The decision by the Federal Court on former Selangor menteri besar Dr Mohd Khir Toyo due on Tuesday could be deferred, as his lead counsel Muhammad Shafee Abdullah has filed an application for a retrial at the Court of Appeal.

SuaraTV reports that Shafee filed the application last Tuesday, where the Umno-linked lawyer has also applied to possibly provide more submissions on that issue alone before it arrives at a final decision.

At the last session last month, Chief Judge of Malaya Zulkefli Ahmad Makinudin, who led the five-member bench, said it was ready to deliver the decision, despite Khir not being present. Khir suffered a heart attack the day before.

“We will deliver a decision with of without you (Shafee),” Zulkefli had said in fixing a date which was originally stated as earlier than Sept 22, when the bench came up on Aug 27 to deliver its decision.

Justice Zulkefli made the remark as the bench noticed that Khir had several lawyers, including M Athimulan and Kamarul Hisham Kamaruddin, and after Shafee informed the court that the original date given by the court was not suitable as he would be overseas.

However, following the new application by Shafee ( photo ), it is not known whether the bench would deliver its decision on Tuesday Sept 22 as scheduled.

Shafee had addressed the letter dated Sept 14, to Chief Justice Arifin Zakaria, his no 2, Court of Appeal president Justice Md Raus Sharif, Zulkefli, and the remaining four Federal Court judges who heard the appeal namely Federal Court judges Justices Ahmad Ma’arop, Hasan Lah, Jeffrey Tan Kok Wha and Ramly Ali.

In the letter, the Umno-linked lawyer pointed to the possibility of a serious mistake done by Justice Azahar Mohamed, who had written the Court of Appeal judgment.

Justice Azahar is now a Federal Court judge, as is Justice Abu Samah Nordin who had then led the Court of Appeal bench in hearing Khir’s appeal, that upheld the former Selangor menteri besar’s conviction.

According to SuaraTV , Justice Azahar had found Khir to have a stake in Roniaga Sdn Bhd, which is owned by Shamsuddin Hayroni, the main witness in the case, who had brought the property sold to the politician at a lower price.

“There is not an iota of evidence on record or in actuality that went to suggest that Khir had ever been a shareholder of Roniaga. We are unable to fathom from where the Court of Appeal managed to secure ‘this evidence’, as it was never the case, even during the trial.

‘Blunderous error’

“This blunderous error by the Court of Appeal has caused prejudice against our client,” said Shafee in the letter.

Hence, Shafee said the blunderous findings of fact by the Court of Appeal entitles a re-hearing on their client.

“We submit that our client is entitled to a re-hearing of this appeal at the Court of Appeal before a differently constituted corum) or at least a further hearing of this matter at the Federal court itself,” he said.

Khir was found guilty and sentenced to 12 months jail and had his Balinese mansion in Section 7 Shah Alam seized by the authorities when the High Court found him guilty of graft, and the Court of Appeal upheld the decision.