PUTRAJAYA: The charges thrown against clerk Sam Ke Ting, who was convicted for reckless driving that killed eight "basikal lajak" (modified bicycle) cyclists six years ago, were defective and the conviction should not be sustained.
Senior lawyer Datuk Hisyam Teh Pok Teik, who appeared for Sam in her appeal at the Appellate Court today, submitted that the charges did not clearly distinguish whether she was charged for either a reckless or dangerous driving offence, as stated in her charge sheet.
Instead, he said, she was charged with and convicted of both offences.
"There are three distinct offences under Section 41(a) of the Road Transport Act 1987, namely driving a motor vehicle recklessly, driving a motor vehicle at a speed, or driving a motor vehicle in a manner that, in all the circumstances, is dangerous.
"But what the prosecutors did in this case was to lump limb one, which is reckless driving, with limb three, which is dangerous driving.
"This is erroneous, as only one limb is allowed in law to be framed."
Hisyam was submitting his appeal before a three-member bench led by Justices Datuk Hadhariah Syed Ismail, Datuk Hashim Hamzah and Datuk Azman Abdullah in Sam's appeal against her six-year jail and RM6,000 fine conviction and sentence this morning.
He further argued that the charge was also bad for duplicity, which consequently made her conviction illegal.
"When the charge is bad for duplicity, the conviction must be set aside.
"(Furthermore) there has been a failure of justice when the second High Court judge convicted the accused for 'reckless' or 'dangerous' driving, which was an illegal charge that was not recognised in law," he said.
He also said the prosecutor's inconsistent stance throughout the entire case showed another failure of justice.
"The prosecution, in this case, kept moving their goal post.
"At first, before the magistrate, their stance was that she was driving recklessly.
"And then they stood before the High Court, during their first appeal, and said she was driving dangerously.
"Whereas today, in their submissions, they said her offence was indivisible and that she committed both — driving recklessly and dangerously."
The proceedings today, however, ended just 20 minutes after 11am when deputy public prosecutor Tengku Amir Zaki Tengku Abdul Rahman informed the court that he would be taking two hours to make his submissions.
The court fixed April 11 for another hearing before it was adjourned.
The clerk, who had been charged with causing the deaths of eight cyclists in Jalan Lingkaran Dalam, Johor Baru, at 3.20am on Feb 18, 2017, was acquitted and discharged by the magistrate's court on Oct 28, 2019 at the end of the prosecution's case without her defence being called.
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 Mohd Azhar, 16; Fauzan Halmijan, 13; Azhar Amir, 16; Harith Iskandar Abdullah, 14; Shahrul Nizam Marudin, 14; and Haizad Kasrin, 16.
However, on Feb 18, 2021, the Johor Baru High Court sent the case back to the magistrate's court, asking Sam to enter her defence after allowing an appeal by the prosecution.
On Oct 10, 2021, the magistrate's court again acquitted and discharged her. The prosecution appealed again to the High Court, where she was convicted and jailed on April 13.