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1. Cantona Lim Xiang Kim v Public Prosecutor

[2017] MLJU 2318
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 CANTONA LIM XIANG KIM v PUBLIC PROSECUTOR
CaseAnalysis
| [2017] MLJU 2318

Cantona Lim Xiang Kim v Public Prosecutor

[2017] MLJU 2318
Malayan Law Journal Unreported

HIGH COURT (KUCHING)

CELESTINA STUEL GALID JC
CRIMINAL APPEAL NO KCH-41S-2/1 OF 2017
20 October 2017

Shankar Ram (Daniel Ling with him) (Shankar Ram & Co Advocates) for the appellant.
Nur Fazliyana Ahmad (Deputy Public Prosecutor, Jabatan Kastam DiRaja) for the respondent.

Celestina Stuel Galid JC:

GROUNDS OF JUDGMENTBackground

[1]The Accused was charged with committing an offence under Section 41(1) of the Road Transport Act, 1987
(“the Act”).

[2]The Accused pled not guilty to the Charge and claimed trial.

[3]At the end of the Prosecution’s case, the learned Magistrate found a prima facie case against the Accused and
ordered the Accused to enter his defence.

[4]After a full trial, the learned Magistrate found the Accused guilty and sentenced him to 3 years imprisonment and
a fine of RM6,000.00 in default 6 months imprisonment. The learned Magistrate also ordered the driving licence of
the Accused to be suspended. A stay of execution of the imprisonment sentence was granted pending the disposal
of the appeal before the High Court.

[5]The Accused appealed against both conviction and sentence and the Prosecution cross-appealed against the
inadequacy of the sentence.

[6]I dismissed the appeal by the Accused against conviction but in part allowed the appeal against sentence by
varying the imprisonment term from 3 years to 2 years. I had also dismissed the cross-appeal by the Prosecution
against the inadequacy of the sentence.

[7]The following are my grounds for the said decision.

On Conviction

[8]The Accused had listed 9 grounds of appeal in his Petition of Appeal. However, learned counsel for the Accused
had confined his submissions to 2 main grounds of appeal under the following headings:-
(a) that the Charge was seriously bad in law and wrongly framed; and
(b) that the intervening cause in that the learned Magistrate had mangled the issues of actus reus and mens
rea which should be dealt with objectively and properly.

[9]I had therefore only dealt with those said grounds.

On whether the Charge was seriously bad in law and wrongly framed
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Cantona Lim Xiang Kim v Public Prosecutor
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[10]The Charge read as follows:-

“Bahawa kamu pada 16.11.2014 jam lebih kurang 06:00 petang di Jalan Batu Kawa, di Daerah Kuching dalam Negeri
Sarawak sebagai pemandu motokar nombor pendaftaran QBC4445 jenis Proton Saga, telah memandu dengan cara yang
setelah mengambil perhatian segala hal, keadaan adalah merbahaya kepada orang awam iaitu semasa bergerak lurus
telah hilang kawalan lalu masuk kelaluan bertentangan dan melanggar dengan (2) buah motosikal jenis Modenas Kriss
nombor pendaftaran QAD7682, motosikal jenis SYM BX110 nombor pendaftaran QAA3847H dan motokar jenis BMW
nombor pendaftaran QSH7623 yang bergerak dari arah laluan hingga menyebabkan kematian kepada mangsa yang
bernama Unus Bin Alek (L) KPT: 570410-13-5173 dan oleh yang demikian kamu telah melakukan kesalahan di bawah
Seksyen 41(1) Akta Pengangkutan Jalan 1987 dan boleh dihukum di bawah Akta yang sama.

Hukuman:

Penjara tidak kurang dari 2 tahun dan tidak lebih dari 10 tahun dan denda tidak kurang dari RM5,000.00 dan tidak lebih dari
RM20,000.00.”

[11]Section 41(1) of the Act provides 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 size 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 punished with imprisonment for a term of not less than two years and not more than ten years and to
a fine not less than five thousand ringgit and not more than twenty thousand ringgit.”

[12]It was contended by the learned counsel for the Accused that the learned Magistrate erred in failing to find that
the Charge was bad in law, in that the defence of the Accused that he had lost control of the vehicle that caused the
accident had been erroneously and illegally imported into the Charge.

[13]It was further contended that the words of “…semasa bergerak lurus telah hilang kawalan lalu masuk kelaluan
bertentangan dan melanggar” appearing in the Charge do not form part of the ingredients of Section 41(1) of the
Act, in particular the third limb under which the Charge was preferred.

[14]The alleged defective Charge was said to have caused confusion and embarrassment and in support, reliance
was made to the case of Tan Kok Siang @ Tan Koh Heng v. PP [1994] 1 LNS 158, Basri Md Desa v. PP [2011] 1
CLJ 884, PP v. Lim Yoo Hock [1984] 1 MLJ 309, Santosh Kumari v. State of Jammu and Kashmir & Ors [2012] 2
CLJ 1 and Tenaga Pharmed Sdn Bhd v. PP [1994] 2 CLJ 858.

[15]In reply, the learned DPP submitted that the Charge had informed the Accused with certainty and accuracy, the
exact nature of the charge brought against him and illustrated as follows:-

“Bahawa kamu pada 26.11.2014 (date),

jam lebih kurang 06.00 petang (time)

di Jalan Batu Kawa, di Daerah Kuching dalam Negeri Sarawak (place)

sebagai pemandu motokar nombor pendaftaran QBC4445 Jenis Proton Saga,

telah memandu dengan cara yang setelah mengambil perhatian segala hal keadaan adalah merbahaya kepada orang
awam (the offence)

iaitu

semasa bergerak lurus telah hilang kawalan lalu masuk ke laluan bertentangan dan melanggar dengan (2) buah motosikal
jenis Modenas Kriss nombor pendaftaran QAD7682, motosikal jenis SYM BX110 nombor pendaftaran QAA3847H dan
motokar jenis BMW nombor pendaftaran QSH7623 yang bergerak dari arah laluan bertentangan (particulars sufficient to
give the Accused notice of the matter with which he is charged)
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Cantona Lim Xiang Kim v Public Prosecutor
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hingga menyebabkan kematian kepada mangsa yang bernama Unus bin Alek (L) Kpt:570410-13-5173 (person against
whom offence is committed)

dan oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 41 (1) Akta Pengangkutan Jalan 1987
(provision of the law)

dan

boleh dihukum di bawah akta yang sama (punishable section of the law).” [Emphasis as per illustration]

[16]In support, the learned DPP referred to the case of R v. Mohamed Humayoon Shah [1874] 21 WR Co 72, PP
v. Lee Pak [1937] MLJ 265 which held that the particulars of the charge must be clear and certain for the accused
to know what offence has been alleged against him.

[17]The learned DPP further submitted that in any event, even if the Charge was defective as alleged, any error or
omission therein should not be regarded unless the Accused was in fact misled by such error or omission under
Section 156 of the Criminal Procedure Code (“CPC”) and that any error, omission or irregularity in the Charge was
curable under Section 422 of the CPC.

[18]Now, except for the submission by the learned counsel for the Accused that the Charge had allegedly caused
confusion and embarrassment, nowhere was it shown as to how it had allegedly misled the Accused. In fact, it was
of significance that this issue was never raised before the learned Magistrate and was only raised in this appeal. Of
most importance was the fact that there was nowhere in the Notes of Proceeding where it was recorded that the
Defence had raised an objection regarding the alleged defective Charge at all.

[19]The decision by the Court of Appeal case of Thenegaran a/l Murugan & Anor v. Public Prosecutor [2013] 2
MLJ 855 on this issue is instructive. There, it was argued for the appellant that the charge against him was
defective as it did not indicate whether the offence was murder or culpable homicide. The Court of Appeal was not
persuaded with this point, as it was never raised before the High Court, inter alia, holding as follows:-

“[40] It is important note that the complaint about the charge in this instant case was never raised at earlier stage (the High
Court) or in his memorandum of appeal. Learned counsel for the appellant was present in court below and participated fully
in the trial. Learned counsel did not see anything wrong with the charge and did not complaint at the trial. It was only before
this court that this complaint arose. It goes without saying that it is very essence of a counsel duty that he should promptly
take objection to every irregularity at the trial, be that an irregularity relating to charge, procedure or to evidence called at
the trial. Where, as in this case, he did not object, we take it to mean that he saw nothing wrong with the charge framed
against the appellant (see RK Dalmia v. Delhi Administration, AIR 1962 SC 1821; Om Prakash v. State of Uttar Pradesh
AIR 1960 SC 409; Tulsi Ram and Others v. State of Uttar Pradesh AIR 1963 SC 666).

[41] The proper function of an appellate court is to correct an error in the judgment or proceedings of the court below and
not to adjudicate upon a different kind of a dispute that had been never raised before the court below. It is only in
exceptional cases that the court may, in its discretion, allow a new point to be raised before it, provided there are good
grounds in allowing it to be raised and no prejudice to the opponent. The exceptions are not applicable to the present case.”

[20]As no good grounds were shown in supporting of allowing this new point, I was of the view that this Court need
not deal with this issue on its merits. On the other hand, I found merits in the learned DPP’s submission that the
Charge had informed the Accused with certainty and accuracy, the exact nature of the Charge brought against him
and that even if there was an alleged error or omission, it was curable under Section 422 of the CPC.
On whether the learned Magistrate had “mangled the issues of actus reus and mens rea”

[21]It was contended by the learned counsel for the Accused that the learned Magistrate had erred in failing to deal
with the issues of actus reus and mens rea objectively and properly. To drive home this issue, the learned counsel
for the Accused referred to the following cases: R v. Roy [2012] 2 SCR 60, R v. Beatty [2008] 1 RCS 49, Jiminez
v. R [1992] HCA 14, Lee Ah Moi v. Public Prosecutor [1973] 2 MLJ 132, PP v. Ong Kia Chan [2006] 4 CLJ 334,
Gunasegaran Singaravelu v. PP [2009] 7 CLJ 613. In gist, these cases held that for an accused to be held liable
for dangerous driving, the prosecution must establish that the accused was at fault, and that it was not merely an
accident.
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[22]It was submitted for the Accused that in the present case, the Accused should not have been held liable by the
learned Magistrate as the Accused had lost control of his motorcar due to the splashing of water on his windscreen
by another vehicle, which impaired his vision of the road.

[23]The learned counsel for the Accused reiterated that losing control of one’s vehicle as was stated in the Charge
was not known to be an offence under the law especially given that the Prosecution had failed to establish the
speed in which the Accused was driving at the material time.

[24]In rebuttal, the learned DPP submitted that the learned Magistrate had in fact directed his mind on the factors
establishing “dangerous driving” and asked the vital question of “did the conduct of he Accused amount to
dangerous driving?” The learned Magistrate was also mindful that the court must consider whether or not the act or
maneuvers of the Accused, viewed objectively involved danger to other road users.

[25]In addition, the learned DPP drew this Court’s attention to the findings of the learned Magistrate that the
Accused had agreed that he did not know how the accident happened and that there was not a denial from the
Accused that he was not speeding prior to the collision. The Learned Magistrate also found that there were
evidence that the Respondent was speeding and due to the excessive speed, the Respondent’s car had hit the
road divider and flew to the opposite lane and caused the death of the deceased, the fact of was never challenge or
denied by the Defence.

[26]Citing the Federal Court case of Muhd Zulkifli bin Abd Ghani v. Public Prosecutor [2012] 2 MLJ 1 and the case
of Tan Kim Ho & Anor v. Public Prosecutor [2009] 3 MLJ 151, it was thus urged upon this Court that sitting in its
appellate jurisdiction, it should be slow in interfering with the findings of fact of the lower court.

[27]The Charge was clearly framed under the 3rd limb of Section 41(1) of the Act i.e. for dangerous driving, the
offence stated in the Charge being “telah memandu dengan cara yang setelah mengambil perhatian segala hal
keadaan adalah merbahaya kepada orang awam”.

[28]Although it was the case of the Defence that the Accused had not been speeding, it was elicited in cross-
examination of PW2, who was the driver of the other motorcar involved in the incident, the following contrary
evidence:-

“Q: Do you agree with me the reason why the car (proton saga) ‘melompat’ was because the wheels of the proton saga hit
the divider which was only a few inches tall?

A: I agree that the said car ‘melompat’ that is because it was driven too fast.” [Emphasis added.]

[29]Notwithstanding the defence of the Accused that he was not speeding, curiously there was no follow-up
question by the learned counsel for the Accused on PW2’s answer. The Accused was also not asked in his
Evidence in Chief, questions to rebut what PW2 had stated. Bearing in mind that PW2 was an eyewitness to the
incident, it was important to note that his evidence that the Accused had been speeding thereby causing the vehicle
to jump over the divider remained unchallenged throughout the trial.

[30]In the case of Ng Beng Kok v. PP [2017] MLJU 321, the Court of Appeal dealt with the issue of whether
“speeding” and/ or “recklessness” constitute elements/ ingredients of form an offence of dangerous driving, when
the 1st and the 2nd limb of Section 41(1) of the Act had already specified “reckless” and “speeding” as separate
offences from the 3rd limb. It was argued for the appellant therein that the learned Magistrate fell into serious error
when he took into account the element of “speeding” (an offence under the 2nd limb), which was not a circumstance
of the charge preferred against the accused (an offence under the 3rd limb).

[31]The Court of Appeal, inter alia, had this to say -

“Speeding:

[22] Speeding is an offence under the 2nd limb of section 41 (1) of the RTA. Speeding is an act of driving in excess of
speed limit in a particular area.

[23] Apart from it being an offence on its own under the said provision, excessive speed alone may not constitute as
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dangerous driving. This was illuminated by Humphreys J in Bracegirdle v Oxley [1947] 1 K.B 349, at page 357 where he
stated-

‘What I wanted to convey was at the manner in which the driver was driving becomes immaterial. He may be convicted
because he is driving too fast and only because he is driving too fast, but, of course, there must be taken into
consideration all the circumstances of the case, because a speed which is too fast on the road in certain
circumstances may not be dangerous at all when driving on another road in other circumstances’.

In other words, it all depends on the circumstances of the road at the material time. But what is important to take note is
that speeding was regarded as the manner of driving which may be dangerous depending on the circumstances.

Dangerous Driving:

[24] There is no definition of “dangerous driving” under the RTA. It is open to the court to determine what amounts to
“dangerous driving”. Reported cases serves as a guide and illustrations.

Over the years our courts have considered what can be categorised as “dangerous driving”. Raja Azlan Shah J (as His
Majesty then was) had the occasion to consider what constitutes “dangerous driving” in Ramiah v PP [1972] 2 MLJ 258.
Therein the accused was charged under section 34A (1) of the Road Traffic ordinance 1958 (the predecessor of section
41 (1) of the RTA 1987). It was held that in proving that there was “dangerous driving”, it must be shown that:
(i) there must be a situation created by the accused which, view objectively, is dangerous;

(ii) that when creating such a situation the accused was at fault. Fault here involves a failure; a falling below the care
and skill of a competent and experienced driver in relation to the manner of driving and the relevant
circumstances.”

[26] In PP v. Low Yong Ping [1961] MLJ 306 at p 307, Ong J held that leaving one’s own proper side of the road and
getting into the path of an oncoming vehicle is considered an act which has potentially fatal consequences and it definitely
falls within the definition of “dangerous driving”.

[31] It appears to us from the decisions of the above cases that the important consideration in determining whether an
accused was driving “dangerously” are as follows:-
(i) the test to be applied is an “objective” one and not “subjective”. Therefore, the opinions of the accused whether he
was driving dangerously is immaterial;

(ii) the ‘test’ to be applied is whether an ordinary or reasonable person would have thought that the defendant was
driving dangerously having regard to all the circumstances of the case including the nature, condition and use of
the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on
the road in question;
(iii) driving dangerously may involve speeding or reckless driving;

(iv) the danger caused by the driving to the public may be either real or potential;

(v) to drive dangerously must involve some ‘fault’ on the part of the defendant which caused the dangerous situation;

(vi) that ‘fault ‘ of the defendant does not need to involve either: [i] deliberate conduct or [ii] intentionally driving
dangerously; and

(vii) ‘Fault ‘involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the
manner of the driving and to the relevant circumstances of the case.

[32] Section 41(1), 3rd limb of the RTA, inter alia, speaks of the manner of driving which is dangerous to the public. The
manner of driving encompasses all matters connected with the management of the car by a driver when it was being
driven. In our view, the speed of the appellant’s motor vehicle is a relevant circumstance to the issue whether he was
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driving dangerously. If one speeds in an area where there are school children or on a narrow busy road, surely that could
amount to “dangerous manner of driving” which create a serious risk of causing physical injury to some other person who
might happened to be using the road, or doing substantial damage to property.” [Emphasis added.]

[32]Similarly in this case, I was of the view that although the Charge was for dangerous driving, the finding of the
learned Magistrate that the Accused had been speeding was not erroneous in the circumstances. Coupled with the
undisputed fact that the road was wet as it had been drizzling at the time of the incident, to my mind, the learned
Magistrate was correct when he held as follows:

“Apart from the excessive speed the fact that the accused was clearly at fault for creating such a dangerous situation by fail
to takes into consideration when driving the condition of weather nature and size of the road as well as the amount of traffic
which might be expected on the road.

Knowing that it was drizzling a testified by the witnesses which court was clearly in doubt it will again creates a pool or
puddle of water that the accused claimed had caused a splash onto his windscreen and resulted in his temporary loss of
vision as he alleged. He should have took into consideration that the road is wet and extra precaution should be taken into
consideration when driving in such situation.”

[33]I therefore also found no merits in the 2nd ground of appeal by the Accused.

[34]There being no grounds to disturb the findings of the learned Magistrate, I hold that the conviction by the
learned Magistrate was not unsafe. I therefore dismissed the appeal by the Accused and affirmed the conviction
against the Accused.
On Sentence

[35]As alluded to earlier, the Accused was sentenced to 3 years imprisonment and RM6,000.00 fine in default 6
months imprisonment.

[36]The Prosecution appealed against the inadequacy of the said sentence while the Accused sought to have the
sentence reduced by this appeal.

[37]In deciding this appeal, I had in mind the principle that the sentencing discretion belongs to the court of first
instance as the sentencing court - see Zaidon Shariff v. PP [1996] 4 CLJ 441 and that that another court would
have imposed a different sentence is not sufficient, per se, to warrant the court’s interference - see Bhandulananda
Jayatilake v. PP [1982] 1 MLJ 83.

[38]The learned DPP submitted that public interest must be taken into account and also the mental and emotional
trauma suffered by the victim’s family as a result of the action of the Accused. It was further submitted that public
interest was best served when the offender was punished for his wrong conduct and the punishment imposed must
make it clear to the public at large that crime does not pay. Reliance was made to the case of PP v. Chung Kwong
Huah [1981] 1 MLJ 316 and PP v. Muhari Bin Mohd Jani & Anor [1996] 3 MLJ 116.

[39]On the part of the Accused, it was briefly submitted that there were no extenuating circumstances in the present
case that warranted the 3-year imprisonment term.

[40]In this case, the learned Magistrate had stated that in sentencing, he had taken into account the age of the
Accused, the nature and seriousness of the offence and the fact that the Accused was a first offender. The learned
Magistrate also took into consideration that the conviction was after a full trial.

[41]Foremost in my mind in considering whether the sentence was appropriate in the present case was this: Here
was a young man, just 18 years old at the time of the offence and a month into his 21st birthday at the time of
conviction. Presumably, he would have just gotten his driving licence a year before the incident. He did not have
any previous records. Second in my mind was what the court in Teo Siew Peng & Ors v. PP [1985] 2 MLJ 125 had
said:

“An appellate court does not alter the sentence of a lower court unless it has erred in principle or that the sentence is
manifestly excessive. In the particular circumstances, for the reasons that the reformative factors involved in sentencing
and the probation reports and character and antecedents of the appellants do not appear to have been adequately
considered, the lower court had erred in principle and therefore the appellate court should interfere in the sentence. There
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is no conflict between the public interest and that of the young offenders and the public have no greater interest than that
they should become good citizens.”

[42]In addition, I had considered that in the Court of Appeal case of Ng Beng Kok v. PP [2017] MLJU 321, High
Court cases of Dennis Lee Kuok Loong v. PP [2014] 7 MLJ 469, Yen Chee Wei v. PP [2006] 7 CLJ 73 and
Pendakwa Raya v. Ahmad Daik Ali @ Mat Ali [2005] 1 LNS 236, in dealing with an offence under Section 41(1) of
the Act, the imprisonment term imposed was 2 years. It was of significance to me that the learned DPP did not refer
this Court to any decided cases that show the courts’ trend in sentencing, which would support the Prosecution’s
appeal in having the sentence enhanced.

[43]In the circumstances, I dismissed the appeal against the inadequacy of sentence by the Prosecution and
allowed the appeal by the Accused in part. I varied and reduced the term of the imprisonment sentence imposed by
the learned Magistrate from 3 to 2 years and to take effect from the date of this Court’s order. The fine of
RM6,000.00 in default of 6 months imprisonment remained.

End of Document