Spenser-Wilkinson J:

The facts and arguments sufficiently appear from the judgment -

The appellant in this case was charged in the Sessions Court jointly with one Tay Kim Huat under the provisions of s. 3(1) of the Opium and Chandu Proclamation with possession of chandu in a house in Batu Lane at 2 a.m. on 29 September 1949.

Tay Kim Huat pleaded guilty to the charge of possession and there is no doubt on the evidence that chandu was being cooked that night upon two stoves in the small entrance hall of the house in question.The case against the appellant was that he was also in possession jointly with Tay Kim Huat of this chandu which was being cooked.

The questions raised at the hearing of this appeal were:

(1) Did the prosecution establish that the appellant was the occupier of the entrance hall of this house so as to raise the presumption against him under sub-section (2) of s. 3 of the Proclamation?

(2) If the presumption was properly raised against the appellant did he discharge the onus cast upon him by that sub-section of proving that he was not in possession? and

(3) If the presumption did not arise did the prosecution prove possession by other evidence?

The learned President held that the appellant was the occupier of this hall within the meaning of s. 3(2) of the Prociamation which reads as follows:

"(2) Any opium or chandu which is found on any part of any premises, shall be deemed, unless the contrary be proved, to be in the possession of the occupier of such part of the premises."

In coming to this decision the President purported to follow a decision of the High Court at Ipoh Ong Eng Soo and two Ors. v. PP [1949] MLJ 231 part of the judgment in which reads as follows:

. . . I am of opinion that in this particular sub-section of the Proclamation 'occupier' must mean anyone who is found in any part of the premises from which other persons are excluded. I do not think it can be meant only to include persons who necessarily reside on the premises, or that part of the premises, or who have control in running the premises or that particular part of the premises. I therefore think in this case where the appellants were discovered in a closed room in a closed house, out of which room the first appellant emerged .... that they are rightly held by the learned President to be occupiers of that room .....

I think in regard to this decision it is sufficient for me to quote from the judgment of Thorne, J in the Offcial Receiver and Liquidator v. Grigg and Anor. 7 FMSLR 48:-

"It is a truism to any that a reported case is an authority only upon the point of law which was determined by the judgment upon the facts of the particular case." and to point out that it is clear from the last part of the extract from the Ipoh judgment above quoted that the facts of that case were different from the facts of the case now before me.

In the present case the hall in which the appellant was found was the only means of access to various rooms in the house occupied by various different subtenants and in my opinion, therefore, the element of exclusiveness which, it seems to me, is essential to constitute "the occupier" under the sub-section was entirely absent.In my opinion the prosecution did not succeed in proving that the appellant was "the occupier" of the part of the premises in question and, therefore, the presumption should not have been raised against him.

It is unnecessary for me, therefore, to consider the interesting argument which was put before me by Mr. Shearn on behalf of the appellant with regard to the burden of proof in cases where the presumption under the Proclamation arises.In view of the fact, however, that the point was very fully argued before me I think I ought to express my opinion on the point.In my view the decisive authority on this question is the judgment in Rex v. Carr-Briant 29 Cr. App. R. 76 where it was held that the burden placed upon an accused where some matter is presumed against him "unless the con