KUALA LUMPUR – The Court of Appeal has acquitted clerk Sam Ke Ting of her conviction and jail sentence for reckless driving that caused the death of eight teen cyclists.
A three-member panel led by Datuk Hadhariah Syed Ismail unanimously set aside her six-year jail sentence and RM6,000 fine, according to MalaysiaKini.
The panel in its decision said that the charge against her was defective.
A three-member panel led by Datuk Hadhariah Syed Ismail unanimously set aside her six-year jail sentence and RM6,000 fine.
The panel in its decision said that the charge against her was defective as there was an element of duplicity – one charge describing two different offences – in the proceedings.
Hadhariah explained that there was “confusion” by the prosecution as they argued the case at the magistrates’ court for reckless driving but when the case had been tried before the first high court judge, the prosecution’s stand changed to dangerous driving.
Hadhariah said this duplicity is in breach of Section 163 of the Criminal Procedure Code, which stipulates that one charge must be specific to one offence.
“In this case, the charge was incorrect and defective, similar to the conviction, which is also defective. So both procedures did not follow the law.
“It is the appellant’s right under the law to receive a valid charge and conviction.
“For these reasons, the appellant’s appeal is allowed. We set aside the decision of the high court dated April 13, 2022 as well as the conviction. The appellant is free to go, you are now a free person,” said Hadhariah in reading the court’s judgment as sighted by The Vibes.
In reading her judgment, Hadhariah lamented the death of the teens and conveyed the court’s sympathies to the families.
However, she also explained that the law clearly stipulates that the driver is only liable for any damages or death based on evidence to show fault.
“When we follow principles of the law, and I quote ‘merely because an accident happened and a person has been killed, a danger had in that sense arisen and therefore it must follow as the night, the day, that the appellant or driver of the motorcar was driving in a manner dangerous to the public but, a verdict of guilty can only follow a finding of fault on the part of the driver’.
“That is the position of the law. One cannot say that when a fatal accident happens, the driver is definitely liable, that is not the position of the law,” she said.
On October 28, 2018, the Johor Baru magistrates’ court freed Sam without ordering her to enter her defence over the charge of driving recklessly and causing the death of the teenagers at Jalan Lingkaran Dalam, Johor Baru, Johor at 3.20am on February 18, 2017.
The eight teenagers killed in the incident were Mohamad Azrie Danish Zulkefli, 14; Muhamad Shahrul Izzwan Azzuraimie, 14; Muhammad Firdauz Danish Mohd Azhar, 16; Fauzan Halmijan, 13; Mohamad Azhar Amir, 16; Muhammad Harith Iskandar Abdullah, 14; Muhammad Shahrul Nizam Marudin, 14; and Haizad Kasrin, 16.
In 2019, high court judge Shahnaz Sulaiman allowed the prosecution’s appeal and remitted the case back to the magistrates’ court for Sam to enter her defence on the reckless driving charge.
Magistrate Siti Hajar Ali, who heard the case again in 2019, discharged and acquitted Sam at the end of the defence case, prompting the prosecution to file the second appeal with the high court.
On April 13, 2022, high court judge Datuk Abu Bakar Katar allowed the prosecution’s appeal and convicted Sam of driving recklessly and sentenced her to six years’ jail and a RM6,000 fine.
Sam obtained leave from the Court of Appeal on April 18 last year to appeal against her conviction and sentence.
The Court of Appeal also allowed Sam’s application to stay the execution of the jail sentence and released her on bail of RM10,000 in one surety pending the hearing of her appeal. – The Vibes, April 11, 2023
