Aziz Satar Bin Mat Dali v Pendakwa Raya (AB-41S-8-08/2020)

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1 IN THE HIGH COURT OF MALAYA IN TAIPING CRIMINAL APPEAL NO: AB-41S-8-08/2020 MAGISTRATE’S COURT KUALA KANGSAR NO: AG-83-19-6/2019 AZIZ SATAR BIN MAT DALI v. PUBLIC PROSECUTOR GROUNDS OF JUDGMENT [1] This is an appeal to the Court of Appeal by the Public Prosecutor against the decision of this Court that was delivered on 12 May 2022, whereby the Court had dismissed the appeal against conviction of Aziz Satar Bin Mat Dali’s appeal from the Magistrate’s Court (hereinafter referred to as “the Appellant”) but substituted the conviction to a lesser charge and sentenced him accordingly. The Court had found the Appellant guilty of an offence under section 43(1) of the Road Transport Act 1987 [Act 333] (“the Act”) and convicted him. He was sentenced to the maximum fine of RM10,000.00 in default of which he would be imprisoned for a period of one (1) year and his driving licence was endorsed accordingly. BACKGROUND [2] The Appellant was charged for an offence punishable under section 41(1) of the Act which read as follows: “Bahawa kamu pada 08/06/2018 jam lebih kurang 1440 petang di KM5 Jalan Kuala Kangsar - Manong (hadapan Hardware Jerlun) di dalam daerah Kuala Kangsar di dalam Negeri Perak sebagai pemandu m/lori no PHC 449 telah memandu kenderaan tersebut atas jalan raya dengan cara yang setelah mengambil perhatian tentang segala hal keadaan adalah merbahaya kepada orang awam sehingga menyebabkan kematian ke atas penama Muhammad Zulkhairi bin Zulkifli no. K/P 961121-03-5625. Oleh yang demikian itu, kamu telah melakukan kesalahan di bawah Seksyen 41(1) Akta Pengangkutan Jalan 1987 dan boleh dihukum di bawah peruntukan yang sama." [3] The Appellant at the Magistrate’s Court claimed trial to the charge. The trial commenced on 19.11.2019. The prosecution called 6 witnesses to prove the charge and at the end of the prosecution case, defence was called after a prima facie case was made out against him. The Appellant was the sole witness for his case. At the end of the defence case, submissions were made and on 27.7.2020, the learned Magistrate found the Appellant guilty where he was convicted under section 41(1) and sentenced to 3 years imprisonment as well as a fine of RM5,000.00, and in default, 6 months’ imprisonment. His driving licence was also suspended for a period of 3 years. The Appellant appealed against the conviction and sentence to the High Court. The appeal was heard on 9.2.2022 and 14.3.2022. FACTS OF THE CASE [4] On 8.6.2018, Muhammad Zulkhairi Bin Zulkifli (“the deceased”) was travelling on Jalan Kuala Kangsar – Manong from home to his workplace at DIY Kuala Kangsar on a motorcycle bearing registration number AKC 7219. Around 2.40pm upon reaching Hardware Jerlun at KM 5, a motor lorry (registration number PHC 449) from the opposite direction suddenly turned right into the hardware shop area allegedly without giving any signal indicating its intention to do so. The deceased could not avoid the encroaching vehicle in time and hit the lorry on its front left side. The motorcycle slid under the lorry while the deceased fell backwards. The collision was witnessed by the deceased’s friend, Muhammad Alif Haikal Bin Salim (PW5) who was riding another motorcycle about 10-15 meters behind. Pursuant to the collision, the deceased died on the spot. [5] Section 41(1) of the Act provides: “(1) Any person who, by driving of a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances or (including the nature, condition and size of the road, and the amount of traffic which is or might be expected to be on the road) is dangerous to the public, 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 two years and not more than ten years and to a fine of not less than five thousand ringgit and not more than twenty thousand ringgit." THE APPEAL [6] During the hearing of the appeal on, Counsel for the Appellant submitted that there were numerous errors in the Magistrate’s decision when she did not take into consideration many facts which were in favour of the Appellant and he had raised a reasonable doubt against the prosecution case. It was the Appellant’s contention that the Magistrate clearly fell into error when she placed a higher burden on the Appellant to answer the charge when he survived the fatal accident. Moreover, the learned Magistrate had placed much importance on the uncorroborated evidence of PW5 whom the Appellant claimed was not a credible witness. The Appellant’s point of contention with regard to the evidence of SP5 was that he was a witness who appeared out of nowhere and may have reasons only best known to himself for testifying against the Appellant. [7] Despite many gaps in the prosecution case such as PW5’s evidence not recorded on the day of the accident, CCTV footage not taken by the Investigating Officer (“the IO”), no statement taken from the workers of the hardware shop who may have witnessed the accident and no toxicology test done on the deceased’s blood sample (to prove that he was not under the influence of alcohol or drugs), and the line of sight of the Appellant as well as the topographical condition of the accident area, the learned Magistrate disregarded the police report lodged by the Appellant which was a contemporaneous document containing the truth of what transpired on that fateful day. Further, the Appellant had testified and gave evidence under oath. He had told the Court that he was making a delivery of some building materials to Hardware Jerlun that afternoon and it was a heavy load which the lorry was carrying. With that load, the Appellant testified that he could not have turned fast and driven in a dangerous manner. Surely his testimony was more credible than that of PW5 whom was allegedly not a truthful witness. Counsel for the Appellant submitted further that at most, his client was negligent and should not have been found guilty under section 41(1) of the Act. Having said that, the learned Magistrate was wrong to have rejected the Appellant’s defence and did not make a finding on it but instead preferred the prosecution version, especially PW5’s evidence. [8] Another ground for the appeal was that the Magistrate failed to consider that the post-mortem was not done as the pathologist, PW2, stated she had only conducted external physical checks on the body of the deceased. The failure of the IO to send the deceased’s blood sample for testing had raised a reasonable doubt on the actual cause of death more so when the death certificate, burial permit as well as the PUSPAKOM report were not tendered by the prosecution. It was submitted that these documents would have assisted the court in arriving at the truth. The learned Counsel for the Appellant also attacked the accuracy of PW5’s evidence tested under cross-examination. The Court will deal with this issue later in the Grounds of Judgment. [9] Alternatively, the Court was urged to exercise its discretion and substitute the conviction to that under section 43(1) of the Act instead as the evidence led by the prosecution could not support a conviction under the more serious charge of section 41(1) due to the numerous gaps in the prosecution case which had been detailed in the Appellant’s 18 grounds of appeal in the Petition of Appeal that can be found in pages 7-10 of the Record of Appeal (Volume I). According to the Appellant, he had taken all reasonable care when he made that turn into the hardware shop area to make a delivery there and he had indicated that he was going to turn right by signalling right. Despite that, he did not see the motorcycle driven by the deceased suddenly coming into his path; that was basically the Appellant’s defence. Being a very experienced lorry driver who was familiar with the area, he had no intention at all to cause the accident and the death of the deceased. Learned Counsel submitted the case of Mohamad Radhi B Yaakob v Public Prosecutor [1991] 3 MLJ 169 where it was held: "To earn an acquittal, the court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused is sufficient. It is not however wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal. In appropriate cases, it is also not wrong for the court to conclude that the defence story is false or unconvincing, but in that instance, the court must not convict until it asks a further question, even if that court does not accept or believe the defence version, does it nevertheless raise reasonable doubt to his guilt? It is for this reason that in dealing with defence story or explanation, the majority of judges rightly prefer to adopt straightaway the legally established “reasonable doubt test” rather than to delve in the “believable and ‘convincing’ test before applying the reasonable doubt…". [10] The prosecution at the Magistrate Court submitted that the prosecution had established its case against the Appellant on the standard of proof beyond reasonable doubt under section 41(1) of the Act. The prosecution had established all the ingredients of the offence and the learned Magistrate was right in calling for his defence and later convicting him based on the evidence of the prosecution witnesses. It was submitted that the Appellant was driving a motor lorry and owed a greater duty of care to other road users. By driving in the manner which he did, ie. obstructing the deceased’s right of way, the Appellant had created a dangerous situation to other road user, namely the deceased. It was alleged that he had failed to exercise care when he turned into the hardware store area without stopping or indicating his intention to do so. Therefore, the deceased could not have avoided hitting the vehicle driven by the Appellant. [11] It was also the prosecution’s contention that failure to submit the PUSPAKOM report was not fatal to its case as there was evidence from PW5 that the motorcycle was in good condition when the deceased rode it prior to the accident. Further, the fact that no toxicology test was conducted on the deceased’s blood sample or that the death certificate not produced did not dent the prosecution’s case. There was evidence from PW6 on the reasons for not producing the documents during the trial. In this regard, PW6 testified that it was unnecessary as there was no evidence to indicate that the deceased was riding his motorcycle under the influence of drugs or alcohol. Moreover, according to PW6, her evidence about the safe distance being 100m for the lorry to make a turning into the hardware store area was based on common sense. PW6 had testified that the Appellant should have been more careful when taking that turn despite agreeing with the Appellant’s question that there was a possibility his line of sight was limited to 10-15m at that time due to the road condition. PW2 also testified that the deceased did not have any co-morbidity which could have caused his death but rather the injuries sustained were consistent with that of a motor vehicle accident. [12] On the issue of PW5’s testimony, it was submitted that he was present at the site of the accident and had witnessed it. He was interviewed by PW6 at the material time and it was not fatal to the prosecution case that PW5 only had his written statement taken down by PW6 about 2 weeks after the accident. THE INGREDIENTS OF THE CHARGE [13] The Court of Appeal in the case of Ng Beng Kok v Public Prosecutor [2017] 7 CLJ 157 decided that the elements of the offence under section 41(1) of the Act were as follows: “The above section, in our view, creates three distinct offences, namely:

Subsection

(1) In a case of dangerous driving, the prosecution must establish that:

Subparagraph

(ii) Ask yourself the question, “if now I call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is yes”, then a prima facie case has been made out and the defence should be called. If the answer is no, then a prima facie case has not been made out and the accused should be acquitted.

Subparagraph

(iii) After the defence is called, the accused elects to remain silent, then convict;

Subparagraph

(iv) After defence is called, the accused elects to give evidence, then go through the steps set out in Mat v Public Prosecutor [1963] MLJ 263.”. [43] This Court views that the learned Magistrate at the end of the prosecution case fell into error by not making a full evaluation of the prosecution case despite stating so in paragraph 24 of the Grounds of Judgment (Record of Appeal, Volume I). If this had been done and the evidence properly evaluated, the learned Magistrate would have called evidence on the lesser charge of section 43(1) instead. This Court finds that the Magistrate did not make a finding of fact that the slightly hilly terrain of the accident site had to a certain extent limited the Appellant’s view as he was going uphill whereas PW5 had a better line of sight as they (he and the deceased) were going slightly downhill. There was no dispute that the line of sight of the Appellant was roughly 10 – 20 meters ahead because of the slight bend and uphill terrain. To my mind, this fact supported the Appellant defence that had been raised earlier that he had determined there was no on-coming traffic after he stopped and signalled to turn right. The defence only needs to raise a reasonable doubt that he had given the signal to turn right but it was unlikely to be seen by on-coming traffic when the position of the lorry was already across the left lane of that road. The Court gives the benefit of doubt to the Appellant as looking at the lorry, it was quite a big-sized 5 tonnes vehicle (according to the Appellant at page 79 of the Notes of Evidence and which was not challenged) and the signal light position on the lorry’s outer cabin was located on its lower part almost at the side (refer to photograph P3B). The Appellant stopped it immediately when he heard the sound of the collision. The position of both vehicles was exactly as they were upon impact and there was no evidence that they had been moved at that point in time. [44] Now, the Court will go on to consider the Appellant’s defence’s case. The Appellant testified that he held a Class E licence and had been driving big lorries for 20 years. He had been transporting goods to Ng Chin Hong Hardware in Jerlun for the past 4 years prior to the accident. He would make deliveries there approximately 3-4 times in a month. He was familiar with that road and always made deliveries at the hardware store. On that day, the Appellant had made deliveries using the motor lorry with registration No. PHC 449 in Taiping and Lenggong and his next stop was Kuala Kangsar, i.e the hardware store in Jalan Kuala Kangsar – Manong. Before arriving in front of the place, he signalled right and stopped the lorry. He said the road in front was empty. As he turned right into the slip road, he heard a bang near the left side of the lorry and he went down to check. He saw a motorcycle 125z beside the front left door and it had slid under his lorry. He saw a person lying in front and then people from the hardware store and passers-by arrived. He said he was there until 6 pm but it is noted that his police report was lodged at 5.09 pm. He was asked to drive his lorry to the police station and it was left there. The unloaded goods were offloaded and transported by another lorry to the store. [45] The Appellant testified that his view was about 10-15 meters ahead when he was in the cabin of the lorry at the accident site due to the slightly hilly terrain and the lorry was going uphill. As he was transporting heavy load, he said the lorry was moving slowly while turning right. He said if he had seen the motorcycle, he would have been able to stop the lorry and avoid an accident if he had not turned. Since he had already turned right, his lorry was already across the lane and obstructing traffic. He could not have accelerated as the lorry was heavy and it could overturn if he were to suddenly turn fast. The Appellant then referred to the Delivery Order dated 8.6.2018. The prosecution objected to the document being marked as the maker, which was from Astino Colour Steel Sdn Bhd (the Appellant’s employer) was not called to tender it. The document was then marked as ID9 (Record of Appeal Volume III at page 9). It listed some items there for delivery to Ng Chin Hong Hardware. Nevertheless, as it was not marked as evidence, the Court could not determine the truth of the contents of that Delivery Order. The Appellant agreed that he did not at any time surrender the document to PW6. He stated that the lorry was in good working condition when he drove it prior to the accident. He had never been charged in court for any offence. [46] In his cross-examination, it was put to the Appellant that he was not careful enough when he made the right turn into the hardware store area because he did not give a signal that he was going to make a right turn and that he did not stop first. Or that he had ensured there were no oncoming traffic. It was also suggested to the Appellant that if there were indeed goods in the back of the lorry, they could be seen in the photographs, and the Appellant disagreed with the statement. He disagreed that the damages to the motorcycle was minimal because the vehicle slid under the lorry and the damages were extensive (refer to photographs P3E and P3F). He disagreed that he could turn into the slip road in 1-2 seconds as the lorry was not loaded. He denied that he did not stop at all or that he did not indicate he was turning by signalling right with the indicator or that he made a sudden move to turn right. The Appellant denied that he did not stop when he was turning right because he thought he could pass through before the motorcycle. He disagreed that on that day, from a distance of 10-15 meters he could see the motorcycle coming front the opposite direction before proceeding to turn right anyway. [47] During re-examination, the Appellant told the court that he did not give ID9 to PW6 because she never asked for the document. He clarified that on that day, he did not see the deceased’s motorcycle coming from the opposite direction. He had waited in front of the slip road and only turned right when he had determined that the road was clear of traffic. In regard to the lorry’s heavy load which he claimed he was transporting on that day, the Appellant explained that the goods were flat and heavy and therefore they could not be seen in the photographs as the side of the lorry were quite high. On the document ID9, the Appellant stated that it was issued by his company and he would only know its content when he sees the document, who was the owner of the goods and destination. The defence then closed its case. Counsel informed the Magistrate that it was difficult to call the company’s representative to court and they would close their case if the Appellant was unable to arrange for the Appellant’s witness to come. He told the court that there was an eyewitness at the hardware store but as the person was just a s customer, and they did not have the person’s details, it was difficult too to call the person to testify in court. [48] Evaluating the evidence given by the Appellant, despite the cross-examination by the prosecuting officer, this Court finds that the Appellant is a truthful witness. There was a discrepancy that he was there until 6pm but this was not a material contradiction. At 5.09 pm he was already at the police station to lodge a police report, about 2 and a half hours after the accident and in D8 he had given his version of events. Whereas PW5 only went to give his written statement to PW6 some 2 weeks the accident and it was not sufficiently explained the delay in taking down his witness statement. Although the Appellant was not able to produce the maker of the document ID9, the Court assessed his testimony based on the overall evidence of the prosecution and defence cases rather than on ID9. The Court found that the Appellant’s defence that his lorry was making a stop at the hardware store was not challenged by the prosecution. In fact, PW6 admitted that she had interviewed a worker there who was waiting for the Appellant. He was turning right for a valid reason, although he could not prove the contents of the Delivery Order, and he had as much right to use the road as any other road user. Nevertheless, from PW5’s testimony which stated that the accident occurred very fast, within 3 seconds, lent some credence to the Appellant’s evidence that he could not turn the lorry fast as the lorry was carrying a heavy load. After about 3 seconds, the lorry was only across the left lane of that road and had not completely crossed into the slip road of the hardware store. Earlier, PW5 told the court that the lorry had slowed down before it made that turn. The Court viewed that from where he was situated, PW5 had seen the lorry arriving at the junction into the slip road even before it slowed down. [49] Considering the line of questioning of the defence, the Court found that he had raised a reasonable doubt in that the Appellant had a limited vision of about 10 - 20 meters ahead because of the slight bend and uphill terrain. The Appellant stated he had determined there was no on-coming traffic after he stopped and signalled to turn right. The defence only needed to raise a reasonable doubt that the signal to turn right was unlikely to be seen by on-coming traffic when the position of the lorry was already across the left lane of that road (refer to photograph P3A). Nevertheless, the Appellant admitted under cross-examination, if he had waited longer at 10-15 meters he could have been more careful as compared to a further distance away. And if he had signalled and stopped before making the turn, he would have more time to see the motorcycle coming from the opposite direction (page 82 of the Notes of Evidence). [50] Referring to Mohd Radhi Yaakob’s Case (supra) in which the Supreme Court stated: “In this connection, counsel for the appellant had referred to us the case of PP v Saimin & Ors [1971] 2 MLJ 16 where Sharma J held that the falsity of the defence does not relieve the prosecution from proving the prosecution's case beyond reasonable doubt. We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v PP [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. To satisfy this test it is not so much the words used by the judge, but rather the actual application of the test to the facts of the case that matters. In this case, we found that the learned trial judge offered practically no reason why the defence, notwithstanding its falsity and unconvincing nature, had failed to cast reasonable doubt in the prosecution case, other than to state by way of lip service the duty placed by the law on the defence to earn an acquittal. It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt. To earn an acquittal at the close of the case for the prosecution under s 173(f) or s 180 of the Criminal Procedure Code, the court must be satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction (Munusamy v PP [1987] 1 MLJ 492). If defence is called, the duty of the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt.”. [51] In the present case, the learned Magistrate did not state in the Grounds of Judgment why the defence case had failed to raise a reasonable doubt on the prosecution case (refer to paragraph 31 of the Grounds of Judgment). The learned Magistrate agreed with the prosecution’s submission that the deceased was on his original path and it was the Appellant who should have been more careful. The burden should not be placed on the deceased, it was contended. She made a finding that the Appellant was careless by driving in a dangerous manner when he failed to see the presence of the motorcycle before he departed into the deceased’s lane. Applying the principle in Mat v Public Prosecutor above, this Court finds that the Magistrate had committed an error of law when making the statement because it was obvious that she had placed a greater burden on the defence to prove his innocence when in law, he needed only to raise a reasonable doubt on the prosecution case. This Court finds that the defence’s duty to cast a reasonable doubt in the prosecution case under section 41(1) of the Act has been made out successfully as discussed above. He is not required to prove his innocence beyond reasonable doubt. Moreover, this Court is of the view that the Appellant’s testimony is not materially contradicted by his own evidence or that of the prosecution’s. In fact, as stated earlier, some of the prosecution evidence also corroborated the Appellant’s testimony in court. Therefore, this is a suitable case for appellate interference because the learned Magistrate has failed to properly appreciate the defence case in light of the gaps in the prosecution case. [52] Having said that, the Court nevertheless found that the Appellant was careless (not reckless) when he made the turn into the slip road. He admitted that had been transporting goods to Ng Chin Hong Hardware in Jerlun for the past 4 years prior to the accident. He would make deliveries there approximately 3-4 times in a month. He was familiar with that road and always made deliveries at the hardware store. Based on PW5’s evidence, the Appellant had slowed down a bit and then turned right. The prosecution suggested to the Appellant that he wanted to pass through to the slip road before the motorcycle came as he thought he would be able to make it. In my opinion, based on the Appellant’s admission, being familiar with that road, the Appellant thought he would be able to turn right by just slowing down a bit (rather than fully come to a stop) and then turning into the slip road. It may well have been that he did not see the motorcycle coming because otherwise he would not have turned right if he had seen it coming from the opposite direction. The Court found that the Appellant was careless in his action rather than reckless. The Court had earlier made a finding that the deceased was also careless because having the advantage of the view coming down the slope, he should have been able to see a big lorry in front of him at the material time and slowed down by braking or take steps to avoid it. [53] Counsel for the Appellant urged the Court to allow the appeal against conviction or alternatively find him guilty under a lesser offence as provided by section 41(4) of the Act i.e. under section 42 or 43. He should not be made responsible for a higher degree of culpability when the deceased was also to blame for the accident. Counsel referred to the case of Gunasegaran Singaravelu v Public Prosecutor [2009] 7 CLJ 613, which the Court noted that there were many errors made by the Magistrate in that case and the High Court had overturned the Magistrate’s decision as it was unsafe due to the Magistrate’s failure to properly consider all the evidence available before it. It is stated in that case that the essence of the charge against the Appellant is dangerous or reckless driving. It has repeatedly been held that driving is not necessarily reckless or dangerous because it leads to fatal consequences but guilt could only ensue if it is proven that the driving was reckless or dangerous. The charge is not one of causing death, but of driving dangerously or recklessly. See for example, Tan Thang Sang v Public Prosecutor and Choong Sze Foong v Public Prosecutor [1975] 1 MLJ 204. [54] The case of Gunasegaran Singaravelu (supra) referred to Public Prosecutor v. Zulkifli b. Omar [1998] 1 CLJ 1079; [1998] MLJ 65, at pp 71-72, Vincent Ng J (as he then was) said as follows: “The dictum of Lawton LJ in the English Court of Appeal decision in the celebrated case of R v. Guilfoyle [1973] 2 All ER 844 - which concerned a lorry driver who was convicted of causing death by dangerous driving is illuminating. He had this to say (at p 845): Cases of this kind (causing death by dangerous of reckless driving) fall into two broad categories; first, those in which the accident has arisen through momentary inattention or misjudgment (hereafter called 'the first category'), and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety or other road users or of this passengers, with a degree of recklessness (hereafter called 'second category'). This distinctive categorization of dangerous driving was discussed with ready approval by Ong CJ (Malaya) in the cases of Tan Thang Sang v P.P; Choong Sze Foong v P.P [1975] 1 MLJ 204. See also R v Boswell and other appeals [1984] 3 All ER 353 (CA). And more recently, in 1993 this categorization was also adopted in my decision on Goh Kheng Seong v P.P [1993] 1 MLJ 103. It is precisely in recognition of this distinction between the two categories of offences under s 41(1) for causing death by reckless or dangerous driving, that the Legislature has, in all its wisdom, made express provision under s 41(4) that: The court may upon the trial of a person for an offence under this section s. 41(1) convict such person of an offence under section 42 (dangerous and reckless driving but without causing death) or section 43 (driving without due care and attention or without reasonable consideration.) … In an offence under s. 41(1), excessive speed is not the sole decider of reckless driving but there must also be a finding on the manner and other aspects of the defendant's driving which constituted recklessness, by having regard to the prevailing circumstances at the material time of accident, including the nature, condition, and size of the road, and the amount of traffic which is or might be expected on the road. The risk created by the manner in which the vehicle is driven must be both obvious and serious, and the court has to be satisfied that the essential or core ingredients of recklessness have been proved beyond reasonable doubt. (see also Ramiah v. Public Prosecutor [1972] 2 MLJ 258). The learned Magistrate has obviously failed to direct his mind to the law in this case and had been unduly influenced by the fact that there had been a death. This is a non-direction which amounts to a misdirection.”. [55] In the case of Wan Khairil Wan Isa, the High Court having called for the defence of the respondent, stated the following: “[62] It must be emphasized that that the foregoing conclusion only has the effect of calling upon the respondent to put forward his defence to the charge preferred against him. It does not have the effect of deciding that he is in fact guilty of an offence under the said section. Neither do these grounds of judgment constitute any form of direction to convict the respondent on any charge. It is open to the court below to come to a conclusion at the end of the defence case that indeed the respondent has a full and complete defence to the charge under s. 41(1) of the Act or to convict the respondent under the lesser charges provided for in s. 42 and 43 of the Act. Accordingly it is ordered that this appeal be allowed and the matter remitted to the Magistrate's court for defence to be called.”. [56] There the High Court found that the reckless manner of the respondent’s driving had established a prima facie case for his defence to be called. Nevertheless, as the law provides for it, the courts can conclude that the accused has a full and complete defence under section 41(1) or a discretion to convict under a lesser charge of section 42 or 43 of the Act where appropriate. This Court finds that the Appellant has a complete defence to a charge under section 41(1) of the Act despite the death of the deceased. It must be remembered that the charge is not one of causing death, but of driving dangerously or recklessly. The learned Magistrate had imposed an extremely high burden of proof on the Appellant and the judgment was clouded due to the deceased’s death. Under section 41(1), the duty lies on the prosecution from the beginning to the end to prove the charge against the accused beyond reasonable doubt. This exercise requires the trial judge to scrutinise the totality of the evidence in order to determine whether the ingredients of the charge have been made out. Hence, a careful perusal and evaluation of the evidence of each witness and testing them against all the other evidence as a whole was imperative. CONCLUSION [57] The punishment for an offence under section 43(1) prior to the amendment in 2020 is a fine of not less than four thousand ringgit and not more than ten thousand ringgit and shall also be liable to imprisonment for a term not exceeding twelve months. In the upshot, the conviction of the Appellant is substituted for a conviction under section 43(1) of the Act. Having heard the parties on the aggravating factors and mitigation, the accused is sentenced to a fine of RM10,000, in default of payment, 1 year imprisonment. Particulars of offence and conviction to be recorded into the driving licence of the Appellant by the Road Transport Department accordingly. [58] The case of Goh Kheng Seong v Public Prosecutor [1993] 1 MLJ 103 discussed whether the words “shall on conviction be liable to a term of imprisonment … or to a fine … or to both” in s 34A(1) of the Road Traffic Ordinance 1958 do make a term of imprisonment mandatory. The learned High Court Judge answered this question in the negative as the wording in this section clearly provides for the option of a fine. (See PP v Hew Yew [1972] 1 MLJ 164). It was stated further that “By way of an observation, it is worthy to note that the words 'shall be liable … to imprisonment', with or without the option of a fine does not overrule the exercise of the sentencer's discretionary powers under s 294 of the Criminal Procedure Code (FMS Cap 6) ('the CPC'), upon sensible interpretation of the expression 'be liable'…”. In the present case, the sentence of the maximum fine imposed upon the Appellant is more suitable as he had gone through a full trial. [59] In my view, an offender who has been convicted because of momentary inattention or misjudgment and who has a good driving record should be fined. There is no requirement under the law in 2018 for the Appellant to be disqualified from holding a driving licence for a minimum statutory period under section 43(1), only for it to be endorsed. Nevertheless, the Appellant was warned by this Court and the maximum fine of RM10,000 would serve as a deterrence to him and other road users to be more careful on the road when driving a motor vehicle. Even if this Court is wrong to substitute the charge for one under section 43(1), it is my humble view that given his good driving record and no previous conviction adduced by the prosecution, the Appellant’s age factor, being the sole bread winner of his family and has shown remorse, and considering also that it was not pre-meditated offence, a long custodial sentence would not be in the best interest of justice for all. [60] The appeal is allowed in part. Dated 12 July 2022 Signed NOOR RUWENA BINTI MD NURDIN Judicial Commissioner High Court of Malaya, Taiping For the Appellant: Mohd Sariman Bin Mat Serat (Messrs. Sariman & Goik) For the Respondent: DPP Sariza Binti Ismail (Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping)