Thursday 28 Mar 2024
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PUTRAJAYA (April 11): The Court of Appeal (COA) has set aside clerk Sam Ke Ting's conviction, where she was previously found guilty for reckless driving that killed eight teenagers on "basikal lajak", or modified bicycles, in 2017.

A three-member panel led by COA judge Datuk Hadhariah Syed Ismail in a unanimous decision on Tuesday (April 11) found that the charge under which Sam was convicted was a defective charge that was illegal.

"In this case, the charge is not correct. The conviction [based on a defective charge] is also incorrect. So both [are] not according to the law. [It] is the appellant's right, under the law, to claim the charge must be correct, that the conviction must be correct.

"On this ground alone, the appellant's appeal is allowed. The High Court decision dated April 13, 2022 on the conviction and sentence is set aside. The appellant is acquitted and released. You are now a free person," she said.

The others on the panel were COA judges Datuk Hashim Hamzah and Datuk Azman Abdullah.

Sam, who turns 28 years old this year, was appealing against the Johor Bahru High Court's decision on April 13 last year, which found her guilty for reckless driving that killed eight teen cyclists seven years ago.

Judge Datuk Abu Bakar Katar had sentenced her to six years' imprisonment and a RM6,000 fine. He also ordered an additional six months' jail time should she fail to pay the fine, and handed her a three-year driving ban upon completion of her prison term.

Panel: Duplicity of charge involves essence of the charge

Hadhariah found that there was duplicity in the charge, as admitted by the prosecution earlier during Tuesday's hearing. The judge highlighted that the charge under Section 41(1) of the Road Transport Act 1987 (RTA) had three distinct offences, but Sam was charged with driving recklessly or dangerous driving — in essence two charges lumped as one charge, as the defence contended.

The three distinct offences under Section 41(1) of the RTA are driving a motor vehicle recklessly, driving at speed, or driving in a manner which might be expected to be dangerous giving consideration to the circumstances (including the nature, condition and size of the road and the expected traffic).

This, the judge said, contravened Section 163 of the Criminal Procedure Code (CPC).

"Section 163 of the CPC says that each charge must have one charge, specific charge, one charge only. So in this case, if there is duplicity or [an] overlap, it 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.

She added that she cannot agree with the prosecution's argument that the duplicity does not prejudice Sam, or that the issue of miscarriage of justice does not arise, because the essence of each charge is different.

"This is not a defect in the form of the charge. It involves the essence of the charge. The [appellent] must know what charges are brought against her," the judge said.

Earlier, the panel also expressed their sympathies to the families of the eight victims who died in the accident. However, Hadhariah emphasised that the decision in the case had to be made according to the law and evidence before the court.

Citing case law, she emphasised that according to the law, it cannot be said that just because there was a fatal accident, the driver was "definitely liable".

Panel agrees with Magistrate's decision, accident was impossible to avoid

Hadhariah said that merely on the grounds of the duplicity of the charge, Sam's appeal should be allowed, and the panel need not consider the issue of prima facie as submitted by the defence. 

She said that upon examining the Magistrate Court's decision, she found it to be comprehensive as every angle of the prosecution's evidence was examined. On the contrary, the High Court judge only focused on the driver, she said.

"You have to be fair. That was why the magistrate did maximum evaluation, and the finding was correct, because she said that the accident was impossible to avoid, due to the dangerous situation created by the cyclists.

"[The magistrate mentioned in her judgement] that the only way to avoid the accident was if the car flew over the cyclists. This was not meant as a joke. It was a finding of fact. We are not talking about one or two bicycles, but 30 to 40 bicycles," the judge said.

Sam was acquitted twice by the Magistrate Court, once in 2019 and again in 2021.

In 2019, Magistrate Siti Hajar Ali ruled that the prosecution had failed to prove a prima facie case, and acquitted Sam without calling her to the stand.

The prosecution appealed against this decision, and the High Court subsequently ordered Sam to enter her defence. Following this, Siti Hajar once again acquitted Sam in 2021, ruling that the prosecution had failed to prove their case beyond a reasonable doubt. 

Prosecution admits charge defective but says it does not prejudice Sam

During submissions on Tuesday, deputy public prosecutor Tengku Amir Zaki Tengku Abdul Rahman admitted that the charge, which Sam was convicted under, was defective, but that it did not prejudice her, as long as Sam could raise a defence.

He was responding to Sam's lead counsel Hisyam Teh Poh Teik, who argued during the hearing on March 31 that the charge was defective, was bad for duplicity, and any conviction on such a charge must be set aside.

On Tuesday, Hisyam once again stressed that there were three different offences under the RTA, and that his client was prejudiced as the prosecution did not make a clear distinction.

"How can they with honesty [say] that there was no failure of justice? We were misled at the end of the prima facie stage and the end of defence," he said. 

Sam was also represented by a group of lawyers in this case, including Harvinderjit Singh and Muhammad Faizal Mokhtar.

Besides Tengku Amir, the prosecution was also represented by Muhamad Shafiq Mohd Ghazali.

Edited BySurin Murugiah
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