Pretheroe J:

The petitioner in this revision is the owner of three motor lorries.On the 26 October, 1948, two of petitioners employees were convicted of having in their possession (hidden in a lorry belonging to petitioner but in their charge) eight slabs of opium.At that trial the learned trial Judge ordered that the petitioner's lorry be forfeited.On appeal the conviction of the second defendant was quashed and the order regarding the forfeiture of the lorry was set aside and it a was ordered that the owner (the present petitioner) be given an opportunity to appear before the learned District Court Judge to show cause why the lorry should not be forfeited.In pursuance of this order the petitioner appeared before the Judge, whose title had in the meantime been changed to president of the Sessions Court, on the 2 of February last and set forth his grounds.The learned President delivered a considered judgment on the 4 February confirming the forfeiture.In this revision the petitioner prays that this decision be reversed.

In his carefully prepared judgment the learned President stated his reasons for coming to the conclusion that the petitioner was not a completely innocent party in the matter as protested by petitionary himself.With great respect I find it difficult to follow the learned President's arguments on this one point.He states that he was unable to believe the petitioner's Protestations of innocence partly because he himself constructed the bodywork of the lorry in question and he himself drove that lorry for about a month after such construction.But these facts alone do not prove knowledge of the petitioner because, according to the record, such construction must have taken place some two years previously and there is ample evidence that during that period the lorry was frequently in the sole control of the driver in such circumstances as to afford him ample opportunity if he so desired to sub-divide the tool boxes so that they afford hidden recesses.

The second reason advanced by the learned president for not accepting petitioner's innocence was that he was not satisfied that petitioner "never looked into the tool boxes". The learned President thus disagreed with the submission made by Counsel for petitioner that car owners do not normally inspect their tool boxes though apparently the question was never put to Petitioner himself.But even if the learned President's decision on this point os correct it still does not go far enough in that it does not decide that petitioner inspected the tool boxes after they had been adapted to provide the secret compartments.As it appears probable that petitioner's employees obtained the opium during their last visit to Singapore, whether in Singapore of some where on the route is immaterial, it is at least a reasonable assumption that the tool boxes were adapted then for the express purpose of conveying the opium so obtained.In such case the petitioner would have no opportunity to inspect the boxes as the lorry was seized before it reached the end of return journey from Singapore.In my opinion therefore there was no proof of petitioner's complicity either in the actual commission of the offence or in the adaptation of the tool boxes for the purpose of committing the offence. I agree with the decision of Russell J in Cheng Kee Huat & Anor. v. PP [1947] 1 MLRH 675, [1948] MLJ 53 that, in the case of a highly penal provision like that contained in para. 17(1) of the opium and Chandu Proclamation, it is necessary of establish some degree of complicity on the part of the owner of a vehicle before the forfeiture of the vehicle can be ordered.

I therefore direct that the order of the learned President confirming the forfeiture of the lorry be set aside and that the lorry registered as M 1067, and the subject matter of this reference, be returned to petitioner. I make no order as to costs.

Order of forfeiture set aside.