What is reckless driving?

 

From Hafiz Hassan

What is “reckless driving”, Muda has asked after the “basikal lajak” case.

Curiously, it was posed by Muda vice-president Lim Wie Jiet, a lawyer.

“A person is reckless if he does an act that involves an obvious and serious risk of causing harm that is prohibited under the statute. Either the accused fails to give any thought to the possibility of there being such a risk or, having recognised that there is some risk, he nevertheless goes on to take it.” (see R v Lawrence [1982] AC 510, HL; R v Caldwell [1982] AC 341,HL)

In the case of PP v Zulkifli bin Omar [1998] 6 MLJ 65, a group of 41 Rakan Muda members was partaking in the veritable joys of “club biking” (apparently one of the healthy passions of the young and adventurous). That is, biking to nowhere in particular but everywhere in terms of feeling the wind, the laughter, the camaraderie and the smart gear.

They were travelling along the Kangar-Alor Setar trunk road from the direction of Alor Setar towards Kangar shortly after noon, when at KM6.6, a 14-wheeler 20m-long semi-trailer low loader, carrying a load of iron rods and driven by the defendant from the opposite direction, collided into them, killing five of them and injuring four others.

The defendant was charged in the magistrates’ court for an offence under Section 41(1) of the Road Transport Act 1987 (“the Act”) for “causing death by reckless or dangerous driving”.

On Feb 9, 1998, after several days’ trial before the learned magistrate in Kangar, the defendant was convicted as charged and sentenced to 30 days’ jail and a fine of RM7,000, in default six months’ jail. He was also disqualified from holding or obtaining a driving licence for 12 months.

The deputy public prosecutor (DPP) appealed against the sentence.

In delivering his judgment, High Court judge Vincent Ng had the occasion to reflect on the alarming rise in the number of traffic accidents and road deaths as the result of callous, reckless or dangerous driving, contributed by the phenomenal increase in vehicular traffic and change in driver attitude.

The learned judge said: “I should discuss and endeavour to define and lay down certain guidelines pertaining to the charge of ‘causing death by reckless or dangerous driving’ under Section 41(1) of the Act.

“As Parliament has not spelled out the meaning of ‘driving dangerously’ or ‘driving recklessly’, it is left to the courts to do so.

“To be guilty of the more serious category of the offence of reckless driving, the driver (defendant) 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, have seen the risk and nevertheless decided to run it.

“In an offence under Section 41(1), excessive speed is not the sole decider of reckless driving but there must also be a finding on the manner and other aspects of the defendant’s driving which constituted recklessness, by having regard to the prevailing circumstances at the material time of accident, including the nature, condition, and size of the road, and the amount of traffic which is or might be expected on the road.

“The risk created by the manner in which the vehicle is driven must be both obvious and serious, and the court has to be satisfied that the essential or core ingredients of recklessness have been proved beyond a reasonable doubt.”

After having carefully studied the oral testimony of all the witnesses in conjunction with the documentary and mute evidence tendered at the trial, the learned High Court judge was completely satisfied that the learned magistrate had correctly made a finding that the essential ingredients of reckless driving had been established beyond a reasonable doubt – indeed, beyond a shadow of a doubt – and that the defendant had been guilty of the more serious (second category) offence under Section 41(1) of the Act.

On the sentence for reckless driving, the learned judge said that there should be sufficient culpability on the part of a defendant to justify imprisonment. He ruled that the magistrate erred in not giving any or sufficient regard or consideration to the serious and aggravating features of the case as the result of the highly culpable recklessness of the defendant’s management of the heavy vehicle.

Thus, he said the 30-day imprisonment was untenable for being grossly inadequate. In the public interest, where the facts warrant, the courts ought not to hesitate meting out robust deterrent custodial sentences against reckless drivers.

Accordingly, the learned judge ruled that the sentence must be commensurate with and closely reflect the high degree of culpability and recklessness on the part of the defendant, as aggravated by the magnitude of the carnage that he had caused by his rash act.

Therefore, in addition to the RM7,000 fine imposed by the magistrate, the defendant was sentenced to three years’ imprisonment and was disqualified from holding or obtaining a driving licence for four years.

Now, in the “basikal lajak” case, High Court judge Abu Bakar Katar, had on April 13 ruled that the magistrate had erred in failing to decide the accused’s defence without being under oath.

The accused had given an unsworn statement from the dock.

Unsworn statement from the dock

The law is this: when an accused’s defence is called, it is the accused’s right to give an unsworn statement from the dock. If he/she elects to give an unsworn statement, the law states that he cannot be the subject of cross-examination. As such, the evidential weight of his unsworn statement is not the same as the evidence given on oath in the witness box.

The trial court is free to give the statement from the dock the weight it deserves or not at all, having regard to the whole evidence before the court.

A few years back in 2016, in the case of Zulkipli Abdullah v Public Prosecutor [2016] MLJU 299, the Court of Appeal had the occasion to consider the evidential value of the dock statement. It was observed as follows:

“The accused gave an unsworn statement from the dock. His statement is not subject to cross-examination by the prosecution, nor can he be questioned by the trial judge. Its veracity is not tested.

“The trial judge is free to give the dock statement such weight as he thinks fit and he can take it into consideration in deciding whether the prosecution has proved its case.

“In Datuk Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145, the Federal Court observed as follows: ‘In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution, nor can he be questioned by the trial judge (Lee Boon Gan v Regina [1954] 1 MLJ 103, Udayar Alogan & Ors v Public Prosecutor [1962] 1 MLJ 39; Mohamed Salleh v Public Prosecutor [2016] 3 MLJ 586 at 600; [1969] 1 MLJ 104; Juraimi Husin v Public Prosecutor [1998] 1 MLJ 537)’.”

In that case (Datuk Seri Anwar Ibrahim v Public Prosecutor & Another Appeal), the Federal Court went on to say as follows:

“While it is true that it is within the accused’s right to give a statement from the dock, that statement must, however, amount to a credible defence. A mere denial does not amount to a credible defence.”

Thus, where the prosecution has made out a case, a mere denial through a statement from the dock does not in effect raise any reasonable doubt on the prosecution’s case.

This explains why judge Abu Bakar ruled as follows (in Malay): “Mahkamah bicara terkhilaf apabila gagal menimbangkan pembelaan responden (tertuduh) tidak menimbulkan keraguan yang munasabah atas pendakwaan khasnya responden yang memandu keretanya secara merbahaya mengambil kira keadaan jalan yang berselekoh dan berbukit sedikit.”

In the recent case of Pendakwa Raya lwn Sunil Singh a/l Jeganathen Daniel dan lain-lain [2021] MLJU 710, decided on March 1, High Court judge Zulkifli Bakar considered what “reasonable doubt” means by reference to a case decided more than 50 years ago in PP v. Saimin & Ors [1971] 2 MLJ 16, where High Court judge Sharma said as follows:

“Reasonable doubt is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oath and upon your conscience, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt.

“It is a doubt which settles in your judgment and finds a resting place there.

“Or, as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence, and cannot be an imaginary doubt or conjecture unrelated to evidence.”

In that case, justice Zulkifli Bakar ruled that the defence raised by the accused, who gave an unsworn statement from the dock, was a mere denial that failed to raise any reasonable doubt on the prosecution’s case.

The cases above show that not much weight is to be given to what an accused has said in his or her unsworn statement.

So, the decision in the “basikal lajak” case appears to be based on legal principles. The learned judge may err on the principles and the facts of the case.

Let the appeal process remedy this. - FMT

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.