THE charges levelled at clerk Sam Ke Ting who was convicted for reckless driving that killed eight teen basikal lajak (modified bicycle) cyclists six years ago, were defective, hence the conviction should not be sustained.
Senior lawyer Datuk Hisyam Teh Pok Teik who appeared for 27-year-old Sam in her appeal at the Appellate Court in Putrajaya today submitted that the charges did not clearly distinguish whether she was charged for either “reckless driving” or “dangerous driving” offence as stated in her charge sheet.
Given that both offences are “lumped together”, Hisyam has deemed the charge illegal due to duplicity.
“There are three distinct offences under Section 41(a) of the Road Transport Act 1987, namely driving a motor vehicle recklessly, driving a motor vehicle at a speed, or driving a motor vehicle in a manner that – in all the circumstances – is dangerous,” the New Straits Times (NST) quoted him as saying.
“But what the prosecutors did in this case was to lump limb one which is reckless driving with limb three which is dangerous driving. This is erroneous as only one limb is allowed in law to be framed.”
Such an illegality was incapable of being cured under Section 422 of the Criminal Procedure Code, thus giving rise to a “failure of justice”, Hisyam told a three-member bench chaired by Justice Datuk Hadhariah Syed Ismail. Also on the panel were Justices Datuk Hashim Hamzah and Datuk Azman Abdullah.
Meanwhile, Free Malaysia Today (FMT) cited Hisyam as saying that the prosecution in the magistrates’ court had focused its case on “reckless driving” but switched to “dangerous driving” when the case came up before the High Court.
In the Court of Appeal, however, he contended that the prosecution appeared to be going for “an indivisible act of reckless or dangerous driving”.
“Again, the appellant is at a disadvantage due to them shifting the goalpost,” he added.
Co-counsel Harvinderjit Singh said the High Court had failed to consider Sam’s defence at the prosecution stage. “She should have been acquitted without her defence being called,” he argued.
Sam was originally acquitted by the magistrates’ court on Oct 28, 2019 at the end of the prosecution’s case without her defence being called. However, following an appeal by the prosecution, the Johor Bahru High Court had on April 13 last year overturned the acquittal and substituted a conviction for reckless or dangerous driving.
Judge Datuk Abu Bakar Katar sentenced Sam to six years’ jail and a fine of RM6,000. The offence under Section 41(1) of the Road Transport Act 1987 (Act 333) carries a maximum jail term of 10 years and a fine of RM20,000 upon conviction.
Sam had been charged with causing the deaths of eight cyclists in Jalan Lingkaran Dalam, Johor Baru at 3.20am on Feb 18, 2017. The eight victims were Azrie Danish Zulkefli, 14 (at the time of the incident); Shahrul Izzwan Azzuraimie, 14; Firdauz Danish Mohd Azhar, 16; Fauzan Halmijan, 13; Azhar Amir, 16; Harith Iskandar Abdullah, 14; Shahrul Nizam Marudin, 14; and Haizad Kasrin, 16.
Today’s proceedings ended just 20 minutes after 11am when deputy public prosecutor Tengku Amir Zaki Tengku Abdul Rahman informed the court that he would be taking two hours to make his submissions.
The court fixed April 11 for another hearing before it was adjourned. – March 31, 2023
Main photo credit: Utusan Online