JUDGMENTBY: POYSER, CJ, MCELWAINE, CJ (SS), TERRELL, JA

POYSER, CJ This is an appeal by the Public Prosecutor against an acquittal. At the conclusion of Mr. Wallaces (Deputy Public Prosecutor) argument we allowed the appeal, but intimated that our reasons for so doing would be embodied in a written judgment.

The respondent was charged before the Magistrate, Kajang, on the 20th of November 1939, with the following offence:--

"That you on 16.11.39 at about 3 p.m. at the 24th mile, Sungei

Rinching, Semenyih, did knowingly have in your possession a still for

the distillation of intoxicating liquor without being licensed in that

behalf, an offence under section 13 (i) and punishable under section 67

of Cap. 133."

The evidence for the prosecution, which appears to have been accepted by the Magistrate in its entirety, established that the respondent had in possession a number of utensils which, assembled together, would form a complete still, and there was evidence that such utensils had been used for the distillation of intoxicating liquor.

The Magistrate acquitted the respondent, holding that he was bound by the case of Lim Chu Pian v PP 1 MC 158. The facts in that case were very similar to this. A number of articles were found in the accuseds possession which when fitted up constituted a still, and there was some evidence that such articles had been used for the purpose of distilling intoxicating liquor. The Magistrate convicted the accused but, on appeal, Mudie J. set this conviction aside holding that:--

"The possession of a number of utensils which when fitted up can

constitute a still is not sufficient evidence to sustain a conviction

under section 13 (i) of the Excise Enactment for knowingly keeping a

still for distilling intoxicating liquor. The articles did not

constitute a still until they were subsequently put together after the

seizure."

I am unable to agree with this decision if the facts were as they appeared to be. If there is evidence, as there was in this case, to establish beyond reasonable doubt that certain utensils, some of them concealed, when fitted up would constitute a still, and that they had in fact been used for that purpose, a conviction should have been recorded. It would be absurd to hold otherwise, for it would be almost impossible to prevent illicit distillation of intoxicating liquor, if a conviction could only be obtained when a complete still was found.

The appeal must, therefore, be allowed, and as there appears to be no doubt that the Magistrate did not believe the respondents defence that his possession of these utensils was innocent, but acquitted him solely on account of the decision of Mudie J. above referred to, I think this Court may properly, under the provisions of section 42 of the Courts Enactment, find the respondent guilty of the offence with which he was charged.

We accordingly directed a conviction to be recorded, but only imposed a nominal sentence of a fine of $ 1/- or in default imprisonment till the rising of the Court, not because we considered that offences against the provisions of the Excise Enactment should be leniently dealt with, but because the respondent had already been put to considerable expense in coming to Ipoh for some days and, as Mr. Wallace told us, the Public Prosecutor instituted this appeal solely with the object of the Court of Appeal considering whether the case of Lim Chu Pian v. Public Prosecutor, above referred to was correctly decided, or not.

MCELWAINE, CJ (SS) We allowed this appeal and I now give my reasons for concurring in this result.

The appellant was tried upon a charge of knowingly having in his possession a still for the distillation of intoxicating liquor without a licence, an offence under section 13 (1) of the Excise Enactment (Chapter 133).

The evidence was to the effect that jars, drainers, pipes and vats were found on the appellants premises, some of the art

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