The prosecution has admitted there is an error in the graft charge against former Selangor menteri besar Dr Mohd Khir Toyo.
 
According to DPP Mohd Masri Daud who is leading the prosecution, the prosecution only realised this when the matter came up for appeal.
 
"However, it does not amount to the defence being cheated or there is a miscarriage of justice," Masri told the Federal Court this afternoon.
 
He noted that Khir was also the State Development Corporation (PKNS) chairperson during his tenure as menteri besar. This is by virtue of being the Selangor MB, he said in replying to submissions from Khir's defence team.
 
Furthermore, Masri, citing the Criminal Procedure Code, said Section 422 states that an error in the charge, should not affect any order or sentence already passed by the court, unless there is a total miscarriage of justice.
 
Counsel Muhammad Shafee Abdullah complained that while the charge stated that his client had corruptly used his position as Selangor MB to obtain land and properties below market value, the trial however referred mainly to Khir's position as PKNS chairperson.
 
Shafee said the prosecution did not amend the charge throughout the trial and in charging him as former MB, this had a prejudicial effect on Khir with regard to his right to a fair trial.
 
It also denied his client’s right to call additional witnesses in his defence.
 
"On this point alone, my client should have been acquitted of the charge," Shafee argued.
 
Khir was found guilty of corruption by the High Court in Shah Alam and sentenced to 12 months' jail and forfeited his Balinese mansion. The Court of Appeal upheld the conviction and sentence.
 
The former Selangor MB's appeal is being heard by the Federal Court before a five-member bench led by Chief Judge of Malaya Zulkefli Ahmad Makinuddin.
 
The other judges are Federal Court judges Ahmad Ma'arop, Hasan Lah, Jeffrey Tan Kok Wha and Ramly Ali.
 
Position used corruptly
 
Khir was convicted by the High Court in Shah Alam on Dec 23, 2011 of corruptly using his position as MB  to obtain land and property at below the market price.
 
He was found guilty of obtaining for himself and his wife, Zahrah, two lots of land and a house at No 8 and 10, Jalan Suasa 7/1L, from Ditamas Sdn Bhd director, Shamsuddin Hayroni, at RM3.5 million - a much lower price than what the company had paid in 2004 which was RM6.5 million.
 
Masri also dismissed the argument by the defence that by virtue of Khir being a PKNS chairperson, he therefore cannot be considered a public servant under the PKNS Enactment, as the former Selangor MB was charged under Section 165 of the Penal Code, a lesser corruption charge compared to the Malaysian Anti Corruption Act 2007 or the Prevention of Corruption Act 1997.
 
The DPP said Khir's position despite being the PKNS chairperson is still considered as a public servant under Section 21 (i) of the Penal Code, that defines every officer whose duty to take, receive, keep expend any property on behalf of the government.
 
He further stated that Section 17 defines the MB as any person lawfully performing executive functions.
 
“Here Khir is the PKNS chairperson, who is entrusted to expend the assets of the state (under the definition of a public servant in the Penal Code).

"Under the PKNS enactment, the task of an officer is to promote residential, industrial and economic development of the state as defined under the Penal Code,” said Masri.
 
“In this case, Khir had approved the said land in Bangi for Shamsuddin (left). In return the former MB obtained the said land in Shah Alam from Shamsuddin at a lower cost compared to what the developer had paid. All the elements had been proven before the trial judge and upheld by the Court of Appeal.”
 
He added Khir had tried to purchase the property in 2006 and was aware that it was valued at RM6.5 million, based on what Shamsuddin had paid.
 
Khir, Masri said further hired a contractor, Nasir Ismail, to renovate the house in 2006, when the said property is still owned by Ditamas Sdn Bhd, a company which Shamsuddin owned. But the next year, the former Selangor MB bought the property from Shamsuddin for RM3.5 million.
 
The prosecution maintained that Shamsuddin's and Nasir's testimony was impeccable.
 
Court defers decision
 
For the defence, lawyer Kamarul Hisham Kamaruddin, pointed to the possibility of Shamsuddin and Nasir conspiring to fix Khir up.
 
This follows Shamsuddin was initially charged but later became as the prosecution's witness.
 
“He gave differing testimonies to the police and the MACC and is not a credible witness,” he said.
 
Shafee (right) further argued that the error in the charge, is fatal for the prosecution's case just like what had happened in Anwar Ibrahim's sodomy I allegation where the inconsistent date of the alleged offence resulted in an acquittal.
 
He pointed to another case involving former Selangor exco, Saidin Tamby who was also charged for graft but was acquitted because the court ruled that the prosecution's charge was inconsistent.
 
The failure by the prosecution to execute a correct charge had prevented the defence from questioning the right witnesses, the senior lawyer who is linked to Umno said.
 
Justice Zulkefli on hearing all the submissions today said the court reserves judgment to a date to be fixed.