Storr J:

The appellant in this case was charged as follows:

That you on 4 June 1953 it about 8.25 a.m. at Labis did use a motor vehicle No J 5776 with three axes, the central axle weight of which was found to be more than 5'bd tons (i.e. six tons 13 cwts) on a road within the State of Johore other than a road described in the Second Schedule to the Traffic (Restrictions on use of Roads) Order, 1953, and that you committed an offence under reg. 3(c)(ii) of the Traffic (Restrictions on use of Roads) Order, 1953. vide Johore LN 28/53 and punishable under reg. 79 of the Essential Regulations (BMA GN No. 418 of 23 March 1946).

The evidence of the prosecution consisted of that of the Inspector of Weights and Measures, Johore, who gave evidence that on 23 June 1953, he tested the weigh-bridge on which the centre axle weight of the lorry J 5776 was ascertained and found to be six tons 13 cwts., instead of the weight allowed, i.e. 5'bd tons, and found it to be correct.

Police Inspector Wilson Paul produced in evidence weigh-tickets (Ex P1, P2 and P3) and weighing certificate (Ex P4) which stated that the centre axle weight of the lorry was six tons 13 cwts, or one ton three cwts. in excess of the axle weight allowed by the regulation.

The learned Magistrate found that there was a prima facie case against the appellant and called on him for his defence.The appellant offered no defence and was convicted and fined $150 in default one month's imprisonment.It is from this conviction and sentence that the appellant has appealed.

Mr. Braga who appeared for the appellant in this appeal argued that there was no evidence that the weigh-bridge was accurate and that the weighing was correct.He referred to Sim Ah Man v. PP [1949] MLJ 21 and also I allowed him to refer to the evidence of Mr. Quince as an expert from Avery's Ltd., in Magistrate Case 191/51. His contention was that the weigh-bridge was only meant to weigh vehicles of two axles not three axles as in this case, and that therefore the method of weighing and the unevenness of the ground could not give a correct weight and that relying on Sim Ah Man v. PP [1949] MLJ 21 the onus of showing the correct weight was on the prosecution which, not leaving done so, had not proved the case beyond reasonable doubt, and the learned Magistrate was wrong in calling upon the appellant for his defence.

The learned Deputy Public Prosecutor (Mr. I Talog Davies) referred to the grounds of judgment of the learned Magistrate and referred to Prosser v. Richings [1936] 2 All ER 1627 which was a somewhat similar case and in which the learned Lord Hewart CJ, after quoting reg. 59 of the Motor Vehicles (Construction and Use) Regulations, 1931, which reads:

The weight transmitted to the road surface by any one wheel of a motor car where no other wheel is in the same line transversely shall not exceed four tons and the weight so transmitted by any two wheels in line transversely shall not exceed, in the case of a vehicle with four wheels, eight tons . . . . and the sum of the weights transmitted to the road surface by all the wheels of the heavy motor car shall not exceed, in the case of a vehicle with four wheels. 12 tons (and in other cases 19 tons and 22 tons respectively)

stated:

There is no provision there with reference to the particular circumstances of any given highway, the amount of the camber or the gradient of a hill.The prohibition appears to be absolute.

The learned Deputy submitted that the regulation with the breach of which the appellant was charged was very similar.Regulation 3, after stating the roads on which vehicles of lesser weight might be used, reads

3(c)(ii) No vehicle with three or more axles whose gross weight exceeds 12 tons and Whose. axle weight exceeds 5'bd tons shall be used on any other road within the State of Johore

which was an absolute prohibition and it made no difference at all what the surface was when the axle weight was ascertained, axle weight being defined as:

Axle w