Buttrose A-G J:

This was an appeal against conviction for driving a bullock cart on a public road within the Municipal limits and also against sentence.The facts were not in dispute but the question of law which arose was that the portion of r. 36 of the Road Traffic Rules, 1950, on which the charge against the appellant was based was ultra vires and void.

The relevant portion of r. 36 is as follows:

No person shall lead, drive or ride a buffalo or bullock cart on a public road or street within the Municipal limits.

The imposition of a penalty for driving a bullock cart on a public road within the Municipal limits was also effected by rules made under the Road Traffic Ordinance, 1941.

There is, in my opinion, no express power given to the Governor in Council to make rules on this particular point.The prosecution must rely on the general powers given by s. 87(1) of the Road Traffic Ordinance.

This section provides that the Governor in Council may make rules ... for any purpose for which rules may be made under this Ordinance and for prescribing anything which may be prescribed under this Ordinance and generally for the purposes of carrying this Ordinance into effect.This was interpreted by Murray- Aynsley CJ in Ismail Bin Haji Marican V. Rex [1951] 1 MLRH 278, [1951] 1 MLJ 69 to mean that where anyone is given power to prescribe anything the Governor in Council may make rules to that effect.He went on to say that he considered that the power to prohibit given under s. 24(2) was a power to prescribe.

Similarly, in the view I take, the power to prohibit given under s. 65 is a power to prescribe.Mr. Rayner in his persuasive argument drew a distinction between s. 24(2) and s. 65. In the former he contended that there were no conditions whatever attached to the exercise of the Chief Police Officer's discretion while in the latter very serious limitations were imposed on its exercise.In r. 36, he submitted, there was nothing to show that such an exercise of discretion or opinion had taken place.

It was argued that the Governor in Council had no power to usurp the Chief Police Officer's discretion - it was a very personal discretion vested in him - and that s. 65 was by its very nature entirely unsuitable and inappropriate for coupling with s. 87(1). Mr. Rayner however conceded that the object sought to be achieved, in his submission improperly, by r. 36 could have been successfully effected by the Chief Police Officer exercising his powers under s. 65.

I have carefully examined the wording of sub-ss. (1) and (2) of s. 65 in the light of this argument and I have arrived at the conclusion that s. 87(1) can properly be used with s. 65 to impose a valid rule, in this case r. 36.

I consider that the Governor in Council had power to prohibit the use of specified roads by vehicles of any specified class or description either generally or during particular hours.

It was further argued by Counsel for the appellant that the relevant portion of the rule in question was invalid because it conflicted with the so-called "blanket rule" referred to in Rex V. Koh Hai Sui [1950] 1 MLRH 114, [1951] 1 MLJ 34 . With this argument I am unable to agree.

In the case referred to, the relevant order (the Prohibition of Imports Order, 1948), purported to prohibit all imports save under licence.In the present case the rule purports to prohibit the use of specified roads (namely public roads or streets within the Municipal limits) by vehicles of a specified class (namely, bullock carts). It will be sufficient if I say that, in the view I take, the principles enunciated in Rex V. Koh Hai Sui [1950] 1 MLRH 114, [1951] 1 MLJ 34 , supra and Liversidge's case [1942] AC 206 have no application to the present case.

Finally it was contended that the word "specified" used in s. 65 meant that the roads must be named.In my opinion roads are sufficiently "specified" by reference to "public roads or streets within the Municipal limits".

I turn now to the question o