JUDGMENT

Spenser Wilkinson J:

This was an appeal by the Crown against the sentences imposed upon the respondent in respect of a charge under s 304A of the Penal Code and a charge of failing to stop after an accident under s 12(i) of the Motor Vehicles (Driving Offences) Proclamation.

The facts were that the respondent was seen in company with another soldier taking and driving away without Military permission a Military 1-ton lorry of which he was not normally the driver Whilst driving along a straight piece of road near the sixth milestone on the main North-South road in Province Wellesley at a very fast speed the vehicle driven by the respondent collided with a Malay who was pushing a bicycle on the same side of the road in the same direction was two children aged 11 and 6 respectively on the bicycle. As a result of the collision the Malay who had been wheeling the bicycle and one of the children were thrown approximately 30 feet and killed instantaneously. The vehicle failed to slow down or stop. It was next seen at 6.30 pm. at Machang Buboh where it had broken down and the accused was taken into Military custody. The left mudguard and the left front lamp were heavily damaged and bloodstained. The respondent admitted partaking of alcoholic refreshment prior to the accident.

Originally two charges were framed under s 304A of the Penal Code in respect of the death of each of the deceased. The learned Magistrate, however, quite properly amended these charges and framed one charge under s 304A of the Penal Code in respect of both deaths This is in accordance with the decision in the case of PP v. Sayer [1947] MULR 129; (1947) MLJ 142.

The learned Magistrate also framed a second charge under s 12(1) of the Motor Vehicles (Driving Offences) Proclamation of failing to stop after an accident. The respondent pleaded guilty to both charges He was, therefore, convicted and on the first charge was fined $1,500 or three months' imprisonment in default, and on the second charge was fined $200 or one month's imprisonment in default.

The learned DPP submitted that in a case such as this the accused should not have been given the option of a fine but that a sentence of imprisonment should have been imposed.

In his grounds of decision the learned Magistrate said:-

However the only proper object of any fine or imprisonment in a case of this nature is to provide a deterrent to others and the sentence should not aim at retribution. I considered, moreover, that the sentence imposed should be related to the accused's act in driving in a dangerous manner rather than to the tragic, but largely fortuitous consequence that two persons had been killed. I observed that the maximum penalty provided for a first offence of dangerous driving under the Motor Vehicles (Driving Offences) Proclamation is a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six months The accused, being a soldier in the British Army, was not highly paid. It was his first offence.

The learned Magistrate appears to me to have erred on a matter of principle. There is no analogy between the offence of dangerous driving and an offence under s 304A. Causing death by a rash act is a form of homicide and is roughly the equivalent of the English offence of manslaughter by negligence. It is the causing of death which is the main ingredient in the offence. A person may be guilty of dangerous driving, although he has caused no damage to anyone.

In considering what sentence should be imposed I found some difficulty at first sight in distinguishing the present case from that of PP v. Sayer, [1947] MLJ 142. In Sayer's case [1947] MULR 129; (1947) MLJ 142, however, the vehicle driven was a very big Military lorry and the rashness consisted in driving this vehicle at a high speed in one of the most congested streets of Kuala Lumpur at a very busy time. In the present case the respondent was driving a smaller vehicle and was driving along a stretch of straight road where spe