Professional Documents
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Ap41s 81 2009
Ap41s 81 2009
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)
ii)
[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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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)
(iii)
(iv)
[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
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(2)
(3)
(4)
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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