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Khir Toyo fails in appeal to overturn conviction

PUTRAJAYA: Former Selangor menteri besar, Dr Mohamad Khir Toyo, failed in his bid to overturn his conviction and 12 months' sentence for acquiring two plots of land to build a bungalow without adequate consideration.

Court of Appeal judges Datuk Seri Abu Samah Nordin, Datuk Azahar Mohamad and Datuk Aziah Ali unanimously dismissed Dr Khir's appeal today after finding the trial judge was correct in convicting him.

 Dr Khir, 47, was found guilty by the Shah Alam High Court in December 2011, with obtaining for himself and his wife,  Zahrah Kechik, two plots of land and a house at No 8 & 10, Jalan Suasa 7/1L, from Ditamas Sdn Bhd through its director Shamsuddin Hayroni at RM3.5mil, a much lower price than the RM6.5mil Ditamas had paid for in 2004.

 He was charged with obtaining the properties from Shamsuddin despite knowing that he had business dealing with as his capacity as a Selangor menteri besar at that time.

 The former Sungai Panjang assemblyman allegedly committed the offence at the Selangor menteri besar's official residence at Jalan Permata 7/1, Section 7, in Shah Alam on May 29, 2007.

 Under Section 165 of the Penal Code, he was liable to a maximum jail term of two years or fine, or both.

Today, Azahar, who took about 90 minutes to read out the judgment, said the counsel for the appellant said the judge had erred in deciding six main issues of the case which include whether he was a public servant and whether the RM3.5 million he used to purchase the property was an adqeuate consideration.

"As a menteri besar, he was also the chairman of PKNS (State Economic Development Corporation). And in his capacity as the PKNS chairman, he had official dealings with Shamsuddin's companies," said Azahar.

 "Hence, we are of the view that he was in fact a public servant."   He added that although the charge had stated he in his capacity as MB, that error or omission in the charge did not mislead him and that there was no miscarriage of justice.

 "He also knew he had business dealings with Shamsuddin, who was a developer in Selangor."

 Azahar said Shamsuddin was not a willing participant in the deal.

 "This is not a case of willing buyer and willing seller. Shamsuddin instead, had no choice but to sell the properties at the price offered by the appellant as he feared his businesses in Selangor would be affected," he said.

 "The valuation report which stated the market value of the property at RM3.5 million was only a reference and we agree with the trial judge that the amount was inadequate based on the facts surrounding the case."

  The court also found that Shamsuddin was not an accomplice in the case, as argued by Dr Khir's counsel, and that he was a credible witness.

 In fact, the court found that based on the evidence, Dr Khir had shown interest on the properties and had planned to renovate the house into a Balinese concept much earlier on, and had started works on it even before he officially purchased the properties.

 "Hence, the trial judge had directed himself correctly and we do not see any reason why the decision should be tampered with," he said.

 "We find not appeallable error and uphold the High Court's decision."

 The court then unanimously upheld the High Court decision and 12 months' jail sentence and on lower court's decision in allowing the government to forfeit the property.

 He dismissed Dr Khir's appeal but granted him a stay on the sentence and forfeiture of property pending an appeal, on the same term set by the High Court.

 The defence team led by Datuk Muhammad Shafee Abdullah gave an undertaking to file the appeal by today.

DPPs Mohd Dusuki Mokhtar and Masri Daud appeared for the respondent.

Source: NST, Friday 31  May 2013

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