Judgment - The High Court of Sabah & Sarawak
Judgment - The High Court of Sabah & Sarawak Judgment - The High Court of Sabah & Sarawak
5 10 15 20 25 Brief Facts 2 [KCH-12B-7-2011] The accident occurred along Jalan Datuk Mohd Musa on 10 th September 2006. The 2 nd plaintiff was the pillion rider. The rider of the motorcycle is the son of the 1 st plaintiff. The motorcycle was involved in head-on collision with a car that came from the opposite side of the road. The rider of the motorcycle died on the spot. The 1 st plaintiff has brought this action as the administrator of the estate of the deceased. The 2 nd plaintiff survived the accident although he sustained serious injuries. The 1 st defendant is a Lance Corporal who was attached to the Kota Samarahan Police Station. He was driving alone after attending a police “Jasamu Di Kenang” function in Kota Samarahan. The car was registered in the name of his wife who is also a police personnel. The evidence of the 2 nd plaintiff is that the car encroached into the path of the motorcycle on their side of the road. The 1 st defendant on the other hand told the court that the motorcycle encroached into his path. The learned Sessions Court Judge found the 1 st defendant liable for causing the accident for the following reasons. She found the 1 st defendant’s testimony to be inconsistent. The 1 st defendant lodged the police report the following morning. He did not mention that the motorcycle encroached into his path. The 1 st defendant only said that he collided with a motorcycle that travelled from the opposite direction. The investigating officer of the case, P.W. 1, took numerous photographs of the scene. However, he could not remember taking photographs of the debris at the scene. The Sessions Court Judge also noted that from the serial numbers of the negatives, one photograph, i.e. Negative 17 was missing when it was sent for processing. From the answers of the investigating officer that he “could not recall” and “was not sure” about the position of the debris, she surmised that there was
5 10 15 20 25 3 [KCH-12B-7-2011] some concealment of evidence in the way the case was investigated. However, she based her decision on a rough sketch plan drawn by the investigating officer and given to the father of the 2 nd plaintiff. The father of the 2 nd plaintiff is also a police officer. On the way to the hospital on the fateful night in question, he passed by the scene of the accident and noted debris on the motorcycle’s side of the road. Later he was given a sketch plan by the investigating officer which showed that the point of impact was on the motorcycle’s side of the road. This rough sketch plan was admitted into evidence as P31. The fair copy of the sketch plan prepared by the investigating officer as part of his investigations is found at page 3 of bundle 3. The 2 nd plaintiff testified that the point of impact was as shown in P31. The driver who accompanied the investigating officer to the scene of the incident also testified that the deceased and the 2 nd plaintiff were found lying on the motorcycle’s side of the road as marked in P31. Although the investigating officer had stated that his official sketch plan (page 3 of bundle 3) was correct, he later admitted during cross-examination that P31 is the “real” version. The Sessions Court Judge found that the 1 st defendant was liable because of the position of the glass debris, the position of the victims and the motorcycle in P31. She also considered the 1 st defendant an untruthful witness because he said that he was rendered unconscious after the accident. However, the car was found some 300 metres away from the point of impact where he had collided into a tree. She also considered the possibility of the 1 st defendant having consumed excessive amounts of alcohol at the “Jasamu Di Kenang” police function. The investigating officer did not see it fit to test the 1 st defendant for alcohol consumption the same night. In the premises, the learned Sessions Court Judge surmised that there was a cover up by the investigating officer. Finally the Sessions Court Judge
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some concealment <strong>of</strong> evidence in the way the case was investigated.<br />
However, she based her decision on a rough sketch plan drawn by the<br />
investigating <strong>of</strong>ficer and given to the father <strong>of</strong> the 2 nd plaintiff. <strong>The</strong> father <strong>of</strong><br />
the 2 nd plaintiff is also a police <strong>of</strong>ficer. On the way to the hospital on the<br />
fateful night in question, he passed by the scene <strong>of</strong> the accident and noted<br />
debris on the motorcycle’s side <strong>of</strong> the road. Later he was given a sketch plan<br />
by the investigating <strong>of</strong>ficer which showed that the point <strong>of</strong> impact was on the<br />
motorcycle’s side <strong>of</strong> the road. This rough sketch plan was admitted into<br />
evidence as P31. <strong>The</strong> fair copy <strong>of</strong> the sketch plan prepared by the<br />
investigating <strong>of</strong>ficer as part <strong>of</strong> his investigations is found at page 3 <strong>of</strong> bundle<br />
3. <strong>The</strong> 2 nd plaintiff testified that the point <strong>of</strong> impact was as shown in P31.<br />
<strong>The</strong> driver who accompanied the investigating <strong>of</strong>ficer to the scene <strong>of</strong> the<br />
incident also testified that the deceased and the 2 nd plaintiff were found lying<br />
on the motorcycle’s side <strong>of</strong> the road as marked in P31. Although the<br />
investigating <strong>of</strong>ficer had stated that his <strong>of</strong>ficial sketch plan (page 3 <strong>of</strong> bundle<br />
3) was correct, he later admitted during cross-examination that P31 is the<br />
“real” version. <strong>The</strong> Sessions <strong>Court</strong> Judge found that the 1 st defendant was<br />
liable because <strong>of</strong> the position <strong>of</strong> the glass debris, the position <strong>of</strong> the victims<br />
and the motorcycle in P31. She also considered the 1 st defendant an<br />
untruthful witness because he said that he was rendered unconscious after the<br />
accident. However, the car was found some 300 metres away from the point<br />
<strong>of</strong> impact where he had collided into a tree. She also considered the<br />
possibility <strong>of</strong> the 1 st defendant having consumed excessive amounts <strong>of</strong><br />
alcohol at the “Jasamu Di Kenang” police function. <strong>The</strong> investigating <strong>of</strong>ficer<br />
did not see it fit to test the 1 st defendant for alcohol consumption the same<br />
night. In the premises, the learned Sessions <strong>Court</strong> Judge surmised that there<br />
was a cover up by the investigating <strong>of</strong>ficer. Finally the Sessions <strong>Court</strong> Judge
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