APRIL 16 — More than 250,000 signatures have reportedly been collected in less than 24 hours on two separate online petitions seeking either the release of or justice for Sam Ke Ting, the woman who was sentenced to six years’ jail over the 2017 deaths of eight teenagers riding their “basikal lajak” or modified bicycles in Johor.
According to latest reports, the largest of the petitions has over 800,000 supporters.
Now, the High Court Judge Datuk 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 learned judge’s grounds of judgment have been sighted and reported by Malaysiakini.
Lawyers will tell you that the accused had given an unsworn statement from the dock.
When an accused’s defence is called, it is the accused’s right to give an unsworn statement from the dock. If he/she elects to give an unsworn statement, it cannot be the subject of cross-examination and its weight is not the same as the evidence given on oath in the witness box.
The trial court is free to give the dock statement the weight it deserves or not at all, having regard to the whole evidence before the court.
A few years back 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 follows:
“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 Dato’ 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 (Dato’ Seri Anwar Ibrahim v Public Prosecutor & Another Appeal) the Federal Court went on to say as follow:
“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’s case.
This explains why the learned High Court judge 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 a recent case of Pendakwa Raya lwn Sunil Singh a/l Jeganathen Daniel dan lain-lain [2021] MLJU 710, decided on March 1, High Court Judge Zulkifli Bakar considered what “reasonable doubt” means by reference to a case decided more than fifty years ago in PP v Saimin & Ors [1971] 2 MLJ 16 where High Court Judge Sharma said as follows:
“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.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
