IN the past few days, one particular incident has caused a stir amongst many Malay-sians, driving up their passions and emotions.
A lively debate, if you can call it that, has erupted between proponents of one side and supporters of the other. The question being debated is whether a 19-year-old part-time model committed murder when she killed a fellow motorist in an accident while she was speeding down the wrong way on the North-South Expressway in Penang.
Netizens have weighed in with their opinions, either for or against the argument that she committed murder. One prominent person was law lecturer Shamsher Singh Thind, who said this incident was not an ordinary case of causing death due to reckless or dangerous driving.
“This is murder. I call upon the police to investigate the death of Mohamad Fandi Rosli, 26, under Section 302 of the Penal Code, and not under Section 41(1) of the Road Transport Act 1987,” he had said.
Shamsher based this upon his reading of Section 300 of the Penal Code, which spells out the various definitions of murder. Under Section 300(d) of the code, a person is deemed as having committed murder if he or she commits an act that causes a death, knowing that the act is “so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death”, and commits this act “without any excuse for incurring the risk of causing death, or such injury as aforesaid”.
To illustrate his point, Shamsher takes an example right out of the proverbial textbook. It is listed in the Penal Code itself, and states that if someone were to fire a loaded cannon into a crowd and it kills someone else, then the
person who fired the weapon is guilty of murder, regardless of whether there was intent to kill anyone.
“In the case before us, driving in an opposite lane at 110kph is as dangerous as firing a loaded cannon into a crowd,” he had said.
It makes sense, of course. You can’t drive against the flow of traffic at breakneck speed and not expect there to be an accident. But the key word here is “knowing”. Was the woman aware of the consequences, or even aware of what she was doing?
To prove murder, a prosecutor usually has to prove intent. In the exception quoted by Shamsher, proving intent is not required. Now, in the case of this woman, she is widely reported to have been under the influence of either drugs or alcohol, or both. Again, if she was under the influence then, was she aware of what she was doing?
To be fair, Shamsher’s call was only for police to initiate investigations for murder. Any defence she has to prove she did not commit murder, he said, may be relied on during the trial.
“Now, the woman driver has any defence which is recognised by the law (like she was drugged involuntarily, or she was escaping from some other danger) is irrelevant at this investigative stage. She may rely on it during the trial later, but for now, the investigation should be conducted as if a murder has been committed,” he had said.
He has some good points, but ultimately, the call as to which section of what law anyone is charged under, if at all, falls on the attorney-general or deputy public prosecutor. Police investigations, right now, may best be served if they classify the case as vehicular manslaughter.
Should the investigation lead to a different conclusion, it can always be reclassified as murder. Investigators have that luxury. Even then, as mentioned before, charging someone with anything is the call of the A-G or the DPP, and they can kick back investigation papers (IPs) to police if they are not happy with the outcome.
What matters now is that we don’t let emotions get in our way. Our opinions on the matter are always going to be there, of course. But our opinions must remain just that: opinions.
What we need to do now is let police investigators do their job. Let them investigate impartially and let them come up with their own findings. Then, when the IP is done and dusted, and passed over to the DPP, let the powers that be decide what section of which law needs to come into play.
After all, the aim of every prosecutor has to be to win cases, and it is best left to them to decide which law needs to be looked at so that justice is properly served, either way.
The writer has more than two decades of experience, much of which has been spent writing about crime and the military. A die-hard Red Devil, he can usually be found wearing a Manchester United jersey when outside of work.