Ong J:

This is an appeal by the Public Prosecutor against an order of the Magistrate at Kajang acquitting the respondent of a charge, under s. 35(1) of the Road Traffic Ordinance, 1958, of dangerous driving of motor- lorry No BD-5751 at the 11'be mile Kajang Road.

The learned Magistrate's undue haste to be done with the case is clearly the reason for his falling into error. This is obvious from the record, where, after the evidence of three prosecution witnesses had been taken, the following notes were made by the Magistrate:

At this stage of the proceedings the Prosecution informs the Court that it cannot go on with the case any further as the Investigation Officer and the Police Photographer are not available. They had gone to the High Court for a case. The other witnesses also not available although subpoenas have been issued for their attendance. Prosecution applies for an adjournment to another date.

I refused application for an adjournment of the hearing to another date, and acquitted and discharged the defendant."

In his grounds of judgment, completed nearly a month after this order of acquittal, the learned Magistrate himself referred to the provisions of s. 259 of the Criminal Procedure Code that an adjournment must be for reasonable cause, but stated that in his view the application by the prosecution for adjournment did not appear to be reasonable at all. He vouchsafed no reasons, however, for holding that view, and I think it would have been impossible for him to have attempted to do so against what appears on the face of the record. The absence of prosecution witnesses "because they had gone to the High Court for a case" is undoubtedly reasonable cause for an application for adjournment, because there can be no suggestion that attending the High Court as a witness is even remotely likely to be considered a frivolous ground. Nor had there been any repeated postponements or adjournments previously obtained on frivolous flimsy grounds by the prosecution disentitling it to any further indulgence. I would therefore allow this appeal, set aside the order of acquittal and direct that the Magistrate continue with the trial and hear the further witnesses tendered by the prosecution.

I should have had no further observations to make but for the fact that the learned Magistrate had gone further in his grounds of judgment to justify the acquittal.

He started off in the forefront of his grounds of judgment by stating:

At the close of this case for the prosecution I found that on the evidence adduced, no prima facie case had been made out on the charge, (which) if unrebutted would have warranted a conviction.

He proceeded thereupon to state his reasons, having regard to the evidence then before him.

Here, again, as the learned Deputy Public Prosecutor pointed out, the Magistrate was in error because the prosecution had not yet closed its case, and the provisions of s. 173(f) of the Criminal Procedure Code cannot come into operation unless and until all the evidence for the prosecution shall have been taken.

It is very unfortunate that, by attempting to bring the acquittal within s. 173(f), the learned Magistrate had gone on to make two findings of fact. First, relying on the evidence of the lorry cleaner, PW2, he held that "the defendant had duly fulfilled the duty to take care cast upon him by the Ordinance." Secondly, he also held that, because PW3 "admitted he was driving at 40 mph and negotiating a bend at that speed", PW3 was therefore "careless of the obligation imposed upon him in respect of other road-users to take care," and that "it was the contributory negligence of PW3 in driving his car without due care and attention that caused the accident." These findings are entirely premature and cannot stand. Contributory negligence by PW3 is completely irrelevant.

In view of the order made on this appeal, I shall say nothing further than that it is far from the truth that the prosecution was seeking to es