Zamani A Rahim JC:

The Charge

[1] The charge against the appellant (accused) was under s. 41(1) of the Road Transport Act 1987 (the Act) and the charge reads as follows:

Bahawa kamu pada 17/12/2002 jam lebih kurang 11.00 pagi di Jalan Sungai Perahu, Jeniang di dalam Daerah Kuala Muda, Kedah semasa memandu motorkar No: WFA 2278 di atas jalanraya tersebut kamu telah memandu dalam keadaan yang merbahaya dan menyebabkan kematian Mohd. Faezuan bin Nordin KP 000930140609. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 41(1) Akta Pengangkutan Jalan 1987 (Pindaan 1999 Akta A 1065) yang boleh dihukum di bawah seksyen dan Akta yang sama.

Prosecution Case

[2] The prosecution case may be summarised as follows:

[3] On 17 December 2002, at about 10.30am, SP5 was driving his motorcar, WHR 9491 from the direction of Jeniang towards Sungat Petani. Together with him in the said motorcar were his wife, SP4, three children including 14-month old son, a cousin and a mother-in-law. The wife, SP4 was seated on the passenger front seat next to SP5. The 14-month old son, Mohd Faezuan bin Nordin was on her lap.

[4] Upon arrival at a bend at Jalan Sungai Perahu, Jeniang, a motorcar, WFA 2278 driven by the accused came from the opposite direction, at a distance of about 50 metres overtook a motorcar in front of him. In the course of overtaking, the accused had encroached into SP5's right of way. SP5 evaded to the left onto the grass road shoulder and at the same time, SP5 gave a warning by flashing high light. The accident was not to be avoided. The accused's motorcar veered of his path and collided on with SP5's motorcar. As a result of the collision, SP5's 14-month old son, Mohd. Faezan bin Nordin had passed away.

[5] A police report vide Kuala Muda Report No: 6602/02 was lodged by SP5.

Law

[6] The offence of s. 41(1) of the Act provides.

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 side of the road, and the amount of traffic which might be expected to be on the road) is dangerous to the public, cause the death of any person shall be guilty of an offence and shall on conviction be punished with imprisonment for a term of not less than two years and not more than ten years and to a fine of not less than five thousand ringgit and not more than twenty thousand ringgit.

[7] The predecessor of s. 41(1) of the Act was s. 34A of the Road Traffic Ordinance. In considering s. 34A in Ramiah v. PP, Raja Azlan Shah (as he then was) said:

It is not the law under section 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 section 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.

[8] In another case PP v. Ong Kia Chan [2006] 4 CLJ 334 it was held as follows:

In a case of dangerous driving, the prosecution must establish that:

(1) a situation created by the accused is dangerous eg, turning right into the side road without stopping to give away to through traffic; and

(2) when creating a situation the accused was 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 the relevant circumstances ((per Raja Azlan Shah in Ramiah v. PP) at pp 258-259.

[9] In my view there are three distinct offences under this section because the use of the word "or" which is disjunctive. They are:

1) by driving a motor vehicle recklessly;

2) by driving a motor vehicle at a speed;