Vincent Ng JC:

The appellant pleaded guilty to a charge under s. 34A(1) of the Road Traffic Ordinance 1958 ("the Act") and was sentenced by the learned Magistrate to six months? imprisonment with the conviction endorsed on the driving licence under s. 34A(1A). He was also disqualified from holding or obtaining a driving licence for 12 months under s. 34A(1B) of the Act. He now appeals against sentence.

He had pleaded guilty on 8 May 1992, to the charge in respect of the road accident which occurred on 7 November 1974.

Section 34A(1) of the Act reads as follows:

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 use 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 term of imprisonment not exceeding five years or to a fine not exceeding five thousand dollars or to both.

The facts of the case adduced briefly by the prosecuting officer only said that the appellant was at the material time driving motor lorry No. BN 5857 along Gelugor Road from Jelutong to Bayan Lepas when he (the appellant) knocked into the back of the deceased?s bicycle while trying to overtake the latter, who was travelling in the same direction. As a result the deceased fell on the right side of the said lorry and was seriously injured and died soon after admission into Penang District Hospital. It ought to be noted here that, before sentence, no evidence - other than the aforesaid - was adduced in the Court below as to the degree of recklessness or culpability and callous disregard for the safety of other road users shown by the appellant. Neither was the sketch plan which was produced by the prosecution, (which did not indicate any brake marks on the road) of any help in this regard. Indeed, no record of conviction was made by the learned Magistrate.

Before sentence was passed the prosecuting officer merely suggested that the Court imposed a "balanced" (by the term "setimpal") sentence on the grounds that a life had been lost due to the accident. By the term "balanced" the prosecuting officer presumably meant a sentence co-extensive with the offence committed. In this regard, the prosecuting officer was nebulous at worst and ambivalent or equivocal at best.

In his grounds of judgment, though the learned Magistrate conceded that the case appeared to be a normal sort of road accident yet he opined that a serious view of the offence should be taken and a fine was not a suitable penalty in "reckless driving which had caused loss of a life" (in his words). He further held that it was the duty of the Court to warn other drivers of vehicles, due to the prevalence of such offence.

After careful reading of the learned Magistrate?s judgment it is pertinent to note that he had paid scant regard for the facts of the particular case before him and particularly - for sentencing - the circumstances and nature of the accident which would disclose the degree of culpability of the appellant. Indeed, such vital particulars for sentencing were neither elicited by the learned Magistrate from either of the parties nor did he glean from the prosecuting officer when the latter presented the facts of the case before sentence was passed. I cannot but feel that the appellant was given exemplary sentences in terrorem more as a hope for deterrent to other motorists than because he had driven wilfully in a manner dangerous to the public. This is entirely contrary to the principle of sentencing and also markedly runs counter to the principles enunciated in the English case of R v. Guilfoyle [1973] 3 All ER 844. As this is a landmark case on the issue of sentencing of a defendant who had caused death by dangerous driving, I shall take the liberty here to quote in extensionem the material pa