Wilson J:

The appellant was charged with the following offence:

That you on 8 March 1954 at about 12.45 p.m. at Jalan Raja, Kuala Lumpur, being the driver of motor lorry No BB 5782, did use the said vehicle on the public road in such a condition as to emit smoke or visible vapour the emission of which could be prevented or avoided by the taking of any reasonable steps or the exercise of reasonable care contrary to reg. 103 of the Motor Vehicles (Construction and Use) Regulations 1948, and punishable under s. 8(i) of the RTP 17/45.

It has been argued before me that the charge is bad in law because of duplicity, inasmuch as the charge relates both to smoke and visible vapour in the alternative.Having regard to the conclusions to which I have come, it is not necessary for me to give a decision on this point which would in any case be obiter dicta.

The evidence was that of one witness who stated that he observed the lorry driven by the defendant emitting a lot of black smoke.No other evidence was called.It has been argued before me by the Deputy Public Prosecutor that that amounted to evidence that he had committed the offence charged, and that the learned Magistrate was entitled to say, as he did, that the emission of a lot of black smoke does not necessarily require expert evidence to prove lack of maintenance, and he added: "It is to my mind, common knowledge, that a vehicle fairly well maintained, would not emit a lot of black smoke." His knowledge of motor cars and mechanics may be for greater than mine but I could not go so far as to say that the emission of black smoke must necessarily indicate lack of maintenance.

The Deputy Public Prosecutor has also argued before me that the emission of black smoke at any rate raises a prima facie case against the appellant under the charge, and that it was for him, if he wished, to show that it was not caused by the failure of taking any reasonable steps or exercising reasonable care to prevent it.

I am unable to agree with this contention and, in my opinion, it was for the prosecution to prove that the emission of black smoke was due to the causes alleged in the charge.

Accordingly, I allowed the appeal and quashed the conviction and ordered that the fine of $50 which had been paid be repaid to the appellant.

Appeal allowed.