JUDGMENT

Buhagiar J:

At the Sessions Court, Taiping, one Ong Hock Thye and another were charged with being in possession of a quantity of raw opium, an offence under s 6 of the Dangerous Drugs Ordinance, 1952. He pleaded guilty without reservation and the case against the other person was withdrawn. The opium was concealed in a compartment which had been constructed under the rear seat of a car, a Sunbeam Talbot, S 8352; the car is registered in the name of Loke Tham Chuan; the insurance policy is also in his name. After the conviction of Ong Hock Thye proceedings were taken with regard to the disposal of the car, and Loke Tham Chuan was given opportunity of showing cause why the vehicle should not be forfeited. The learned President held that Ong Hock Thye was the "owner" for the purposes of s 30(2) of the Dangerous Drugs Ordinance and ordered that the car be forfeited to Government.

Loke Tham Chuan appealed from this order; the main ground of appeal is that "the learned President misdirected himself on the construction of s 30(7) of the said (Dangerous Drugs) Ordinance and on the meaning of "possession" therein.

At the end of the hearing, I allowed the appeal and set aside the order of the learned President reasons for allowing the appeal were to be given in writing later

The facts as stated in the grounds of judgment of the learned President are as follows

Loke Tham Chuan was examined on solemn affirmation: he is a motor repairer and also buys and sell car, and he deposed:

(a) that he bought S 8852 for resale,

(b) that accused Ong Hock Thye told him that there was a prospective purchaser for the car, and so he would like to take it for 14 days' trial,

(c) this was about 1 October

In cross-examination, Loke Tham Chuan said that he had lent the car to Ong Hock Thye who was the only person entitled to possession on 11 October 1953 - the date of his arrest: and agreed that Ong Hock Thye was, at the end of 14 days, to return the car to him if he had not been able to dispose of it in the meantime.

In re-examination, the witness said he could have recalled it before the expiry of the 14 days It is clear that he did not exercise that power

It would therefore appear from Loke Tham Chuan that accused Ong Hock Thye was his agent for a specific period of time for the purpose of selling his car to a prospective purchaser

There is, however, a notable and considerable discrepancy between his statement in this respect and that of Ong Hock Thye: for the latter's version is that he told the registered owner that he himself wanted to buy the car and hence wanted to try it out for a few days If this is accepted there was no question of agency of sale on behalf of the registered owner

It was admitted by accused Ong Hock Thye

(a) that he made the structural alterations in the back seat of the car,

(b) that he kept it at his own house at 260 (c) Perak Road, Penang,

(c) that he paid for the oil and petrol used,

(d) that he used it for 10 days round about Penang, and that no one else used it,

(e) that after a week's trial he found it to be in good mechanical condition,

(f) that he did not return it to the registered owner, nor intimate to him that he wished to purchase it "because he was too busy",

(g) that the reason he was not himself driving on 11 October 1953 when the car was stopped at Simpang, Taiping, a considerable distance from Penang was that his arm was swollen and he had a pain in his chest.

Sub-section (2) of s 30 of the Dangerous Drugs Ordinance, 1952, provides as follows:

(2) Where any dangerous drug, in respect of which an offence under this Ordinance..... has been committed, is found in any conveyance, such conveyance may be seized by any officer of customs or police officer and,..... shall be forfeited, unless it is proved to the satisfaction of the Court, that the offence.... had been.... committed without the knowledge, consent or connivance of the owner

Under sub-section (7) of that section "owner of a conveyance means the person entitled to the pos