Drunk driver charged for MURDER? Why employers not charged for 'KILLING' workers at workplaces?

An alleged drunk driver who was involved in a car accident have been charged for MURDER.

Many are wondering whether someone can even be charged for MURDER for a death that happens in a motor-vehicle accident like this. On the face of it, he did not set out to kill the VICTIM(or even anyone) - where is the intention to cause death? 

ANSWER - YES, they can be charged for MURDER (or any of the other killing offences in the Penal Code).

Likewise company Directors, CEO and other staff can also be charged for MURDER when a worker dies because of an 'industrial accident', caused by their failure to ensure safe working environment

There are 3 main killing offences in the Penal Code

1- MURDER (section 302, sentence is mandatory death penalty)

2- CULPABLE HOMICIDE NOT AMOUNTING TO MURDER (s. 304 - 
with imprisonment for a term which may extend to thirty years. However, if, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death,' - with imprisonment for a term which may extend to ten years

 3 - Causing Death By Negligence (s.304A - with imprisonment for a term which may extend to two years ...

So, when is it CULPABLE HOMICIDE (s. 299) Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Now, for car accidents and WORKPLACE accidents, there may be NO INTENTION - so, the question is whether what was done(or not done) was with the knowledge that he is likely by such act to cause death,

One relevant illustration in the law -   '(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

Therefore, the only question in such cases may be whether the person(including Employers/Developers/etc) did something(or did not do something) with the knowledge that it may cause death. For worksite accidents, whether they did or did not put in place things to ensure workplace is safe to ensure death happens or does not happen. So if a worker dies due to such failures on the part of Developers/Contractors/Employers - they, including Directors and officers responsible can be charged for culpable homicide.

What about MURDER - when does a culpable homicide become MURDER. Well, the Penal Code in section 300 talks about this - and the most relevant may be section 300(d) 

....culpable homicide is murder...(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

So, for our DRUNK driver ...did he KNOW that driving under the influence of alcohol, drugs, etc ...is 'imminently dangerous' and he has no excuse for incurring the RISK - he can also be charged for MURDER.

Likewise an employer/contractor/developer. Now, occupational safety and health measures are there to keep workers safe - and most likely it is lessons learned from past experience that caused death or serious injury that has made the Government put in place such regulations and guidelines. Hence, it is reasonable to say that the employer/contractor/developer...who failed to comply with legal requirements KNEW that it was 'imminently dangerous' that it must in all probability cause death, or such bodily injury as is likely to cause death,. Now, then the question would be whether he did have any acceptable EXCUSE for incuring the RISK. If the conditions are satisfied, they/he/she can also be charged for MURDER.

If your car, had faulty breaks...or if you were speeding..or driving recklessly, irrespective of the fact whether you were under the influence of alcohol/drugs/etc - if someone is killed, you too can be charged for MURDER or Culpable Homicide ...or at the very least causing death by negligence.

YES, even if you were simply NEGLIGENT, you can be charged for the offence of causing death by negligence.

One wonders why in Malaysia no employer/contractor/developer, their Directors/CEOs and officers in charge have YET to be charged for MURDER or CULPABLE HOMICIDE not amounting to MURDER or Causing Death By Negligence.

Is it because of governments being pro-employer? Is it because deaths at workplaces are not being investigated for MURDER, Culpable Homicide or killing by reason for negligence?

Drunk driving can attract the charge of murder or some killing offences...similarly other road traffic accidents also can, but is it not time to consider whether death at workplaces also should lead to at least investigation and better still prosecution for MURDER or one of the other Penal Code offences of killing?

One major problem when it come to DRUNK drivers is the question of knowledge of the danger and the knowledge of the risk his/her action will probably cause death when he commits the offence > for when he/she is drunk or under the influence of any other intoxicating substance like DRUGS, his mental capacity is affected naturally...Different in the case of speeding, driving recklessly, driving vehicles with bald tyres/brakes/etc ...

When it comes to Employers/Developers/Contractors - most times the failure to put in place all that is required to ensure safety is a CONSCIOUS decision, maybe to safe money, etc..., HOPING that no accident happens that kills anybody > HENCE, the chances of getting conviction for MURDER, Culpable Homicide or at least 'death by negligence' for these people are so much more easier > So, why do we not hear about these people being charged? 

INQUEST - must be made mandatory for all worksite mishaps that resulted in DEATH. The Coroner/Magistrate must look at all aspects including compliance of legal obligations to ensure safety and health at worksites and decide WHETHER anyone is CRIMINALLY LIABLE for the death. The Coroner must not simply rely on police investigation(as the police may lack competence about OSH matters), but also the investigations of Department of Occupational Safety and Health, CIDB, Local Authorities, etc - all who have responsibility about 'compliance of occupational safety and health matters)...Consider all investigations before deciding whether most importantly whether anyone is criminally liable - be it for MURDER, Culpable Homicide or even causing death by negligence, and other criminal offences...

Is it because the companies, employers, contractors, developers are RICH or 'politically connected'? Or is it because of 'corruption"? 

'Accidents' - is it truly an accident where no one is responsible for the death? Or are we being too 'simplistic' in our investigations and/or inquiries? 

We now know that one can be charged for MURDER and/or CULPABLE HOMICIDE even if we never had the intention of killing a particular person/s > but because we did(or did not do) something with the knowledge that our actions has the risk of someone being killed or seriously injured...

 

Alleged drunk driver in Kuantan crash charged with murder [NSTTV]

By TN Alagesh - June 1, 2020 @ 12:05pm

KUANTAN: A 41-year-old fish wholesaler was charged at the Magistrate's Court here today with murdering an Alam Flora supervisor last week.

Teoh Kian Peng from Tanah Putih here nodded when the charge was read to him in Bahasa Melayu before magistrate Najwa Hashim.

However, no plea was recorded from the accused – who is believed to have been drunk during the incident – for the charge under Section 302 of the Penal Code, which carries a mandatory death sentence upon conviction.

Based on the charge sheet, Teoh is accused of murdering Irwan Herman Kamarudin, 41, along the Jalan Kuantan Bypass near Petronas Bukit Rangin here at about 9.20pm on May 25.

Deputy public prosecutor Nasrul Hadi Abdul Ghani did not offer bail, saying that it was a non-bailable offence.

Nasrul Hadi said the accused will be detained while waiting for proceedings to begin and requested a new mention date to allow the prosecution to receive case-related documents.

"The prosecution will wait for the post-mortem, and the Puspakom (Computerised Vehicle Inspection Centre), Chemistry Department and forensic reports.

"The accused will be sent to the Penor Prison," he said.

Meanwhile, Teoh's lawyer, Tay Yi Kuan, sought permission to explain the charge to his client for a few minutes after today's proceedings.

Najwa later set July 8 for mention.

Irwan Herman was killed after his Toyota Yaris was hit by the driver of a Toyota C-HR, which was moving against the flow of traffic, along the stretch.

He was travelling to work in Gebeng, near here, and was killed on-the-spot due to chest injuries, while the suspect escaped with light bruises.

The suspect is believed to have consumed alcohol at a friend's house in Semambu before getting behind the wheel of his vehicle and driving against traffic flow before the crash. - NST, 1/6/2020

 

Kuantan fatal collision: Suspected drunk driver charged with killing Irwan Herman

Monday, 01 Jun 2020 02:01 PM MYT

Fish wholesaler Teoh Kian Peng, clad in a white t-shirt and black shorts, is charged in the Kuantan Magistrate’s Court for killing Irwan Herman Kamarudin, June 1, 2020. ― Bernama pic

KUANTAN, June 1 ― A fish wholesaler was charged in the Magistrate's Court here today for killing Irwan Herman Kamarudin, whose car was rammed by another car driven against the traffic flow in Jalan Pintasan Kuantan last week.

Clad in a white t-shirt and black shorts, Teoh Kian Peng, 42, understood the charge read out to him before Magistrate Najwa Hashim.

No plea was recorded from the accused since murder cases are under the jurisdiction of the High Court.

The accused who is from Tanah Putih here, was charged with committing the offence near a Petronas petrol station in Jalan Pintasan Kuantan here at 9.20 pm, on May 25 according to Section 302 of the Penal Code which carries a mandatory death penalty upon conviction.

Deputy public prosecutor Nasrul Hadi Abd Ghani did not offer bail for the charge which is a non-bailable offence and requested that the accused be remanded at the Penor Prison here, while awaiting trial.

“We also request for a mention date for the prosecuting team to obtain four reports namely the post-ortem, chemistry, forensics and a report from the Computerised Vehicle Inspection Centre (Puspakom),” he said.

The accused was represented by counsel Tay Yi Kuan.

The court has set July 8 for a re-mention of the case.

Irwan Herman, 41, a supervisor at Alam Flora Sdn Bhd, was killed after his Toyota Yaris collided with a Toyota C-HR four-wheel-drive vehicle driven by a man believed to be under the influence of alcohol.

Initial investigations found that the C-HR was travelling against the flow of traffic for about seven kilometres from the slip road heading to Jalan Pintasan Kuantan in Semambu before colliding into the victim’s car who was going to Gebeng here for his night shift. ― Bernama, Malay Mail, 1/6/2020