Cantona Lim Xiang Kim v Public Prosecutor (Q-09-415-10/2017)

(i) that the High Court and the Magistrates Court erred in failing to find that the charge was bad in law when the defence of the accused that he lost control of his car which caused the accident was erroneously and illegally imported into the charge; and 6

(a) causing death by driving a motor vehicle on the road recklessly;

(b) causing death by driving a motor vehicle on the road at a speed which is dangerous to the public etc.; and

(c) causing death by driving a motor vehicle on the road in a manner which is dangerous to the public etc. [14] It was further submitted that the accused appeared to be charged under the third limb of the section i.e. driving in a manner having regard to all circumstances which is dangerous to the public and causing death. The charge preferred against the accused reads “…semasa bergerak lurus telah hilang kawalan lalu masuk kelaluan bertentangan dan melanggar…” instead of “…driving… in a manner having regard to all the circumstances (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) dangerous to the public…”. Learned counsel contended that the words “hilang kawalan” were completely strange to section 41(1) of the Act and constituted a complete defence to the accused. The charge was thus bad in law. [15] As regards the second issue that the intervening cause should be dealt with objectively and properly, which relates to the issue of mens rea 7 and actus reus, learned counsel submitted that it was an unchallenged fact that the accused had lost control of his car when another car overtook him from the left and had caused water to be splashed onto his windscreen which impaired his vision on the road. At that material time, he was driving straight along a familiar road at about 70kph. As such, this could not constitute an offence under the third limb of section 41(1) of the Act. By the intervening cause i.e. water splashing onto his windscreen, the accused could not and did not create any dangerous situation, nor was the accused at fault. [16] Learned counsel contended that the learned Judicial Commissioner failed to appreciate that to prove a dangerous driving under section 41(1), the prosecution must establish strictly that:

(a) a dangerous situation was created by the accused, which is an objective test; and

(b) when creating such a situation, the accused was at fault, which also requires an objective assessment. [17] Learned counsel further contended that the offence under section 41(1) of the Act has not been made out, particularly when the prosecution failed to establish the speed range of the accused’s car at the material time. It was however conceded that the facts support a lesser offence under section 43(1) of the Act. [18] In opposing the appeal, it was argued by the prosecution that the extra facts incorporated into the body of the charge though not an ingredient of the charge, was to give the accused sufficient notice for purposes of preparing his defence. The incorporation of the extra facts was a mere irregularity which did not occasion any failure of justice and 8 was curable under section 422 of the Criminal Procedure Code. There was no failure of justice as the accused was able to meet the charge by adducing evidence to mount his defence i.e. that water had splashed onto his windscreen due to a car overtaking him from the left lane which caused him to cross the road divider onto the opposite direction. He was also able to put forward the defence of automatism. Our Decision [19] As a matter of principle, an appellate court will not intervene with a decision of a trial court with whom the law entrusts the primary task of evaluating the evidence. The appellate court would only intervene if it is convinced that there was no judicial appreciation by the trier of fact of the evidence adduced at the trial and that the trial court was shown to be plainly wrong in arriving at its decision. (see UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated System Pte Ltd & Anor [2018] Supp MLJ 363; Hamit bin Matusin & Ors v Penguasa Tanah dan Survei & Anor and another appeal [2006] 3 MLJ 289; Public Prosecutor v Ahmad Firdaus bin Zulkifli [2017] 3 MLJ 492). [20] In Davendar Singh Sher Singh v PP [2012] 1 LNS 261, Azahar Mohammed, JCA (as he then was) had this to say on appellate intervention (at p 6): [9] … Nonetheless, it would be open to us to upset the findings made by a trial judge if such a finding is not supported by evidence or the decision is against the weight of the evidence or there is no proper judicial evaluation of the evidence or there is misdirection in law or the trial court has fundamentally misdirected itself. In this regard, judicial appreciation and evaluation of evidence is at the heart of the duty of the learned trial judge. It is the duty of the learned trial judge to undertake a positive evaluation of the evidence, which includes a careful analysis 9 of the credibility and reliability of the witnesses for the prosecution (see: Balachandran v. PP [2005] 1 CLJ 85). It is also his duty to consider the entire evidence presented before him, including the evidence which favours the defence. On what constitutes judicial appreciation of evidence, it is apt to bear in mind the following words of Gopal Sri Ram JCA (as he then was) in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness' evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.” [21] The accused had, in his defence, explained the reason why he lost control of his motorcar at the material time which eventually caused the death of the deceased. In essence, his defence was that the accident happened because he lost control of his car when another car overtook him from the left, caused the water on the road to splash on his windscreen and impaired his vision. The accused was thus able to respond to the charge against him. [22] As such, we find no merit on the first ground canvassed by the accused. We agreed with the submission of the prosecution that the incorporation of “…iaitu semasa bergerak lurus telah hilang kawalan lalu masuk kelaluan bertentangan…” in the charge against the accused for an 10 offence under section 41(1) of the Act has not occasioned a failure of justice to the accused. Neither has the accused been misled in his defence (see Public Prosecutor v Ong Kia Chan [2006] 7 MLJ 230; Public Prosecutor v Lee Hong Kee [1969] 2 MLJ 60. We therefore found no reason to interfere with the findings of the learned Judicial Commissioner that the charge had informed the accused with certainty and accuracy and that even if there was any error or omission, it was curable under section 422 of the Criminal Procedure Code. [23] In respect of the second issue, section 41(1) of the Act provides: “41. (1) Any person who, by the driving of a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (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 not less than five thousand ringgit and not more than twenty thousand ringgit.”. [emphasis added] [24] The accused was charged under the third limb of section 41(1) RTA i.e. for the offence of causing death by driving in a manner which is dangerous to the public. There are no dearth of authorities on what constitutes “dangerous driving” under section 41(1) of the Act. In Ramiah v PP [1972] 2 MLJ 258, a case under section 34A of Road Traffic Ordinance 1958 which is the antecedent of section 41(1) of the Act, Raja Azlan Shah J (as His Majesty then was) observed that: “It is not the law under section 34A of the Road Traffic Ordinance that merely because an accident had happened and a person had been killed, danger had in that 11 sense arisen and therefore it must follow, as the night, the day, that the appellant was driving in a manner dangerous to the public.” Adopting the principles laid down in the case of Regina v Gosney [1971] 3 All E.R. 220, his Lordship further said: “...In a case under section 34A, two things must be established. First, there must be a situation created by the accused which, viewed objectively, is dangerous. Dangerous driving is not defined in the Road Traffic Ordinance and it is up to the court to come to a decision on the evidence… … Secondly, the prosecution must prove that when creating such a situation the appellant must be at fault. "Fault involves a failure; a falling below the care and skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances”.” [25] Ong C.J. (Malaya) in the case of Tan Thang Sang v Public Prosecutor; Choong Sze Foong v Public Prosecutor [1975] 1 MLJ 204, while commenting on the case of Ramiah v PP (supra), said (at p 205): “….What really matters is the principle of law enunciated in Ramiah, namely, that driving is not necessarily dangerous because it leads to fatal consequences, but that a verdict of guilt can only follow a finding of fault on the part of the driver.” [26] Guidance can also be found in Public Prosecutor v Zulkifli bin Omar [1998] 6 MLJ 65 where Vincent Ng J said (at p 71): “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 or reckless driving] fall into two broad categories; first, those in which the accident has arisen through 12 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 of other road users or of his passengers, or with a degree of recklessness [hereafter called 'the 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 PP; Choong Sze Foong v PP [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 in Goh Kheng Seong v PP [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]. As Parliament has not spelt out the meaning of 'driving dangerously' or 'driving recklessly' it is left to the courts to do so. To be guilty of the more serious category of the offence of reckless driving the driver (defendant) must have created an obvious and serious risk of injury to the person or damage to property and must either have given no thought to the possibility of that obvious risk, or have seen the risk and nevertheless decided to run it. …. 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 13 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.” [27] Applying the principles in the above cases and looking at the prosecution’s case as well as the defence of the accused as a whole, we found that the learned Judicial Commissioner fell into error in upholding the findings of the Magistrate. The defence of the accused that his vision was impaired due to the splash of water onto his windscreen which was caused by another car which overtook him prior to the accident, was not challenged by the prosecution. The Magistrate and the learned Judicial Commissioner failed to give sufficient consideration to the fact that the obvious and serious risk which resulted in the death of the deceased was not caused solely by the accused. There was an intervening cause which contributed to it and when viewed objectively, could not be said to be the fault of the accused. [28] Apart from the fact that the accused had collided into, and caused the death of the deceased, no other evidence was led to show the recklessness of the accused. As propounded in Ramiah (supra), it is not the law that merely because an accident happened which led to fatal consequences, it follows that the appellant was driving in a manner dangerous to the public. The prosecution needed to show something more, i.e. that the accused was driving in a manner which has shown a selfish disregard for the safety of other road users. This element was conspicuously absent in the prosecution’s case. In our judgment, the essential or core ingredients of recklessness under section 41(1) of the Act have not been proved beyond reasonable doubt by the prosecution. 14 [29] However, we found that the prosecution had established a case against the accused for driving without due care and attention or without reasonable consideration, an offence under section 43(1) of the Act. For ease of reference, section 43(1) is reproduced below:

Careless and inconsiderate driving