PUTRAJAYA, Sept 29 (Bernama) — Former Selangor Menteri Besar Dr Mohamad Khir Toyo was today sent to prison to serve his 12-month sentence after losing his final appeal against conviction for using his position to obtain land and a bungalow unit in Shah Alam, eight years ago.
A five-member panel chaired by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin said imprisonment was the right and proper punishment for the offence.
“Corruption in all manner and form cannot be condoned. A fine would not send that message.
“Neither would community service. In any event, community service is an option only in the case of youthful offenders under Section 293 of the Criminal Procedure Code, with regard to community service which in the present case does not apply to the appellant (Dr Mohamad Khir),” said Justice Zulkefli in a packed-courtroom.
He said the offence, which was destructive of public confidence in the government, was not trivial in nature and a year’s imprisonment, which was not appealed by the prosecution, was hardly excessive.
“The appellant took advantage of his position. One purpose of Section 165 of the Penal Code is to prevent that sort of corruption,” the judge said.
After the verdict, Dr Mohamad Khir, 50, who appeared calm was seen talking with his team of lawyers including Tan Sri Muhammad Shafee Abdullah.
He then turned to the public gallery and said “Terima kasih semua”, before proceeding to the court lockup.
His wife, Zahrah Kechik, 50, who also appeared calm, accompanied him to the court lockup before a police car came to send him to Kajang prison at 2.52 pm.
On Sept 22, the Federal Court dismissed Dr Mohamad Khir’s final appeal and upheld his conviction on a charge of obtaining for himself and his wife, two plots of land and a bungalow in Section 7, Shah Alam, from Ditamas Sdn Bhd through its director Datuk Shamsuddin Hayroni.
The properties were bought at RM3.5 million, in contrast to the price of RM6.5 million paid for it by Ditamas.
The former Sungai Panjang assemblyman was found guilty by the Shah Alam High Court of committing the offence at the Selangor Menteri Besar’s official residence in Jalan Permata 7/1, Section 7, Shah Alam, on May 29, 2007.
Dr Mohamad Khir, a dentist, resorted to the Federal Court after losing his appeal in the Court of Appeal on May 30, 2013.
Dr Mohamad Khir, who was the Menteri Besar from August 2000 until February 2008, was charged under Section 165 of the Penal Code which carries a maximum jail term of two years or a fine or both, on conviction.
In the judgment, Justice Zulkefli said the panel could not agree with Muhamad Shafee’s argument that the subject matter of the land was the differrential sum.
He also said with the conviction, Mohamad Khir could not resist forfeiture of the subject matter of the offence.
“In the present case there was a chargee bank with rights of a chargee, not an owner. There was an encumbrance on the said land. We, therefore, unanimously uphold the order of forfeiture of the said land but subject to the charge, if any,” he said.
He added that the land was not arbitrarily forfeited and it was a lawful deprivation.
He said Mohamad Khir and his wife were the registered proprietors and therefore they the owners of the land.
The judge also said it was trite that in deciding the appropriate sentence the first and foremost consideration was the public interest.
He said it was an established principle that the sentence of the court of first instance should not be altered unless it was manifestly wrong, in the sense of being illegal or being unsuitable to the proved facts and circumstances, or manifestly excessive or inadequate.
Justice Zulkefli said as a sentence was a matter of discretion, the appellate court should be slow in interfering with the sentence imposed by the court below and mitigating factors should also not be disregarded.
“A court has the discretion to be lenient and merciful provided there are extenuating circumstances and it is in the public interest to do so. But in the final analysis, a sentence must reflect the seriousness or triviality of the offence,” he said.
Justice Zulkefli said Mohamad Khir who sought to address the court during mitigation, amongst others offered to perform community service, namely free dental service to the poor, for a number of days in a week for a period of one to two years, in lieu of imprisonment.
Earlier, before the court imposed the sentence on his client, Muhammad Shafee had raised complaints on two articles published in The Sun daily which he said had prejudiced Mohamad Khir.
He said the articles were published after the court adjourned the decision to sentence Mohamad Khir today.
Justice Zulkefli said the panel took note on Muhammad Shafee’s complaints but clarified that the court decided the case purely on facts and evidence presented before them.
“None of the reports have influenced us at all in arriving to the decision. We are not swayed by any reports by the media,” said the judge firmly.