Court of Appeal upholds jail sentence on Khir Toyo

The court also upheld the decision of the Shah Alam High Court on Dec 23, 2011 which ordered the accused to forfeit the ownership on the property obtained and hand it over to the government.

The panel of three judges led by Datuk Seri Abu Samah Nordin, however, allowed the application by the counsel for the appellant, Datuk Seri Mohamad Shafee Abdullah, for a stay of the execution of the sentence while waiting for the outcome of the appeal at the Federal Court.

Justice Datuk Azahar Mohamed, who read the judgement lasting almost two hours, said that the panel of three judges, which also comprised Datuk Aziah Ali, had unanimously decided that there was no reason for the Court of Appeal to disturb the findings of the facts and conviction made by the High Court judge on Dec 23, 2011.

He said that after scrutinising all the appeal records, as well as the submissions by both parties, the panel agreed that the trial judge had made a correct decision and did not err in convicting Dr Mohamad Khir on the charge.

Azahar explained that the panel had scrutinised in detail the six major grounds raised especially by the appellant (Dr Mohamad Khir) why the appeal should be allowed.

Firstly, the issue of whether the appellant was a public servant as provided for under Section 165 of the Penal Code, secondly, whether the payment of RM3.4 million for the property was adequate, thirdly, whether the appellant had any official relationship with the seller of the property concerned, Shamsuddin Hayroni (SP2), fourthly, whether SP2 was a willing participant in the crime, fifthly, the credibility of SP2, and sixthly, whether the prosecution had succeeded in raising reasonable doubt at the end of the defence case.

On the first issue, Dr Mohamad Khir as a board member and chairman of PKNS (Selangor State Development Corporation) had done a lot in discharging his executive responsibility and he was included in the interpretation of a public servant.

On the second issue, he said the appellant had shown interest on the said property since 2004 and eventually, Shamsuddin had agreed to sell it at a price of RM3.5 million to look after his business interest where he had many dealings with the PKNS.

"The transaction was made not on a 'willing buyer and willing seller' basis where SP2 had bought the property at a price of RM7 million," Azahar explained.

Dr Mohamad Khir, 48, is accused of obtaining for himself and his wife, Zahrah Kechik, 46, a valuable item, that is, two plots of land and a house at No 8&10, Jalan Suasa 7/1L, here from Ditamas Sdn Bhd (Ditamas) through its director, Shamsuddin.

Dr Mohamad Khir, who was a former State Assemblyman for Sungai Panjang, is charged with committing the offence at the official residence of the Selangor Menteri Besar at Jalan Permata 7/1, Section 7, here on May 29, 2007.

Azahar said the submission by counsel for the appellant, that the valuation of RM3.5 million on the property made by the consultant from Rahim & Co had been based on the market value, could not bind the court and it should be valued based on the overall evaluation of facts on the transaction for the property.

On the issue that SP2 (Shamsuddin) was a partner in crime, Azahar explained that the trial judge had found that SP2 was a credible witness and "not a willing participant in the crime".

Azahar said SP2 originally (in 2004), when Dr Mohamad Khir showed an interest on the property, had offered a price of RM6.5 million and had to agree to a lower price later to look after his business interest as a contractor.

"In addition, the witnesses called up by the appellant at the defence stage had failed to raise any reasonable doubt, and the personal assistant to the appellant had also given a contradictory statement," Azahar said. Dr Mohamad Khir, who was present in the dock, appeared calm throughout the proceedings today and shook hands with his supporters who were present in court.