Spenser Wilkinson J:

- In this case an Assistant Superintendent of Police on information received raided a house in Stinger Bakap.As the raiding party approached the house a number of people rushed out of the house scattering in all directions attempting to escape.The Assistant Superintendent of Police while trying to stop one of these men was assaulted and brought to the floor but succeeded in freeing himself and pushing his assailant into the house.As the raiding party entered the house there was a sound of other people trying to break through the attap wall of the house and climbing up the wall in order to escape.Two men were found hiding behind a mosquito net in a room and under one of them was found a bundle of notes and under the bed a number of cards, sixteen in all, were also found.

At the conclusion of the case for the prosecution the learned Magistrate held that no prima facie case had been made out against the accused and acquitted and discharged them.No reasons were given for this decision and Counsel for the accused on the revision who had appeared in the Court below, informed me that he had made a submission to the effect that the presumptions laid down in the Common Gaming Houses Ordinance, 1953 could not be raised against the accused because the entry into the house was not made under the provisions of the Ordinance.

I would remark in the first place that Magistrates should make a note of submissions made by Counsel.

On the hearing of the revision before me Mr. Lim Kheng Kooi on behalf of all the accused again submitted that there was no case against the accused because entry into the premises had not been made strictly in accordance with the Ordinance and therefore no presumptions against them could be raised.He relied on the cases of Low Wah v. PP 7 FMSLR 197, and PP v. Eng Lim & Ors. [1947] MLJ 78.

These cases decide that unless the entry into the premises has been made in accordance with the provisions of the Ordinance the presumptions against the accused cannot be raised.

In the judgment of Laville J in PP v. Eng Lim & Ors. [1947] MLJ 78 there are various dicta to the effect that the conditions laid down in what is now s. 18 of the Ordinance cannot be assumed but must be proved positively.With the greatest respect it appears to me that these dicta ignore the clear provisions of s. 114 of the Evidence Ordinance, Illustration (e) of which reads as follows:

The Court may presume -

(e) that judicial and official arts have been regularly performed;

Whilst it is no doubt preferable that in a case of this kind the prosecution should give positive evidence showing that all the conditions necessary to make the entry lawful have been fulfilled I am of opinion that where, as in this case, a Senior Police Officer gives evidence that he raided a particular house upon information received, then in the absence of anything else it may be presumed that the raid was carried out regularly in accordance with the Ordinance.

In this particular case I am satisfied from the evidence on the record that the entry into the premises concerned was in accordance with the provisions of s. 18(i)(d) of the Ordinance.Mr. Lim Kheng Kooi argued that because the Senior Police Officer concerned stated that he had received "similar information" twenty-four hours earlier there had been delay as in the case of Low Wah v. PP 7 FMSLR 197, and that this showed that the object of the search would not have been defeated by the delay necessary for the information to be reduced to writing. I am unable to accept this contention.Similar information does not mean the same information, and it may well be that the similar information obtained the night before was not sufficiently reliable or detailed to justify an immediate search.Having obtained further information on the night in question the Senior Police Officer presumably formed the opinion that an immediate raid was necessary; and it seems clear from what happened that any delay in making the