The Court of Appeal today upheld the conviction of Selangor menteri besar Dr Mohd Khir Toyo for corruption in relation to his acquisition of two lots of valuable land and a mansion in Shah Alam, while being a public servant.

The decision by the appellate court, led by Justice Abu Samah Nordin, was unanimous. The other judges were Justices Azahar Mohamed and Aziah Ali.

The Court of Appeal also upheld the 12-month jail sentence on Khir and the forfeiture of the propertities involved in the corruption, as decided by the High Court.

NONE In reading out the judgment, Justice Azahar said they found no need to disturb the decision of Shah Alam High Court judge Mohtaruddin Baki (now a Court of Appeal judge) in rejecting all the grounds of appeal made by Khir's lawyers.

"Based on the appeal records, we are satisfied to reject the appeal as we felt that the appellant should be found guilty as charged.

“The trial judge was right to convict the accused of the charge beyond reasonable doubt," he said, before a packed court room.

Khir was represented by Muhammad Shafee Abdullah.

The High Court had, on Dec 23, 2011, sentenced Khir to 12 months' jail and ordered that the property involved be forfeited.

Khir is the second Selangor menteri besar who has been convicted of graft, after Harun Idris.

Although the defence had cited 33 grounds of appeal, the court had consolidated all of them to six points, namely:

  • The question of whether he was a public servant;
  • Whether the payment of RM3.5 million to purchase the property was at the market price;
  • Whether he has ties with Ditamas Sdn Bhd director Shamsuddin Hayroni;
  • Whether Shamsuddin had been a partner in crime;
  • The credibility of contractor Nasir Ismail; and
  • Whether Khir's defence was feasible.

To all questions, Justice Azahar said the High Court judge was right in his findings of the fact that Khir was a public servant - being the former MB and former Selangor State Development Corporation (PKNS) chairperson - and that the court was satisfied with the credibility of Shamsuddin, who sold the house to Khir, along with Nasir being the contractor who had renovated the property.

"Khir had shown interest in the aforementioned property before Shamsuddin sold it to him, as he even paid in advance for the renovation costs," Justice Azahar said.

"The RM3.5 million is not a fair and reasonable amount to purchase, as Shamsuddin had earlier purchased the property at RM5.5 million several years earlier," he added.

Hence, Justice Azahar said it was unnecessary for the Court of Appeal to disturb the findings of the High Court.

Sentence and forfeiture of property retained

Shafee - in making a plea for mitigation - said that the forfeiture of the property granted by the High Court should not be allowed as the property is jointly owned by his wife Zahrah Kechik and that Khir had obtained a loan from the bank to finance the deal.

"It would be unfair to the joint owner and the bank if it is forfeited," he said.

NONE Shafee ( left ) also submitted for a lesser sentence of 12 months’ jail as this would result in Khir - who is also the former Sungai Panjang assemblyperson - not being able to contest in elections.

However, deputy public prosecutor (DPP) Masri Mohd Daud noted that the forfeiture should be allowed as this is the provision of the law, regardless of whether it is a joint property or still owed to the bank.

"As long as the property is gained through illegal means, it could be forfeited to the government," said the DPP, adding that the court should uphold the decision.

On the sentence for Khir, Justice Abu Samah said later this afternoon that sentencing was a matter of discretion of the court and that “we are not inclined to disturb the sentence (of the Shah Alam High Court), including the forfeiture, as the subject matter of the charge is the valuable property”.

"We uphold the sentence and forfeiture," Justice Abu Samah ruled.

Shafee said he received immediate instructions to appeal the decision and apply  for a stay of the sentencing pending appeal at the Federal Court.

"We will file the appeal tomorrow," Shafee said.

DPP Dusuki Ahmad objected to any stay of sentence, arguing that an appeal does not operate as stay of execution of the sentence. 

However, Justice Abu Samah allowed a stay of execution pending Khir’s appeal.

Justice Abu Samah also allowed the bail of RM750,000, as imposed by the High Court, to stay pending appeal at the Federal Court.