Mohd. Zahir Ismail J:

The appellant is appealing against the decision of the learned Magistrate in convicting him for an offence under s. 119(11) of the Road Traffic Ordinance.

He was charged for carrying in his motor-lorry 19 ton 7 cwt 1 qr whilst authorised to carry only 360 cwt thereby there was 1 ton 7 cwt 1 qr overloading.

The prosecution called the constable who stopped the lorry and the Police Sergeant to whom the lorry was subsequently handed. The Sergeant issued the order for the lorry to be weighed. The lorry with the order to weigh was taken by another constable to the office of the Registrar and Inspector of Motor Vehicles where this constable handed over the lorry to the Registrar for weighing and which was done. Then the constable issued the Form Pol. 257 to the appellant. Form Pol. 257 is the summons requiring the appellant to attend the Magistrate's Court at Pasir Puteh.

The Registrar and Inspector of Motor Vehicles, Kota Bharu personally gave evidence of the weighing and testified that the excess weight was 1 ton 7 cwt 1 qr.

Upon being called to enter into a defence the appellant elected to remain silent and he was accordingly convicted and fined.

His only ground of appeal is that the Magistrate erred in the application of s. 53 and s. 143 (7) of the RTO.

Section 53(1) RTO provides:

It shall be lawful for any police officer authorised in writing in that behalf by a Chief Police Officer...to require the person in charge of any motor vehicle to allow the motor vehicle to be weighed...

Counsel submitted that there was no such authority by the Chief Police Officer.

Section 143(7) of RTO provides as follows:

When in any proceedings it is necessary to prove the weight unladen or laden of any vehicle, or the weight of any load carried on any vehicle, a certificate purporting to be signed by any public servant in charge of the weigh-bridge or weighing machine on which the said vehicle or load was weighed, and certifying -

(a) that such weigh-bridge or weighing machine had been examined within the previous eight months and found to be accurate; and

(b) the weight of such vehicle or load, shall be accepted by any court as prima facieproof of the facts certified in such certificate.

Counsel submitted that there was no such certificate and on these grounds the appeal should be allowed. He quoted the case of Maasah bin Deraman v. PP [1973]. In that case it was held that a duly authorised officer under s. 53 of RTO has the power to take the vehicle to the weigh-bridge but he had no power to weigh the vehicle which must be done by the officer in charge of the weigh-bridge.

The learned Deputy Public Prosecutor replied the prosecution did not rely on s. 143(7) but on the unchallenged evidence of the Registrar and Inspector of Motor Vehicles.

From the evidence, the Registrar weighed the lorry personally and therefore there is no necessity for the prosecution to rely on the presumption under s. 143(7) but on the unchallenged evidence of the Registrar and Inspector of Motor Vehicles. Section 143(7) would be relied on by the prosecution if they wish to rely on the certificate issued thereunder without the necessity of calling the officer-in-charge of the weigh-bridge.

The evidence of the Registrar should therefore be admissible and it is unchallenged by the defence. I quite agree that Chief Police Officer should issue a written authority to any Police Officer to empower him with authority to require a person in charge of a motor vehicle to take his vehicle to a weigh-bridge. But failure to do this is not fatal to the prosecution case. I think such authority is more useful to other officers, for instance an officer in the Public Works Department, other than a Police Officer who has the general powers of police investigation to direct the appellant to take his vehicle to the weigh-bridge.

I therefore dismiss the appeal.

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