Appeals court restores tow truck driver’s guilty plea nearly seven years after Johor highway crash

PUTRAJAYA, Feb 27 — The Court of Appeal today reinstated the Magistrate’s Court’s conviction and fine of RM7,000, in default three months’ imprisonment, against a tow truck driver for careless and inconsiderate driving nearly seven years ago.

A three-judge panel, led by Justice Datuk Azmi Ariffin, sitting with Datuk Hayatul Akmal Abdul Aziz and Datuk Meor Hashimi Abdul Hamid, allowed the prosecution’s appeal, overturning the 2024 High Court decision that had acquitted and discharged Liaw Zhi Foh on the charge.

Justice Azmi ordered Liaw to pay the RM7,000 fine within seven days, on or before March 6; failure to do so will trigger the three-month imprisonment immediately.

In a unanimous ruling, Justice Azmi held that the High Court Judicial Commissioner had erred in exercising her revisionary powers under Section 323(1) of the Criminal Procedure Code.

The commissioner had relied on records from a civil proceeding, rather than confining her review to the notes of the Magistrate’s Court proceedings.

The judge explained that the Judicial Commissioner had improperly considered a pending Sessions Court civil record when setting aside the conviction and sentence imposed by the Magistrate’s Court, thereby exceeding the proper scope of her revisionary authority.

“In our view, the High Court cannot rely on civil proceedings that had not yet been concluded at the time to set aside the conviction and sentence”, he said

In 2022, Liaw, 40, pleaded guilty at the Magistrate’s Court to a charge of driving carelessly at KM 0.4 of the second link expressway in Johor around 9 pm on March 13, 2019, causing a motorcycle to collide with a lorry.  Liaw was fined RM7,000, in default three months’ jail.

The motorcyclist subsequently filed a civil suit at the Sessions Court in Johor Bahru. During those proceedings, the investigating officer testified that the accident occurred at KM1.4, not KM0.4 as stated in the charge sheet.

Two years later, Liaw filed a revision at the High Court seeking to set aside his guilty plea and conviction previously recorded in the Magistrate’s Court, and to obtain a refund of the fine he had paid.

In April 2024, the High Court allowed the revision, quashing Liaw’s guilty plea and conviction, and ordered that the fine be refunded.

The court reasoned that it would be an injustice to uphold a plea based on a defective charge. 

The prosecution then appealed to the Court of Appeal.

At the appeal today, deputy public prosecutor Mohd Fairuz Johari argued that the Judicial Commissioner had erred in law by relying on evidence from a civil proceeding to contradict the criminal charge against Liaw.

He emphasised that Liaw’s plea was set aside based on evidence that had not yet been adjudicated in the civil case.

Liaw’s counsel, J S Naicker, contended that the revision was necessary because the guilty plea under Section 43(1) of the Road Transport Act 1987 had been entered based on a mistake arising from inconsistencies in the charge sheet. — Bernama