Roberts, C.J.

BACKGROUND.

At the request of the trial magistrate, to whom I am grateful for bringing this matter to my attention, I called for, and examined the record in the case of P.P. v Ahsut bin Kaling ("the defendant").

I did so in accordance with the powers conferred upon me by section 296 of the Criminal Procedure Code (Cap. 7) for the purpose of satisfying myself as to the correctness, propriety and legality of the Order made by the magistrate.

The following facts were put before him -

"On the date and time as stated in the charge, defendant was driving a car with registration number KC 2332 alone on his way to Kampong Agis-Agis Sg. Liang; at that time defendant was following several cars ahead at a speed of about 40-45 km/hr. Upon arriving at Km 31 of Jalan Seria/Tutong, defendant saw a car in front applied brake, and swerved to the left hand side of the road, as the very front car stopped with intended to proceed into a junction. Seeing that, defendant swerved to the right in order to avoid knocking the front car, at the same time, there was an on corning car with registration number KD 9482 was proceeding and he just couldn't avoid the accident as defendant's car had encroached into KD 9482's lane.

Both cars sustained moderate damages.

Both drivers suffered slight injuries.

On Record - defendant has previous conviction in the year 1 984.".

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The defendant admitted the facts and the previous conviction and asked for a lenient sentence, in view of the fact that he had not been convicted of any offence since 1985. He pleaded guilty to careless driving, contrary to section 29 of the Road Traffic Act, Cap.68 ("R.T.A.").

The defendant was fined $300 (or 1 month's imprisonment in default). The magistrate did not disqualify the defendant.

PREVIOUS CONVICTION.

The defendant was convicted in 1985 of an offence against section 28 RTA and was then fined $70.

Section 29 RTA provides for a mandatory disqualification (in the absence of special reasons) for "a second or subsequent conviction under sub-section (1)". This mandatory disqualification does not apply where there was a previous conviction under section 28 of the Act.

The magistrate was therefore not obliged to order a disqualification, though it would have been open to him to do so, if he had wished, under section 40 of the Act i.e. as a matter of discretion.

The reason given by the magistrate, for not ordering a disqualification, for an offence of careless driving (section 29 RTA) is that he took into account the lapse of time (i.e. nearly 12 years) since the last conviction of the defendant for an offence under the Act, though this factor is not mentioned in section 29 RTA.

Had the present offence been against section 28 RTA, for dangerous driving, the magistrate would have been obliged to disqualify the driver for up to 12 months, subject to section 28(3).

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By section 28(3), however, the Court is obliged to disqualify for 12 months or more unless the Court, having regard to the lapse of time since the date of the previous or last conviction under sub-section 28(1), or for any other special reasons, thinks fit to order otherwise.

An offence of dangerous driving, under section 28 RTA, is a more serious offence than careless driving under section 29. This can be seen from the maximum penalties, which are greater for dangerous driving under section 28 RTA than for careless driving under section 29 RTA.

It is therefore surprising to find that a Court may take into account, before disqualifying a defendant under section 28 RTA, the "lapse of time since the date of the previous or last conviction", though he cannot do so under section 29 RTA.

Section 28 RTA has other difficulties. There is a mandatory disqualification for a first conviction for dangerous driving, by section 28 (2)(b). Yet on a second conviction, a Court is entitled to take into account the lapse of time since the last conviction, which it cannot do on the first conviction under sectio