PUTRAJAYA: Datuk Hadhariah Syed Ismail, who led the three-member Court of Appeal bench hearing Sam Ke Ting's final appeal in the "basikal lajak" case, was clearly irked by the prosecution.
At least twice she took the prosecution to task over the presence of the cyclists on the road at 3am.
Hadhariah first took the court by surprise halfway through deputy public prosecutor Muhammad Syafiq Mohd Ghazali's submission, when she raised the question of the law that permits "basikal lajak" cyclists to be on the road at that time.
Syafiq was momentarily lost for words while submitting about the victims' position on the road on the fateful night, as well as on the testimonies of 13 victims of the crash who survived, during trial at the lower courts previously.
Hadhariah questioned Syafiq on whether Sam's vehicle was on a legal road lane at the time, and if that was an offence, to which answered "yes" to the first question and "no" to the second.
"It is undeniable that the drivers' eyes were on the road when driving but the road was hilly, curvy and dark because the streets lights were covered by trees. The appellant (Sam) had said that she didn't even know that there was 'basikal lajak' activity.
"Can you show which law says if she does not know, she does not see (the group) because of the condition of the road, and she wanted to speed up to 100kph, that is wrong? Because, at 3.20am, the road is clear, people are sleeping at that time.
"She didn't see the cyclists, and she did not have the time to think because the accident happened in a blink of an eye.
"Even a perfect driver would not be able to avoid any accident in that situation, even if there is a cat or even a turtle with its kids passing by," she said.
Hadhariah, who sat with Datuk Hashim Hamzah and Datuk Azman Abdullah, also took umbrage with DPP Tengku Amir Zaki Tengku Abdul Rahman, who concluded prosecution submissions by saying that there was indeed a prima facie case against Sam.
She asked about the 46th prosecution witness, who was the second investigating officer in the case, who testified that police had conducted an operation to nab "basikal lajak" cyclists just two days before the accident.
Hadhariah: So why would police want to nab them? Answer briefly, in just one sentence. Why?
Tengku Amir: To safeguard the cyclists' safety, because they endanger themselves as well as the public who drive through the area.
Hadhariah: I thoroughly examined the magistrate's proceedings notes and judgment so even the 46th witness agreed that the dangerous situation was created by the cyclists. We're talking about 30 to 40 cyclists here, not one or two.
She said the investigating officer had agreed that the public had complained about the cyclists, and therefore that is why they wanted to nab the cyclists.
"I find that the magistrate's findings were correct when including the testimony of the 46th witness, and that the statement was favourable to the defence… right? It can no longer be disputed, right?
"We have to be honest here when we're talking about justice. One who was charged is presumed innocent until proven guilty and we are here for justice to prevail, so we have to be fair."
Hadhariah said the investigating officer's testimonies proved that the "basikal lajak" activity was never endorsed by the authorities, because if it had been, then there would be a road sign cautioning road users about them.
She continued to give Tengku Amir an earful when she pressed him to answer her question "honestly", as it was now the month of Ramadan.
Both Hadhariah and the prosecutor went back and forth for a while longer before the prosecutor again concluded his submissions, and the judges heard the defence's reply and briefly adjourned before deciding to acquit and discharge Sam of the offence.
The three-member bench unanimously found that the charges against Sam were defective and therefore illegal.
Sam was previously accused of crashing into and causing the deaths of Azrie Danish Zulkefli, 14; Shahrul Izzwan Azzuraimie, 14; Firdauz Danish Mohd Azhar, 16; Fauzan Halmijan, 13; Azhar Amir, 16; Harith Iskandar Abdullah, 14; Shahrul Nizam Marudin, 14; and Haizad Kasrin, 16, on Feb 18, 2017.
Her charges, then, were framed under Section 41 (1) of the Road Transport Act 1987 (Act 333), which carries a maximum jail term of 10 years and a fine of RM20,000 upon conviction.
The 28-year-old clerk was previously acquitted and discharged by the magistrate's court on Oct 28, 2019, at the end of the prosecution's case without her defence being called.
The prosecution appealed the magistrate's decision to the High Court, and on Feb 18, 2021, the Johor Baru High Court sent the case back to the magistrate's court, asking Sam to enter her defence after allowing an appeal by the prosecution.