17/04/2022
Firstly, the process of proving guilt on the accused in Malaysia follows exactly the judicial system in UK. There is a presumption of innocence of the accused (following Woolmington v DPP (1935)), and the prosecution is the party to prove that the accused is guilty. So accused will be given the benefit of the doubt, and is treated to be innocent until proven guilty by the prosecution giving evidence of the alleged crime.
Prosecution also must prove the crime is committed by the accused to a higher standard of beyond reasonable doubt. It means the judge must be convinced there is no reasonable doubt that the accused is the one committing the crime. If there are any reasonable doubt at all in the case, then the accused is entitled to the ‘not guilty verdict’.
Secondly, it is important to understand the court’s sentiments in imprisoning the innocent. The famous English judge, William Blackstone had the following quote:
“It is better that ten guilty persons escape than that one innocent suffer.”
What this entails is the court’s stance that imprisoning the innocent is an absolute taboo. Liberty and freedom are the most important fundamental rights of every human being. The courts should take extra caution when delivering sentencing judgments to anyone.
Sam Ke Ting (the accused) is charged under S41(1) of Road Transport Act 1987 which reads:
“Any person who, by the driving of a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature condition and size of the road, and the amount of traffic which is or might be expected to be on the road) is dangerous to the public, causes the death of any person shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.”
The Magistrates Court judge, Magistrate Siti Hajar Ali, simplified the ingredients to prove the crime:
1. The accused must be the one driving the car JQB 9984 during the accident,
2. The accused must be driving in a reckless manner, or causes danger to other road users, and
3. The accident caused the death of any person
In her judgment, Magistrate Siti Hajar Ali was kind enough to address each ingredient systematically.
1. Identity of the driver:
Magistrate Siti Hajar Ali pointed out that the inspectors in-charge of the investigation did not verify if the accused is the one driving. Refer Pictures 1 and 2 attached to show the cross-examination snippets.
The prosecution relied on the accused’s own police report (P209 and P210 (amendment of P209)) to prove that the accused was the one driving the car JQB 9984 during the accident. However, the court noted that the P209 is a ‘first information report’. First information reports cannot be taken as conclusive evidence to prove anything, but may only be used as supportive evidence. Refer picture 3 for the court’s explanation and the relevant authorities.
The judge noted only SP9 saw the driver of the vehicle JQB9984, but SP9 was not requested to perform an identification to identify the driver of JQB9984. All other victims were unconscious during the accident, and when they were awakened, the driver and the passenger of the car were already out of the car, so they were unable to identify who was the actual driver.
Magistrates Siti Hajar Ali noted that there are reasonable doubts to the identity of the driver being the accused, but nevertheless proceeded to look at the other ingredients to the crime.
2. Reckless or dangerous driving
Magistrates Siti Hajar Ali noted that nothing in the evidence put forth by the prosecution suggested that the accused was racing with another vehicle, she was not attempting to change lanes while driving, she was not driving opposing traffic, she did not lose control of her vehicle, she did not crash into any of the road amenities.
Magistrates Siti Hajar Ali also noted some doubts with respect to the location of the victims after the crash due to conflicting testimonies by the witness/victims. Even the inspectors (SP44 and SP46) are unsure where the victims are after the crash, and whether their position when the police arrived are the final resting position, or were they moved by the public that assembled after the accident.
Also worth noting, the bicycles were travelling counter traffic during the accident.
Even more concerning, Magistrates Siti Hajar Ali noted a lack of information sharing between the police and the forensic team who attempted to recreate the scene of the accident, leading to further doubts in the evidence presented by the prosecution on the simulated accident. The police did not even share the fact that the victims are a group of ‘basikal lajak’ teens, wearing dark-coloured shirts without any reflective surfaces on them or their bicycles.
There were also many doubts as to where the first point of impact takes place during the accident. Refer to para 96 – para 99 in picture 5 for the court’s discussion on the first victim and the first point of impact. Para 101 (pg 25) of the judgment highlights fifteen points of doubts with regards to the victims locations.
Doubts were also expressed on whether the car was driving in the mid lane or the left-most lane during the accident, with the inspector’s testimony being different from the witnesses’ testimonies.
I just wanted to highlight two important observations: 1. The simulation based on the limited information suggested the accused was either driving at 44.53kph or 74.86kph (refer picture 6); and 2. The vehicle in question (Nissan Almera) only suffered body damage, none of the main structures of the vehicle are damaged. Experts suggested that the car is not in total lost condition, and can be functional after repairs. Refer picture 7 para 134 and 135.
3. Identity of the dead victims
Magistrate Siti Hajar Ali also noted many inconsistencies with the way the police handled the victim’s identification, leading to the conclusion that the last ingredient with regards the dead victim also failed to be proven by the prosecution. However, this ingredient is mostly only relating to the procedural aspects of the investigation.
TLDR conclusion:
It would seem the Magistrates Court was right in saying there were many doubts involved in the prosecution's charge; in fact, all ingredients to prove the crime also had some elements of reasonable doubt. Therefore the Magistrates Court was also right in saying no prima facie case was proven by the prosecution, and the accused need not enter into her defense.
How the High Court decide that there is a prima facie case when there are all these points of doubts involving all ingredients of the crime baffles me.
Why must we discuss the case?
Part of the legitimacy of the courts and judge-made laws are the public discussions about their decisions. Only in a situation where the judiciary and the judgments are open to be examined and discussed can we say that the judiciary system is legitimate, and that the people should abide by the judgments and laws made by the judges.
As per Keith J:
"Democracy dies behind closed doors."
