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. The Road Transport (Amendment) Bill 2020, was passed in the Dewan Rakyat on 26 Aug 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 defense 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.
Penal Code already have offences for causing death or injury
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.
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.
On 1 June 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.
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.
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.
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:-
- Remove the mandatory minimum sentences for all offences and restore sentencing discretion to our judges and courts;
- 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)