Land case: Federal Court upholds Khir Toyo's guilty verdict

On that day, Dr Khir Toyo, 50, would know his fate, whether he would go to jail, or be let off with a fine or be subjected to community service.

A five-member panel of the Federal Court chaired by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin upheld Dr Khir Toyo's conviction on the charge but reserved its decision on sentencing.

Justice Zulkefli said the court did not want to rush to decide on the sentencing as the panel wanted to consider the submissions made by both sides on sentencing.

Dr Khir Toyo, a father of six, appealed against a High Court's decision which found him guilty and sentenced him to 12 month jail on the charge of using his position to obtain land and a bungalow in Shah Alam in 2007.

He brought the matter to the Federal Court after losing his appeal in the Court of Appeal on May 30, 2013. -- MORE

COURT-KHIR TOYO 2 PUTRAJAYA

During mitigation earlier, Dr Khir Toyo's counsel Tan Sri Muhammad Shafee Abdullah urged the court not to send him to jail but either to impose a fine or that he be made to carry out public community service.

"The court may choose to give a stiff fine but it should consider to allow Dr Khir Toyo to pay the fine by installment," he said.

He said based on a case law, another alternative sentence that the court could impose was for Dr Khir Toyo to do community services.

Muhammad Shafee explained that his client, a dentist by training, had given his undertaking that he was willing to do community service for a period of time set by the court by providing free dental services to poor communities.

"I suggest a period of between one to two years, for at least three days in a week," he said adding that his client was willing to provide the dental services within his former constituency or any part of Selangor.

Muhammad Shafee said in the case of Dr Mohamad Khir being a first offender, the court would normally avoid imprisonment except for offences involving violence.

He said Dr Mohamad Khir had six children with the eldest aged 24 and the youngest aged six.

DPP Mohd Dusuki Mokhtar replied that the Court of Appeal had correctly applied the principle of law in the interest of the public when meting out the sentence against Dr Mohamad Khir.

He said community service was inappropriate in this kind of offence.

Dr Mohamad Khir, dressed in a grey suit, looked calm when the court handed down the verdict on his conviction.

He was also given the opportunity to personally address the court to ask for leniency.

The court was packed with his family members, supporters and media. His wife Zahrah Kechik, 50, was also present.

The High Court in Shah Alam had found Dr Mohamad Khir, guilty of obtaining for himself and his wife two plots of land and a bungalow in Section 7, Shah Alam, from Ditamas Sdn Bhd through its director Datuk Shamsuddin Hayroni.

The former Sungai Panjang assemblyman 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 other judges on the Federal Court panel were Justices Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Tan Sri Jeffrey Tan Kok Wha and Datuk Ramly Ali.

Justice Tan who delivered the unanimous decision held that there was no error or omission in the ingredients and particulars of the offence.

"There was no defect in the charge (against Dr Mohamad Khir)," he said.

The judge said the words in the charge alleged that the appellant (Dr Khir Toyo) knew that the second prosecution witness (SP2), Shamsuddin, had connections with his official work as Menteri Besar.

He said, therefore, as the Menteri Besar, the appellant was also Chairman of PKNS.

Justice Tan said as for the ingredient of accepting a valuable thing for himself and his wife, it was proven beyond all doubt, by the resgistration of the transfer of the land from Shamsuddin to Dr Mohamad Khir and his wife.

The judge said Dr Mohamad Khir had his way, adding that the sale of the land to him was based on the valuation that exactly matched the exact sum offerred by Dr Mohamad Khir to Shamsuddin which the latter had not accepted.

"Fairly said, it would only appear that sale to the appellant and wife could not have been on a willing seller and willing buyer basis, which supported the story of SP2 that he had no option but to sell out of fear that his bussiness with PKNS where the appellant was chairman would otherwise be adverserly affected.

"Indeed, why would SP2 sell at RM3.5 million when he had bought it at RM6.5 million? There was no evidence that SP2 was in financial straits. It would not seem that SP2 could have been a willing seller," he said.

The judge said perhaps the appellant might not know the exact shortfall but direct evidence showed that the consideration was inadequate.

The court also held that the High Court's decision to order for forfeiture of the property was in accordance in law which was mandated upon conviction of the appellant.