Clerk Sam Ke Ting’s conviction for reckless driving that killed eight teen cyclists cannot stand as the charge framed against her was defective, the Court of Appeal was told on Friday (March 31).
Her lawyer, Datuk Hisyam Teh Poh Teik, submitted that there was duplicity of the charge as the public prosecutor had included two distinct offences in the charge, namely reckless driving and driving in a dangerous manner.
“This is erroneous. Only one offence is allowed in law to be framed in the charge,” he added.
Hisyam submitted in Sam’s appeal against a High Court’s decision that convicted her of reckless driving and sentenced her to six years in jail and a fine.
The counsel argued that his client had been prejudiced as there was “a failure of justice” because she had been convicted of a charge not recognised in law.
“The High Court judge convicted Sam for ‘reckless or dangerous driving’. The appellant (Sam) did not get what the law says she should get,” he said before a three-member bench comprising Justices Hadhariah Syed Ismail, Hashim Hamzah and Azman Abdullah.
Sam, 27, was initially acquitted and discharged without being called to enter her defence by the Johor Baru Magistrate’s Court on Nov 18, 2019, on a charge of reckless driving that caused the death of eight teenagers who were riding on modified bicycles, commonly known as basikal lajak.
On Feb 18, 2021, High Court Judge Shahnaz Sulaiman allowed the prosecution’s appeal and remitted the case to the Magistrate’s Court for Sam to enter her defence on the reckless driving charge.
On Oct 10, 2021, the Magistrate’s Court discharged and acquitted Sam at the end of the defence case. The prosecution appealed to the High Court.
On April 13 last year, High Court Judge Abu Bakar Katar allowed the prosecution’s appeal and convicted Sam of reckless driving. Sam was sentenced to six years in jail and a RM6,000 fine.
Sam then appealed to the Court of Appeal and on April 18 last year, the appellate court allowed her application to stay the execution of the jail sentence and fine and released her on bail of RM10,000 with one surety pending the hearing of her appeal.
In Friday’s appeal hearing, Hisyam also argued that in the Magistrate’s Court, the prosecution’s case was that of reckless driving, but when the case went up before the first High Court judge, the prosecution’s stand changed to dangerous driving.
Meanwhile, another of Sam’s counsel, Harvinderjit Singh submitted that what happened on that day was an “emergency situation”, saying that the situation was created by the victims and not Sam.
The victims were riding on modified bicycles at 3am illegally, he said, adding that the finding of prima facie against Sam by the first High Court was wrong.
The court fixed April 11 to resume hearing after Deputy Public Prosecutor Tengku Amir Zaki Tengku Abdul Rahman said he would take two hours to submit.