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2026 MarsdenLR 2021
HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
JUMARDI BENGA – Appellant
Versus
PP – Respondent
[Criminal Appeal No: TWU-41S-3-5/2024 (HC)]
Dangerous driving under the Road Transport Act is an objective test requiring a dangerous situation accompanied by a failure to meet the care or skill level of a competent driver. Appellate courts will not disturb trial findings of fact unless the decision is plainly wrong or lacks judicial appraisal.
Headnote:(A) Road Transport Act 1987 - Section 41(1) - Offence of causing death by dangerous driving - Elements of 'dangerous driving' - Objective test - Necessity of showing 'fault' on the part of the driver - Determination of whether an ordinary or reasonable person would consider the driving dangerous given the circumstances of the road and traffic conditions. (Paras 36, 37, 38)
(B) Appeal - Scope and ambit - Appellate intervention - Role of an appellate court in evaluating facts - Not to interfere with the trial court's assessment unless it is shown that the trial court's decision was plainly wrong or lacked judicial appreciation of the evidence - Demeanour of witnesses is primarily for the trial judge. (Paras 32, 94)
(C) Evidence - Credibility and corroboration - Proper evaluation of oral evidence versus documentary and mute evidence - Non-production of secondary evidence (such as CCTV) not fatal to a case where other sufficient evidence exists. (Paras 44, 67, 70)
Facts of the case:
The appellant was convicted for driving a motor vehicle in a manner dangerous to the public, resulting in a fatal collision with a motorcycle at a U-turn junction. The defence argued that the appellant checked the road, that a traffic light at a nearby junction was red/yellow, and that the deceased was speeding. The prosecution relied on eyewitness testimony and physical evidence, including brake marks and vehicle damage, to argue that the appellant made a sudden, unsafe encroachment into the lane of the deceased.
Findings of Court:
The court found that the traffic light was irrelevant as it was located some distance away and did not regulate the U-turn junction. The court concluded the appellant failed to ensure the opposite lane was clear before maneuvering, which constitutes a objective failure of the standard of a competent driver. The evidence showed the accident occurred due to the appellant's sudden encroachment.
Issues: The primary issues were whether the appellant's driving amounted to dangerous driving under the statute, whether the trial court failed to properly evaluate the defence witness evidence, and whether the sentence imposed was excessive.
Ratio Decidendi: Dangerous driving is determined by an objective test: it involves a situation created by the driver which, in the circumstances, is dangerous, combined with a 'fault' or failure to meet the standard of a competent and experienced driver. The court held that the appellant's failure to observe oncoming traffic before turning created a fatal, dangerous situation, and that the trial court properly weighed the evidence against the objective standard of care.
Result: Appeal dismissed. The conviction and sentence of 5 years' imprisonment and a fine of RM30,000.00 were affirmed.
| Table of Content |
|---|
| 1. nature of charge under section 41(1) rta 1987. (Para 1 , 2 , 3 , 4 , 5) |
| 2. parties' contentions regarding dangerous driving and evidence. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31) |
| 3. principles of appellate intervention for factual findings. (Para 32 , 33 , 34 , 35) |
| 4. legal definition and scope of dangerous driving. (Para 36 , 37 , 38 , 39 , 40) |
| 5. assessment of evidence and failure to exercise due care. (Para 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53) |
| 6. irrelevance of traffic lights away from collision point. (Para 54 , 55 , 56 , 57 , 58 , 59) |
| 7. causal link between driving and death; cctv admissibility. (Para 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70) |
| 8. evaluation of trial magistrate's assessment of defense witnesses. (Para 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94) |
| 9. principles of sentencing under section 41 rta. (Para 95 , 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 , 104 , 105) |
| 10. dismissal of appeal and affirmation of conviction. (Para 106) |
JUDGMENT
Introduction
[1] The appellant / accused was charged for driving a motor vehicle in a manner dangerous to the public which had resulted in the death of Mohd Ramdhan Shah bin Abas @ Azmi ("the deceased" / "victim"), pursuant to s 41(1) Road Transport Act 1987 (hereinafter referred to as "RTA").
[2] For ease of reference, the charge reads as follows:
"Bahawa kamu pada 18 August 2021 jam lebih kurang 12.40 tengah hari, di pusingan "U" Batu 3 Jalan Apas di dalam daerah Tawau, di dalam Negeri Sabah, sebagai pemandu kenderaan Nombor Pendaftaran ST3777P telah memandu kenderaan tersebut di atas jalan raya dengan cara yang setelah mengambil perhatian tentang segala hal keadaan (termasuk jenis, keadaan dan size jalan), dan kesesakan lalulintas yang dijangkakan yang ada atau mungkin ada dijalan itu) adalah merbahaya kepada orang awam dan kamu telah menyebabkan kematian kepada 1) Mohd Ramdhan Shah bin Abas @ Azmi No KPT: 950226125797 (L), 26 tahun bangsa Jawa. Oleh yang demikian kami telah melakukan satu kesalahan di bawah s 41(1) Akta Pengangkutan Jalan 1987 (Akta 333/87) dan boleh dihukum di bawah Akta yang sama".
[3] The case had gone for a full trial, with a total of 8 Prosecution witnesses called. At the end of the prosecution's case, the learned magistrate called for the appellant to enter his defence. The defence called 4 witnesses and at the end of the defence case, the court below held that the defence failed to raise a reasonable doubt upon the prosecution's case. The appellant was convicted on the charge and was sentenced to 5 years' imprisonment with effect from date of conviction ie, 2 May 2024 and was also fined in the sum of RM30,000.00 in default, 1 year imprisonment. His driving license was also to be endorsed with the particulars of conviction and to be disqualified from obtaining a driving license for a period of 5 years from the date of conviction.
[4] A stay of execution in regard to the imprisonment term was granted by the High court pending the disposal of this appeal. The appellant was released on bail. The appellant appealed against both his conviction and sentence.
Background Of Case
[5] This was a road accident case involving the appellant who was at the material time, the driver of the vehicle a Toyota Double Cabin with Registration Number ST3777P ("Appellant's vehicle") and the deceased who was a Panda Food rider of the motorcycle which happened on the 18th of August 2021 approximately at 12.40 in the afternoon at the U-turn Junction, Batu 3 Jalan Apas, Tawau Sabah. The appellant was convicted under s 41(1) of the Road Transport Act 1987 ("the RTA").
The Appellant's Submission
[6] That the appellant had carefully and reasonably looked out for traffic before he took the U-turn and it was not a sudden encroachment into the deceased's lane.
[7] The ap
