Mariya Adisan A/L Tangarajah v Pendakwa Raya (KA-41S-3-06/2025)

This is an appeal by the accused against the decision of the learned Magistrate who convicted the appellant under section 41(1) of the Road Transport Act 1987 and sentenced the appellant to 45 months’ imprisonment and a Þne of RM13,000.00, in default 10 months’ imprisonment. The appellant was also disqualiÞed from holding a driving licence for four years and the particulars of the offence were endorsed on the driving licence.

The appellant in this case was charged under section 41(1) of the Road Transport Act 1987 as follows: “Bahawa kamu pada 22/06/2017 jam lebih kurang 5.40 am di KM 65.5 Lebuhraya Utara Selatan Arah Utara daerah Pendang di dalam Negeri Kedah sebagai pemandu motorbas BNH 2521 telah memandu kenderaan tersebut di atas jalan raya dengan cara dalam keadaan merbahaya sehingga menyebabkan kematian kepada Ruslan bin Saidin no. kad pengenalan 640608-02-5755 dan oleh yang demikan itu kamu telah melakukan satu kesalahan di bawah seksyen 41(1) Akta Pengangkutan Jalan 1987 (Akta A1065 Pindaan 1999) dan boleh dihukum di bawah seksyen yang sama”.

The facts deduced from the records showed that on 22.6.2017 at approximately 5.40 a.m., an accident occurred between a motorbus bearing registration number BNH 2521 (motorbus) and a motor lorry bearing registration number WTG7405 (motor lorry) at KM

65.5 of the North-South Expressway northbound.

The motorbus belonged to Trans MVS Express and was driven by the appellant on the day of the incident while travelling from Lukut, Negeri Sembilan to Hat Yai, Thailand.

The motor lorry belonged to UEM Edgenta Propel and at the material time was carrying three individuals, namely SP5, SP8 and the deceased, Ruslan bin Saidin. The motor lorry was driven by SP5 while the deceased sat beside the driver and SP8 sat in the rear passenger section. At the material time, SP5, SP8 and the deceased were on patrol duty along the North-South Expressway northbound within section N2 Gurun from KM 51.4 to KM 107.9 in the Pendang–Sungai Petani area, District of Pendang, Kedah.

The defence did not dispute that an accident occurred at the material time, date and place between the motorbus driven by the appellant and the motor lorry. It was contended that the motorbus was in the right lane when the motor lorry, from the left lane, suddenly swerved into its path, leaving the appellant insufÞcient time to avoid a collision and resulting in impact with the motor lorry’s rear right side.

After a full trial, the Magistrate convicted the appellant as charged and imposed sentence.

The issues arising in this appeal are:

(i) Whether all ingredients of the offence were established;

(v) Whether the appellant’s defence was duly considered;

Before exercising appellate jurisdiction, established legal principles require that due weight be given to the trial judge’s assessment of witness credibility. An appellate court should only interfere with such Þndings of fact where there are strong and compelling reasons (refer to the Federal Court decision in Amri Ibrahim & Anor v. PP [2017] 1 CLJ 617.

The Court of Appeal recently speaking through Evrol Marriette Peters JCA in Alliance Investment Bank Malaysia Berhad v. Gula Perak Berhad (In Liquidation) & Other Appeals [2026] 4 MLRA 907 has summarised the relevant principles pertaining to the appellate intervention. Such guidance is timely and I Þnd it necessary to produce the same in extenso: “[17] The starting point for an appellate court is the presumption that any decision appealed against is correct in every respect. Therefore, to succeed in these Appeals, the Appellants in the present case must convince this Court that the decisions appealed against are wrong; and if this court were not so convinced, these Appeals would fail. [18] This principle expounded in Watt Or Thomas v. Thomas [1947] AC 484 has been assimilated into Malaysian jurisprudence through several cases including Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors [2020] 6 MLRA 193; [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 8 AMR 227, UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 2 MLRA 668; [2018] Supp MLJ 363; [2010] 9 CLJ 785; [2011] 1 AMCR 338, and Ikris Bina Sdn Bhd v. Jianseng Construction Sdn Bhd [2019] MLRHU 1262; [2019] 8 AMR 45. [19] We also made reference to Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 6 MLRA 561; [2017] 3 MLJ 763; [2017] 5 CLJ 58, where the principles of appellate intervention were distilled by the Court of Appeal, through Harmindar Singh Dhaliwal JCA (as he then was) in the following passages: [20] Nevertheless there are occasions when appellate interference is warranted and these occasions have been well set out in numerous cases. Some of these occasions are:

(a) where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2009] 3 MLRA 617; [2010] 3 MLJ 509; [2010] 3 CLJ 377);

(b) where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 2 MLRA 593; [2009] 6 MLJ 1; [2009] 6 CLJ 626);

(c) where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1; [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781);

(d) where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2007] 3 MLRA 224; [2008] 2 MLJ 87; [2008] 2 CLJ 284);

(e) where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 1 MLRA 95; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357);

(f) where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 4 MLRA 457; [2013] 4 MLJ 693; [2013] 5 AMR 305 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 MLRA 706; [1984] 2 MLJ 165); and

(g) where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 2 MLRA 71; [2012] 4 MLJ 149). [20] However, this does not mean that the hands of the appellate court are tied. The exception to the general rule mentioned above is when the findings are clearly wrong: China Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal [1996] 1 MLRA 260; [1996] 2 MLJ 517; [1996] 3 CLJ 163; [1996] 1 AMR 2233; or where crucial evidence has been misconstrued, or disregarded: Multar Masngud v. Lim Kim Chet & Anor [1981] 1 MLRA 157; [1982] 1 MLJ 184; [1982] CLJ(Rep) 237; or if the trial judge is shown to have misdirected himself on the evidence, or to have rejected evidence for a wrong reason, or to have drawn an inference from evidence which was equally capable of supporting a different inference, it then may be the duty of an appellate court to interfere: Woon Ngee Yew And Ors v. Ng Yoon Thai And Ors [1940] 1 MLRA 481; [1941] 1 MLJ 37. [21] In Woon Ngee Yew and Others v. Ng Yoon Thai And Others, it was stated by McElwaine CJ in the following passage: An Appellate Court should be very loath to differ on a finding of fact by a Court which has seen and heard the witnesses but if the learned Judge can be shown to have misdirected himself on the evidence, or to have rejected evidence for a wrong reason or to have drawn an inference from evidence which was equally capable of supporting a different inference it may be the duty of an Appellate Court to interfere.” Ingredients of the offence

From the decided authorities, it is settled that the ingredients of the charge under Section 41(1) of the Road Transport Act 1987, which the prosecution must establish as applied to the case before the learned Magistrate, were:

(i) First Ingredient: the appellant was the driver of motor bus registration number BNH 2521 involved in the accident;

It is undisputed that the appellant was the driver of motorbus BNH 2521 at the material time. This was established through the investigation conducted by SP10, the testimony of SP6 (the second driver of the motorbus), and the police report lodged by the appellant (P15), in which he admitted driving the motorbus at the time of the incident. Second Ingredient

Section 41(1) of the Road Transport Act 1987 came to be examined in a number of cases. More recently by the Court of Appeal in Ng Beng Kok v PP [2017] 7 CLJ 157 where the Court has stated the following: “[17] The above section, in our view, creates three distinct offences, namely:

(a) driving of a motor vehicle recklessly;

(b) driving a motor vehicle at a speed; or

(c) driving a motor vehicle in a manner which having regard to all the circumstances (including the nature, condition and size of the road, and the amount of the trafÞc, which is or might be expected to be on the road) is dangerous. (See R v. Evans [1962] 3 All ER 1086) (emphasis added)

Counsel for the appellant submitted that there was absolutely no evidence adduced by the prosecution proving that the appellant drove dangerously.

In the instant appeal, the disputed issue was the cause of the accident, namely whether motor lorry WTG7405, from the left lane, suddenly swerved into the path of the motorbus BNH2521 driven by the appellant, leaving insufÞcient time to avoid impact and resulting in a collision with the motor lorry’s rear right side.

SP10 (the Investigating OfÞcer) testiÞed that on 22.06.2017 at about 0705 hours, he received information from the Pendang TrafÞc enquiry counter reporting an accident involving a motor lorry and a motorbus at KM65.5 North-South Expressway northbound involving a fatality.

SP10 conducted investigations at the scene by taking 12 photographs of the scene and vehicle involved (P4(A–L)) and two photographs of the deceased (P3(A–B)). SP10 also took measurements and prepared a rough sketch plan and key (P6 and

On the same day, SP10 received trafÞc report Pendang 759/17 (P15) lodged by the appellant and recorded the appellant’s statement at 13.32 hours. Subsequently, on 28.06.2017, SP10 received trafÞc reports Pendang 841/17 (P9) and 844/17 (P10) from the driver of the motor lorry (SP5) and recorded statements from SP5 and SP8 (passenger in the motor lorry).

At the material time, the appellant claimed that the lorry from the left lane had suddenly swerved into the path of the motorbus, thereby causing the collision. However, SP5 testiÞed that there were two lanes and that he had remained continuously in the left lane before being rear-ended by the motorbus driven by the appellant.

Two weeks later, SP10 received from SP4 a package containing the front and rear dashcam recordings of the motor lorry. These recordings were tendered in court as exhibit P7 and admitted through SP3 together with a certiÞcate under section 90A of the Evidence Act 1950 (P8).

According to SP10, the dashcam recording altered the course of the investigation as it clearly depicted how the accident occurred and contradicted the appellant’s report and statement.

The learned Magistrate found that the road was a highway with emergency, left and right lanes; its condition was good and the weather dry. Although the incident occurred early in the morning when it was dark, SP5 testiÞed that the motor lorry was Þtted with blinkers and signal lights, making it clearly visible to vehicles behind.

As to the cause of the accident, the learned Magistrate found from the front dashcam that the motor lorry remained in the left lane until the recording ended with the display ‘video lost’. The rear dashcam likewise showed the motor lorry travelling in the left lane, while the motorbus driven by the appellant was initially in the right lane before crossing the broken white lines into the left lane and approaching the motor lorry, whereupon the recording also terminated with ‘video lost’.

The Magistrate therefore found that the appellant drove dangerously by driving the motorbus at 100 km/h in the right lane before entering the left lane across the broken white lines and colliding with the rear of the motor lorry. Such driving was, not only dangerous but also not the conduct of a competent driver.

This Court Þnds that the learned Magistrate’s conclusions were well founded and supported by the evidence. SP5 testiÞed that he was driving in the left lane when he heard a loud impact from behind before losing consciousness. His testimony was corroborated by the dashcam footage showing the bus entering the left lane and approaching the motor lorry before the recording ended.

Counsel for the appellant argued that the point of impact could not be identiÞed as no photographs of the rear of the motor lorry were taken. The learned Magistrate rejected this submission, holding that the absence of photographs of the rear of the motor lorry did not negate the fact of the collision. Instead, the photograph exhibits P4(I) to (L) plainly demonstrate that the damage to the left front portion of the motorbus was consistent with the dashcam recording. The reasonable inference was that the collision occurred when the recording ended with ‘video lost’, involving the left front of the motorbus and the rear of the motor lorry. The impact caused the motor lorry to overturn and split into two, while the deceased, seated beside the driver, was ejected and died at the scene.

The Road Transport Act 1987 provides no deÞnition of ‘dangerous driving.’ It is therefore for the Court to determine what constitutes such conduct, with decided cases serving only as guidance and illustration – see Ng Beng Kok v PP (supra) where the Court of Appeal emphasised the issue in the following words: “[24] There is no deÞnition of "dangerous driving" under the RTA. It is open to the court to determine what amounts to "dangerous driving". Reported cases serves as a guide and illustrations. [25] Over the years, our courts have considered what can be categorised as "dangerous driving". Raja Azlan Shah J (as His Majesty then was) had the occasion to consider what constitutes "dangerous driving" in Ramiah v. PP [1972] 1 MLRH 124; [1972] 2 MLJ 258 (refd). Therein the accused was charged under s 34A (1) of the Road TrafÞc ordinance 1958 (the predecessor of s 41(1) of the RTA 1987). It was held that in proving that there was "dangerous driving", it must be shown that:

(i) there must be a situation created by the accused which, viewed objectively, is dangerous;

From the analysis of decided cases it can be deduced that the test applied is an objective test in determining dangerous driving. If an authority is required for that proposition reference may be made to the case of Ramiah v. PP [1972] 2 MLJ 258, where it was held that:

(i) there must be a situation created by the accused which, viewed objectively, is dangerous; and

Evaluating objectively the road conditions, absence of obstructions, and the presence of signal lights on the motor lorry, the learned Magistrate found beyond doubt that the appellant’s conduct in driving the motorbus at 100 km/h before entering the left lane and colliding with the rear of the motor lorry amounted to dangerous driving. The appellant’s conduct fell below the standard expected of a competent and prudent driver.

In PP v. Low Yong Ping [1961] 1 LNS 91; [1961] MLJ 306 at p. 307, Ong J held that leaving one’s proper side of the road and encroaching into the path of an oncoming vehicle is an act with potentially fatal consequences and squarely falls within the deÞnition of ‘dangerous driving’. This illustration mirrors the circumstances of the present appeal.

As such, this Court concurs with the learned Magistrate’s Þnding that the appellant drove dangerously, as established by SP5’s testimony, the dashcam recording, and the damage to the motorbus. There are no compelling grounds to disturb those Þndings. Whether the Dash board camera (Dashcam) Recording Was SufÞcient

The defence contended that the prerequisites for admissibility were not met, citing the dashcam footage as blurry and of poor quality, a broken chain of custody, and the failure to play the recording to witnesses for voice identiÞcation. Reliance was placed on Mohd Ali Jaafar v. PP [1998] 4 MLJ 210.

From the record of appeal, it is evident that exhibit P7, the dashcam footage, was admitted through SP3 together with a certiÞcate under Section 90A of the Evidence Act 1950. I Þnd that the learned Magistrate properly admitted the exhibit.

I do not think it can be disputed that dashcam footage depicting the incident is relevant under the relevancy provisions of the Evidence Act 1950, including Sections 6 and 7. Once relevance is established, the next question is admissibility, which for electronic evidence must comply with the Act’s requirements. Guidance may be drawn from Mohd Khayry bin Ismail v. PP [2014] 4 MLJ 317, where the Court of Appeal held that CCTV recordings are admissible under the doctrine of res gestae housed in Section 6, provided the court is satisfied as to their accuracy and that they have not been tampered with.

In the instant appeal the learned Magistrate correctly held that the conditions referred to in Mohd Ali Jaafar were merely guidelines and not mandatory requirements. Section 90B of the Evidence Act 1950 empowers the court to draw reasonable inferences.

The learned Magistrate found no facts or circumstances suggesting that the video had been tampered with or was not genuine.

Although there were discrepancies regarding the handover of the CD recording, the Magistrate held that these discrepancies did not prove tampering. Given that the incident occurred in 2017 while testimony was only given in 2023, such inconsistencies were reasonable.

Accordingly, based on the doctrine of res gestae, the dashcam recording was relevant and admissible as proof of its contents and constituted credible supporting evidence proving dangerous driving. Third Ingredient

The third ingredient was that the dangerous driving caused the death of Ruslan bin Saidin. SP5 and SP8 conÞrmed that the deceased was travelling with them in the motor lorry. IdentiÞcation of the deceased was made by SP1 (the deceased’s daughter), together with the investigating ofÞcer and SP9, the medical ofÞcer who conducted the post-mortem.

The defence challenged SP9’s qualiÞcations as an expert witness, arguing that the prosecution failed to prove she had previously testiÞed as an expert or was recognised as a forensic pathology expert.

A post-mortem report falls within the ambit of Section 399 of the Criminal Procedure Code, which governs the admissibility of expert reports such as those prepared by government medical ofÞcers and chemists. The provision facilitates criminal trials by allowing such reports to be admitted without requiring the maker to testify. In the present appeal, however, the doctor who conducted the post-mortem (SP9) was called and gave evidence regarding the report she had prepared.

The learned Magistrate found that SP9 was a medical ofÞcer holding grade UD54 in the Forensic Department of Hospital Sultanah Bahiyah with 12 years’ experience in forensic pathology. Her duties included conducting post-mortems and preparing reports. SP9 gave detailed and conÞdent testimony under cross-examination.

I Þnd that the Þnding of the learned Magistrate is well founded. There is no legal requirement for a post-mortem to be conducted exclusively by a forensic pathology specialist, as such duties may also be performed by a medical ofÞcer. SP9, a senior medical ofÞcer with 12 years of service in the Forensic Department, possessed sufÞcient expertise to discharge these responsibilities. Although not formally certiÞed as a specialist, SP9’s extensive experience in forensic practice satisÞed the requirement of a qualiÞed forensic medical practitioner.

Under Section 114(e) of the Evidence Act 1950, the Court may presume that ofÞcial acts have been regularly performed, and there was no evidence of impropriety on SP9’s part. From the evidence, SP9 testiÞed that the deceased was identiÞed by his daughter, Nurul Amira binti Ruslan (SP1). SP9 explained the procedure to the family, obtained background information from SP10, conducted external and internal examinations, and thereafter issued the medical ofÞcer’s certiÞcate (P14) and post-mortem report (P13) stating the cause of death. SP9’s testimony conÞrmed her Þndings and established that the procedure was properly conducted.

On this basis, the defence failed to adduce credible evidence to displace the presumption under Section 114(e). A mere challenge to SP9’s specialist qualiÞcations was inadequate. Accordingly, SP9’s testimony, together with the post-mortem report (P13), were properly admitted and relevant. Cause of Death 46. The defence argued that SP9 was uncertain about the cause of death because she was not a cardiologist and only two photographs of the body were taken. However, the Court found that SP9 clearly testiÞed that the cause of death was head injuries due to a road trafÞc accident and ruled out heart disease as a competing cause.

I am satisÞed that the deceased identiÞed by SP1, SP9 and SP10 was the same person involved in the accident. SP5 and SP8 conÞrmed that the deceased was seated in the front passenger seat, while SP2, SP4 and SP10 attested that his body was found at the scene. SP9’s testimony, together with the post-mortem report, established that the cause of death was head injuries sustained in the road accident.

It follows that the third ingredient is established, namely that the appellant’s dangerous driving caused the death of Ruslan bin Saidin.

On a maximum evaluation, all the ingredients of the offence are established, thereby disclosing a prima facie case against the appellant sufÞcient to call for his defence (Balachandran v. PP [2005] 1 CLJ 85).

The appellant contended that the motor lorry had suddenly entered the motorbus lane, thereby causing the collision. This defence, however, was unsupported by any evidence beyond the appellant’s own police report and statement. SP6, the second driver, was asleep throughout, had no knowledge of the incident, and thus could not lend support to the appellant’s contention.

The learned Magistrate held that although the police report and statement were made on the day of the incident, they did not establish the truth of the version advanced, as the dashcam recording had not yet been obtained. The recording later demonstrated that the motorbus crossed the broken white line, while the motor lorry remained in the left lane and never entered the right lane.

The learned Magistrate also observed the appellant’s demeanour during cross-examination, noting his refusal to admit that the motorbus had crossed the white line, even though this was plainly visible from the recording.

This Court is satisÞed that the learned Magistrate has considered the defence and correctly found that the appellant failed to raise a reasonable doubt while the prosecution has proved the case beyond reasonable doubt.

This Court holds that there was overwhelming evidence of the appellant’s dangerous driving and no basis to disturb the conviction. The conviction is safe and is accordingly afÞrmed.

In reviewing sentence, this Court is guided by the principle that interference is warranted only where the sentence is manifestly wrong in law or inappropriate to the facts and circumstances of the case.

The defence appealed on the basis that the appellant, aged 45, was a Þrst offender with no permanent employment due to his suspended licence and carried responsibility for three school-going children and his parents. The prosecution, however, emphasised the rising incidence of road accidents and that this incident claimed one life and injured two highway workers.

The learned Magistrate referred to the case of PP v. Morah Chekwube Chukwudi [2017] CLJU 864 which listed sentencing considerations including:

(a) the gravity or severity of the facts constituting the offence;

(b) the circumstances in which it was committed;

(c) the rampancy of such offence in the area;

(d) the offender’s previous record;

(e) the offender’s contribution and support to his family members;

(f) the offenders means;

(g) the effect of conviction and sentence on his job opportunities

(h) the age and health of the accused;

(i) whether it is his first offence;

(j) whether the accused had cooperated with the police after the commission of the offence;

(k) whether the accused had pleaded guilty;

(l) status of the accused;

(m) whether there was violence during the crime; and

(n) public interest, etc.”

The learned Magistrate also placed greater emphasis on public interest over the personal interests of the appellant, relying on the case of Azwel Mohd Ali v PP [2012] 6 CLJ 809.

After considering all submissions, the learned Magistrate sentenced the appellant to 45 months’ imprisonment from the date of conviction and a Þne of RM13,000, in default 10 months’ imprisonment. The court also ordered endorsement of the offence on the driving licence and disqualiÞcation from holding a driving licence for four years.

I hold that the sentence imposed was appropriate and within the jurisdiction of the learned Magistrate. There is therefore no basis to interfere with or vary the sentence.

In the upshot and for reasons adumbrated above the appellant’s appeal is dismissed, and the decision of the learned Magistrate is afÞrmed. I so order. Dated: 27 May 2026 ……………………….…………….……….. (MOHD AIMI ZAINI BIN MOHD AZHAR) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA ALOR SETAR, KEDAH For the Appellant: S.P. Raman Messrs. S. Raman & Co For the Respondent: Mohd Farhan Aliff bin Ahmad Deputy Public Prosecutor State of Kedah