Nallini Pathmanathan JC:

Introduction

[1] This is an appeal by the public prosecutor ('appellant') from a decision of the magistrate's court ('the trial judge') acquitting and discharging the respondent ('the accused') at the close of the prosecution case, in respect of a charge of dangerous driving preferred against him under s. 41(1) of the Road Transport Act 1987 ('the Act') as a consequence of a road accident involving a motor-vehicle driven by the respondent and one Anas bin Ahmad Azam ('Anas') aged eight, who died. The respondent was acquitted at the close of the prosecution case without defence being called.

Charge Preferred Against The Respondent

[2] The charge against the respondent is as follows:

Bahawa kamu pada tarikh 27.7.98 jam lebih kurang 1515 hrs. bertempat di Jln Melawati Dalam Daerah Gombak dalam Negeri Selangor Darul Ehsan sebagai pemandu kenderaan M/Kar No. WDV 8809 telah memandu kenderaan tersebut di atas jalanraya secara berbahaya dalam kelajuan yang tinggi sehingga menyebabkan kematian kepada Anas bin Ahmad Azam umur 8 tahun, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 41(1) APJ 1987.

[3] The English translation of the charge reads as follows:

That you on 27.7.98 at about 1515 hours at Jalan Melawati in the district of Gombak, Selangor as the driver of vehicle motorcar number WDV 8809 did drive the said vehicle on the road dangerously and at a high speed thereby causing the death of Anas bin Ahmad Azam aged 8, as such you have committed a offence that can be punished under s. 41(1) of the Road Transport Act 1987.

The Law

[4]Section 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 size of the road, and the amount of traffic which is or might be expected to be on the road) is dangerous to the public, causes the death of any person shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both. (emphasis added)

[5] The essential ingredients then of the offence created under s. 41(1) of the Act are:

(a) a person who,

(b) by driving a motor vehicle recklessly; or

(c) by driving a motor vehicle at a speed; or

(d) by driving a motor vehicle in a manner which, having regard to the circumstances (including the nature, condition and size of the road and the amount of traffic which is or might be expected to be on the road) is dangerous to the public;

(e) causes the death of a person

shall be guilty of an offence ...

[6]Section 41(4) of the Act provides:

... The court may upon the trial of a person for an offence under this section s. 41(1) convict such person of an offence under section 42 (dangerous and reckless driving but without causing death) or section 43 (driving without due care and attention or without reasonable consideration).

[7] Thus the legislature recognizes that a court may alternatively choose to convict under s. 42 or s. 43 of the Act notwithstanding that the charge preferred is under s. 41(1), in accordance with the particular facts and circumstances of each case. This section also serves to emphasize the requirement that under s. 41(1) of the Act it is not simply sufficient that a driver drives recklessly or at a high speed or dangerously, but that such driving must cause the death of a person.

[8] Vincent Ng J (as His Lordship then was) explained that two categories of cases arose in the case of death caused by dangerous driving in Public Prosecutor v. Zulkifli bin Omar [1998] 1 CLJ 1079; [1988] 6 MLJ 65. His Lordship referred to and accepted the categorization developed by Lawton J in R v. Guilfoyle [1973] 2 All ER 844 which states:

... Cases of this kind (causing death by dangerous or reckless driving) fall into two broad categories; first, those in which the accident h