Editor’s Note: This is an interesting layperson’s view on Tuesday’s (April 11) acquittal of clerk Sam Ke Ting from ‘manslaughter’ charges in the high-profile basikal lajak (illegally modified bicycle) incident at 3.20am on Feb 18, 2017 where eight teenagers perished at Jalan Lingkaran Dalam, Johor Bahru.
WHAT a “ride”! After six long years of battle, Sam Ke Ting is finally a free person again after the three-judge panel at the Court of Appeal (COA) in Putrajaya unanimously ruled to overturn her conviction for reckless driving that caused the deaths of eight boys who were riding bisikal lajak (illegally modified bicycle) in February 2017.
Setting the case aside, one thing that stood out to fellow Malaysians is how leader of the COA judges, Datuk Hadhariah Syed Ismail, was able to detect the slightest flaws in the prosecutor’s logic and questioned him back.
This has won over fellow Malaysians’ applause for her sharp wittiness. Here are eight moments when Datuk Hadhariah gave the prosecution hard times in the courtroom:
1. Do drivers have to be perfect?
Justice Hadhariah first asked the deputy public prosecutor (DPP) Muhamad Syafiq Mohd Ghazali whether the law allowed the riding of a basikal lajak at 3am.
Syafiq avoided answering the question directly by saying that it is impossible to foresee if there would be any basikal lajak activities on the road but it has always been unpredictable on the road.
Following Syafiq’s logic, Hadhariah questioned him if it is necessary for drivers to be driving perfectly in order to avoid all unprecedented accidents to which Syafiq replied: “No, but they must be cautious.”
However, an alert Hadhariah knew that Syafiq had avoided her first question and began asking him again if it is legal to ride a bicycle at 3am to which Syafiq was lost for words.
2. Even a perfect driver would not be able to avoid a car or turtle
Justice Hadhariah continues to question the prosecutor if a perfectly skilled driver is able to stop his car when a cat or a turtle suddenly appears on the road. She added that the situation is very challenging for anyone to see clearly as “the road was hilly, curvy and dark because the streets lights were covered by trees”.
3. Please answer honestly. It’s the fasting month now!
Justice Hadhariah then asked about the 46th prosecution witness who was one of the investigating officers in the case and has testified that the police had carried out an operation to bust basikal lajak activities in that area just days before the accident.
She asked the second DPP Tengku Amir Zaki Tengku Abdul Rahman the reason for such an operation and the prosecutor replied that it is “to safeguard the cyclists’ safety because they endanger themselves as well as the public who drive through the area”.
This is when Justice Hadhariah pointed out this reason favours the defence and that the investigating officer’s testimonies further prove that basikal lajak is an illegal act. She questioned the prosecutor again why would the 46th witness be giving this testimony?
The prosecutor replied that the witness was just making a general statement. This prompted Justice Hadhariah to give him an earful by asking him to answer honestly, especially now is the month of Ramadan.
4. “We have to be fair”
According to the magistrate’s evaluation, the accident was unavoidable “due to the dangerous situation created by the cyclists” Datuk Hadhariah concluded that basikal lajak is indeed an illegal act and urges that being honest and fair is crucial when it comes to justice.
She added that Sam should be given a fair judgement despite what she had done until it is proven that she is at fault. “We have to be honest here when we’re talking about justice. One who was charged is presumed innocent until proven guilty and we are here for justice to prevail, so we have to be fair.”
5. “The only way to avoid the accident was if the car flew over the cyclists”
Following the magistrate’s judgement, Datuk Hadhariah said that “the only way to avoid the accident was if the car flew over the cyclists”. But this wasn’t meant to be a joke but a true reflection of the case. This is given that the number of cyclists involved was not small but a huge group of 30 to 40 cyclists.
6. “Each charge must have one charge, specific charge, and one charge only”
Sam was charged with two different offences including reckless driving and dangerous driving. As such, Justtice Hadhariah slammed the prosecutor for the “duplicity” as it has violated the provisions of Section 163 of the Criminal Procedure Code (CPC).
“Section 163 of the CPC says that each charge must have one charge, specific charge, and one charge only. So in this case, if there is duplicity or (an) overlap which means there are two offences in one charge. The charge brought by the prosecution has violated the provisions of Section 163 of the CPC.” she said.
7. Car drivers are not “definitely liable”
After claiming that the charges were defective, Justice Hadhariah made it clear that both Sam and the victims had violated the law and it is the appellant’s (Sam) right to know what charges are brought against her.
The judge then said: “We can’t say that it is surely the car driver’s responsibility whenever there’s a fatal accident; this is not the position of the law.”
8. “You are now a free person.”
Representing the panel, Justice Hadhariah expressed their sympathies to the families of the eight victims. However, she emphasised that the decision had to be made as according to the law and proof provided before the court.
After evaluating the case from every aspect, all three judges in the appellate court panel (including Datuk Hashim Hamzah and Datuk Azman Abdullah) unanimously ruled in the favour of Sam’s appeal and cancelled her six-year jail sentence and RM6,000 fine.
Justice Hadhariah announced her judgement and ended it with an affirming sentence to Sam: “You are now a free person”.
We are not here to judge whether the judges’ decision is right or wrong. But what we are trying to appreciate is the wisdom our high court judges hold. In them, we believe that justice will be served and our law is protected. – April 14, 2023
