UNDANG-UNDANG JENAYAH II

LIA2007

SESI 2018/2019

SEMESTER II

Nama : Mohd Nazlee bin Zubair

No. Matriks : LIA170070

Nama Pensyarah : Dr. Zulazhar bin Tahir

 The first issue is whether Otai is liable under Section 304A of the Penal Code1 or

Section 41(1) of the Road Transport Act 19872?

Section 304A of the Penal Code

Section 304A of the Penal Code stated that whoever causes the death of any

person, by doing any rash or negligence act not amounting to culpable homicide, shall

be punished with imprisonment for a term which may extend to two years or with fine

or with both. The element of mens rea in this section is rash or negligence, while the

actus reus is the act that causes the death of any person.

In the case of Nidamarti Nagabhushanam3, the court held that to prove rashness

requires the accused to consider the possibility of the mischievous consequences that

will occur but still decide to run the risk. While negligence is when the accused

disregard the risk which he would have recognized if he had exercised proper caution.

The court held in Anthonysamy v PP4 that the test to determine whether an act is

rash or negligent under S304A is whether a reasonable man in the same circumstances

would have realized the prospect of harm and would have stopped or changed his

course so as to avoid it. This is affirmed in the case of Adnan bin Khamis v PP5, the

court held that the test to be applied for determining the guilt or innocence of an

accused person charged with section 304A is to consider whether or not a reasonable

man in the same circumstances would have been aware of the likelihood of damages

of injury to others resulting from such conduct and taken adequate and proper

precautions to avoid causing such damage or injury.

1
Act 574
2
Act 333
3
[1872] 7 Mad HCR 119
4
[1956] MLJ 249
5
[1972] 1 MLJ 274

2
 It must also be further proved that the rash or negligent act of the accused was the

immediate cause of the victim’s death. In the case of Lee Kim Leng v R6, the court

held that to impose criminal liability under section 304A of the Penal Code it is

necessary that the death should have been the direct result of a rash and negligent act

of the accused and that act must have been the proximate and efficient cause without

the intervention of another people negligence. In other words, the chain of causation

must have not been broken.

Applying to our case, in order to convict Otai under Section 304A, the elements

of mens rea must first be proven. From the facts of the case, it is clearly stated in the

evidence given by Sepoi who was at the location during the accident that it was a

double line road and Otai drive in high speed when he overtake a trailer in front of

Sepoi’s car. It is a known thing that a double line road means that you cannot overtake

the car in front of you as it is restricted by the law. Applying the test stated in the case

of Adnan bin Khamis, we can assume that Otai have a driver license because he

drives a lorry and he should not be driving in high speed and overtaking other

people’s car especially when he is going uphill as this means that he cannot see any

car that will come from the other side of the road that are going downhill. We can say

that Otai is driving in rashness as a reasonable man and road user should knew that he

cannot overtake at double line road as it is against the law and will cause danger but

he keep doing so with the hope that nothing will occur and did not take any proper or

adequate precaution to prevent it. Actus reus is the act which causes the death of any

person. To prove the actus reus, it can be shown in Otai’s action of overtaking Sepoi’s

car and the trailer at a double line road when they are going uphill. This results in his

lorry colliding with Mat’s car which end up killing Mat and Siti.

6
[1964] 1 MLJ 285

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Section 41(1) of the Road Transport Act 1987

Section 41(1) of the Road Transport Act 1987 stated that any person who, by the

driving of a motor vehicle on a road recklessly or at a speed or in a manner which

having regard to all the circumstances (including the nature, condition and size of the

road, and the amount of traffic which is or might be expected to be on the road) is

dangerous to the public, causes the death of any person shall be guilty of an offence

and shall on conviction be punished with imprisonment for a term of not less than two

years and not more than ten years and to a fine not less than five thousand ringgit and

not more than twenty thousand ringgit. The court held in Ng Beng Kok v PP7 that

this section is divided into three distinct limb which are;

(a) driving a motor vehicle recklessly;

(b) driving a motor vehicle at speed; or

(c) driving a motor vehicle in a manner which having regard to all the circumstances

(including the nature, condition and size of the road, and the amount of the traffic

which is or might be expected to be on the road) is dangerous.

So in order to establish a criminal liability under this section, the accused must be

proved to have a mens rea of reckless in driving a motor vehicle or driving a motor

vehicle in a dangerous manner and also at the same time the court must consider the

circumstances of the nature, condition, and size of the road and the amount of the

traffic. The three limb constitute as mens rea for this section.

In the same case, the court interpreted the first limb, and the word recklessly, as

to the deliberate taking of unjustified risk which requires the element of foresight by

the accused of the likelihood of certain consequences. On a charge of reckless driving,

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[2017] 7 CLJ 157

4
proof of some actual foresight by the accused of the likelihood of certain

consequences is necessary. The test is, therefore, subjective and consequently mens

rea is necessary of the offence8. In the case of PP v Zulkifli Omar9, the court held

that causing death by reckless driving is a more serious offence compared to causing

death by dangerous driving. The court further explained that to be guilty of the more

serious category of the offence of reckless driving, the driver must have created an

obvious and serious risk of injury to the person or damage to property and must either

have given no thought to the possibility of that obvious risk, or have seen the risk and

nevertheless decided to run it. The two offence not necessarily will overlap each other

in every case. In the finding to establish reckless driving on the part of the defendant,

the court will have regards of prevailing factors at the material time of the accident,

including the nature, condition, condition, and size of the road, and the amount of

traffic which might be expected on the road. The court also in the opinion that driving

heavy vehicles requiring less speed and more caution compared to light vehicles.

For the second limb, according to the case of Ng Beng Kok, speeding is an

offence and it is act of driving in excess of speed limit in a particular area. It depends

on the circumstances of the road at the material time of the accident.

For the third limb, as to the meaning of dangerous to public in the case of Ng

Beng Kok, it was held that there is no legal definition of driving which is dangerous

to public. However it must be considered whether the appellant driving a motor

vehicle on a road dangerously towards other persons who might reasonably expected

to be on or near the road having regard to all circumstances including the nature,

condition and size of the road, and the amount of traffic which or might be expected

8
Ibid at 166
9
[1998] 6 MLJ 65

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to be on the road. In Rahimahani binti Kamal Abd Nasir v PP10, an objective test

was laid down in this case. The court held that the dangerous driving to the public can

be proved if the accused be seen objectively that it will cause danger to other road

users by take account of the situation and the condition of the road at the time of the

accident happened. The facts of this case is the same as the case in our hands and the

court found the accused guilty under Section 41(1). In the case of Lim Chin Poh v

PP11, it was held that careless driving may well be dangerous though all careless

driving are not necessarily dangerous. It was further held that driving in a manner

which is dangerous to the public indicates some dangerous act or maneuver on the

part of the driver of a vehicle for examples overtaking a vehicle on the wrong side of

it, or overtaking in the face of oncoming traffic, or overtaking when unable to see

oncoming traffic, or crossing a junction against traffic light. So, there must be some

positive act on the part of the driver which is dangerous having regard to all the

circumstances12. In PP v. Low Yong Ping13, court held that leaving one’s own proper

side of the road and getting into the path of an oncoming vehicle is considered an act

which has potentially fatal consequences and it definitely falls within the definition of

‘dangerous driving’. Actus reus in this section is acts relevant under this section

which causes the death of any person. The result must be death as only injury will not

be sufficient under this section.

Applying to the case, in order for Otai to be convicted under Section 41(1) of the

Road Transport Act 1987, he must be liable under either one of the limb to prove

mens rea.

10
[2018] MLJU 437
11
[1969] 2 MLJ 159
12
Ibid at 161
13
[1961] 1 LNS 91

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 Based on Sepoi’s testimony and applying the case of PP v Zulkifli Omar, it

could be argued that Otai have created an obvious and serious risk to other road user

when he overtake Sepoi’s car and the trailer in high speed going uphill on a double

line road. If we apply the reasonable foresight test lain in the case of Ng Beng Kok,

then Otai would be liable for reckless driving as he should have known as a road user

himself that overtaking two vehicle when you have limited vision because of you

going uphill would likely cause an accident. Applying the principle in PP v Zulkifli

Omar, even though Otai was not carrying anything on his lorry at the time of the

accident, lorry in general is heavier than regular vehicles and requires more caution

and less speed compared to lighter vehicles. Therefore, he should have take extra

precautions when he was driving the lorry and overtaking two car on a double line

road going uphill is not one of it. We could say that Otai would be liable for reckless

driving.

The argument to say that Otai did not make any offence in regarding to cause any

death by driving motor vehicle at speed would be irrelevant on the ground that the

speed of the lorry that was driven by Otai was uncertain as the facts were silent of it.

At the time of the accident, because of the collision between Otai’s lorry and Mat’s

vehicle, Mat’s son was thrown away from the car and caused the car to roll over on

Siti’s side which indicates that there was a strong impact between the two vehicles. It

must be taken note that the medical evidence by Dr. Comel showed that the two

deceased, Mat and Siti suffered serious injuries to the head and that were the cause of

death. It was described that the back of the skull of Mat’s head was scattered and split

into two while Siti’s skull went inside it as her face broke into the back of her face.

This fact implies that the impact was so strong because of either car or both are going

at high speed. We already have Sepoi’s testimony that Otai is driving in high speed in

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order to overtake the trailer. The fact that Mat’s son was thrown away outside of the

car also proves that the impact was severely strong.

Driving at high speed and reckless driving that have been discussed earlier can be

considered in determining the offence of dangerous driving as based on the case of Ng

Beng Kok, both of it constitute as part of manner of driving14. Therefore, the two

limbs that were discussed earlier can be taken in consideration in deciding whether

Otai had been driving dangerously. Applying the case of Lim Chin Poh, what

constitutes a dangerous driving to the public is a subjective one as long it has some

positive part of the accused. The fact that Otai overtook Sepoi’s car and followed by

the lorry trailer shows the speed of his lorry. It is justifiable to say that speed is not an

offence in this situation as adequate speed is necessary to overtook any vehicle so that

the driver will spend less time on the opposite lane. However, it does not change the

fact that he did it on a double lined road. As mentioned previously, the double lined

road indicated that it is against the law for any vehicle to overtake other vehicle. One

of the reason is because of the danger of doing so. Applying Low Yong Ping’s case,

Otai’s acyion of leaving his own proper side of the road and getting into the path of an

incoming vehicle to overtake Sepoi’s car and the trailer falls within the definition of

“dangerous driving”. If we were to apply the objective test in Rahimahani v PP, the

situation and the condition of the road at the time of the accident must also be

reviewed. We can assume that there seems to be no reason for Otai to drive in high

speed and overtake other vehicles as it does not seems like he was in rush. We can

infer that he was not in the rush from the facts that he was not carrying anything on

his lorry. The accident also happen in the evening which means that the road was not

hard to see. The only problem is that Otai was driving uphill which means that he

14
Supra note 7, at 171

8
cannot see any incoming vehicle from the opposite direction especially car that just

came came uphill from the other side. But even then, he was not supposed to overtake

other vehicles as it is a double line road. Therefore, taking into factor all of this, Otai

could be liable for driving dangerously.

Conclusion

In conclusion, Otai may be liable under Section 304A of the Penal Code, which

carry the punishment of imprisonment not more than two years or fine or both, and

Section 41(1) of the Road Transport Act 1987 which carry the punishment of

imprisonment between two to ten years and fine not less than five thousand ringgit

and not more than twenty thousand ringgit.

Improvement on the current law

Although Section 304A of the Penal Code and Section 41(1) of the Road

Transport Act 1987 have covered rashness, negligent, reckless and dangerous driving,

in my opinion, there are some improvements to the law that can be made in order for

it to work more effectively in the future.

One of it is to increase the punishment on both Section 304A of the Penal Code

and Section 41(1) of the Road Transport Act 1987. If we look the punishment on both

law, we can say that it is not sufficient to curb the problem. On Section 304A of the

Penal Code, the punishment is imprisonment not exceeding two years or fine or both.

While for Section 41(1) of the Road Transport Act 1987, the punishment is

imprisonment from two to ten years and fine not less than five thousand ringgit and

not more than twenty thousand ringgit. This is insufficient looking from the viewpoint

of the victim in certain cases especially when it actually causes the live of these

people to completely change due to what happened. It is therefore justified for the

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court to actually serve a proportionate punishment to the severity of the act if the

punishment is raised. By doing so, it will also impact the society as more people will

actually be more aware or fearful on breaching the laws that would actually make

them lose out on many things in life. Former Deputy Minister of Transport, Datuk Ab

Aziz bin Kaprawi and the current Minister of Transport, Anthony Loke Siew Fook,

also supported the amendment of Section 41(1) of the Road Transport Act 1987 to

allow greater punishments to be imposed on guilty drivers who cause deaths,

including introducing a life-long driving ban1516.

Another improvement that can be made is by the Parliament clearly defining the

word ‘dangerous’ in section 41(1) of the Road Transport Act 1987. Although the

meaning of the word can and had been decided by the court on case-by-case basis, it

must still be defined well and precisely by the Parliament as the Executive branch of

the government so that the court can refer to it. This is to avoid any misinterpretation

and to ensure that there is consistency and stability in the law.

Lastly, I would suggest that Section 304A of the Penal Code and Section 41(1) of

the Road Transport Act 1987 to be combined. This is because the only main

difference between the two is that Section 304A require further proof that the rash or

negligent act was the immediate cause of the victim’s death. Sometimes it is difficult

to decide which to use as one could only be found guilty on either one. Therefore, to

increase the rate of success of prosecution, I would suggest both to be combined

instead of risking going with either one and end up failing. Plus, the motive behind

15
Deputy minister moots mandatory jail sentence for reckless driver, Malay Mail, 20 March 2017,
https://www.malaymail.com/news/malaysia/2017/03/20/deputy-minister-moots-mandatory-jail-sent
ence-for-reckless-drivers/1338799
16
Section 41, Road Transport Act 1987 faces review, The Sun Daily, 9 October 2018,
https://www.thesundaily.my/archive/section-41-road-transport-act-1987-faces-review-GUARCH5831
13

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both section is the same, which is to reduce the number of accident because of

rashness, negligence and dangerous driving.

REFERENCE

CASES

Adnan bin Khamis v PP [1972] 1 MLJ 274

Anthonysamy v PP [1956] MLJ 249

Lee Kim Leng v R [1964] 1 MLJ 285

Lim Chin Poh v PP [1969] 2 MLJ 159

Ng Beng Kok v PP [2017] 7 CLJ 157

Nidamarti Nagabhushanam [1872] 7 Mad HCR 119

PP v. Low Yong Ping [1961] 1 LNS 91

PP v Zulkifli Omar [1998] 6 MLJ 65

Rahimahani binti Kamal Abd Nasir v PP [2018] MLJU 437

ONLINE NEWS

Deputy minister moots mandatory jail sentence for reckless driver, Malay Mail,

20 March 2017,

11
https://www.malaymail.com/news/malaysia/2017/03/20/deputy-minister-moots-mand

atory-jail-sentence-for-reckless-drivers/1338799

Section 41, Road Transport Act 1987 faces review, The Sun Daily, 9 October

2018,

https://www.thesundaily.my/archive/section-41-road-transport-act-1987-faces-review-

GUARCH583113

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