Gordon-Smith A-G JA:

The Respondent in this case was charged at the Magistrate's Court, Raub, on 14 September 1939, with the following offences -

(a) Section 13(I) of the Road Traffic Enactment, 1937 and punishable under s. 118 (I) of the said Enactment;

(b) Section 44(I) of the Road Traffic Enactment and was acquitted and discharged without being called upon to defend.

Against this decision the Public Prosecutor appealed on the ground that the learned Magistrate in coming to the conclusion that a prima facie case had not been made out against the respondent was against the weight of evidence having regard to the fact that the Prosecution had, inter alia, adduced evidence

(a) that the Respondent was driving a motor cycle;

(b) that the Respondent failed to produce his licence when called upon to do so;

(c) that the motor cycle in question was not the property of the respondent;

(d) that the motor cycle was driven by the Respondent without the consent of the owner. At the hearing of the appeal the learned Judge allowed the appeal and ordered a new trial before another Magistrate.

- This was an appeal by the Public Prosecutor against the decision of the Magistrate in acquitting and discharging the Respondent. The Respondent was charged -

(a) under s. 13(i) of the Road Traffic Enactment for driving a motor cycle and not being licensed, and

(b) under s. 44(i) of the same Enactment for taking away a motor cycle without the consent of the owner.

After recording the evidence of a Police Sergeant and a Police Constable and also the owner of the motor cycle in question, and after an adjournment, the Magistrate, without calling on the accused for his defence, acquitted and discharged the accused. In his grounds of judgment the learned Magistrate stated that the identification of the rider of the motor cycle was extremely weak, that the licensing officer should have been called to prove the non-issue of a licence to the accused, and that he was of the opinion that no prima facie case had been made. He therefore acted under s. 173(f) of the Criminal Procedure Code and acquitted and discharged the accused.

The evidence of the Sergeant (with whom was the Police Constable) was to the effect that he had known the accused for 2'bd years and he saw him approaching on a motor cycle in a zigzag manner and suspected that he had no licence, as accused also had difficulty in changing gear. The rider passed them and failed to stop although shouted at and the Sergeant and Police Constable followed. They found the motor cycle abandoned in Market Street and accused was arrested in Bibby Street.

The owner of the motor cycle gave evidence that he had left the motor cycle in question outside his house near Market Street and that he knew accused by sight only and that he had not given him permission to take away the motor cycle.

In view of the evidence of the Sergeant and Police Constable, it is difficult to agree with the Magistrate's opinion that the evidence as to identity was extremely weak. I allowed the appeal and ordered a new trial before another Magistrate.

Two points arose on the appeal and on which it may be helpful to Magistrates to have a written Judgment.

The first is as to the necessity or otherwise of calling a licensing officer to prove the non-issue of a licence where an accused is charged with the offence of doing something for which a licence is required by law.

In this respect s. 106 of the Evidence Enactment, Cap. 10, is relevant and reads as follows:

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

The second illustration to the section also specifically applies both to civil and criminal case and casts on a person the proof of shewing that he is qualified to do some act which, but for such qualification, is prohibited. This section and others of a similar nature codify what is and has been for years the English law in this respect. Supposing a man