we are informed on the procedures of the criminal justice system in order for us to follow through the progress of the case with more clarity.

Co-authored by Syafinas Ibrahim and Alyson Phung.

[1] Based on PP v Jafa Daud [1981] 1 LNS 28, HC which was later followed by the Court of Appeal in Jamal Husin & Anor v PP [2011] 1 LNS 1746 “sentence according to law” means that the sentence must (i) be within the ambit of the punishable section and (ii) assessed and passed in accordance with established judicial principles [2] PP v Omar bin Rudding [2017] 3 MLJ 524, CA [3] Bhandulananda Jayatilake v PP [1982] 1 MLJ 83 [4] Charged under Section 23 of the Malaysian Anti-Corruption Commission Act 2009 [5] Charged under Section 409 of the Penal Code [6] Charged under Section4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [7] https://www.thestar.com.my/news/nation/2020/07/28/najibs-src-trial-live-updates [8] Yit Kean Hong v PP [2005] 4 CLJ 592, CA [9] https://www.thestar.com.my/news/nation/2020/07/28/najibs-src-trial-live-updates [10] Plea of mitigation is not expressly provided in the CPC except for a brief reference in Section 176(2)(r) as particulars to be recorded by the presiding judge [11] Tukiran bin Taib v PP [1955] 1 LNS 166, HC [12] PP v Leo Say [1985] 2 CLJ 155 [13] Bachik Abdul Rahman v PP [2004] 2 CLJ 572, CA [14] PP v Wan Mohamad Nur Firdaus bin Abd Wahab & Other Appeal [1979] 1 MLJ 270 [15] 35 CrAppR 164; PP v Francis Omar ak Kaseh [2017] 1 MLJ 748, CA [16] Section 50(1) Courts of Judicature Act 1964. This includes (a) decisions made by the High Court in the exercise its original jurisdiction and (b) decisions made by the High Court in exercise or its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court. [17] Section 60(1) Courts of Judicature Act 1964. [18] Yusof bin Mohamed v Public Prosecutor [1996] 3 MLJ 66 [19] Sidhu, B. (2015). Criminal litigation process. Malaysia: Sweet & Maxwell [20] Last Paragraph, Schedule 1 of Criminal Procedure Code [21] Last Paragraph, Schedule 1 of Criminal Procedure Code [22] Re Kwan Wah Yip [1954] MLJ 146 [23] Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004] 1 MLJ 497; [2003] 2 AMR 161; [2004] 1 CLJ 592 [24] Kwk (A Child) v Public Prosecutor [2003] 4 MLJ 479 [25] Section 311 of the Criminal Procedure Code read as follows: “except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable”. [26] Ment & Ors v PP [1994] 1 MLJ 201. [27] https://www.malaymail.com/news/malaysia/2020/07/28/after-high-court-verdict-najib-granted-stay-of-execution-pending-appeal/1888949 [28] https://www.malaymail.com/news/malaysia/2020/07/28/after-high-court-verdict-najib-granted-stay-of-execution-pending-appeal/1888949 [29] Article 48(4)(b) of the Federal Constitution [30] Article 48(4)(b) of the Federal Constitution [31] Article 48(4)(c) of the Federal Constitution [32] Article 48(5) of the Federal Constitution [33] Article 48(3) of the Federal Constitution