Commenting on the murder charge against a man involved in a fatal crash in Klang, lawyer Kitson Foong said such a charge may be rare but is not unprecedented.
Foong said the issue is not whether another charge would have been more appropriate, but whether the charge brought can be proven in court.
“Simply put, ‘rarity is not impropriety’. The real test is the evidence, not how often it has been done before,” he told FMT.
On April 1, laboratory assistant R Saktygaanapathy, 28, was charged with murder over the death of p-hailing rider Amirul Hafiz Omar, 33, at Jalan Raya Barat, Klang, on March 29.
He was also charged with self-administering benzodiazepine and cannabis, for which he pleaded guilty.
Saktygaanapathy was charged under Section 302 of the Penal Code, which carries the death penalty or 30 to 40 years’ imprisonment, and at least 12 strokes of the rotan upon conviction.
Meanwhile, Section 44 of the Road Transport Act provides for 10 to 15 years’ imprisonment and a fine of RM50,000 to RM100,000 for those convicted of causing death while driving under the influence, with heavier penalties for repeat offenders.
Attorney-General Dusuki Mokhtar defended the decision to charge Saktygaanapathy with murder, citing Section 300(d) of the Penal Code.
The provision states that a person commits murder if they carry out an act knowing it is “so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.”
Foong said Section 300(d) exists precisely for cases where a person does something “so obviously life-threatening” that the law treats him as having the knowledge any reasonable person would have had.
“Whether this case crosses that threshold is for the court to decide. But the attorney-general is well within the Penal Code in framing the charge,” Foong said.
Nevertheless, Foong noted that the court may still convict the accused of a lesser offence if the elements of murder are not proven.
Former deputy law minister Hanipa Maidin described the murder charge as excessive and overly harsh, arguing it is difficult to see how the death of Amirul could be considered intentional.
Hanipa said charges under Sections 304 or 304A of the Penal Code, or under the Road Transport Act, would have been more appropriate. Section 304 covers culpable homicide not amounting to murder, while Section 304A relates to causing death by a rash or negligent act.
A similar approach was taken in another case in Segamat, where a lorry driver was charged with three counts of murder on April 6. Shafiq Salleh, 29, was charged over the deaths of S Palamiandy, 77, K Myakrishnan, 72, and S Sevendai, 62, at Km212 of the Johor Bahru–Seremban Road on April 2.
Police previously said Shafiq tested positive for drugs after the incident. While he has not been charged with a drug offence, police said he will be prosecuted for drug consumption after receiving the pathology report.
Lawyer Nizam Bashir also said that while Section 44 is the usual charge for DUI-related fatalities, the attorney-general has broad discretion to charge under the Penal Code when circumstances justify a higher charge.
He said the existence of a specific offence under the Road Transport Act does not prevent prosecution under the Penal Code where appropriate.
“DUI causing death does not ordinarily fall under Section 300(d), but it may apply in exceptional cases where the accused’s conduct shows knowledge that death was a probable consequence,” he said, adding that each case is ultimately fact-dependent.