JUDGMENT

Gordon-Smith CJ, A-G:

In this appeal the accused had been convicted of being a member of an unlawful society, namely, "Marn Yi", and thus committed an offence punishable under s. 12 of Cap. 217.

The facts are not in dispute and briefly were as follows:- In the course of a Police raid carried out at No. 236 Waterloo Street on 12 April last a badge was found in a room of which the accused was a tenant. Such badge indicated membership of the Marn Yi Secret Society. It was found in a cupboard drawer in which also were cloth, needles, buttons and tailoring equipment. No one slept in the room but it was used by the accused for is tailoring and dress making business. The accused had two employees who would come and assist him in his work, as and when required. Anybody using the room would have access to the drawer, more particularly the two employees, as tailoring equipment was kept in the drawer.

The accused denied membership of the Society or ever having been asked to join it and denied all knowledge of the badge, never having seen it before.

On these facts the learned Magistrate held that such possession was proved and raised the presumption contained in s. 15(1) of the Ordinance, which presumption the accused had failed to rebut and he convicted the accused and passed a sentence of four months RI.

The whole case depends on the interpretation of the word "possession" which is not defined in the Ordinance. During the argument I was referred by Mr. Brash to the cases of Loh Chak Wan, [1939] MLJ 84. Harris [1925] LJ KB 164 and the recent case of Mak Tim decided in the Colony Court of Criminal Appeal [1948] 1 MLRH 143; [1949] MLJ 54. Various statutes were also referred, e.g. the Coinage Act s. 14, which defines possession, also the Minor Offences Ordinance (Cap. 24) s. 34(3) also defining possession, and the Larceny Act, 1916 in relation to the possession of housebreaking implements, but these are not very helpful.

I agree with Mr. Farrell that there is a distinction to be drawn in regard to offences in connection with the possession in the night time of housebreaking implements and also in regard to coinage implements and that possession need not necessarily be exclusive possession. I agree also that it is a matter of commonsense to interpret what the legislature means by such possession.

The case of Mak Tim, [1949] MLJ 54 was one of unlawful possession of ammunition, the appellant having been fortuitously engaged to unload a sampan of wooden boxes which he said he thought contained tinned provisions but which actually contained ammunition. In that case the Court of Criminal Appeal laid down that "possession" in order to incriminate a person must have the following characteristics: (a) the possessor must know the nature of the thing possessed, (b) must have a power of disposal over the thing possessed and (c) must be conscious of his possession of the thing, and that if these factors were absent, his possession could raise no presumption of mens rea. This case, however, was not decided until October and was therefore subsequent to the hearing by the Magistrate of the present case.

I can see no reason to distinguish between unlawful possession of ammunition and possession of a badge of an unlawful society. In both instances the burden of proving innocence is cast on the accused and the interpretation to be placed upon the word "possession" should be the same. The accused in his evidence denied being a member of the Society, denied ownership of the badge and stated that he had never seen it before. What other evidence could he bring? He could certainly not produce the real owner to come and admit ownership. It may have been put by one of his employees or by anyone else, into the drawer and one would hardly describe the cotton, needles and tailoring equipment in the drawer as being "personal possessions" of the accused in the ordinary sense of the words, as found by the Magistrate. There was no other evidence whatsoever to con