JUDGMENT

IN THE MAGTSTRATE'S COURT AT LIMBANG

IN THE STATE OF SARAWAK

VIDE CASE NO.86-345-97-84-2

BETWEEN

PUBLIC PROSECUTOR

AND

WALTER WILLIE SIAU AK TAMASIAN

Before The Honourable Mr Robert Pasang Alam.

JUDGMENT

The accused is indicted on various kind of traffic offences under the Road Transport Act 1987 . On 6th. March, 1998, the accused pleaded guilty to the 2nd, 3rd, 4th and 5th charges and convicted and sentenced to a line totalling RM2,140. The accused claimed trial on the 1st. charge for an offence under s 41(1) of the Road Transport Act 1987 (the Act). On the hearing date of 30th. [Page 1] September, 1998, the accused changed his plea of not guilty to a plea of guilty, convicted and sentenced to two months jail and a fine of RM3,000 in default thereof two months jail. Besides, having considered the nature of the offence and the surrounding circumstances, subsections (2) and (3) of s 41 of the Act were invoked against the accused where his driving licence was ordered to be endorsed with particulars of the said offence and to disqualify him holding any driving licence for a period of two years with effect from the date thereof. As I have said grounds of decision would be given in the event of appeal, and as there is an appeal against the aforesaid sentence, I will do so now.

8 41(1) reads as follows (verbatim):

"(1) Any person who, by the driving of a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature, condition and size of the road, and the amount of traffic which is or might be expected to be on the road) is dangerous to the public, causes the death of any person shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to [Page 2] both. "

It is not uncommon that when an accused person is convicted under s 41(1) and before sentence is pronounced, a prosecuting officer would suggest that a balance sentence is to be imposed on the grounds that an innocent human life is lost due to accident. In this regard, an appropriate answer is as what Vincent Ng (JC then) in Goh Keng Seong v PP (1993) 1 MLJ 103 had said at pp 106-107, thus:

"By the term 'balance' the prosecuting officer presumably meant a sentence co-extensive with the offence committed. In this regard, the prosecuting officer was nebulous at worst and ambivalent or equivocal at best. ".

The reasons being that, as explicitly expressed in PP v Zulkifli Omar, [1998] 6 MLJ 65 by Vincent Ng J at p 1088 is:

"It is vital to maintain the dichotomy between the two categories of the offence under s 41(1) of the Act, considering that the nature of punishment to be imposed on a defendant would he wholly dependant upon whether the COURT has made a finding, beyond reasonable doubt, as to which of the two categories of the offence has been committed.".

This distinctive categorisation of dangerous or reckless driving [Page 3] which is fall into two categories is decided in a landmark case of R v.Guilfoyle (1973) 2 ALL ER 844, delightfully approved in Goh Keng Seong v, PP (supra) and PP v. Zulkifli Omar (supra), where Lawton LJ had this to say at p 845:

"Cases of this kind (causing death by dangerous or reckless driving) fall into broad categories; first, those in which the accident has arisen through momentary inattention or misadjudgment (hereafter called the first category), and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness (hereafter called the second category) ".

It is held that an offence falls under the first category, the sentence being:

"In the judgment of this COURT an offender who has been convicted because of momentary inattention or misadjudment and who has a good driving record should normally be fined and disqualified from holding or obtaining a driving licence