Murray-Aynsely J:

This appeal raises two points - one as to the merits, the other as to a matter of procedure.

As regards the question of merits it is interesting to observe the history of the case. Apparently the Appellants were in the first instance charged with the theft of a barrel. When evidence was called it became evident that the identity of the barrel stolen with that found in possession of the Appellants was the crucial point of the case, and it became equally clear that on that point the evidence for the prosecution was inadequate. In the circumstances the charge was amended to one under s. 35(i) of Cap. 46 (Minor Offences) on which the Appellants were convicted. But it seems clear that in the case of an article in common use such as an oil drum which was the article concerned in this case possession is not a suspicious circumstance where there is no evidence that the article possessed is the one stolen. In other words this sub-section should not be resorted to help out where a charge of theft breaks down. There is a legitimate use for this sub-section, e.g., where a beggar is found with a gold watch and no charge of theft can be preferred because the owner cannot be traced, but in this present case the use was not legitimate, and a provision such as this can be oppressive if it is invoked in cases where its use is not legitimate. The conviction must be quashed.

In view of this it is not necessary to examine in detail the other point, but my view is that there is here no difficulty. The act charged is the possession. There must be circumstances which give rise to suspicion of one of two things but it is obvious that where the circumstances arise it would be impossible for the person in whose mind the suspicions were aroused to say that he suspected that the goods were stolen and not fraudulently obtained or vice versa. What is contemplated is suspicion of a state of affairs that can only be described by the words stolen or fraudulently obtained. In this connection compare the case of Rexv. Teh Peng Kin referred to in six Malayan Law Journal at p. 226 where it was held that a conviction under a charge of "fraudulently or dishonestly destroying a valuable document" was good. I distinguish this case from those under the Motor Vehicles Enactment, which were cited to me.

Conviction quashed.

Foot Note:

* S 35 (i) of the Minor Offences Enactment (Cap. 46) reads:

"Any person who has in his possession or conveys in any manner anythig which may be reasonably suspected of being stolen or fraudulently obtained shall, if he fails to account satisfactorily how he came by the same, be liable to a fine of fifty dollars, or to imprisonment for three months."