Howes J:

This is an appeal from a conviction under s. 46(i) of the Motor Vehicles Enactment, (Cap. 168) which reads:

46 (i) A person who drives a motor vehicle on any road carelessly or without reasonable regard to the safety, comfort or convenience of other persons using the road shall be punished with a fine which may extend to one hundred dollars.

The charge framed was as follows:

That you at 6.45 p.m. on 5 November 1935 at Tanjong Malim did drive your car carelessly without reasonable regard to the safety comfort or convenience of other persons using the road thereby resulting in a collision of your car to wit with the Police loadometer an offence under s. 46(i), Motor Vehicles Enactment (Cap. 168).

The first ground of appeal is that the charge is bad in law for duplicity. This was a summary trial, and it is necessary to refer to s. 173 of the Criminal Procedure Code (Cap. 6) which governs such trials. It reads thus:

(a) When the accused appears or is brought before the Court a charge containing the particulars of the offence of which he is accused shall be framed and read and explained to him, and he shall be asked whether he is guilty of the offence charged or claims to be tried.

Section 163 of the Criminal Procedure Code (Cap. 6) provides:

For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in ss. 164, 165, 166 and 170.

Section 166 provides that where it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged in the alternative with having committed some one of the said offences. This section could have been utilised in the present case, but it was not.

Upon reading s. 46(i) of the Motor Vehicles Enactment, I am satisfied that it contemplates two distinct offences: (1) driving carelessly; (2) driving without reasonable consideration. To quote the judgment of Avory J in Rex v. Surrey Justices; Ex parte Witherwick [1932] 1 KB 450, 452:

It is not necessary to give illustrations of how a man may be driving with due care and attention, so far as his own safety is concerned, and yet driving without reasonable consideration for other persons, but if a person may do one without the other, it follows as a matter of law that an information which charges him in the alternative is bad. It is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict.

This dictum was approved by the Court of Criminal Appeal in Charles Wilmot v. Rex [1933] 24 Cr App R 63.

In these States the law is different; there being the provision above referred to, for the charge being made in the alternative, but the alternative charge must be set out separately, and the Court must either acquit or convict the accused of it.

In the present case, the Magistrate combined the two offences in the one charge, namely, "did drive your car carelessly without reasonable regard to the safety, etc.' and added the words "thereby resulting (sic) a collision to wit the Police loadometer" which form no part of the statutory offence with which the accused was charged. The addition of these words might lead an ignorant person to assume that it was a criminal offence, accidentally to collide with a police loadometer and further embarrass him. This point, however, was not taken, and, if it had been, I should be disposed to hold that this was only an irregularity and not an illegality.

After reserving judgment, on a subsequent day the Magistrate recorded:- "Defendant convicted. Fined $25.25 and costs or fortnight RI".

The result is that it is impossible to say of which offence the defendant has been convicted.

For the respondent, the Deputy Public Prosecutor relies on the decisio