HOW PEI LIN v Pendakwa Raya (JB-41S-2-01/2025)

This is an appeal by the appellant (accused in the court below) against the decision of the Learned Magistrate Court Kluang who convicted the appellant under Section 41(1) of the Road Transport Act 1987 (“the Act”) after calling for defense and had sentenced the appellant to five years (5) imprisonment and fine RM 28,000.00 or in default one (1) year imprisonment and is disqualified from holding her driving license for five (5) years.

The accused was charged with an offence punishable under s. 41(1) of the Act, which reads as follows: - “Bahawa kamu pada 11/11/2020 jam lebih kurang 0915 hrs di Jalan Parit Haji Hassim, Simpang Renggam dalam daerah Kluang, dalam negeri Johor Darul Ta’zim, telah memandu motorkar no. JQV 5446 dengan cara yang setelah mengambil perhatian tentang segala hal keadaan (termasuk jenis, keadaan dan saiz jalan dan kesesakan lalu lintas) merbahaya kepada orang awam sehingga menyebabkan kematian kepada penunggang motorsikal no. WC 662 B iaitu Ruzaimi bin Abdol Talip KPT No: 811001-01-6899. Oleh yang demikian itu, kamu telah melakukan satu kesalahan dibawah seksyen 41(1) Akta Pengangkutan Jalan 1987 (Akta 333/87) dan boleh dihukum di bawah seksyen yang sama.”

Briefly, the facts indicate that a collision occurred on 11.11.2020 at about 9.15 am, when the vehicle No JQV 5446, driven by the accused, wanted to turn right at a junction, and the motorcycle ridden by one Ruzaimi bin Abdol Talip (deceased) was turning left at the said junction. The only issue disputed by both parties is the point of collision, whereby the prosecution contended that the appellant had turned into the junction when the collision occurred. In contrast, the defense had claimed the collision had happened outside the junction, as the accused was still on the main road (her path of way) when the deceased had exited the junction without stopping.

The Court of Appeal in the case of Ng Beng Kok v Public Prosecutor [2017] MLJU 321; [2017] 7 CLJ 157 decided that the elements of the offence under s 41(1) of the Act were as follows: - “The above section, in our view, creates three distinct offences, namely:

driving a motor vehicle recklessly;

driving a motor vehicle at speed; or

driving a motor vehicle in a manner which, having regard to all the circumstances (including 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.”

In an earlier case of Public Prosecutor v Wan Khairil bin Wan Isa [2007] 6 MLJ 601; [2007] 9 CLJ 557, the High Court had also laid down the ingredients: - “The essential ingredients then of the offence under s 41(1) of the Act are:

a person who,

by driving a motor vehicle recklessly; or

by driving a motor vehicle at a speed; or

by driving a motor vehicle in a manner which, having regard to 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 person.”

The Road Transport Act 1987 does not define what amounts to dangerous driving. However, decided case laws can give some guidance on what constitutes dangerous driving. In this respect, in the case of Ramiah v PP [1972] 1 LNS 120; [1972] 2 MLJ 258, a case under s. 34A of the Road Traffic Ordinance 1958, which is the antecedent of s. 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 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 ER 220, His Lordship further said: - “In a case under s 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”.

The above principle was also quoted in the Court of Appeal decision of Cantona Lim Xiang Kim v PP [2020] 1 CLJ 63.

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 v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, Public Prosecutor v Ahmad Firdaus bin Zulkifli [2017] 3

In Davendar Singh Sher Singh v. PP [2012] 1 LNS 261, Azahar Mohammad 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.”

Based on the notes of the proceedings in the Magistrate's Court, the following points can be elucidated: - i) There are no eyewitnesses to the collision. ii) SP6 (Assistant Investigating Officer), who had drawn the sketch plan, agreed that the sketch plan does not show the actual physical aspect of the scene of the accident because when he entered the system, the sketch plan had “zoom” and became bigger. iii) SP8, the Investigating Officer had also confirmed that the sketch plan drawn at the scene of the accident is not as big as the actual scene of the accident. iv) The actual physical condition of the scene of the accident could be viewed by a video presented by the defense (Exhibit D 12), whereby SP 8 had confirmed the location as per the video. This court viewed the video, which depicts a very narrow road, also known as Jalan Kampung. The physical aspect of the road appears accommodating for one vehicle only, suggesting that the appellant could not have avoided the deceased, who was exiting the junction.

The accused (SD1) in her defense had given evidence that at the material time of the accident, she was driving motorcar No JQV 5446 from her house to her workplace, and when she arrived at Simpang 3 Jalan Pt Haji Hashim / Jalan Mahmud, she was about to turn right to the junction on her right when the deceased had exited from the junction from her right without stopping and collided into her motorcar.

However, based on the evidence of SP6 and SP8, the accident occurred when the vehicle driven by the accused turned right at the junction and entered the pathway of the deceased motorcycle, even though SP6 agreed that the road was very narrow.

Cases of dangerous driving can be classified into two categories.

The case of Gunasegaran Singaravelu referred to Public Prosecutor v Zulkifli bin Omar [1998] 6 MLJ 65 at pp 71–72; [1998] 1 CLJ 1079, 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 misjudgement (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 Public Prosecutor; Choong Sze Foong v Public Prosecutor [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 Public Prosecutor [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 s 41(1) convict such person of an offence under s 42 (dangerous and reckless driving but without causing death) or s 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’.”

After scrutinizing the totality of the evidence presented in this case, I am of the view that it falls short of proving dangerous driving beyond a reasonable doubt. Turning at a junction cannot be construed as dangerous driving per se. There are no eyewitnesses to testify about how the accident occurred. One cannot speculate cases of this nature based on a sketch plan drawn at the scene of the accident. The unfortunate fatal accident could be due to the carelessness of the appellant or both the appellant and the deceased. Apart from the fact that the appellant had collided with and caused the death of the deceased, no other evidence was led to show how the appellant was driving dangerously. In my view, the essential or core ingredients of dangerous driving under s. 41 (1) of the Act has not been proved beyond a reasonable doubt by the prosecution.

In view of the foregoing, this court, in exercise of its appellate jurisdiction, is convinced that there was no judicial appreciation of the evidence proffered in the case by the Learned Magistrate as the trier of fact. However, on the facts and circumstances of the case involving the accused, although it does not disclose dangerous driving, I find that the prosecution had established a case against the appellant for driving without due care and attention or without reasonable consideration, an offence under s. 43 (1) of the Act. For ease of reference, s. 43(1) is reproduced below: - “Careless and inconsiderate driving 43(1) A person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and shall on conviction be punished with 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 premise, the appeal by the accused is allowed and pursuant to section 316(b)(ii) CPC read together with section 167 CPC, this court alters the finding made by the trial magistrate and the sentence meted out against accused. For the record, section 41(4) RTA also allows for such an avenue during trial. The relevant provisions are: - “Section 41(4) RTA renders that the court may upon the trial of a person for an offence under this section convict such person of an offence under section 42 or 43. Section 316 (1) (b) (ii) CPC, provides that in an appeal from a conviction, court may alter the finding and alter the nature of the sentence. Section 167 CPC provides for a situation when a person charged with one offence can be convicted of another, provided the conviction flow from the same evidence.”

The punishment for an offence under s 43(1) is a fine of not less than five thousand ringgit and not more than ten thousand ringgit, and shall also be liable to imprisonment for a term not exceeding twelve months. Disqualification from holding a driving license is only applicable on a second or subsequent conviction.

Having heard the parties on mitigation, the appellant is sentenced to a fine of RM 10,000, in default of payment, one year’s imprisonment. Particulars of conviction to be endorsed on the driving license of the accused pursuant to s. 43(2) of the Act.

In my view, an offender who has been convicted because of momentary inattention or misjudgement for the first time, has shown remorse, and considering it was not a premeditated offence, should not be given a custodial sentence, as it would not be in the best interest of justice for all.

The appeal is allowed in part. Dated 7th January 2026 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Mandave Singh Gill with Siti Norhanani binti Musni Messrs K. Siladass & Partners For the Respondents : Nur Aqiilah binti Ahmad Rofaie