PUTRAJAYA (Bernama) – The Court of Appeal had misdirected itself when it upheld the conviction of former Selangor Menteri Besar Datuk Seri Dr Mohamad Khir Toyo on the charge of obtaining valuable items for himself and his wife, the Federal Court was told yesterday.
Counsel Tan Sri Muhammad Shafee Abdullah, representing Dr Mohamad Khir, said this was because the charge was defective.
He said this being that the charge stated that Dr Khir committed the offence in his official capacity as Selangor Menteri Besar, while the Court of Appeal had upheld the conviction on Dr Khir in his capacity as the chairman of the Selangor State Development Corporation (PKNS).
“The prosecution did not amend the charge until today. We are guided by the charge. The charge against the appellant (Dr Khir) is defective,” said Muhammad Shafee at the hearing of Dr Khir’s final appeal to set aside his conviction and 12-month jail sentence.
Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin is chairing the appeal with four other Federal Court judges, comprising justices Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Tan Sri Jeffrey Tan Kok Wha and Datuk Ramly Ali.
Muhammad Shafee said his client was charged under Section 165 of the Penal Code, which applied to public servants, and argued that Dr Khir, who was Menteri Besar and a board member and chairman of PKNS at that time, did not fall under the definition of a public servant.
He contended that the crux of the prosecution’s case was that Dr Khir had bought a property for inadequate consideration at RM3.5 million in 2007 and pointed out the prosecution’s argument that it was not relevant to rely on market value, .
However, he said, the prosecution relied on the valuer’s report by Trans Asia Properties, which was appointed by the second prosecution witness, Shamsuddin Hayroni, who is Ditamas Sdn Bhd director, while ignoring completely the valuation report made by Rahim & Co, a valuer appointed by a bank.
Rahim & Co’s valuation of the property at RM3.5 million, after actual inspection of the state of the property in 2007, was not challenged at all by the prosecution, he added.
He also submitted that both the High Court and Court of Appeal had not considered at all the change in valuable things on the property in 2004 and 2007.
In 2004, there was a complete Italian design building with a certificate of fitness, while in 2007, there was a skeleton structure of a building with no certificate of fitness, he added.
On Dec 23, 2011, the High Court in Shah Alam found Dr Khir, 49, guilty of obtaining for himself and his wife, Zahrah Kechik, 47, two plots of land and a bungalow in Section 7, Shah Alam, and sentenced him to 12 months’ jail.
The properties were obtained four years ago from Shamsuddin.
Dr Khir was accused of committing the offence at the official residence of the Selangor Menteri Besar in Jalan Permata 7/1, Section 7, Shah Alam, on May 29, 2007.
The High Court also ordered that the properties involved be forfeited and handed over to the government.
On May 30, last year, the Court of Appeal dismissed his appeal and upheld the High Court’s decision. Dr Khir subsequently filed his appeal to the Federal Court.