PUTRAJAYA: The Court of Appeal here has freed clerk Sam Ke Ting from her conviction and sentence in a "basikal lajak" incident six years ago.
In a unanimous decision, a three-judge panel chaired by Justice Hadhariah Syed Ismail allowed Sam's appeal on grounds that the charge was defective.
"In this case, the charge was incorrect, it was defective. The conviction was also incorrect. On this grounds alone, the appeal is allowed," she said here on Tuesday (April 11).
The other judges on the panel were Justices Hashim Hamzah and Azman Abdullah.
Sam's legal battle was a convoluted one as she had been acquitted from her charge under Section 41(1) of the Road Transport Act 198 twice by the same Magistrate's Court in Johor Baru.
However, a second appeal by the prosecution took her to the High Court where on April 13, 2022, a Johor Baru High Court judge allowed the prosecution’s appeal and convicted Sam of driving recklessly and sentenced her to six years in jail and a RM6,000 fine.
Sam obtained leave from the Court of Appeal on April 18, 2022 to appeal against her conviction and jail sentence.
In today's decision, Justice Hadhariah said a guilty verdict could only follow the finding of fault of the driver.
"That is how the law stands. You cannot simply say that because it is a fatal accident, the driver must have been liable. That is not what the law says," she said.
In her appeal, Sam's lead counsel Datuk Hisyam Teh Poh Teik had argued that there was duplicity in Sam's charge.
The defence submitted that the conviction by the High Court was "unsustainable" as the charge was defective, duplicated and without a prima facie case.
According to the charge sheet, Sam was accused of driving her vehicle recklessly or dangerously until it caused the death of the eight teenagers.
The appellate court said that it did not have to consider the issue of a prima facie case but it did find an element of duplicity, as admitted by the prosecution during its own submissions earlier on Tuesday.
"Section 163 of the Criminal Procedure Code stated that a charge must contain a specific ingredient.
"In this case, as there is duplicity, there are two offences in one charge. Therefore, the prosecution's charge violated Section 163," she said.
Justice Hadhariah also said that the panel disagreed with the prosecution's submission that a duplicity in the charge sheet did not prejudice nor did it caused a miscarriage of justice to the appellant.
The panel also found there was a "confusion" during the prosecution's stage at the Magistrate's Court level as well as at the High Court level.
Both High Courts had called for Sam's defence on both offences; driving recklessly as well as driving dangerously.
Justice Hadhariah said a defective and duplicated charge such as Sam's was not an irregularity but it was an illegality.
"Even the prosecution could not answer if the conviction was for driving recklessly or driving dangerously.
"The conviction was for an offence that did not exist under the law," she added.
Justice Hadhariah also spoke of the judgment by Magistrate Siti Hajar Ali that acquitted Sam twice with high praise.
Calling the Magistrate's decision as "wise and comprehensive", Justice Hadhariah said the Magistrate had given her maximum evalution from all sides in the case.
"The Magistrate's finding was correct. She had said (in her decision) that it was impossible for the accident to be avoided because the dangerous situation was created by the basikal lajak riders.
"In a paragraph in her judgment, the Magistrate said the only way to avoid the accident was for the car to fly over them. This was not meant as a joke, but this was the accurate finding as we are not talking about one or two bicycles, we are talking about 30 to 40 bicycles," she said.
Justice Hadhariah then set aside the High Court's decision and acquitted and discharged Sam.
"You are now a free person," she said. The court also ordered for Sam's RM10,000 bail money to be returned to her.
On Oct 28, 2018, the Johor Baru Magistrate's Court freed Sam without calling for her defence over the charge of reckless driving which caused the death of the teenagers at Jalan Lingkaran Dalam, Johor Bahru, Johor at 3.20am on Feb 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 Magistrate's Court for Sam to enter her defence on the reckless driving charge.
Magistrate Siti Hajar Ali, who heard the case in 2019 again, discharged and acquitted Sam at the end of the defence case prompting the prosecution to file the second appeal to the High Court.
On April 13, 2022, High Court judge Abu Bakar Katar allowed the prosecution’s appeal and convicted Sam of driving recklessly and sentenced her to six years in jail and RM6,000 fine.
Sam then filed her appeal.
