PUTRAJAYA: Former Selangor menteri besar Dr Mohd Khir Toyo, who was found guilty of corruption and sentenced to 12 months' jail by the Shah Alam High Court last year, will know on Sept 28 whether his appeal is successful.
The Court of Appeal fixed the date yesterday after hearing submissions from Dr Khir's counsel, Datuk Seri Muhammad Shafee Abdullah and deputy public prosecutor Abdul Wahab Mohamad.
Shafee submitted the trial judge Datuk Wira Mohtarudin Baki erred when he decided that evidence from a key prosecution witness Shamsuddin Hayroni was credible.
"The judge did not consider the fact that Shamsuddin was an accomplice. His evidence should be taken with care," he said, adding that Shamsuddin was an interested witness but the prosecution withdrew the charge against him just as the trial began. He then turned prosecution witness.
Shafee said the High Court was wrong in holding that the elements of the charge was proved and that Dr Khir was a "public servant" within the meaning of Section 165 of the Penal Code under which he was charged.
"The definition of 'public servant' does not incorporate a menteri besar or chief minister," he said.
"The prosecution's contention was that Dr Khir was a public servant by virtue of his position as the chairman of the Selangor State Development Corporation (PKNS).
"Dr Khir, however, was charged in his capacity as menteri besar," he told Court of Appeal judges Datuk Seri Abu Samah Nordin, Datuk Azahar Mohamed and Datuk Aziah Ali.
Dr Khir was charged with obtaining for himself and his wife, Zahrah Kechik, two plots of land and a house in Shah Alam, from Ditamas Sdn Bhd through Shamsuddin for RM3.5 million.
The property was said to be much lower than the original price of RM6.5 million.
Dr Khir, 45, allegedly committed the offence at the Selangor menteri besar's official residence on May 29, 2007.
On Dec 23 last year, Mohtarudin sentenced Dr Khir to 12 months' jail. He also allowed an application by the prosecution for the government to forfeit the property.
The judge had ruled that the prosecution had proven the elements under the charge -- that the accused was a public servant and he had purchased the property without consideration.
Yesterday, Shafee said the trial judge had failed to consider several facts favourable to his client.
"The judge did not consider the fact that the only knowledge available to Dr Khir prior to the purchasing date was an independent valuation report done by a valuation firm, Rahim & Co," he said.
(In its valuation report, the firm had stated that the market rate for the property was at RM3.5 million.)
Shafee said the trial judge also erred in ordering the forfeiture of the property.
"The subject matter of the offence is the alleged unlawful margin -- the amount paid for the house and actual value of the house. The subject matter is not the house," he said.
Deputy public prosecutor Masri Mohd Daud, who was assisting Abdul Wahab, submitted that the forfeiture order was in accordance with Section 36 of the Prevention of Corruption Act 1997.