DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DALAM NEGERI JOHOR DARUL TAZIM, MALAYSIA

RAYUAN JENAYAH NO: MT(6) 41S-81-2009
_________________________________________________
TEOK CHEE WEE

APPELLANT
V

PENDAKWA RAYA

RESPONDENT

JUDGMENT
GUNALAN A/L MUNIANDY, JC
[1]
The Accused/Appellant was found guilty and convicted of the
following charge at the Magistrates Court at the end of the defence case:
Bahawa kamu pada 16.4.2008, jam lebih kurang 03.35 pagi, di
KM 14.9 jalan Johor Bahru Ayer Hitam di dalam Daerah Johor
Bahru, dalam Negeri Johor Darul Takzim. Sebagai pemandu
M/kar jenis proton wira nombor pendaftaran JGK 5509, telah
memandu m/kar tersebut di atas jalan raya diatas pengaruh
minuman yang memabukkan hingga menyebabkan tak berdaya
mengawal kenderaan itu dengan sepatutnya sehingga
menyebabkan kecederaan Mohd Azlan Bin Saihidin KP: RF
151713 dan dengan itu kamu telah melakukan kesalahan di
bawah Seksyen 44(1) Akta Pengangkutan jalan 333/87 (Pindaan
2000) dan boleh dihukum dibawah seksyen yang sama..
[2]
He was thereupon, sentenced to imprisonment for a term of 3
years together with a fine of RM8,000.00 in default 2 months
imprisonment. This appeal is against the Magistrates decision on both
conviction and sentence.
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[3]
Briefly, this is how the said accident occurred between the
Appellants motorcar, a Proton Wira and the victim deceaseds motorcycle.
The time of incident was about 4.15 a.m. during a traffic police operation in
the vicinity of the scene of accident. The deceased was a police personnel
on cut-off duty stationed at an unlit spot before a police road block to
prevent vehicles from making a detour or U-turn upon approaching the
road block. Right before the collision, the deceased was seated on his
stationary motorcycle at the edge of the road proper dealing with a
motorcyclist (SP5) whose vehicle had broken down and stopped on the
road verge. The Appellants vehicle collided into the rear of the motorcycle,
dragging it to the road shoulder and causing the deceased to be flung into
a nearby drain. The Appellant did not stop but proceeded further to the
road-block about 30 metres away straight ahead where he was stopped
and questioned by an officer manning the road-block, the Investigating
Officer (I.O. SP4). He admitted to SP4 that he had collided into someone
or something. SP4 found on the front passenger seat two opened cans of
drink, one of which was liquor. SP5 confirmed that this was the car that
collided into deceaseds motorcycle from the rear but admitted that he saw
the collision only upon impact and did not know how the car was driven.
He, however, did see the deceased land on the bonnet of the car before
being flung into the drain.
[4]
SP4 then collected blood and urine samples from the Appellant for
chemical analysis. The Chemist Report issued thereafter upon analysis
(Exhibit P6) shows the Appellants alcohol level at the material time. SP4
did not find any brake marks at the scene of collision and also failed to
mark in the sketch plan the location of broken glass pieces. Hence, the
actual point of impact remained unknown. Having not witnessed the
accident, SP4s conclusions about speed and the point of impact were no
more than hearsay and opinion evidence which were not admissible,
particularly in the absence of independent or silent evidence to support
these conclusions.
[5]
The issue in this appeal is whether the learned Magistrate had,
from the facts found by her, arrived at a correct conclusion that the
ingredients of the offence charged had been established beyond
reasonable doubt. Under s. 4 of the Road Transport Act, 1987 (Revised
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2000) read with the charge preferred against the Appellant, the following
elements need to be proved:
i)

that the Appellant drove his motor vehicle on a public road or

place under the influence of intoxicating liquor or drug; and

ii)

the intoxication was to such an extent that he was incapable

of having proper control of his vehicle.

[6]
The dispute in this case arising from the grounds of appeal is twofold: firstly, that the alcohol content in the Appellants blood as in the
Chemist Report (Exhibit P6) was inconclusive due to doubts in the storage
of the samples and secondly, that, there was absolutely no evidence that
before the collision the Appellant had lost control of his vehicle due to his
state of drunkenness. On the first issue, the learned Deputy Public
Prosecutor seemed to acknowledge in her submissions before this court
that Exhibit P6 did not possibly give a true and accurate picture of the
Appellants alcohol content due to the possibility of preservatives not
having been used on the samples during the transition period from the time
of collection until chemical analysis. It swas also conceded that Exhibit P6
by itself may not show whether the alcohol content had exceeded the
prescribed limits set in the Road Transport Act [see s. 45A (l), Road
Transport Act] for safe driving. Exhibit P6 itself, in the last paragraph,
clearly states the defect as follows:
Memandangkan tiada maklumat mengenai bahan pengawet dan
sekiranya bahan awet tidak digunakan, nilai yang dilaporkan di
atas mungkin tidak menunjukkan nilai sebenar etil alcohol semasa
spesimen darah dan air kencing tersebut diambil..
[7]
This was not only confirmed by the two Chemistry Department
officers in this case (SP9 and SP10) but also the medical doctor (SP13)
who had collected the blood and urine samples and referred them to the
Chemistry Department vide Borang Kimia 15 (Exhibit P15). SP13 admitted
that he himself had not used any preservatives and agreed that without the
usage of preservatives these samples would not last for more than 24
hours. The analysis in this case was done more than 2 days after the
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collection of the said samples. Hence, the result of the chemical analysis
as to the level of alcohol content was clearly inconclusive and unreliable.
[8]
The learned Deputy Public Prosecutor explains in her submission
that the Magistrate did not rely purely on Exhibit P6 in arriving at the finding
on intoxication as this was not a safe and reliable indicator. She relies on
the Federal Court case of Francis Anthonysamy v P.P [2005] 2 CLJ 481
which held as follows:
Scientific evidence to prove intoxication can be provided by an
analysis of blood and urine samples which will show the level of
alcohol in the body. However, it must be observed that such
results are not conclusive to determine the degree of intoxication
of a person. As Chao Hick Tin JC said in P.P v Ramasamy a/l
Sebastian [1991] 1 MLJ 75 at p 81:
In any event, from the evidence of the experts, the blood alcohol
level itself can never be conclusive to determine the degree of
intoxication of the accused. Different people react differently to the
same blood alcohol level. It makes a great difference whether the
person is or is not an experienced drinker. In our judgment, and
here we accept the opinion of Dr Chan (PW15), the more reliable
indicator of the state of mind of the accused must be the conduct
of the accused immediately prior to and after the offence..
And further that:
The best evidence to establish his state of mind is his conduct
prior to, at the time of and after the offence as different people
react differently to the same blood level..
[9]
However, on a perusal of the Magistrates grounds (See pg. 14,
Record of Appeal), it would appear that despite being aware of the
likelihood of the alcohol content as per Exhibit P6 being flawed, she
seemed to accept certain opinions expressed by the officer from the
Chemistry Department who prepared Exhibit P6 (SP9). SP9 expressed
these opinions based on a persons alcohol content of 158 m/g per 100
mlm blood sample. SP9 was a Science Officer from the Chemistry
Department and did not appear to be an accredited professional Chemist.
SP9 did not conduct the chemical analysis in this case which was done by
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her colleague (SP10). She also seemed to accept without qualification that
the analysis by SP10 was correct despite not having information about
whether preservatives had been used. This evidence, she added, was
confirmed by SP10 and thus, presumably, safe to be relied upon.
[10]
In my view, the learned Magistrate fell into serious error on two
counts when she endorsed the evidence of SP9, particularly her opinions,
as the basis for the finding on the Appellants degree of intoxication. Firstly,
as the result of the chemical analysis was likely to be inaccurate and thus,
not credible, she should have rejected any opinion evidence based on the
result pertaining to alcohol content. Secondly, there was not even an iota
of evidence to prove that SP9 was an expert witness qualified to express
expert opinions on the subject. In her concluding remarks on prima facie
case, she refers to SP9 and SP10 as experts, i.e. chemists, and proceeds
to make findings similar to the opinion expressed by SP9 that a person with
that level of alcohol would lose focus and be unable to control his actions.
Under s. 45(1) of the Evidence Act, 1950, it is only the opinion of a person
specially skilled in the fields mentioned, such as science, that would be
receivable as evidence of an expert (s. 45(2)). The record would show that
SP9 was merely a Pegawai Sains, not even a chemist, at the Chemistry
Department with about 2 years experience. In short, no evidence was
adduced indicating that she was specially skilled in any field of science or
medicine relating to the behavioural aspects of a person under intoxication
for her opinions to be received as those of an expert. Hence, the learned
Magistrate had clearly misdirected herself in being unduly influenced by the
opinion evidence of SP9 which she should have rejected on the ground that
SP9 had not been shown to be an expert on the point in issue.
[11]
The learned Magistrate also took into consideration the evidence
of SP13, the doctor who took urine and blood samples from the Appellant
at the hospital soon after the incident as regards the latters conduct at that
point in time. According to him, the Appellant was in a drunken state and
could not say anything when asked whether he had knocked into someone.
Also, that the Appellant had worn his slippers wrongly (terbalik) SP13,
however, conceded that his opinion that the Appellant was drunk was
merely his rough observation without having conducted any relevant
medical test. Obviously, SP13s observation on the Appellants conduct
was hardly indicative of the Appellants state of mind at that point in time,
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particularly as to the extent of his intoxication. Speaking of the Appellants

conduct, the learned Magistrate made no mention of the Appellants
reaction immediately after the incident when he was questioned by SP4.
He was able to answer coherently that he must have collided into someone
or something. SP4 did not see it fit to carry out any breath or alcohol test
which he would have done it in fact the Appellant appeared drunk. This
fact seemed to have escaped the attention of the learned Magistrate.
[12]
Proceeding now to the second element of the charge, the learned
Magistrate seems to have hardly addressed her mind to the issue whether
at the material time the Appellant had become incapable of being in control
of his vehicle. She failed to consider seriously the fact that none of the
witnesses had, admittedly, actually seen the impact or the manner in which
Appellant had driven before the impact. Granted, that the Appellant may
have admitted having driven fast and consumed alcohol but this did not
equate with having lost control of the vehicle despite the powerful impact.
She seems to have glossed over this issue by simply concluding that the
elements of s. 44, Road Transport Act had been proved from the evidence
of the prosecution witnesses whom she believed, again being unduly
influenced by SP9s opinions and the fact that a life had been lost. She
had failed to make a clear finding whether the second element had been
proved at all, leave alone whether it had been proved beyond reasonable
doubt.
[13]
The learned Magistrate merely states at page 8, para 1 of her
Grounds of Decision that all the elements of s. 44, Road Transport Act had
been proved so that there was a prima facie without stating whether the
prosecution evidence had fulfilled the requirements of s. 173(h)(iii), CPC in
order to establish a prima facie case. In this regard, it would be opportune
to set out the advice of the Federal Court in P.P v. Mohd Radzi bin Abu
Bakar (2005) 6 MLJ 393 at page 400 as follows:
For the guidance of the courts below, we summarise as follows
the steps that should be taken by a trial court at the close of the
prosecutions case:
(i)

the close of the prosecutions case, subject the

evidence let by the prosecution in this totality to a
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maximum evaluation.
Carefully scrutinise the
credibility of each of the prosecutions witnesses. Take
into account all reasonable inferences that may be
drawn from that evidence. If the evidence admits of
two or more inferences, then draw the inference that is
most favorable to the accused;
(ii)

ask yourself the question: If I now call upon the

accused to make his defence and he elects to remain
silent am I prepared to convict him on the evidence
now before me? If the answer to that question is Yes,
then a prima facie case has been made out and the
defence should be called. If the answer is No then, a
prima facie case has not been made out and the
accused should be acquitted;

(iii)

after the defence is called, the accused elects to

remain silent, then convict;

(iv)

after defence is called, the accused elects to give

evidence, then go through the steps set out in Mat v
Public Prosecutor [1963] MLJ 263..

[14]
Another point canvassed by the Appellants counsel was that the
version as to how the collision took place was unclear and that there could
be factors other than Appellants manner of driving that may have
contributed to the unfortunate incident. Apart from the sole eye witness
(SP5)s admission that he did not see what happened before the impact,
the scene was rather dark at that hour as shown by the police photographs
(Exhibits P1A P1V) which could only be taken using a flash camera. It
was undisputed that the deceased was not wearing any police uniform but
it was uncertain whether he had put on any luminous vest. That being so,
by stopping at a dark spot on the road verge without any proper warning
light or signals for vehicles approaching from the rear, he could have to a
certain extent contributed to the collision. It was likely that the Appellant
was unable to notice his presence, as explained by the Appellant in his
defence, when he had to swerve to the left to avoid another vehicle. This
fact was not considered by the trial court which placed the sole blame on
the Appellants drunkenness. It is trite law that a trial court ought to
7

consider the entire evidence objectively, including aspects of the

prosecution evidence favourable to the Appellant, which was not done in
this case. In Gooi Loo Seng v P.P [1993] 3 CLJ 1, it was held, inter alia:
The trial Judge was found to, but did not, view the whole of the
evidence objectively and from all angles, with the result that the
Appellant had lost the chance which was fairly open to him of
being acquitted. This non-direction amounted to a misdirection
and in the circumstances a miscarriage of justice may well have
occurred..
Defence Version
[15]
The only witness offered was the Appellant himself. In his sworn
testimony, he explained that before the incident, he was returning from
dinner with friends and when he approached the scene another car
suddenly overtook him. As a result, he evaded a little to the left and
applied his brakes but realized that he had collided into something causing
his windshield to break. He admitted having driven fast and having
consumed liquor. The learned Magistrate disbelieved his explanation and
dismissed his version outright without giving any reasons thereof. This,
despite the fact that scratch marks found on the road proper as per the
police sketch plan (see B in Exhibit P3) lent some form of support to his
version. She had clearly fallen into serious error by not taking the proper
approach in dealing with the defence evidence at the conclusion of the
case. It is trite law that when a court is not convinced by or disbelieves the
defence explanation, a further question needs to be asked: whether it,
nevertheless, viewed objectively together with all the other evidence, casts
a reasonable doubt on the prosecution case. From the Grounds of Decision
it appears that after finding the defence to be a bare denial, the court
concluded straight away that the Appellant ought to be found guilty and
convicted. Nowhere is it stated that from the totality of the evidence, the
vital elements of the present charge had been proved beyond any
reasonable doubt. This is a clear error of law on burden of proof contrary
to the mandatory requirement of s. 173 (m), (ii), Criminal Procedure Code
for a conviction to be recorded for any offence. I need only refer to Mat v.
P.P [1963] 29 MLJ 263 where it was held that the approach as taken in the
instant case amounted to a serious misdirection as to the burden of proof
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on the prosecution and failure to appreciate that the prosecution had to

satisfy the onus of proof that lies upon it.
Powers of The Appellate Court
[16]
In Lim Kheak Teong v P.P [1985] 1 MLJ 38, the Federal Court in
discussing the powers and functions of the Appellate Court, ruled thus:
. With respect, what Lord Russell of Killowen said in Sheo
Swarup that although no limitations should be placed on the power
of the appellate court in exercising the power conferred the High
Court should and will always give proper weight and consideration
to such matters as
(1)

the views of the trial judge on the credibility of the

witnesses;

(2)

the presumption of innocence in favour of the accused;

(3)

the right of the accused to the benefit of any doubt; and

(4)

the slowness of an appellate court in disturbing a finding of

fact arrived at by a Judge who had the advantage of seeing
the witnesses .

In Dato Seri Anwar Ibrahim v. P.P & Anor Appeal [2004] 3 CLJ 737, at p.
752 Abdul Hamid Mohamed FCJ (as he then was) held:
Clearly an appellate court does not and should not put a brake
and not going any further the moment it sees that the trial judge
says that is his finding of facts. It should go further and examine
the evidence and the circumstances under which that finding is
made to see whether, to borrow the words of HT Ong (CJ Malaya)
in Herchun Singhs case (supra) there are substantial and
compelling reasons for disagreeing with the finding. Otherwise,
no judgment would ever be reversed on question of fact and the
provision of s. 87 CJA 1964 that an appeal may lie not only on a
question of law but also on a question of fact or on a question of
mixed fact and law would be meaningless..
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Similarly, it is trite that it is the duty of the appellate court to intervene in a

case where the trial court had fundamentally misdirected itself, that one
may safely say that no reasonable court which had properly directed itself
and asked the correct questions would have arrived at the same conclusion
(see Sivalingam Periasamy & Anor [1996] 4 CLJ 545).
Conclusion
[17]
Bearing in mind the above principles, I took the view that this was
a fit and proper case that warranted interference by the appellate court as
the learned trial Magistrate in misdirecting herself had erred in law and in
fundamental principles concerning the burden of proof on the prosecution
in a criminal trial. She had disregarded the onus on the prosecution to
prove each and every essential ingredient of the charge beyond reasonable
doubt. Hence, this appeal was allowed. Accordingly, the conviction under
s. 44(1) of the Road Transport Act and the sentence were set aside.
However, as the evidence clearly disclosed some form of negligence on the
part of the Respondent in causing the accident as evident from the
excessive speed and failure to manage his vehicle with due care
considering the circumstances prevailing such as the lack of visibility, an
alternative charge had to be considered. I found the evidence sufficient to
satisfy the elements of an offence under s. 43(1) of the Road Transport Act.
I, therefore, substituted a conviction under this section for the original
conviction and imposed a sentence of a fine in the sum of RM6,000.00 in
default 2 months imprisonment acting under the powers of the High Court
on appeal provided in s. 316 (b)(ii) of the Criminal Procedure Code.
Bertarikh: 23 Jun 2010.

(GUNALAN A/L MUNIANDY)

Pesuruhjaya Kehakiman
Mahkamah Tinggi
Johor Bahru.
Bagi Pihak Pendakwa Raya:

Cik Norashikin bt Abd. Rahman

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Timbalan Pendakwa Raya

Pejabat Penasihat Undang-Undang
Negeri Johor.
Bagi Pihak Perayu/Responden:
(Appellant/Respondent)

Encik Izzat Muhtar

Tetuan Izzat Muhtar & Huda
Peguambela dan Peguamcara
Johor Bahru.

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