Abolish mandatory minimum prison sentence for drunk driving

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Malaysians Against Death Penalty and Torture (Madpet) calls for the removal of the mandatory minimum prison sentence in the Road Transport Act 1987 that imposes high sentences on drunk drivers that cause death or injury, and asks that sentencing discretion be left with the judges and courts.

The mandatory minimum prison term being proposed by the bill to amend the Road Transport Act is 10 years if death is caused, and seven years if injury is caused.

It would be a great injustice for someone that caused a minor injury to be imprisoned for the minimum seven 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 bill was passed in the Dewan Rakyat on 26 August 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…”

And 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 cover persons who are drunk 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.

READ MORE:  Courts should be given discretion in sentencing - Bar

For corruption, a former prime minister was sentenced to just six years for each of the four convictions, but if the Road Transport (Amendment) Bill is passed, a drunk driver that causes injury – not death – at the very least will be sentenced to seven years.

Surely, corruption and abuse of power by ministers and public servants require a higher deterrent sentence.

Alcoholism and drug abuse are diseases. Intoxication is a condition of having physical or mental control markedly diminished by the effects of alcohol or drugs and is now a recognised defence in criminal law.

A period of rehabilitation may be a better remedy to alcohol or drug addicts, even when in a state of intoxication they kill or injure 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 the relevant facts of each case.

Penal Code already has 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 “imprisonment for a term which may extend to thirty years” if there was intent 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”.

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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 cause grievous hurt “shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine”.

In all these Penal Code offences of causing death 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 covers the offences of causing injury or death committed by persons under the influence of alcohol or drugs. 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 June 2020, an allegedly drunk driver who reportedly caused another’s death was charged with murder, under Section 302 of the Penal Code, which carries the mandatory death penalty(New Straits Times, 1 June 2020).

Another report of a drunk driver who 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 imprisonment of not less than three years and not more than seven years (The Rakyat Post/Malay Mail, 1 June 2020).

There is no reasonable explanation as to why one case was considered murder and another a lesser Road Transport Act offence. It will also be a violation of the Federal Constitution.

READ MORE:  Courts should be given discretion in sentencing - Bar

Two Acts with the same offence – Discrimination and no equality before the law?

Malaysia’s Federal Constitution in Article 8(1) states: “(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 exists different laws for the same offence. For killing or causing injury, the Penal Code already provides for this offence; there is no need for the Road Transport Act to have the same offence.

If there is a need for a special offence committed whilst drunk or intoxicated, then maybe such offences should be inserted into 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 or injury in the Road Transport Act, given 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. This will dispel the possibility of discrimination and other abuses.

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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J. D. Lovrenciear
19 Sep 2020 4.52pm

As the political dark clouds descend lower and faster over the country, Madpet deserves all our support to return Malaysia to its sacred freedom from political deceit.