PUTRAJAYA: A clerk found guilty of reckless or dangerous driving which resulted in the deaths of eight teenagers riding on modified bicycles, or “basikal lajak”, was convicted on an “illegal” charge which is prohibited by law, the Court of Appeal was told.
Lawyer Hisyam Teh Poh Teik said Sam Ke Ting, 28, should have been charged either with “reckless driving” or “dangerous driving”, but not both offences “lumped together”.
“The charge is illegal due to duplicity,” he said.
Such an illegality was incapable of being cured under Section 422 of the Criminal Procedure Code and gave rise to a “failure of justice”, Hisyam told a three-member bench chaired by Justice Hadhariah Syed Ismail.
Also on the panel were Justices Hashim Hamzah and Azman Abdullah.
As a result, Sam was “seriously prejudiced and misled at the prosecution and defence stages,” he added. “We are raising this point for the first time in the interest of justice.”
Hisyam said the prosecution in the magistrates’ court had focused its case on “reckless driving”. However, it switched to “dangerous driving” when the case came up before the High Court.
In the Court of Appeal, the prosecution appeared to be going for “an indivisible act of reckless or dangerous driving”, said Hisyam.
“Again, the appellant is at a disadvantage due to them shifting the goalpost,” he added.
Co-counsel Harvinderjit Singh said the High Court had failed to consider Sam’s defence at the prosecution stage.
“She should have been acquitted without her defence being called,” he added.
Sam was originally acquitted by the magistrates’ court.
The prosecution appealed, and on April 13 last year, the Johor Bahru High Court overturned the acquittal and substituted it with a conviction for reckless or dangerous driving.
Judge Abu Bakar Katar sentenced Sam to six years’ jail and a fine of RM6,000.
The offence under Section 41(1) of the Road Transport Act 1987 (Act 333) carries a maximum jail term of 10 years and a fine of RM20,000 upon conviction.
The eight victims were Azrie Danish Zulkefli, 14 (at the time of the incident); Shahrul Izzwan Azzuraimie, 14; Firdauz Danish Azhar, 16; Fauzan Halmijan, 13; Azhar Amir, 16; Harith Iskandar Abdullah, 14; Shahrul Nizam Marudin, 14; and Haizad Kasrin, 16.
The incident took place along Jalan Lingkaran Dalam in Johor Bahru at 3.20am on Feb 18, 2017.
The judge also refused Sam’s application for a stay of execution pending appeal to the Court of Appeal and ordered the jail term to commence immediately.
On April 18 last year, the Court of Appeal allowed her bail pending the outcome of her final appeal.
The bench will hear deputy public prosecutor Tengku Amir Zaki Tengku Abdul Rahman’s submission on April 11.
Lawyers Faizal Mokhtar, Guok Ngek Seong, Yasmeen Soh and Peter Siew also appeared for Sam.