EMBULDENIYA v. PALIPANE

077-NLR-NLR-V-27-EMBULDENIYA-v.-PALIPANE.pdf


( 419 )
Present: Dalton J.
EMBULDENIYA v. PALIPANE.
14—c. Kurunegala, 27,810.
Vdtides Ordinance—Overloading a motor omnibus—Liability of owner—
Validity of by-law—Ordinance No, 4 of 1916, s. 18.
A motor omnibus is a motor car within the meaning of by-law2 (a) made under the provisions of section 18 of the VehiclesOrdinance.
The by-law 2 (6), which makes the owner liable equally with thedriver for the act of the latter in exceeding the maximum numberof passengers which a motor omnibus is licensed to carry, is va lid.
A PPEAL from a conviction by the Police Magistrate of Kurune–JjL gala. The accused was charged, as the#owner of a motoromnibus, with having overloaded the omnibus in breach of by-law2 (6) made under the provisions of section 18 of the Vehicles Ordi-nance, 1916. It was admitted that the omnibus was licensed tocarry passengers and was the property of the accused, and that thedriver had carried more than the licensed number of passengerswithout the knowledge of the accused. The accused was convicted,and he appealed from the conviction on two grounds :—
That a motor omnibus is not a motor car;
That the by-law is ultra vires in so far as it makes the owner
liable for an offence committed without his knowledge andin his absence.
Croos Da Brera, for second accused, appellant.
Brito Mtittunayagam, C.C., for Attorney-General.
March 12,1926. Daltos J.—
The appellant has been charged, a* the owner of a motor omnibus,with having overloaded the omnibus in breach of by-law 2 (6)dated May 19,1921, made under the provisions of section 18 of theVehicles Ordinance, 1916. He has been convicted, and appealsfrom that conviction.
Two grounds of appeal have been put forward :—
A motor omnibus is not a motor car ;
The by-law is ultra vires inasmuch as it makes an owner
liable to be convicted of an offence committed withouthis knowledge and in his absence.
1926.
( 420 )
1926.
Dalton J.
Embuldeniya
v.
Palipane
It is admitted that the omnibus was licensed to carry passengersand was the property of the appellant, and that on a joumeythe driver picked up and carried more than the licensed number ofpassengers, but the appellant wa6 not present, and there is noevidence that he had any knowledge of the act of his driver.
By-law 2 is as follows :—
“ (o) The maximum number of passengers that may be carriedin a motor car licensed to carry passengers and the maxi-mum number of such passengers who may occupy thefront seat with the driver shall be determined by theproper authority, whose decision shall be final. Suchnumbers shall be endorsed on the licence, and the maximumnumber of passengers the car is licensed to carry shall beclearly and legibly painted on a conspicuous part of thebody of the motor car or on a plate or board affixed to aconspicuous part of the motor car.
“ (b) If more than the authorized number is carried on the front-seat, or more than the maximum number is carried in thecar itself, the owner and the driver shall be guilty of anoffence.”
Section 18 of the Vehicles Ordinance (No. 4 of 1916) in its materialparts is as follows :—
“18. (1) The Governor …. may …. from timeto time make, and when made, revoke, amend, alter, or vary,such by-laws as may seem necessary or expedient forthe purpose of carrying out the provisions of thisOrdinance.
“ (2) The by-laws made under the last preceding 6ub-section mayprovide, among other things—
“ (a) For regulating the number of persons to be carried invehicles ….”
Section 21 of the Ordinance provides a penalty for a breach ofany by-law.
The first point to be decided is whether a “ motor omnibus ”comes within the term “ motor car,” the by-laws referring to motorcars only. It is admitted that previously to this it has not beenquestioned that they have been applied to a motor omnibus,although cases dealing with offences under these by-laws in respectof ’buses have been dealt with by this Court.
I am unable to find any definition of “ motor car ” in any localOrdinance. The expression as used in the English Motor Car Actof 1903 maans the same as the expression “ light locomotive ”
( 421 )
as used in the Locomotives on Highways Act, 1896. That is,however, of no assistance here.
By-law 2 of May 19, 1921, is a substitution for by-law 2 in theby-laws of November 16, 1917. Those by-laws are headed “ By-laws for mechanically propelled vehicles in Ceylon plying for hire.”They deal with motor cars used for the purpose of conveying andtransporting goods or passengers for hire, but they contain nodefinition of the term “ motor car ” as used. It has been suggestedthat- at the time these by-laws were made, motor omnibuses, aswo know them to-day, were unknown in Ceylon. If we look atlater by-laws, however, namely, those dated January 20, 1922,we also find that the words “ motor omnibus ” do not appear,save in section 18 sub-sections (12) and (13), and section 32, althoughit is provided that the expression “ motor car ” includes motorlorries and motor cycles. These by-laws are the general by-lawsin force for the regulation and control of mechanically propelledvehicles framed under section 22 of the Vehicles Ordinance andsubsequent amendments, and it is impossible to conceive that atthat date, at any rate, the authorities overlooked the necessity ofregulating and controlling the use of omnibuses. The presenceof the words “ motor omnibus ” in section 18 (12) and (13) does not,in my opinion, necessarily simplify the question raised as Mr. BritoMuttunayagam suggests, but I think it may be argued, that in theview of the rules a motor omnibus does come within the categoryof motor cars. The ordinary English meaning of the word “ car ”is a vehicle moved on wheels; it is applied to numerous differentforms of vehicles. The addition of the word “ motor ” merelymeans that it is impelled or driven by a motor. I see no reason torestrict the meaning of the term as used in by-law 2 to one form ofmotor propelled vehicles, and to say that it does not include thevehicle known to-day as a “ motor omnibus.” On the first groundof appeal, therefore, I find against the appellant.
The second ground of appeal, as argued, has presented somedifficulty. The by-law purports to make the owner equally guiltywith the driver if more than the authorized number of personsis carrisd in the vehicle. If this means that the owner can beconvicted of an offence committed in his absence and without hisknowledge, it is argued that the by-law is ultra vires.
It is a maxim of law that criminal responsibility shall not attachto a man unless it is shown that the act charged against him isdone with a criminal intent. In Provincial Motor Car Cab Co.,Ltd. v: Dunning1 Lord Alverstone L.C.J. pointed out, however,that the regulations under the Motor Car Act, 1903, were made for theprotection of the public. In that case certain motor cab proprietorswere charged with aiding and abetting a driver in their service'(1909) 2 K.B. 599.
1926.
Dalton J.
Enibuldenvyav.
Palipane
( 422 )
1926.
' Dalton J.
Embuldeniya
v.
Palipane
in using a motor cab in contravention of a by-law requiring certainfittings for the lighting apparatus. In respect of the breach ofsuch a regulation Lord Alverstone says—
“ A breach of that regulation is not to be regarded as a criminaloffence in the full sense of the word, that is to say, theremay be a breach of the regulation without a criminalintent or mens rea …. The doctrine that theremust be a criminal intent does not apply to criminalcases^ of that particular class which arise only from thebreach of a statutory duty.”
There being evidence in that case whence it could be concludedthat the cab was sent out in a condition not conforming to theregulations by persons for whom the owners were responsibleit was held th&t there was evidence that the owners aided andabetted the offence.
It is also pointed out in Maxwell, Interpretation of Statutes,p. 185, that at the present time there is a large body of Municipallaw which has been framed in such terms as to make an actcriminal without any mens rea. There is of course a distinctionbetween things criminal in themselves, morally wrong and wicked,and things merely made criminal because the Legislature forbidsthem. The principle, however, remains that unless the Legislaturehas indicated the contrary intention, the infliction of penaltiesis to be presumed to be confined to cases where the offender hasthe mens rea (Maxwell, p. 188), and is illustrated by those cases'in which it is sought to make a master responsible penally for theacts of his servant. The decisions in those and other like cases,the learned author points out, are based upon the view of the Court,that having regard to the language, scope, and object of the statutes,the Legislature intended to fix criminal responsibility upon themaster for acts done by his servants in the course of their employ-ment, although such acts were not authorized and might have beenexpressly forbidden.
The by-law is made, as I have pointed out, under the provisionsof section 18. The provisions of section 20 were not referred toin the course of the argument, but they seem to have an importantbearing on the point raised, Mr. Brito Muttunayagam havingargued the appeal on the footing that the overloading had been“permitted” or “suffered” by the owner. Section 20 providesthat the by-laws, “when so made, altered, or amended,” ?e.,in accordance with the provisions of section 18—
“shall be published in the Government Gazette and shall there-upon become as legal, valid, binding, and effectual as if thesame had been inserted in this Ordinance, and all courts,Judges, and Magistrates shall take judicial notice thereof.”
( 423 )
In view of that provision in the Ordinance, it is not competentto question the validity of the by-laws framed under section 18,as has been done in this appeal; this conclusion has judicialauthority already in Ceylon (La Brooy v. Marikar1 and Sourjah v.Hadjiahi)2 decisions based upon a judgment in the House of Lords(Institute of Patent Agents v. Lockwood*). The local case of Andreev. Pate4 cited deals with by-laws under the Carriage Ordinance, 1873.The by-laws made the proprietor of a coach liable in' the case of abreach of the by-laws by his servant carrying more passengersthan the licensed number. It was held that the by-laws wereultra vires of the Ordinance in so far as they made the proprietorliable to be found guilty of an offence committed by one of hisservants without his privity. There is no section in that Ordinanceequivalent to section 45 of the Vehicles Ordinance, No. 4 of 1916, andfurther the force of section 11 of the Carriage Ordinance, 1873, doesnot appear to have been considered when the question of ultra vireswas raised, inasmuch as that section enacts that the by-laws shallbe as leg.il, valid, and effectual as if they were inserted in theOrdinance.
1926.
Daikon J.
Embuldeniyav.
Palipane
Wickremesinghe v. Don Abraham5 and Amath v James Ajypukamy*have also been cited. The former case was brought under section32 of the by-laws of January 20, 1922, which are framed under thepowers given by section 22 of the Vehicles Ordinance. If section22 be examined it will be noted that, in respect of by-laws framedunder that section, there is no such provision applicable to themas is contained in section 20 of the Ordinance. Sub-section (3)merely provides that the by-laws shall be laid before the LegislativeCouncil within one month of publication, thus enacting the latterpart of section 20, but not the first part. It may, therefore, be opento the Court to consider the question of the validity of by-lawsframed under section 22. It further appears from the judgmentin the former case that the learned Judge had considerable difficultyin understanding section 32, which is an exceedingly longand cumbersome section, and is badly put together. The queryraised by Ennis J. as to the validity of section 32 in includingthe owner in the earlier part of that section is definitely dealt withby Schneider J. in jStewart v. Paekir Saibo.7 He held that theby-law was ultra vires in so far as it seeks to make the ownerliable equally with the driver for an offence of negligent drivingby the driver in the absence of the owner.. These cases can bedistinguished from the case with which I am dealing on the groundto which I have already referred. That, however, I would add is notthe only ground on which thay can be distinguished.
4 (1883) 5 S. C. C. 139.B 2 T.C. L. It. 158.
• 6 C.L. B. 35.
*2 A. C.B. 6
3 18 N. L. B. 31.
3 (1894) A. C. 347.
7 27 N. L. B. 25.
( 424 )
1926.
Dalton J.
Embuldeniya
v.
PaUpane
The case of Amath v. James Appukamy (supra) deals with thevery by-law tinder which the present charge was laid, and is anauthority against the contention of the appellants What exacth*were the grounds of appeal in that case do not appear from thejudgment, but one can gather that the argument was that an ownershould not be convicted of an offence under the by-law, carryingmore than the ordinary number of passengers, unless he “ permittedor suffered ” the commission of the offence. The learned Judgepoints out the difference between the by-law and section 45 of theOrdinance, in respect of the words used, and he heM that under theby-law the owner is equally liable with the driver if more than themaximum number is carried in the car. He adds that the ownermust see to it that his employees do not commit breaches of thelaw or act contrary to his instructions.
I agree with the decision of Schneider J. as to the interpretationto be put upon the by-law, but for somewhat different reasons.Its validity cannot be questioned in view of the provisions ofsection 20 (1). If that sub-section did not stand, the questionwould, in my opinion, be not without difficulty, but in that caseI am inclined to think, as section 45 provides a penalty for thesame offence, one would have had to interpret the by-law byreference to the words of section 45, and reading them together.In such a case, I do not think the by-law could have gone beyond theexpress provisions of the Ordinance. I would point out, however,that, even if that were so, the result might still be the same, asthere is ample authority, having regard to the scope and purposeof particular statutes or Ordinances, to say that a person has“ permitted or suffered ,J a thing to be done, even if he has expresslyforbidden it to be done. One of the tests usefully applied in someof the cases is as to whether or not the servant was doing someillegal act out of which the master was making a profit. (SeeRoberts v. Woodward.1) It is not necessary, however, to go intothat matter here.
For the reasons I have stated the grounds-of appeal cannot besustained and the conviction must be affirmed, the appeal beingdismissed. i
i 2$ Q. B. D, 412.