: The High Court here today allowed the prosecution to amend the charges against former Prime Minister Datuk Seri Najib Tun Razak and former 1Malaysia Development Berhad (1MDB) chief executive officer Arul Kanda Kandasamy in their 1MDB audit report tampering case.
Judge Mohamed Zaini Mazlan made the decision after finding that the amendment to the charges will not cause any prejudice or cause injustice to both the accused.
Najib, 67, and Arul Kanda, 44, however, pleaded not guilty to the amended charges.
In his judgment, Mohamed Zaini said, the mala fide issue raised by the defence was that the proposed amendment stated by the learned deputy public prosecutor (DPP) on June 16 was different from the one that they subsequently proposed.
He said he did not think that the defence has suffered any prejudice, bearing in mind that the learned DPP had merely wanted to give advance notice and that the DPP did not have to state what the proposed amendments were.
“In any event, take it that they have had the opportunity to consider in-depth what the proposed amendments should be and presented it the following day, I do not think that the defence was put at a disadvantage, even though the proposed amendments presented by the learned DPP was different from the one subsequently proposed.
Firstly, judge Mohamed Zaini said, the proposed amendments were not accepted yet as the defence wanted to be given time to voice its objection, which the court duly obliged, and secondly, the trial did not proceed on that day.
“Even this amendment results in the goalpost being shifted, it will still remain within the pitch,” he added.
“The defence will still be able to aim their 'shots'. I am here to ensure, that they will be given every ample opportunity to mount their defence. Although the Apex courts had ruled that it is unnecessary for the court to draw the counsel's attention to Section 162 of the Criminal Procedure Code (CPC), out of an abundance of caution, I wish to inform counsel that you have a right to recall and examine again any of the prosecution's witnesses.
"I am confident that the defence will have ample time and opportunity to prepare their case, based on the amendments to the charges. I will on my part try my best utmost to ensure that they are not put to any disadvantage.
“I am therefore of the view that the amendment to the charges will not cause any prejudice or cause injustice to the accused. The application to amend the charge therefore allowed,” he said.
DPP Ahmad Akram Gharib earlier submitted that the amendment to the charge does not have the effect of changing the nature of the offence or having the effect of opening up a new trial.
It is the prosecution contention, therefore that the amendment will never prejudice the accused, he said.
“No question of prejudice can arise when the amended charge merely repeats in more appropriate words the substances of the original charge. The addition or alteration of charges does not open up the trial from the beginning, and the court may immediately proceed with a trial if it is of opinion that there will be no prejudiced to the accused,” he said.
He added, the defence has also not completed their cross-examination on the fourth, fifth, sixth and seventh prosecution witnesses, and in any event, Section 162 CPC allows them to recall any of the witnesses to be cross-examined further.
The witnesses are former Chief Secretary to the Government Tan Sri Dr Ali Hamsa (fourth), former Auditor-General Tan Sri Ambrin Buang (sixth), National Audit Department (NAD) officer Datuk Nor Salwani Muhammad (fifth) and NAD former director Saadatul Nafisah Bashir Ahmad (seventh).
“In the circumstances, we pray for the application to tender the amended charges be allowed," he said.
Meanwhile, Najib's lawyer Tan Sri Muhammad Shafee Abdullah objecting to prosecution's application by saying that the application was mala fide as it was the third time the prosecution is changing their stance on the charge.
He said the prosecution sought to mask their maliciousness by contending that the proposed amendment was made in good faith to give the accused a clearer notice as to the manner he committed the offence.
“The defence respectfully submits that the only confusion lies in the prosecution, in the conduct of their case, as Najib has always been aware of the charge he is facing and has put up a consistent defence that the audit report which was amended was merely a draft which has not been finalised,” he said.
Muhammad Shafee also added that the proposed reamendment to the charge was an afterthought tactical manoeuvre by the prosecution upon the realisation that the amended charge cannot hold water after the cross-examination of seventh and fourth prosecution witnesses.
Arul Kanda's lawyer Datuk N. Sivananthan said that the proposed amendment did not affect in any way the charge against his client.
He said, the question of whether the report was a final or draft copy, as well as whether some portions had been 'unlawfully' removed should be left to the court to decide and same goes for the allegations against Arul Kanda.
In an earlier proceeding, judge Mohamed Zaini set July 23 to hear Najib's application to strike out the charges against him.