Media Statement – 1/9/2020
Abolish Minimum Mandatory Prison Sentence
for Drunk Driving
Ensure one offence in Malaysian laws, not same offences under different
laws carrying different penalties
MADPET(Malaysians Against Death Penalty and Torture) calls for the removal of mandatory minimum prison sentence in the Road Transport Act 1987(RTA), that imposes high sentences on drunk drivers that cause death or injury, and ask that sentencing discretion be left with the judges and courts. The mandatory minimum prison term being proposed by the Bill to amend the the RTA is 10 years if death is caused, and 7 years if injury is caused.
It will be a great injustice for someone that caused a minor injury to be imprisoned for the minimum 7 years.
Parliament should leave sentencing discretion to the judges, who after hearing a particular case will determine an appropriate and just sentence taking into consideration all factors.
Road Transport (Amendment) Bill 2020
The Road Transport (Amendment) Bill 2020, was passed in the Dewan Rakyat on 26/8/2020, and it will now be tabled at the Senate for approval, and thereafter be sent to the King for royal assent, before it becomes law.
Section 44(1) of the Road Transport Act will be amended to read; ‘…(1) Any person who, when driving a motor vehicle on a road or other public place—(a) is under the influence of intoxicating liquor or drug, to such an extent as to be incapable of having proper control of the motor vehicle; or(b) has so much alcohol in his body that the proportion of it in his breath, blood or urine exceeds the prescribed limit, and causes the death of any person shall be guilty of an offence and shall, on conviction, be punished with imprisonment for a term of not less than ten years and not more than fifteen years…’ For causing injury to any person ‘…with imprisonment for a term of not less than seven years and not more than ten years…’
This law will covers persons who are drunk with alcohol, and those who are on drugs.
There are very serious crimes like corruption and abuse of power that affect all Malaysians badly, and comparatively it may be unjust to sentence a first time drunk driving offender for causing injury to another. For corruption, a former Prime Minister was just sentenced 6 years, for each of the 4 conviction, but if the RTA amendment is passed, a drunk driver that causes injury not death, at the very least will be sentenced to 7 years. Surely corruption and abuse of power by Ministers and public servants requires a higher deterrent sentence.
Alcoholism and drug abuse is a disease. Intoxication is condition of having physical or mental control markedly diminished by the effects of alcohol or drugs, and is also now a recognized defence in criminal law. A period of rehabilitation may be a better remedy to alcohol and/or drug addicts, even when in a state of intoxication they kills or injures another.
No Minimum Mandatory Sentence – Leave Sentencing Discretion to Judges
Whilst Parliament may set the maximum sentence for particular crimes, it should never oust judicial power when it comes to sentencing by the imposition of a mandatory minimum prison sentence.
Judges and courts should be trusted to decide on the sentences, after considering relevant facts of each case.
Penal Code already have offences for causing death or Injury
Note that the Penal Code today provides for the offence of culpable homicide not amounting to murder, the sentence of ‘…with imprisonment for a term which may extend to thirty years…’ if there was intend to cause death, and ‘…imprisonment for a term which may extend to ten years.. if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death…’. The other offence of causing death by negligence stipulates that anyone who ‘causes the death of any person, by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend to two years’
For voluntarily causing hurt, the punishment is ‘…imprisonment for a term which may extend to one year or with fine which may extend to two thousand ringgit or with both…’ Those who ‘…voluntarily causes grievous hurt, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine…’
Note that, in all these Penal Code offences of causing death and/or injury, Parliament rightfully does not set any mandatory minimum prison sentence but just the maximum penalty, leaving judges the discretion to impose a reasonable and just sentence.
The Penal Code already does cover offences of causing injury or death committed by persons under the influence of alcohol or drugs, and as such there is really no need to create or maintain such offences under the Road Transport Act.
Drunk Driver that killed – One charged for Murder, another for Road Traffic Offence?
On 1/6/2020, it was reported that an alleged drunk driver that caused another’s death was charged for murder, under section 302 of the Penal Code, that carries the mandatory death penalty(1/6/2020, New Straits Times).
Another report of a drunk driver that caused death was being investigated under section 44(1) of the Road Transport Act, and if he was charged and convicted would face a sentence of sentence of imprisonment of not less than 3 years and not more than 7 years.(The Rakyat Post/Malay Mail, 1/6/2020). There is no reasonable explanation as to why one case was considered murder, and another a lesser RTA offence. It will also be a violation of the Federal Constitution.
2 Acts with the Same Offence – Discrimination and no equality before the law?
Malaysia’s Federal Constitution in Article 8(1) states that ‘(1) All persons are equal before the law and entitled to the equal protection of the law.’
As such there should be only one offence in one law, and not the same offence under different laws, which also raises the question why was one charged for an offence carrying the mandatory death penalty, and another under another Act which provides a lesser sentence.
The possibility of discrimination, abuse and corruption arises when there exist different laws for the same offence. For killing or causing injury, the Penal Code already provides for this offence, there is no need for Road Transport Act to have the same offence.
If need be, for a special offence committed whilst drunk or intoxicated, then maybe such offences should be inserted in the Penal Code.
Therefore MADPET calls on the government to immediately amend the Road Transport (Amendment) Bill 2020 and the Road Transport Act 1987 to:-
1) Remove the mandatory minimum sentences for all offences and restore sentencing discretion to our judges and courts;
2) Consider removing the offences of causing death and/or injury in the Road Transport Act, given the fact that today any driver, under the influence of drugs or alcohol, who kills or injures another can already be charged under the Penal Code.
MADPET also urges the repeal of similar or same offences now found in different laws, to ensure compliance with our Federal Constitution, and this will dispel possibilities of discrimination and other abuses.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
Alleged drunk driver in Kuantan crash charged with murder [NSTTV]
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. - New Straits Times, 1/6/2020
Man Out Delivering Food Killed By Suspected Drunk Driver In KL
A food delivery rider died in the early hours of the morning after a suspected drunk driver crashed into his motorbike at the Sultan Iskandar Highway in Kuala Lumpur.
Malay Mail reports that the 1.30 am accident involved 44-year-old victim Mohamed Zaili Mohamed, a contract worker who was on his way home to Bukit Antarabangsa after delivering food sold by his wife.
The police have clarified that he was not a rider under FoodPanda despite images of the food delivery service bag seen at the accident site.
Kuala Lumpur Traffic Investigation and Enforcement Department chief ACP Zulkefly Yahya said that it is believed that his motorcycle was struck from behind by a dark blue Nissan Grand Livina.
The hit led to the victim crashing into the shoulder of the road and his motorcycle was dragged for around 2km. Mohamed Zaili died on the spot with severe head injuries, while the 21-year-old driver was unharmed.
According to ACP Zulkefly, the driver stopped under the Titiwangsa LRT station pedestrian bridge after being detained by the public. He was then arrested and brought to the Jalan Tun HS Lee police station where he was screened. Alcohol content was detected in the man’s breath.
The case is currently being investigated under Section 44(1) of the Road Transport Act 1987 which covers driving under the influence of liquor or drugs.
(Credit: Search Results Web result with site links Attorney General’s Chamber Official Portal)
Food delivery rider dies in KL highway accident involving suspected drink-driver aged 21
KUALA LUMPUR, June 1 — A 44-year-old man died in the wee hours this morning after a 21-year-old driver suspected of drink-driving was believed to have crashed into his motorcycle at a highway in Kuala Lumpur, the police has said.
Kuala Lumpur Traffic Investigation and Enforcement Department chief ACP Zulkefly Yahya said that the fatal road accident occurred at around 1.30am this morning at the Sultan Iskandar Highway heading to the Kuala Lumpur city centre.
The accident involved 44-year-old victim Mohamed Zaili Mohamed who was a contract worker residing in Bukit Antarabangsa, Selangor and who was on a red motorcycle of the Honda Ex5 model, while the driver is a 21-year-old youth who was driving a dark blue Nissan Grand Livina.
Zulkefly said Mohamed's motorcycle was believed to have been struck from behind by the Nissan Grand Livina while he was on the way home to his residence in Bukit Antarabangsa after delivering food sold by his wife.
“As a result of that hit, the victim crashed to the left shoulder of the road and his motorcycle was dragged about 2km from the location that was hit by the Nissan Grand Livina. The driver stopped the vehicle under the Titiwangsa LRT station's pedestrian bridge after being detained by the public,” he said.
According to Zulkefly, the motorcyclist sustained severe injuries to the head and died on the spot, while the driver did not sustain any injuries. The back part of the motorcycle was found damaged, while the Nissan Grand Livina's front parts were found damaged.
While photos of the incident showed a FoodPanda food delivery pack, Zulkefly has confirmed that the motorcyclist was not a rider under the food delivery service, clarifying that the motorcyclist was delivering food prepared by his wife.
The driver was arrested and brought to the Jalan Tun HS Lee police station, with screening tests showing that there was alcohol content detected in the man's breath, Zulkefly said.
The police are investigating the case under Section 44(1) of the Road Transport Act 1987.
Section 44(1) covers the offence of driving while under the influence of intoxicating liquor or drugs, with the crime being driving while under the influence to the extent of being incapable of having proper control of the vehicle or having alcohol levels in the body beyond the prescribed limits and causing the death or injury of any person.
The offence is punishable by a jail term of between three to 10 years, and a fine of between RM8,000 to RM20,000, with conviction also resulting in the offender being disqualified from having a driving licence for not less than five years from conviction date, while repeat offenders would be barred for 10 years from conviction date from having a driving licence.
In a separate statement, Kuala Lumpur police chief CP Datuk Seri Mazlan Lazim confirmed the facts of the case where the motorcycle was dragged about 2.2km from the incident scene, adding that the Evidential Breath Analyser screening test on the suspect showed that the alcohol content in his breath had exceeded limits.
Mazlan said the driver will be remanded for further investigation.
“The Kuala Lumpur police seriously views the issue of drunk drivers that put the lives of other road users in danger. To curb this issue, the police will carry out more operations.
“Besides that, the public is also advised to be more responsible and
not to be selfish, by avoiding from driving the vehicles themselves if
they are intoxicated,” Mazlan said, adding that those with queries or
information to share could contact the Jalan Tun HS Lee police station
at 03-20719999 or the Kuala Lumpur police hotline at 03-21159999 or any
nearest police station. - Malay Mail, 1/6/2020
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