Yong J:

The accused, now the appellant, was convicted on two charges under s. 9(a) of the Arms Act 1960 for having under his control (i) one 12-bore pistol and (ii) one round of 12-bore cartridge without an arms license or permit, and was sentenced to six months imprisonment on each charge, the sentences to run concurrently.

The facts of the case are simple and straight forward. The police on information received searched the accused's house, and found the pistol and ammunition in the zinc gutter near the kitchen roof of the accused's house. The accused in his defence strenuously denied that the pistol and ammunition were his or that he had any knowledge of their existence. He explained that they must have been planted there by informers. On inspection, the Court, the defending Counsel and the deputy public prosecutor found that the zinc gutter where the pistol and ammunition were discovered was a place easily accessible to anyone standing outside the kitchen walls and the weapon could have easily been placed there without the knowledge of the inmates of the house.

The learned president in his grounds of judgment quite correctly held that s. 47(2) of the Arms Act applied and the presumption therefore arose against the accused in whose house the pistol and ammunition were found. Section 47(2) reads as follows:-

Every occupier of any house or premises in which any arms, ammunition or imitation arms are found shall for the purposes of this Act be deemed, until the contrary is proved, to have been in possession of such arms, ammunition or imitation arms.

The learned president, however, convicted the accused on this presumption of possession without further proof of mens rea. In my opinion mere possession is one thing and possession with mens rea is another. Possession which incriminates must have certain characteristics. The possessor must be aware of his possession, must know the nature of the thing possessed and must have the power of disposal over it. Without these characteristics possession raises no presumption of mens rea. Without mens rea possession cannot be criminal except in certain cases created by statute, which is not applicable in this case. I am fortified in this opinion by the case of Public Prosecutor v. Wong Peng Wah & Ors. [1948] MLJ 131 followed in Toh Ah Loh and Mak Thim v. R [1949] MLJ 54 at p. 55.

There are other aspects of the case where the learned president has misdirected himself. On p. 13 of his grounds of judgment he, in rejecting the accused's explanation held that the accused had "failed to provide any explanation as to why people should want to put him into trouble by planting the pistol in his house. He (the accused) could not even name any person who was likely to be his enemy or who had any grudge against him."

In my view the learned president has overlooked the fact that the motive for planting arms and ammunition into another man's house need not necessarily be enmity or revenge. Such motive has frequently been found to have been impelled by tempting rewards offered by the police. Under s. 38 of the Arms Act even the Court in case of conviction, is authorised to pay out of the fines imposed, awards to the informers.

In another passage on the same page, the learned president said that "if the pistol and the cartridge had in fact been planted there by someone who later informed the police, then he would certainly indicate the exact spot where the exhibits could be located" and the police could have easily discovered them within minutes instead of nearly one hour.

In my view this merely shows the ingenuity of the informer who knows that if the weapon alleged to have been hidden is too easily and quickly discovered by the police who goes straight to the spot, the Court trying the case may feel suspicious; there may be no conviction and therefore no reward.

In the instant case, the accused has given an explanation which is consistent with his innocence and if the learned president