PUTRAJAYA: “There was simply no way to avoid a car crashing into a big group of basikal lajak riders, except if the car had flown over them.”
With those words, Justice Hadhariah Syed Ismail, who chaired a three-judge Appeals Court panel, freed 28-year-old Sam Ke Ting of a charge of reckless driving in a case that has hogged the limelight for six years and sparked debate on road safety.
It was almost exactly a year since she had been convicted, sentenced and ordered to be sent to jail immediately on April 13 last year.
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She spent five days behind bars before being allowed bail.
The Court of Appeal yesterday allowed Sam’s appeal against the conviction and sentence saying the charge, which contained two offences, was defective.
“The conviction was for an offence that did not exist under the law,” she added.
Justice Hadhariah quoted the judgment by a Johor Baru Magistrate’s Court that acquitted Sam twice before appeals by the prosecution led to a conviction by the second High Court.
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“The magistrate’s finding was correct. She said that it was impossible for the accident to be avoided because of the dangerous situation created by the basikal lajak riders.
“In paragraph 149 of her judgment, the Magistrate (Siti Hajar Ali) 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. We are not talking about one or two bicycles, we are talking about 30 to 40 bicycles,” she said.
Justice Hadhariah said the Magistrate’s Court decision was comprehensive and had made a maximum evaluation from all sides in the case.
“The Magistrate’s decision was correct. We have got to respect that,” she said in the unanimous decision.
The other two judges on the bench were Justices Hashim Hamzah and Azman Abdullah.
The panel found an element of duplicity in the charge under Section 41(1) of the Road Transport Act 1987, causing it to be “defective”.
Sam had been accused of driving her vehicle recklessly or dangerously until it caused the death of the eight teenagers.
Her lawyer Datuk Hisyam Teh Poh Teik argued during the appeal hearing that her conviction was “unsustainable” as the charge was defective, duplicated and without prima facie.
The appellate court, however, said it did not consider the issue of prima facie but did find duplicity.
“Section 163 of the Criminal Procedure Code states that a charge must contain a specific ingredient.
“In this case, as there is duplicity, there are two offences in one charge. Therefore, the charge had violated Section 163,” she said.
The panel disagreed with the prosecution’s submission that the duplicity did not prejudice nor did it cause a miscarriage of justice to the appellant.
The panel also found there was “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.
“Even the prosecution could not answer if the conviction was for driving recklessly or driving dangerously.
“The court acknowledged the fate that befell the families of the dead teenagers but maintained that the decision must be made in accordance with the law.
“That is how the law stands. You cannot simply say that because it was a fatal accident, the driver must have been liable. That is not what the law says.
“In this case, the charge was incorrect, it was defective. The conviction was also incorrect. On this ground alone, the appeal is allowed,” she said.
The court then set aside the High Court’s decision and acquitted and discharged Sam.
It also ordered for Sam’s RM10,000 bail money to be returned to her.
“You are now a free person,” Justice Hadhariah said.
Sam’s legal battle has been a long one, having been twice acquitted of the charge by the same Johor Baru Magistrate’s Court.
On Oct 28, 2018, the lower 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 Baru, 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 Justice Dr Shahnaz Sulaiman allowed the prosecution’s appeal and remitted the case back to the Magistrate’s Court for Sam to enter her defence.
Magistrate Siti Hajar Ali, who again heard the case in 2019, discharged and acquitted Sam at the end of the defence case prompting the prosecution to file a second appeal to the High Court.
On April 13, 2022, High Court judge Justice 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.
He refused to stay the sentence and ordered her to be jailed.
Sam obtained leave from the Court of Appeal on April 18 last year to appeal against her conviction and sentence and was also granted bail.