Laville J:

There is no doubt, provided it was legally proved that the terms of the permit covering the vehicle J 5752 limited the number of passengers to be carried therein to 29, that accused was rightly convicted of the offence charged.

The only question arising in this appeal therefore is whether the terms of the permit have been properly proved.It is a fundamental rule of criminal law that the onus of proving every ingredient that goes to make up the criminal offence is on the prosecution.In this case the owner of the vehicle J 5752, who was permitted to operate it as a passenger carrying vehicle, was the Coastal Omnibus Coy, Ltd. It was the duty of the prosecution to produce the permit of the Company in order to prove its terms and so demonstrate to the Court that the condition relating to the number of passengers allowed to be carried had been infringed.This could have been done by subpoenaing a responsible officer of the Company to produce the permit at the trial.

This was not done.For reasons not explained to the Court by the prosecution, an alleged copy of the permit covering the vehicle certified as a true copy by the Commissioner of Road Transport, Federation of Malaya, was produced and put in by the officer conducting the prosecution as proof of the contents and conditions of the permit.

A permit is a document and the best proof of its contents is therefore the document itself.Section 64 of the Evidence Ordinance states that documents must be proved by Primary evidence, i.e. the production of the document itself, except in certain cases set out in s. 65. Of those exceptions none can considered applicable in this case save the possibility that secondary evidence of the contents of the permit may be admissible under s. 65(e) or (f) of the Ordinance.

Section 65(f) allows proof of a document by the production of a certified copy of it, if it is allowed by the Evidence Ordinance or any other Act. The Evidence Ordinance does not allow such proof of permits under the Road Transport Proclamation nor does any other act and therefore s. 65(f) does not apply.

Section 65(e) allows secondary evidence by certified copy to be given be public documents.Such documents must fall within the definition of the public documents set out in s. 74, Evidence Ordinance.Section 74 defines public documents as: I documents forming the acts or records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive; II public records of private documents.

Section 74, I (i) and (ii) clearly do not apply to a permit under the Road Transport Proclamation.Section 74 I (iii), though at first sight it seems to cover the nature of a permit it does not in actual fact do so. The record of a public act must be the original kept in the custody of the Officer executing it. A copy certified by him os acceptable in evidence, but where the public act is the issue of a document, a copy of that document kept by the public officer for reference is not the original, and a certified copy of that document is therefore not admissible as secondary evidence of the original under this section.

I am of opinion, however, that such a document is admissible under s. 74, II, of the Evidence Ordinance, but only in proof of the public record and not of the original document.The copy of the original document issued to the permit holder is a public record kept in the ordinary course of his public office by the Controller of Transport and as such a certified copy of it is admissible in evidence, but only in proof of the kept for reference and not as proof of the original permit which is a private document.

It will be seen therefore that a certified copy of a permit under the Road Transport Proclamation is not admissible in evidence to prove the contents of the permit, as it is actually a copy of a copy and is not authorised as evidence under the Evidence Ordinance.

The question whether in t