In August 2022, the Federal Court upheld Dato Seri Najib bin Tun Razak (“DSNR“)’s conviction and sentence (“the August 2022 Decision”).[1]
DSNR then, in September 2022, filed a motion to review the August 2022 Decision (“Motion”)[2] pursuant to Rule 137 of the Rules of the Federal Court 1995.
The Federal Court recently dismissed the Motion in a split 4-1 decision (“the March 2023 Decision”).[3]
Ong Lam Kiat Vernon FCJ, Rhodzariah binti Bujang FCJ, Nordin bin Hassan FCJ, and Abu Bakar bin Jais JCA[4] formed the majority which dismissed the Motion.[5]
Abdul Rahman bin Sebli CJSS was the sole dissenting judge.[6]
In a press conference regarding the March 2023 Decision, Datuk V Sithambaram, the ad hoc prosecutor for DSNR’s SRC International case,[7] was quoted as saying inter alia that DSNR has “exhausted all avenues of appeals.”[8]
It is submitted that DSNR exhausted all avenues of appeal back in August 2022 and not in March 2023.
It is trite law that:
(a) the Motion involves an exercise of the Federal Court’s inherent power;[9]
(b) the Motion is not intended to review the merits of the August 2022 Decision;[10] and
(c) the Motion is not intended to operate as another tier of appeal.[11]
This would mean that the appellate process for DSNR’s matter concluded in August 2022 with the August 2022 Decision.
DSNR’s matter originated in the High Court[12] and DSNR subsequently appealed to the Court of Appeal[13] and then to the Federal Court.[14]
The final outcome was the August 2022 Decision.
Thus, the August 2022 Decision marks DSNR’s exhaustion of all avenues of appeal.
The March 2023 Decision, however, practically and realistically, marks DSNR’s exhaustion of all local judicial avenues/routes.[15]
[1] Kit Yen, Ho. “Federal Court upholds Najib’s conviction, ex-PM to go to jail.” Free Malaysia Today, 23 August 2022, https://www.freemalaysiatoday.com/category/nation/2022/08/23/federal-court-upholds-najibs-conviction-ex-pm-to-go-to-jail/. Accessed 4 April 2023.
[2] Lim, Ida. “Najib asks Federal Court to review its decision to uphold his SRC International conviction.” Malay Mail, 6 September 2022, https://www.malaymail.com/news/malaysia/2022/09/06/najib-asks-federal-court-to-review-its-decision-to-uphold-his-src-international-conviction/26847. Accessed 4 April 2023.
[3] Yatim, Hafiz and Achariam, Timothy. “Apex court dismisses Najib’s bid to review SRC conviction, sentence.” The Edge Markets, 31 March 2023, https://www.theedgemarkets.com/node/661571. Accessed 4 April 2023.
[4] Though a Court of Appeal judge, YA Dato’ Abu Bakar bin Jais was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution.
[5] The joint majority judgment can be accessed at https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=94a34f32-806d-41fc-992d-9f88957cd804&Inline=true
[6] His Lordship’s judgment can be accessed at https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=08642d8a-3482-4dc6-8b4f-2ddf7bc9296f&Inline=true
[7] The Edge TV. “NEWS: ‘Legally Najib has exhausted all avenues of appeal’”. Youtube, 31 March 2023, https://www.youtube.com/watch?v=Yrv4WDTKmlc. Accessed 3 April 2023; see also Azhar, Danial. “Najib has exhausted all avenues of appeal, says prosecution”. Free Malaysia Today, 31 March 2023, https://www.freemalaysiatoday.com/category/nation/2023/03/31/najib-has-exhausted-all-avenues-of-appeal-says-prosecution/. Accessed 4 April 2023.
[8] FMT Reporters. “Top criminal lawyer appointed ad-hoc prosecutor in Najib’s SRC case.” Free Malaysia Today, 4 February 2019, https://www.freemalaysiatoday.com/category/nation/2019/02/04/top-criminal-lawyer-appointed-ad-hoc-prosecutor-in-najibs-src-case/. Accessed 4 April 2023.
[9] Wu Kai-Ming, Joshua. “5 Things About The Review of Federal Court Decisions.” Joshua Wu, 27 January 2022, https://joshuawu.my/5-things-about-the-review-of-federal-court-decisions. Accessed 4 April 2023.
[10] Ibid.
[11] Ibid.
[12] Hamdan, Nurbaiti and Tan, Royce. “Court orders Najib to enter defence over RM42mil SRC case (updated)”. The Star, 11 November 2019, https://www.thestar.com.my/news/nation/2019/11/11/court-orders-najib-to-enter-defence-over-rm42mil-src-case. Accessed 4 April 2023.
[13] Singh, Sharanjit and N Karim, Khairah. “Court of Appeal upholds decision that Najib is guilty on all counts [NSTTV]”. New Straits Times, 8 December 2021, https://www.nst.com.my/news/crime-courts/2021/12/752357/court-appeal-upholds-decision-najib-guilty-all-counts-nsttv. Accessed 4 April 2023.
[14] Kit Yen, Ho. “Federal Court upholds Najib’s conviction, ex-PM to go to jail.” Free Malaysia Today, 23 August 2022, https://www.freemalaysiatoday.com/category/nation/2022/08/23/federal-court-upholds-najibs-conviction-ex-pm-to-go-to-jail/. Accessed 4 April 2023.
[15] Although there is no legal limit to the number of motions for review a litigant can file, any subsequent motions for review not premised on new grounds which were not present during the earlier motion(s) for review could be res judicata and amount to an abuse of process [see e.g. Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 (SC), at pp. 498-499 and Asia Commercial Finance (M) Sdn Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC), at p. 200] and would likely not succeed.
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