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2024 MarsdenLR 33
HIGH COURT MALAYA PERAK
KHOR BOON SIEW – Appellant
Versus
PP & ANOTHER CASE – Respondent
[Criminal Appeal Nos: AA-41S-1-01-2023 & AA-41H-2-01-2023]
A charge under the Road Transport Act must be clear; however, flaws in blood sample handling can undermine evidence reliability, leading to acquittal.
Headnote:(A) Road Transport Act 1987 - Section 44(1)(b) - Criminal Procedure Code - Section 163 and 422 - Defective charge - The court found the charge against the Appellant was not defective despite claims of ambiguity regarding driving under the influence of alcohol or drugs. The Appellant's conviction was based on sufficient evidence and clear charge specifics. (Paras 8, 16)
(B) Evidence - Blood sample reliability - The court held that the blood sample evidence was unreliable due to critical flaws in handling and lack of preservatives, impacting the reported alcohol level. The appeal was allowed, discharging and acquitting the Appellant. (Paras 27, 32)
Facts of the case:
The Appellant was convicted under s 44(1)(b) of the Road Transport Act for driving under the influence of alcohol, resulting in an accident. The charge was contested on grounds of ambiguity and procedural flaws in evidence collection.
Findings of Court:
The charge was deemed valid, but the blood sample evidence was found unreliable, leading to the Appellant's acquittal.
Issues: The main issues were the clarity of the charge and the reliability of the blood sample evidence.
Ratio Decidendi: The court ruled that while charges must be clear, the specifics of the charge were supported by evidence; however, the blood sample's integrity was compromised, warranting acquittal.
Result: The Appellant's appeal was allowed, and the conviction was set aside.
Based on the provided legal document, the key points are as follows:
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Validity of the Charge: The court found that the charge under the Road Transport Act was not defective despite claims of ambiguity regarding whether it was for driving under the influence of alcohol or drugs. The specifics of the charge were supported by sufficient evidence, and the language used was consistent with statutory requirements (!) .
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Reliability of Blood Sample Evidence: The court held that the blood sample evidence was unreliable due to procedural flaws, including improper handling, lack of preservatives, and issues with chain of custody. These flaws compromised the integrity of the evidence, leading to doubts about the accuracy of the reported alcohol level (!) (!) .
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Impact of Evidence Flaws: Because the blood alcohol level could not be accurately determined, the court concluded that the evidence did not reliably establish the Appellant's intoxication at the time of the incident. This was a significant factor in the decision to allow the appeal and set aside the conviction (!) (!) .
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Identification of the Driver: The court found that the evidence overwhelmingly established the Appellant as the driver involved in the accident. Multiple police reports and eyewitness testimonies consistently identified him as the driver, and the Appellant's own statements supported this conclusion (!) (!) .
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Procedural Irregularities and Investigation Credibility: The Appellant raised concerns about procedural irregularities, such as delays in police reporting, the absence of remand, and inconsistencies in the investigation process. However, the court noted that these irregularities did not cause injustice to the Appellant and did not invalidate the proceedings (!) (!) (!) .
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Appellant’s Defense and Evidence: The Appellant argued that his wife was the actual driver, supported by her admission. Nonetheless, the court found the evidence from police reports and eyewitness accounts more credible, establishing the Appellant as the driver involved in the accident (!) (!) .
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Legal Principles on Evidence and Procedure: The court emphasized that irregularities in evidence collection or procedural errors do not necessarily vitiate proceedings unless they result in a failure of justice. The standard of proof for identifying the driver and establishing intoxication was met by the available evidence, except for the unreliable blood sample evidence (!) .
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Outcome: The appeal by the Appellant was allowed due to the unreliability of the blood sample evidence, leading to the setting aside of the original conviction and the discharge and acquittal of the Appellant. Conversely, the prosecution’s appeal was dismissed as the evidence did not meet the necessary standards (!) .
These points collectively highlight that while the charge was properly formulated, the critical flaw in the blood sample evidence led to the Appellant’s acquittal. The court’s decision underscores the importance of procedural integrity and reliable evidence in criminal proceedings.
JUDGMENT
[1] This appeal called into question the defects in the charge, shortcomings in the police investigation and chemist analysis and whether this court can review and disturb the findings of the Learned Magistrate on appeal. The Appellant was convicted and sentenced under s 44(1)(b) of the Road Transport Act 1987 , he was sentenced to 48 months' imprisonment and fined RM8,000.00, in default of payment, an additional 12 months' imprisonment was imposed. The charge is read as follows:
"Bahawa kamu pada 25 Januari 2020 jam di antara 2100 hrs hingga 2130 hrs di KM3, Jalan Maharajalela di Daerah Hilir Perak telah memandu motorkar No VDD 2321 jenis Perodua Aruz di bawah pengaruh alkohol melebihi had yang ditetapkan iaitu sebanyak 151 miligram per 100 mililiter darah dan menyebabkan kecederaan kepada penunggang motosikal No AGM 8930 nama: Muhammad Mukhlis bin Mohamed Huzori. Oleh itu kamu telah melakukan kesalahan di bawah s 44(1)(b) Akta Pengangkutan Jalan 1987 (Akta 333) iaitu memandu semasa berada di bawah pengaruh minuman yang memabukkan atau dadah".
[2] After carefully considering the submissions presented by both the Appellant and the Respondent, the focus of these appeals is narrowed down to three (3) issues:
a) Whether the charge is defective;
b) Whether the Appellant was the driver of the vehicle involved in the accident with the victim; and
c) Whether the Appellant was driving (if proven that he is the driver) under the influence of alcohol.
Appellant's Argument On Defective Charge
[3] The Appellant contends that the charge is defective because it is in itself ambiguous as to whether the charge is for driving under the influence of alcohol or drugs. The crux of the Appellant's argument is that such wording introduces duplicity into the charge, potentially confusing the accused about what he needs to defend against, whether driving under the influence of alcohol or drugs. This ambiguity according to the Appellant, impaired the accused's ability to prepare a precise defence, thereby compromising the fairness of the trial.
[4] The Appellant relies on the principle established in Sam Ke Ting lwn. Pendakwa Raya ; [2023] 5 CLJ 704 ; where the court emphasises the necessity of a clear charge:
"(1) The duplicity in the charge had confused the prosecution, the appellant and the court. The prosecution was confused in that they were uncertain as to which offence in the charge should be proven against the appellant. The appellant was confused as to which offence in the charge she should reply to or defend herself against. The court, on its part, was unable to conclude against which offence in the charge the prosecution had proven a prima facie case, if any (see para 26)
(2) During the hearing of the appeal, the court had asked the deputy public prosecutor ('DPP') as to which offence in the charge the appellant was faced with. The DPP replied that it was for 'driving recklessly'. When asked again as to which offence the appellant had been convicted of, the DPP replied that the conviction was as per the charge. This meant the conviction was not for the offence of driving recklessly. The appellant had, thus, succeeded in showing that confusion had occurred at every step of the proceedings until the stage of conviction. This confusion had prejudiced the appellant (see paras 27-28).
(3) The appellant's contention that the charge against her was duplicitous had merit. The duplicity rendered the charge invalid as it offended s 163 of the Criminal Procedure Code ('the CPC ') and was a fundamental defect that was incurable under s 422 of the . The non-compliance with s 163 had caused a miscarriage of justice to the appellant. Her conviction was bad as it was based on an invalid charge. The conviction had to be set aside. On the ground of duplicity in the charge alone, the appeal had to be allowed (see para 41)"
Respondent's Counter-Argument
[5] Conversely, the Respondent asserts that the charge is sufficiently clear detailing that on
