Alternate Viewpoints: When Accused of a White Collar Crime, Deep Pockets Can Buy Time
Former Prime Minister Datuk Seri Najib Razak broke the cardinal rule of public trust by blatantly plundering state coffers while he was head of government. He is now paying the price for facilitating the grand theft of funds from 1Malaysia Development Bhd (1MDB).
Najib is serving a 12-year prison sentence in Kajang prison and is to pay a fine of RM210 million – for money laundering, criminal breach of trust involving RM42 million and abuse of power.
But before being sent to Kajang prison, Najib had the advantage of hiring the best legal minds to use every rule in the book to thwart the course of justice. The legal team has filed various motions with the courts from the time he was charged on July 4, 2018, at Sessions Court.
The means he used ranged from asking to call new evidence a few days before the Court of Appeal was to deliver its judgment and trying to get a Queen’s Counsel to represent him before the Federal Court, to asking the annulment of the entire trial on the grounds that the High Court judge allegedly had a conflict of interest.
Even in the final week before his Federal Court hearing, there were requests to postpone the case on the grounds that he was changing legal teams. But the five-member federal court bench headed by Chief Justice Tun Tengku Maimun Tuan Mat was firm in its decision not to delay proceedings and sent Najib to jail on August 23.
The cost of filing the claims and hiring the best legal minds would have burned a hole in the former prime minister’s pocket. But based on the charges for which he was convicted and the amount embezzled, Najib could probably afford to hire the best legal eagles.
Money can buy the best lawyers. But who does the lawyer serve first? Is it the client or the duty to uphold the rule of law?
On paper, the lawyer serves the courts and works for the proper administration of justice before considering the interests of the client. But in reality, no one is going to hire a lawyer who doesn’t serve the interests of the client first. The client would expect the lawyer to use all the rules of the book to clear him of the charges he faces.
In Najib’s case, it ultimately came down to the facts of the case. He did not deny that RM42 million came into his account and he spent it. He only maintained that the money did not come from SRC International, a subsidiary of 1MDB, but from a donation from Saudi royalty – a claim he was never able to substantiate.
Just a day after Najib went to jail, attention turned to fugitive financier Low Taek Jho, who was Najib’s co-conspirator to embezzle billions from 1MDB.
Jho Low has been identified as the main perpetrator of the 1MDB scandal, where the bulk of the proceeds from the fundraising exercises – in the form of RM5 billion and $6.5 billion debt securities obtained through government guaranteed bonds – was siphoned off.
1MDB was still mired in debt amounting to RM32.08 billion as of June 30 this year, and the federal government advanced it some RM10.85 billion to stay afloat. The amount recovered so far is RM19.28 billion, of which RM10.84 billion has been used to repay debts and interest.
Jho Low, with billions in his pocket, was reportedly spotted at Shanghai Disneyland in 2019 and reportedly seeking refuge in China, since his “godfather” Najib’s coalition was removed from office in May 2018.
Jho Low is wanted in three countries: Malaysia, Singapore and the United States.
But the billions he hid from the 1MDB heist have managed to keep him out of the clutches of the law since 2015. He is believed to be using the money to shuttle between Thailand, China, Taiwan and Macau. After 2018, he supposedly did not leave China.
Five of his accomplices – Nik Faisal Mohd Kamil, Casey Tang, Jasmine Loo, Terence Geh and Eric Tan – are also missing. They all played a role in siphoning off 1MDB’s money and were well rewarded.
All have simply disappeared from the public sphere. Without deep pockets, it’s almost impossible to stay out of reach of the authorities. They cannot remain elusive without money to live in hiding.
Ill-gotten gains can go a long way in hiring the best legal minds to escape a custodial sentence – if ever charged.
White-collar crimes are difficult to prove and trials take a long time. Those accused of white-collar crimes have the means to hire the best lawyers to defend their case at every stage, from the Court of Sessions.
The longest running white-collar crime in the country is the manipulation of shares in the now defunct Repco Holdings Bhd. The accused is Low Thiam Hock, better known as Repco Low, who drove the company’s stock price to dizzying heights in 1997.
He was charged in September 1999. The Court of Session and High Court acquitted Low but the Court of Appeal in February 2013 overturned the judgments and ordered Low to defend himself. In 2016, the Magistrate Court found Low guilty and sentenced him to five years in prison and a fine of RM5 million.
Low’s appeal against his conviction, which is currently being handled by barrister Tan Sri Muhammad Shafee Abdullah, is due to be heard in the High Court in October this year.
The bottom line is that Low’s case has been going on for 23 years and still has no final outcome.
Sometimes long white collar crime cases tend to weigh heavily on the accused.
Former Sime Bank CEO Datuk Ismail Zakaria was accused of approving unauthorized loans of RM175 million in 1999. When the case finally ended in 2017, Zakaria had suffered a stroke and was confined to a wheelchair. He was fined RM600,000, a fraction of the billions Sime Darby Bhd had suffered in losses.
At that time, Ismail was not mentally capable of making decisions and the prosecution withdrew the charges against him on compassionate grounds.
The reality is that litigation in white-collar crime cases favors those with deep pockets. It costs money to assemble a team of lawyers to put up layers of defense to push the case forward for years. Without financial resources, the accused has no chance of avoiding a custodial sentence.
There are some exceptions, only because a strong judiciary is able to correct the imbalances caused by those who have a lot of money.
M Shanmugam is editor of The Edge