Sub-Jflfpector of Police v. Fernando.
1833«Present: Akbar J.
SUB-INSPECTOR OF POLICE v. FERNANDO.
258—P. C. Chilaw, 38,547.
Motor Car—Licensed to carry passengers—Used mainly for carrying fish—Ordinance No. 20 of 1927, s. 30 (1), 31.
Where a private car licensed wholly or mainly to carry passengers wasused wholly or mainly to carry fish for the owner,—
Held, that the car. had been used for a purpose not authorized byflie licence within the meaning of section 30 (1) of the Motor CarOrdinance.
^ PPEAL from a conviction by the Police Magistrate of Chilaw.
The accused was charged under section 30 (1) of the Motor CarOrdinance in that, being the driver of a motor car, he had used the car onthree dates for a purpose not authorized by the licence, to wit, to carryfish for the owner.
J. R. Jayewardene, for accused, appellant.—Form 14, schedule 3, ofOrdinance No. 20 of 1927, says, car is “licensed for wholly or mainlycarrying passengers”. But the Ordinance must be considered as awhole; other schedules must be examined (Katugastota Police Inspectorv. Siyadoris Appuhamy'). The Ordinance draws a clear distinctionbetween “ motor cars constructed wholly or mainly to carry goods ” and“motor cars constructed wholly or mainly to carry passengers”. Thelatter class is again divided into cars for private use and cars for hire.The duty paid is different. Cars for hire pay duty according to thenumber of passengers. Therefore it is an offence to hire a car licensedfor private use because the revenue is defrauded. Private cars and carsconstructed to carry goods pay duty according to the weight of the car.(First schedule, Ordinance No. 20 of 1927.) Cars constructed to carrygoods require a report of the examiner of motor cars before licence isgranted. (Form 13, schedule 3.) Accused has not changed the constructionof the car. Therefore there is no contravention of the licence.
[ Akbar J.—Why are motor cabs prohibited from carrying goods ?Do you say the principle in Vanderstraaten v. Narayanaswamy' does notapply? ]
It is true that motor cabs and omnibuses are cars constructed to carrypassengers; but these are hiring cars, and licence duty is paid accordingto the number of passengers, motor cabs carrying less than sevenpassengers, and omnibuses carrying more than seven passengers. Forms12 and 16 of schedule 3 show that an omnibus may carry passengers andgoods up to a certain weight. No such concession is granted to motorcabs. The convenience of passengers is consulted. Therefore a motorcab carrying goods is a contravention of the licence.
In Aziz v. Fonseka *, a private car carrying fish was held to contravenethe licence. The point now raised is that “cars are licensed on theirconstruction ”, and the purpose for which they are used is immaterialwas not raised. The English case of Payne v. Allcock ‘ helps the appellant.
> 80 N. L. R. 410.3 1 Ceylon Lata Weekly SOS.
* 81 N. L. R. 103.* (1932) S K. B. 413.
AKBAR J.—Sub-Inspector of Police v. Fernando.
The Court held that a person who held a licence for a private motor carand used it to carry goods was guilty, though the construction of the carwas unchanged. The wording of the English statute is different. Carsare there licensed for the purpose for which they are used and the statutemakes it an offence to use the car for any other purpose or to change theconstruction. Yet Macnaughten J. dissented and held that it was nooffence to carry goods unless the construction of the car was alterered. OurOrdinance is concerned with the construction. The Ordinance is enactedfor two purposes—(1) protection of pedestrians, (2) public revenue. Aprivate car may carry any weight in passengers; therefore there is nodanger in carrying any weight in goods. The revenue is not defrauded,for a private car constructed to carry passengers cannot be licensed inany other way and cannot pay any other duty.
The penal section creates a charge on the subject. The language mustbe unambiguous. If there is adoubt, benefit must be given to appellant.2The Court may say, appellant's act was within the words but notwithin spirit of the Ordinance*. On the facts, appellant carriedpassengers whenever he carried goods. It cannot be said that the carwas not used wholly or mainly to carry passengers.
Ilangakoon, Deputy S.-G. (with him Wendt, C.C.), for the Attorney-General (on notice). The facts show that appellant had the rear seatand luggage carrier laden with fish on several dates. Therefore the carwas used for mainly carrying goods not passengers. This was donesystematically. The object of the Ordinance is (1) to provide for thesafety of the public and (2) to obtain revenue. The scheme of theOrdinance is to regulate (1) the construction of motor vechicles, (2) theirregistration and licensing, and (3) their use. This car was licensed forwholly or mainly carrying passengers. Therefore when it is used formainly carrying goods, section 30 (1) is contravened. Where the ownerof a private car occasionally carries his own goods, the Police are notlikely to prosecute. But when carriage of goods in a car becomes abusiness, then revenue is defrauded. Appellant should have used alorry or car constructed to carry goods. In Form (2) in Third Schedulethe applicant for registration of vehicle is required to state whether hispurpose is to use the car for the conveyance of persons or of goods. Ifpurpose is the conveyance of goods, then the motor car licence in Form 14cannot be issued. The English case cited held that the construction ofthe car need not be changed for the offence to be committed. TheFinance Act., 1932. amended the Enghrh Law, and Macnaughten J.’sviews were followed in the amendment. The decision of the Chief Justicein Vavderstraaten v. Narayanaswamy (supra) covers this case and is inpoint.
August 3, -1933. Akbar J.—
This is an appeal from a conviction on three charges under sections30. (1) and 84 of the Motor Car Ordinance, 1927, in that the accused,being the driver of car No. W—1066, had used it on three dates for a purpose
i S. 14, Finance Act 1982 (12 A 131 (1922) 1 K. B. p. 680.
Geo. V. c. 17) and s. 5 Finance3 (1672) L. R. 4 P. C. p. 191.
Act 1920 (10 <t 11 Geo. V. c. 18).
AKBAR J.—Sub-Inspector of Police v. Fernando.
not authorized by the motor licence in force for the use thereof, to wit,carrying fish. There were two or three men in the car but the rear seatand the luggage carrier were laden with fish.
It was not contended for the prosecution that the accused carried thefish for hire. This was entirely a case which referred to the use of aprivate car for the purpose of carrying fish for the owner.
As the case was covered by. the obiter dictum of the Chief Justice in acase referred by me to a bench of two Judges, viz., Vanderstraaten v.Narayanaswamy1 and as Mr. Jayewardene raised a new point, viz., thatmotor cars were licensed according to the purpose for which they weremainly or wholly constructed and that the use to which they were put didnot matter, I issued notice on the Attorney-General’s Department andthe Deputy Solicitor-General was good enough to help me with hisargument. After consideration of the argument, I am of opinion that thecase is covered by the dictum of the Chief Justice in the case cited by meabove, with which I respectfully venture to agree. Under sections 30and 31 the test seems to be the conditions inserted in the motor carlicence and if there is any positive or negative infringement of the con-ditions, an offence is committed either under the one section or the otheras pointed out by the Chief Justice. The licence in this case was of theordinary type for a private motor car (Licence Form No. 14), i.e., forwholly' or mainly carrying passengers.
The learned Police Magistrate has found it, as a fact, that on the threedates mentioned in the charges the car was used wholly or mainly forcarrying fish. And he has come to this conclusion on the evidencealthough there were two passengers in the front seat.
On the dates January 6 and December 7, one Inspector said that therear seat and luggage-carrier were laden with fish. On the latter datethe car halted near the Chilaw market and the driver got down anddistributed the fish to the dealers at the market who sold the fish. OnDecember 17, another Inspector found the whole of the back seat stackedto the hood with small fish. It is not surprising that the Magistratecame to the conclusion that these loads of fish were not personal luggageand that the car was used on these three dates for a purpose not author-ized by the licence. I cannot say he came to a wrong conclusion.
I agree with the Chief Justice that the case reported in 147 Law Times,p. 96 (also in (1922) 1 K. B. p. 674) depended on the words used inthe English Statute. The English Law was later amended by 22 & 23George V. c. 25 (see section 14).
As I have said, our law seems to be unambiguous, and we are onlyconcerned with the motor car licence and the terms inserted in it, when itis a prosecution under section 30 (1) of the Motor Car Ordinance. If astrict interpretation of these sections will lead to cases of hardships theremedy must be sought for in other directions as indicated by the ChiefJustice.
The appeal is dismissed.
>■ Si N. h. B. 103.
SUB-INSPECTOR OF POLICE v. FERNANDO