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2022 MarsdenLR 951
HIGH COURT MALAYA TAIPING
YEE KAR HENG – Appellant
Versus
PP – Respondent
[Criminal Appeal No: AB-41S-5-03/2021]
The court ruled that the accident resulted from the car's high speed rather than the accused's dangerous driving, emphasizing the need for careful judicial evaluation of evidence.
Headnote:(A) Road Transport Act 1987 – Sections 41(1) and 43(1) – Dangerous driving – Accused convicted under s 41(1) for driving dangerously leading to the death of three individuals. Appellate Court found magistrate misdirected herself by dismissing inconsistencies in witness testimonies regarding the point of impact, leading to wrongful conviction. Evidence suggested that accused swerved to avoid an animal and the collision was due to the car's high speed, not dangerous driving by accused. Conviction under s 41(1) set aside and substituted with conviction under s 43(1) for driving without due care. (Paras 44-46)
(B)
Appellate Jurisdiction – Court’s duty to evaluate all evidence – Appellate court emphasized need for complete judicial evaluation of evidence without bias towards prosecution or defence testimony. (Paras 43-49)
Key Points: - The appellate court found that the trial magistrate misdirected herself by dismissing inconsistencies in witness testimonies regarding the point of impact, leading to a wrongful conviction (!) . - The court emphasized the need for careful judicial evaluation of all evidence without bias towards prosecution or defense testimony (!) (!) . - The accident was determined to be a result of the car's high speed rather than the accused's dangerous driving (!) (!) . - The conviction under Section 41(1) of the Road Transport Act 1987 for dangerous driving was set aside (!) . - The accused was substituted with a conviction under Section 43(1) of the Road Transport Act 1987 for driving without due care and attention (!) (!) . - The trial magistrate erred by not adequately considering the accused's explanation of swerving to avoid an animal and by dismissing inconsistencies in witness testimonies (!) (!) (!) . - The court highlighted that the prosecution failed to prove the core ingredient of dangerous driving under Section 41(1) RTA beyond reasonable doubt (!) . - The evidence suggested that the car was speeding, which contributed significantly to the accident (!) (!) (!) . - The accused was sentenced to a fine of RM8,000, with a default of six months' imprisonment, for driving without due care and attention (!) . - The court reiterated that merely because an accident happened leading to a fatal consequence does not automatically mean the accused was driving dangerously (!) .
What is the duty of an appellate court in evaluating evidence?
What are the elements of dangerous driving under Section 41(1) of the Road Transport Act 1987?
How should a trial court assess the defense of an accused in a traffic offense case?
JUDGMENT
Background Facts
[1] Case pertains an accident. Accused drove a lorry on 14 September 2018, at around 8.00pm along KM44.5 Ipoh-Taiping Road, at the district of Kuala Kangsar. Allegedly, his dangerous driving had caused death of Muhammad Ashraf bin Hamdan Al-Fikri, Muhammad Irfan bin Hamdan Al-Fikri, and Muhammad Amirul bin Fahmi Samsudin. The lorry was heading towards Kuala Kangsar from Sungai Siput, while the car was heading in the opposite direction. It was a straight stretch with two lanes on each direction and there was very little traffic on that fateful night, save for the two vehicles and a 4-wheel drive (Navara) which was behind the lorry.
[2] For easy reference and clarity, P4, sketch of the accident can be found in L (10) Rekod Rayuan Jilid 3, at p 9. The significant points in P4 are:
A - the car
B - the lorry
A3 - A4 - lorry's pathway
A5 - A6 - car's pathway
C1 - first point of impact & scratch marks as explained by investigation officer (IO) SP8.
C2 - accident debris and oil spillage
C3 - tyre marks of the lorry
K - position of head of lorry
T - position of lorry's tyres
X - first point of impact as explained by SP7, witness who was travelling in the 4-wheel drive.
[3] Apparently, what had transpired that night was, the lorry was driven on the right lane and had veered into the car's right of way. On realizing this, the lorry driver then tried to go back to its lane but it was too late as the car had crashed into the lorry. As a result, the car was pinned under the lorry and dragged for about 50 meters before the lorry crashed into an electric post on the left of the road. There were two witnesses to the accident, viz. SP3 Shivaraju a/l Sinalthan and SP7 Linggeswaran a/l Meenachi Sundaram whom were travelling in a 4-wheel drive behind the lorry.
[4] Accused Yee Kar Heng (SD1) was charged for three offences of dangerous driving resulting in the death of three different victims, under s 41 (1) of the Road Transport Act 1987 ( RTA ; Act 333) at the Magistrate's Court, Kuala Kangsar. The Court had entered conviction for each and every charge and sentenced him to three years imprisonment, which is to take effect concurrently. Further, a fine of RM5,000.00 was also imposed for each of the charges, which took effect consecutively. Thus, accused has to serve three years imprisonment and pay a fine of RM15,000. Alongside, his driving licence was ordered to be suspended for a period of three years, for which period of time he cannot be driving on the road, thus losing his lifeline.
[5] The magistrate had arrived at the decision premised on the following bases:
- concluded the lorry driver was indeed driving in a reckless and dangerous manner.
- attributed the victims' death to the reckless and dangerous manner the lorry was driven.
- held investigation done by SP8 was consistent with testimonies of SP3 and SP7.
- agreed with prosecution that point of impact was at A4-A5, which was at the car's right of way.
- found the different versions on the point of impact immaterial and not fatal to the case.
- believed testimonies of SP3 and SP7, stating they were reliable and consistent witnesses. Added on to state they had no interest in the case so as to manipulate their testimonies.
- decided, although no police report was lodged by the said witnesses, it had by no means affected their credibility. They were not part of the accident and their testimonies in Court were adequate for the Court to decide that they indeed witnessed the accident.
- affirmed, cause of death was caused by polytrauma injuries as confirmed by SP9 and SP10 whom had conducted post mortem on the victims. Furthermore, victims were brought out lifeless at the scene of accident, which points to the fact they died due to the accident.
- discounted claim by defence that SD1 at the material time was avoiding an animal which had run across the road.
- disagreed lorry was driven at 45km/h as claimed by SD1, because the 4-wheel drive at the back of lorry, where the
