JUDGMENT

Ian HC Chin:

Introduction

This is an appeal against the decision of the learned magistrate handed down on 4 March 1997 by which, after a trial, he dismissed the claim of Chai Phin Chong and Then Hon Fui ('the plaintiffs') for damages for negligence against Zainal Abidin Mohd. Salleh and Pengulu AK Usiek.

Facts Of Case

The facts on the whole are undisputed and they are these. Then Hon Fui, one of the plaintiffs, was on the night of 24 September 1993 driving a motorcar at approximately 70 kph along a straight stretch of the Kuching/Serian Road when Pengulu AK Usiek was driving a truck on the same road but in the opposite direction and at approximately 30-40 kph. Pengulu AK Usiek said that the visibility at that time was not good, that it was raining, that he was using his low beam and that he saw the motorcar before the collision. The truck crossed the middle of the road, about a foot into the other side, and knocked the motorcar causing it to overturn. What made the truck go into the path of the motorcar was the presence of a man pushing an unlit motorcycle on the side of the road where the truck which was being pushed in the same direction as the truck was proceeding. Pengulu AK Usiek only saw the man, pushing motorcyle, when he was ten feet away which made him swerve the truck which, as mentioned earlier, knocked the motorcar and caused it to overturn. The road, the learned magistrate found, was wet and slippery. It was upon those evidence which I have summarised that the learned magistrate concluded that the encroachment onto the path of the oncoming motorcar was not the result of the negligence of Pengulu AK Usiek but "an act of a responsible and rational being who not only spared one but two lives". The learned magistrate further concluded that "the accident is attributed" by Then Hon Fui when he drove at a needlessly high speed when road condition was not good and also by the motorcyclist for not having any light on. The learned magistrate concluded that the plaintiffs had failed to prove their claim and in arriving at that conclusion, the learned magistrate (1) regarded the conviction and fine of RM300 of Pengulu AK Usiek under s. 43(1) of the Road Transport Act 1987 for careless driving as being inconclusive, (2) disregarded a police report lodged by the man who was pushing the motorcycle and (3) disregarded the evidence of former Sergeant Bihos Rihong ('the police officer') who took a sketch plan of the scene of accident.

Misdirection Of Evidence Plea Of Guilty

The learned magistrate brushed aside the defendant's plea of guilty to a charge for driving without due care and attention by saying that it is not conclusive. He did not say whether the defendant had explained why he pleaded guilty if he was not guilty of what in effect is a charge of negligent driving.

Sketch Plan Of Scene

The evidence of the police officer who drew a sketch plan of the scene of accident was also disregarded on the ground that the police officer could not remember the road was wet at that time. But the police officer was giving evidence of the road condition that he saw at least one hour after the accident. The accident happened at around 8.40pm, the police reports were made at 9.45pm and 11.10pm. Which means that the visit to the scene by the police officer was more than two hours after the accident. That could very well explain why he said the road was not wet contrary to what the plaintiff said. As for the sketch plan, it shows the various positions of the motorcycle, the motorcar and the truck and from it, at the very least, be concluded that the truck went from one side of the road to the other.

The Police Report

The man who was pushing the motorcycle made his police report at 9.45pm that night. In it he described how his motorcycle which he was pushing by the side of the road was knocked by the truck and how the truck thereafter knocked the motorcar. He was not called to give evidence. This police report was by agreement of