Prem Anand Panickar A/L Vijayapanickar (MC-83-376-06/2024)

There were two charges preferred against the accused as follows:-

“Bahawa kamu pada 17.11.2019 jam lebih kurang 2123hrs di KM 5 Lebuhraya Utara-Selatan dalam Daerah Alor Gajah, Melaka sebagai pemandu m/lori no. AKW 6393 telah memandu kenderaan tersebut secara berbahaya kepada orang lain setelah mengambil kira ke atas segala hal keadaan jalan termasuk jenis, keadaan dan ukuran jalan tersebut sehingga menyebabkan kematian kepada Muhammad Luqman Hakim bin Mosyazid (No. K/P: 000609- 01- 1579) Umur: 18 tahun. Dengan itu, kamu telah melakukan satu kesalahan di bawah Seksyen 41(1) APJ 1987 dan boleh dihukum di bawah Seksyen yang sama.”

“Bahawa kamu pada 17/11/2019 jam lebih kurang 2123hrs di KM 5 Lebuhraya Utara-Selatan dalam Daerah Alor Gajah, Melaka sebagai pemandu m/lori no. AKW 6393 telah memandu kenderaan tersebut secara berbahaya kepada orang lain setelah mengambil kira ke atas segala hal keadaan jalan termasuk jenis, keadaan dan ukuran jalan tersebut sehingga menyebabkan kematian kepada Ahmad Daniel Ruzwan Iskandar bin Mohd Rusdi (No. K/P: 000614- 11-0563), Umur: 18 tahun. Dengan itu, kamu telah melakukan satu kesalahan di bawah Seksyen 41(1) APJ 1987 dan boleh dihukum di bawah Seksyen yang sama.”

The accused pleaded not guilty to the said charge and claimed trial. The prosecution has called eleven witnesses as follows: No. Names Roles PW1 Sjn Amran Enquiry officer PW2 En. Mosyazid Father of the deceased, Luqman Hakim PW3 En. Mohd Rusdi Father of the deceased, Ahmad Daniel PW4 Kpl Ahmad Zabidi The photographer PW5 Dr. Too Xiao Qing The pathologist PW6 En. Sheikh Abu Talib Driver of W5272W PW7 En. Marfizal Driver of VDL2777 PW8 Pn. Nor Asiah Passenger of VDL 2777 and wife of En. Marfizal PW9 En. Tai Wen Kang Driver of WB9968A PW10 Insp Mohd Khairul The investigating officer PW11 En. Subash Murali Driver of RAC736 Prosecution’s case 3. During the trial, the prosecution adduced the following facts. On 17.11.2019, at approximately 8.31pm, a road collision occurred involving seven vehicles at KM 204.5 of the North-South PLUS Highway, taking away the lives of two victims who were inside the car bearing registration no. JMR9977. Seven vehicles were listed as follows:- Vehicles No. Registration No. Roles V1 AKW6393 The accused V2 JMR9977 The two victims V3 VDL2777 PW7 and PW8 V4 W5272W PW6 V5 WB9968A PW9 V6 VCY8940 Based on report P22 and P26, En. Muhamad Zul Effandi (offered by the prosecution to the defence) V7 RAC736

At around 9.11pm, when PW10 and PW4 arrived at the accident scene, the weather was clear, the road surface was dry, and it was not raining. PW10 observed a trailer lorry bearing registration no. AKW 6393, facing against traffic on the left shoulder of the northbound lane, with the front part of the lorry facing south. The vehicle bearing registration no. JMR9977 occupied by the two deceased victims was positioned underneath the said lorry.

The positions of the other vehicles involved remained at the accident scene, and the roadway was littered with guardrails and vehicle debris. The guardrails were damaged, presumably due to being struck by the lorry. The accident area is a straight, three-lane, two-way road in both the northbound and southbound directions of the PLUS highway.

Both victims were successfully extricated with the assistance of the Bomba (Fire and Rescue Department) and a Tadano lorry, which removed the cargo load from the trailer lorry AKW6393 that had crushed car JMR9977 occupied by the victims. The cause of death for both victims was “multiple organ injuries consistent with road traffic collision”, with no other contributing factors. The injuries sustained by both victims were severe, from head to toe.

Based on the overall investigation carried out by PW10, the accused was charged under section 41(1) of the Road Transport Act 1987 (“RTA 1987”) for dangerous driving on the road, causing the deaths of the two victims inside the car JMR9977. Prosecution’s submission 8. The prosecution submitted that each element necessary to establish the offence with which the accused was charged herein had been proven, as follows: a) The accused was driving the lorry bearing the registration no. AKW6393 with semi-trailer T/AA 1528, on the highway; b) The accused was driving the vehicle dangerously at KM 204.5 of the PLUS Highway; and c) The dangerous driving of the accused resulted in the death of two victims who were inside the vehicle bearing registration no. JMR9977, viz, (M1) Muhammad Luqman Hakim bin Mosyazid, IC No.: 000609-01-1579, and (M2) Ahmad Daniel Ruzwan Iskandar bin Mohd Rusdi, IC No.: 000614-11-0563. Defence counsel’s submission 9. There are three issues canvassed by the defence in the trial as follows:- i. The accused did not drive dangerously; ii. The evidences of PW6, PW7, PW8, and PW9 did not witness the accused driving the vehicle dangerously or creating a dangerous situation on the road; and iii. Shoddy investigation by PW10. This Court’s Analysis and Findings at the end of the Prosecution’s Case Issue (i) and (ii): No dangerous driving by assessing evidences of the PW6, PW7, PW8, PW9 and PW11 10. The issues (i) and (ii) are closely intertwined, addressing on whether the accused's manner of driving created a dangerous situation or endangered the lives of other road users. In this case, the prosecution relied on the third limb, which considered whether the driving, in view of all the circumstances including the nature, condition, and size of the road, as well as the amount of traffic that is or might be expected on the road, was dangerous to the public. However, the term “dangerous driving” is not statutorily defined in the RTA 1987. It is left to the courts exercising judicial reasoning to assess the facts and circumstances of the individual case to determine whether there was “dangerous driving”, as held in the case of Mohd Hashim bin Said v Public Prosecutor [2021] MLJU

The case of Ramiah v Public Prosecutor [1972] 2 MLJ 258, ACRJ also comes to mind. As Raja Azlan Shah J (as he then was) stated, it is not the law that simply because an accident occurred leading to fatal consequences, it automatically follows that the accused was driving in a manner dangerous to the public. It is settled that where the principle is construed, the charge is not one of causing death but of driving dangerously or recklessly, as decided in Gunasegaran a/l Singaravelu v Public Prosecutor [2009] 7 CLJ 613; [2009] 7 MLJ 761, HC.

The accident scene is a three-lane, two-way highway section divided by a guardrails in the middle. Before the collision occurred, the accused was moving from the northbound direction of the highway (from top to bottom of the sketch plan, P15), while both victims were traveling from the southbound direction of the highway (from bottom to top of the sketch plan, P15) in a car with registration no. JMR9977. The accident took place at night. Further. the weather was clear, and it was not raining. The road surface was also dry.

The collision occurred when the trailer lorry driven by the accused, traveling from the northbound direction of the highway toward the southbound direction, skidded into the opposite lane, crashed into the guardrails, and collided with several vehicles on both sides of the road. Eventually, it struck and dragged the car with registration no. JMR9977, which was moving northbound on the highway, into a ditch located on the left shoulder of the road.

The vehicles identified as being involved in the accident were as follows:- Vehicles Direction of travel before collision V1:AKW6393 North ke South (middle lane) V2:JMR9977 South to North (left lane) V3:VDL2777 North to South (right lane) V4:W5272W South to North (right lane) V5:WB9968A South to North (right lane) V6:VCY8940 South to North V7: RAC736 South to North (middle lane)

The positions of the vehicles as depicted in the sketch plan (P15) are reproduced here for ease of reference:

The trial court, with whom the law entrusts the primary task of evaluating evidence, had the advantage of hearing the witnesses and observing their demeanor. As the trial judge, I have exercised judicial appreciation and evaluation of the evidence in the critical manner and approach which is central to the duty of this court. This includes a thorough assessment and careful analysis of the credibility and reliability of the prosecution's witnesses (Davendar Singh A/L Sher Singh v Pendakwa Raya [2012] MLJU 321, CoA). The court, therefore, has weighed the evidence and provided good reasons for either accepting or rejecting, in whole or in part, the evidence of witnesses, as follows (Lee Ing Chin v Gan Yook Chin [2003] 2 MLJ 97, CoA).

According to the testimony of PW6 (the driver of V4), while driving at about 100km/h in the right lane heading north from Mersing, PW6 collided with the guardrails in the middle of the road, causing V4 to skid and collide with a Toyota Wish VCY8940 (V6) vehicle that had suddenly stopped in front of him in the same lane. The Defence argued that PW6 hit the debris from the guardrails, then crashed into the Toyota Wish VCY8940, and only afterward did PW6 see the accused's lorry veer off the shoulder of the road.

Furthermore, PW6 stated that he did not see the accused’s lorry collide with the JMR9977, which was driven by the victims who died in the accident, nor did he see what happened on the Plus Highway (North-South) heading from north to south before and during the accident. PW6 also did not see the presence of the trailer lorry during the accident. However, after the accident, PW6 could clearly see the final position of the lorry (V1) on the left shoulder of the road, with the front of the lorry facing towards Johor (south). This court agreed with the defence's submission that PW6's testimony conclusively did not observe the factors that caused the accused's lorry to suddenly lose control and hit the guardrails, resulting in it entering the lane driven by PW6.

As for PW7, the driver of V3, while driving from Seremban towards Melaka, he stated that he was driving at a speed of 90-100km/h. When PW7 was in the right lane, V3 which was being driven by him, suddenly spun out after being hit by something and grazed the guardrails on the highway. After the collision, V3 stopped in the middle of the highway divider with the front of the car facing northbound on the highway.

The prosecution submitted that PW7's evidence was corroborated by the testimony of PW8, the wife of PW7, who sat at the rear left passenger of V3 at that material time. PW8 stated that while sitting in the rear left passenger seat of V3, PW8 saw a trailer lorry in the middle lane of the highway to her left. After V3 became parallel to the rear tires of the trailer lorry, V3 suddenly spun due to being squeezed from the left side towards the highway guardrail.

During cross-examination, PW8 reiterated that V3, in which she was traveling, spun out as soon as she saw the tires of the trailer lorry in the middle lane approaching and then squeezing V3 into the highway guardrail, causing V3 to spin. V3 was driven by PW7 in the right lane from the north at a steady speed, estimated at 90- 100km/h. In addition, PW7 stated that the vehicle behind him maintained a safe distance. PW8 also confirmed that the travel journey was very calm as there were no lane changes or shifts because the traffic was very smooth.

The defence subsequently pointed out to this Court, based on PW7's evidence, that there were only cars in front, behind, and to the left of the V3 at the time of the accident. After that, when PW7 was taken out of V3, PW7 noticed the lorry for the first time on the opposite side of the road. It became evident that PW7 did not see the accused’s lorry squeezing the V3 that he was driving but only heard the sound of tires scraping, which clearly contradicted the statement given in the Alor Gajah Traffic Police Report No.7194/19 (Exhibit P17), where PW7 stated that the accused’s lorry from the front left side had squeezed the vehicle driven by himself. The oral evidence by PW7 is reproduced as follows for ease of reference:- “During cross-examination: Peguam: Q21. Sejurus selepas benda yang langgar kereta En., kereta En. berpusing dan berhenti dekat tengah-tengah divider dan pada masa itu En. ada perasan tak motorlori yang dikatakan berada di tempat kejadian itu, no. AKW6393? SP7: Masa lepas langgar, saya tak perasan lori kat mana pada mulanya. Tapi masa saya tengok ahli keluarga saya, saya tengok ada satu lori di sebelah sana. Peguam: Q22. Saya cuma nak clearkan situasi, jadi dari masa En. kereta dilanggar dan sampai kereta En. berpusing-pusing kat divider dan selepas itu En. dikeluarkan dari kereta, baru En. perasan lorry buat kali pertama di sebelah opposite jalan. Itu kali pertama En. nampak lori tersebut?

This court found that when PW7's testimony in court differs from his police report (P17), his testimony cannot be trusted (Mohd Amirudin bin Abd Aziz v Mohd Suhaimizan bin Mohamad and another [2023] MLJU 2221, Sessions Court; Multar v Lim Kim Chet [1982] CLJ Rep 237; [1982] 1 MLJ 184, FC). It is undeniable that a police report is not an encyclopedia that requires comprehensive explanations as emphasized in the case of Herchun Singh & Ors v Public Prosecutor [1969] 1 LNS 52, FC. However, it cannot be said that omissions in the police report would always be of no significance, as important facts in PW7’s version should have been stated in his police report when the fact was still fresh in his mind, rather than fabricating a story that he never witnessed. This brings me to one important fact that even though SP7 was on the PLUS Highway heading in the same direction as the accused’s lorry, PW7 did not see how the accused’s lorry suddenly lost control and hit the guardrails, causing it to veer into the opposite lane.

It is to be observed and noted that according to the evidence of PW8, who was in the V3 with PW7, the Defence argued that PW8 herself stated that she did not see the accused’s lorry squeezing the V3, nor did she see what caused the the accused’s lorry to suddenly lose control and crash into the guardrail, causing it to veer into the opposite lane. In fact, PW8 only saw the tires of the trailer lorry close by, and suddenly, the V3 driven by PW7 spun out. The Defence argued that an inference could be made that it was possible the V3 driven by PW7 itself approached the tires of the trailer lorry, which gave that impression to PW8 before the V3 driven by PW7 spun out.

Having regard to the factual matrix and the surrounding circumstances of the present case, I have addressed my mind and critically assessed those relevant aspects. If what PW8 said was true in the manner in which she described, with V3 being parallel to the rear tires of the lorry of the accused, PW7 would have lost control and spun out before hitting the guardrails, but it was not asked and mentioned how many times or could be said as “several” or “many” times that the car spun.

Nevertheless, the fact that the car spun raised a question for this court: If PW7 was driving at a speed of 90-100 km/h, it is unlikely that his car could have spun and suffered severe damage. A point of doubt was raised as to how did this occur? This court further observed that, according to PW8, before V3 spun out, she only saw the tires getting closer but did not see any collision. Having said so, this court found that it was maintained that the accused's lorry was alongside V3 when the collision occurred. PW8 gave her evidence as follows:- “During cross-examination: Peguam: Q21. Jadi puan ada nampak tak tayar lori tu langgar kereta puan? SP8: Dia tak langgar. Maksud saya semasa treler tegak terus bagi saya, tidak berlaku perlanggaran, cuma selepas beberapa minit, tiba-tiba saya nampak tayar lori mendekat dan kereta berpusing, masa itu tiba-tiba rasa diri kita terbang di awan. Jadi kita terkejut juga. So jadi bila kereta saya berhenti selepas detik itu, selepas kita rasa pening akan berpusing, selepas kereta berpusing. Peguam: Q22. Sebelum berpusing, kamu hanya nampak tayar? SP8: Tayar memang mendekat. Peguam: Q23. Tapi tak langgar? SP8: Tak langgar.”

The Prosecution submitted that based on PW9’s evidence, the witness who could clearly see the lorry which was driven by the accused from the north and veered into the opposite lane, was PW9 (the driver of V5). PW9 stated that during the accident, he was driving in the right lane heading north when he saw a lorry-trailer crash into the guardrails and veer into his lane, crossing in front of him before skidding to the side. PW9 also witnessed the lorry collide with a car in the far-left lane after entering the opposite direction, crossing in front of PW9. Although PW9 could not identify the vehicle's registration number, he could tell it was a small-sized vehicle, light-colored, possibly silver, which was in the left lane heading north. Meanwhile, PW9 only collided with the guardrails and debris from the accident.

On the other hand, the Defence argued that PW9 had stated that he only saw a lorry crash into the guardrails and enter the opposite lane, subsequently colliding with several vehicles in that lane. However, PW9 did not see what happened in the lane of the accused’s lorry before or during the incident. The Defence also argued that an analysis of PW9's testimony revealed significant contradictions, raising questions about his credibility. This is because in the Traffic Police Report Alor Gajah No. 7194/19 (Exhibit P18), PW9 stated that a lorry-trailer AKW6393 had crashed into the guardrails and entered the opposite lane, then collided with several vehicles. During the examination-in-chief, PW9 also stated that the lorry-trailer collided with several vehicles in the middle and left lanes after entering the opposite lane. However, during cross-examination, PW9 stated that the lorry-trailer only collided with vehicles in the far-left lane. According to PW10, the investigating officer, he also found that the accused’s lorry only collided with the car bearing registration no. JMR9977 after entering the opposite lane.

Having critically perused the evidence adduced, this court, as a judge of facts, did not reject PW9’s evidence in its entirety, as the court accepted parts that were not contradicted (Pendakwa Raya v Mohd Noin bin Sarpin dan satu lagi [2018] MLJU 2084, HC). At that material time, PW9 was beside V5 which he was driving while waiting for a tow truck to arrive after the accident. In the course of PW9’s evidence before this court, he stated that he walked back to the accident scene to understand what had happened and remained there for 2 to 3 hours. However, during those 2 to 3 hours, PW9 stated that he did not see any police officer, including PW4 and PW10, who testified that they arrived at the scene at approximately 9.11pm.

To this court, forgetfulness and failure to recall certain events, which did not seem important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief (Pie bin Chin v PP [1983] 1 LNS 70; [1985] 1 MLJ 23, ARCJ). Surely, a road collision would involve the arrival of police, but PW9 answered according to his perception honestly, explaining that he did not notice the police after the accident because he had passed the accident scene, slowed down, stopped his car on the left side of the highway, inspected his car, and waited for the tow truck to arrive. This court accepted such an explanation and found it to be reasonable, as PW9 was fully focused on his safety and the condition of his car. The relevant part of PW9's testimony is reproduced below:- “During cross-examination: Peguam: Q12. Lori itu di hadapan kereta no. 3, bila dia langgar divider masuk laluan bertentangan, kamu tak pasti sama ada dia ada langgar kereta no. 3, betul ya? SP9: Tak pasti. Peguam: Q13. Jadi dia terus melintang ke arah kamu, dia ada langgar apa-apa kereta di lorong tengah atau lorong paling kiri sekali, you dekat kanan? SP9: Ada langgar. Peguam: Q14. Langgar kat lorong mana? SP9: kalau tak silap, dia langgar kenderaan paling kiri. Peguam:Q15. Dia langgar kenderaan di lorong yang paling kiri sekali ya? SP9: Ya. Peguam:Q16. Kamu boleh cam tak nombor kenderaan tersebut atau jenis kenderaan tersebut yang dilanggar oleh lori? SP9: Saya tidak dapat cam nombor kenderaan tapi saya boleh tahu itu kenderaan yang bersaiz kecil, warna cerah mungkin silver. Peguam: Q17. Apa jadi kepada kenderaan tersebut selepas dilanggar? SP9: Itu saya tidak pasti. Sebab lepas itu saya telah melepasi sana dan cuba perlahankan kereta saya. Peguam: Q18. Apa yang berlaku pada kenderaan paling kiri kamu tak pasti sebab kenderaan tersebut telah di belakang kamu?

Therefore, I am with PW9 that he saw a lorry-trailer crash into the guardrails and enter the opposite lane. PW9 also mentioned that the lorry might have skidded, but he was not clear about what happened on the other side of the road. This is what PW9 testified to based on his knowledge.

PW11 testified that he, as the driver of V7, had witnessed the accused’s lorry, coming from the north, collide with the guardrails and cross into the opposite lane. At that material time, PW11 was driving V7 in the middle lane heading north. When PW11 was aware of the lorry’s encroachment, PW11 swerved to the right but still hit the guardrails that the lorry had struck, while the lorry veered into the left lane and continued straight into the side of a large drain.

As stated earlier, PW11 explained that he swerved to the right because there was another vehicle moving in the left lane at that time. PW11 also testified that after braking and swerving to the right, he observed several collisions occurring between vehicles in front of him, on the right side (the right lane heading north), and in the highway median area.

PW11's evidence showed that PW11 saw the lorry continue to crash into the divider and move forward. Although he did not witness the collision itself, he noticed a car parked at the divider and another car parked ahead, which he presumed were involved in the accident. It is clear to this court that PW11's evidence indicates that the accused's lorry directly caused the accident by encroaching into the opposite lane. The accused’s police report no. 7203/19 (Exhibit P23)

As the trial judge, I am under a duty to consider all the evidence adduced before the court, including the police report lodged by the accused in relation to the collision that occurred. This consideration must be made taking into account attentiveness and perception from the accused's version (Section 173(m) of the Criminal Procedure Code; Dato' Seri Anwar bin Ibrahim v Public Prosecutor and Another Appeal [2004] 3 MLJ 405, FC). The accused lodged a police report (P23) at 6.06 am on 18.11.2019, the morning after the accident.

According to the accused (in his police report, P23), on 17.11.2019, at approximately 8pm, he was driving a trailer lorry with registration number AKW6393 from Ipoh to Singapore. When the accused reached KM204 of the North-South Expressway PLUS heading south, while driving in the middle lane and overtaking several vehicles, a car with an unknown registration number that was in the left lane suddenly attempted to change lanes and move into his path without signalling. As a result, the accused swerved to the right, then skidded, hitting the guardrails, and encroached the opposite lane, colliding with several vehicles in that lane. The accused was then sent to Hospital Melaka for treatment and did not sustain any injuries.

P23 clearly indicated that the accused himself encroached into the opposite lane and collided with several vehicles, but this was due to a car that changed lanes in front of him without signalling. Notably, none of the other eye witnesses observed what actually happened before the accident took place. Thus, the police report lodged by the accused remains uncontroverted, and this court cannot simply ignore it (William John a/l P Sandanasamy v Public Prosecutor [2021] MLJU 2272, HC).

The point taken from the accused’s police report (P23) was that, the accused stated that he was in the middle lane and was overtaking several vehicles, which was reasonable given that there are two other lanes. Furthermore, evidence from other witnesses who were on the road at the relevant time had suggested that the speed of travel was about 90-100 km/h and that the traffic was smooth but with many vehicles on the highway. From these facts and circumstances, it is apparent to this court that the accused was not driving at high speed but at a speed similar to the other vehicles when he was in the middle lane.

In essence, in a criminal case, the duty of this court is not to determine whether the decision is wrong but whether the conviction is safe (William John a/l P Sandanasamy v Public Prosecutor [2021] MLJU 2272, HC). Upon a careful examination of all the facts and circumstances of the present case, this court found that the conviction of the accused under section 41(1) of the RTA 1987 is unsafe. This is because what if the accused remained silent and called no witnesses in his defence, and this court has considered such hypothetical question raised by the prima facie test, as referenced in the case of Kumaraguru a/l N Muniandy & Ors v PP [1994] 1 MLJ 254, HC. The risk and danger to the public created by the accused's driving must be obvious and serious to an ordinary prudent road user, as established in the case of Mat Atan bin Ahmad v Public Prosecutor [2021] MLJU 2455, HC.

Having objectively assessed the evidence and considering that the accused was driving while taking into account the road conditions and the expected traffic, without violating any traffic rules, this court found that the prosecution failed to prove that the accused's mere act of driving in the middle lane at a constant speed actually created a dangerous situation for the public. In the court's observation, the prosecution witnesses did not provide sufficient evidence to show that the accused was driving in a manner that demonstrated a selfish disregard for the safety of other road users, as discussed in the case of Cantona Lim Xiang Kim v Public Prosecutor [2020] 1 MLJ 544, CoA.

On the present facts, the accused drove his lorry in the middle lane with smooth traffic, alongside other vehicles traveling at a speed range of 90-100 km/h. In the opinion of this court, this does not amount to dangerous driving. However, I am of the view that the accused's decision to drive in the middle lane of a wide three-lane highway, given the load he was carrying, suggests that he was driving without the proper exercise of due care and diligence, or without reasonable consideration for other persons using the road. A hypothetical question arises: if he had driven in the left lane with due diligence and reasonable consideration for other road users, particularly lighter vehicles, he might have been able to switch lanes to the left without affecting other road users if the same situation arises. In short, this does not amount to dangerous driving when driving in the middle lane at a constant speed.

Therefore, it is clear from the available evidence as above and all the exhibits before this court including all puspakom reports of the involved vehicles, that the prosecution has established a case against the accused for driving without due care and attention, or without reasonable consideration, an offence under Section 43(1) of the RTA 1987. Issue (iii): Shoddy investigation by PW10 43. In the course of trial, PW10, as the investigating officer, identified the accused as the driver of the trailer lorry with registration no. AKW6393 based on the recorded statement and the police report made by the accused (Exhibit P23). PW10 also confirmed that the accused's driving license (Exhibit P20) was still valid at the time of the accident. PW10 had obtained consent from the accused to take his blood sample as well as the blood samples of both victims for chemical analysis, and on 28.11.2019, he received the results, which were all negative.

The defence argued that the investigation was weak and somewhat shoddy because PW10, during the trial, stated that he did not investigate the accused's assertion as stated in his police report (Exhibit P23). According to P23, there was a car in the left lane attempting to change lanes and enter the accused's lane without signalling, causing the accused to swerve and crash into the highway guardrail, leading to his lorry encroaching the opposite lane.

In this context, the defence emphasized that it was highly unusual for an investigation conducted by a investigating officer to fail to understand the need for a thorough and detailed investigation before charging someone for an alleged offense, as the failure to investigate the accused's version by PW10 created a gap in the prosecution's case (Public Prosecutor v Muhamad Izwan bin Rosdan [2023] 10 MLJ 109, HC).

In this regard, during cross-examination, PW10 stated that the reason for the accused's lorry skidding was unknown to him, as follows: - “Cross-examination Peguam: Q20. Keterangan siapa yang ada menyatakan cara lori terbabas dan mengapa sebab m/lori terbabas. Boleh maklumkan kepada mahkamah? SP10: Sebab mengapa tidak diketahui, tapi punca kemalangan dari arah mana ke arah mana terbabas ke lorong utara ke selatan melanggar sebuah m/kar di lorong kanan, sehingga melanggar besi jalan dan terus ke laluan bertentangan. Terdapat beberapa report yang menyatakan dan melihat lori tersebut telah dalam kedudukan melintang masuk ke laluannya.”

This court found that the above statement by PW10 directly indicated that he had not completed the investigation into the "fundamental" element necessary to prove the current case and/or had not reached a conclusion that the accused had committed an offence under section 41(1) of the RTA 1987 based on the investigation. In the considered view of this court, it is necessary to state that from the facts and circumstances of the current case, it would appear to me that the investigation was not shoddy, but rather, I would call it incomplete. This court observed that the investigating officer (PW10) had made his best endeavour and provided his testimony professionally and honestly before this court.

A complete investigation is one that thoroughly examines the defences that emerge during the investigation, as such an investigation would eliminate any gaps or weaknesses and provide substantial evidence to be tested against those defences when raised (Public Prosecutor v Cheong Teck Paw [2024] 7 MLJ 753, HC). The situation would have been different if PW10 had conducted the investigation by seeking out other road users to corroborate the accused’s version in the police report but found no supporting evidence, compared to the fact that he never made any effort to seek out this information.

As such, this court agrees with the defence's contention that PW10 did not thoroughly examine and/or conduct further investigation into the silent evidence in this case that could have demonstrated the existence of an emergency situation caused by a third party, leading to the accused's vehicle skidding. The prosecution referred to P7(2), which showed brake mark on the North-South Expressway (PLUS highway) in the direction from north to south, where the accused's lorry was traveling. This was confirmed by PW4, the photographer.

However, PW10 stated, during cross-examination, that he did not investigate the brake mark which could have clearly proven that the accused experienced an emergency situation. The relevant oral evidence is reproduced as follows: - “During cross-examination Peguam: Q12. Dari jarak kesan tayar tu, adakah kesimpulan dibuat oleh tuan berkenaan kelajuan m/lori tersebut? SP10: Saya minta ulang, kesimpulan apa… Peguam: Kita boleh buat pengiraan daripada sketch mark kesan tayar itu ada buat kesimpulan berapa jarak, berapa mungkin kelajuan m/lori itu, ada buat siasatan ini tak? SP10: tiada.”

This court is also reminded of the judgment in Jamnah Jaafar v PP [2015] 1 LNS 525, HC, where it was held that the investigating officer failed to investigate certain critical matters: namely, he did not send the brake mark images for analysis, was unaware of the brake mark, overlooked the brake marks, and did not send the broken glass fragments to the Chemistry Department to determine if they came from the vehicle involved. In the case of Jamnah Jaafar (supra), the investigating officer clearly failed to conduct a complete investigation, which prejudiced the accused’s right to a fair trial.

It is only during the investigation stage that all details can be gathered and addressed; otherwise, it leaves a material gap, as seen in the current case. This court draws upon the guidance from Richard A. Olsen’s article titled “The driver as cause or victim in vehicle skidding accidents”

(1978), Accident Analysis and Prevention, 10(1), 61-67, which challenges the common assumption that drivers are the primary cause of vehicle skidding accidents. The article suggests that the issue lies more with chance conditions and inadequate information than with driver error. Furthermore, it is noted that skid mark can be a useful indicator of a vehicle's speed and it is possible to determine with reasonable accuracy how much the vehicle slowed down while the skid mark was being made, as stated by Captain Athelstan Popkess's observations in his article on “Judging Speed by Skid Marks” (1949) 22 Police J. 121. In light of this, this court opines that it is crucial to enhance forensic investigations by integrating scientific techniques into the criminal justice system. Such an approach would improve accuracy and efficiency, particularly in accident reconstruction cases, where scientific analysis and informed opinions are essential.

However, in the current case, the court found that the investigation conducted by PW10 was sufficient. The accused failed to exercise due attention and care for other road users by suddenly turning into the right lane and should have remained in the left lane, especially given the load carried by the lorry. Therefore, the prosecution has not proven the element of dangerous driving against the accused.

After carefully assessing the evidence of PW5 (the pathologist) and PW3 (the father of the deceased, Ahmad Daniel Ruzwan Iskandar), it was not proven to this court that PW3 had identified his son's body at the hospital in accordance with what was stated in the post-mortem report (P10) prepared by PW5.

Under section 41(1) of the RTA 1987, it is crucial for the deceased to be identified by a family member or someone who personally knows him. As seen from photograph P4, it appeared that the identification of the body was conducted by PW3 in the presence of the pathologist (PW5) and the investigating officer (PW10). According to PW3's testimony in court, he identified his son based on facial features and the clothing he was wearing, and at that time, the tag on the deceased's body read "HAG908/19" following P4. However, the post-mortem report prepared by PW5 referenced the tag "HAG096/19" on the deceased’s body.

During the trial, PW5 explained that the discrepancy was due to an error made by his medical assistant in labeling the body, and she confirmed that the deceased was indeed Ahmad Daniel Ruzwan Iskandar. Nevertheless, from the photograph P4, it is evident that the face was not clearly recognizable, and in the considered opinion of this court, this was a mistake that should not have occurred in the forensic process, where a mislabeling of the body led to an incorrect identification by PW3. Further, the pathologist does not belong to the family of the deceased. It should not be the responsibility of the pathologist to confirm the identity of the deceased by simply stating in the court that the tag “HAG908/19”, as identified by the family, matched the tag “HAG096/19” as stated in the said post-mortem report (P10).

The identification of the deceased by PW5 during the trial, in the view of this court, was legally inappropriate and introduced a material gap in the prosecution’s case under section 41(1) of the RTA 1987. Proper identification of the deceased at the hospital before the autopsy is crucial. The medical officer or pathologist must not only confirm that the deceased is dead but also obtain details of the deceased from someone who personally knows him before conducting the post-mortem.

In the current case, the court found that the prosecution failed to conclusively prove the identity of the deceased, Ahmad Daniel Ruzwan Iskandar, which is an essential element in establishing the charge under section 41(1) of the Road Transport Act 1987. The court observed that there was evidence presented indicating that the identification of the body was done by a family member under a different tag than the one mentioned in the post-mortem (P10), casting doubt on PW3’s identification of his son’s body.

Therefore, this court found that the identity of the deceased, Ahmad Daniel Ruzwan Iskandar, was not conclusively proven by the prosecution (Kee Kuo Wen v Public Prosecutor [2020] MLJU 1457, HC). This issue cannot be overlooked, and the court urges that the body identification process handled by medical officers and assistants be conducted with greater vigilance in the interest of grieving family members. Amended Charges under section 43(1) of the RTA 1987

In the upshot, it has been proven that the accused drove a lorry on a road without due care and attention or without reasonable consideration for other road users. This court found that the prosecution has successfully fulfilled element under an offence under section 43(1) of the RTA 1987 that has been committed by the accused, based on the available evidence.

The accused should have been attentive to oncoming traffic on the highway, maintained a safe distance from the vehicle ahead, or returned to the left lane when necessary, considering the load he was carrying, rather than skidding to the right and encroaching on the opposite lane. Therefore, this court performed a maximum evaluation of all evidences adduced at the prosecution stage and pursuant to section 41(4) of the rta 1987, this court found that the prosecution has successfully established a prima facie case against the accused under section 43(1) of the RTA 1987. The court hereby amends the charges against the accused as follows and if the accused elects to remain silent, I am prepared to convict him on the available evidences in the prosecution’s case as above under the amended charges (Looi Kow Chai & Anor v PP [2003] 1 MLJ 65, CoA): Case no. MC-83-375-06/2024: “Bahawa kamu pada 17.11.2019 jam lebih kurang 2123hrs di KM204.5 Lebuhraya Utara-Selatan dalam daerah Alor Gajah, Melaka sebagai pemandu kenderaan m/lori nombor pendaftaran AKW6393, telah memandu kenderaan tersebut di atas jalan raya tersebut dengan tidak cermat dan tidak bertimbang rasa hingga menyebabkan kemalangan melanggar pemandu kenderaan m/kar nombor pendaftaran JMR9977. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 43(1) Akta Pengangkatan Jalan 1987, yang boleh dihukum di bawah seksyen yang sama. Hukuman: bagi seksyen 43(1) APJ memperuntukkan hukuman denda tidak kurang daripada RM4,000 dan tidak melebihi RM10,000 dan boleh juga dipenjarakan selama tempoh tidak melebihi 12 bulan. Kesalahan juga akan diendorskan di lesen memandu Tertuduh (sebelum pindaan yang berkuatkuasa pada 23.10.2020).” Case no. MC-83-376-06/2024 “Bahawa kamu pada 17.11.2019 jam lebih kurang 2123hrs di KM204.5 Lebuhraya Utara-Selatan dalam daerah Alor Gajah, Melaka sebagai pemandu kenderaan m/lori nombor pendaftaran AKW6393, telah memandu kenderaan tersebut di atas jalan raya tersebut dengan tidak cermat dan tidak bertimbang rasa hingga menyebabkan kemalangan melanggar penumpang kenderaan m/kar nombor pendaftaran JMR9977. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 43(1) Akta Pengangkatan Jalan 1987, yang boleh dihukum di bawah seksyen yang sama. Hukuman: bagi seksyen 43(1) APJ memperuntukkan hukuman denda tidak kurang daripada RM4,000 dan tidak melebihi RM10,000 dan boleh juga dipenjarakan selama tempoh tidak melebihi 12 bulan. Kesalahan juga akan diendorskan di lesen memandu Tertuduh (sebelum pindaan yang berkuatkuasa pada 23.10.2020).

The applicable provision of section 43(1) of the RTA 1987 as at the date of the accident (17.11.2019) was pre-amended which provides the setences of fine of not less than RM4,000 and not more than RM10,000 and shall also be liable to imprisonment for a term of not exceeding 12 months. The amendment of such section 43(1) of the RTA takes place and comes into force from 23.10.2020. Therefore, in the current case, the pre-amended sentence under section 43(1) of the RTA 1987 was in force against the accused.

In the premise, it is appropriate for this court to highlight that the facts in the two amended charges under the lesser offence as prescribed by section 43(1) of the RTA 1987, are supported by evidence as proven by the prosecutor, as permitted under section 41(4) of the RTA 1987 as above-mentioned. It is clear from the notes of the proceedings that, as the trial judge, I must ensure that when the charges were amended and read to the accused, he was fully informed of the changes and the specific charges against him following the amendment. To put it simply, the accused must be aware of the charges he is facing in court, including the pre-amended sentences, in accordance with the date of the incident in the current case.

Therefore, this court decided to amend the charges while maintaining two charges, as it is the court's considered view that the accident involving two persons in the same vehicle is what the law addresses. A reading of the provisions of section 43(1) of the RTA 1987 clearly indicates that a person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for "other persons using the road" shall be guilty of an offence, As such, the two amended charges against the accused have been maintained for driving without due care and attention or without reasonable consideration for the driver and passenger, respectively as persons using the road in the vehicle of JMR9977.

Referring to section 173(b) of the Criminal Procedure Code, this court has ascertained that the accused understood the nature and consequences of his plea and intended to admit, without qualification, to the offences alleged against him as specified in the amended charges. The accused was represented by counsel. This court took the time to explain the charges and the sentence under the pre-amended section 43(1) of the RTA 1987 to ensure that it was the accused himself, through his own mouth, who intended to plead, understood the true nature of the plea and its consequences, and admitted to the two amended charges without qualification.

This court was satisfied with the guilty plea of the accused and determined that it was safe to accept the plea. Consequently, this court recorded acceptance of the accused's plea of guilty. In essence, this court accepted the accused’s plea of guilty, recorded the plea, and proceeded to convict him on both of the amended charges (Wong Hee Ping v Public Prosecutor [1994] MLJU 90, HC; Ku Izham bin Ku Adnan v Public Prosecutor [1998] 5 MLJ 720, HC). This court also satisfied itself as to the correctness, legality, and propriety of the proceedings against the accused as reflected clearly in the notes of evidence.

The accused, through his learned counsel, respectfully urges this court to consider imposing the minimum sentence, taking into account the following factors: - a) The learned counsel submitted to the court to exercise a modicum of leniency toward the accused who pleaded guilty, considering cooperation given with law enforcement agencies such as the police, the prosecution, and the court but also indirectly assist in reducing the backlog of cases. This principle is supported by the case of PP v Jessica Lim Lu Ping & Anor [2004] 2 CLJ 763, HC. Furthermore, it is established that an accused person should be given credit or a discount for pleading guilty, as this spares public time and resources (PP v Ravindran & Ors [1993] 1 MLJ 45, HC); b) The learned counsel submitted on the background factor of the accused. The accused is the father of three children and the sole breadwinner for his family with a wife who does not work. The accused is employed as a lorry driver, earning a mere RM1500.00 per month. As a role model for his university-going children, their future and financial stability would be jeopardized if the accused was to receive a severe sentence. Additionally, the accused suffers from health issues such as high blood pressure and diabetes. He stands before this court today with a genuine sense of remorse and has taken responsibility for his actions, which is why he has pleaded guilty (PP v Muhammad Fiqry bin Jafri & Anor [2020] MLJU 1017, MC; PP v Sulaiman bin Ahmad [1993] 1 MLJ 74, HC; PP v Gopi A/L Krishnan [2000] MLJU 299, HC). These factors warrant the court's consideration of the public interest, the guilty plea, the offender's age, health, character, and background, as well as the nature of the offence and the circumstances in which it was committed; c) The accused is a first-time offender and has never been convicted of a criminal offence under the same section or any other criminal offence. The incident in question occurred in 2019, and six years have passed without the accused engaging in any further criminal activity or being involved in any accidents. Given that this is his first and only crime, special consideration should be given to him in sentencing, allowing him the opportunity to reform and "turn over a new leaf" (Nik Adib bin Nik Mat v PP [2017] MLJU 1831, HC); and d) Lastly, considering the public interest factor, the learned counsel submitted that the accused, who has shown remorse, should be given the opportunity to continue his life without facing an excessively harsh sentence. The reformatory aspect of punishment should be prioritized when the court sentences the accused, as the primary purpose of punishment is reformative (Raja Izzuddin Shah v PP [1979] 1 MLJ 270, ACJ). Prosecution’s reply

This court also took into consideration the submission by the prosecution, stating that this case involves a fatal accident. The prosecution vehemently objected to this decision, however, abided by the ruling made by this court and submitted as follows. As all parties are aware, this case occurred in 2019 on the PLUS highway, involving seven vehicles, and resulted in the deaths of two victims who were 18 years old. The victims in this case were in a vehicle heading towards Kuala Lumpur, while the accused's vehicle was traveling in the opposite direction towards Johor Bahru. The accident occurred when the lorry driven by the accused crossed into the opposite lane, crashing through the guardrails and subsequently colliding with the victims' vehicle, resulting in a fatal accident. In the circumstance, the prosecution urged the court to consider imposing an appropriate sentence on the accused, prioritizing public interest factor over the interest of the individual accused, given the seriousness of the increasing number of road accidents occurring.

In my considered view, the accused has been convicted of careless and inconsiderate driving. Given that he has a good driving record (first offender), a fine is appropriate. It is important to emphasize that this court has considered the sentences imposed in the past for similar offences to determine the trend in sentencing policy (Mohamed Abdullah Ang Swee Kang v Public Prosecutor, SC). Referring to S. Abirami a/p Selvam v Public Prosecutor [2022] 8 MLJ 864, HC, a fine of RM10,000 or six months' imprisonment in default of payment was deemed fair and reasonable by the court. Similarly, in Aziz Satar bin Mat Dali v Public Prosecutor [2022] 12 MLJ 629, HC, a fine of RM10,000 was imposed, with a sentence of one year of imprisonment in default of payment. These two cases as above-mentioned (S. Abirami’s case and Aziz Satar’s case) involved an initial charge under section 41(1) of the RTA 1987, which was later substituted with section 43(1) on appeal.

After weighing the submissions presented by both parties, this court take into account the accused's guilty plea, which has saved time and costs for all parties involved in the case, especially the witnesses. Therefore, a discount is warranted, as the accused is a first-time offender and not a hardened criminal, for a reduced sentence is appropriate for his offences (PP v Sulaiman bin Ahmad (supra)). Considering the public interest and the principles of appropriate sentencing, the sentence imposed in this case must be just and appropriate given the two offences committed. It is in the public interest that the punishment serves as a deterrent to the offender and others from committing similar or other offences (Public Prosecutor v Jamaluddin bin Mokhtar [2006] 5 MLJ 446,

Importantly, this court has taken into account the impact of sentencing on the family of the accused and his current age of 52 years, along with his health problems. The sentence imposed by this court shall be commensurate with the nature of the offence, which involved a lack of due care and attention or reasonable consideration for two persons using the road, albeit in one vehicle in the current case. This court has balanced the public interest against the interests of the individual accused.

Henceforth, upon considering all factors and hearing the submissions in mitigation by the learned counsel for the accused and the submission of the learned DPP on the sentence, the accused is sentenced to a fine of RM5,000, in default of payment, he is sentenced to nine months’ imprisonment, for each amended charge under section 43(1) of the RTA 1987. The particulars of offences and convictions are to be recorded in the accused's driving license by the Road Transport Department. Dated this 30 August 2024 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Puan Sharina Farhana THE ACCUSED : Represented by COUNSEL Datuk Shashi dengan Mr. Yuvanesh, Tetuan Shashi Kannan & Partners, Melaka