Terrell A-G FMS CJ:

The judgment of the Court of Appeal was read by:

This is a case referred by the Magistrate under s. 62 of the Courts Enactment, arising out of the trial of Ong Cho Teck, on a charge of permitting a motor vehicle to be used on the public road with brakes the system of which was not maintained in good and efficient working order, an offence under r. 56 and punishable under r. 80 of the Motor Vehicles (Construction & Use) Rules, 1937.

When charged, the accused said:

I left the car entirely to my servant. There is no point in hearing the case. If the brakes were bad I am guilty. I agree and I do not dispute the fact that the brakes were bad.

The learned Magistrate heard argument as to the effect of this plea, and he delivered a considered judgment in which he said:

As the charge was of 'permitting' I hold that some evidence of the state of mind of the defendant must be given and held therefore that a conviction as charged could not be sustained on the plea tendered.

The Magistrate found from the plea that the defendant left the care of the car to his servant absolutely, and in so doing he failed in the duty imposed upon him by rr. 56 and 80. "I therefore held him guilty of the offence of failing to comply with the provisions of r. 56 in that the braking system of his car was admittedly defective." The learned Magistrate held that such failure was a failure to comply with an absolute prohibition imposed on all owners of motor cars, and that the accused was liable for the act of his servant in using the car in question on the road whilst its braking system was defective, although he may have had no personal knowledge of the defect.

In the opinion of the Court the conviction was correct, but should have been of the offence charged.

The relevant provisions of the Rules under which the charge was laid, that is rr. 56 and 80 in Pt III of the Motor Vehicles (Construction & Use) Rules 1937, (Allen, Vol. VIII, pp. 3204 and 3208) read as follows:

56. Every part of every braking system and of the means of operation thereof fitted to a motor vehicle shall, at all times while the motor vehicle is used on a road, be maintained in good and efficient working order and shall be properly adjusted.

80. If any person uses or causes or permits to be used on any road a motor vehicle in contravention of or fails to comply with any of the requirements of the rules contained in Pts III, he shall be guilty of an offence and liable on conviction to a fine of two hundred dollars.

Rule 56 imposes an absolute duty on the owner of a motor car, but it is not by itself a penal rule. r. 80 contemplates four possible offences:

(a) using a motor car in contravention of the rule;

(b) causing a motor car to be so used;

(c) permitting a motor car to be so used; and

(d) failing to comply with the requirements of the rules.

It is no doubt true that the accused could have been charged and convicted under (d), but he was not so charged, and the Court is asked to say what is the proper construction to be placed on the word 'permit'.

It would appear that the words 'using' 'causing and 'permitting' must all involve some conscious act on the part of the person charged. That does not mean that 'permits' in the Rules has the same meaning as "permits knowing of the breach of the Rule." It means that the owner consciously allows his driver to take the car out. But the prohibition against the brakes being defective is absolute. If therefore an owner permits the use of the car, and the brakes are in fact defective, the offence has been committed. On the other hand, the owner would not be liable if the car had been taken out without his permission, because he would not have done the conscious act without proof of which no offence could be established.

It appears to the Court that this interpretation of r. 80 is in accordance with the trend of the decisions in England. As Scrutton LJ said in Mahmoud v. Ispahani [1921] 2 KB 718.

When the