[1953] EACA 5

## APPELLATE CRIMINAL

## Before HEARNE, C. J.

## D. G. PRINGUER, Appellant

## REGINA, Respondent Criminal Appeal No. 349 of 1953

Criminal Law—Traffic Ordinance (Cap. 232)—Use of car under authority of<br>general identification mark—"Trade plate"—"Perfecting efficiency" of "demonstration car"—"Running-in"—Car used for visit to cinema—Whether breach of rule 10 (3) Traffic Rules, 1929.

The accused was employed by Messrs. Devonshire Motors, Nairobi, to whom a general identification mark or "trade plate" had been issued under the provisions of section 12 (4) of the Traffic Ordinance (Cap. 232). The accused admitted he used a motor-car, unlicensed except for the "trade plate", with the approval of his employers, for a visit to a cinema. He submitted that he was justified in so doing because he was "running-in" a car which was to be used for demonstration purposes to prospective purchasers. By experiment and adjustment, the car would eventually reach a high degree of efficiency. A customer, who was induced by demonstration of the car to purchase, would be sold a new model of the same<br>make, whereas the used model would be sold as second-hand. The accused admitted that on the occasion charged, the car was not being used for demonstration to any potential buyer. The accused was convicted of a breach of rule 10 (3) (a) of the Traffic Rules, 1929, in that he used the car under the authority of the general identification mark for a purpose other than test or trial. The accused appealed.

Held (25-6-53).—During the time a car is being run to perfect its efficiency but before demonstration to a prospective purchaser the use of a general identification mark is not authorized by rule 10 $(3)$ $(c)$ of the Traffic Rules.

(2) The use of a general identification mark is not authorized by rule 10 (3) of the Traffic Rules on indeterminate occasions, for an indeterminate number of miles and for an indeterminate period for the purpose of increasing, by experiment, the efficiency of a<br>car with the object of inducing a future prospective purchaser to buy another car of the same make.

(3) The appellant was properly convicted for he had used a car, under the cover of a general identification mark, for the purpose of attending a cinema.

(4) The appellant was liable, as the abettor of a breach of a condition of a licence, to be convicted of the breach itself.

Appeal dismissed.

Dictum of Lord Hewart, L. C. J. in Dark v. Western Motor & Carriage Company (1939) 1 A. E. R. 143, at page 147 followed.

O'Donovan for appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant, an employee of the Devonshire Motors, to whom "a general identification mark" had been issued was convicted of a breach of rule 10 (3) (a) of the Traffic Rules in that he used a motor-car "under the authority" of that mark for a purpose other than "on test or trial". It is clear from the evidence of the witness McClure that the motor-car had a "trade plate" only and that it was unlicensed and, in the argument on appeal, the second ground of the memorandum of appeal was not pressed. As the advocate for the appellant frankly said, the object of the appeal was to test the claim of the Devonshire Motors that a general identification mark can be used within the law on what is called a "demonstration car".

Section 12 (4) Traffic Ordinance is as follows: --

"A licensing officer may issue on payment of the fee prescribed by rules made under section 57 of this Ordinance to any manufacturer of or dealer in motor vehicles a general identification mark which may be used for any motor vehicle on trial after completion of assembly or on trial by an intending purchaser, and the person so using the motor vehicle shall not be liable to a penalty under section 3 of this Ordinance if the mark so assigned is fixed and the vehicle bearing it is used in compliance with rules made under section 57 of this Ordinance or, in the absence of such rules, in such manner as may be prescribed by the licensing officer:

Provided that any motor vehicle used under such general identification mark shall not carry more than two persons in addition to the driver".

Rule 10 (3) (a) and rule 10 (3) (c), Traffic Rules, are as follows: $-$

$(3)$ The holder of a general identification mark shall not use any motor vehicle on a road under that authority for any purpose other than: $(a)$ on test or trial; $(c)$ on trial for the benefit of a prospective purchaser, and for proceeding to or returning from the place where the prospective purchaser intends to keep such motor vehicle. For such purpose the motor vehicle may be driven by the prospective purchaser if he holds a certificate of competency".

A "demonstration car" as I understand from the evidence of the appellant (it was elaborated by his advocate) is not one that is intended to sell as a new car. It is used by a firm selling cars of the same model and make till after a long period of experiment and, if necessary, adjustment, it has reached a very high standard of efficiency and it is then used for giving demonstrations of its efficiency to prospective purchasers who, if satisfied, would be sold another car of the same model and make. After the demonstration car had served its purpose of attracting or satisfying customers, it would be sold as a second-hand car. Now during the time a demonstration car is being used to perfect its efficiency, that is to say before it is actually used for demonstration purposes to a prospective customer, the use of the identification mark is not authorized by rule 10 (3) (c). It is not claimed, and cannot be claimed, that the use of the identification mark is, in the circumstances, I have mentioned, authorized by rule $10(3)(c)$ . It is argued that it is authorized by rule 10 (3) (a), as rule 10 (3) (a) authorizes the use of the identification mark so that the manufacturer or dealer may make "a test or trial". Certainly the identification mark can be used for submitting a car to a test or trial "after completion of assembly", but it cannot be so used, as is claimed, on indeterminate occasions, for an indeterminate number of miles and for an indeterminate period, not for the purpose of ascertaining whether normal efficiency is being given by the car but if possible, by experiment, of increasing the normal efficiency of the demonstration car so that a customer would be induced to buy not the demonstration car, but another car of the same<br>model and make. The use of a "demonstration car" in the manner and for the purposes aforesaid "under the authority" of the identification mark is not, in ' my opinion, sanctioned by rule 10 $(3)$ $(a)$ .

But even· if it is, the appellant was· oh .. the facts properly convicted. He was using a motor-car under cover of Jhe identification mark for the purpose of attending a cinema. Referring to.the fundamental condition under which a general trade licence is granted to a motor de.aler or repairer, Lord Hewart, L. C. J., said in *Dark v. Western Motor and Carriage Company,* (1939) 1 A. E. R. 143, 147, "The argument really comes to this-that, because a person has a licence connected with his business . . . he may therefore make use of it for any other purpose whatsoever that 'the fertility of commercial imagination may suggest". If this appeal were allowed (and 1 say· it in no offensive way) the appellant could use a trade identification mark for the purpose of attending a regatta at Mombasa.

In regard to the fourth ground of appeal it was not pressed but the law is settled. The appellant is clearly liable as an abettor of a breach of a condition of a licence and in our·law is liable to be convicted of the breach itself. The appeal is dismissed. · · ·