KUALA LUMPUR, Sept 8 — Remarks attributed to fugitive businessman Low Taek Jho by a former 1Malaysia Development Berhad (1MDB) chief executive were excluded from laws against hearsay and should be admissible in Datuk Seri Najib Razak’s power abuse and money laundering trial, the High Court heard today.
Lead prosecutor Datuk Seri Gopal Sri Ram today was arguing why the court should not consider parts of former 1MDB CEO Mohd Hazem Abd Rahman’s written witness statement to be hearsay.
Yesterday, Najib’s lawyer Tan Sri Muhammad Shafee Abdullah raised an objection to 24 pages of Mohd Hazem’s 100-odd-page written witness statement, arguing that remarks attributed to Low and others such as Najib’s former aide, Datuk Azlin Alias, should be stricken as hearsay as these could not be corroborated.
This was before the prosecution could call Mohd Hazem into the courtroom to start testifying as the 10th prosecution witness in Najib’s trial.
Why the prosecution say Jho Low’s remarks to ex-1MDB CEO are not hearsay
Today, Sri Ram argued that the current situation in which those such as Low could not be located meant that what Mohd Hazem claimed to have heard from Low would fall under Section 32(1)(b) of the Evidence Act, which is an exception to the hearsay rule.
In other words, Sri Ram was arguing that the parts of Mohd Hazem’s witness statement that Shafee was objecting to would not be hearsay as they come within Section 32(1)(b).
Under Section 32(1)(b), written or verbal statements of relevant facts made by persons in various categories — such as those who are dead or cannot be found or whose attendance in court as witness cannot be procure without unreasonable delay or expenses — would be considered relevant facts under the law, when the statement was made by such persons in the ordinary course of business.
When arguing why the statements which Mohd Hazem attributed to Low and other individuals should come under Section 32(1)(b), Sri Ram said these were statements made to the former 1MDB CEO in the ordinary course of business.
Sri Ram pointed out that Najib’s legal team already accepted that various individuals involved in the 1MDB affair such as Low, Terence Geh, Jasmine Loo cannot be found and have been charged in absentia, while the 1MDB investigation officer would be able to show that attempts were made to find them but they could not be found.
What the Federal Court said about Section 32(1)(b)
Shafee claimed today that the hearsay exception of Section 32(1)(b) did not apply to Mohd Hazem’s witness statement, but Sri Ram cited a 2011 Federal Court decision to back his argument that this provision applies to the former 1MDB CEO’s evidence.
Sri Ram read out excerpts of the Federal Court judgment, noting that Section 32(1)(b) was stated as covering both written and verbal statements.
Also reading out the 2011 Federal Court judgment which further cited two other court cases, Sri Ram noted the Federal Court as having observed that communication in the “ordinary course of business” indicates those made in the routine of business, and that it need not be in any formal business setting and it could even be a communication between a husband and wife in one of the cases cited.
Sri Ram then went on to say that the Section 32(1)(b) provision applies to Mohd Hazem’s witness statement, and that the parts that Shafee had objected to — including Low’s alleged remarks to Mohd Hazem — should be admitted in court as evidence.
“So Your Lordship would have to look at all the circumstances of the case to decide whether or not it’s in the usual course of business for Jho Low to make these statements, and whether it’s a routine they followed throughout the period in which they were in communication. For those reasons, we say it is incorrect to submit that that section can never apply.
“If communications between husband and wife can be in the ordinary course of business, then surely persons who are dealing with company affairs could be in the ordinary course of business. That would be our argument. So it would be wrong to say it can never apply,” Sri Ram then said.
Shafee then said he needed time to prepare for his submission to reply to Sri Ram’s arguments on Section 32(1)(b), and said he would present his arguments this Thursday morning when Najib’s trial resumes.