The High Court was told that former 1Malaysia Development Berhad (1MDB) chief executive officer Datuk Shahrol Azral Ibrahim Halmi repeatedly declined to comment when questioned by lawyers representing the defendants in a US$5.64 billion civil suit.
Senior lawyer GK Ganesan, who represents former 1MDB investment director Kelvin Tan Kay Jin, the seventh defendant, urged the court to direct the 56-year-old witness to answer the questions put to him. Ganesan argued that Shahrol Azral should not repeatedly respond with “no comment” during cross-examination.
The issue arose after Shahrol Azral gave the response while being questioned by Tan Sri Muhammad Shafee Abdullah, who represents former prime minister Datuk Seri Najib Tun Razak. Shafee was asking him about the RM5 billion bond issued by Terengganu Investment Authority Bhd (TIA), which Shahrol Azral had claimed was carried out on Najib’s instructions.
Ganesan told Judicial Commissioner Mohamad Redzuan Idrus that Shahrol Azral had already used the phrase “no comment” numerous times during the proceedings.
He argued that Section 132 of the Evidence Act 1950 required a witness to answer questions put to them, while Section 146 allows questions to be asked to test the accuracy, truthfulness and credibility of a witness. Ganesan also referred to Section 148(2)(c), which allows the court, where appropriate, to draw an inference from a witness’ refusal to answer.
“Your Lordship, as defendants, we are now required to listen to a witness who repeatedly says ‘I have no comment’, and these answers do not assist in uncovering the truth in this matter,” Ganesan submitted.
He subsequently asked the court to direct Shahrol Azral to answer the questions. The application was supported by Shafee, who is representing Najib, the first defendant in the suit.
Mohamad Redzuan said the court would draw the appropriate inference if a witness refused to answer a question after being directed to do so. The Judicial Commissioner also questioned why lawyers who had previously cross-examined Shahrol Azral had not raised the issue earlier.
“What is surprising to the court is that the lawyers who previously cross-examined the witness did not bring this matter to the court’s attention. Likewise, the plaintiffs’ lawyers did not assist or direct their witness to answer,” he said.
The civil suit was filed by 1MDB and its subsidiaries — 1MDB Energy Holdings Limited, 1MDB Energy Limited, 1MDB Energy (Langat) Limited and Global Diversified Investment Company Limited, formerly known as 1MDB Global Investments Limited — on May 7, 2021.
Named as defendants are Najib, former 1MDB finance director Terrence Geh Choh Heng, former executive director Casey Tang Keng Chee, former chief investment officer Vincent Beng Huat Koh, former investment director Kelvin Tan Kay Jin and former chief investment officer Nik Faisal Ariff Kamil.
The suit alleges, among other claims, that the defendants breached their fiduciary duties, violated statutory duties, abused their powers and conspired to misappropriate 1MDB funds.
More recently, 1MDB agreed to discontinue its civil suit against Radhi without liberty to file a fresh claim. The company had earlier also removed Jasmine as a defendant in the suit.
