Mohamad Nazri Bin Selamat v Pendakwa Raya (TA-41S-18-09/2025)

Every fatal road accident is a tragedy. But some tragedies arise not from deliberate recklessness, extreme speed, or wanton disregard for safety, but from a momentary lapse -- a fleeting loss of concentration, a split-second of drowsiness, a microsleep from which a driver awakens to find that catastrophe has already unfolded. This is such a case. The court's duty, however painful, is to resist the natural urge to equate tragic outcome with grave fault. The law draws careful distinctions between degrees of driver culpability, and those distinctions must be faithfully applied even - - perhaps especially -- when the consequences are most severe.

This is an appeal against the conviction and sentence passed by the Learned Magistrate at the Magistrates’ Court in Setiu, Terengganu. On 28 September 2025, the Appellant was convicted of a charge under Section 41(1) of the Road Transport Act 1987 and sentenced to five (5) years’ imprisonment from the date of conviction, a fine of RM20,000.00 (in default twelve months’ imprisonment), and disqualification from holding or obtaining a driving license for a period of five (5) years from the date of conviction.

Being dissatisfied, the Appellant filed a Notice of Appeal on 30 September 2025 and a Petition of Appeal on 5 January 2026. This court has heard the submissions of both parties, examined the appeal records, the written submissions, the reply submissions, and the authorities cited. The following are the grounds for this court’s decision.

The prosecution case, as adduced before the learned Magistrate, was as follows. On 25 April 2022 at approximately 4.00 p.m., at KM 75 of the Kuala Terengganu–Kota Bharu road (Kampung Air Sejuk), within the district of Setiu, Terengganu, a fatal road accident occurred involving three vehicles: a gold Toyota Unser MPV bearing registration number WJR 2608 driven by the Appellant; a red Proton Saga FLX bearing registration number WB 5719 Q driven by Mohammad Shafiee bin Ismail (SP2), which was also occupied by his wife Nurul Ain binti Zulkarnaeen (SP1) and their six-month-old son, Muhammad Qais Rizqi bin Mohammad Shafiee (the deceased); and a Honda Wave motorcycle bearing registration number VDE 1472 ridden by Liza binti Hasan (SP6).

According to the prosecution witnesses, the Appellant was driving the Toyota Unser from Kuala Terengganu towards Kota Bharu. At the material time, the road was straight, the weather was clear, and traffic was light. The Proton Saga was travelling in the opposite direction from Kota Bharu towards Kuala Terengganu. The prosecution alleged that the Appellant, while overtaking on double lines, crossed into the opposite lane (the lane of the Proton Saga) and collided with the left front side of the Proton Saga. This collision caused the Proton Saga to spin into the opposite lane, where it was subsequently struck by the motorcycle ridden by SP6. As a result of the collision, the infant Muhammad Qais Rizqi, who was being carried on SP1’s lap, sustained severe injuries including a depressed skull fracture, right shoulder fracture, left femur fracture, and radius fracture, and was pronounced dead at Hospital Setiu.

The Appellant faced a charge under Section 41(1) of the Road Transport Act 1987. As held in Mat Atan bin Ahmad v Public Prosecutor [2021] MLJU 2455 (HC) at paragraph 7, Section 41(1) contains three different limbs: Limb Description Limb (a) driving of a motor vehicle on a road recklessly which, having regard to all circumstances, is dangerous to the public and causes death. Limb (b) driving of a motor vehicle on a road at a speed which, having regard to all circumstances, is dangerous to the public and causes death. Limb (c) driving of a motor vehicle on a road in a manner which, having regard to all circumstances, is dangerous to the public and causes death. The original charge alleged only Limb (a) -- that the Appellant was "driving recklessly" (memandu secara melulu). The charge did not include the words "or at a speed or in a manner which... is dangerous to the public".

The charge was amended on 22 December 2024, just before the prosecution called its eighth and final witness, the investigating officer. The amended charge (Exhibit P22) removed Limb (a) (reckless) and instead alleged Limb (c) -- that the Appellant was "driving the vehicle in a manner which, after taking into consideration all circumstances (including the nature, condition and size of the road and the amount of traffic that is or might be expected to be on the road), is dangerous to the public". The Appellant was not charged under Limb (b) (dangerous speed). The Appellant claimed trial to the amended charge.

At the close of the prosecution case, the learned Magistrate found that a prima facie case had been established and called for the defence. The Appellant gave sworn evidence as the sole defence witness. At the conclusion of the trial, the learned Magistrate convicted the Appellant and sentenced him as stated above.

The central issues for this court’s determination are as follows:

The Appellant, through his counsel Encik Mohamad Nadzim bin Ibrahim submitted that the conviction was unsafe and should be set aside. Learned Counsel for the Appellant argued that the learned Magistrate failed to conduct a maximum evaluation of the evidence, relying heavily on the prosecution's witnesses without properly considering the contradictions that emerged during cross-examination.

Counsel highlighted that SP6, who was presented as an independent eyewitness, admitted during cross-examination that her police report (Exhibit P8) did not state that the Appellant's vehicle entered the opposite lane. When asked why this crucial detail was omitted, SP6 gave inconsistent answers, including that she was still in pain, did not have time, and did not understand the questions. Counsel submitted that this omission fundamentally undermined the reliability of SP6's oral testimony and that the learned Magistrate ought to have treated this as a material contradiction raising a reasonable doubt.

Counsel further argued that the point of impact was not proven conclusively. The rough sketch plan (Exhibit P4) was based on verbal information from the fire brigade, and the investigating officer (SP8) admitted that the brake marks depicted could be old marks from a previous accident. No forensic expert could confirm with certainty the precise location of the collision. Counsel submitted that when the point of impact itself is in doubt, the finding that the Appellant entered the opposite lane becomes speculative.

On the element of causation, learned Counsel for the Appellant contended that the death of the infant was not caused solely by the collision. It was undisputed that the deceased was carried on his mother's lap and was not secured in a child restraint system (car seat). The medical witness (SP5) agreed that the use of safety measures could reduce the severity of injuries. Counsel invoked the Court of Appeal's decision in Cantona Lim Xiang Kim v Public Prosecutor [2020] 1 MLJ 544 (CA) to argue that the failure to consider this intervening cause amounted to a misdirection, as the death could have been caused or aggravated by the absence of proper safety restraints.

On sentence, counsel submitted that the Appellant is a first offender, 53 years old, the sole breadwinner of his family, and had his driving licence suspended throughout the trial, causing financial hardship. The cases cited by the learned Magistrate herself showed a sentencing trend of around three years' imprisonment and fines between RM6,000.00 and RM8,000.00. The sentence of five years' imprisonment and a fine of RM20,000.00 was therefore manifestly excessive and failed to give due weight to the mitigating factors.

Alternatively, counsel submitted that if this court were to affirm a conviction, it should be under Section 43 of the Act (careless driving) rather than Section 41(1). Relying again on Cantona Lim Xiang Kim v Public Prosecutor (supra) counsel argued that the prosecution failed to prove the core element required for any limb of Section 41(1), and the facts at their highest only established a momentary error of judgment or ordinary carelessness. The Respondent’s Submissions.

The Respondent, through the Deputy Public Prosecutor, Noradila binti Ab Latif submitted that the appeal should be dismissed and the conviction and sentence affirmed. Learned DPP argued that the learned Magistrate had correctly evaluated the evidence and that the findings of fact were supported by the record.

Learned DPP contended that the Appellant’s defence was a bare denial. The three eyewitnesses (SP1, SP2, and SP6) consistently testified that the Appellant’s vehicle entered the opposite lane and collided with the Proton Saga. The fact that SP6’s police report did not contain the detail that the Toyota Unser entered the opposite lane was not fatal, as SP6 explained that she was still injured and had not written everything down. Moreover, SP6 remained firm during cross-examination that the Toyota Unser did enter the opposite lane and collided with the Proton Saga.

Learned DPP further argued that the forensic evidence (Exhibit P11) was consistent with the prosecution’s version: the left front of the Toyota Unser collided with the left front of the Proton Saga. The point of impact shown on the rough sketch plan (Exhibit P4) was based on debris at the scene, which was a reliable indicator. The investigating officer’s admission that brake marks might be old did not negate the eyewitness testimony. Learned DPP further argued that the Appellant's own police report (Exhibit P21) contained the admission "saya terlelap dan hilang kawalan" which corroborated SP2's testimony of the Appellant’s verbal admissions, and contradicted the Appellant's sworn defence.

On causation, learned DPP submitted that the absence of a child car seat was only a mitigating factor that could reduce the severity of injuries, but it was not an intervening cause that broke the chain of causation. The death was directly caused by the collision, and the medical evidence confirmed that the deceased died from polytrauma sustained in the accident.

On sentence, learned DPP submitted that the sentence was within the statutory limits and was appropriate given the gravity of the offence. The Appellant caused the death of a six-month-old infant, and the accident occurred during Ramadan before Hari Raya. The public interest required a deterrent sentence. The learned Magistrate had properly considered the mitigating factors but rightly concluded that a substantial sentence was warranted. COURT’S FINDINGS AND DECISION Preliminary: Principles of Appellate Intervention

This court is mindful of the well-established principle that an appellate court should be slow to disturb findings of fact made by a trial court, especially those based on the credibility of witnesses whom the trial judge had the advantage of seeing and hearing. In Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84 (FC), the Federal Court held that the appellate court will not interfere unless the balance of evidence is grossly against the conviction or the trial judge has acted on wrong principles. Similarly, in Lim Kheak Teong v Public Prosecutor [1984] 1 MLJ 38 (FC), the Federal Court reiterated that the appellate court must give proper weight to the trial judge's view of the credibility of witnesses.

However, appellate intervention is warranted where there has been a misdirection of law, a failure to properly appreciate the evidence, or where the conviction is unsafe. As the Court of Appeal stated in Cantona Lim Xiang Kim v Public Prosecutor (supra), the appellate court will intervene if it is convinced that there was no judicial appreciation of the evidence by the trier of fact and that the trial court was plainly wrong in arriving at its decision.

Having carefully reviewed the appeal records, the notes of evidence, the learned Magistrate's grounds of judgment, and the submissions of both parties, this court finds that there are substantial and compelling reasons to intervene in this case. ISSUE 1: Whether the conviction is safe The Effect of the Amendment to the Charge on the Fairness of the Trial

Before examining the factual evidence, this court must address a preliminary but material irregularity in the conduct of the trial below. As noted earlier, the Appellant was originally charged under Limb

(a) of Section 41(1) (reckless driving) but the charge was amended on 22 December 2024 to Limb (c) (dangerous manner of driving).

This court has carefully considered the effect of this amendment on the fairness of the trial. Section 158 of the Criminal Procedure Code permits a court to amend a charge at any time before judgment is delivered, provided the amendment does not prejudice the accused. See: Mohamad Yazri bin Minhat v PP [2003] 2 MLJ 241 (CA).

In the present case, this court finds that the amendment, while procedurally permissible, had a material prejudicial effect on the Appellant's defence strategy. The original charge (Limb (a) – reckless) required the prosecution to prove a subjective state of mind – that the Appellant either gave no thought to an obvious and serious risk of danger to the public, or having recognized such risk, nevertheless went on to take it (see Mat Atan Ahmad at paragraph 24). The amended charge (Limb (c) – dangerous manner) requires proof of an objective standard – whether the manner of driving, having regard to all circumstances, was dangerous to the public. These are distinct legal standards requiring different types of evidence and different lines of cross-examination.

The Appellant, throughout the early part of the trial, was led to believe that he was meeting a case of subjective recklessness. His cross-examination of the first seven prosecution witnesses was necessarily framed around that original charge. By the time the amendment was introduced (after seven witnesses had already testified), the Appellant had lost the opportunity to fully challenge those witnesses on the objective elements of Limb (c), such as the nature and condition of the road, the expected traffic, and whether an ordinary reasonable person would have viewed the manner of driving as dangerous. The Appellant could not recall the earlier witnesses to cross-examine them on the new legal standard.

Furthermore, the timing of the amendment -- after seven witnesses had given evidence and immediately before the eighth witness was called -- created a real risk of prejudice. The Appellant was effectively required to adjust his defence mid-stream, without the benefit of recalling the earlier witnesses to test their evidence against the newly worded charge. This court is mindful that the Appellant did not seek an adjournment to recall witnesses. However, the absence of such a request does not automatically cure the inherent unfairness where the very nature of the factual inquiry was altered. The burden of ensuring a fair trial rests on the court, not on the accused to remedy prosecutorial delay in amending a charge.

In the circumstances, while the amendment itself was not illegal, its timing and effect on the Appellant's ability to conduct his defence contribute to this court's broader finding that the conviction under Section 41(1) is unsafe. This factor, when considered together with the other weaknesses in the prosecution's case discussed below, further tilts the balance in favour of allowing the appeal against conviction. Evaluation of SP6's Evidence – A Material Contradiction

The prosecution's case rested heavily on SP6, who was presented as an independent eyewitness. Her testimony that the Appellant's vehicle entered the opposite lane was central to proving dangerous driving.

During cross-examination, a significant weakness in SP6's evidence emerged. SP6 admitted that her police report (Exhibit P8) -- made on 10 June 2022 -- did not contain any statement that the Toyota Unser had entered the opposite lane or collided with the Proton Saga. She admitted this detail was "amat penting" (very important) but conceded she did not write it down because she "tak sempat" (did not have time).

The legal principles governing the use of a police report to challenge a witness's credibility are well established. In Balachandran v Public Prosecutor [2005] 2 MLJ 301 (FC), the Federal Court held at paragraph 10 that a first information report can be used to contradict a witness under Section 145 of the Evidence Act 1950. The court further held at paragraph 12 that where a police report contradicts a witness, the evidence of the witness may be rejected because it may not pass the test of credibility and reliability on its own.

Applying these principles, the omission of the material detail -- the very act of the Toyota Unser entering the opposite lane -- is not minor. SP6's inconsistent explanations (in pain, no time, did not understand) were not credible. A police report made closest to the time of the incident, when memory is freshest, carries significant probative value.

Thus, beyond establishing that a collision occurred between the two vehicles, this court finds that SP6’s evidence is of no probative value on the critical question of whether, and to what extent, the Appellant entered the opposite lane. Point of Impact and Forensic Evidence

The learned Magistrate relied on the rough sketch plan (Exhibit P4) and the debris shown as point "B" to conclude that the impact occurred in the Proton Saga's lane. However, the Appellant raised legitimate concerns about the reliability of this plan.

The investigating officer (SP8) admitted that the sketch was prepared based on information received, including from the fire brigade, but no fire brigade officer was called to confirm the location of the debris. The photographs (Exhibit P2) did not clearly show the debris in the Proton Saga's lane.

More significantly, SP8 admitted that the brake marks depicted in the sketch could not be positively identified as belonging to any particular vehicle, and when asked whether they could be old marks from a previous accident, SP8 answered "Mungkin" (possibly). This admission fatally weakens the objective evidence that was supposed to corroborate the prosecution's version of the point of impact.

The chemical report (Exhibit P11) prepared by SP7 only established that the left front of the Toyota Unser collided with the left front of the Proton Saga. The report did not, and could not, determine in which lane the collision occurred. The forensic expert did not give any opinion on speed, evasive manoeuvres, or which vehicle crossed into which lane. In the absence of conclusive objective evidence, the prosecution's case on the point of impact depended entirely on the eyewitness testimony, which, as discussed above, was compromised by the SP6 contradiction.

The principle that where two reasonable inferences are possible, the court must adopt the inference favourable to the accused, is well-established. See: Tengku Adnan Tengku Mansor v PP [2022] 1 MLRA 1 (CA); Public Prosecutor v Kasmin Bin Soeb [1974] 1 MLJ 230 (HC); Samundee Devan Kerishnan Muthu v PP [2008] 2 MLRA 650 (CA); and Alan Soh Heng Liang v PP [2020] MLRAU 340 (CA).

In this case, the evidence equally permitted an inference that the collision occurred near the centre of the road or that both vehicles were attempting to avoid each other. The learned Magistrate erred by adopting the inference most favourable to the prosecution without adequately justifying why the alternative inference was not reasonably available. Causation and the Intervening Cause

The Appellant argued that the deceased was not secured in a child restraint system (car seat) and that this constituted an intervening cause that broke the chain of causation. The learned Magistrate dealt with this issue briefly, stating that the use of a car seat only reduces the severity of injuries and that the cause of death remained the dangerous driving.

The Court of Appeal's decision in Cantona Lim Xiang Kim v Public Prosecutor (supra) is highly relevant. In that case, the appellant was convicted under Section 41(1) for causing death by dangerous driving. The Court of Appeal substituted a conviction under Section 43 (careless driving) after finding that the prosecution had failed to prove the requisite fault element. More pertinently, the Court held that where there is an intervening cause, the trial court must consider whether the obvious and serious risk resulting in death was caused solely by the accused.

In this case, it was undisputed that the six-month-old infant was not secured in any child restraint system. Contrary to the mandatory requirement under Section 4B of the Motor Vehicles (Seatbelt and Child Restraint System) Rules 1978 (Amendment 2019), he was being carried on his mother's lap in the front passenger seat. The medical witness (SP5) agreed that the use of safety measures can reduce the severity of injuries. While this does not completely absolve the Appellant, it is a material factor that should have been weighed more carefully in the chain of causation. The absence of a car seat may well have contributed to the severity of the head injuries and the fatal outcome.

This court is not saying that the failure to use a car seat is a complete defence. However, in determining whether the prosecution has proved beyond reasonable doubt that the Appellant's dangerous manner of driving caused the death, the presence of another significant contributing factor -- especially one that was a breach of safety regulations by the deceased's own parents -- is relevant to the issue of reasonable doubt. The learned Magistrate should have considered whether, even if the Appellant drove dangerously, the death might not have occurred or would have been less severe if the infant had been properly secured. The failure to do so renders the finding on causation less than safe. The Appellant's Own Police Report (Exhibit P21)

The Appellant gave a sworn statement (PSD 1) in which he provided a detailed account of the incident. He stated that as he approached a slight bend, a vehicle from the opposite direction suddenly entered slightly into his lane. He was startled and took evasive action to the right, but could not avoid a collision, which he believed occurred in the middle of the road.

Nevertheless, the Appellant's police report made on 25 April 2022 (the same day as the accident) – in which the Appellant stated: "Setelah sampai di Jalan Kg Air Sejuk Setiu saya terlelap dan hilang kawalan. Apabila saya sedar kenderaan saya telah memasuki laluan bertentangan dari arah Kota Bharu – Kuala Terengganu dan telanggar dengan sebuah motokar jenis Proton Saga FLX No. WB 5719 Q di hadapan sebelah kiri”. (After arriving at Kampung Air Sejuk Road, Setiu, I dozed off and lost control. When I awoke, my vehicle had entered the opposite lane from the Kota Bharu – Kuala Terengganu direction and collided with the left front side of a motor vehicle, a Proton Saga FLX bearing registration number WB 5719 Q.)

The learned Magistrate noted at paragraph 49 of her Grounds of Judgment that the Appellant admitted during cross-examination that he made this report and that its contents were accurate. The prosecution properly used Exhibit P21 under Section 145 of the Evidence Act 1950 to contradict the Appellant's sworn defence. The Appellant was confronted with the inconsistency and gave explanations that the Magistrate found unconvincing.

The legal principles governing the use of a prior statement to contradict a witness are well established. In Balachandran v Public Prosecutor (supra), the Federal Court (Augustine Paul JCA) held at paragraph 10, quoting Chang Min Tat J in Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115 (HC), that: "The first information is a document of great importance... It is not a substantive piece of evidence and it is inadmissible for the purpose of proving that the facts stated in it are correct. But it can be used by way of corroboration or contradiction." The Federal Court further held at paragraph 11 that the evidentiary value of a first information report is to contradict the testimony of a witness under Section 145 of the Evidence Act 1950 or to corroborate his testimony under Section 157 of the same Act.

The Federal Court in Balachandran at paragraph 12 also addressed the consequence where a police report contradicts a witness's oral testimony. The court held: "If indeed it contradicts the evidence of a witness it is the duty of the defence to use it in order to attack the credibility of the witness." In this case, it was the prosecution who used Exhibit P21 to attack the Appellant's credibility. The prosecution properly discharged its duty by confronting the Appellant with his own prior inconsistent statement during cross-examination. The Appellant was given the opportunity to explain the contradiction. He did so, but the Magistrate found his explanations unconvincing.

The Federal Court in Balachandran at paragraph 12 further held that where a police report contradicts a witness, the evidence of the witness may be rejected because it may not pass the test of credibility and reliability on its own. The court stated: "Where it is not tendered in evidence in such a situation the evidence of the witness stands to be rejected; not because it lacks corroboration but because it may not pass the test of credibility and reliability on its own."

In this case, Exhibit P21 was tendered. The contradiction was exposed. The Appellant's sworn defence (PSD 1) contradicts his own contemporaneous police report. The Magistrate was entitled to reject the Appellant's sworn defence because it failed the test of credibility and reliability on its own, especially when weighed against his own prior statement made closest in time to the incident. In identifying microsleep as the cause of the accident, the Magistrate stated as follows: [28] Malah, pengakuan OKT kepada SP2 di hospital dan Balai Polis dan sebagaimana di dalam repot polis OKT (P21) bahawa beliau terlelap semasa dalam pemanduan sehingga menyebabkan kemalangan yang meragut nyawa Si Mati adalah keterangan relevan yang perlu diambil perhatian oleh Mahkamah. [29] Mahkamah berpandangan orang yang berpengalaman memandu tidak akan meneruskan pemanduan dalam keadaan mengantuk, dan bertindak memotong di kawasan selepas selekoh dan di kawasan garisan berkembar sebelum memastikan keadaan ada betul-betul selamat kepada semua pengguna jalan raya termasuk diri OKT sendiri. Keadaan ini jelas mewujudkan keadaan berbahaya kepada pengguna jalan raya yang lain. [30] Tindakan OKT yang tidak memberhentikan kenderaan dalam keadaan mengantuk, dan memandu dalam keadaan berbahaya dengan memotong kenderaan lain (motosikal SP6), memotong di garisan berkembar, dan memasuki laluan motokar SP2 sehingga menyebabkan kemalangan yang meragut nyawa si Mati dan kecederaan parah kepada SP1 jelas merupakan satu pemanduan yang berbahaya. Oleh itu, elemen kedua bagi kesalahan ini telah berjaya dibuktikan.

Having considered these facts, this court finds that the learned Magistrate did not err in her treatment of Exhibit P21. She properly admitted the document, the Appellant was properly confronted with it under Section 145, and the Magistrate was entitled to prefer the contemporaneous police report over the Appellant's later sworn defence. The Magistrate's finding that the Appellant's defence was a bare denial (paragraphs 54-66 of her Grounds of Judgment) is supported by the evidence, including Exhibit P21.

However, the critical question for this court is not whether Exhibit P21 was properly admitted or whether the Magistrate correctly rejected the Appellant's defence. The critical question is: what does Exhibit P21 prove as a matter of law?

This court finds that Exhibit P21, while properly admitted and properly relied upon by the Magistrate to reject the Appellant's defence, proves careless driving under Section 43(1), not dangerous manner of driving under Section 41(1) in Limb (c). The statement is an admission that the Appellant dozed off momentarily and lost control. This is a classic example of a failure to maintain proper control of a vehicle – a failure to exercise the standard of due care and attention expected of a careful and competent driver. It falls below the standard required by Section 43.

The higher threshold of dangerous manner of driving under Limb

(c) of Section 41(1) requires proof that the manner of driving, viewed objectively, was dangerous to the public having regard to all circumstances (see Ng Beng Kok v Public Prosecutor [2017] 7 CLJ 157 (CA)). The Court of Appeal in Cantona Lim Xiang Kim v Public Prosecutor (supra) held that it is not the law that merely because an accident happened which led to fatal consequences, it must show that the accused was driving in a manner dangerous to the public.

As held in Mat Atan Ahmad v Public Prosecutor (supra) at paragraph 23: "The danger is something worse than creating a risk of causing inconvenience or annoyance to other road users."

In this case, while the Appellant's conduct was undoubtedly careless and caused a tragic death, the evidence -- including Exhibit P21 -- does not establish that the Appellant's manner of driving was dangerous within the higher objective threshold required by Limb (c) of Section 41(1). The statement "saya terlelap dan hilang kawalan" is more consistent with a momentary lapse of attention (carelessness) than with a sustained pattern of objectively dangerous driving.

Accordingly, this court affirms the Magistrate's finding that Exhibit P21 is admissible and that the Appellant's defence was properly rejected. However, this court disagrees that Exhibit P21 (together with the other evidence) proves the offence under Section 41(1) beyond a reasonable doubt. Conclusion on Issue 1 -- Conviction Unsafe

Applying all the principles discussed above to the facts of this case, this court finds that the prosecution failed to prove that the Appellant's manner of driving was dangerous within the meaning of Limb (c) of Section 41(1) beyond a reasonable doubt.

The evidence, even if accepted in its entirety, shows that the Appellant went into the opposite lane, an event precipitated by a microsleep episode. That is undoubtedly a serious traffic violation. However, the totality of the evidence -- the straight road, the light traffic, the fact that the Appellant dozed off, the absence of evidence of excessive speed, the conflicting accounts of the point of impact, the material contradiction in SP6's evidence, the inconclusive forensic evidence, and the issue of causation -- does not rise to the level of "dangerous manner of driving" as defined in Ng Beng Kok and Mat Atan Ahmad.

The Learned Magistrate relied heavily on Public Prosecutor v Low Yong Ping [1961] 1 MLJ 306 (HC), where Ong J stated that leaving one's own side of the road and getting into the path of an oncoming vehicle is potentially fatal and falls within the definition of dangerous driving. However, that case was decided on its own facts, and the statement was made in the context of a case where the brake marks and other objective evidence clearly established that the accused was on the wrong side of the road. Moreover, the Court of Appeal in Cantona Lim Xiang Kim v Public Prosecutor (supra) and Ng Beng Kok v Public Prosecutor (supra) implicitly recognized that not every crossing into the opposite lane automatically amounts to dangerous driving under Section 41(1); it depends on the overall circumstances and the presence of "fault" falling below the care and skill of a competent driver.

Accordingly, this court finds that the conviction under Section 41(1) of the Road Transport Act 1987 cannot be sustained. It is set aside. ISSUE 2: Whether a conviction should nevertheless be sustained under Section 43 of the Road Transport Act 1987 Legal Basis for Substitution of Conviction

Under Section 394 of the Criminal Procedure Code, the High Court hearing an appeal from a subordinate court may confirm, reverse, or vary the decision of the subordinate court, and may exercise any power which the subordinate court might have exercised. This includes the power to substitute a conviction for a lesser offence if the facts proved support such a conviction.

In Cantona Lim Xiang Kim v Public Prosecutor (supra), the Court of Appeal, after setting aside the conviction under Section 41(1), substituted a conviction under Section 43(1) because it found that the prosecution had established a case for driving without due care and attention. Similarly, in Mat Atan bin Ahmad v Public Prosecutor (supra) at paragraphs 58 to 59, the High Court substituted a conviction under Section 43(1) after finding that the prosecution had failed to prove recklessness but had established that the appellant was certainly and beyond any reasonable doubt acting below the standard of care and attention of a reasonable competent and prudent driver. The Distinction Between "Dangerous Driving" and "Careless Driving"

Before applying these principles to the present case, it is useful to recall the legal distinction between dangerous driving under Section 41(1) and careless driving under Section 43(1). As held in Ng Beng Kok v Public Prosecutor (supra) and cited with approval in Mat Atan bin Ahmad v Public Prosecutor (supra) at paragraph 20, the important considerations in determining whether an accused was driving "dangerously" include the following: "(v) to drive dangerously must involve some 'fault' on the part of the defendant which caused the dangerous situation;

In Ramiah v Public Prosecutor [1972] 2 MLJ 258 (HC) (cited in Mat Atan Ahmad at paragraph 9), Raja Azlan Shah J (as His Highness then was) held that for a conviction under what is now Section 41(1), two things must be established by the prosecution: "First, there must be a situation created by the accused which, viewed objectively, is dangerous. ... 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'."

Critically, both Ng Beng Kok and Ramiah define "fault" as "a failure, a falling below the care or skill of a competent and experienced driver." This definition is equally applicable to both dangerous driving under Section 41(1) (Limb (c)) and careless driving under Section 43(1). The difference lies in the degree of the departure from the standard of a competent driver:

Applying these principles to the present case, this court finds that the prosecution has proved beyond reasonable doubt that the Appellant drove the Toyota Unser on a road without due care and attention and without reasonable consideration for other persons using the road, an offence under Section 43(1) of the Road Transport Act 1987. The evidence establishes the following:

(a) The collision resulted in the death of a six-month-old infant. The Classification of Microsleep as Careless Driving – Legal Principles

The classification of microsleep-related driving offences is not without judicial guidance. This court finds strong support in common law jurisprudence for treating a driver who dozes off momentarily (microsleep) as guilty of careless driving rather than dangerous driving. As stated in the English High Court decision in Kay v. Butterworth [1945] 173 L.T. 191 (HC): "If a driver allows himself to drive while he is asleep, he is at least guilty of the offence of driving without due care and attention because it is his business to keep awake. If drowsiness overtakes a driver while he is at the wheel, he should stop and wait until he shakes it off and is wide awake again. A person, however, who, through no fault of his own, becomes unconscious while driving ... ought not to be liable at criminal law."

This passage draws a clear distinction: a driver who falls asleep through no fault of his own is not criminally liable; but a driver who allows himself to drive while drowsy, or who continues driving when he should have stopped, is at least guilty of driving without due care and attention – the precise equivalent of Malaysia's Section 43(1).

In Bermuda, the Court of Appeal in Levince Roberts v The Queen [2021] CA (Bda) 9 Crim (CA) held that a driver who continued driving despite knowing he was drowsy, and then fell asleep, was properly convicted of driving without due care and attention. The court quoted Lord Goddard CJ in Hill v Baxter [1958] 1 QB 277 (HC) with approval: "If a driver finds that he is getting sleepy he must stop."

A careful and competent driver would recognise the signs of drowsiness and stop to rest. The Appellant failed to do so. He continued driving on a hot afternoon during Ramadan, while fasting, alone in the vehicle, and subsequently dozed off. This failure constitutes a clear breach of the duty to stop when sleepy.

The leading authority on unconscious driving is the decision of the High Court of Australia in Jiminez v The Queen (1992) 173 CLR 572 (HC). In that case, the appellant momentarily fell asleep while driving, his car veered off the road, struck a tree, and a passenger was killed. The Australian High Court held that actions committed while asleep are not "conscious or voluntary" and cannot found criminal liability. However, the Court accepted that a preceding period of dangerous driving could satisfy the contemporaneity element of the offence. Crucially, the Australian High Court stated: "If a person's condition is such that his actions are unconscious or involuntary, it does not matter what the cause is: he cannot be found guilty of an offence, whether statutory or otherwise, unless the acts which constitute it have been done voluntarily. ... A driver who drives when tired and drowsy may, depending upon all the circumstances, be guilty of driving in a manner dangerous to the public. But if he does fall asleep his actions during the period of sleep are neither conscious nor voluntary."

This court has also had regard to contemporary research and policy considerations as reflected in the Tasmania Law Reform Institute (TLRI) Final Report on “Criminal liability of drivers who fall asleep causing motor vehicle crashes” (October 2010) by R Bradfield & E Newitt. That Report comprehensively examined the scientific and legal issues surrounding drivers who fall asleep at the wheel. Of particular relevance to this case are two key takeaways from the TLRI's findings. First, the Report noted that a driver's awareness of their level of drowsiness is critical: a driver who recognised their drowsiness before a crash is less able to argue that they honestly and reasonably believed it was safe to continue driving. Second, and equally importantly, the TLRI highlighted scientific limitations -- specifically, that individuals in real-world conditions become less able to judge their own performance when sleepy, and that with some medical conditions, falling asleep is not necessarily preceded by a period of drowsiness. Critically, the TLRI rejected reform options that would have created a presumption that a driver who falls asleep must have had prior awareness of that risk. The TLRI ultimately recommended that the existing common law principles as set out in Jiminez should continue to apply -- namely, that the prosecution must prove fault in the period of driving before falling asleep, and that the defence of honest and reasonable mistake remains available.

The TLRI's considered position reinforces this court's conclusion that while a driver who continues driving despite recognised drowsiness may be criminally at fault, the level of that fault is properly assessed on a continuum. The tragic outcome alone does not automatically elevate carelessness to dangerous driving, nor does it justify reversing the burden of proof or presuming prior awareness. The TLRI's research thus supports this court's approach of carefully evaluating the Appellant's pre-sleep driving conduct, recognising the limitations of inferring subjective awareness, and concluding that the established facts fall within the realm of careless driving under Section 43 rather than dangerous driving under Section 41(1).

Applying this principle to the present case: The Appellant's actions during the period he was asleep (the microsleep episode) were neither conscious nor voluntary and cannot support a conviction for dangerous driving under Section 41(1). However, the Appellant's conduct prior to falling asleep -- continuing to drive while feeling fatigued during a hot Ramadan afternoon, while fasting, without stopping to rest – may constitute careless driving.

This court finds that the Appellant's prior conduct, while falling below the standard of a careful and competent driver, does not cross the higher threshold of "dangerous manner of driving" required by Section 41(1). It is properly classified as careless driving under Section 43(1). The "Prior Fault" Doctrine

This court further finds support in academic commentary on unconscious driving cases, which has identified a "prior fault" doctrine. The doctrine holds that a driver who becomes unconscious is not responsible where that state of affairs results from a cause beyond his or her control; however, if the driver's unconscious state results from a cause that lay within his or her control (and therefore could have been prevented), it is permissible to hold the person responsible. As J.P. McCutcheon aptly stated in "Involuntary Conduct and the Criminal Law: The Case of the Unconscious Driver" (International Journal of Law and Psychiatry) Vol. 21, No 3, pp. 305-314: “There is a qualitative difference between unconsciousness that results from an unexpected blow and that which results from a medical condition known to the accused. In the first case, the unconsciousness is not anticipated and there is nothing that the accused could be expected to do that would avoid that outcome. In the second case, the state of unconsciousness could be anticipated and the accused might be expected to take steps to avoid that state of affairs from arising."

Applying the prior fault doctrine to the present case, the Appellant's drowsiness was not the result of an unexpected medical condition or a sudden blow. Rather, it resulted from driving during a hot afternoon in Ramadan while fasting -- conditions that any reasonable driver would recognise as capable of causing fatigue and reduced alertness. The Appellant could have taken steps to avoid this outcome: he could have stopped to rest, taken a short nap, or ensured he was adequately hydrated and nourished during non-fasting hours before embarking on a long journey. His failure to do so constitutes prior fault that makes him responsible for the consequences of his subsequent unconsciousness. Nevertheless, and consistent with the TLRI's findings and the existing common law framework, this court concludes that the level of that fault is properly classified as carelessness under Section 43 rather than dangerous driving under Section 41(1). Conclusion on Issue 2 – Substituted Conviction Under Section 43

This court emphasises that the substitution of a conviction under Section 43(1) is not a finding that the Appellant bore no responsibility for the accident. On the contrary, the Appellant's own admission in Exhibit P21 – "saya terlelap dan hilang kawalan" – together with the fact that the accident occurred during Ramadan when he was fasting, establishes that the Appellant failed to exercise the standard of due care and attention expected of a careful and competent driver.

However, for the reasons elaborated throughout this judgment, this court concludes that the evidence does not cross the higher threshold required for dangerous manner of driving under Section 41(1). The distinction between the two offences is critical. As held in Mat Atan Ahmad at paragraph 23: "The danger is something worse than creating a risk of causing inconvenience or annoyance to other road users." A momentary lapse -- a dozing off that lasts only seconds -- may be dangerous in its consequences, but that does not automatically render the manner of driving dangerous within the objective legal standard.

The High Court of Australia in Jiminez explicitly recognised this distinction: a driver who falls asleep may be guilty of dangerous driving depending upon all the circumstances, but the actions during sleep are neither conscious nor voluntary. In this case, the surrounding circumstances -- a straight road, light traffic, no evidence of excessive speed, no aggressive or erratic driving, and no sustained pattern of objectively dangerous behaviour -- do not elevate the Appellant's conduct to the level of dangerous driving. The tragic outcome, while devastating for the deceased's family, does not retroactively elevate the level of fault. To hold otherwise would be to equate consequence with culpability -- an approach that finds no support in either the statutory framework or the common law principles that govern criminal responsibility.

Accordingly, having set aside the conviction under Section 41(1), this court substitutes a conviction under Section 43(1) of the Road Transport Act 1987. ISSUE 3: Sentence

Having substituted a conviction under Section 43(1), this court must now impose a fresh sentence. Section 43(1) provides: "43. Careless and inconsiderate driving

Section 43(2) provides for endorsement of the driving licence: " (2) The court shall, (unless for any special reason it thinks fit to order otherwise), order particulars of any conviction under this section to be endorsed on any driving licence held by the person convicted."

The court has considered the following mitigating factors: the Appellant is a first offender, aged 53, the sole breadwinner of his family with two children and a non-working wife, his driving licence was suspended throughout the trial causing him financial hardship, and he has expressed remorse. The court also notes that the Appellant had been on bail and attended all court hearings.

However, the court must also consider the aggravating factors. The Appellant's careless driving caused the death of a six-month-old infant. The impact on the family, particularly the parents who lost their only son, is devastating and lifelong. The offence of careless driving that results in death is serious and cannot be treated lightly. The public interest requires a sentence that reflects the gravity of the consequences and serves as a deterrent to other road users.

The court has considered the sentencing trends for offences under Section 43(1) of the Road Transport Act 1987. For cases involving death caused by careless driving, the courts have typically imposed fines at the higher end of the range (between RM7,000 and RM10,000) and, in some cases, short custodial sentences. However, each case turns on its own facts.

Taking all factors into account, this court orders that the Appellant be fined RM8,000.00, in default four (4) months' imprisonment. The court also orders, pursuant to Section 43(2) of the Road Transport Act 1987, that particulars of this conviction be endorsed on the Appellant's driving licence.

For the reasons set out above, this court makes the following orders:

(a) The appeal against conviction under Section 41(1) of the Road Transport Act 1987 is allowed. The conviction and sentence imposed by the Magistrate’s Court on 28 September 2025 are set aside.

(b) A substituted conviction under Section 43(1) of the Road Transport Act 1987 is entered against the Appellant.

(c) The Appellant is sentenced to a fine of RM8,000.00 (eight thousand ringgit), in default four months’ imprisonment.

(d) The court orders that the particulars of this conviction be endorsed on the Appellant’s driving licence pursuant to Section 43(2) of the Road Transport Act 1987.

(e) The bail money deposited if any, to be refunded. Dated: 4 June 2026 Yusrin Faidz Bin Yusoff Judge High Court of Malaya Kuala Terengganu Counsel for the Appellant / Accused: Mohamad Nadzim bin Ibrahim Messrs Azwan & Nadzim, No.67A, Jalan 2/16, Dataran Templer, Bandar Baru Selayang, 68100 Batu Caves, Selangor Darul Ehsan. Counsel for the Respondent / Prosecution TPR Noradila binti Ab Latif (Together with Muhammad Qayyim Irfan bin Baharuddin) Timbalan Pendakwaraya Negeri Terengganu, Pejabat Penasihat Undang-Undang Negeri Terengganu, Tingkat 14, Wisma Darul Iman, 20200 Kuala Terengganu, Terengganu Darul Iman.

Mat Atan bin Ahmad v Public Prosecutor [2021] MLJU 2455

Cantona Lim Xiang Kim v Public Prosecutor [2020] 1 MLJ 544

Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84 (FC).

Lim Kheak Teong v Public Prosecutor [1984] 1 MLJ 38 (FC).

Mohamad Yazri bin Minhat v PP [2003] 2 MLJ 241 (CA).

Balachandran v Public Prosecutor [2005] 2 MLJ 301 (FC).

Tengku Adnan Tengku Mansor v PP [2022] 1 MLRA 1 (CA).

Public Prosecutor v Kasmin Bin Soeb [1974] 1 MLJ 230 (HC).

Samundee Devan Kerishnan Muthu v PP [2008] 2 MLRA 650

Alan Soh Heng Liang v PP [2020] MLRAU 340 (CA).

Ng Beng Kok v Public Prosecutor [2017] 7 CLJ 157 (CA).

Public Prosecutor v Low Yong Ping [1961] 1 MLJ 306 (HC).

Ramiah v Public Prosecutor [1972] 2 MLJ 258 (HC).

Kay v Butterworth [1945] 173 L.T. 191 (HC).

Levince Roberts v The Queen [2021] CA (Bda) 9 Crim (CA).

Hill v Baxter [1958] 1 QB 277 (HC).

Jiminez v The Queen (1992) 173 CLR 572 (HC).

Sections 41(1) & 43(1) of the Road Transport Act 1987.

Sections 158 & 394 of the Criminal Procedure Code.

Sections 145 & 157 of the Evidence Act 1950.

Section 4B of the Motor Vehicles (Seatbelt and Child Restraint System) Rules 1978 (Amendment 2019)

Bradfield, R., & Newitt, E. (2010, October). Criminal liability of drivers who fall asleep causing motor vehicle crashes (Final Report No. 16). Tasmania Law Reform Institute.

McCutcheon, J.P. (1998). Involuntary Conduct and the Criminal Law: The Case of the Unconscious Driver. Vol. 21, No 3, pp. 305-314. International Journal of Law and Psychiatry.