Driver in fatal “basikal lajak” accident may have been defeated on technical grounds
AS mother of one of the eight “basikal lajak” (modified bicycles) teenagers in the fatal accident involving the car driven by Sam Ke Ting expressed happiness that justice has been served, news have surfaced that “bad advocacy on the part of the accused’s lawyer during the trial stage” may have cost the sales promoter/clerk “a permanent acquittal”.
Such is the conclusion derived by some legal savvy observers after having read the grounds of judgement of Johor Bahru High Court judge Datuk Abu Bakar Katar who had on Wednesday (April 13) sentenced Sam, 27, to six years of imprisonment starting from the date of conviction aside from fining her RM6,000 in default six month’s imprisonment for reckless driving.
In so doing, Abu Bakar had overturned two earlier judgements by the Magistrate’s Court which had on Oct 10 last year and September 2019 acquitted and discharged Sam for reckless driving in the accident where eight teenage cyclists aged between 13 and 16 were killed at Jalan Lingkaran Dalam beside the Mahmoodiah cemetery near Johor Bahru at 3:20am on Feb 18, 2017.
According to police at the time, a group of about 30 teenagers aged 13 to 17 years on bicycles were believed to have obstructed Jalan Lingkaran Dalam and other nearby roads when they were hit by a Nissan Almera driven by Sam who was 22 at the time.
However, Sam whose car turned turtle was found not intoxicated at the time of the accident, she was not on her mobile phone, she was driving within speed limit and that the she was oblivious of the presence of the “Mat Lajak” on the road.
Artist impression of accident site (courtesy of Harian Metro)
Basis of judgment
According to one case observer, the law is such that the accused (Sam) must at the earliest opportunity during the prosecution’s stage, ‘put’ her version of the story or her defence.
“She cannot keep mum about her defence during the prosecution’s stage and then blurt it out only at the defence stage,” opined the observer.” In such a situation, the court (High Court) is entitled to assume that such a defence was an afterthought after she had heard the whole of the prosecution’s case.”
The observer added that the necessity for one to ‘put’ his case at the earliest opportunity during trial is trite law and it has been famously known as the rule in Browne v Dunn (late 1800s).
“Here, she chose not to give sworn evidence in her defence and, instead, she gave only an unsworn statement from the dock,” said the observer.
“In her statement from the dock, it seems, for the very first time, she said she did not see the group of cyclists there and, for the first time, she said she saw another car hit the deceased and ran away.
“Her version should have been ‘put’ to the prosecution during the prosecution’s stage and not kept secretly in her pocket and revealed only for the first time during the defence stage.”
In essence, the observer concluded that Sam’s “woes and troubles were caused by bad advocacy by her lawyer who did not appreciate the very basic rule in Browne v Dunn”.
Meanwhile, Judge Abu Bakar noted that the magistrate was in error for considering that Sam’s defence had created a doubt in the prosecution’s case. In fact, Free Malaysia Today cited him as saying that the prosecution that had proved its case beyond a reasonable doubt.
He said Sam has driven her vehicle in a reckless manner, bearing in mind that the road was winding and slightly steep.
“The magistrate was wrong to accept her defence that she did not know that there were cyclists at the place during the wee hours and it gave her the latitude to drive recklessly,” Abu Bakar pointed out.
He added Sam should have been aware that the accident scene was not brightly lit and one’s vision was also limited.
Meanwhile, Sam appears to have a hearing at the Court of Appeal on Monday (April 18), according to court filings. The hearing is most likely to be her application for a stay of execution pending the appeal against her conviction and sentencing, according to Malaysiakini who has failed to get confirmation from her defence counsel Muhammad Faizal Mokhtar.
Earlier, Bernama reported that Sabariah Yusof, 54, mother of Azhar Amir, 16, who was one of the eight teenagers who perished in the accident, said that she still imagines her son being at home.
“When I wake up in the morning, I feel like waking him up to go to school, imagining that he was still there. I also did not move the bed he always slept in, leaving it as it was.
“I was devastated that the woman who caused the crash was released. I didn’t realise that today she (Sam) was sentenced. I feel very grateful that justice has been served. It is a feeling that is indescribable.
“However, I accept my son’s death as fated,” she told reporters when met at her house in Senibong, Johor Bahru. – April 16, 2022
Basis of judgment
According to one case observer, the law is such that the accused (Sam) must at the earliest opportunity during the prosecution’s stage, ‘put’ her version of the story or her defence.
“She cannot keep mum about her defence during the prosecution’s stage and then blurt it out only at the defence stage,” opined the observer.” In such a situation, the court (High Court) is entitled to assume that such a defence was an afterthought after she had heard the whole of the prosecution’s case.”
The observer added that the necessity for one to ‘put’ his case at the earliest opportunity during trial is trite law and it has been famously known as the rule in Browne v Dunn (late 1800s).
“Here, she chose not to give sworn evidence in her defence and, instead, she gave only an unsworn statement from the dock,” said the observer.
“In her statement from the dock, it seems, for the very first time, she said she did not see the group of cyclists there and, for the first time, she said she saw another car hit the deceased and ran away.
“Her version should have been ‘put’ to the prosecution during the prosecution’s stage and not kept secretly in her pocket and revealed only for the first time during the defence stage.”
In essence, the observer concluded that Sam’s “woes and troubles were caused by bad advocacy by her lawyer who did not appreciate the very basic rule in Browne v Dunn”.
Meanwhile, Judge Abu Bakar noted that the magistrate was in error for considering that Sam’s defence had created a doubt in the prosecution’s case. In fact, Free Malaysia Today cited him as saying that the prosecution that had proved its case beyond a reasonable doubt.
He said Sam has driven her vehicle in a reckless manner, bearing in mind that the road was winding and slightly steep.
“The magistrate was wrong to accept her defence that she did not know that there were cyclists at the place during the wee hours and it gave her the latitude to drive recklessly,” Abu Bakar pointed out.
He added Sam should have been aware that the accident scene was not brightly lit and one’s vision was also limited.
Meanwhile, Sam appears to have a hearing at the Court of Appeal on Monday (April 18), according to court filings. The hearing is most likely to be her application for a stay of execution pending the appeal against her conviction and sentencing, according to Malaysiakini who has failed to get confirmation from her defence counsel Muhammad Faizal Mokhtar.
Earlier, Bernama reported that Sabariah Yusof, 54, mother of Azhar Amir, 16, who was one of the eight teenagers who perished in the accident, said that she still imagines her son being at home.
“When I wake up in the morning, I feel like waking him up to go to school, imagining that he was still there. I also did not move the bed he always slept in, leaving it as it was.
“I was devastated that the woman who caused the crash was released. I didn’t realise that today she (Sam) was sentenced. I feel very grateful that justice has been served. It is a feeling that is indescribable.
“However, I accept my son’s death as fated,” she told reporters when met at her house in Senibong, Johor Bahru. – April 16, 2022
An eye for an eye - never for a second truly reflecting on the causality of the event!
ReplyDeleteAccepting her son’s death as fated & yet unable to accept her responsibility of been a lousy mother!
That's the problem of that f*cked zombieicism.