My unpopular opinion on Sam Ke Ting’s case

I am glad that the Court of Appeal panel’s decision to acquit Sam Ke Ting was made. Her ladyship made extensive reference to the trial judge (Magistrate Siti Hajar)’s written grounds of judgment when hearing the final appeal.

The panel went through the facts of the case and considered their findings based on both facts and law.

During the first appeal, the High Court Judge considered mainly points of law and very little on facts before his decision to convict.

I admire the Magistrate’s eagerness to acquit Sam Ke Ting at both the end of the prosecution’s case and at the end of the trial. However, it is precisely because of her overzealousness in acquitting Sam Ke Ting that Magistrate Siti erred in her grounds of judgment. Her errors in her grounds of judgment were technical errors; however, such errors would have caused the first appeal to end up in conviction.

In a nutshell, when the High Court decided that there is Prima Facie in accordance with Section 173 h of the Criminal Procedure Code during the first appeal, she (the magistrate) must not cite flaws in the prosecution’s case as the basis of conviction in her final grounds of judgment. Because when Prima Facie is established (by the High Court), it means the prosecution’s case is, by law (not by facts), proven beyond a reasonable doubt.

The act of citing prosecution flaws is an error in law, which means the High Court has no choice but to revert it. I personally agreed with the High Court judge’s decision in reversing the acquittal on this ground, for the law on Prima Facie is very clear by now: Prima Facie is established when unrebutted (by the defense) shall warrant a conviction.

The act of Magistrate Siti Hajar citing the prosecution’s case means that she disagreed with the High Court’s finding of Prima Facie. Being a subordinate court, the Magistrate does not have the power to overrule a High Court’s finding of Prima Facie. Her judgment was flawed because the effect of citing the flaw of the prosecution’s case or evidence in her final judgment as grounds for acquittal is fatal.

In the High Court appeal, the prosecution mainly raised points of law regarding Prima Facie. The High Court judge, in my opinion, did not err in this when reversing the acquittal.

I shall attribute the cause of such judgment (in the High Court) to:

  1. The Magistrate being overly passionate in acquittal,
  2. Inadequacy of preparation by the defense.

The Court of Appeal later went through the notes of proceedings of the trial, as claimed by Justice of Appeal Yang Ariff Datuk Hadhariah.

This means that the Court of Appeal panel actually went back to the facts of the case, besides the law. The Court of Appeal panel later acquitted Sam Ke Ting mainly based on facts and law – the law part would be on the prosecution’s defective charge sheet.

Suffice to say, Sam Ke Ting was acquitted in the Magistrate court by facts, subsequently convicted in the High Court by law, and lastly, acquitted in the Court of Appeal by facts and law.

If the Magistrate acquitted her without making reference to the prosecution’s flaw, there wouldn’t be solid grounds of appeal to the High Court in the first place based on points of law, and she would have had her acquittal affirmed.

Second, the defense at the trial stage (Magistrate) level and first appeal (High Court) did not prepare itself adequately. They cannot be too confident to assume acquittal,

although that seemed to be the case. The defense counsel (during the trial stage) should have raised all the problems already, but didn’t.

When the High Court ordered accused Sam Ke Ting to enter a defense, she must be the first to testify as provided by Section 181 of the Criminal Procedure Code. Due to the unpreparedness of Sam Ke Ting, her evidence as the first witness for the defense case was a blunder.

Last but not least, in my honest opinion, I shall concur with the findings of facts and laws by all three levels of courts – On facts by the Magistrate, on Law by the High Court Judge, and on Facts and law by the Court of Appeal.

One thing that I felt was amiss is action against the parent of the deceased.

Despite their pain and suffering of losing their child, which I am sympathetic with, they should not be exempt from being held responsible for negligence under the Child Act 2001.

If those responsible for the care of a child abandon, neglect, or expose the said child to danger so as to cause him/her physical or emotional injury, then it is an offense under Section 31(1)(a) of the Child Act 2001, which, upon conviction, is liable to a fine of not more than RM50,000, or imprisonment of up to 20 years, or both.

What messages are we sending to Malaysians if parents who are clearly in violation of Section 31 of the Child Act 2001 are not held responsible for breaking such a law? The message we send out is dangerous – as if we are telling everyone at large to feel free to neglect their children because if anything happens, they won’t be held responsible.

I suggest the Police and AGC look into prosecuting the parents under Section 31 of the Child Act 2001 because there is a strong case against them, for the sake of protecting all children in Malaysia. The trial judge can then take note of their mitigation and not ordering a harsh sentence (maybe just a fine) so that it serves as a deterrent to everyone else not to expose their children to deadly events by neglect.

Hartal Doktor Kontrak – What’s Next? (Dummies pack)

In the Dewan Rakyat today, April 4th, 2023, Prime Minister Datuk Seri Anwar announced the Government’s dedication to integrating 12,800 contract doctors who have completed their housemanship into the Government system as full-time employees. In 2023, 4,300 contract doctors will be absorbed, and the remainder will be integrated by 2025. This measure will cost an additional RM1.7 billion for the Government.

This issue is significant because, prior to 2016, most doctors were offered permanent positions upon completing their housemanship. After 2016, the influx of doctors and new hospitals put financial pressure on the Government, leading to the temporary measure of contract doctors and the creation of UD 56 to promote UD54 who are due for JUSA C but lack the available positions.

The temporary measure was supposed to be resolved within a few years, but changes in Government leadership allowed the issue to persist. Contract doctors have expressed frustration due to several reasons, including their years of service not counting towards specialist training eligibility, lack of transparency in the selection process for permanent positions, and similar workloads as permanent doctors but with lesser pay and benefits.

To address the financial concern, the Government should develop a comprehensive financial solution, such as increasing revenue through the reintroduction of a modified GST scheme or learning from Singapore’s Medisave and MediShield schemes. Amending the Employee’s Social Security Act 1969 and the Employee Provident Fund Act could allow for mandatory healthcare insurance and salary deductions for healthcare insurance, respectively.

The Government could then reduce healthcare subsidies significantly and allocate a portion of the funds to support an ‘Obama Care’-style insurance scheme, assisting unemployed citizens with their healthcare insurance premiums. For those who cannot afford basic healthcare insurance, NGOs and corporate CSR planning can help cover these insurance costs.

By implementing these measures, the Government can free up billions by 2025, allowing for fairer treatment of young doctors. Finally, it is crucial that the medical profession within the Government be granted self-regulatory autonomy, removing it entirely from the purview of JPA/SPA. This can be achieved through the passage of a law in Parliament.

In order to successfully implement these proposed measures, the Government will need to engage in open dialogue with stakeholders in the medical community, as well as with the public. Ensuring transparency and inclusiveness in the decision-making process will help to address concerns raised by contract doctors and build trust in the system.

The Government should also establish a clear timeline for the absorption of contract doctors into permanent positions, providing them with a sense of stability and assurance. This would not only improve morale but also help retain talented medical professionals who might otherwise consider leaving the public sector.

Educational initiatives and public awareness campaigns should also be developed to inform citizens about the changes in the healthcare system, particularly regarding the proposed insurance schemes and the role of NGOs and corporate CSR planning in providing assistance to those in need.

Resolving the issue of contract doctors is a matter of urgency for the Government. By developing a comprehensive financial solution and providing greater autonomy to the medical profession, we can ensure that our healthcare system is better equipped to serve the needs of our citizens. This will, in turn, contribute to the overall well-being and prosperity of our nation.