JUDGMENTBY: TERRELL, AG CJ, CUSSEN, J

TERRELL, AG CJ The facts and relevant sections are sufficiently set out in the Judgment of Cussen J. which I have had the advantage of reading, and with which I respectfully agree, and it is only necessary for me to refer to some of the authorities.

There are two points that arise on this appeal, (1) whether the charge is bad for duplicity, and (2) if there was duplicity, is that an irregularity which can be cured under section 422 of the Criminal Procedure Code, or is it an illegality which can only result in the conviction being quashed.

As regards duplicity, the leading English authority on the subject is the case of Charles Wilmot 24 CrAR, p 63 where the Lord Chief Justice quotes with approval the following passage from the judgment of Avory J. in Rex v Surrey Justices ex parte Witherick (1932) 1 KB p 450 at p 452:

"It is an elementary principle that an information must not charge

offences in the alternative, since the defendant cannot then know with

precision with what he is charged, and of what he is convicted, and may

be prevented on a future occasion from pleading autrefois convict."

The learned Judge is of course referring to the "alternative" appearing in the same charge, and not to a charge in the alternative which, as was pointed out by Cussen J., is permissible in the F.M.S. under section 166 of the Criminal Procedure Code. It is clear that if there are charges in the alternative, the accused is not embarrassed in any way. He is called upon to plead to each charge separately, and if he is convicted on one charge he is automatically acquitted on the other.

The principle laid down in Wilmots case has been followed by Sir Samuel Thomas C.J. in Lee Chin Kee v Public Prosecutor (1935) FMSLR, p 33 at p 34, (1935) 4 MLJ 157, and by Howes J. in Jajar Singh v Public Prosecutor (1936) FMSLR, p 84 at p 85, (1936) 5 MLJ 114 at p 115. It has also been accepted by the Court of Criminal Appeal of the Colony in Rex v. Teh Peng Kim (Singapore Criminal Appeal 1/37) decided on 18th June 1937, but not yet reported. [Since reported in (1937) 5 MLJ 173.

In the present case as has been pointed out by Cussen J. there are four possible offences under section 45(i) of the Motor Vehicles Enactment (Chapter 168 Revised Edition) viz:

(i) Driving recklessly

(ii) Driving negligently

(iii) Driving at a speed which is dangerous to the public etc. and

(iv) Driving in a manner which is dangerous to the public etc.

Section 45(i) appears to be derived from the Motor Act of 1903, section 1(i) of which, according to Lord Coleridge in Rex v Jones (1921) 1 KB p 632, defined four separate offences. In that case the accused was charged with driving "recklessly and at a speed which was dangerous to the public etc." and it was held that the conviction must be upheld because he was not charged in the alternative, he was charged with driving both recklessly and at a dangerous speed, and the defendants act was treated as one and indivisible (see p. 635). Accordingly in my opinion there might be no objection in law to a person being charged under section 45(i) of the Motor Vehicles Enactment with driving "recklessly and in a manner which was dangerous to the public etc.," but the prosecution would have to prove both elements of the charge, and if they failed to establish either recklessness or the danger to the public, the accused would be entitled to be acquitted.

In the present case the accused appears to have been charged under (i) (ii) and (iv) referred to above, the charge reading:--

"That you did drive motor bus H.N.S. 3091 recklessly or negligently in a manner which was dangerous to the public." Even if the word and can be supplied after the word negligently there is still the fact that the words "recklessly" and "negligently" are connected by the word "or," which results in a duplicity. I would suggest that in future charges under section 45(i) of the Enactment should set out