Prosecution admits error in charge against former Selangor MB

The prosecution admitted in the Federal Court here today, there was an error in the charge against former Selangor menteri besar Dr Mohamad Khir Toyo, who was convicted on a charge of obtaining two plots of land and a bungalow for him and his wife.

Deputy public prosecutor Mohd Masri Daud also conceded there was no amendment made to the charge.

He said the prosecution only realised the error when the case was at the appeal stage, adding that the charge could not be amended after Dr Khir was convicted.

"The charge should state Dr Khir, in his capacity as Selangor State Development Corporation (PKNS) chairman, (and not in the capacity of menteri besar)...but I submit that the error is curable under Section 422 of the Criminal Procedure Code," he added.

Mohd Masri submitted that Dr Mohamad Khir's conviction should not be quashed as the error did not amount to miscarriage of justice, stating that as Selangor menteri besar then, Khir was also automatically the PKNS chairman.

He said there was also no indication that Dr Khir was being misled due to the error on the charge.

"The appellant (Dr Khir) held two position at that time," he said in the final appeal brought by Dr Khir who is seeking to set aside his conviction and 12-month jail term imposed upon him.

Justice Zulkefli Ahmad Makinudin, who chaired the five-member panel, then said the fundamental principle of criminal law was that the essential ingredients of the charge must be proven.

Dr Khir's counsel, Tan Sri Muhammad Shafee Abdullah had argued that while the charge stated that his client had used his position as Selangor menteri besar to obtain land and properties below market value, the trial however, referred to his (Dr Khir's) position as PKNS chairman.

After completing hearing submissions from Mohd Masri and reply from Khir's counsel, Muhammad Shafee and Kamarul Hisham Kamarudin, Zulkefli said the court reserved its decision in the appeal to a date to be fixed later.

The judge (Zulkefli) said the court was deferring its decision as it required sometime to deliberate all issues raised in the appeal, adding the court would also come up with the full grounds of judgement.

The panel, which also comprised Federal Court judges Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Tan Sri Jeffrey Tan Kok Wha and Datuk Ramly Ali had resumed the hearing submissions from the defence and the prosecution today.

It begun to hear the appeal on Dec 9, last year.

On Dec 23, 2011, the High Court in Shah Alam found Dr Khir, 50, 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 allegedly obtained four years ago from Shamsuddin Hayroni, who was Ditamas Sdn Bhd director.

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, 2013, the Court of Appeal dismissed his appeal and upheld the High Court's decision. Dr Khir subsequently, filed his appeal to the Federal Court. - Jocelyn Ann Dragon