SIBU: The High Court here today (Aug 28) quashed an appeal by a 26-year-old man against conviction and sentence of three years’ imprisonment and a fine of RM8,000, in default, one year’s jail imposed by a lower court for riding his motorcycle dangerously on the road which resulted in a death of pillion rider.
Additionally, Robert Nyala Enging, from Kemuyang Timur, was disqualified from holding a driving license for a period of three years from the date of conviction.
He was found guilty by the Magistrate Court on July 14 last year after a full trial and imposed the aforesaid sentence on him.
The charge against him stated that he did ride a motorcycle at Kemuyang Road and caused the death of Ridley Raymond by dangerous driving at around 12.44 am on Dec 9, 2019.
Thereby, he committed an offence punishable under Section 41(1) of Road Transport Act 1987.
Dissatisfied with the conviction, sentence and disqualification order imposed, the appellant represented by legal counsel, Roger Lau, lodged an appeal on July 18 last year.
In his judgement, Justice Wong Siong Tung ruled that the appellant’s ground of appeal that the learned Magistrate had not adequately evaluated the evidence due to the absence of expert testimony to establish that the appellant was riding his motorcycle at a dangerous speed, has no merit.
He said there is no legal requirement for expert evidence on the speed to prove dangerous driving under Section 41(1) of the Road Transport Act 1987.
To determine whether the appellant rode his motorcycle on the road in a manner dangerous to the public, he stated the learned Magistrate must consider all relevant circumstances, including the nature, condition, and size of the road, as well as the amount of traffic.
According to him, the appellant’s speed is just one of the factors the Magistrate may take into account when assessing the manner of driving.
Moreover, he said, in addition to finding that the appellant was speeding, the learned Magistrate determined that the collision occurred on a village road at night which was dark, that the road was slippery due to rain or drizzle, that the appellant was riding his motorcycle without headlights, and that the appellant encroached into the opposite lane of another motorcyclist with the deceased as a pillion rider.
These findings are well-supported by evidence, which the Magistrate accepted based on his assessment of the credibility of the relevant witnesses, he pointed out, adding he found no grounds to interfere with these factual findings.
Regarding the learned Magistrate’s finding that the appellant was speeding, based on inferential evidence of loud sound from the appellant’s motorcycle before the collision, Judge Wong said he does not consider the finding unreasonable or perverse.
The finding, he said, is also supported by evidence of the extent of damage to the front of both motorcycles, and that severe damage is consistent with a significant impact resulting from high speed.
Regarding the appellant’s appeal on the ground that the learned Magistrate failed to consider the appellant’s degree of culpability and recklessness, he said the facts clearly indicate that the appellant is at fault. His action -riding a motorcycle on a dark, slippery village road without headlight, at significant speed, and encroaching into another motorcyclist’s lane with the deceased as a pillion rider- created a dangerous situation that was the substantial cause of the collision.
“The appellant cannot evade criminal responsibility for creating the dangerous situation by pointing out that the deceased was not wearing a helmet. While the failure to wear a helmet may have contributed to the deceased’s death, it did not cause the collision.
“The collision resulted from the dangerous situation created by the manner in which the appellant rode his motorcycle, which is the substantial or major cause of the deceased’s death. Thus, the deceased’s lack of a helmet does not excuse the appellant’s manner of riding his motorcycle that led to the dangerous situation.
“For the reasons given, this Court is not persuaded that the learned Magistrate erred on convicting the appellant as charged based on the grounds of the appellant’s appeal. Regarding the sentence imposed by the learned Magistrate, the appellant has not satisfied this Court that the Magistrate erred in principle or in the appreciation of the material facts, nor has he shown the sentence as manifestly excessive.
“Consequently, this Court dismisses the appellant’s appeal and upholds both the conviction and the sentence imposed by the learned Magistrate for the offence with which the appellant was charged and found guilty,” Judge Wong concluded.
Earlier on in his submission, Deputy Public Prosecutor Mark Kenneth Netto who appeared for the respondent, stated that the prosecution has proved beyond reasonable doubt that the appellant, by riding fast in the opposite direction with no headlights turned on that he did under the circumstances had created a traffic situation which was dangerous.
Secondly, he pointed out the prosecution had proved that when creating such a situation the appellant was at fault and as a resultit caused the deceased’s death.
“Hence, the conviction entered against the appellant was safe and the appeal ought to be dismissed. With regards to the appeal against the sentence, the appellant failed to show how it was said to be manifestly excessive in light of the circumstances,” Mark further stated.
