KUALA LUMPUR – If granted by the court, prominent lawyer Tan Sri Muhammad Shafee Abdullah could have a huge role to play in the case involving Sam Ke Ting, who was sentenced to six years’ jail for reckless driving in 2017 that caused the death of eight teenage “basikal lajak” cyclists.
The lawyer said he is applying to be an “amicus curiae” in Sam’s leave application to appeal her sentence, which will be heard at the Court of Appeal (CoA) in Putrajaya tomorrow morning.
Shafee, who has taken a keen interest in the case, yesterday offered his legal services pro bono, but told The Vibes that Sam has decided to retain her current lawyer.
“That is her right. But today, I am applying to come in as ‘amicus curiae’, on behalf of the Universiti Malaya Faculty of Law Alumni Association (Parfum).
“The Parfum’s entire counsel has authorised me to appear tomorrow to address the court in order to assist the court on this matter of public interest.”
Shafee, who is representing Datuk Seri Najib Razak in his 1Malaysia Development Bhd trial, said he will be writing to the appellate court president today, who will then pass his application to the quorum of judges in charge of tomorrow’s leave hearing for approval.
Meanwhile, the Malaysian Bar will also be filing an amicus curiae application for Sam’s case so as to be heard on important questions of law, said president Karen Cheah.
An amicus curiae is a “friend of the court” who is not party to a legal action but is allowed to assist in a case by offering his expertise, which may or may not influence the court's decision.
Yesterday, it was reported that Shafee has offered his services to Sam for free, as he felt “she needed to be defended”, after the high court on Wednesday sentenced the clerk to six years in prison and a fine of RM6,000 for the death of eight teenager cyclists five years ago.
Judge Datuk Abu Bakar Katar reasoned that the defence failed to raise any reasonable doubt against the prosecution’s case which had clearly proved the essence of the offence.
The magistrate court had previously on two occasions acquitted Sam from her charge under Section 41(1) of the Road Transport Act 1987 for causing death by reckless driving.
Leave application argument limited to ‘questions of law’, not facts of case
Shafee said the defence team’s challenge is to convince the judges tomorrow to accept its leave application for an appeal without raising or questioning the facts of the case, as stipulated under Section 50 of the Courts of Judicature Act 1964 (Act 91).
The provisions state that a leave application against any decision of the high court in respect of any criminal matter decided by the magistrates' court shall only be confined to questions of law.
“That is the limitation, you cannot raise the issue of facts. The defence must be able to impress upon the CoA by basing on the points of law that the high court may have erred in its decision, and not based on facts.”
He added that the justification of this provision is to avoid the CoA to be inundated with nonsensical appeals that are not meritorious.
Tomorrow’s leave application is crucial in determining Sam’s fate, failing which she will have no further room for appeal.
If the CoA grants leave, Shafee said he would immediately seek the court’s permission to allow bail in order for Sam to work with her lawyers more effectively ahead of the main appeal.
For former Malaysian Bar president Salim Bashir Bhaskaran, Section 50 of Act 91 – requiring the defence to seek leave before being allowed to file an official appeal – is an unfair provision as the same restriction is not imposed on the prosecution.
“That’s the sad part, which is why I feel the government should review this requirement and allow the defence to appeal straight,” he said.
The Bar’s National Legal Aid Committee former chairperson Ravindran Nekoo, however, explained that the decision not to compel the prosecution to seek leave is because it (prosecution) acts in the interest of the state, whereas the defence typically only involves the interest of a private individual.
“The interest of the defence is therefore narrower, so you must give grounds on why the court should grant you leave.”
Sam’s case has garnered much public interest, with at least four online petitions seeking justice and freedom on her behalf. – The Vibes, April 17, 2022
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