PUTRAJAYA: The Court of Appeal was told yesterday that the judge in former Selangor Menteri Besar Datuk Seri Dr Mohamad Khir Toyo’s corruption trial had erred in his judgement on setting the benchmark for a Shah Alam property as the purchase price paid by Ditamas Sdn Bhd director Datuk Shamsudin Haryoni three years earlier (2004), instead of the 2007 market price.
Lead counsel Datuk Seri Muhammad Shafee Abdullah submitted that the court should have taken into consideration the bank’s independent valuation report by Rahim & Co which had assessed the property at RM3.5 million in 2007.
He argued that trial judge Datuk Wira Mohtaruddin Baki made a new law that the benchmark had to be the last transacted price regardless of whether it was above or below the “reasonable market value”.
He contended further that Dr Mohamad Khir was fully aware Shamsudin had bought the property for RM6.5 million.
“My client put in about RM500,000 and secured the balance RM3 million through a bank loan,” submitted Muhammad Shafee before the three-man panel headed by Datuk Seri Abu Samah Nordin.
The two others were Datuk Azhar Mohamad and justice Datuk Aziah Ali.
The counsel also submitted that the trial judge had failed to take into consideration that Shamsudin was an accomplice with another contractor, Nasir Ismail, who had carried out a RM1.5 million renovation on the bungalow.
He said Shamsudin was initially charged for abetment but it was withdrawn by the Malaysian Anti-Corruption Commission (MACC) after he withdrew his earlier statement to the Commission.
He further submitted that justice Mokhtarudin also erred in his sentencing in ordering the forfeiture of the property as there was no provision for such forfeiture, because the appellant was not charged with obtaining the property (bungalow) via illegal means.
He said on this ground alone, Mohamad Khir’s appeal should be allowed and the High Court decision set aside.
On Dec 23 last year, Mohamad Khir was sentenced to 12 months in prison after he was found guilty on a charge of obtaining for himself and his wife, Zahrah Kechik, 46, two lots of land and a bungalow at No 8&10, Jalan Suasa 7/1L through Ditamas Sdn Bhd director Shamsuddin, at a consideration he knew was insufficient, in 2007.
Meanwhile, deputy public prosecutor Abdul Wahab Mohamad submitted that the appellant (Dr Mohamad Khir) himself had informed HSBC Bank he wished to buy the property at RM3.5 million and needed a loan.
Shamsudin was never a “willing seller” at that price, he added.
He further contended that the appellant had taken advantage of his position by stating the low price despite knowing Shamsudin would incur a big loss.
“So it is on this basis that the offence under Section 165 of the Penal Code exists, to ensure a civil officer does not take advantage of a person who has an official relationship with them,” said Abdul Wahab.
“Shamsudin had to agree to his price because he realised his company (Ditamas Sdn Bhd) had various dealings with the Selangor State Development Corporation (PKNS), of which the appellant was the chairman,” he added.
Judge Abu Samah fixed Sept 28 to deliver the verdict on Dr Mohamad Khir’s appeal.