Pendakwa Raya v Sanjay Kumar A/L Selvakumaru (WA-41H-10-05/2025)

(a) that s. 45F(2)(a) of the RTA read with s. 45G allowed for evidence of a person’s blood alcohol limit in his system to be proved via a breath test as provided for in ss. 45B(1) or 45C(1) of the RTA;

(b) that a breath test under s. 45B(1) of the RTA was not subjected to the 1995 Rules; and

(c) that a breath test under s. 45C(1) of the RTA must comply with the 1995 Rules. 15 EVALUATION AND FINDINGS OF THE COURT [10] The important question to be addressed by this Court, according to the Respondent during the appeal, and which has been raised by the Public Prosecutor in the Notice of Appeal is whether the procedures laid down in the 1995 Rules is a mandatory 20 requirement which will affect its admissibility as evidence in trial when there is technical non-compliance with the rules, or whether it is merely discretionary where any such non-compliance is a “curable irregularity”, following the principle in the English case of R v Twigg. The question posed by the 25 Public Prosecutor is qualified in that there is no evidence that the reading of the EBA II machine was inaccurate of compromised. **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [11] Before I go further to analyse the issue(s) raised in the appeal, it is noted that the 1995 Rules is enacted under the enabling provision of s.66(1) of the RTA which states:

(a) that a person has committed an offence under section 44 or 45 involving 20 intoxicating liquor or under section 45A; or

(b) 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 25 breath for a breath test.

(a) to provide two specimens of breath for analysis by means of a prescribed 5 breathanalyser; or

(b) 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).

(a) 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;

(b) 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. 25 … [14] A breath test is defined in s.45G(1) of the RTA to mean “ "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 30 exceeds the prescribed limit;”. And at present, "prescribed limit" means - “(a) 22 microgrammes of alcohol in 100 millilitres of breath;

(b) 50 milligrammes of alcohol in 100 millilitres of blood; or

(c) 67 milligrammes of alcohol in 100 millilitres of urine.”. 35 **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [15] The Court of Appeal in Kannan A/L Letchumanan (supra) held the view that ss. 45F and 45G do not state that the breath test conducted under s.45B is an initial breath test or that 'if positive' the investigating officer is obliged to request for further specimens of breath or specimens of blood or urine under s.45(1) of the RTA. 5 (refer to paras 63-65 of the CoA Judgment by Faizah Jamaluddin JCA). Hence, the High Court was wrong to have read into these provisions 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 10 was “positive” — when no such words are stated in the said sections of the RTA. [16] A summary of the case of Kannan A/L Letchumanan (supra) is reproduced here from the respective law journal as follows: 15 The respondent was charged, and convicted, at the Magistrates' Court for driving a motor vehicle with alcohol concentration above the prescribed limit, an offence under s. 45A(1) of the Road Transport act 1987 (‘RTA’). Upon appeal at the High Court, the respondent was acquitted and discharged of the said charges. The High Court Judge's ('HCJ') acquittal of the respondent was 20 premised on his interpretation that the breath test under s. 45B(1) of the RTA was 'an initial breath test' which, if positive, made it mandatory for the investigating officer to request the accused to provide two specimens of his breath or a specimen of blood or urine under s. 45C(1) of the RTA. The HCJ held that the respondent's conviction was unsafe as the investigating officer did 25 not request for two specimens of the respondent's breath, or specimens of his blood or urine under s.45C(1) of the RTA. Hence, the present appeal against the HCJ's finding that the provisions in s.45C(1) of the RTA was mandatory; not against the respondent's acquittal. The issues that arose for adjudication concerned the interpretation of the RTA governing: (i) the request for 30 specimens of breath, blood and urine under ss. 45B and 45C of the RTA from persons suspected of having committed an offence either under: (a) ss. 44 or 45, involving intoxicating liquor; or (b) s.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 35 **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 And Urine Tests) Rules 1995, made by the Minister under s. 66 of the RTA ('BBU Test Rules'). [17] The 1995 Rules is also reproduced below for ease of reference, particularly when discussing Rules 4 and 5: 5 FIRST SCHEDULE PROCEDURES IN BREATH TEST

(a) attach a new mouthpiece to the breath tube;

(b) instruct the person to blow through the mouthpiece in one long continuous 30 breath until his breath specimen is accepted by the breathanalyser for an analysis;

(c) note in writing the reading given by the evedential breathanalyser; 35

(d) repeat the procedure as in paragraph (b);

(e) note in writing the reading given by the breathanalyser and thereafter inform the person of his reading and the reading referred to in paragraph (c); 40

(f) 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

(g) give a copy of the print-out referred to in paragraph (f) to the person. 45 **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [18] For the purpose of this appeal, it is then necessary to determine from the evidence which test was done on the Respondent at the material time. The Respondent contended that it was done under s.45C(1) of the RTA since he had given 2 breath samples at the police station which was conducted by an officer with the rank of 5 Inspector i.e. SP6, and the DPP seemed to focus on this section too by showing that they have complied with R.4 of the 1995 Rules. The earlier test done by SP5 at the location where the Respondent was detained was only via a single breath specimen on the SD2+ machine which allegedly gave a reading of 400. The Respondent 10 submitted that the Magistrate was plainly wrong when she concluded that SP6 had conducted a test under s. 45B(1) despite the evidence adduced as above by the prosecution. But she found that SP6 had breached Rules 4, 5(a), (c) and (e) of the 1995 Rules. 15 [19] Although SP6 told the court that he had explained the requirements of the law to the Respondent, particularly “memberikan hembusan yang panjang”, this was not the same as the requirement of R. which states:

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

(b) to provide a specimen of blood or urine for a laboratory test, notwithstanding that he has been required to provide a 25 specimen of breath for a breath test under subsection 45B(1). [22] Therefore, from my reading of the above provisions’ construction, when a police officer chooses to require the person to give a **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 breath specimen under s.45C(1), as opposed to s.45B(1), during the course of his investigation, the police officer shall comply with the provisions of either subsection 45C(1)(a) or (b) and the rest of the provisions of s. 45C. It is noted that s.45B is titled “Breath test” whereas s.45C is titled “Provision of sample”. 5 S.45B provides for what is a breath test and where it can be required as well as penalty for refusal to undergo a blood test when required. Then it goes on to s. 45C about providing of sample for testing, who may require it, where to provide the sample, providing a specimen of blood or urine can only be made at a police station or at a hospital 10 and additional requirements in that regard as well as penalty for refusal to give a sample when required. Since s.45C does not have detailed provisions on how the testing is to be in conducted, the Minister has provided for this by s.66(1)(mm) of the RTA which is to be read with the 1995 Rules prescribing the manner of testing. 15 Hence, we have to come back to the provisions of the 1995 Rules. Otherwise what is the point of having such detailed provisions on the manner of giving the specimens as required in ss. 45B or 45C of the RTA. 20 [23] The Court of Appeal in Kannan A/L Letchumanan (supra) also held that the High Court was plainly wrong to hold based on r.4 of the 1995 Rules that a police officer is under a legal duty to procure two specimens of breath for the breath test under s.45B(1) of the RTA. Rule 4 of the 1995 Rules expressly state that the procedures in the 25 First Schedule of the 1995 Rules are applicable for breath tests conducted under s. 45C(1) of the RTA. Nowhere does it state that it is applicable for breath tests conducted under s. 45B of the RTA. Similar to what it did with ss. 45B and 45C of the RTA, the Court of **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Appeal held that the High Court had read words into the 1995 Rules where none exist. Therefore, the High Court decision to acquit the respondent because of non-compliance with the mandatory requirement of testing under s. 45C of the RTA was wrong and liable to be set aside. 5 [24] This Court noted that s.45F of the RTA provides that evidence of the proportion of alcohol in a specimen of breath, blood or urine provided by the accused shall be taken into account and it shall be assumed that the proportion of alcohol in the accused‘s breath, 10 blood or urine at the time of the alleged offence was not less than in the specimen; but the assumption shall not be made if the accused proves certain things (as stated in that section). This would of course be made during the course of the trial. Nevertheless, it is trite that the burden of proving a case beyond a reasonable doubt is always 15 on the prosecution throughout the trial and whereas the accused only bears the evidential burden of raising a reasonable doubt on the prosecution case. [25] The Magistrate had already made a finding of fact that the 20 requirements of the third ingredient of the offence, i.e. R. 4 of the 1995 Rules had not been complied with. Then because of the Court of Appeal decision on 17.6.2025, she made a ‘u-turn’ that her decision was wrong. Now, Art. 5 of the Federal Constitution provides that no one shall be deprived of his personal liberty except in 25 accordance with the law. The prosecution as the guardian of public interest is now saying that the requirements of the law need not be complied with in order to save this case, by virtue of the fact that the BAC reading of the Respondent was 265 mg above the prescribed **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 limit. Reliance is placed on the English case principle in R v Twigg [2019] 1 WLR 6533. The following passages from the said case have been reproduced below for effect: “4 This case raises a potentially important point of principle in relation to the admissibility as evidence of blood samples unlawfully obtained by the police in 5 breach of statutory duties imposed by section 7 of the RTA 1988. In accordance with the way in which submissions were presented by the parties at the trial, the judge treated the question of admissibility of unlawfully obtained evidence as being governed by section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). She ruled that in the circumstances the breach of procedure had not 10 had such an adverse impact on the fairness of the trial that it would be unfair for it to be admitted. At the hearing before this court, it became apparent that there may be a logically prior question which needs to be determined: whether the evidence was inadmissible as a matter of law. If it was, the issue under section 78 of PACE would never arise, since there can be no question of a court 15 permitting evidence to be adduced at a trial if it is inadmissible as a matter of law. … 21 The judge found that this was not a case where there was no basis for supposing that the defendant’s driving at the time was affected by the 20 consumption of drugs. The officer who first arrested him plainly suspected the smell of cannabis. Further, in answer to the question “have you smoked anything?”, the defendant had replied “not recently”. 22 The judge said that, whilst the defendant presented as alert and coherent to 25 the healthcare professional, this was after nearly an hour’s delay, caused because the defendant had absconded from the scene. The healthcare professional had asked the defendant if he had taken any drugs. He lied. He could have told the truth. Had he answered honestly then it was highly likely that the healthcare professional would have reviewed her opinion about 30 whether he was affected by cannabis. 23 The judge concluded that, although there had been a breach of procedure in taking the blood sample, in all the circumstances, admission of that evidence would not have such an adverse impact on the fairness of the trial that it would 35 be unfair to allow the prosecution to adduce it. 28 Section 7 of the RTA 1988, as amended, so far as material, provides: “(1) In the course of an investigation into whether a person has committed an offence under section 3A … of this Act a constable may, subject to the following 40 provisions of this section and section 9 of this Act, require him— (a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or (b) to provide a specimen of blood or urine for a laboratory test. 45 **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 “(2) A constable may make a requirement under this section to provide specimens of breath only if— (a) the requirement is made at a police station or a hospital, (b) the requirement is imposed in circumstances where section 6(5) of this Act applies, or (c) the constable is in uniform …” 5 29 It was subsection (3)(c) that was not complied with in the present case, since the healthcare professional did not advise the police that the defendant’s condition might be due to some drug. … 31 Section 78 of PACE provides that: 10 “(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to 15 admit it. “(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.” 20 32 The first case to which reference should be made is the decision of the Privy Council in Kuruma v The Queen [1955] AC 197, in which the opinion of the Board was delivered by Lord Goddard CJ. That case concerned evidence which had been obtained as a result of a search. The Board proceeded on the basis that the evidence was illegally obtained: see pp 226–227. On the same page 25 Lord Goddard said: “In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was 30 obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.” [26] It is noted that s.7 of the RTA 1988 is similar to the provision of 35 s.45C of the Malaysian RTA 1987. In the English case of R v Twigg (supra), the Court of Appeal there held that: “44 We have seen therefore that the general approach of English law is to regard the manner in which evidence was obtained (including where it was obtained unlawfully) as not leading to its automatic exclusion. The 40 manner in which it was obtained will be a relevant factor to be taken into account when performing the exercise required by section 78 of PACE and article 6 of the ECHR but ultimately the question for the court is whether there will be a fair trial. However, in the present case, it is submitted on behalf of the defendant that, even before one gets to that issue, the blood 45 **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 sample in question was inadmissible as a matter of law, so there could be no question of admitting it at all.”. [Emphasis added] [27] It is the above principle that the prosecution relies on in arguing that the Respondent’s BAC reading should be admissible by the Court. 5 However, based on the above passage, the ultimate question for the Court is still “whether there will be a fair trial”. This question does not run counter to the principle of right to a fair trial as enshrined in the Federal Constitution. In the case of Yahya Hussein Mohsen Abdulrab v PP [2021] 9 CLJ 414, the Federal Court stated: 10 “[55] We will first deal with the "fault" point. The prosecution is but one aspect of the administration of justice albeit a significant one. The system is made up of many other actors including the judge, defence counsel, the police, interpreters and various other parties. The core of the criminal justice system is 15 to dispense justice to the public for the wrongs committed by the "criminal". In this regard, the primary duty of the prosecution, after determining that there is a sound case and preferring a charge, is to marshal and lead evidence pointing towards guilt. [56] The entire system of law that we have curated in our democratic system of 20 Government therefore means that the prosecution does not have the ultimate say in the guilt or innocence of a person. That is the exclusive duty and role of the courts. In this regard, the prosecution must not approach all cases with the mindset that they must secure a conviction at all costs in the same way defence counsel must not entertain the idea that he must secure an 25 acquittal at all costs. Their paramount duty, apart from their duties to their clients (defence) or the public/State (prosecution), is to conduct the trial in a candid, honest and fair manner so that the ultimate truth of the case is presented to the court. [57] Now, if any of these numerous components of the machinery of the justice 30 system fail to function correctly, the entire administration of justice will collapse. Trials would become merely a façade or an act to simply secure a conviction without regard to the due process of law which assumes that all persons are innocent unless proven otherwise. The passage we quoted earlier from the judgment of McHugh J in TKWJ (supra), clarifies this point beyond doubt. As 35 such, the strength of the prosecution's case is irrelevant if the accused is not **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 given a fair trial as required by art. 5(1) of the Federal Constitution. And the question of fault simply does not arise.”. [Emphasis added] [28] Although that case was in regard to the issue of “flagrant incompetence of counsel”, I referred to the useful guidance by the 5 Federal Court in respect of what is a fair trial, what are the duties of the prosecution, defence and the courts. This Court opined that a fair trial also meant that the requirements of a subsidiary legislation to be read with the principle law must also be complied with by the prosecution. In that aspect, I refer again to R v Twigg (supra), where 10 their Lordships referred to the case of Murray v Director of Public Prosecutions [1993] RTR 209 which followed Howard v Hallet [1984] RTR 353 on a pertinent point: “45 The essential foundation for the argument on behalf of the defendant is the 15 decision of the Divisional Court in Murray v Director of Public Prosecutions [1993] RTR 209 (Watkins LJ and Laws J). Before we consider that decision in detail we should refer to an earlier decision of the Divisional Court, which was followed in that case: Howard v Hallett [1984] RTR 353. That case concerned the predecessor to the RTA 1988 the Road Traffic Act 1972. 20 The 1972 Act included a provision, in section 10(2), which was similar to what is now section 15(2) of the RTOA 1988. 46 In Howard v Hallet, at p 360, Robert Goff LJ stated that: “It would, it seems to me, be a most extraordinary consequence if, where the Act of 1972 lays down a careful and statutory procedure for requiring 25 a suspected motorist to provide specimens of breath and for analysing them and presenting them before a court, it is possible to disregard that procedure altogether. I cannot believe that that was the intention of the legislature.” 30 47 He continued at p 361: “In my judgment, it is plain that section 10(2) is referring to specimens taken in accordance with the statutory procedure laid down under section 8 of the Act. There must be read into the section as implicit in it, after the words ‘specimen of breath, blood or urine provided by the accused’, the 35 words ‘pursuant to the provisions of this Act’. That must include a reference in particular, to the procedure laid down under section 8 of the **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 Act. So read, in my judgment, section 10 of the Act takes effect in a sensible manner and precludes any of the startling consequences which flow from Mr Lofthouse’s argument [for the prosecution]. It follows that I, for my part, am unable to accept Mr Lofthouse’s primary submission made in response to Mr Sellick’s argument.” 5 [Emphasis added] [29] It cannot be the intention of Parliament for the respective law enforcement agency to disregard the procedures that have been painstakingly enacted via the powers of the Minister to make subsidiary legislations. Therefore, this Court could not agree with 10 the Public Prosecutor that the 1995 Rules may be disregarded and only be considered as discretionary in the prosecution of this type of offence (ss. 44, 45 and 45A of the RTA). [30] Having perused the Notes of Evidence, I could not find anywhere in 15 there that the prosecution witnesses had informed the Respondent of the requirements of R.4 pertaining to the 2-sample provision before ANY breath specimen was given by him and also R.5 in regard to attaching a NEW mouthpiece to the breath tube prior to the first test. I agreed with the Respondent’s submission that SP6 20 only testified that he had changed the mouthpiece after the first test (at the police station). In fact, the witness had used words in his testimony which gave me the impression that he was describing what he would normally do in carrying out such tests, not how he had carried out the tests on this particular Respondent on that night. 25 SP6 stated in his examination-in-chief: “Q: Ok teruskan Tuan, so dia dah direhatkan dia tak makan dia tak minum apa yang jadi selepas tu? SP6: Ok apabila semua tu dipatuhi, ujian untuk subjek boleh dilakukan dengan menggunakan mesin EBA tersebut. Untuk permulaan kita perlu 30 membuat dua tiupan terhadap subjek, dua tiupan mesin EBA. Untuk tiupan pertama kita akan membuat tiupan pertama, selepas tiupan pertama berjaya tiupan kedua akan dilakukan dan sebelum tiupan **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 kedua dilakukan pemipit ataupun straw perlu ditukarkan, maknanya pemipit perlu ditukarkan untuk membuat tiupan kedua. Maknanya kita tidak akan mengguna pemipit yang sama antara tiupan pertama dan tiupan kedua. Kita akan buat penukaran pemipit pertama dan kedua untuk tiupan kedua. Apabila kedua-dua tiupan 5 tersebut berjaya dibuat, barulah kita akan, barulah mesin tersebut akan keluarkan slip ataupun keputusanlah untuk bacaan dan tiupan tersebut. Q: Ok sekali lagi Tuan, Tuan kata perlu ditukar, soalan saya ada tak benda tersebut dipatuhi bagi OKT ini, ada tak ditukar? 10 SP6: Ya ditukar.”. [31] I also agreed with the Respondent that SP6 had conducted the test wrongly by changing the mouthpiece after the first blow of the breath test into the EBA II machine when the 1995 Rules did not require 15 him to do so. He was only required to place a new mouthpiece on the machine before he started taking the first breath; and prior to that, he must also explain R.4 to the Respondent. A new mouthpiece is compulsory to avoid cross-contamination or mix up with other respondents who were to undergo the breath test that night. I noted 20 in SP5’s evidence, under cross-examination, he admitted that the incident happened almost 3 years ago and “… terlalu ramai kita buat pemeriksaan”. This conflicted with another witness’s testimony (SP2) that they had only tested 3-4 drivers that night. Therefore, the benefit of doubt should have and had actually been given by the 25 Magistrate to the Respondent. [32] The Respondent submitted that the breach of procedural fairness by the police had occasioned a miscarriage of justice as he did not receive a fair trial. Counsel referred to the Australian case of Mraz 30 v The Queen (1955) 93 CLR 493 where the court held: “ ... every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedures and evidence are **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly opened to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.”. 5 [33] Based on the above considerations, despite the very high reading of the BAC over the prescribed limit, unfortunately I have to agree with the defence that the prosecution have not shown in their evidence that they have complied with the requirements of the 1995 10 Rules. The Respondent was warned by this Court that he “got off” on a technicality issue which had raised a doubt on the prosecution case. But he may not be so lucky in future if he is caught for the same offence. [34] Let this also be a lesson to the prosecution witnesses, not to take 15 for granted the task of giving evidence in court. CONCLUSION [35] In the circumstances, I did not find any appealable error in the decision of the Magistrate to acquit and discharge the Respondent 20 at the end of the prosecution case. Appeal dismissed. Dated 26 March 2026 signed 25 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Kuala Lumpur 30 (Criminal Division) **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Counsels For the Appellant: Mr. Ahmad Ishrakh Bin Mohd Saad with Mr. Dony Abdullah Messrs. Ishrakh Saad & Co., Kajang. 5 For the Respondent DPP Faridah Nurdinie Bte Bahrum Pejabat Timbalan Pendakwa Raya Jabatan Peguam Negara Cawangan Kuala Lumpur 10 15 20 25 30 **Note : Serial number will be used to verify the originality of this document via eFILING portal