R v Zemba Chinda (Criminal Review Case 254 of 1941) [1941] ZMHCNR 9 (31 December 1941)

[Vol. II R . v. ZEM BA CHINDA. Criminal R eview Case No. 254 of 1941. Procedure on plea of guilty—lorry with insufficient guard rail—whether driving lorry without guard rail is an “ offence in connection with the driving o f a motor car ” . In the judgment hereunder the procedure to be adopted on a plea o f guilty is 9et out. The Court is entitled after judgment has been entered to receive evidence in order to determine the proper sentence (Criminal Procedure Code section 273). The powers o f a Court to order suspension, cancellation or endorsement o f a driving licence are now contained in section 123 o f the Roads and Road Traffic Ordinance (Cap. 173) and the Second Schedule to that Ordinance specifies the offences in relation to which that power may be exercised. There is now no general power to make an order for an “ offence in connection with the driving o f a m otor car ” , R obin son , J .: First I would like to observe generally on the case. I see a plea o f guilty was entered, quite properly. The prosecution then outlined the facts. This is to inform the Magistrate o f the facts o f the case. It is not proof. The offence has been admitted. Therefore at the end o f it, it is not right to put “ Close o f case for Prosecution ” . I t is proper for the outline to be interpreted to the accused and for him to be asked if he agrees with the Crown story. I f he does not in some essentially material point, it may well be that the plea o f guilty was wrongly entered through misunderstanding—a plea o f “ N ot Guilty ” should then be entered and the case be proved. I f the accused does not agree with the prosecution outline in some minor details which cannot affect the admitted commission o f the offence, it does not matter. After a plea o f guilty, the proceedings are somewhat informal. The Magistrate has to be satisfied he was right in entering a plea o f guilty and he wants to know the facts o f the case for the purposes o f sentence. It is wrong, therefore, for the record to read, as it does ‘ 'A ccused no witnesses. Accused duly cautioned elects to say from the dock I have nothing to say but that owing to the accident I have lost m y driver’s licence, tax receipt and other papers.. . . Close o f Defence.” The correct way would be for a note to be made “ Accused agrees facts ” . Judgment is then entered. The police are asked if the accused has any previous conviction or if they have any comments to make. Lastly the accused is asked if he has anything to say in mitigation, and sentence is passed. V ol. II] S econ dly I w ould observe particularly on the case. T he charge w as contra Regulation 9 (4) Construction and User, Part I I I , Cap. 138 and section 16, Cap. 138, in that the accused drove a motor lo rry fo r conveyance o f natives, the said lorry n ot having sufficient guard rails. T he sentence was a fine o f £2 or one m onth I. H . L . and his certificate o f com petence suspended for six months under section 12 (1), Cap. 138. Section 12 (1) states " A ny Court before which a person is convicted o f any offence in connection with the driving o f a motor c a r . . . ” may suspend, etc. Is this offence o f using a lorry w ithout a sufficient guard rail an offence in connection with driving ? I t is a difficult point because the offence com plained o f is user. Section 16 says “ N o person shall cause or perm it a m otor car to be used . . . or have charge o f a m otor car when so used unless the motor car complies with the prescribed conditions as to Construction and User ” . An offence can, therefore, be com m itted by the owner, perhaps 100 miles away at the time, and the driver. The owner could easily have forbidden the person using the m otor car to use it contrary to the regulations. The provision is absolute and I think he w ould still have committed the offences but it would be m anifestly unfair to suspend his certificate on the ground that the offence was in connection w ith the driving o f a motor car. I am satisfied that the true meaning is that section 12 applies only to an offender when actually driving a m otor car in m otion. Section 12, Cap. 138, is in sim ilar term s to section 4 o f the Motor Car A ct, 1903 (3 Edward, 7, C. 36) which was repeated in section 6 o f the R oad Traffic A ct, 1930 (20 and 21 George 5, C. 43) and there have been various decisions thereunder. F or instance, it has been held that obstruc­ tion is not an offence “ in connection w ith the driving o f a m otor vehicle ” , but driving a vehicle n ot having an identification mark is, and so are not having the back plate illum inated, driving w ithout a light or using too powerful a light, and taking too m any passengers under a lim ited trade licence (see Stone, 1938 ed., p. 1736). Therefore, in construing section 12, the actual facts o f each case must be considered. On the facts o f this case, there was am ple evidence upon which the Magistrate could com e to the conclusion that the offence was “ in connec­ tion with the driving o f a m otor car ” and in m y opinion he was right in so doing and he was entitled to suspend the certificate o f the accused.