Five years on since one of the most shocking road incidents in our nation’s history, the tragic deaths of eight ‘Basikal Lajak’ cycling teenagers in Johor is back in the public eye once again.
On 13 April 2022, the Johor Bahru High Court overturned the acquittal of Sam Ke Ting, the driver during that fateful night. She has now been convicted with reckless driving which caused the death of the teenagers at 3am on 18 February 2017.
This is despite the accused being freed twice – once after the end of the prosecution case, and in another instance at the end of the defence case – by the Magistrates’ Court for the same charge. So, what has changed over the past five years that the High Court decided to overturn the decision of the Magistrates’ Court after the full trial?
Furthermore, her application for leave to appeal to the Court of Appeal was also unanimously granted by a three-person Court of Appeal bench on 18 April 2022. Hence, Sam has been given a stay of sentencing and was released on bail pending the hearing of her appeal before the Court of Appeal.
So, what comes next for the appellant? Let’s examine the facts and chronology of the case closely through the eyes of the law.
When the charge was first brought upon Sam in 2017, she pleaded not guilty. Two years later, the first decision for the case was delivered on 28 October 2019 at the Magistrates’ Court in Johor Bahru.
The presiding Magistrate, Siti Hajar Ali ruled that the prosecution had failed to prove a prima facie case against the accused after considering several factors. These include, among other things, the fact that it was a dark, hilly and winding road during the incident.
Moreover, the learned Magistrate also added that the cycling teenagers had put themselves in danger. The driver could not possibly foresee that there would be a bicycle gang on the road at 3 o’clock in the morning.
Based on the grounds of judgement by the learned Magistrate, testimony by investigators corroborated the matter, asserting that there was a big tree on that road and the lights were dim even though there were lights on the road divider. Besides that, while the ‘Basikal Lajak’ activities were known by locals, it is unreasonable for the accused to know the matter as someone who uses that road infrequently.
The learned Magistrate further added that investigations found that Sam was not under the influence of alcohol, not using her phone and wore a seatbelt while driving. As such, proved that she was driving responsibly and carefully.
Hence, Sam was acquitted without being called to enter her defence.
However, last year, the High Court allowed the appeal by the prosecution against the decision of the learned Magistrate in acquitting Sam in 2019. According to the Johor Bahru High Court decision on 18 February 2021, Judicial Commissioner Dr Shahnaz Sulaiman found that the prosecution successfully established a prima facie case against Sam. The defence was then heard at the Magistrates’ Court again.
This time around, having heard her evidence and submissions, Sam was again acquitted at the end of the defence case on 10 October 2021. The learned Magistrate asserted that the prosecution had failed to prove their case beyond reasonable doubt.
Dissatisfied with the decision of the learned Magistrate, the prosecution filed an appeal to the High Court and was heard before His Lordship Dato’ Abu Bakar Katar J. His Lordship was of the view that the prosecution had successfully proved the essence of the offence and the elements of the charge.
Furthermore, the defence had failed to raise reasonable doubt against the prosecution case. Hence, Sam was convicted of reckless driving which caused the death of the cycling teenagers and was sentenced to 6 years imprisonment and RM6,000 fine. She would also be imprisoned for an additional six-month in lieu of the fine.
The accused will also be disqualified from driving for three years after she had served her prison sentence. In his judgement, His Lordship Dato’ Abu Bakar Katar J said that the Magistrates’ Court had erred in law and in fact as Sam’s defence, particularly the fact that she did not see the teenagers and that a different vehicle had hit and run the group, was merely a bare denial and/or an afterthought .
He added that the Magistrates’ Court also erred in accepting the defence that she did not know there would be cycling activity on the night of the incident as an excuse for her reckless driving to the point that it caused deaths. His Lordship Dato’ Abu Bakar Katar J further stressed that the accused should’ve driven more carefully, taking into account the darkness and limited visibility.
Following the Johor Bahru High Court’s verdict, there was a bit of controversy amongst the public after His Lordship Dato’ Abu Bakar Katar J dismissed the application by the defence for a stay of sentencing. The High Court was of the view that when a criminal appeal is brought to the appellate court from the Magistrates’ Court, the appellant must first apply for leave of appeal from the Court of Appeal in order to be granted a stay.
This was indeed the correct position under the law. A stay of execution itself is discretionary and depends on the facts and circumstances of the case, but in cases where the matter arises from the Magistrates’ Court, the accused does not have an automatic right to appeal but a leave of appeal from the Court of Appeal must be obtained. Speaking of which, the accused had since successfully obtained leave of appeal on 18 April 2022.
Moving forward, since this case was first heard at the Magistrates’ Court, it can only be appealed up to the Court of Appeal according to the laws of the country. Hence, the Court of Appeal will ultimately decide her fate, with no further avenue of appeals possible.
Based on the brief grounds of judgement by His Lordship Dato’ Abu Bakar Katar J, the biggest point of contention was in relation to Sam’s unsworn statement claiming that there was a different vehicle that had hit and run the group, which as mentioned earlier, His Lordship Dato’ Abu Bakar Katar J was of the view that her defence was merely a bare denial and/or an afterthought. As it was never brought up by the appellant during the prosecution case and the fact that it was an unsworn statement, the court ruled that the defence was a mere bare denial and/or an afterthought by Sam.
If she had opted to take the witness stand and give her evidence on oath, the prosecution would have had the opportunity to cross-examine her over her version of events. Such evidence, when tested through cross-examination, would carry more weight and evidential value. Hence, among the issues of law that the Court of Appeal will possibly look into is whether the appellant’s unsworn statement from the dock was merely a bare denial and/or an afterthought or must it still be considered and accepted.
Another issue of contention is whether Sam’s vehicle exceeded the speed limit of 50km/h on the day of the incident and whether her driving can be regarded as reckless driving under Section 41(1) of the Road Transport Act. It is important to note that the said Act has already been amended by Parliament in 2020 to prescribe a more severe punishment, but since the incident occured before the amendment, the new amendment have no retrospective effect.
Indeed, His Lordship Dato’ Abu Bakar Katar J in his judgement held that the offence committed by the accused was a serious one. Hence, the Johor Bahru High Court adopted the approach set in the case of PP v. Loo Choon Fatt (1976) 1 LNS 102 and PP v. Leo Say & Ors (1985) CLJ Rep 683) in determining the appropriate sentence for Sam.
Moving forward, all eyes will be on the upcoming Court of Appeal hearing of this case as it will potentially be one of public importance. In fact, given the circumstances of the case, the outcome may set a precedent with long term impact over the rights of road users in our country.