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.

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