A vehicle owner can be convicted for overload under the Land Public Transport Act if evidence of the overload is presented satisfactorily, reducing sentences on appeal is permissible but conviction becomes final without error.

JUDGMENT

Muniandy Kannyappan JC:

Offence Committed

[1] This criminal appeal stems from a summons case at the Sessions Court, Kuala Kangsar. The defendant Gan Choo Yong is the owner of a lorry semi-trailer with open platform (referred to as motor vehicle/motor lorry/trailer, interchangeably) bearing Registration No WCD 6190 T/WB 4375 driven by one Rusli bin Hashim.

[2] She was charged for an offence under the Land Public Transport Act 2010 (Act 715). The Act provides for and regulates land public transport and for matter incidental thereto. The offence committed is that as the owner of motor lorry, she had allowed her vehicle to ply on the highway laden with weight, which is not permitted under the law. The weight of the lorry at the material time of offence was 56,450 kg, which was 52.6% heavier from the weight allowed of 37,000 kg. Thus, an excess of 19,450 kg. That act culminates into an offence under s 57(1)(b)(vi) of Act 715, which reads:

57. (1) Subject to this Act, the Commission may attach to an operator's licence issued under this Chapter such conditions as it may think fit, and in particular:

(b) That the licensed operator shall have such duties, rights, obligations or restrictions as may be imposed by the Commission, including:

...

(vi) That the laden weight of any goods vehicle shall not exceed a specified maximum;...

[3] The defendant had claimed trial to the charge preferred against her. On the conclusion of the trial, the Sessions Court Judge (SCJ) found her guilty, convicted and sentenced her to a fine of RM50,000 and in default of payment of that fine, she has to serve eight months' imprisonment.

The Appeal

[4] An appeal was lodged to the High Court against the said decision pursuant to s 307(1) of the Criminal Procedure Code ( CPC ). It was submitted by counsel for the defendant that the SCJ had committed an error in law which had prejudiced the defendant, thus inviting this Court to intervene and order an acquittal instead.

[5] This Court heard the appeal and decided not to intervene as there has been no appealable error committed by the SCJ when she found the defendant guilty and convicted her on the charge. Thus, the conviction was maintained. However, I took liberty within my powers under s 316(b)(ii) CPC , to reduce the sentence of fine from an amount of RM50,000 to RM40,000.

[6] The finding of guilty and conviction was maintained as the body of evidence available on record and well-reasoned judgment by SCJ, is concomitant with weight of evidence proffered in the case and law applicable.

[7] The SCJ had in fact taken into consideration all relevant factors before meting out a sentence of fine on the defendant. However, on the premise that there was disregard for mitigating factors advanced by the defendant, relating to reason for commission of the offence, this Court finds it reasonable to have the sentence of fine reduced. It is stark that as the owner of the vehicle based at Serdang, Selangor, she was unaware of the happening on the ground by the driver of the motor lorry whom had breached the restriction imposed, by plying the motor lorry on the highway when its laden weight was excessive, more than what is allowed. In sum total, the reduction of fine is only proportional to the offence committed by the defendant. But the default sentence in case of nonpayment of fine, remains. It is understood that the fine ordered had been paid by the defendant. On the issue of proportionality of sentence, the case of R v. Ipeelee [2012] 1 SCR 433, referred to by the SCJ, albeit being persuasive is instructive. It decides that:

"Proportionality... is not just a sanction. First, the principle ensures that a sentence reflects the gravity of the offence, ... it promotes justice for the victims and ensures public confidence in the system of justice. Secondly, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender."

[Emphasis is mine]

Alleged Error Of L