Neal J:

The appellant was convicted by the Magistrate, Johore Bahru, on 20 July 1959, in respect of the following charge:

That you on 11 June 1959, at about 4.30 p.m. at Gelang Patah New Village, in the Police District of Gelang Patah, in the State of Johore, being the driver of a Public Service Vehicle No. K 5338, did use the said vehicle in breach of the conditions attached to the PSV Permit No. 17925 which authorised you to take Passengers from Scudai to Johore Bahru, to wit, by taking three Passengers from Gelang Patah to Johore Bahru and that you have thereby committed an offence punishable under Reg. 7 of the Motor Vehicles Commercial Use Regs, (GN 30/45).

Before me the appellant relied upon the following grounds of appeal:

(iii) The Permit P1 does not prohibit the permit holder from taking on passengers at the places alleged in the charge;

(iv) There was no evidence that PW2 and PW3 paid separate fares to constitute contravention of conditions of the Permit.

The evidence adduced before the Court below showed that the appellant was seen driving taxi No. K 5338 out of the town of Gelang Patah towards Johore Bahru by a police corporal, who stated that he stopped the appellant, examined his permit (which was produced) and that he had seen the appellant pick up passengers (number not stated) at Gelang Patah. The prosecution also called two of the three passengers in the taxi, who stated that they got into the taxi at Gelang Patah, but they do not appear to have been asked as to the circumstances under which they got into the taxi.

When called upon to enter on his defence, the appellant gave evidence on affirmation, stating that he had been hired at his base as fixed in his permit, by a Chinese passenger to drive from the base at Scudai to Gelang Patah and back, that at Gelang Patah the hirer had brought two additional passengers into the taxi, and arrangements had been made between the original hirer and the appellant to take all the three of them to Johore Bahru. His evidence was corroborated by the person with whom he had the hiring.

At this stage I am aware that the Court below rejected the evidence of the defence on the ground that the two persons in the taxi called upon by the prosecution had never mentioned that they were friends of the person who had hired the taxi. That is perfectly true, but it is equally true from the record that they were never asked. In my opinion the Magistrate was wrong in rejecting the evidence of the defence on the ground that he did so reject it.

Apart altogether from the rejection of the evidence of the appellant and his witness, I am of the opinion that the Magistrate was also wrong when he stated as a legal proposition that exh. P1 permitted the appellant to pick up passengers only at his authorised base at Seudai. In the statement construing the appellant's permit, the Magistrate appears to have been following the expression of opinion of the police corporal (PW1) when he stated "According to P1 that the base is at police station Seudai - he can pick up passengers from Seudai to go to Gelang Patah or go to Johore Bahru. Defendant cannot pick up passengers at Gelang Patah. He can drop passengers at Gelang Patah".

A condition of the permit, a breach of which was apparently alleged, is condition two which reads:

2 .The authorised vehicle shall operate from the following place which shall be deemed for all purposes to be the base from which it shall be operated...

In the first place this condition must mean operate a hackney carriage. In my opinion it would not be a breach of the condition of the permit for the operator of the vehicle, at the request of the hirer, to take on additional non-paying passengers. Again, in my opinion, the construction placed by the police corporal and the learned Magistrate on the word "operate" is far too restricted. To my mind the appellant would have been operating from his base if he received a telephone call from a hirer to pick him up at