Raja Azlan Shah J:

(delivering oral judgment): The appellant was driving a Sri Jaya bus on the main Kuala Lumpur/Ipoh Road. He intended to turn right into Jalan Perhentian. But he did not stop at the junction. The said bus collided into a scooter coming from the opposite direction. The pillion rider died as a result of the collision. On those simple facts the learned President found the appellant guilty under s. 34A(1) of the Road Traffic Ordinance, 1958 and sentenced him to one day's imprisonment and fined him $2,000 in default six months' imprisonment. He was further disqualified from driving all classes of vehicles for a period of five years. He appealed against conviction and sentence.

It is not the law under s. 34A of the Road Traffic Ordinance that merely because an accident had happened and a person had been killed, danger had in that sense arisen and therefore it must follow, as the night, the day, that the appellant was driving in a manner dangerous to the public. In a case under s. 34A, two things must be established. First, there must be a situation created by the accused which, viewed objectively, is dangerous. Dangerous driving is not defined in the Road Traffic Ordinance and it is up to the Court to come to a decision on the evidence. Reported cases can only serve as illustrations. For instance as illustrated in Public Prosecutor V. Cheong Kam to overtake a cyclist who is far from steady at the moment when a heavy lorry is approaching from the opposite direction is to take an unjustifiable risk and constitutes dangerous driving. In Public Prosecutor V. Low Yong Ping driving into the path of an oncoming traffic is dangerous driving. Recently in Lau Lim Peng V. Public Prosecutor where a lorry approaching a dangerous bend at a speed far in excess of the speed limit and in order to avoid the vehicle from overturning knocked into the front of another vehicle it was held it was dangerous driving. In the present case turning right into the side road without stopping to give way to through traffic is dangerous driving.

Secondly, the prosecution must prove that when creating such a situation the appellant must be at fault. "Fault involves a failure; a failing below the care and skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances." A competent and careful driver would have stopped at this junction before turning into the side road. This is because s. 18 of the Highway Code says that when turning left or right, drivers must always give way to through traffic, including pedestrians. Now, s. 59(4) of the Road Traffic Ordinance provides that any Court may take into consideration any failure to observe the provisions of the Highway Code. To sum it all, the accused was at fault in creating that dangerous situation. I think the principle of what I have said here is set out fully in R v. Gosney [1971] 3 All ER 220.

In essence, the submission of learned Counsel is that the learned president who saw and heard the witnesses had arrived at a wrong conclusion. The cases where an appellant in relation to a pure issue of fact can succeed on that ground in an appellate Court are very few and far between. The House of Lords in 1968 in the case of Onassis & Callas v. Vergottis [1968] The Times, 1 November once again stressed that the findings of fact of the trial Judge ought not to be disturbed essentially on the credibility of the witnesses. Whether the accused did stop at the junction is a question of fact based on the credibility of the witnesses whom he has seen and heard. The decision turned solely on the impact made on the learned president by witnesses called on each side. It is true that while the appellant, DW2 and DW3 asserted that the bus did stop before turning into the side road, the scooterist and the bus-conductor opposed them. But, I have no doubt that the learned president did not make the cardinal error of saying: "three on one side, and two on the