JOHOR BAHRU: The Court of Appeal has freed clerk Sam Ke Ting in the modified bicycle or “basikal lajak” case.
A three-member panel led by Justice Hadhariah Syed Ismail unanimously allowed her appeal and set aside her conviction and sentence under Section 41(1) of the Road Transport Act this morning.
The other judges on the panel were Justices Hashim Hamzah and Azman Abdullah.
The court held that the charge against Sam was defective.
The prosecution had contended that Sam drove “recklessly or dangerously” in the early hours of Feb 18, 2017, and caused the death of eight teenagers who were among those riding modified bicycles along Jalan Lingkaran Dalam in Johor Bahru.
“The deputy public prosecutor admitted that there was duplicity in the accused’s charge but went on to say that it did not prejudice her right,” Hadhariah said.
“However, Section 163 of Criminal Procedure Code states that every charge framed by the public prosecutor must be specific and only spell out one offence.
“In her case, she was charged with driving ‘recklessly or dangerously’. We do not agree with the prosecution’s argument that the duplicity of charge did not prejudice her rights.”
The judge also said every person charged in court must know the exact ingredients of the charge in order to defend themselves.
“During proceedings (at the end of the prosecution’s case) before the Johor Bahru magistrates’ court, the prosecution argued that a prima facie case was made out against her for reckless driving.
“Upon the prosecution’s appeal, they told the High Court that they had established a prima facie case for dangerous driving,” Hadhariah pointed out.
The court found that since the charge was defective, Sam’s conviction by the Johor Bahru High Court last year cannot be sustained.
“In the grounds of judgment, the High Court judge only said she was found guilty ‘as per the charge’ but did not mention whether it was for ‘reckless’ or ‘dangerous’ driving,” Hadhariah said.
She also pointed out that the magistrate, in acquitting Sam twice, in 2019 and then in 2021, had written a comprehensive judgment.
“We agree with the magistrate because she evaluated all evidence before her from all aspects, while the High Court only emphasised on the driver (conduct).
“The magistrate also mentioned that the accident was impossible to avoid and that the teenagers (riding modified bicycles) posed a dangerous situation to road users.”
Sam was represented by lawyers Hisyam Teh Poh Teik, Harvinderjit Singh, Farhan Read, Guok Ngek Seong and Faizal Mokhtar. Deputy public prosecutors Tengku Amir Zaki Tengku Abdul Rahman and Syafiq Ghazali appeared for the prosecution.
On April 13 last year, the Johor Bahru High Court convicted and sentenced Sam to six years’ jail for dangerous driving which caused the death of the eight teenagers. She was also fined RM6,000, or six months’ jail in default.
At the conclusion of her appeal to the High Court, Sam was ordered to begin her jail term immediately after her request for bail pending an application for leave to appeal to the Court of Appeal was turned down.
The Court of Appeal granted her leave to appeal and bail one week later.
Sam posed six questions of law for determination at the appeal, including whether a statement which she made from the dock could be accepted and corroborated by other evidence presented at the trial.
