The case for and against mur­der

Ne­ti­zens and ex­perts alike weigh in on Pe­nang teen’s charge

New Straits Times - - Viewpoint -

IN the past few days, one par­tic­u­lar in­ci­dent has caused a stir amongst many Malaysians, driv­ing up their pas­sions and emo­tions. A lively de­bate, if you can call it that, has erupted be­tween pro­po­nents of one side and sup­port­ers of the other. The ques­tion be­ing de­bated is whether a 19-yearold part-time model com­mit­ted mur­der when she killed a fel­low mo­torist in an ac­ci­dent while she was speed­ing down the wrong way on the North-South Ex­press­way in Pe­nang.

Ne­ti­zens have weighed in with their opin­ions, ei­ther for or against the ar­gu­ment that she com­mit­ted mur­der. One prom­i­nent per­son was law lec­turer Shamsher Singh Thind, who said this in­ci­dent was not an or­di­nary case of caus­ing death due to reck­less or dan­ger­ous driv­ing.

“This is mur­der. I call upon the po­lice to in­ves­ti­gate the death of Mo­hamad Fandi Rosli, 26, un­der Sec­tion 302 of the Pe­nal Code, and not un­der Sec­tion 41(1) of the Road Trans­port Act 1987,” he had said.

Shamsher based this upon his read­ing of Sec­tion 300 of the Pe­nal Code, which spells out the var­i­ous def­i­ni­tions of mur­der. Un­der Sec­tion 300(d) of the code, a per­son is deemed as hav­ing com­mit­ted mur­der if he or she com­mits an act that causes a death, know­ing that the act is “so im­mi­nently dan­ger­ous that it must in all prob­a­bil­ity cause death, or such bod­ily in­jury as is likely to cause death”, and com­mits this act “with­out any ex­cuse for in­cur­ring the risk of caus­ing death, or such in­jury as afore­said”.

To il­lus­trate his point, Shamsher takes an ex­am­ple right out of the prover­bial text­book. It is listed in the Pe­nal Code it­self, and states that if some­one were to fire a loaded can­non into a crowd and it kills some­one else, then the per­son who fired the weapon is guilty of mur­der, re­gard­less of whether there was in­tent to kill any­one.

“In the case be­fore us, driv­ing in an op­po­site lane at 110kph is as dan­ger­ous as fir­ing a loaded can­non into a crowd,” he had said.

It makes sense, of course. You can’t drive against the flow of traf­fic at break­neck speed and not ex­pect there to be an ac­ci­dent. But the key word here is “know­ing”. Was the woman aware of the con­se­quences, or even aware of what she was do­ing?

To prove mur­der, a pros­e­cu­tor usu­ally has to prove in­tent. In the ex­cep­tion quoted by Shamsher, prov­ing in­tent is not re­quired. Now, in the case of this woman, she is widely re­ported to have been un­der the in­flu­ence of ei­ther drugs or al­co­hol, or both. Again, if she was un­der the in­flu­ence then, was she aware of what she was do­ing?

To be fair, Shamsher’s call was only for po­lice to ini­ti­ate in­ves­ti­ga­tions for mur­der. Any de­fence she has to prove she did not com­mit mur­der, he said, may be re­lied on dur­ing the trial.

“Now, the woman driver has any de­fence which is recog­nised by the law (like she was drugged in­vol­un­tar­ily, or she was es­cap­ing from some other dan­ger) is ir­rel­e­vant at this in­ves­tiga­tive stage. She may rely on it dur­ing the trial later, but for now, the in­ves­ti­ga­tion should be con­ducted as if a mur­der has been com­mit­ted,” he had said.

He has some good points, but ul­ti­mately, the call as to which sec­tion of what law any­one is charged un­der, if at all, falls on the at­tor­ney-gen­eral or deputy pub­lic pros­e­cu­tor. Po­lice in­ves­ti­ga­tions, right now, may best be served if they clas­sify the case as ve­hic­u­lar man­slaugh­ter.

Should the in­ves­ti­ga­tion lead to a dif­fer­ent con­clu­sion, it can al­ways be re­clas­si­fied as mur­der. In­ves­ti­ga­tors have that lux­ury. Even then, as men­tioned be­fore, charg­ing some­one with any­thing is the call of the A-G or the DPP, and they can kick back in­ves­ti­ga­tion pa­pers (IPs) to po­lice if they are not happy with the out­come.

What mat­ters now is that we don’t let emo­tions get in our way. Our opin­ions on the mat­ter are al­ways go­ing to be there, of course. But our opin­ions must re­main just that: opin­ions.

What we need to do now is let po­lice in­ves­ti­ga­tors do their job. Let them in­ves­ti­gate im­par­tially and let them come up with their own find­ings. Then, when the IP is done and dusted, and passed over to the DPP, let the pow­ers that be de­cide what sec­tion of which law needs to come into play.

Af­ter all, the aim of ev­ery pros­e­cu­tor has to be to win cases, and it is best left to them to de­cide which law needs to be looked at so that jus­tice is prop­erly served, ei­ther way.

The writer has more than two decades of ex­pe­ri­ence, much of which has been spent writ­ing about crime and the mil­i­tary. A die-hard Red Devil, he can usu­ally be found wear­ing a Manch­ester United jersey when out­side of work

Ng Pei Ven at the Bukit Mertajam mag­is­trate’s court on Fri­day. She is now at the cen­tre of pub­lic de­bate fol­low­ing the court’s de­ci­sion not to charge her with mur­der.

Newspapers in English

Newspapers from Malaysia

© PressReader. All rights reserved.