Chang Min Tat J:

In this appeal and cross-appeal, the accused appealed against his conviction under s. 34A of the Road Traffic Ordinance for driving in a manner which having regard to all the circumstances was dangerous to the public and thereby causing the death of a pillion-rider on a motor-cycle for which he was, inter alia fined $800 and the Public Prosecutor appealed against the sentence on the grounds of manifest inadequacy.

Suffice it to say, that the driving in a built-up area and in the presence of other traffic was clearly dangerous. It was also a case of a hit and run motorist. In such circumstances clearly the sentence was inadequate so that if the conviction could have been maintained, I would not have any hesitation of imposing a long spell in prison.

The appeal by the accused was urged on me on a variety of grounds, not one of which was, with respect, of any cogency. Cumulatively however they added up to the one submission that the identification of the accused as the driver of the vehicle concerned had not been made with that reasonable certainty that the law required. It might have been more relevant to have concentrated the appeal on this one ground.

As for the evidence for the prosecution, the motorcyclist carried a pillion-rider who survived to narrate the dangerous manner in which a car knocked him down. He could not identify the motorist or the car. However there was a motorist who was earlier overtaken by a car and who was of sufficient presence of mind to read the registration number of the car in question, though he failed to notice the alphabets before it. He had however seen the driver before. The next morning he telephoned a mutual friend for the name of this person and this name was in his evidence "a Michael something." He had since forgotten the second name that he was given. What he did with the information was not in evidence but clearly such evidence if given to the police would have been caught by s. 113 of the Criminal Procedure Code (Cap. 6). The mutual friend was offered for cross-examination. He affirmed that the car number plate was AH 2800. There are a number of discrepancies between the motorist and his friend, but how material they were the learned president had, with respect, failed to consider. He was however satisfied with the identification of the accused by the motorist.

What this motorist however said in evidence was to the effect that after the car bearing number plate AH 2800 had overtaken him, he noticed two male persons lying on the side of the road on his right. He thought that the driver might have been responsible for the two persons lying on the road and he therefore gave chase to stop the hit and run motorist but failed in the heavy traffic then present. He was confident that the accused was the driver but the significance of the absence of an evidence from this witness identifying the driver of car AH 2800 as the cause of the two persons lying on the side of the road appears to have escaped the attention of everyone. In my view, on the evidence of this motorist alone the prosecution could not be said to have raised a prima facie case against the accused, which called for his rebuttal.

The prosecution however relied on forensic evidence. A senior chemist from the Department of Chemistry, Penang, was called. He produced his chemist report and then identified the paints taken by him from car AH 2800 and from the motor-cycle. He was then offered for cross-examination. In cross-examination he identified the paint as similar in respect of colour, texture, number of layers and metallic composition. His evidence in this respect was not shaken at all.

However, as far as I could find, the report prepared by the senior chemist was never proved to have been served on the accused in accordance with s. 399 Criminal Procedure Code, so as to render it admissible: see, inter alia, Chong Peng v. PP [1954] MLJ 39 and PP v. Ng Fah [1954] MLJ 150. This failure on the part of