HOW PEI LIN v Pendakwa Raya

Case Significance

Illustrates the appellate power under section 316(b)(ii) of the Criminal Procedure Code and section 41(4) of the Road Transport Act 1987 to substitute a conviction for the lesser offence under section 43(1), and the reluctance to impose a custodial sentence for a first, non-premeditated driving offence.

This High Court decision at Muar concerns an appeal against conviction and sentence for a road-traffic fatality. The appellant had been convicted by the Magistrate's Court at Kluang under section 41(1) of the Road Transport Act 1987 of causing death by dangerous driving, and sentenced to five years' imprisonment, a fine of RM28,000 (in default one year's imprisonment) and disqualification from holding a driving licence for five years. The charge arose from a collision on 11 November 2020 at a junction, in which the appellant's car and a motorcycle ridden by the deceased were involved. The single disputed issue was the point of collision: the prosecution said the appellant had turned into the junction when the collision occurred, while the defence said it happened on the main road as the deceased exited the junction.

The court set out the elements of the offence under section 41(1), which the authorities treat as creating distinct offences of driving recklessly, at speed, or in a manner dangerous having regard to all the circumstances. Assessing the evidence, the court concluded that the higher offence under section 41(1) was not made out, but that the appellant's driving fell within the lesser offence under section 43(1) of the Act. Exercising its appellate power under section 316(b)(ii) of the Criminal Procedure Code read with section 167, and the avenue expressly provided by section 41(4) of the Road Transport Act, the court altered the finding to a conviction under section 43(1).

On sentence, the court held that a first-time offender whose conduct amounted to momentary inattention or misjudgement, who had shown remorse and had not committed a premeditated offence, should not receive a custodial sentence. It substituted a fine of RM10,000 with disqualification under section 43(2). The appeal was allowed in part. The judgment illustrates the appellate power to substitute a lesser traffic offence and to reconsider whether imprisonment is warranted.