Rigby J:

This appeal comes before this Court by way of a reference under s. 34 of the Courts Ordinance, 1948, that a point of law is involved which it is desirable in the public interest to have determined by the Court of Appeal. The particular point of law on which the opinion of this Court is sought, as set out in the Schedule to the Certificate, is:

Whether the evidence of the action of the appellant in 'meddling' with the bicycle lamp at the police station was evidence of a 'statement' made in the course of a police investigation.

The appellant was charged under s. 4(1) (c) of the Common Gaming Houses Ordinance in that at the time and date specified in the charge he was found at Main Road, Kulai, in the State of Johore, assisting in carrying on an illegal lottery, to wit, 10,000 characters lottery.

The main facts of the case were that at some time on the afternoon of 13 November 1959, two police constables, acting on information received that same afternoon, apprehended the appellant in Main Road, Kulai, at the time be was found wheeling a bicycle. He was taken to the police station and it would appear, although the evidence is by no means clear on this point, that either on the steps leading to the police station or in the police station itself he was allegedly seen by the two police constables meddling with the lamp attached to the bicycle, and in the course of so meddling something fell from the lamp which, upon being picked up by the police constables, was found to be, and subsequently proved to be, the duplicate copy book of staking slips relating to a 10,000 characters lottery. The defence put forward was that this was a frame-up and the lottery book had been deliberately planted in the lamp by some person anxious to put the appellant into trouble. The appellant further alleged that be opened the front of the lamp at the request and instigation of one of the constables present and not of his own volition.

A number of points have been raised before us in the course of this appeal. It was first argued that the charge related to "carrying on an illegal lottery" whereas under s. 4(1) (c) of the Common Gaining Houses Ordinance the particulars of the offence so described in that sub-section are:

assists in carrying on a public lottery.

It was conceded by the learned Deputy Public Prosecutor that though the charge was defective in that it was badly drafted it was not a nullity and that the appellant, as was clear from the course of the trial itself, was in no way prejudiced by the defective nature of the charge. With that view we are in complete agreement. We are satisfied that the charge, although it was defective, was abundantly clear to the appellant and that he was charged with, in effect, carrying on a public lottery, that is to say, a 10,000 characters lottery. We are quite satisfied that the appeal on this ground must fail.

The next ground of appeal taken was that there was no evidence of conscious knowledge of the lottery tickets or counterfoil book of tickets. That ground of appeal must necessarily be connected with the facts and the findings of fact by the learned Magistrate. The facts, as I have said, were that on his way to the police station, or at the police station itself, the appellant was seen by the police constables to meddle with his bicycle lamp and this book of tickets fell from it. It has been argued before us and argued with some cogency - that, on the face of it, it is contrary to all reason and common sense that the appellant, in those circumstances, in the police station, should openly, or even surreptitiously, have attempted to take the tickets from the lamp. There is no doubt that there is some force and cogency in that argument. But it was a matter which, of course, was clearly before the learned Magistrate, and he found as a fact that he did not accept the allegation of the appellant that he was asked by the police constable to open the lamp. He found as a fact that the appella