Counsel for former Selangor menteri besar Mohd Khir Toyo argued that his graft charge and subsequent conviction were erroneous as there had been no 'prima facie case' against him to begin with.

ramli yusuff asset declare case 120310 muhammad shafee abdullah In his oral submission before the three-member bench at the Appellate Court today, Khir's lawyer Shafee Abdullah ( right ) contended that as the charge was corruption as a public servant, the prosecution had never proven conclusively that Khir was one, arguing that the definition of a public servant under the Penal Code does not extend to MBs.

At best, he argued, an MB is the executive of government of the state but that does not make him a public servant.

More so he criticised the prosecution's use of a state law governing the Selangor State Development Corporation (PKNS), to describe Khir as a public servant as he was the entity's chairperson, in relation to a charge under the Penal Code which is federal law.

Such a practice, he said, threatens to breach constitutional safeguards on the separation of powers between federal and the state governments.

As such he posited that Khir was not considered a civil servant and the charge should not have been laid against him.

Shafee also stressed that the charges brought against Khir must prove that there is a link to the person he acquired the considerations from in exchange for his influence or favour, and as the charge states that Khir as MB, then the link must be between him and another party in his duties as menteri besar.

The charge cannot refer to whatever else that the former MB does in his other capacities as heads of various state organs like PKNS, where he stands accused of wrongfully favouring a person to entice considerations.

This is problematic as Khir was named in the charge as MB but was accused of peddling his influence as PKNS chairperson to obtain valuable property for far less their market value from a businessman.

'The charge is not specific'

In this case, the charge is not specific and cannot stick, argued Shafee.

He also argued that the trial judge erred in dismissing 'illustration of market value' as the yardstick to assess the worth of the property involved in the graft case, as this is the real benchmark for property valuation.

The judge's decision, he said, also did not take into consideration that the value of a fully completed and well appointed house as the property in 2004, could not be the same as the skeleton of a house without CF as it was in 2007 when Khir purchased it.

khir toyo mansion 060709 08 As such Shafee argued that the judge's dismissal of both issues made it seem that the house was bought at a lower price then what the previous buyer had paid for, something which, he said, they strongly contended and independent valuations have proven to be otherwise.

Khir was convicted on Dec 23, of corruption for obtaining for himself and his wife Zahrah Kechik, two lots of land and a house at No 8 & 10, Jalan Suasa 7/1L, from Ditamas Sdn Bhd director Shamsuddin Hayroni, at RM3.5 million - a lower price than the RM6.5 million Ditamas paid for it in 2004.

The former MB is appealing his conviction.

Shafee's submission took the better part of the morning's proceedings, with the respondents from the prosecution to continue with theirs at 2pm after a short break.

After hearing the submission from the respondents for another three hours, Abu Samah then declared that the court needed to deliberate on the day-long proceedings and shall sit again on Sept 28 at 3pm to render their judgment.