PUTRAJAYA: The Court of Appeal has allowed Sam Ke Ting's appeal to overturn the Johor High Court decision that convicted and sentenced her to six years' jail and a RM6,000 fine for causing the deaths of eight "basikal lajak" cyclists in Johor Baru six years ago.
A three-member bench led by Justices Datuk Hadhariah Syed Ismail, Datuk Hashim Hamzah and Datuk Azman Abdullah reached a majority decision to discharge and acquit Sam today, after finding that the charge against her was defective and therefore illegal.
Hadhariah, in delivering the decision, said there was duplicity in the charge against her that was framed under Section 41(1) of the Road Transport Act 1987 (Act 333), for reckless and dangerous driving.
She referred to Section 163 of the Criminal Procedure Code (CPC), which stated there must be only one specific offence in any charge.
"So, in this case, when there are elements of duplicity, which means that there are two offences in one charge, the charge carried by the prosecution has violated Section 163 of the CPC.
"We cannot agree with the prosecution's submissions that the duplicity does not prejudice or cause miscarriage of justice because the essence of each offence is different. This is not a defect in the form of the charge, but the essence of the offence.
"The appellant (Sam) must know what charges are brought against her. In this case, we found that there was indeed confusion in the prosecution case in magistrate's court.
"That is why, when the second High Court judge convicted the appellant under Section 41(1), as accorded to the charge sheet, it meant that the conviction was illegal and couldn't stand. And therefore, even the prosecution couldn't answer if the conviction was for driving recklessly or driving dangerously. They (the prosecution) could never answer," she said.
She said based on these reasons alone, Sam's appeal has to be allowed.
However, Hadhariah remarked in passing that she had examined the magistrate court's judgment, which had earlier acquitted Sam in 2019 and 2021.
"I found that the judgment is comprehensive, and I agree with it (the judgment) because the court evaluated the prosecution's testimony from all aspects, while the High Court judge only focused on the vehicle driver, and it seemed they did not consider the 'basikal lajak' activity directly.
"We have to be fair, and that is why the magistrate made a maximum evaluation, and their findings are correct because they found that the accident was impossible to avoid because of the dangerous situation created by the cyclists.
"The magistrate also found that one way to avoid the accident is for the vehicle to fly over the cyclists. It was not meant as a joke, but the finding was correct. There was no way to avoid the accident because we are not talking about one or two bicycles, but 30 to 40.
"So the magistrate's judgment and findings are correct, and we have to respect that. You are now a free person," she told the appellant.
Sam was previously accused of crashing into and causing the deaths of Azrie Danish Zulkefli, 14; 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, on Feb 18, 2017.
Her charges, then, were framed under Section 41 (1) of the Road Transport Act 1987 (Act 333), which carries a maximum jail term of 10 years and a fine of RM20,000 upon conviction.
The 28-year-old clerk was previously 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 prosecution appealed the magistrate's decision to the High Court, and 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.