LETTERS: Sam Ke Ting, who was sentenced by the Johor Baru High Court for reckless driving and causing the death of eight teenage cyclists five years ago, has gotten the attention of DAP's National Legal Bureau.
The party's national legal bureau chairman, Ramkarpal Singh, said they were prepared to aid Sam and her legal team in filing and hearing of the application for leave to appeal to the Court of Appeal.
Ramkarpal said the magistrate had acquitted Sam twice in the court below, first at the end of the prosecution's case and again at the end of the defence case.
A lawyer himself, Ramkarpal said he believed that the magistrate had made various findings of fact resulting in Sam's acquittals, which "are normally not interfered with on appeal unless found to be perverse".
Now, High Court judge Abu Bakar Katar on April 13 ruled that the Magistrate's Court had erred in failing to decide the accused's defence without being under oath. The accused had given an unsworn statement from the dock.
The law is this: when an accused's defence is called, it is the accused's right to give an unsworn statement from the dock.
If he elects to give an unsworn statement, the law states that he cannot be the subject of cross-examination.
As such, the evidential weight of his unsworn statement is not the same as the evidence given on oath in the witness box.
The trial court is free to give the statement from the dock the weight it deserves or not at all, having regard to the whole evidence before the court.
In 2016, in the case of Zulkipli Abdullah v Public Prosecutor [2016] MLJU 299, the Court of Appeal had the occasion to consider the evidential value of the dock statement. It was observed as follow:
"The accused gave an unsworn statement from the dock.
"His statement is not subject to cross-examination by the prosecution, nor can he be questioned by the trial judge. Its veracity is not tested.
"The trial judge is free to give the dock statement such weight as he thinks fit and he can take it into consideration in deciding whether the prosecution has proved its case."
In Datuk Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145, the Federal Court observed at p 199 as follow:
"In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross examination by the prosecution nor can he be questioned by the trial judge (Lee Boon Gan v Regina [1954] 1 MLJ 103, Udayar Alogan & Ors v Public Prosecutor [1962] 1 MLJ 39, Mohamed Salleh v Public Prosecutor [2016] 3 MLJ 586 at 600; [1969] 1 MLJ 104, Juraimi Husin v Public Prosecutor [1998] 1 MLJ 537)."
In that case (Datuk Seri Anwar Ibrahim v Public Prosecutor & Another Appeal), the Federal Court went on to say: "While it is true that it is within the [accused]'s right to give a statement from the dock, that statement must however amount to a credible defence.
"A mere denial does not amount to a credible defence."
Thus, where the prosecution has made out a case, a mere denial through a statement from the dock does not in effect raise any reasonable doubt on the prosecution case.
This explains why judge Abu Bakar ruled as follows (in Malay):
"Mahkamah Bicara terkhilaf apabila gagal menimbangkan pembelaan responden (tertuduh) tidak menimbulkan keraguan yang munasabah atas pendakwaan khasnya responden yang memandu keretanya secara merbahaya mengambil kira keadaan jalan yang berselekoh dan berbukit sedikit."
In the 2016 case of Zulkipli Abdullah v Public Prosecutor [2016] MLJU 299, decided on March 1, High Court judge Zulkifli Bakar considered what "reasonable doubt" means by reference to a case decided more than 50 years ago in PP v. Saimin & Ors [1971] 2 MLJ 16 where High Court judge Sharma said as follow:
"Reasonable doubt is the doubt which makes you hesitate as to the correctness of the conclusion which you reach.
"If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt.
"It is a doubt which settles in your judgment and finds a resting place there.
"Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given.
"A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence."
In that case, justice Zulkifli Bakar ruled that the defence raised by the accused, who gave an unsworn statement from the dock, was a mere denial that failed to raise any reasonable doubt on the prosecution case.
The cases above show that not much weight is to be given to what an accused has said in his unsworn statement.
So, justice Abu Bakar's decision appears to be based on legal principles.
He may err on the principles and the facts of the case. Let the appeal process, if leave to appeal is granted, remedy this.
I have a simple message: respect the High Court's decision.
HAFIZ HASSAN
Melaka
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times