The appellate court ruling on the 2017 Johor bicycle tragedy shows that subordinate courts cannot just presume guilt on a motorist’s part in fatal reckless driving cases, according to a former Malaysian Bar president.
Speaking to Malaysiakini, Salim Bashir said that the Court of Appeal ruling that exonerated clerk Sam Ke Ting (above) illuminated the importance of proving beyond reasonable doubt the core ingredients of reckless driving under Section 41(1) of the Road Transport Act 1987.
“One cannot assume that if it is a fatal accident, then the driver must have been liable. It must be borne in mind that to be guilty of reckless driving, the driver must have created an obvious and serious risk of injury to a person or damage to property.
“Presumption of guilt in a situation involving fatal accidents is not a requirement of law. The investigations must be thorough to establish guilt,” Salim said.
In the unanimous Court of Appeal decision two days ago, the three-person bench’s chairperson Justice Hadhariah Syed Ismail ruled that the charge against Sam was defective for containing two separate offences - reckless driving and dangerous driving - in a single charge.
The appellate court also noted that the High Court in Johor - which convicted the 27-year-old motorist as well as imposed a six-year jail sentence and RM6,000 fine - had disregarded the trial magistrate’s findings that the accident was impossible to be avoided.
Hadhariah had ruled that Sam could not be expected to foresee the presence of between 30 and 40 basikal lajak teen riders who were not legally supposed to be out riding on the dimly lit road on Feb 18, 2017. Eight teens were killed in the tragedy.
Lawyer Rajesh Nagarajan, in welcoming the appeal verdict, said that the ruling acts as a reminder that all road users, including even cyclists, have to abide by the law and be extremely careful when out on the road.
The lawyer noted that the Court of Appeal’s ruling should be taken by all parents in Malaysia, regardless of faith and ethnicity, to always take care of their children, especially when it comes to riding bicycles.
“The moral of the story is that parents have to be very careful and always know where their children are at all times. Every parent out there has to be vigilant over their children’s activities.
“Children are our lives. You have to spend a lot of time and effort ensuring they are always healthy and safe,” Rajesh said.
Meanwhile, lawyer Kitson Foong told Malaysiakini that the appellate court decision serves as a “wake-up” call to the government over the issue of ensuring cyclists have sufficient knowledge on how to safely ride their bicycles on public roads.
Foong noted that unlike users of motorised vehicles such as cars and motorcycles, which require them to pass the mandatory driving theory tests before being allowed to obtain a driving or riding licence, users of bicycles and other similar vehicles like scooters are not covered by this legal requirement.
He said that this state of affairs has, all these years, led to the emergence of cyclists, especially those who are pre-teens and teens, who may not be well-equipped with the right amount of knowledge to ride their bicycles on the roads, thus endangering themselves, as well as other road users.
“In terms of basikal lajak, the government needs to ensure these potential road users are given guidance through schools.
“All children from primary to secondary schools, if they wish to use their bicycles on the road, the government should mandate that guidelines be imparted to these children as part of the school curriculum,” Foong said.
The lawyer opined that this step would help ensure that basikal lajak users have a better understanding of safe riding best practices.
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