Callow J:

This is an appeal from the Court of the Magistrate, Seremban, against the acquittal and discharge of the respondent on the 23 April 1948, following a charge contravening reg. 6 of the Motor Vehicles Commercial Use Regulations. It will be observed that the case came on for hearing just before the Motor Vehicles Commercial Use (Amendment) Regulations, 1948, came into effect on the 1 May 1948, which amendment caused reg. 6 to be re-numbered 7.

The ground of appeal is:

Your Petitioner is dissatisfied with and appeals against the discharge and acquittal of che said Respondent on the ground that the learned Magistrate misdirected himself in holding that mens rea on the part of the Respondent was an essential element of the offence.

On this issue the learned Deputy Public Prosecutor cited the case of the PP v. Ong Cho Teck [1946] MLJ 85 and argued that an absolute duty was imposed upon the owner.

The facts are that on the 6 February 1948, a lorry driven by one Nagar Singh was found to be overloaded. The driver was proceeded against and very heavily fined. I have not seen the record of the proceedings against Nagar Singh, but according to his evidence in this case the overloading was the result of directions given by the Manager of an Estate, which in turn resulted from a lorry breakdown. The respondent had no direct connection with the overloading at all.

I shall refer later to the charge, but condition 4 of the haulage permit referred to in the charge reads:

The laden weight of the authorised vehicle including the driver and any attendant carried on the vehicle shall not at any time when the vehicle is on the road exceed the maximum permissible laden weight specified in this permit. The load shall be so distributed packed and secured that danger is not caused or likely to be caused to any person on the vehicle or on a road.

Mr. Rintoul for the respondent did not contest the absolute duty or liability of the owner of the vehicle if overloaded. I am quite satisfied that as the law now stands there is an absolute prohibition against overloading, which renders the owners of such motor vehicle liable to conviction despite an apparent absence of mens red. I think owners do not perhaps fully realise this responsibility. It matters not that their vehicles be overloaded by an employed driver, or even on the direction of a third party as in this case; or that the overloading be done without the knowledge of the owner; it may even be against his express commands. If the motor vehicle is found carrying a load in excess of the permitted maximum set out in the haulage permit, then the owner bears the responsibility. His only safeguard is to ensure that his vehicle is in the charge of a responsible person who appreciates the regulations and conditions of transport. If a third party interferes then the owner can only cease in future to do business with that third party; he cannot evade his absolute liability.

I should observe that there are statutory obligations which impose less stringent standards. In such cases the prosecution having proved the event, the defendant may show that he has acted throughout in good faith, and has done everything reasonably possible to prevent the commission of the offence by his servant. If this is accepted the plea of not guilty may prevail, but in the case now under review the prohibition is absolute. If a motor vehicle is overloaded the owner is responsible, and so liable to the penalties set out in (now) reg. 7 of the Motor Vehicles Commercial Use Regulations.

So much for the appeal on the grounds put forward by the Public Prosecutor. The Magistrate was wrong in holding that mens rea on the part of the respondent was an essential element of the offence.

But Mr. Rintoul, while very properly conceding the point raised by the appellant, submitted other grounds by which he argued that the decision to acquit should stand, albeit arrived at by wrong premises.

The first point concerns the charge, and q