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PUTRAJAYA (March 31): The charge under which clerk Sam Ke Ting was convicted was "defective", and therefore her conviction for reckless driving that killed eight teenagers on "basikal lajak", or modified bicycles, in 2017 cannot stand, the Court of Appeal (COA) heard on Friday (March 31).
Hisyam Teh Poh Teik, Sam's lead counsel, argued this during her final appeal to overturn her conviction and sentence.
Sam was charged in March 2017 under Section 41(1) of the Road Transport Act 1987 (RTA) for driving recklessly or dangerous driving.
However, the senior counsel argued that the prosecution had lumped different elements of the offence into one charge, and this was prejudicial to his client.
The charge framed in this manner, he said, also meant that the charge was bad for duplicity, and any conviction on such a charge must be set aside.
Hisyam argued that there were three distinct offences under Section 41(1) of the RTA — driving a motor vehicle recklessly, driving at speed, or driving in a manner which might be expected to be dangerous giving consideration to the circumstances (including the nature, condition and size of the road and the expected traffic).
"What the [prosecution] did in this case was to lump limb one (reckless driving) with the third limb (dangerous driving). This is erroneous. Only one limb is allowed in law to be framed," the appellant's counsels argued in their written submissions.
Hisyam also argued that the prosecution was changing the "goalpost" from the lower courts to the COA.
"Is it reckless or dangerous driving?" he asked, adding that they were prejudiced if the distinction was not made.
A three-member panel led by COA judge Datuk Hadhariah Syed Ismail is hearing Sam's appeal. The others on the panel are COA judges Datuk Hashim Hamzah and Datuk Azman Abdullah.
The prosecution was led by Tengku Amir Zaki Tengku Abdul Rahman.
Sam, meanwhile, was also represented by Harvinderjit Singh and Muhammad Faizal Mokhtar.
Earlier, Harvinder also argued that the magistrate's finding of evidence at the close of the prosecution's case was beyond reproach and ought to be reinstated.
Hearing continues on April 11
The hearing of the appeal on Friday was adjourned until April 11.
The proceedings began slightly after 9.30am, and went on close to 12pm, with Hisyam and Harvinderjit completing their submissions. Tengku Amir informed the court that he would need about two hours to submit.
This is Sam’s final appeal, where the COA will either acquit her or uphold her conviction.
She is appealing against the Johor Bahru High Court's decision on April 13 last year, which found her guilty for reckless driving that killed eight teen cyclists six years ago.
Judge Datuk Abu Bakar Katar sentenced her to six years' imprisonment and a RM6,000 fine. He also ordered an additional six months' jail time should she fail to pay the fine, and handed a three-year driving ban upon completion of her prison term.
The High Court also denied an application for a stay of the sentence pending an appeal.
Subsequently, on April 18 last year, the COA granted leave (permission) to proceed with Sam's appeal, and allowed a stay of execution of her sentence pending the disposal of the appeal.
High Court found her guilty, acquitted twice by Magistrate Court
It was reported that Sam was acquitted twice by the Magistrate Court, once in 2019 and again in 2021.
In 2019, magistrate Siti Hajar Ali ruled that the prosecution had failed to prove a prima facie case, and acquitted Sam without calling her to the stand.
The prosecution appealed against this decision, and the High Court subsequently ordered Sam to enter her defence. Following this, Siti Hajar once again acquitted Sam in 2021, ruling that the prosecution had failed to prove their case beyond a reasonable doubt.
Sam, 22 years old at the time of the incident, was charged with committing the offence on Jalan Lingkaran Dalam, Johor Bahru at 3.20am on Feb 18, 2017.
The eight teenagers killed in the incident were Mohamad Azrie Danish Zulkefli, 14, Muhamad Shahrul Izzwan Azzuraimie, 14, Muhammad Firdauz Danish Mohd Azhar, 16, Fauzan Halmijan, 13, Mohamad Azhar Amir, 16, Muhammad Harith Iskandar Abdullah, 14, Muhammad Shahrul Nizam Marudin, 14, and Haizad Kasrin, 16.