Suhaimi Bin Mohd Nor (AA-83-790-07/2022)

Introduction and Procedural Background The accused was charged before this Court with 4 counts under Section 41(1) of the Road Transport Act 1987 (Amendment 2020), alleging that he drove a motor-lorry in a manner dangerous to the public and thereby caused the death of the deceased. The charges were read to the accused, explained, and understood by him. The accused pleaded not guilty and claimed trial to all counts.

At the close of the prosecution case, having read the submissions of both the learned Deputy Public Prosecutor and learned Defence Counsel, this Court found that the prosecution had succeeded in establishing a prima facie case and accordingly called upon the accused to enter his defence pursuant to section 180 of the Criminal Procedure Code.

The accused elected to give evidence on oath, and the Defence called a total of three (3) witnesses, including the accused himself (SD1), SD2, and SD3.

Upon the close of the defence case, the Court is required, under Section 182A of the Criminal Procedure Code, to consider the entirety of the evidence, both prosecution and defence, and determine whether the prosecution has succeeded in proving the charges beyond reasonable doubt.

Burdens and Standards of Proof The legal burden rests on the prosecution throughout the trial, from beginning to end, to prove all elements of the charge beyond reasonable doubt. The defence bears only an evidential burden to raise reasonable doubt, not to prove innocence.

The Court of Appeal in Public Prosecutor v Tan Chai Hing [2018] 6 CLJ 436; [2018] MLJU 313 affirmed the mandatory duty of the trial court, at the close of the defence case, to evaluate all evidence in totality, including the defence evidence, before determining whether the prosecution has met the threshold of proof beyond reasonable doubt.

The meaning of “reasonable doubt” has long been settled, including in Miller v Minister of Pensions [1947] 2 All ER 372, where Lord Denning J explained that proof beyond reasonable doubt must carry a “high degree of probability” but need not reach absolute certainty.

The Malaysian courts have reaffirmed that a doubt is reasonable when it arises from credible evidence or the lack thereof, and is not a fanciful or imagined doubt. See Balachandran v Public Prosecutor [2005] 1 CLJ 85 and Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16.

Accordingly, the ultimate question before this Court is whether, after considering all evidence, the prosecution has succeeded in proving each and every essential ingredient of the charge under section 41(1) of the Road Transport Act 1987 beyond reasonable doubt.

Elements of the Offence For an offence under section 41(1), the prosecution must prove: i.That an accident occurred involving the accused’s vehicle and the deceased at the time and place specified; ii.That the accused was driving in a manner dangerous to the public, having regard to all circumstances, including the nature, condition and size of the road, and the traffic present or reasonably expected on the road; iii.That the accused’s dangerous driving caused the death of the deceased.

Failure to prove any one of these essential elements beyond reasonable doubt is fatal to the prosecution’s case.

A. Whether the Accused Drove in a Manner Dangerous to the Public The central issue in dispute is whether the accused, at the material time, drove the motor-lorry in a manner which, when viewed objectively, created a real or potential danger to other road users.

The test for “dangerous driving” under section 41(1) is an objective one. The Court of Appeal in Ng Beng Kok v Public Prosecutor [2017] MLJU 321 restated that the question is not what the accused thought he was doing, but whether a reasonable and competent driver, having regard to all the circumstances, would have appreciated that the driving created a danger to the public.

The authorities also make clear that dangerous driving must be based on some fault on the part of the driver, amounting to a falling below the standard of a competent and experienced driver: Ng Beng Kok (supra), Lim Chin Poh v PP [1969] 2 MLJ 159.

Importantly, the mere fact that a fatal accident occurred does not, without more, establish dangerous driving. This principle has been repeatedly reaffirmed, including in: • Ramiah v PP [1972] 2 MLJ 258 • Gunasegaran a/l Singaravelu v PP [2009] 7 MLJ 761 • Jamalodin bin Elias v PP [2020] MLJU 345 These authorities collectively emphasise that criminal liability does not arise simply because a collision resulted in death. The danger must emanate from the accused’s manner of driving, not from external circumstances beyond his control.

B. Evidence of the Accused’s Conduct Prior to the Collision The accused (SD1) testified that he was driving within the speed limit, maintaining a safe following distance, and keeping full attention on the road. He expressly denied being distracted, fatigued, or using any device that impeded his concentration.

His testimony was corroborated by SD3, an experienced motor-lorry driver, who opined—based on the dashcam recording (P20A)—that the accused maintained a safe distance from the vehicle in front throughout the approach to the collision site, including on the bend preceding the sudden traffic congestion.

SD2, a PLUS auxiliary officer on duty at the material time, confirmed that there was significant congestion caused by the closure of the right lane at KM 280 due to ongoing road maintenance. He further testified that road-work warning signs are typically placed only 500m to 1km before the closure point.

This evidence, which the Court accepts, is consistent with the accused’s version that the traffic ahead slowed suddenly and unexpectedly after the bend, leaving him with a very limited reaction window.

C. Evidence on Braking and Reaction Time The accused testified that upon sighting the sudden congestion ahead and the brake lights of the Honda CRV in front, he immediately applied his brakes. His braking attempt is fully supported by: • P27 (GPS Data) showing a substantial speed reduction from 82.54 km/h to 6.8 km/h over 39 seconds; and • P2 (Scene Photographs) showing long and distinct tyre marks consistent with heavy braking.

No prosecution witness, including SP13 (Investigating Officer), could state definitively that the accused failed to brake in a timely manner. In cross-examination, SP13 conceded that there was insufficient basis to assert that the accused reacted late.

SD3 also gave expert-like evidence that a heavy vehicle could not be brought to a stop within the short distance available after coming around the bend and seeing stationary traffic. He testified that a heavy lorry would typically require 500 metres or more to stop safely from the recorded speed.

This opinion was not rebutted by the prosecution.

D. Consideration of Available Avoidance Options The evidence established that: • To the right, other vehicles occupied the adjacent lane. • To the left, there was a high roadside barrier which, if struck, could have caused the lorry to veer or jack-knife into other lanes. • These constraints left the accused with braking straight ahead as the only safe response.

The prosecution suggested that the accused should have swerved, but both SD3 and SP13 disagreed, confirming that swerving left could have caused the lorry to crash into the barrier and rebound onto the carriageway, and swerving right would have endangered other road users.

The Court accepts this evidence. It is consistent, logical, and credible.

The Court therefore finds that the accused reacted in a manner consistent with that of a reasonable, competent driver faced with sudden congestion after a bend.

E. Findings on Whether the Driving Was “Dangerous” The prosecution bears the burden of proving that the accused’s manner of driving created the danger, not merely that a danger existed.

The evidence instead demonstrates that the danger arose from: • Sudden and unexpected traffic congestion following lane closure; • Limited advance warning due to the distance of signage placement; • The physical limitations of a heavy motor-lorry’s braking capacity.

There is no credible evidence showing that the accused: • Drove recklessly; • Drove above the speed limit; • Failed to maintain a safe distance; • Was inattentive or distracted; • Made any dangerous manoeuvre.

The Court further accepts the reasoning in Sam Ke Ting v PP [2023] 4 MLJ 650, where it was held that: “Speed alone does not equate to dangerous driving. Nor does an inability to brake in time. The central question is whether the risk was created by the driver.”

Applying this principle, the Court finds that the accused did not create the risk that led to the collision. The danger was external and sudden, not attributable to any fault on his part. Causation, Application of Legal Principles, and Final Determination

A. Causation The prosecution argued that the accused’s driving caused the collision. However, it is not sufficient that the accused’s driving merely preceded the collision; to establish criminal liability, the prosecution must prove a direct causal link between the accused’s manner of driving and the resulting dangerous outcome.

The evidence demonstrates that the traffic congestion arose suddenly and unexpectedly after a bend. The accused reacted promptly by braking, as confirmed by GPS data and tyre marks. The physical constraints of the heavy lorry and surrounding vehicles limited alternative evasive options.

Crucially, testimony from SD2, the PLUS Officer, established that sudden roadworks appeared ahead, and that warning signs were placed very close to the worksite, giving drivers minimal time to react. This circumstance—sudden, inadequately signposted roadworks—was entirely beyond the control of the accused and materially affected his ability to avoid the collision. Notably, SD2 was a witness offered by the prosecution to the defence. His testimony was credible, remained unimpeached throughout the proceedings, and was not challenged by the prosecution. There was no suggestion that the accused could have anticipated or safely avoided the hazard.

Taken together with the GPS data, braking marks, and dashcam video, the court finds that the collision arose from external factors beyond the control of the accused. This aligns with the principles established in PP v Tan Eng Hong [2013] MLJU 1223 and Jamalodin bin Elias v PP [2020] MLJU 345, where the courts held that a collision resulting from sudden, unavoidable circumstances does not automatically establish criminal liability.

Accordingly, the court concludes that the cause of the collision was predominantly the sudden roadworks and external circumstances, not any dangerous driving by the accused. This introduces reasonable doubt as to whether the accused’s driving caused the accident, and therefore, criminal liability is not established.

B. Application of Legal Principles The relevant statutory provision, Section 41(1) of the Road Transport Act, criminalises “dangerous driving” which, objectively, falls below the standard of a competent and careful driver.

The courts have consistently held that: • Objective standard applies: What matters is whether a competent driver would have driven more safely. • Accident alone is insufficient: Mere occurrence of a collision does not establish criminal fault. • Causation is essential: There must be a clear link between the manner of driving and the dangerous outcome.

Applying these principles to the present case: • The accused drove within the speed limit; • Maintained safe distance; • Reacted promptly; • Had no distractions or impairment; • Physical and situational constraints left no alternative safe course.

In short, the accused’s driving met the objective standard of care required by law. There is no evidence that he breached the duty owed to other road users.

C. Credibility and Weight of Evidence The Court places great weight on the testimony of the accused and SD2, both consistent and corroborated by objective evidence: • GPS data showing braking; • Dashcam video showing traffic conditions; • Scene photographs confirming braking marks and vehicle positions; •

Sudden road closure due to ongoing roadworks The prosecution’s evidence, while voluminous, failed to displace the accused’s credible account. Investigating officer SP13 acknowledged gaps in establishing that the accused acted dangerously.

The Court also notes that eyewitness SD2’s account confirmed that traffic conditions were highly unpredictable, reinforcing that the danger was external.

D. Conclusion on Liability Applying settled legal principles, the Court concludes:

The accused did not drive in a manner dangerous to the public;

The collision resulted from external, sudden traffic conditions, not any fault of the accused;

The prosecution has failed to prove beyond reasonable doubt that the accused’s driving was the cause of danger.

Accordingly, the accused is acquitted of the charge under Section 41(1) of the Road Transport Act.

E. Observations and Guidance The Court notes that heavy vehicle drivers face inherent challenges in situations of sudden congestion. Maintaining vigilance, speed compliance, and safe distance—as demonstrated by the accused—is critical. This case reinforces that criminal liability cannot attach where a competent driver has reacted appropriately to unavoidable circumstances.

The Court also observes the importance of adequate signage and roadwork management, which might have prevented the sudden traffic hazard. Final Order In the matter of the charge under Section 41(1) of the Road Transport Act: • The accused is hereby acquitted of all four counts.