Pendakwa Raya v KANNAN A/L LETCHUMANAN (A-09-133-05/2024)

the request for specimens of breath, blood and urine under sections 45B and 45C RTA from persons suspected of having committed an offence either under (a) sections 44 or 45 involving intoxicating liquor, or (b) section 45A for driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit; and

(ii) the tests of these specimens under the RTA and the Motor Vehicles (Breath, Blood and Urine Test) Rules 1995 (PU(A) 227/1995), made by the Minister under section 66 RTA (“BBU Test Rules”). [6] Therefore, in deciding whether the learned High Court Judge had correctly interpreted the RTA by holding (i) that the breath test under section 45B(1) RTA is “an initial breath test”, and (ii) that if the result of this “initial breath test” is positive, it is mandatory for the investigating officer to request the suspect to provide two further specimens of breath or a specimen of blood or urine under section 45C(1) RTA, this Court must interpret the RTA in accordance with the established principles of statutory interpretation — both at common law and under the Interpretation Acts1948 and 1967 (the “Interpretation Acts”). C. Principles of Statutory Interpretation [7] The basic tenet of statutory interpretation is the process of giving meaning to the words used in legislation: see Cross: Statutory Interpretation, 3rd Ed. (1995). As observed by Lord Bingham in R v Secretary of State for Environment, Transport and the Regions ex p Spath Holme Ltd [2001] 2 AC 349, (HL) at 388D, courts in interpreting any statute “the overriding aim of the court must always be to give effect to the intention of Parliament as expressed in the words used.” [8] The common law principles of statutory interpretation was summarised by the Federal Court in Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721; [2020] 7 CLJ 561; [2020] 5 AMR 579 (“Tebin Mostapa”). These principles are: first, in construing a statute, courts must give effect to the object and intent of Parliament in enacting the statute. Hence, courts in construing any statute must look at the words in the statute and apply the plain and ordinary meaning of the said words. Secondly, if the words are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Thirdly, the relevant provision of a statute must be read in accordance with the legislative purpose, especially where the literal meaning of the provision is clear and reflects the purpose of the enactment. [9] The principles of statutory interpretation summarised in Tebin Mostapa was referred with approval by the Federal Court in its majority judgment in AJS v JMH (and another Appeal) [2022] 1 MLJ 778; [2022] 1 CLJ 331; [2022] 1 AMR 617 (“AJS v JMH”), where Tengku Maimun Tuan Mat CJ (delivering the majority judgment of the Federal Court) reiterated that in interpreting statutes, courts should begin with the literal rule and that it should only use the purposive approach when there is ambiguity in the words of the statute. Literal Rule [10] Based on these settled common law principles of statutory interpretation, in construing and interpreting a statute, courts must first apply the literal rule. [11] Pursuant to the literal rule, courts must:

give effect to the object and intent of Parliament in enacting the statute;

read the relevant provisions of a statute in accordance with its legislative purpose;

interpret the words used by Parliament in the statute and to give effect to the words used by Parliament;

interpret the statute in a manner that advances the object and purpose of the enactment, so as to give full meaning and effect to the enactment in achieving its declared objective; and

construe the statute as a whole and the words used must be given their plain grammatical meaning. [12] Where the words of a statute are unambiguous, plain and clear, courts must give these words their natural and ordinary meaning. Courts cannot add or subtract any word in a statute: it ought not to read words into a statute unless a clear reason for it is to be found in the statute itself. Purposive Approach [13] A court’s duty when interpreting a statute is limited to interpreting the words used by Parliament — it has no power to fill in the gaps disclosed. Even if the words in a statute are ambiguous, the power and duty of courts "to travel outside them on a voyage of discovery are strictly limited". [14] If the words in the statutes are ambiguous or not clear, or where a literal reading of the provision bears two or more meanings, courts may use the purposive approach in construing the meaning of the words used: see Tebin Mostapa, AJS v JMH; and Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor And Other Appeals [2021] 1 MLJ 478, FC (“Dahan Cipta”). [15] In taking a purposive approach, a statute has to be read in the correct context. Courts may look at extraneous materials that bears on the background against which the legislation was enacted. Hansard and Parliamentary speeches may be referred to as interpretive aid: see Maple Amalgamated Sdn Bhd & Anor v Bank Pertanian Malaysia Bhd [2021] 6 MLJ 348; [2021] 8 CLJ 409, FC. The Interpretation Acts1948 and 1967 [16] In interpreting statutes, apart from using the aforementioned common law principles of statutory interpretation, courts must also comply with the requirements under the Interpretation Acts. [17] When using the purposive approach, regard must be had for the purpose of the statute as outlined in section 17A of the Interpretation Acts. Section 17A of the Interpretation Acts reads: In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. [18] Nonetheless, as discussed above, this regard to “the purpose or object of the Act” in the Interpretation Act has been interpreted by the Federal Court in Tebin Mostapa, AJS v JMH and Dahan Cipta as being secondary to the literal rule. [19] It is only if the words in the provision of the statute are ambiguous or unclear, or in interpreting the protective language of social legislation can courts use the purposive approach as provided in section 17A of the Interpretation Acts to interpret a statute. [20] Additionally, section 15 of the Interpretation Acts requires that the long title and preamble and every schedule to an Act shall be construed and have effect as part of the Act. Section 15 reads: The long title and preamble and every schedule (together with any note or table annexed to the schedules) to an Act or to any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation. [21] Furthermore, courts are required under section 16 of the Interpretation Acts to take notice of the division into parts or chapters of an Act. Section 16 reads: Where an Act or subsidiary legislation is divided into parts or chapters or otherwise, the fact and particulars of the division shall, without express mention thereof in the Act or subsidiary legislation, be taken notice of in all courts and for all purposes whatsoever. Interpretation of sections 44 and 45B to 45F RTA [22] The interpretation of sections 44 and 45B to 45F RTA is governed by section 45G RTA. Section 45G(1) RTA reads:

For the purposes of sections 44 and 45B to 45F- "breath test" includes a preliminary test for the purpose of obtaining, by means of a prescribed breathanalyser, an indication whether the proportion of alcohol in a person's breath, blood or urine equals or exceeds the prescribed limit; "fail" includes refuse; "police station" includes any place or conveyance authorized or appointed by the Inspector General of Police to be used as a police station; "prescribed limit" means-

22 microgrammes of alcohol in 100 millilitres of breath;

50 milligrammes of alcohol in 100 millilitres of blood; or

67 milligrammes of alcohol in 100 millilitres of urine. [23] Section 45G(2) RTA goes on to state:

A person does not provide a specimen of breath for a breath test or for analysis unless the specimen is sufficient to enable the test or the analysis to be carried out and provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved. D. Analysis and Findings of this Court

Breath test under section 45B(1) RTA ▪ When may a specimen of breath for a breath test be requested under section 45B(1) RTA? [24] Under section 45B(1) RTA, a police officer in uniform may require a person to provide a specimen of his breath for a breath test when the police officer has reasonable cause to suspect that:

the person has committed an offence under sections 44 or 45 RTA involving intoxicating liquor, or under section 45A for driving or being in charge of a motor vehicle with alcohol concentration above the limit; or

he was the driver of, attempted to drive, or was in charge of a motor vehicle in an accident involving one or more vehicles on a road or other public place. Section 45B(1)(a) and (b) RTA reads: 45B: Breath test

Where a police officer in uniform has reasonable cause to suspect-

that a person has committed an offence under section 44 or 45 involving intoxicating liquor or under section 45A: or

that a person was the driver of or attempted to drive or was in charge of a motor vehicle in an accident involving one or more vehicles on a road or other public place, he may, subject to section 45D require that person to provide a specimen of breath for a breath test. [25] The offences under sections 44, 45 and 45A RTA are offences of driving under the influence of intoxicating liquor or drugs (section 44); being in charge of a motor vehicle under the influence of intoxicating liquor or drugs (section 45); and driving or being in charge of motor vehicle with alcohol concentration above prescribed limit (section 45A). [26] It is an offence for a person when required to provide a specimen of his breath to fail to do so without reasonable excuse. Section 45B(4) states:

A person who, without reasonable excuse, falls to provide a specimen of breath when required to do so in pursuance of this section shall be guilty of an offence and shall on conviction be punished with imprisonment for a term not exceeding two years and a fine of not less than ten thousand ringgit and not more than thirty thousand ringgit and, in the case of a second or subsequent conviction, with imprisonment for a term not exceeding five years and a fine of not less than twenty thousand ringgit and not more than fifty thousand ringgit. ▪ Who are the persons that may be asked to provide a specimen of breath under section 45B(1) RTA? [27] The offences under section 44 RTA are for driving a motor vehicle on a road or other public place under the influence of intoxicating liquor or drugs, to such an extent as to be incapable of having proper control of the motor vehicle; or having so much alcohol in his body that the proportion of it in his breath, blood or urine exceeds the prescribed limit. And a person commits an offence under section 45 RTA for being in charge of a motor vehicle, which is on a road or other public place, but not driving the vehicle, is unfit to drive in that he is under the influence of intoxicating liquor or of a drug to such an extent as to be incapable of having proper control of a motor vehicle. [28] However, in respect of offences under sections 44 and 45 RTA, under section 45B(1)(a) RTA the power of a police officer in uniform to require a person to provide a specimen of breath is for offences involving intoxicating liquor only and not for that involving drugs. [29] Therefore, the persons who may be asked to provide a specimen of breath for a breath test under section 45B(1) are those who a police officer in uniform have reasonable cause to suspect to have a committed an offence under sections 44 or 45 involving intoxicating liquor or section 45 RTA, i.e. driving or being in charge of a motor vehicle while under the influence of intoxicating liquor or with alcohol concentration above the prescribed limit. ▪ Who may ask for a specimen of breath under section 45B(1) RTA? [30] A police officer in uniform who has reasonable cause to suspect a person is driving or being in charge of a motor vehicle while under the influence of intoxicating liquor or with alcohol concentration above the prescribed limit. ▪ Who may conduct the breath test under section 45B(1) RTA? [31] Only a police officer can conduct the breath test under section 45B(1) RTA. [32] Section 45(3) RTA states that the breath test under section 45B(1) shall be conducted by the police officer who made the requirement or any other police officer. Section 45B(3) reads:

A breath test required under subsection (1) shall be conducted by the police officer making the requirement or any other police officer. ▪ Where can a specimen of breath be required to be provided for a breath test? [33] A specimen of breath for a breath test under section 45B(1) RTA may be required to be provided at either one of these three places: (i) at the place where the requirement was made; (ii) near the place where the requirement was made; or (iii) at a police station. Section 45B(2) states:

A person may be required under subsection (1) to provide a specimen either at or near the place where the requirement is made or, if the requirement is made under paragraph (1)(b) and the police officer making the requirement thinks fit, at a police station specified by the police officer.

Provision of specimens for analysis under section 45C(1) RTA ▪ When may a person be required to provide specimens under section 45C(1) RTA? [34] Under section 45C(1) RTA, a police officer in the course of an investigation of the offence may request a person suspected to have committed an offence under section 44 or section 45 RTA involving intoxicating liquor, or under section 45A RTA for driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit, to provide two specimens of breath, or a specimen of blood or a specimen of urine. Section 45C(1) RTA states: 1) In the course of an investigation whether a person has committed an offence under section 44 or 45 involving intoxicating liquor or under section 45A a police officer may, subject to the provisions of this section and to section 45D, require him-

to provide two specimens of breath for analysis by means of a prescribed breathanalyser; or

to provide a specimen of blood or urine for a laboratory test, notwithstanding that he has been required to provide a specimen of breath for a breath test under subsection 45B(1). ▪ Who may ask for the specimens? [35] The specimens may be asked by the investigating officer (“IO”) i.e., a police officer in the course of an investigation of a person suspected to have committed an offence under sections 44 or 45 involving intoxicating liquor, or under section 45A: see section 45C(1) RTA. ▪ What specimens may be requested? [36] In contrast to section 45B(1) RTA, which only allows for the request of a specimen of breath by a police officer in unform, under section 45(1), an IO may request from a suspect: (i) two specimens of breath for analysis by means of prescribed breathanalyser; or (ii) one specimen of blood or urine for a laboratory test: see section 45C(1) RTA.

Specimen of breath [37] Pursuant to section 45C(1) RTA, an IO, in the course of investigation of a suspect of offences under sections 44, 45 or 45A, may ask the suspect to provide two specimens of breath even if the suspect had been asked to provide a specimen of breath for a breath test under section 45B(1) RTA: see section 45C(1) RTA.

(ii) Specimen of blood or urine [38] Additionally, an IO may ask the suspect to provide a specimen of blood or urine even though: (i) he had already provided a specimen, or (ii) had been asked to provide two specimens of breath: see section 45C(4) RTA reproduced in para. [44] below. [39] However, an IO may only ask for either a specimen of blood or a specimen of urine: he cannot ask for specimens of both blood and urine. Section 45C(5) RTA expressly states that for specimens other than breath, the police officer asking for the specimen shall, subject to medical advice, decide whether the specimen is blood or urine. Section 45C(5) RTA states:

Where a specimen other than a specimen of breath is required, the police officer making the requirement shall, subject to medical advice, decide whether it is to be a specimen of blood or urine. [40] Moreover, the form in the Fourth Schedule of the BBU Test Rules requires that the police officer who is requesting for the analysis of the blood or urine sample to delete either one on the form. An image of the request form is reproduced below: [41] Therefore, the specimens that may be requested by an IO in the course of investigation a person suspected of having committed an offence under sections 44 or 45 involving intoxicating liquor, or under section 45A are: (i) two specimens of breath, and/or (ii) a specimen of (a) blood or (b) of urine. ▪ Where can the specimens be requested? [42] Specimen of breath: In contrast to a police officer in uniform’s power to request for a specimen of breath for a breath test under section 45B RTA, a police officer may only request for a specimen of breath under section 45C at a police station. Section 45C(2) RTA states:

A requirement under this section to provide a specimen of breath can only be made at a police station. [43] Specimen of blood or urine: Pursuant to section 45C(4) RTA, a police officer may only request a sample of blood or urine at (i) a police station, or (ii) a hospital. [44] Nonetheless, a specimen of blood or urine cannot be requested at a police station unless:

the police officer requesting for the specimens have reasonable cause to believe that for medical reasons that a specimen of breath (i) cannot be provided, or (ii) should not be required; or

at the time the request is made, (i) the prescribed breathanalyser is not available at the police station, or (ii) it is not practicable to use the breathanalyser for any other reason. Section 45C(4) RTA states:

A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital, but it cannot be made at a police station unless-

the police officer making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required; or

at the time the requirement is made, the prescribed breathanalyser is not available at the police station or it is for any other reason not practicable to use the breathanalyser, and may be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

Where a specimen other than a specimen of breath is required, the police officer making the requirement shall, subject to medical advice, decide whether it is to be a specimen of blood or urine. [45] Therefore, pursuant to section 45C(4) RTA, a police officer may only ask for a specimen of blood or a specimen of urine at a police station if:

he has reasonable cause to believe that (i) the suspect cannot provide a specimen of breath, or (ii) a specimen of breath should not be asked from the suspect; or

if the prescribed breathanalyser (i) is not available at the police station, or (ii) is not practicable to use for any reason.

Breath Test under section 45C RTA ▪ Where must the breath test under section 45C be conducted? [46] Under section 45C(2) RTA, a breath test under section 45C must be conducted at a police station. Section 45C(2) reads:

A requirement under this section to provide a specimen of breath can only be made at a police station. ▪ Who may conduct the breath test under section 45C RTA? [47] Pursuant to section 45C(3) RTA, and the BBU Test Rules (rule 4 and item 1 of the First Schedule), a breath test can only be conducted by a police officer not below the rank of sergeant or by the officer in charge of the police station, who has been trained and duly authorised to operate the breathanalyser. Section 45C(3) reads:

A breath test under this section shall only be conducted by a police officer not below the rank of sergeant or by an officer in charge of a police station and shall only be conducted at a police station. Item 1 of the First Schedule of the BBU Test Rules states:

The breath test shall be carried out by a police officer who has been trained and duly authorised to operate the breathanalyser. ▪ How must a breath test under section 45C be conducted? [48] Pursuant to section 45C(1)(a) RTA, the two specimens of breath provided under section 45C are to be analysed by a prescribed breathanalyser. [49] A breath test must be conducted in accordance with the BBU Test Rules. Rule 4 of the BBU Test Rules stipulates that the police officer must conduct breath test in accordance with the procedures set out in the First Schedule of the Rules. Rule 4 reads:

Breath test Where a police officer requires a person to provide specimens of breath for a breath test under section 45C of the Act, the police officer shall conduct the breath test in accordance with the procedures as set out in the First Schedule. [50] The procedures in the First Schedule of the BBU Test Rules for conducting a breath test under section 45C RTA are reproduced below: FIRST SCHEDULE PROCEDURES IN BREATH TEST (Rule 4)

The breath test shall be carried out by a police officer who has been trained and duly authorised to operate the breathanalyser.

No person shall be required to undergo a breath test within twenty minutes of his taking of any type of food, drink (alcoholic or otherwise), mouthspray or any type of medication.

No person shall be required to undergo a breath test within five minutes of his smoking.

No breath specimen may be taken from any person unless he is first informed of the requirement to provide two specimens of breath in the manner provided by the Act.

The police officer conducting the test shall ensure that the breathanalyser has been issued with the certificate of fitness pursuant to rule 5 of the Motor Vehicles (Breath, Blood and Urine Tests) Rules 1995 and thereafter conduct the test in the following manner:

attach a new mouthpiece to the breath tube;

instruct the person to blow through the mouthpiece in one long continuous breath until his breath specimen is accepted by the breathanalyser for an analysis;

note in writing the reading given by the evidential breathanalyser;

repeat the procedure as in paragraph (b);

note in writing the reading given by the breathanalyser and thereafter inform the person of this reading and the reading referred to in paragraph (c);

sign the print-out indicating such information and details as the Chief Police Officer may determine from time to time and ensure that the said print-out is also signed by the person; and

give a copy of the print-out referred to in, paragraph (f) to the person.

Blood Test under section 45C RTA [51] Where a police officer requires a suspect to provide a specimen of blood to determine whether the proportion of alcohol in the said specimen exceeds the prescribed limit, rule 6 of the BBU Test Rules stipulates that the specimen of blood shall be taken in accordance with the advice of an analyst. Rule 6 of the BBU Test Rules reads:

Blood test Where a police officer requires a person to provide a specimen of blood for a blood test to determine whether the proportion of alcohol in the specimen exceeds the prescribed limit, the blood specimen shall be taken in accordance with the advice of an analyst. [52] The specimen of blood may only be taken by a government medical officer. Section 45F(3) expressly states that a specimen of blood shall be disregarded unless it is taken by a government medical officer. Section 45F(3) reads:

A specimen of blood shall be disregarded unless it was taken from the accused by a government medical officer; and evidence that a specimen of blood was so taken may be given by the production of a document purporting to certify that fact and signed by a government medical officer. [53] Pursuant to section 45C(1)(b) RTA read with rule 8(1) of the BBU Test Rules, the analysis of the specimen of blood taken from the suspect must be analysed by a laboratory test conducted by an analyst. [54] Under rule 8 of the BBU Test Rules, the request for the analysis must be made by the police officer must be in the form set out in the Fourth Schedule of the BBU Test Rules, and the result of the analysis must be in the form set out in the Fifth Schedule of the said Rules. Rules 8(1) and 8(2) read:

Analysis by analyst

The request for analysis of a urine or a blood specimen by an analyst shall be made in the form as set out in the Fourth Schedule.

A certificate of the result of an analysis by an analyst shall be in the form as set out in the Fifth Schedule.

Urine Test under section 45C RTA [55] Where a police offices requires a suspect to provide a specimen of urine to determine whether the proportion of alcohol in the said specimen exceeds the prescribed limit, rule 7 of the BBU Test Rules stipulates that the police officer shall conduct the urine test in accordance with procedures prescribed in the Third Schedule of the BBU Test Rules. Rule 7 of the BBU Test Rules reads:

Urine test Where a police officer requires a person to provide a specimen of urine for a urine test to determine whether the proportion of alcohol in the specimen exceeds the prescribed limit, the police office shall conduct the urine test in accordance with the procedures as prescribed in the Third Schedule. [56] The procedures for taking a urine specimen by a police officer in the Third Schedule of the BBU Test Rules is reproduced below: THIRD SCHEDULE PROCEDURES ON THE TAKING OF URINE SPECIMEN BY A POLICE OFFICER (Rule 7)

The person shall be provided with two clean bottles with covers and where the person is a woman, she may also be provided with a beaker and in such a case she shall fill the beaker with her urine and shall thereafter transfer the content into the bottles.

A police officer shall take all reasonable measures to ensure that the person fills the bottles or beakers, as the case may be, with his or her own urine.

The amount of urine required for a specimen shall not be less than 30ml., or 2/3 content of the bottle, for each 50ml. bottle.

The bottles containing the urine specimens shall be sealed and labelled with the following details:

name of the person;

identity card number of the person;

date of birth of the person;

police report or reference number;

date of the taking of urine specimen;

signature of the person; and

such other information as the Chief Police Officer may deem fit.

Upon compliance with the above-mentioned requirements, the bottles shall immediately be sent for a laboratory test to be conducted by an analyst. [57] As with a specimen of blood, a specimen of urine must also be analysed by an analyst in a laboratory, where the request form for the analysis must be in the form set out in the Fourth Schedule of the BBU Test Rules. Similarly, the test result for the urine specimen must also be in the form of a certificate set out in the Fifth Schedule of the said Rules: see section 45C(1)(b) RTA, rule 8(1)(a) and (b), and the Fourth and Fifth Schedules of the BBU Test Rules.

Evidence in proceedings for offences under sections 44 or 45 involving intoxicating liquor and under section 45A RTA [58] Section 45F RTA governs the evidence in proceedings for offences under sections 44 or 45 involving intoxicating liquor and under section 45A. Section 45F(2) provides that evidence of the proportion of alcohol in a specimen of breath, blood or urine may be given either by:

a statement automatically produced by a prescribed breathanalyser and a certificate signed by a police officer confirming that the statement automatically produced by the breathanalyser relates to specimen provided by the accused at the date and time shown in the statement; or

(ii) a certificate signed by a government medical practitioner or a government chemist as to the proportion of alcohol in the specimen of blood or urine identified in the certificate. Section 45F(2) RTA reads:

Evidence in proceedings for an offence under sections 44 and 45 involving intoxicating liquor and section 45A ……………

Evidence of the proportion of alcohol in a specimen of breath, blood or urine may, subject to subsections (4) and (5), be given by the production of a document or documents purporting to be either-

a statement automatically produced by a prescribed breathanalyser and a certificate signed by a police officer (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the accused at the date and time shown in the statement; or

a certificate signed by a government medical practitioner or government chemist as to the proportion of alcohol found in a specimen of blood or urine identified in the certificate. …………. [59] Furthermore, sections 45F and 45G RTA do not stipulate that evidence of alcohol in the specimen of breath, in proceedings under sections 44 or 45 involving intoxicating liquor and section 45A, must be provided by the accused under both section 45B and section 45C. [60] Additionally, “breath test” for the purposes of sections 44 and 45B to 45F, as defined in section 45G RTA, includes a “preliminary test for the purpose of obtaining, by means of a prescribed breathanalyser, an indication whether the proportion of alcohol in a person's breath, blood or urine equals or exceeds the prescribed limit”. [61] Neither section 45F nor section 45G RTA state that a “breath test” is an “initial breath test” — as held by the learned High Court Judge. The learned High Court Judge stated in paragraph 14 of his grounds of judgment that if the “preliminary breath test is positive” then the IO is duty bound to request for and test the specimens of breath or blood or urine under section 45C(1)(a) or (b) RTA. [62] We are not certain as to what the learned judge meant by “preliminary breath test is positive”. The word “positive” is not in any of the provisions in sections 44 to 45G RTA. [63] Moreover, section 45G RTA defines “breath test” to include a preliminary test for the purpose of obtaining by means of a prescribed breathanalyser an indication of whether the proportion of alcohol in a person’s breath exceeds the prescribed limit. The “prescribed limit” for alcohol is defined in section 45G as 22 milligrammes of alcohol in 100 millilitres of breath. [64] Furthermore, under section 45F, the evidence of the proportion of alcohol in a specimen of breath against an accused for offences under sections 44 and 45 involving intoxicating liquor and section 45A RTA is “a statement automatically produced by a prescribed breathanalyser and a certificate signed by a police officer …….. that the statement relates to a specimen provided by the accused at the date and time shown in the statement”. [65] Both section 45F and section 45G RTA do not state that the breath test conducted under section 45B is an initial breath test or that “if positive” the IO is obliged to request for further specimens of breath or specimens of blood or urine under section 45(1) RTA. [66] The words in sections 44 to 45G RTA are plain and unambiguous. Based on the established principles of statutory interpretation, the High Court is under a duty to interpret the words used by Parliament in the RTA and to give effect to the said words. [67] The High Court failed to take into account that, under section 45F RTA, the evidence for the offence of driving or being in charge of a motor vehicle under the influence of intoxicating liquor under sections 44 and 45 RTA and for driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit under section 45A is either (i) a statement automatically produced by a prescribed breathanalyser and a certificate signed by a police officer that the statement relates to a specimen provided by the accused at the date and time shown on the statement produced by the prescribed breathanalyser; or (ii) a certificate signed by a government medical practitioner or government chemist as to the proportion of alcohol found in a specimen of blood or urine identified in the certificate. [68] Section 45F does not state that the evidence of the said offences under sections 44 or 45 involving intoxicating alcohol or section 45A is a statement produced by the prescribed breathanalyser pursuant to an initial breath test under section 45B and a statement produced by a breathanalyser of a breath test under section 45C or a certificate signed by a government medical practitioner of blood or urine test of a blood or urine test conducted under section 45C after the “initial breath test” conducted under section 45B RTA. [69] For this reason, we find that the High Court fell into error and was plainly wrong to have read words into the RTA — that the breath test under section 45B was an “initial breath test” and that the breath test, or blood or urine test under section 45C is mandatory if the “initial breath test” under section 45B was “positive” — when no such words are stated in the said sections RTA. [70] Further, we find that the High Court was plainly wrong to hold based on Rule 4 of the BBU Test Rules that a police officer is under a legal duty to procure two specimens of breath for the breath test under section 45B(1) RTA. Rule 4 of the BBU Test Rules expressly state that the procedures in the First Schedule of the BBU Test Rules are applicable for breath tests conducted under section 45C RTA. Nowhere does it state that it is applicable for breath tests conducted under section 45B RTA. Similar to what it did with sections 45B and 45C RTA, the High Court had read words into the BBU Test Rules where none exist. Rule 4 of the BBU Test Rules reads:

Breath test Where a police officer requires a person to provide specimens of breath for a breath test under section 45C of the Act, the police officer shall conduct the breath test in accordance with the procedures as set out in the First Schedule. [Emphasis added] E. Conclusion [71] For these reasons, we find that the High Court’s decision in holding that the breath test or blood or urine test under section 45C RTA is mandatory for offences under sections 44 and 45 involving intoxicating liquor and section 45A for driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit, and the High Court’s setting aside of the respondent’s conviction under section 45A(1) RTA were plainly wrong and warrants this Court’s appellate intervention. [72] Although the DPP during the hearing of this appeal orally informed us that he is not proceeding with the appeal against the respondent’s acquittal, he did not withdraw the appeal against the acquittal. Additionally, the fact that the respondent’s acquittal was based on the High Court’s wrong construction and interpretation of the RTA, means that the acquittal was unsafe. [73] Therefore, the High Court’s decision is set aside. The Magistrate’s conviction of the respondent under section 45A(1) RTA is restored. [74] Based on the facts and the submissions by both parties, and taking into account that this is the respondent’s first offence, he is employed as a bank officer, and his offence did not cause or result in any accident, injury to any third party and/or damage to property, we hereby exercise our discretion to set aside the sentence of 14 days imprisonment by the Magistrates’ Court and substitute it with a sentence of one day imprisonment with effect from today. [75] As for the sentence of a fine, we hereby increase the amount of fine from RM10,000 to RM15,000, in default six months imprisonment. The order of suspension of his driving licence for a period of two years is affirmed. Dated: June 17, 2025 -sgd- (FAIZAH JAMALUDIN) JUDGE COURT OF APPEAL MALAYSIA COUNSEL FOR THE APPELLANT: Mohd Fairuz Bin Johari [Attorney General's Chambers] COUNSEL FOR THE RESPONDENT: Shivdev Singh (together with Kaladevi A/P Chandrasekaran) [Messrs L.H. Singh & Co.]