Syed Othman J:

The appellant and another person were charged with an offence of assisting in carrying on a public lottery punishable under s. 4(1)(c) of the Common Gaming Houses Ordinance, 1953 (No 26 of 1953).

They claimed trial. At the end of the prosecution case the other person was acquitted and the appellant was called on to enter upon his defence. At the conclusion of the hearing he was convicted and sentenced to pay a fine of $2,000 in default five months imprisonment.

The appeal is on many grounds mainly on questions of fact.

The prosecution case mainly relied on the evidence of the chief inspector, PW1 His evidence may be put briefly as follows: On 3 April 1968 at about 8.10 pm he led a police party to raid premises No. 1, Jalan Rogayah, Batu Pahat. Two officers entered the premises by the side door covering the ground floor, the first floor and the kitchen of the premises. PW1 himself with two other men went to the front portion of the premises which had a collapsible gate locked from inside. PW1 noticed a fat man seated beside a table. He was the appellant. PW1 identified himself and asked him to open the gates. But the appellant did not heed him. He collected pieces of paper in bundles from the drawer of the table and packed them in a paper bag, switched off the lights and disappeared in the dark. On seeing this PW1 went to the rear portion of the shop and warned his men at the rear to be on the lookout. PW1 went back to the front and got himself a piece of wood and forced open the collapsible gate. He entered the premises and flashed his torchlight and saw two male Chinese, the appellant and the other person coming from the rear of the shop. PW1 switched on the lights of the shop. One of the men at the rear (PW2) ran into the building and took PW1 to the rear portion of the premises. From the roof of the kitchen, a paper bag was recovered. In evidence

PW1 said that it contained many pieces of paper.

PW1 then forced open the drawers of the table. From the right drawer he recovered a biscuit tin, P2, and from the left drawer he recovered a paper box, P3. The paper bag, biscuit tin and paper box contained among other things mostly booklets, note books and papers, most of which were shown by a police expert to be records of stake, account sheets and account books relating to character lottery.

PW1 said further that after the arrest of the two persons, he took them to the police station where he searched them and recovered two bunches of keys from each of them. At 12.45am he went back to the premises with the two persons. He tried the keys from one of the bunches he had recovered from the appellant. He found that two keys fitted the drawers of the table.

At the close of the prosecution in deciding that the appellant had a case to answer, the learned magistrate made the following finding "From the facts and evidence produced before me I find ample evidence had been adduced by the prosecution to connect the first accused (i.e. the appellant) with the possession of the exhibits. I am fully aware of the principle and meaning of possession enunciated by the leading case of Chan Pean Leon V. Public Prosecutor . His finding of facts in the grounds of judgment is based solely on the story of PW1

Now in that case the prosecution did show that the appellant was a partner in the business of the shop raided. In this case, however, the prosecution adduced no evidence to show the relationship of the appellant with the business of the shop. Therefore, the only evidence adduced by the prosecution to connect the appellant with the exhs, P1 the paper bag, P2 the biscuit tin and P3 the paper box, was the story of PW1 that he had seen the appellant sitting at a table in the shop and that these exhibits were from the drawers of this table.

As regards the evidence leading to the recovery of P1, the paper bag, the evidence of the police officer, PW2 was at variance with that of PW1, PW2 said that on arrival at the premises