Spenser Wilkinson J:

In this case Nuisance Notices purporting to be under s. 246 of the Municipal Ordinance were served by the Rural Board upon the ten accused who owned certain stalls in Bukit Mertajam.These Notices not having been complied with in April 1950 the Magistrate made a Nuisance Order purporting to be under s. 247 Of the same Ordinance.For some reason which has not been explained the records of the Magistrate's Court, are seriously defective and the record contains no copies of the Nuisance Notices nor the original of the Nuisance Order.The learned Deputy Public Prosecutor however was able to produce from the Rural Board file a copy of one of the Nuisance Notices and there is in the Court file what purports to be a copy of the Nuisance Order.

The Nuisance Order not having been complied with the defendants were summoned under s. 247(9) of the Municipal Ordinance.Only three of the charges were before me and although it appears to me that these charges are gravely defective, in view of my decision on other points I do not need to go into this.

After certain adjournments these Summonses came on for hearing on 20 February 1951 when after bearing certain evidence the Magistrate found all the defendants guilty. I would remark in passing that, although one of the allegations in the charge was that the premises in question were dwelling houses, there was in my opinion no sufficient evidence before the Magistrate on 20 February upon which he could properly have found these premises to have been used as dwelling houses.

The Magistrate having convicted the defendants made the following order:

Fined $5 a day during which the defendants continue to disobey order.Plus $1 cost of summons each.To take effect from today.

It seems quite plain to me that this was an order finding the defendants in futuro in respect of breaches of the law which they had not yet committed.Indeed it is not disputed that this was the manner in which the order was interpreted and fines were in fact collected over a long period from various of the defendants without further intervention by the Court.In effect the defendants appear to have been allowed to continue the use of their stalls in their existing condition upon payment of the sum of $5 a day.

The learned Deputy Public Prosecutor admitted that such an order could not be supported and I have no doubt that it cannot stand.Where the law provides for a continuing offence a fine can be imposed in respect of every day upon which it is proved that the offence has continued - but the only authority that can decide whether or not the audience has continued is the Court.

The following passage appears in Stone's Justices Manual, 79th Edn., p. 184:

A penalty of a fixed sum and a further sum per day during the continuance of the offence may be adjudged where authorised by statute upon one information.

This sentence is to some extent ambiguous and might perhaps be thought to justify the imposition of a fine in futuro; but the authorities cited in support of the proposition make it clear that fines for a continuing offence can be imposed only after proof that the offence has continued (see Airey v. Smith [1907] 2 KB 273).

For these reasons I have no alternative but to quash the convictions, to set aside the order imposing the fines, and to order that all payments of fines made thereunder be refunded to the defendants.

The other question that arises on this revision is whether the Nuisance Order made by the Magistrate is correct.In my opinion the procedure in regard to these premises was misconceived from the start.What the Rural Board was really endeavouring to do was to enforce the Building By-laws.Machinery for this is provided by s. 144(10) of the Municipal Ordinance.Instead, however, of proceeding under this section they purported to proceed by way of the Nuisance Sections of the Ordinance, describing what was really a breach of the Building By-laws as a nuisance.The order itself shows that the two proced