Written by: Averroes
(1.0) Introduction
Two years ago, a former hairstylist caused the death of a college student due to reckless driving. The victim was Moey Yun Peng aged 20, who was his own friend that died at Km4 of the Penang Bridge (Prai-bound) around 3am on the 20th January 2019.
A dashcam video from the accident went viral on the internet, which showed a black Toyota Vios driven by the accused in zig-zags through the three lanes, before ramming into a Mazda CX-5 Sports Utility Vehicle (SUV) car. The Mazda then flipped across the three lanes, before breaching over the concrete balustrades and plunging into the sea.
Afterwards, an extensive search and rescue consisting of 140 people were inbound to relocate the car and victim. They managed to recover the Mazda car than was submerged 15m underwater under Pier 34 of the Bridge heading for Prai. They had to fight against the choppy seas and bad weather.
It was revealed by a forensic expert, that the cause of death was drowning, said Dr. P Chandroth Navin from Penang Hospital Forensic Medicine Department. The post-mortem conducted also found three bruises, externally and internally with four swellings on the head without fractures on the skulls or other injuries. Sea water was also detected in the abdomen and lungs, causing alveolar destruction and bleeding.
(2.0) Legal Analysis
In the Sessions Court, Judge Ahzal Fariz Ahmad Khairuddin who was the presiding Magistrate decided that the prosecution successfully established a prima facie against the accused, M. Vaitheswaran aged 23.
To establish the offence of reckless driving, section 41(1) of the Road Transport Act 1987 and its statutory requirements had to be proven which are;
"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..."
In the case of Dennis Lee Kuok Loong v Public Prosecutor [2014] 7 MLJ 469, it was clear that by overtaking another car down a hill and causing an accident. The appellant argued that they were driving at a slow speed and the road was slippery and wet. However, this goes against logic because, if not, how could the impact be so devastating. It was a total wreck in the front of the car, the firemen had to pull the victims out. The impact was so strong, it made the car spin to the other direction.
The case relied on another precedent that the accused drove dangerously and was below the standard of care and skill of a competent drive as in Ramiah v Public Prosecutor [1972] 2 MLJ 258, which that;
(i) There must be a situation created by the accused which, viewed objectively, is dangerous
(ii) The Prosecution must prove that when creating such a situation, the appellant was at fault
From here, the accused could face up to 10 years of jail, a fine of RM20,000 or both. His license was also suspended until trial ends, and he is required to check in at the nearest police station every month. He was also on bail at RM7,000 from the offence, after the incident.
When a prima facie case has been established, he would have to enter their defence, which are schedule at on 28th and 29th October. There are three options available for the accused, one of them includes;
(i) Remain Silent
(ii) Giving testimony from the dock
(iii) Sworn testimony from the witness stand
The accused chose the sworn testimony from the witness stand. These testimonies would be from the accused mother, himself and a Throughout the trial, 12 prosecution witnesses were called.
(2.1) Prosecution Witnesses
According to one kopitiam worker, he told that the friends of Tan Wei Jie, the accused and the victim were celebrating a birthday of a mutual friend, before the unfortunate incident occurred.
Moey Kah Tiang aged 64, father to the victim and also a prosecution witness stated that, the last time he saw his son was on January 19 when he asked for permission to use the Mazda car to go to a birthday party on Penang island. He was taken aback when his son's friends came a day after the incident and asked for his whereabouts.
The father became worried and was subsequently shown a viral video on social media with a car that looked similar to the one driven by his son.
This is only speculative and assumptive as no complete facts of the news are given, but this would mean that the accused was probably drunk or had consumed intoxicants during the birthday party when he was driving on the road.
It would not have been the vehicle's malfunction driven by the accused or the blaring lights or any other external interventions that could have contributed the accident. Especially since it was 3 am in the morning, the birthday party might have been going on the whole night and the accused could have been drowsy or fatigued to focus on the road.
Clearly, the accused must have driven recklessly or dangerously. If not, why would the car swerve in a zig-zag and caused a heavy impact onto the victim's car, causing it to spin thrice before lunging into the seas. Even if the accused were to use the defence of intoxication or unsound, then it could not be self-induced and that he must be unsound mind, during the incident, not diagnosed after.
(2.1) Accused Testimony Witnesses
According to a medical assistant at the Penang Hospital Emergency and Trauma Department, Baharuddin Baharom alluded that, the accused suffered from 'retrograde amnesia or memory loss, because of a concussion to the brain.'
When a number of medical checks were done on him, everything was normal, but he could not recall the incident precisely. If now, if the accused were to resort to the defence of unsound mind or intoxication, then he would have to prove it based on the following provisions;
To prove the defence of intoxication or intoxication, there are still requirements for the accused to really prove that it did apply to his situation. The provisions for these are listed below;
Section 84 of the Penal Code for (Act of a person of unsound mind);
"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
From here, the accused must show 'at the time of doing it'. Meaning to say, if he were to claim for amnesia, then it has to be during the incident, not afterwards. Also, there must be strong and conclusive medical reports or evidence from credible experts that the accused was unsound mind.
Section 85 of the Penal Code (Intoxication when a defence);
"Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-"
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person;
To reiterate again, the accused could not use the defence of intoxication if he himself causes it personally. It requires another person to cause it to him. For instances, at the birthday party, if the bartender negligently serves alcohol instead of coke, then the drinker does not know and he may use this as a defence.
(3.0) Conclusion
To conclude, we need to spread awareness and educate the public when it comes to drinking alcohol. It has to be reminded that, people should not be drinking before driving. Yes you may have heard numerous memes on this, but in fact it is the reality. We live in a society that we have to cross-check among ourselves, especially our own friends.
If we see that a friend of ours are drunk, we should take the responsibility to drive them home safely or provide a place to take a rest or sleep. If we let them loose, who knows what inappropriate or unwanted acts that they could do on others. This does not only apply to our friends, but other members of society.
Perhaps stricter laws should be imposed or that more preventive measures can be taken, such as installing road cameras or that shops or pubs should remind consumers of the consequences of intoxicant intake at late hours during the night.
(4.0) References;
Audrey Dermawan. (September, 2021) Penang bridge crash: Former hairstylist ordered to enter defence [NSTTV]. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/09/731911/penang-bridge-crash-former-hairstylist-ordered-enter-defence-nsttv
N. Trisha. (September, 2021) Penang Bridge crash driver to finally receive verdict after two-and-a-half years. Retrieved from, https://www.thestar.com.my/news/nation/2021/09/24/penang-bridge-crash-driver-to-finally-receive-verdict-after-two-and-a-half-years
Predeep Nambiar. (March, 2020) Kopitiam man recalls party hours before SUV plunged off Penang Bridge. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2020/03/12/kopitiam-man-recalls-party-hours-before-suv-plunged-off-penang-bridge/
MalayMail. (December, 2019) Penang Bridge crash: Father only learnt about incident from son’s friends. Retrieved from, https://www.malaymail.com/news/malaysia/2019/12/03/penang-bridge-crash-father-only-learnt-about-incident-from-sons-friends/1815789
Bernama. (March, 2020) Penang Bridge crash victim died of drowning - forensic expert. Retrieved from, https://www.malaysiakini.com/news/514145
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