Muhammad Lan Syukri Bin Abdullah Umpok

@ Lanyau Anak Umpok

AND

Public Prosecutor
_________________________________

(High Court of Brunei Darussalam)

(Criminal Appeal No. 26 of 2008)
_________________________________

Chong, J.
17th December, 2008.

Criminal law and procedure – causing death by dangerous driving – disqualification –

whether special reasons existed – whether appellant had admitted to the
statement of facts – whether plea of guilt proper – power of revision of the
High Court – ss.175(2) & 296 of the Criminal procedure Code, s.27(1) of the
Road Traffic Act.

Yusof Halim (M/S Cheok, Sankaran, Halim) for the Appellant.

Pg Nina Jasmine Bte PLKDR PG Hj Bahrin (Deputy Public Prosecutor) for the Public
Prosecutor.

Cases cited in the Judgment:

Chota Bin Abdul Razak v Public Prosecutor [1991]3 MLJ 77.
Mok Swee Kok v Public Prosecutor [1994] 3 SLR 140.
Nicholson v Brown [1974] RTR 177.
Public Prosecutor v Ariffin Bin Haji Jafaruddin [2000] JCBD 396.
Public Prosecutor v Lim Jin Lee and Salina Binti Mohd Salleh [2000]
2JCBD 217.
Whittal v Kirby [1947] 1 K.B.194.

Chong, J.:

This is an appeal against sentence.

On 12 August 2008 in the Magistrate’s Court the appellant who was unrepresented,
was convicted on his own plea of causing death by dangerous driving contrary to
section 27(1) of the Road Traffic Act.
 2

The Magistrate sentenced the appellant to a fine of $5,000 or 6 months’ imprisonment

in default of payment and ordered that he be disqualified from holding a driving
licence for life.

No complaint is made of the fine imposed but the appellant appeals against the
disqualification order.

According to the statement of facts read to the appellant, on the afternoon of 3 June
2006, the appellant was driving a Honda Civic along the Jalan Seria/Lumut By-Pass
when upon reaching Km. 16 he “hit a puddle of water” which resulted in him losing
control of his car, encroaching into the opposite lane and colliding with an oncoming
car.

It was further stated that it was raining “slightly” at the time, the appellant was
“driving too fast” in order to control his vehicle and “was therefore driving
dangerously having regard to the circumstances of the case, including the nature,
condition and use of the road and the amount of traffic which was or which might
reasonably be expected to be on the road”.

The appellant’s mother, a passenger in his car, suffered fatal injuries.

In his Notice of Appeal filed on 25 August 2008 the appellant who was then still
unrepresented explained why he needed his driving licence. Mr. Yusof Halim who
now represents the appellant rightly concedes that none of the reasons given by the
appellant constitutes a special reason for not imposing disqualification as they are
directly connected with the appellant and not with the commission of the offence.

However, Mr. Yusof Halim in his written submission argues that “there are sufficient
matters in the admitted brief facts” to warrant a finding of a special reason not to
disqualify. He contends that although the appellant “may have been driving fast in the
circumstances the accident was caused by the appellant hitting a puddle of water on
the road which was not anticipated” and this amounts to a special reason.

Reliance was placed on Public Prosecutor v Ariffin Bin Haji Jafaruddin [2000] JCBD
396, in which the defendant similarly lost control of his car when he drove through a
puddle of water on the road and collided into an oncoming car and was convicted on
his own plea of careless driving. Roberts, C.J. regarded those facts, and the
defendant’s assertion that he was “driving carefully” because it was “raining heavily”,
as amounting to special reasons not to order disqualification.

With the greatest respect to the learned Chief Justice it seems to me that those reasons
relied upon cannot possibly be considered as special reasons in light of the English
decisions of Whittal v Kirby [1947] 1 K.B.194 and Nicholson v Brown [1974] RTR
177, cited with approval by the Court of Appeal in Public Prosecutor v Lim Jin Lee
and Salina Binti Mohd Salleh [2000] 2JCBD 217, in which Silke, J.A. said at page
223:
 3

“The facts of all driving offences are peculiar to themselves. If a driver drives
in a manner unsuited to the road conditions known to him then he is, at the
least, driving without due care. If that be so then those very road conditions
cannot, of themselves, constitute a special reason for not imposing a
mandatory disqualification.

That Whittal v. Kirby (supra) is still good law is indicated in the commentary at
paragraph 32-185 in Archhold 2000.

We reiterate that, to be a special reason, the reason must be an extenuating or

mitigating circumstance : it must not amount in law to a defence : it must be
directly connected with the commission of the offence and not with the offender
: it must be a matter which the Court ought properly to take into account when
considering sentence. What Lord Widgery, C.J., said in Nicholson v. Brown
(supra) is something which neither extended not diminished Whittall v. Kirby
(supra), but merely followed the dicta of Lord Goddard.”

Applying the principles enunciated in Public Prosecutor v Lim Jin Lee and Salina
Binti Mohd Salleh, in my opinion, if the court in the Ariffin case accepted that the
defendant was driving in road conditions which necessitated extra care on his part and
he failed to exercise proper care and he was properly convicted of careless driving,
those very same road conditions cannot themselves amount to a special reason. If the
court accepted the defendant’s explanation that he was “driving carefully” because of
the road conditions at the time, that too cannot constitute a special reason as it would
amount to a defence.

Reverting to the facts of the present appeal, and applying the same principles
mentioned above, if the appellant had admitted to the statement of facts he was
“driving too fast” and “driving dangerously” having regard to the existing road
conditions, in my judgment, he cannot rely on those very same road conditions as a
special reason not to disqualify him.

The question is whether there was indeed an admission by the appellant of the
statement of facts. Although counsel for the appellant appeared to be under the
impression there was such an admission, for in the course of his written submission he
made reference to the “admitted brief facts”, I was unable to find any indication of this
in the Magistrate’s record of proceedings. Therefore, at the commencement of the
appeal I invited counsel to address the court on the issue which impinges upon the
propriety of the conviction.

Whilst this is an appeal against sentence only it is open to the High Court in exercise
of its power of revision under section 296 of the Criminal Procedure Code to review
the conviction.

Mr. Yusof Halim’s instruction from the appellant is that the Magistrate’s record of
proceedings is accurate and whilst the statement of facts was read out he was not
asked whether he admitted to the facts. The appellant “strongly denies” he was
 4

driving fast and says “he could not travel fast as he was driving behind a slow moving
lorry”.

The Deputy Public Prosecutor Pg Jasmine submits that her record of proceedings in
the court below shows the appellant did admit to the statement of facts.

There is no obvious error on the face of the Magistrate’s record of proceedings. There
is simply no record of the appellant admitting to the statement of facts. It is the record
of the Magistrate that is decisive in determining what transpired in the court below and
not the record of the prosecution nor for that matter the record of the defence.

Reference was made by Mr. Yusof Halim to a decision of the Singapore Court of
Appeal in Mok Swee Kok v Public Prosecutor [1994] 3 SLR 140, which I have derived
assistance in considering the question of the role of a statement of facts. Yong Pung
How, C.J., delivering the judgment of the Court of Appeal of five judges, approved of
what was said by LP Thean, J. in Chota Bin Abdul Razak v Public Prosecutor [1991]3
MLJ 77 at page 81:

“…….what is required is the admission by the accused of the offence without

qualification. It is therefore essential that what the accused admits in the
statement of facts contains all the ingredients that constitute the offence with
which he is charge. It is not essential, however, that the accused should admit
every iota of facts contained in the statement. If what he admits contains all the
ingredients that constitute the offence and what he disputes or does not admit is
irrelevant or immaterial to the offence, such an admission, in my opinion, is
sufficient for the purpose of s 180(b), and the court should accept his plea of
guilty. Such an admission is an admission without qualification of the offence
alleged against him.”

I think that approach is correct and applicable in our jurisdiction.

The equivalent provision in Brunei to section 180(b) of the Singapore Criminal

Procedure Code is section 175(2) of the Criminal Procedure Code which reads:

“If the accused pleads guilty to a charge whether as originally framed or as

amended under section 178 the plea shall be recorded as nearly as possible in
the words used by him and he may be convicted thereon:

Provided that before a plea of guilty is recorded the Court may hear the
complainant and such other evidence as it considers necessary and shall
ascertain that the accused understands the nature and consequences of his
plea and intends to admit, without qualification, the offence alleged against
him.”

It is the duty of the court to ensure that the accused unreservedly admits to the
statement of facts which must contain all the elements of the charge before accepting
his plea of guilty.
 5

In the circumstances, as there is no record whatever that the appellant had admitted to
the statement of facts relied upon by the prosecution to support the charge, the guilty
plea cannot be allowed to stand.

Accordingly, the conviction is quashed and a retrial is ordered.

DATO PADUKA STEVEN CHONG

Judge, High Court