Lai Kim on (MC-83-238-05/2023)

The accused was charged for an offence punishable under section 41(1) of the Road Transport Act 1987 (“RTA”), which read as follows:-

“Bahawa kamu pada 19.9.2017 jam lebih kurang 6.45 pagi di KM 8 Lebuhraya PLUS arah selatan, di dalam daerah Alor Gajah, dalam negeri Melaka sebagai pemandu m/lori WPQ3470 telah memandu secara berbahaya kenderaan tersebut di atas jalan raya sehingga menyebabkan kemalangan dan kematian kepada Tiong King Ping No. K/P: 771222-08-7195 dengan ini kamu telah melakukan satu kesalahan dan boleh dihukum di bawah sek 41(1) Akta Pengangkutan Jalan 1987 (pindaan 1999).”

The accused pleaded not guilty to the said charge and claimed trial. The prosecution has called six witnesses as follows:- i. PW1: L/KPL Amirul Aizat, the officer prepared first information report for Police Post of Hospital Melaka; ii. PW2: SM Nor Azli, the photographer; iii. PW3: Ms. Tiong Mee Chyn, sister of the deceased; iv. PW4: Sjn(B) Othman, the assistant investigating officer; v. PW5: Insp. Mohd Marzooki, the investigating officer; and vi. PW6: Dr. Rhaathey Kishna, the pathologist. Prosecution’s case

The prosecution’s case in substance is as follows. On 19.7.2017 at about 6.45 am, a road collision occurred involving a lorry bearing S/N K/li/b/seUy8Ynb1kheE6w registration number WPQ 3470 and a Toyota car bearing registration number WUH 6582 at KM200.8 of the PLUS Highway (southbound) in the Alor Gajah district, Melaka.

Acting on information about the accident, at 7.00 am, PW2 (the photographer) and PW4 (the assistant investigating officer) departed from the IPD Alor Gajah to the accident scene. Upon arrival at the accident scene, PW2 and PW4 observed that the weather was clear, the rain had stopped, and the road surface was almost dry.

Both vehicles involved were still at the accident scene, positioned in the emergency lane (A-A1, as stated in the sketch plan P7). PW2 and PW4 saw that the car had overturned and was slightly slanted with the car’s wheels facing upwards, while the lorry was positioned straight behind the car.

The accident area was a straight three-lane road heading south (Exhibit P3 (1-13), the accident scene photographs referred). The collision marks were on lanes A to A2. Both vehicles were traveling in the same direction, from north to south.

When PW2 and PW4 arrived at the accident scene, the driver of the car (WUH 6582) was not present because he had been taken by ambulance to the Emergency & Trauma Department, Hospital S/N K/li/b/seUy8Ynb1kheE6w Melaka, for immediate treatment. Meanwhile, the lorry driver (the accused) suffered minor injuries.

At the accident scene, PW4 instructed PW2 to take photographs of the accident (P3 (1-13)). PW4 also prepared the sketch plan of the accident scene (P7), showing the position of the deceased’s car in the emergency lane A-A1 and the lorry also in the emergency lane A-A1. From P7, it appeared that the deceased’s car positioned behind the lorry. However, the prosecution's evidence in chief testified that the lorry was behind the deceased's car. This part will be articulated and examined in the following.

From the preliminary investigation by PW4 at the accident scene, he found that the lorry driver (the accused), who was moving in lane A1-A2 southbound, had lost control and collided with the deceased’s car from behind, causing the deceased’s car to be dragged into the emergency lane. The deceased was also traveling southbound.

PW4 also noted drag marks in lane A-A1. The car (WUH 6582) was severely damaged at the rear, while the lorry (WPQ 3470) was severely damaged at the front. On the same day, the accused went to the Alor Gajah Traffic Police Station to lodge a police report about the road accident at KM200.8 of the PLUS Highway (southbound), stating that his lorry was involved in a collision with S/N K/li/b/seUy8Ynb1kheE6w the car (WUH 6582). The police report (ID2) was lodged by the accused on the same day at about 3.54 pm.

On 24.9.2017 at about 4.55 am, around 5 days after the accident, PW1 received a phone call from the Police Post at Hospital Melaka informing him that the driver of the car (WUH 6582) (the deceased) had passed away. The deceased was pronounced dead at 2.55 am while receiving treatment in the ICU Ward Mawar at Hospital Melaka.

On 24.9.2017 at about 1.00 pm, a post-mortem examination was conducted by PW6, the pathologist at the Forensic Department, Hospital Melaka, to ascertain the cause of death of the car driver (the deceased). PW6 confirmed that the cause of death was “chest injuries due to a road transport crash with underlying sepsis due to severe lung infection (klebsiella pneumonia)."

Based on the overall investigation carried out by PW4, the accused was charged under section 41(1) of the RTA for driving dangerously on the road, causing the death of the car driver (WUH 6582). S/N K/li/b/seUy8Ynb1kheE6w Analysis and Findings at the end of the Prosecution’s Case Prosecution’s submission 14. The prosecution submitted that every ingredient which constitutes the offence with which the accused was charged had been proven, as follows: a) the accused was driving the lorry bearing registration number WPQ 3470 on the highway; b) there was dangerous driving on the part of the accused at KM200.8 of the PLUS Highway (southbound); and c) this dangerous driving caused the death of the driver of the car bearing registration number WUH 6582 (the deceased Tiong King Ping). Defence counsel’s submission 15. The learned defence counsel submitted that the prosecution had failed to establish a prima facie case, arguing that: a) the accused was not driving dangerously; b) the accused did not cause the Deceased’s death; and c) reasonable doubts and gaps remain in the prosecution’s case.

There are issues canvassed by the defence in the trial as follows: - i. the accused did not drive dangerously; ii. lack of toxicology result in the post mortem report (P9); and S/N K/li/b/seUy8Ynb1kheE6w iii. the deceased died 5 days after being admitted to the hospital due to a lung infection. Issue (i): the accused did not drive dangerously

In respect of the first issue, which is of enormous importance to this court, hearing the evidences of the prosecution's witnesses, it is appropriate for me to set out the following to determine whether the accused was driving the lorry dangerously, as follows:- a) suggestion put by the defence counsel to the prosecution witness is consistent with the police report (ID2) and the accused’s cautioned statement (IDD10); and b) investigation by PW4 and the sketch plan (P7). a) suggestion put by the defence counsel to the prosecution witness is consistent with the police report (ID2) and the accused’s cautioned statement (IDD10)

In the present case, the accused was charged under the third limb of section 41(1) of the RTA for the offence of causing death by driving the lorry in a manner that created a dangerous situation for the public. When creating such a situation, the prosecution submitted that the accused was at fault. However, the learned defence counsel submitted that there was nothing from the prosecution's witness or evidence to show that the accused made the environment dangerous, nor what dangerous situation was created through his driving on 19.9.2017. Driving in a manner S/N K/li/b/seUy8Ynb1kheE6w dangerous to the public has not been defined by Parliament in the Act, and it has therefore been left to the court to determine in any particular case on the basis of the facts before it (PP v Wan Khairi l Wan Isa [2007] 9 CLJ 557,HC).

This court's assessment is based on the evidence available which is peculiar to the central facts of the present case (Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CoA). I remind myself that, to judge and decide a dispute, this court must arrive at a decision on an issue of fact by assessing; weighing; and; either accepting or rejecting the whole or any part of the evidence presented before this court for a good reason. This is achieved by judicially appreciating the evidence through an objective test to determine whether the accused was driving in a manner that was dangerous enough to constitute an offence under section 41(1) of the RTA (Cantona Lim Xiang Kim v Public Prosecutor [2020] 1 MLJ 544, CoA).

The central fact and evidence are as follows. The learned defence counsel suggested to the prosecution witnesses that the accused's sight was blocked by the vehicle in front of him at the material time when the vehicle suddenly made a sharp turn to the left. In perusing the evidence, this court found that PW4, as the assistant investigating officer, did not have confidence in his own investigation outcome. Under cross-examination, PW4 stated he S/N K/li/b/seUy8Ynb1kheE6w was unsure whether a third-party vehicle was involved in the collision and he failed to convince this court due to his incomplete investigation. Additionally, there were no road lamps at the scene, and it was very dark before sunrise and also after the rain had stopped. The accident allegedly occurred around 6.45 am, which is before sunrise in the area. Therefore, this court agrees with the learned defence counsel that the accused reasonably could not see the deceased's car at the material time, taking into account the surrounding circumstances.

It resurfaced following the Alor Gajah Traffic police report no. 5697/17 (ID2) lodged by the accused at 3.54 pm on the same day of the alleged accident, without delay. In the circumstances, the police report (ID2) could not be ruled as having corroborative value since the accused himself was not giving a statement in court at this stage. However, this court evaluated all available evidence, including ID2, and found it consistent with the suggestions put forth by the defence counsel to the prosecution's witness. According to ID2, the accused stated, at that material time, he was driving the lorry in the left lane behind another lorry with uncertain registration number. The lorry in front of him suddenly entered the emergency lane, and at the same time, there was a car left overturned at the site in front of him. The accused braked and tried to avoid it, but because he was too close, he ended up hitting the car and then S/N K/li/b/seUy8Ynb1kheE6w stopped in the emergency lane. The accused sustained injuries and was given 5 days of medical leave by Hospital Melaka.

Meanwhile, the defence counsel tendered the accused's cautioned statement as exhibit (IDD10), with no objection from the prosecution. The Deputy Public Prosecutor acted professionally and left the matter to the court's discretion. I find it important to reproduce the judgment from the case of Prasit Punyang v Public Prosecutor [2014] 4 MLJ 282; [2014] 7 CLJ 392, CoA, which held that this court has a duty to consider the cautioned statement of the accused as tendered, especially when it is exculpatory in nature concerning the present charge. In connection to this, I, as the trial judge, must consider the contents of the accused's cautioned statement; failing to do so could result in injustice to the accused by missing an opportunity for a not-guilty verdict (Chukwudi Hassan v Pendakwa Raya [2015] MLJU 847, CoA).

This court is aware that the accused’s exculpatory statement cannot serve as the sole basis for acquittal at the end of the prosecution's case. Nevertheless, this court must consider all the evidence from the prosecution's witnesses, subject it to strict scrutiny, and evaluate it meticulously with a fine toothcomb. The IDD10 was presented to PW5, the investigating officer, during cross-examination before this court, as recorded in the notes of proceeding. The law requires the court to subject all prosecution S/N K/li/b/seUy8Ynb1kheE6w evidence to maximum evaluation, and if multiple inferences arise from this exercise, the accused should be given the benefit of the doubt (Public Prosecutor v Leslie Spenser [2018] 12 MLJ 772, HC).

In this context, unlike common practice, the defence contends that the accused’s cautioned statement carries no weight because it was given involuntarily. However, the defence counsel in the present case tendered the cautioned statement to demonstrate its consistency with the police report lodged by the accused in year

The cautioned statement of the accused was recorded by the investigating officer on 7.12.2020.

In the interest of the general administration of justice in court, which must be paramount, I am of the considered view that a cautioned statement of the accused, provided it is voluntary, introduced during the prosecution stage, makes it clear that a purely exculpatory statement is not evidence of the facts stated. It is undisputed that the cautioned statement can show the reaction or attitude of the accused at the time it was made. Furthermore, in considering whether there is a case to answer, I remind myself that such a statement should not be taken into account as the sole basis for ordering an acquittal or discharge (Public Prosecutor v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560; [1997] 1 CLJ 233, FC).

Therefore, after reading and considering the accused’s cautioned statement (IDD10), I found its content consistent with the police report (ID2) lodged by the accused and the suggestions put forth by the defence counsel to the prosecution's witnesses. It is clear to this court that the defence’s version was already presented to the prosecution witnesses during the prosecution stage and as such will not be considered an afterthought. b) investigation by PW4 and the sketch plan (P7)

The prosecution submitted that the accident area was a three-lane one-way road. Both vehicles were believed to be moving in the same direction, towards the south. Before the accident occurred, the accused was traveling in lane A1-A2 (from bottom to top in the sketch plan – P7) while the deceased's vehicle was also in lane A1-A2. The collision clearly took place in lane A1-A2, specifically in the third lane; the farthest left towards the south. The brake mark "A" and drag mark "B" resulting from the collision were also present in lane A1-A2. It was further argued by the prosecution that the accused's driving, which suddenly hit and rammed into the deceased's vehicle from behind, was evidently dangerous. This collision caused the deceased’s vehicle, which was moving straight in its lane (A1-A2), to be dragged and overturned into the emergency lane.

The sketch plan (P7) is reproduced for ease of reference, as follows:-

PW4, the assistant investigating officer in charge at the material time, testified that he stayed at the scene for about 40 minutes to investigate and look for evidence or independent eyewitnesses but found none, concluding that he was unsure how the accident happened. PW4 was honest in his view as an investigating officer. During the cross-examination, he agreed that the accused was not driving dangerously based on all the surrounding circumstances. He reiterated the same during his re-examination and reaffirmed his agreement that the accused was not driving dangerously, reproducing the oral evidence during the re-examination as follows:- During re-examination: DPP: Peguam cadangkan mungkin OKT tak pandu berbahaya waktu itu sebab kamu tak tahu macam mana kemalangan itu jadi. Kamu setuju OKT tak pandu bahaya lah? Kamu setuju cadangan Peguam? SP4: Setuju. DPP: OKT tak pandu bahaya dalam kes ini? SP4: Tak pasti. Peguam: Dengan izin, saya ingin memohon Mahkamah merekodkan pertukaran ini dan saksi sudah jawab soalan 2 kali, dan baru ditanya dah faham, dan saksi jawab setuju juga tapi soalan terakhir lagi DPP tanya balik baru cakap tak pasti. Saya mohon rekodkan.”

Additionally, PW2 marked the brake mark as "A" in photograph P3(2) and the drag marks as "B" in photograph P3(3), which PW4 agreed with during the examination-in-chief regarding the brake mark. The evidence of the brake and drag marks is objective in nature since there can be no doubt about its credibility. PW4 agreed with the suggestion by the learned defence counsel that S/N K/li/b/seUy8Ynb1kheE6w brake mark "A" indicated the possibility of the vehicle attempting to swerve into the emergency lane. This was consistent with the accused's version that the accused braked and tried to avoid the non-moving deceased's car that had overturned, but because he was too close, he ended up hitting the car and then stopped in the emergency lane.

In the considered view of this court, if as submitted by the prosecution, the brake mark and drag mark should be in a vertical or straight position, showing that the lorry was traveling stra ight in lane A1-A2 behind the deceased's car at that material time. However, both marks were not in a vertical or straight position. Obviously, both marks showed a slanted position, indicating that a vehicle was attempting to swerve into the emergency lane.

I must be cautious when considering the prosecution's submission because the investigating officer in charge (PW4, AIO), had made findings before this court at the witness stand in favor of the accused's version as stated in the police report (ID2) and the cautioned statement (IDD10). PW4 found that the accused was not driving dangerously and referred to the damage on the lorry as shown in photograph P3(7), noting that the lorry sustained damage to its upper part. He agreed with the defence counsel's suggestion that it was unlikely that a car that did not overturn could cause such damage.

In the case of Ng Aik Kean & Anor v Siah Loh Sia [1997] 2 CLJ SUPP 218 (HC), it is established law that photographs, plans, and measurements of the accident scene, along with the nature of the damage to each vehicle, serve as reliable guidance. The sketch plan in this case fairly suggested that the accident occurred as described by ID2, where the lorry was in front and the deceased's car was behind it. The lorry, in trying to avoid the deceased’s car, entered the emergency lane.

This court acknowledges that the position of the vehicles after the accident generally offers no clue to their respective positions on the road immediately before or at the moment of collision. This was illustrated in the case of Foong Nan v Sagadevan [1971] 2 MLJ 24 (FC), where the accident was caused by a Fiat crossing over to the wrong side while overtaking two cyclists who were riding abreast behind another pair.

However, the present case is distinguishable. The prosecution argued that the lorry, driven by the accused, was moving in lane A1-A2 towards the south and collided with the deceased's car, which was also moving in lane A1-A2 from behind, causing the car to be dragged into the emergency lane. Notably, the prosecution did not argue that the accused veered into the wrong side and collided with the deceased's car. Instead, it was alleged that both vehicles were in the same lane (A1-A2), with evidence of brake S/N K/li/b/seUy8Ynb1kheE6w mark and drag mark supporting this claim. Importantly, the damage was observed only on the upper part of the lorry (photograph P3(7)), as confirmed by PW4 during cross-examination, which was consistent with the nature of the collision described.

The prosecution's version could not possibly have occurred given the positions of the brake and drag marks, and the positions of the vehicles as specified in the sketch plan (P7). It is unusual for a lorry to collide with the rear of the deceased's car in the same lane, and subsequently for the lorry to end up in front of the car. Even if the collision caused the deceased's car to be dragged into the emergency lane, the car should be positioned in front of the lorry.

A detailed assessment by this court, as pointed out b y the defence counsel during the cross-examination of PW4, also revealed an ambulance between the two vehicles, with the lorry in front and the deceased's car behind it, as seen in photograph P3(7). In light of this objective evidence, the prosecution's version of how the accident happened clearly lacks veracity and must be rejected.

Viewed objectively, the ordinary height of the deceased's car could not have reached the impact level shown in photograph P3(7). The collision occurred when the deceased’s car was already upside down, as depicted in photograph P3(5). Further, this court examined the damage listed in the Puspakom report (P8) on the S/N K/li/b/seUy8Ynb1kheE6w deceased's car, which included significant damage: the front left and right fenders were crushed, the right front pillar was crushed, the front windshield was missing, the left and right headlights were broken, and the entire rear section was crushed. This indicates that the deceased's car had turned upside down before the lorry arrived.

The accused acted reasonably and did his best in the circumstances to avoid the collision, but still collided with the car in its upside-down position, resulting in damage only to the high top left of the lorry. During cross-examination, PW4 agreed that the accused managed to maintain sufficient control to maneuver the lorry back to the emergency lane immediately after the unavoidable crash when he turned the lorry to the right in an attempt to avoid the deceased's car. The accused acted reasonably in this emergency and did not create a dangerous situation by overtaking the car in front of him, which was proceeding in the same direction.

In the court's considered view, all the above findings and PW4's investigation indicate that there was no positive act on the part of the accused that was dangerous, given all the circumstances (Lim Chin Poh v Public Prosecutor [1969] 2 MLJ 159, ARCJ). PW4, in the witness stand, had agreed that the accused did not drive dangerously. Based on the facts and available evidence, this court is not satisfied by the prosecution's evidence and finds that the accused did not create a situation that could be reasonably viewed S/N K/li/b/seUy8Ynb1kheE6w as dangerous. The accused demonstrated the care and skill of a competent and experienced driver in relation to his manner of driving and the relevant circumstances (Ramiah v PP [1972] 2 MLJ 258, ARCJ). This court is clear on the principle that the charge is not one of causing death, but of driving dangerously (Gunasegaran a/l Singaravelu v PP [2009] 7 CLJ 613; [2009] 7 MLJ 761, HC).

The investigation was incomplete and failed to thoroughly examine the issues as above-mentioned, including crime scene photographs (P3), the damage sustained by both vehicles (Puspakom report, P8), the brake and drag marks "A” and “B" and the sketch plan (P7). This created a material gap in the prosecution’s case and led to more than one inference arising from the same facts. Consequently, the inference most favorable to the accused must be drawn. This court found that such a poor investigation resu lted in lot of gaps in the prosecution’s case, which it is the prosecution’s duty and responsibility to fill (Public Prosecutor v Foo Kim Lai [2009] 1 MLJ 211, HC; Public Prosecutor v Cheong Teck Paw [2024] 7 MLJ 753, HC).

Based on PW4’s investigation, how the accident occurred could not be explained, and he failed to conclude that it was the accused’s fault. This court scrutinized all available evidence, and PW4 stated he was unsure how the accident happened, leading to the conclusion that the accused did not drive dangerously. There is no S/N K/li/b/seUy8Ynb1kheE6w certainty, and the core ingredient of section 41(1) of the RTA is not met in the absence of any proof of a positive act by the accused creating a dangerous driving situation. Thus, this court found that it cannot be established that the accused was driving the motor lorry dangerously to the public.

Based on the above evidence, including PW4's own testimony in court, this court found that PW4’s investigation was relatively poor and incomplete, which did not provide much assistance to the court. In my view, such a sensible approach can be confirmed in this case. At that point in time, it was not wrong for the accused to drive the lorry on his lawful path of travel and collide with the deceased's car, which was already in an upside-down position due to the sudden inability to brake. Issue (ii): lack of toxicology result in the post mortem report (P9)

The defence counsel argued that there was no evidence indicating the accused was driving under the influence of drugs or alcohol, nor was the lorry in a dangerous condition, thereby asserting that the accused committed no illegal act while driving on 19.9.2017. According to the defence, the accused did not cause the initial accident that led to the deceased's car being in its state. Instead, the defence suggested that the deceased, who might have been S/N K/li/b/seUy8Ynb1kheE6w under the influence of drugs or alcohol, could have caused the accident by himself.

The defence counsel further highlighted to this court that the injuries described by PW6 were solely based on the deceased's body, and PW6 was unable to determine whether the deceased was under the influence of drugs or alcohol, creating doubt in the prosecution's case. This doubt was further supported by the post-mortem report (P9), which stated that the deceased tested positive for methamphetamine upon admission to the Emergency and Trauma Department at Hospital Melaka. Additionally, two oblong pellets were removed from the deceased's rectum after a diagnosis of constipation.

Notably, PW6 stated that only the deceased's urine contained drugs, not the blood. In relation to this, PW6 could not provide a clear answer on how the presence of drugs in the deceased's urine could have caused the accident. However, it was certain that the deceased's death resulted from severe chest injuries sustained in the accident.

This court emphasized that the essence of the charge against the accused is dangerous driving. It has been established that driving is not necessarily dangerous just because it leads to fatal consequences, where guilt can only be determined if it is proven S/N K/li/b/seUy8Ynb1kheE6w that the driving was dangerous. In essence, this court repeats the trite law is that, the charge is not one of causing death, but of driving dangerously (Gunasegaran a/l Singaravelu v PP (supra); Public Prosecutor v Kasno bin Sani [2021] MLJU 2996, HC).

Based on this approach, the court concluded that the post-mortem report (P9) was inconclusive due to the lack of a specified toxicology result. Before this court, PW6 explained that although she had provided tissue sample specimens of the deceased's body parts for toxicology tests to be conducted by the Chemist Department, she unfortunately did not receive the results. The following specimens were handed over by her to the investigating officer (PW4) to be submitted to the Chemist Department for analysis: a) Blood for alcohol and toxicology; b) Liver for toxicology; c) Bile for toxicology; d) Stomach wall for toxicology; and e) Ocular fluid for toxicology.

PW5 took over the investigation from PW4 after three years and confirmed that nothing had been sent to the forensic lab for verification. PW5 further explained that he had followed up and was informed that PW4 did not send the specimens to the Chemist Department. PW5 contacted PW4 and confirmed that the samples S/N K/li/b/seUy8Ynb1kheE6w were indeed not sent. PW5's investigation findings on this aspect revealed that the specimens were not sent because the deceased died 5 days after the accident (24.9.2017).

Given this situation, this court believed there was no issue of non-production or supression of the results as no specimens were sent to the Chemist Department. Furthermore, under cross-examination, PW6 stated that whether an individual was under the influence of drugs could not be established from urine results but by blood tests. That was why she provided tissue samples of the blood, liver, bile, stomach wall, and ocular fluid for toxicology tests.

It is significant to observe that in the case of Aziz Satar bin Mat Dali v Public Prosecutor [2022] MLJU 1449 (HC), the police's failure to send the deceased's blood sample for toxicology tests was not considered fatal to the prosecution's case. In Aziz Satar (supra), there was no evidence to suggest that the deceased was under the influence of alcohol or drugs, as even the accused did not see the deceased until his motorcycle hit the lorry. This is different from the present case, where the deceased tested positive for methamphetamine upon admission, and two oblong pellets were removed from the deceased via manual evacuation at the hospital.

As the investigating officer in charge of the accident, PW4 should have some evidentiary basis to submit the deceased's blood sample for toxicology tests. Given the facts and circumstances of this case, the court found that the police's failure to send the deceased's blood sample for toxicology tests left a significant gap in the prosecution's case. Nevertheless, upon scrutinizing the evidence, the court found that the lack of toxicology results created doubt regarding whether the deceased was driving under the influence of drugs, which could have led to decreased mental functioning or various psychic disturbances, potentially explaining the automobile accident. In the court's considered view, it was best to conduct the toxicology test, as the lack of results left gaps in the prosecution's case. The presence of drugs and pellets in the deceased’s body upon admission is quite significant questioning whether the deceased was under the influence of alcohol or drugs.

In this respect, it is necessary for the pathologist to review the post-mortem report with reference to photographs, crime scene photographs, medical records, police reports, and witness interviews (as appropriate), and not to forget the toxicology reports tailored to the individual case (Sandhya R, Forensic Toxicology: Death and Investigations – A Review [2015] International Journal of Science and Research 6(7), 1338). In the present case, peculiar to the facts at hand, it must be admitted that more than the post - mortem report and associated photographs must be reviewed, S/N K/li/b/seUy8Ynb1kheE6w aided by the forensic toxicologist's expertise in this scientific specialty, to find evidence showing the role of drugs influencing the deceased's driving state at the material time, known as medico - legal investigation.

The importance of toxicology results was demonstrated in the case of Asri bin Beddu v Public Prosecutor [2013] 3 MLJ 893, CoA. In Asri case (supra), the accused's blood and urine samples were taken for toxicology tests, which did not reveal any presence of alcohol. The learned judge rightly accepted the evidence from the chemist's toxicology test as conclusive. As such, returning to the present case, it cannot be safely inferred what the deceased's driving state was at the material time, and hence this court found a broken link between the accident and the death when reviewing this intervening event. Issue (iii): the deceased died 5 days after being admitted to the hospital due to a lung infection

The defence counsel further submitted that the post-mortem report (P9), which cited chest injuries from the road transport crash as the cause of death, is too remote to be directly linked to the accident. The defence argued that anyone with chest injuries or surgeries could have been infected with Klebsiella pneumonia if S/N K/li/b/seUy8Ynb1kheE6w proper hygiene procedures or patient separation protocols were not carefully observed.

It must also be noted that PW6 explained that the most severe injuries sustained by the deceased were to the chest, as the deceased suffered multiple rib fractures. These injuries resulted in bleeding (hematoma) and severe tearing of the muscles in the 7 th intercostal spaces that support the ribs. The bleeding in these muscles caused the deceased's death due to infection in the lungs and blood (sepsis).

Based on this testimony, however, the prosecution argued that the cause of death of the driver was due to the bleeding and fractures in the chest area (chest injuries). It is in evidence that the deceased's chest cavity was infected by a dangerous bacterium called Klebsiella. It is undisputed that the deceased died 5 days after being admitted to the hospital due to a lung infection. This court agrees with the defence counsel's submission that such bacterial infections are reasonably foreseeable in hospitals or medical wards following surgery.

PW6 acknowledged that the government has provided a procedure or guideline known as the "National Antimicrobial Guideline" for hospitals and clinics to follow in preventing such infections. In assessing this issue, it is necessary to evaluate the testimony of S/N K/li/b/seUy8Ynb1kheE6w PW6, who has medical expertise. PW6 stated that antibiotics are available to treat Klebsiella infections and clarified that if toxicology results had been obtained from the specimens sent, it would be known what antibiotics were present in the deceased's body. However, she emphasized that there are currently no such results available.

In my considered view, the pathologist who performed the post-mortem (PW6) categorized the cause of death into "chest injuries due to road transport crash" with underlying sepsis due to a "severe lung infection" (Klebsiella pneumonia). A local article discussed that Klebsiella pneumonia bacteremia is a leading cause of hospital morbidity and mortality, representing a serious public health concern and burden. The authors in the said article explained that Klebsiella pneumonia bacteremia was sub-categorized into:- a) community-acquired (CA). Infections obtained within 48 hours of hospital admission or after discharge from hospital are community-acquired; b) healthcare-associated (HCA). Patients with healthcare-associated infections are those who attended the emergency department or hospital clinic within the previous 5 to 30 days before acquiring the infection and were admitted to the hospital for two or more days within the last 90 days before a positive culture; and S/N K/li/b/seUy8Ynb1kheE6w c) nosocomial infections. Bloodstream infections acquired after 48 hours of hospital admission are considered nosocomial. (Lee TC et al., Clinical Characteristics and Outcomes of Klebsiella Pneumonia Bacteraemia in Adults (2023) IMJM 22(4), 74-81).

Therefore, this court accepts the defence counsel's argument that the inevitable collision did not cause the deceased to die immediately, where the deceased survived for 5 days in the hospital and passed away due to lung infection. The death due to lung infection raises doubt, and the cause of death, which include d two scenarios as stated in the post-mortem report, became mixed and not specified. Based on the above considerations, the court finds that the deceased's death could be due to a healthcare-associated lung infection or a bloodstream infection, as submitted by the defence counsel. Therefore, the prosecution has failed to prove the ingredient of the charge.

This court subjected the prosecution's evidences as adduced above to maximum evaluation and I asked myself: If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him based on the totality of the S/N K/li/b/seUy8Ynb1kheE6w evidence presented by the prosecution? If the answer is no, then a prima facie case has not been made out, and the accused should be acquitted (Public Prosecutor v. Mohd Radzi Bin Abu Bakar [2005] 6 MLJ 393, FC).

From the above conspectus, based on the evidence adduced, this court finds that the prosecution failed to establish the ingredients of the offence against the accused. I must add that it is not safe to convict the accused when such evidence is not credible, should the accused choose to remain silent. It is not the defence's responsibility to fill the gaps or clear the doubts in the prosecution's case (Public Prosecutor v Lee Jun Ho & Ors [2009]

The prosecution's case contains several material gaps, leading to insufficient evidence to sustain the charge. To me, this became a case insufficient to call for an answer (Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678, HC). It was ingeniously for this court to find that the benefit of the doubt must be given to the accused (PP v Tai Mei Yuen [2004] 4 MLJ 541, HC).

In conclusion, at the end of the prosecution’s case, I found that the prosecution had failed to make out a prima facie case against the accused. Hence, this court ordered that the accused be acquitted and discharged without calling for his defense. Dated this 12 August 2024 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Puan Sharina Farhana THE ACCUSED : Represented by COUNSEL Mr. Asim Ng bin Mohd Jaafar Ng & Ms. Carlreen Ang Tetuan Fahri, Azzat & Co., Petaling Jaya