KHOR BOON SIEW v Pendakwa Raya (AA-41S-1-01/2023)

During the hearing of the appeal, the court had asked the deputy public prosecutor (‘DPP’) as to which offence in the charge the appellant was faced with. The DPP replied that it was for 85 ‘driving recklessly’. When asked again as to which offence the appellant had been convicted of, the DPP replied that the conviction was as per the charge. This meant the conviction was not for the offence of driving recklessly. The appellant had, thus, S/N Y0RJltyHgkaRzvdfjdHaZw succeeded in showing that confusion had occurred at every step 90 of the proceedings until the stage of conviction. This confusion had prejudiced the appellant (see paras 27–28).

The appellant’s contention that the charge against her was duplicitous had merit. The duplicity rendered the charge invalid as it offended s 163 of the Criminal Procedure Code (‘the CPC’) and 95 was a fundamental defect that was incurable under s 422 of the CPC. The non-compliance with s 163 had caused a miscarriage of justice to the appellant. Her conviction was bad as it was based on an invalid charge. The conviction had to be set aside. On the ground of duplicity in the charge alone, the appeal had to be 100 allowed (see para 41)” Respondent's counter argument [5]. Conversely, the Respondent asserts that the charge is sufficiently clear detailing that on the specified date and time, the Appellant drove a motorcar under the influence of alcohol, which exceeded 105 the legal limit of 151 milligrams per 100 millilitres of blood. The charge under section 44(1)(b) of the Road Transport Act 1987, does not suffer from any defect. They argue that the statutory language typically includes "or drugs" to cover the spectrum of possible substances but maintain that the specific facts and 110 evidence of the case clearly pointed to alcohol, not drugs, thus negating any real ambiguity. [6]. Furthermore, the Prosecution contends that throughout the trial, all witnesses’ testimonies and documentary evidence presented, related only to alcohol consumption, not other substances vis-a-vis 115 drugs. They contend that the Appellant in the court below clearly S/N Y0RJltyHgkaRzvdfjdHaZw understood and responded to the charge as related only to alcohol consumption. The Appellant was not misled by any ambiguities in the charge. Therefore, they submit that any potential defects or ambiguities in the charge are irrelevant to the appeal, as no 120 confusion was demonstrated on the part of the Appellant regarding what he was defending against. [7]. The Respondent relied on s.156 of CPC which provides: “No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those 125 particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission. Court’s finding [8]. There is no doubt, the law mandates that charges must be unequivocally clear to meet the standards of a fair trial and the 130 charge must be read and interpreted in the context of the evidence to be presented. The facts and evidence in the present case unequivocally support the specifics of the charge which related only to alcohol not drugs and the resulting consequences are clearly set out, making it unlikely that the accused was confused or 135 misled about the nature of the allegations against him. The inclusion of the words "or drugs" is a standard statutory phrase from section 44(1)(b) of the Road Transport Act 1987, and does not render the charge defective. [9]. It is my considered view that the principle in Sam Ke Ting’s case 140 (supra), do not apply to the present case. In Sam Ke Ting’s case S/N Y0RJltyHgkaRzvdfjdHaZw (supra), during the proceedings in both the Magistrate's Court and the High Court, there was confusion regarding the charges against the Appellant. At the end of the Prosecution's case in the Magistrate's Court, the Prosecution argued the charge of reckless 145 driving. However, before the first High Court judge, the argument shifted towards dangerous driving under section 41, suggesting the Defendant created a dangerous situation either by reckless or dangerous driving that could potentially cause death. [10]. Although, the Prosecution chose the charge of dangerous driving, 150 the Magistrate concluded that a prima facie case had been proven for either reckless or dangerous driving as charged. The High Court affirmed the conviction of the appellant as charged. [11]. However, both in the Magistrate and the High Court, the Prosecution acknowledged that reckless and dangerous driving 155 were distinct offenses. Yet, at the appeal before the court of appeal, the Prosecution's stance changed, arguing that the driving was an indivisible act where reckless driving encompasses dangerous driving. [12]. This inconsistency and duplicity in handling the charges led to 160 confusion not only for the prosecution, who were uncertain of the specific offense to prove, but also for the Appellant, who had to defend against two different charges simultaneously. Ultimately, the Court of Appeal dispensed justice to the Appellant by discharging and acquitting the appellant. 165 [13]. I have reviewed the notes of evidence in the present case from the magistrate's court and I did not identify any issues related to the S/N Y0RJltyHgkaRzvdfjdHaZw duplicity of charges raised, nor were they mentioned in the submissions. In fact, the magistrate court proceedings do not mention any duplicity of charges related to drug abuse resulting in 170 the accident. Therefore, the Appellant's claim of confusion or being misled by the charge against him is an afterthought at the instance of this appeal. [14]. Even if the charge is frowned at as an error or an irregularity, since it did not cause any injustice to the Appellant, according to section 175 422 of CPC such a complaint does not invalidate the court's findings, sentence, or decision. [15]. Section 422 of CPC provides:

“Irregularities not to vitiate proceedings Subject to the provisions contained in this Chapter no finding, 180 sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of-

any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other 185 proceedings under this Code;

the want of any sanction; or

the improper admission or rejection of any evidence, unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of 190 justice.” (underline is my emphasis) S/N Y0RJltyHgkaRzvdfjdHaZw [16]. Therefore, I hold that the charge is not defective. Appellant’s argument that he is not the driver 195 [17]. After the defence was called, the Appellant gave testimony from the witness stand whilst the wife who was in the vehicle gave evidence on oath. The Appellant’s version of the accident was on 25 January, 2020, around 7:30 PM, while traveling from Kuala Lumpur to Teluk Intan with his wife, they stopped at QBox at Jalan 200 Maharajalela following an invitation from the Appellant’s uncle. During the meeting with their uncle, the Appellant allegedly consumed a small cup of beer, which he claims had no effect on him. However, tired from the journey, his wife then drove their car, and during a U-turn attempt, their vehicle was hit by a motorcycle. 205 The incident left both the Appellant and his wife in a state of fear from the threatening behaviours of the onlookers at the scene of the accident. [18]. The Appellant's submission regarding the question of "Who is the driver?", asserts that SD2, the Appellant's spouse, was the actual 210 driver at the time of the incident. This assertion is supported by SD2's own admission of being the driver. Despite this, there was uncertainty expressed by SP5 (Investigating Officer), who stated that he was not sure who the driver was at the time of the accident, suggesting that the Appellant might not have been driving. 215 Additionally, despite the seriousness of the case, SP5 released the Appellant on police bail the following day without placing him on remand. The Appellant emphasizes that no police report was initially made by him, even though SP5 directed him to file one S/N Y0RJltyHgkaRzvdfjdHaZw within 24 hours of the accident. The police report (Exhibit P16) was 220 eventually filed by the Appellant six days later, on 31 January 2020, indicating a delay that the Appellant argues shows inconsistencies in the investigation. The Appellant challenges why SP5 did not place him on remand and further questions the basis for granting police bail without a timely police report. All this according to the 225 Appellant suggest procedural irregularities that question the credibility of the investigation and the assertion that the Appellant was driving. [19]. The Appellant contends, the reason why he claimed responsibility following the accident when a police officer arrived at the scene 230 was because his wife had already left with his uncle. The officer took the Appellant’s blood sample and released him the next day, only requesting a police report from him a week later. The Appellant denies being under the influence of alcohol during the incident; however, he admits to being in a state of fear for several hours due 235 to shock and panic. [20]. The Appellant contends that there is no evidence supporting the charges against the Appellant, by particularly relying on the evidence of his wife, which corroborates his testimony of how the accident occurred and who was driving. 240 Respondent’s counter argument on “who is the driver” [21]. In addressing the issue of identifying the driver, the Respondent refers to the victim's police report (P2), made five days after the accident, which details the Appellant's vehicle (VDD 2321) executing a U-turn that resulted in the collision. The delay in filing 245 S/N Y0RJltyHgkaRzvdfjdHaZw this report was due to the victim receiving treatment for a broken leg. Additionally, the Appellant's own police report, filed on 31st January, 2020, explicitly states that he was driving the vehicle at the time of the incident and confirms the U-turn manoeuvre that led to collision with the motorcycle. Testimony from SP5 further 250 corroborates this, as he witnessed the scene and directed the Appellant to the police station for a report while suspecting intoxication due to the Appellant's incoherent speech. Court’s finding on who is the driver [22]. Given the detailed accounts in the police reports and the 255 eyewitness testimony from SP5, all of which consistently identify the Appellant as the driver, the Respondent's evidence is cogent. These evidences provide a clear narrative that not only places the Appellant at the scene but also directly involved in the driving actions leading to the accident. Thus, it is reasonable to conclude 260 that the Appellant was indeed the driver. Any claim to the contrary merely is an attempt to deflect responsibility rather than a substantiated defence. Collectively, this evidence firmly establishes that the Appellant was the driver, countering claims that his wife was driving at the time of the accident is an 265 afterthought. [23]. It is a broader judicial understanding that, while spouses are competent to testify, their evidence must be treated with careful scrutiny, especially in the context of their personal relationship with the accused. Therefore, the court often looks for corroboration to 270 S/N Y0RJltyHgkaRzvdfjdHaZw ensure that such testimony is both credible and reliable, particularly when motives to distort the truth might exist. [24]. I also find it somewhat puzzling, why the Appellant who was present at the scene of the crime (accident) in the presence of the police never mentioned that he was not the driver of the vehicle. 275 Thereafter, after 5 days the Appellant lodges a police report to state he was the driver and then gives testimony from the dock without being subject to cross examination that he was not the driver and finally calls the wife as a defence witness to confirm she drove the vehicle which was involved in the accident. If the Appellant was not 280 the driver, why did he inform the police at the scene that he had only one small cup of beer. [25]. Therefore, I hold that the Appellant was the driver of the vehicle that he was in, which was involved in the accident. Appellant’s argument that the evidence of blood sample not reliable 285 [26]. The Appellant challenges the accuracy of a blood alcohol test showing 151 mg/100ml, citing procedural flaws. The issues in this respect include the improper handling and documentation of the blood sample, with unexplained gaps in the chain of custody. The absence of preservatives and questions about refrigeration raise 290 doubts about the sample's integrity. Also, the person who took the blood was not called to give evidence, hence the Appellant was denied the opportunity to cross-examine the person. These inconsistencies are clear from the cross-examination provided below and they raise a reasonable doubt about whether the 295 S/N Y0RJltyHgkaRzvdfjdHaZw reported alcohol level accurately reflects the Appellant's condition at the material time. S/N Y0RJltyHgkaRzvdfjdHaZw S/N Y0RJltyHgkaRzvdfjdHaZw 300 [27]. The above cross-examination of the Chemist on the blood sample has exposed several critical flaws in the handling procedures, thus it has affected the reliability and admissibility of the evidence. The chain of custody of the evidence was not property maintained, raising significant doubts about the sample's authenticity. The 305 collection and handling procedures were compromised, with potential contamination and improper storage conditions affecting the sample's integrity. The testing and analysis show possible errors and the expert testimonies revealed inconsistencies. In this S/N Y0RJltyHgkaRzvdfjdHaZw respect the cross examination had challenged the methodologies 310 used. These issues collectively demonstrate that the blood sample evidence failed to meet the necessary standards of reliability, warranting its exclusion from consideration in this case. [28]. Subsequently on re-examination of the Chemist, the witness said: 315 [29]. The reported value in her report, which is 151 milligrams per 100 millilitres of blood, may not reflect the actual alcohol level at the time the blood was taken because preservatives were not used on the sample. Therefore, the true ethanol level could be higher or lower than the reported value at the time the blood was taken. 320 [30]. Therefore, the true ethanol level in the blood cannot be confirmed. As such on this ground the Appellant/Accused’s appeal is allowed and the Prosecution’s appeal is disallowed. S/N Y0RJltyHgkaRzvdfjdHaZw Conclusion 325 [31]. The blood sample evidence has critical flaws undermining its reliability. The reported alcohol level is said not to reflect the actual level of alcohol in the Appellant’s body at the time blood was taken from the Appellant due to the lack of preservatives. [32]. In the upshot, the Appellant’s appeal is allowed by setting aside the 330 decision of the Session’s Court Judge and substituting it with discharge and acquittal of the Appellant. [33]. As a consequence of allowing the Appellant’s appeal in AA-41S-1- 01/2023, the prosecution’s appeal in AA-41H-2-01/2023 is dismissed. 335 Date : 20 September 2024 Moses Susayan 340 MOSES SUSAYAN Judicial Commissioner High Court in Malaya 345 at Ipoh, Perak 350 S/N Y0RJltyHgkaRzvdfjdHaZw Counsel : 355 For 41H-2-01/2023 For the Appellant : Puspharasi Ramachandran 360 Deputy Public Prosecutor [Prosecution Unit] Perak Legal Advisor Offices, Ipoh, Perak For the Respondent : Terence Naidu 365 Advocates and Solicitor [Messrs Gibb & Co] Teluk Intan, Perak For 41S-1-01/2023 370 For the Appellant : Terence Naidu Advocates and Solicitor [Messrs Gibb & Co] Teluk Intan, Perak 375 For the Respondent: Puspharasi Ramachandran Deputy Public Prosecutor [Prosecution Unit] Perak Legal Advisor Offices, Ipoh, Perak 380 (Notice: This Grounds of Decision is subject to official editorial revision) 385 S/N Y0RJltyHgkaRzvdfjdHaZw Headnotes The appeal raised three key legal issues:

whether the charge was defective due to ambiguity between alcohol and drug influence, raise concerns of duplicity and potential unfairness in the trial process; (2) whether the appellant was the driver at the time of 390 the accident, given conflicting testimonies regarding his involvement; and

Whether the result of the blood sample indicating alcohol levels exceeding the legal limit is reliable, in light of the challenges based on improper handling, chain of custody issues, and the absence of preservatives. Whether these critical flaws in the blood sample can be 395 relied upon to accurately reflect the appellant's condition at the time the blood was drawn. S/N Y0RJltyHgkaRzvdfjdHaZw