( «» )1987.
Present: LyaU Grant J.
KING RATNASINGHAM.93—P. G. Jaffna, 12,804.
Motor car—Permitting or suffering, a private car to be used for kitingpurposes—Vehicles Ordinance, No, 4 of 1916, s. 44 (2)—Liabilityof owner.
The owner of a motor car cannot be said to have “ permitted orsuffered ” his car to be used for any purpose not set out in fatalicence, without evidence of knowledge or connivance or careless-ness on his part.
PPEAL from a conviction by the Police Magistrate of. Jaffna-The charge was that the accused did on November 23 and 30,
1926, being the owner of a private car, allow the same to conveypassengers on hire without obtaining a hiring licence, in breach ofSection 44 (2) of Ordinance No. 4 of 1916. It was proved in evidencethat the car was registered in the name of the accused as a private?car. It was also proved that the car was used for purposes of hiringon the dates in question. The defence was that the accused hadsold the car in August to one Kathiresu, but that as the moneywas not paid he . did not notify the change pf ownership to .theRegistrar. The learned Police Magistrate convicted the accused.
H, V. Patera (with Spencer Rajaratnam), for accused, appellant..
May 24, 1927. Lyall Grant J.—
This is an appeal from a conviction in the Police Court of Jaffna.The charge was that the accused did on November 23 and 30, 1926,at Jaffna, Kopay, being the owner of a private car, No. H 334, allqwthe same to convey passengers on hire without obtaining a hiringlicence, in breach of section 44, sub-section (2), of Ordinance No. 4of 1916, and that he thereby committed an offence punishable underthat section.
It was proved in evidence that the car was registered in themime of the accused as a private car. It was also proved that onthe dates in question the car was used for purposes of hiring, beingdriven by a certain individual named Sinnappu. The case for thedefence was that the accused was not the real owner of the car;that he bought it in. August, and soon afterwards transferred it toone Kathiresu, but that as the money was not paid he did notnotify the change of ownership to the Registrar. There was nowritten evidence of this transaction, but the evidence,of the accusedwas supported by another proctor in Jaffna. He said that the car
( 473 )
was delivered to Kathiresu on or about September* 15, and thatKathiresu removed it from Irrupalai, where the accused’s residenceis, to Kopay. The driver, Sinnappu, was admittedly employed bythe accused for the few days that the car was with the accusedbefore he handed over possession to Kathiresu. Thereafter there isevidence that Sinnappu was Kathiresu’s driver, and that he remainedin Kathiresu *s employment till the offence took place and when hewas fined for the offence of using the car for a purpose not set outin the licence.
The learned Magistrate has expressed doubt as to the story of the■change of ownership told by the defence. He holds.that the accusedhas failed to discharge satisfactorily the burden he undertook ofproving that he was not the owner, and he proceeds to say ** Ifind him guilty therefore.” Obviously, the assumption in theMagistrate's mind was that if the accused was at the date of theoffence the owner of the car, he was ipso facto guilty of the offence ofpermitting or suffering his vehicle to be used for purposes not setout in his licence. I may mention that throughout the case it isassumed that the licence granted for this car did not allow it to beused for purposes of hiring. No evidence has been given in regardto this. It would have been better and more formal had that beenproved. Any way, the point has not been raised, and as it may bethat a licence for a private car does not allow it to be used forpurposes of hiring, I merely draw the attention of the police to thisemission for the purpose of pointing out that formal proof oughtto be led of matters of this sort, where proof of a particular fact isnecessary in order to make it clear that an offence has been com-mitted. Unless this fact is proved, namely, that the licence doesnot allow the car to be used for hiring purposes, there is, strictlyspeaking, no proof that any offence has been committed. There isnothing whatsoever in the law, or in the charge, or in the facts asproved, to show that the accused has committed any offence.However, probably it has been assumed in this case that everybodyconnected with the case is well aware that these licences do notpermit of hiring, and the point has not been taken by Counsel.
The important point in the case it.seems to me is the question ofwhether the evidence proves beyond reasonable doubt that theaccused was guilty of an offence under section 44 sub-section (2).He was charged with having allowed liis car to be used for a certainpurpose. The words of the Ordinance are “ permitting or suffering tobo used any vehicle required to be licensed under this Ordinance forany purpose or purposes not set out in that licence.” The wordswhich have to be considered, therefore', are not the word ” allowed,”as used in tbe case, but the words “ permitted or suffered.” Thequestion is whether the accused permitted or suffered this car to beused for hiring purposes. There, is no direct evidence that he had
King e.Rainaging-ham ■
( )any knowledge that the car wag so used, and the question is whetheron the facts shown it must necessarily be inferred that he eitherknew or ought to have known it was being so used.
I shoujd find it very difficult to hold that the owner of a car must,,merely because he is the ownerj be considered to have permitted orsuffered his car to be used for hire at any time without any evidencethat he knew what was being done. I think what the Ordinanceintends is that the owner should not knowingly allow his car to beused for a purpose forbidden by law. That this is the sense in whichthe words “ permit or suffer ” have been interpreted appears fromthe English case of Somerset v. Wade*1 In that case a licensedperson was charged with permitting drunkenness to take place onhis premises, the evidence showing that the person on the premiseswas in fact drunk, but that the licensed person did not know thatsuch person was drunk. In the section under which the accused wascharged in that case the word used wag “ permitted/* “ If anylicensed person permits drunkenness, &c., to take place in hispremises, &c., he shall be liable to a penalty, &c.” In a previouscase Somerset u. Hart,2 which was a case under the Gaming Acts,the word used was " suffer,” and in that case Lord Coleridge, L.C.J.said: “ How can a man suffer a thing to be done when hedoes not know of it/* The Court held in Somerset v. Wade (supra)that a licensed person could not be convicted of permitting orsuffering in the absence of knowledge or connivance or carelessnesson his part.
In the present case I do not think there is anything in the evidencefrom which any knowledge or connivance or carelessness can beinferred. It certainly is not proved beyond reasonable doubt thatthe accused knew that the car was being used for the purpose ofhiring. I do not think that it can be said that he ought to haveknown. That question possibly is one of some little difficulty.If the car was habitually used for hiring purposes I am inclined tothink that the man in whose name it was registered, and who hasnot definitely parted with the ownership by notifying the Registrar,must be held to have a certain responsibility in regard to the car,and that he may reasonably be held liable if the car is constantly andpersistently used for the purposes for which it is not licensed.However that may be, and I do not wish to express any fixedopinion in regard to it, all that is proved in the present case refersto two isolated acts of hiring, of which the accused might easily havebeen ignorant and justifiably ignorant.
The appeal is allowed. The conviction is set aside.
1 (1894) 1 <}. R. 0. 574.
* 12 Q. B, D. m.
KING v. RATNASINGHAM