Clerk in ‘basikal lajak’ case prejudiced by ‘illegal’ charge, court told
Lawyer Hisyam Teh Poh Teik told the Court of Appeal that the prosecution keeps ‘shifting the goalpost’.
V Anbalagan – 31 Mar 2023, 2:17pm
PUTRAJAYA: A clerk found guilty of reckless or dangerous driving which resulted in the deaths of eight teenagers riding on modified bicycles, or “basikal lajak”, was convicted on an “illegal” charge which is prohibited by law, the Court of Appeal was told.
Lawyer Hisyam Teh Poh Teik said Sam Ke Ting, 28, should have been charged either with “reckless driving” or “dangerous driving”, but not both offences “lumped together”.
“The charge is illegal due to duplicity,” he said.
Such an illegality was incapable of being cured under Section 422 of the Criminal Procedure Code and gave rise to a “failure of justice”, Hisyam told a three-member bench chaired by Justice Hadhariah Syed Ismail.
Also on the panel were Justices Hashim Hamzah and Azman Abdullah.
As a result, Sam was “seriously prejudiced and misled at the prosecution and defence stages,” he added. “We are raising this point for the first time in the interest of justice.”
Hisyam said the prosecution in the magistrates’ court had focused its case on “reckless driving”. However, it switched to “dangerous driving” when the case came up before the High Court.
In the Court of Appeal, the prosecution appeared to be going for “an indivisible act of reckless or dangerous driving”, said Hisyam.
“Again, the appellant is at a disadvantage due to them shifting the goalpost,” he added.
Co-counsel Harvinderjit Singh said the High Court had failed to consider Sam’s defence at the prosecution stage.
“She should have been acquitted without her defence being called,” he added.
Sam was originally acquitted by the magistrates’ court.
The prosecution appealed, and on April 13 last year, the Johor Bahru High Court overturned the acquittal and substituted it with a conviction for reckless or dangerous driving.
Judge Abu Bakar Katar sentenced Sam to six years’ jail and a fine of RM6,000.