They said prosecutors should especially seek compensation orders on behalf of victims of murder, culpable homicide not amounting to murder, and deaths caused by negligence — all of which are recognised as serious offences under the Penal Code.
Lawyers S Jayananda Rao, N Sivananthan and J S Naicker said the CPC already allows prosecutors to apply to the court for convicted persons to compensate their victims in cases that result in death or injury.
“Forcing a convict to make financial contributions could act as a deterrent to would-be offenders,” Jayananda told FMT, adding that, based on news reports, the number of road fatalities caused by drivers who disregard the law has been on the rise.
He was responding to the transport ministry’s proposal to amend the Road Transport Act 1987 (RTA) to compel offenders to pay compensation to victims’ families.
The proposal followed the death of a motorcyclist in Klang who was struck by a driver allegedly under the influence of alcohol and drugs.
Under Section 44 of the RTA, those convicted of driving under the influence of alcohol or drugs and causing death face imprisonment of between 10 and 15 years, and a fine of between RM50,000 and RM100,000.
The punishment is heavier for repeat offenders, involving a jail term of between 15 and 20 years, and a fine of between RM100,000 and RM150,000.
Jayananda said there was no need to amend the RTA to provide for compensation, as the matter is already covered under Section 426 of the CPC.
Section 426(1A) and (1B) provide that a court may, on the application of the Public Prosecutor, order that a convicted accused pay compensation to a victim, or if the victim is deceased to their next-of-kin, in respect of any injury or loss of income or property suffered.
“This general provision could be utilised when the court finds an accused guilty of causing injuries or taking a life in a road mishap,” said Jayananda.
Sivananthan said compensation orders should not be confined to road accidents as it risked being seen as discriminatory and may be subject to legal challenge.
“The prosecution should apply for a compensation order upon securing a conviction in all offences,” he suggested.
The lawyer also said Section 432 of the CPC empowers a court to stipulate a timeline within which the compensation must be paid.
“However, the survivors or the victims’ families will have to enforce the ruling themselves, which has the same force as a civil judgment,” he said.
Sivananthan said enforcement, including by freezing an offender’s personal accounts or the sale and seizure of assets may involve time, effort and financial resources.
He said the government should consider amending the law to allow the families of victims in criminal cases, including road accidents, to recover compensation from the offenders’ Employees Provident Fund account.
J S Naicker, an insurance lawyer, explained that a motor insurance policy generally excludes liability when the driver is found to be under the influence of alcohol.
“However, an injured party, or the next-of-kin of a deceased victim, will not be deprived of damages under the RTA and the relevant motor policy if they succeed in a civil claim.”
Naicker explained that, in such circumstances, the insurer would satisfy the judgment and thereafter seek to recover the sum paid from the insured vehicle owner.
“If the ministry’s proposal is implemented, the intoxicated driver may be exposed to dual financial liability — namely, personal liability to compensate the victim, as well as an obligation to reimburse the insurer for any sum paid out.”