JUDGMENT

Thomson J:

The facts appear sufficiently from the judgment.

The respondent to this appeal was charged before the Sessions Court at Sitiawan with:

(i) Unlawful possession of raw opium in contravention of s 6 of the Dangerous Drugs Ordinance, 1952; and

(ii) Unlawful possession of smoking utensils in contravention of s 10(2) of the same Ordinance.

He pleaded guilty to the second charge and was convicted, and with that conviction I am not concerned here.

On the first charge he claimed trial. At the close of the case for the prosecution, the President held that there was no case to answer and he was accordingly acquitted and discharged. Against that order of acquittal and discharge the Public Prosecutor appealed.

The appeal came on for hearing before me on 18 December when I allowed it and set aside the order of acquittal and discharge. I intimated that I would give my reasons for this course at a later stage.

Briefly, the evidence for the prosecution was that on 10 August 1953, a party of Customs officers entered the house of the respondent on Pangkor Island where they found a number of smoking utensils and, under a bed, a locked box containing about 4 lbs of raw opium. The key of this box was not in the possession of the respondent but in the possession of a neighbour.

At the close of the prosecution case the President held, on the authority of the Singapore case of Ho Seng Seng v. Rex, [1951] 1 MLJ 225, that the onus of proving that the respondent knew that the box contained opium lay upon the prosecution and that the prosecution evidence failed to make out a prima facie case on this point.

I see no reason to quarrel with the view the President took of the evidence. He was, however, definitely in error as to the law relating to the onus of proof.

In Ho Seng Seng's [1951] 2 MLR 210; [1951] 1 MLRH 561; [1951] MLJ 225 case the Court was concerned with s 37 (d) of the Singapore Dangerous Drugs Ordinance, 1951, which reads as follows:

(d) any person who is found to have had in his custody or under his control any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.

The corresponding Section, however, of the Federation Ordinance which is as follows is different:

(d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.

I emphasise the words, "anything whatsoever containing" any dangerous drug. From the judgment of Brows, AG CJ, in Ho Seng Seng's [1951], 2 MLR 210; [1951] 1 MLRH 561; [1951] MLJ 225 case, it will be noted that although these words are to be found in the former Singapore Ordinance which has now been repealed, they do not occur in the current Singapore Ordinance and that it was their omission from that Ordinance that was the ratio decidendi of the case in question.

Applying the provision of the Federation Ordinance which has been quoted to the facts in the present case, it is clear that once the locked box containing the opium was found in the possession of the respondent, he was until the contrary was proved to be deemed to have been in possession of its contents and to have known the nature of these contents. The President was therefore wrong in holding at the close of the prosecution case that the evidence for the prosecution did not make out a prima facie case on these two points. Without the aid of the provision which has been quoted it did not make out such a case, but with its aid it clearly did.

Before departing from the case I would reiterate a warning I have given on previous occasions that when Singapore authorities on the construction of Singapore Ordinances are quoted, they should be carefully scrutinised to ascertain whether the portio