On Feb 18, 2021, the prosecution won its appeal in the High Court against Sam’s acquittal. — Bernama photo
KUALA LUMPUR (March 31): Today, the Court of Appeal will be hearing Sam Ke Ting’s appeal against her conviction and six-year jail sentence for alleged reckless or dangerous driving, which was claimed to have resulted in the 2017 death of eight teenagers involved in basikal lajak racing in Johor.
This will be Sam’s final appeal, as her case started out at the Magistrates’ Court — where she was acquitted twice —and was previously at the High Court.
This case also casts a spotlight on basikal lajak — which are heavily-modified bicycles with the removal of safety features such as brakes and lights.
Here’s a quick recap by Malay Mail of Sam’s case, based on four court judgments in Johor Bahru in her case:
On March 28, 2017, Sam who was aged 22 was charged under Section 41(1) of the Road Transport Act with “reckless or dangerous driving” of a car on Feb 18, 2017 at around 3.20am at Jalan Lingkaran Dalam in Johor Bahru, which allegedly resulted in the eight teenage cyclists’ deaths.
After a trial spanning two years from August 2017 to August 2019 with the prosecution calling 46 witnesses, Magistrate Siti Hajar Ali on Oct 28, 2019 decided to acquit Sam without calling her to enter defence.
The magistrates’ court in Johor Bahru said the prosecution had failed to show a prima facie case. In other words, the court was not convinced Sam could be convicted — based on the evidence presented by the prosecution — if she was called to enter her defence but kept silent.
1. The first acquittal in 2019
Here’s why the magistrate acquitted Sam for the first time:
The magistrate said the prosecution failed to prove all three elements of the charge: that Sam was the driver of the car during the accident; that she drove recklessly or dangerously after taking into account all circumstances including the road’s nature, condition and size; and that the accident resulted in the deaths of any individuals.
The magistrate listed the facts and evidence in the case, including those from eyewitnesses and the police and expert testimony from the Malaysian Institute of Road Safety Research:
Sam was driving uphill on the dimly-lit three-lane road, while an estimated 30 youths were gathered on all three lanes — particularly on the left lane — to race basikal lajak bicycles and to observe the race. The accident occurred slightly behind the hill, with the cyclists going against the flow of traffic.
At around 3.20am, the police received information of a fatal accident and went to investigate and control the situation, with six bodies found while two others sent to the hospital were later pronounced dead.
The prosecution cited Sam’s two police reports to say it proved she was the driver at the time of the accident, but the magistrate said the police failed to carry out complete investigations on who was the driver as there were doubts on the number of persons in the car.
Two prosecution witnesses had separately said they saw a Chinese man and Chinese woman outside the car before it was overturned or saw them at the scene, while another witness did not see any Chinese woman when the crowd overturned the car and had only seen Malays at the area where the car was overturned.
This point alone was enough for the magistrate to acquit Sam.
The magistrate said Sam did not create a dangerous situation as her car had the legal right of way on all three lanes of the road. The judge said Sam did not attempt to switch lanes or overtake any cars or go against the traffic flow during the accident, and she was not shown to have lost control of the car or racing or having hit any road objects before the accident.
Instead, the magistrate said the youths caused a dangerous situation to legitimate road users including Sam through the basikal lajak activity.
During the trial, a police officer told the court that youths had often gathered at the Jalan Lingkaran Dalam road for basikal lajak racing and the police had repeatedly attempted to crackdown on the activity but were taunted by the youths who escaped to the opposite side of the road.
On Feb 16, 2017 which was just two days before the fatal accident in Sam’s case, police had arrested 20 out of about 60 basikal lajak users in the same road area.
The magistrate cited prosecution witnesses who said gatherings were prohibited at the hilly and winding Jalan Lingkaran Dalam and gatherings there at night are dangerous, and that no permits would be issued for such bicycle gatherings there even if applied as it would be dangerous for the traffic on that road.
The magistrate said the public around that area had made many complaints about the basikal lajak activities on that road before the accident, but said it would only be reasonable to expect the road’s frequent road-users to expect such activities and that it was unfair to expect those who seldom or never used the road or who do not live in the area to expect the same situation.
The magistrate said there was no evidence to show that the basikal lajak gang including the eight deceased had worn safety vests or helmets, later also saying all seven of the eight youths were wearing dark clothing while another was only wearing his undergarments.
The judge said Sam could not have expected or could not have seen the basikal lajak group due to a slope leading to a “crest” in the uphill road limiting the distance that drivers could see, and that no alert was given to Sam that the group was behind the crest.
Among other things, the magistrate said Sam was driving responsibly and had reasonable driving skills, based on factors such as her not being under the influence of drugs or alcohol or using her handphone while driving, and wearing her seatbelt while driving, and the car’s braking system and airbags being in good condition at the time of accident.
Out of the two probable driving speed ranges of 74.86 km/hour and 44.53 km/hour in Miros’s report on the accident, the magistrate opted for the lower speed, based on the legal principle where the inference favourable to the accused is to be chosen.
As for the third element of the offence, the magistrate said the prosecution failed to prove the identity of the eight deceased in relation to the identification of the bodies by the next of kin.
The magistrate then ordered Sam’s acquittal, and for the return of the RM10,000 bail money as well as the return of her driving licence which was suspended since she was charged. The magistrate’s 43-page written judgment was released on Nov 18, 2019, less than a month after she delivered her decision.
2. High Court sends the case back to trial
On Feb 18, 2021, the prosecution won its appeal in the High Court against Sam’s acquittal.
Then High Court judicial commissioner Shahnaz Sulaiman set aside the magistrate’s decision, ruling that the prosecution had proven a prima facie case and sent the case back to be heard before the same magistrate. The High Court also ordered Sam to enter her defence.
The High Court said the prosecution had shown the first element of Sam being the driver, as she had never disputed she was the driver and had lodged police reports on the accident.
For the second element, the High Court said it believed Sam was driving dangerously especially at 3am, and said she should have been more careful if the road conditions were dark.
The High Court also held the view that Sam was driving fast which allegedly caused her to be unable to stop or brake when she found the basikal lajakgroup on the road.
The High Court said the magistrate was wrong to stress on the basikal lajak group’s negligence in this criminal case, as this was not a civil case where liability could be apportioned or shared.
The High Court said the issue of the eight youths’ bodies’ identification was not an issue, as the next of kin had identified them and post-mortem reports showed their death to be due to collision with road traffic or motor vehicle.
The High Court released its 20-page written judgment on Aug 30, 2022.
3. Magistrate still acquits Sam
On May 9, 2021, Sam had the chance to tell the court about the accident, when she chose to give an unsworn statement from the dock to defend herself against the charge.
An unsworn statement is where court testimony is given, but with the prosecution and the judge unable to question the accused person.
Among other things, Sam said she was returning from a Chingay parade with her friends at 3am on the day of the accident, and she did not live in the area and did not know of the basikal lajak activities there.
Sam said the car was travelling below the speed limit at the left lane of the road, and she could not see the group when going uphill, and it was only after the peak of the road where she suddenly saw the basikal lajak group filling up all three lanes and only heard the sound of the crash.
She said she was shocked and unaware of what happened, only becoming aware or conscious when she was surrounded by the group which were shouting and threatening to hurt her.
She said she was in fear and saved by a police officer who brought her to the police station, adding that the police reports she had made were inaccurate and were made when she was in trauma, confused and without any medical attention.
Among other things, Sam told the magistrate she believed there could be other vehicles who had crashed into the eight cyclists and the 30 to 40 bicycles and said they could have escaped due to the crowd formed by the group and the public.
Sam was the only one who testified in her own defence as she did not call other defence witnesses or seek to recall any prosecution witnesses.
On Oct 10, 2021, the same magistrate decided it was unsafe to convict Sam as the prosecution had failed to prove its case beyond any reasonable doubt, and ordered for her to be acquitted.
The magistrate said an accused person only has to raise a reasonable doubt in the prosecution’s case, but said this cannot be an afterthought or bare denial.
The magistrate examined every line of Sam’s unsworn statement, and found it to be consistent with the evidence presented in court and not an afterthought or bare denial.
Just like in her previous decision, the magistrate again expressed her sympathy and condolences to the family members of the eight deceased youths.
The magistrate’s 55-page written judgment was released on October 10, 2021. This was before the High Court’s judgment was available.
4. High Court finds Sam guilty, sentences her to jail
On April 13, 2022, the prosecution again won its appeal at the High Court against Sam’s acquittal.
High Court judge Datuk Abu Bakar Katar found Sam to be guilty of the charge of driving recklessly or dangerously under Section 41(1) of the Road Transport Act, saying that she had failed to raise a reasonable doubt in the prosecution’s case and saying that the magistrate had erred in her acquittal decision.
Among the factors taken into account by the High Court for her sentencing was that Sam did not plead guilty which would usually entitle her to a ⅓ reduction of the sentence, it was her first offence and her income was RM1,000 per month, the need to prioritise public interest over the accused’s interest, the serious nature of the offence and that the number of deaths caused, as well as past sentencing trends.
The High Court sentenced her to six years’ jail and a RM6,000 fine (with an additional six months’ jail if she fails to pay the fine) and disqualification from having a driving licence for three years after her prison term is over.
The judge ordered the offence to be recorded in Sam’s driving licence, and did not allow a stay of the sentence.
In other words, Sam had to be locked up, as the High Court ruled that her jail term was to start from April 13 itself. The High Court said this was because any appeal from the High Court (following an appeal from the Magistrates’ Court) to the Court of Appeal, would need the Court of Appeal’s leave or permission for the appeal to be heard.
The High Court’s 22-page judgment is dated Aug 29, 2022, and made references to the previous High Court’s August 2022 judgment.
On April 18, 2022, the Court of Appeal granted Sam leave to appeal and also granted a stay of Sam’s jail sentence, while setting bail at RM10,000 while waiting for her appeal to be heard.
This meant that Sam could be released from jail while waiting for her final appeal to be heard by the Court of Appeal today. — Malay Mail
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