PUTRAJAYA (Aug 18): At the tail-end of Datuk Seri Najib Razak’s final SRC International Sdn Bhd appeal hearing on Thursday, the former premier’s newly appointed lead counsel Hisyam Teh Poh Teik reversed his position on filing fresh submissions.

"I will not file the submissions. That is my position," he told the Federal Court.

Chief Justice Tun Tengku Maimun Tuan Mat — who leads the five-member quorum in the appeal hearing — noted that Hisyam was contradicting what he had said a few hours earlier when the court reconvened following lunch.

She reminded Hisyam that he had informed the court that the defence was planning to file fresh submissions and warned him: “If you choose not to participate then that is your position. The court will not repeat itself.”

Hisyam clarified that his position is that he would only file fresh submissions if the defence is provided with an adjournment.

“My position is that I will file submissions only if I’m given time. I will not file the submissions. That is my position,” he said.

In response, Tengku Maimun said it is his prerogative not to file fresh submissions.

Earlier in Thursday’s proceedings, in response to the chief justice’s query as to whether the defence was to rely on the written submissions of Najib’s former lawyers filed at the Court of Appeal, Hisyam responded in the affirmative.

But when the court reconvened after lunch, Hisyam informed the Federal Court that the defence would be filing fresh submissions to defend Najib — before eventually walking back on this notice to the court.

Najib’s defence had come to the appeal hearing unaccompanied by written submissions to the Federal Court.

Prior to Najib's final appeal hearing, parties — via case management dated July 28 — had been given until Aug 8 to provide their written submissions to the apex court. However, it is understood that Najib’s defence failed to do so.

On the first two days fixed for the appeal before the Federal Court, the defence submitted on their applications to adduce further evidence and for a three- to four-month adjournment. The five-member panel dismissed both applications.

The court did not sympathise with either application citing that the further evidence the defence wished to adduce was irrelevant, while the adjournment was not given as Najib had chosen to change counsels despite being well aware of his appeal dates.

With the bids thwarted, Hisyam kicked off Thursday’s proceedings with an application to recuse himself as Najib’s lead defence counsel. This move was also denied by the Federal Court, which said that Hisyam failed to show cause to discharge himself.

Hisyam and Messrs Zaid Ibrahim Suflan TH Liew & Partners were hired at the 11th hour before the final appeal in the apex court, after Najib dismissed his initial counsels Tan Sri Muhammad Shafee Abdullah and Harvinderjit Singh in late July.

The High Court had on July 28, 2020 found the former premier guilty on one count of abuse of power with regard to the approval of a loan totalling RM4 billion from Retirement Fund Inc (KWAP) to SRC. He was also found guilty on three counts each of criminal breach of trust (VBT) and money laundering involving RM42 million of SRC funds.

For the power abuse offence, he was sentenced to 12 years in jail and fined RM210 million. He was also sentenced to 10 years in jail for each of the CBT and money laundering charges. The High Court had ordered that the jail terms run concurrently.

The conviction and sentence were upheld by the Court of Appeal on Dec 8 last year, which resulted in this final appeal at the Federal Court.

In a press conference following Thursday’s proceedings, Hisyam claimed that Najib, in essence, has no legal representation in the final SRC appeal as the lead counsel believes he will not be able to effectively represent the former premier.

“I informed the honourable judges of the Federal Court that I am in no position to participate in the proceedings because, for the simple reason, [the] time which I applied for — three months — was denied.

“On two occasions I applied to the court to adjourn this matter. It's a bona fide application — [an] application made in good faith — that we need time to go through the documents, to go through the pre-records, and we’re not given that time.

“Under such circumstances, my team cannot effectively represent Datuk Seri (Najib). There’s a reason why this morning I made an application to the court to discharge myself as lead counsel,” he said.

Hisyam asserted that if the defence were provided reasonable time, “two to three months”, they would be able to argue against the prosecution “point-for-point”.

“This is what [a] fair trial is all about. But this [has] also been denied for us. So under the circumstances, I am not able to play an effective role.

“So in essence, Datuk Seri (Najib) has got no legal representation, that is the bottom line,” he added.