Basikal Lajak, is Sam really a criminal, yay or nay?

Written by: Averroes

(1.0) What's the catch?

Sam Ke Ting, 27 a sales clerk was convicted for reckless driving as eight teenagers riding 'basikal lajak' or modified bicycles without brakes, died as she collided into them. Sam Ke Ting was 22 years old when she crashed into them on February 18, 2017 at Jalan Lingkaran Dalam, Johor Baru. 

She was originally acquitted, twice by the Magistrate's Court. Now, she is appealing to the Court of Appeal in Putrajaya and applied for stay of execution, which failed. 

Basikal Lajak, children these days are able to modify their bicycles to imitate real motorcycles with its revving sounds. These bicycles do not have breaks.

(2.0) Legal Authorities

Before we delve into the arguments forwarded by the prosecution and lawyers for Sam, we should investigate the relevant laws and its elements first. Now, Sam is convicted and sentenced for 6 years, fine of RM6000 , disqualified from driving for three years as under section 41(1) of the Road Transport Act 1987 (RTA). 

In Cantona Lim Xiang Kim v Public Prosecutor [2020] 1 MLJ 544, the court states that as under section 41(1) of the RTA, the words reckless and dangerous driving are not defined as Parliament have not done so and it is for the courts to objectively assess based on evidence. 

There should also be the element of fault, whereby the driver was at below the care and skill of a competent and experienced driver at the time of the relevant circumstances. The driver is aware of the risks and injury, but still committed it with and selfishly disregarded the safety of other road users. 

In that case, the accused was given a lighter sentence since for careless driving instead they did not drive recklessly by crashing into the motorcyclists in opposite direction. It was a matter of perception. 

If you were on this road, how would you drive your car?

Court found that it was not entirely the fault of the driver. 

The prosecution said that when he accused was visibly impaired as water splashed onto their windscreen, they should have driven more carefully instead of speeding, especially the drizzling weather, wet road, surrounding nature, amount of traffic and size of the road. 

For the accused lawyers, there was the water splash interrupting the driver and it was not reckless, because they could not see the motorcyclists on the road, causing them to lose control. There was an intervening event, because another car splashed water onto the windscreen, it was beyond their control. 

Bonus: If you are in this situation, how would you drive your car?

In Muniyandi a/l Periyan & Anor v Eric Chew Wai Keat & Anor [2003] 3 MLJ 527, this is a negligence case but its facts could be applied for reckless and dangerous driving. Any prudent driver would have slowed down their car when it was dark. 

When they see people gathering around and saw something on the middle of the road 13ft away, they should have taken an evasive course. If they could not evade, then it is proof that they are speeding and could not control their car, thus negligent. 

If we see the pattern here, the logic is for one to argue and everyone has a way to twist around and make the innocent look bad and vice versa. This is what we can see in Sam's case and other court cases out there. 

(3.0) Legal Arguments by both parties

    (3.1) Prosecution argument

As a prudent driver, she should have the skills and care while driving. This was because, at that time, the road was winding and slightly steep, so she should have slowed down or optimally aware of her  surroundings. 

Imagine yourself at 3.20am as Sam driving on this dark road

Also, the road has curves and is winding, maybe similar to the roads going up to Cameron Highlands

When it was dark with poor road lighting, especially during the wee hours around 3.20am, she must be extra cautious and why was she driving beyond 50kmph? Just because, she might not have known there were basikal lajak on the road, that should not be a free ticket for her to drive recklessly all she wants. 

    (3.2) Sam's defence

Sam's lawyers and the Magistrate Court had a different view. While it was dark and the road was winding, she could not have possibly seen the basikal lajak at 3am. Rather, it was the teenagers that was causing danger on the road. 

According to evidence, there was a large tree and poor lighting obstructing her view, so she could not have seen the teenagers. Even if the basikal lajak was common there, there was no reasonable warning  and she is not a local. 

She does not have the same expectation as the locals to foresee the basikal lajak. 

Moreover, she was alert and was not intoxicated, alert, had her seatbelt on, did not use her cellphone even. Sam among other arguments say that what happened was that the teenagers were hit by someone else before she did and later sped off (this fact was rejected when she did not mention it during the prosecution case). 

(4.0) Conclusion

To conclude, let's say that there was a hole on the road. The driver tried to avoid it and went out of control, killing several people. Could that be reckless? Again, it is a matter of perspective. 

For the prosecutors, they say that it was reckless because they should have seen the hole, but for the lawyers defending the driver, they would say that he would not expect a random hole on the road due to some factors. 

The main issue here is that, while Sam is appealing and exhausting legal remedies, the real question is why would the parents let their children ride on modified bicycles during the middle of the night? 

Many are urging to charge the parents for negligence and that we should educate the youth to refrain from dangerous activities. It may not be the fault of Sam, but if the teenagers weren't on those basikal lajak, non of these would happen if it were not for responsible guidance and supervision of their parents.

(5.0) References;

    V. Anbalagan. (April, 2022) Sam's defence is bare denial, afterthought, says High Court. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/04/15/sams-defence-is-bare-denial-afterthought-says-high-court/

    Nation (April, 2022) Mat Lajak deaths: Sam's appeal on Monday April 18). Retrieved from, https://www.thestar.com.my/news/nation/2022/04/15/mat-lajak-deaths-sams-appeal-on-monday-april-18#:~:text=On%20Wednesday%20(April%2013)%2C,erred%20in%20accepting%20Sam's%20defence.

    Keertan Ayamany. (April, 2022) Sam Ke Ting's appeal against High Court decision in 'lajak' bicycle case set on Monday. Retrieved from, https://www.malaymail.com/news/malaysia/2022/04/15/sam-ke-tings-appeal-against-high-court-decision-in-lajak-bicycle-case-set-f/2053778

    Tan, B. (April, 2022) Woman previously acquitted of reckless driving now gets six years' jail for mowing down eight teens on JB road. Retrieved from, https://www.malaymail.com/news/malaysia/2022/04/13/woman-previously-acquitted-of-reckless-driving-now-gets-six-years-jail-for/2053265

    MalayMail. (October, 2019) Court clears motorist of killing eight teen cyclissts on dark JB road two years ago. Retrieved from, https://www.malaymail.com/news/malaysia/2019/10/28/court-clears-motorist-of-killing-eight-teen-cyclists-on-dark-jb-road-two-ye/1804502