Rigby J:

This case was well argued by Mr. David Choong, who appeared as Counsel for the appellant. At the conclusion of the hearing I allowed the appeal and set aside the conviction and fine, stating that I would give my reasons in writing for so doing. I now proceed to do so.

The appellant, a Chinese fisherman, was charged with unlawful possession of 40 lbs. 1 2/5 ozs of Indian hemp. He was duly convicted and fined $1,000, or six months' imprisonment in default of payment.

The brief facts of the case were that at about 6.30 a.m. on the morning of the 23 June 1960, a party of Customs Officers raided the premises of the appellant at Tanjong Tokong Village. In a shed at the back of the house they found a cardboard carton and a gunny sack, both containing a quantity of matter subsequently produced in evidence, both in the trial Court and before this Court. One of the Customs Officers asked the appellant what it was and the appellant replied that it was something he had picked up out of the sea and brought home. In a room in the house a further quantity of the same substance was found in a paper packet. A cautioned statement was taken from the appellant a few hours later the same day. In that statement he said that he had seen a gunny sack floating in the sea. On examining it he found it to contain a substance which he thought to be grass. He brought it home and put it in the shed. He could not explain how the paper packet containing a similar substance had got into a room in his house and he thought that one of his children might have put it there.

The substance in question was considered to be Indian hemp and the appellant was duly prosecuted and convicted on this charge of possession of Indian hemp.

The matter or substance produced in evidence has all the appearance of a quantity of dried earth or earth mould mixed with twigs and dried up pieces of leaf.

Indian hemp is defined in s. 2 of the Dangerous Drugs Ordinance, 1952, to mean:

The dried flowering or fruiting tops of the pistillate plant Cannabis Sativa L, from which the resin has not been extracted, under whatever name they may be designated in commerce.

The argument put forward by Mr. Choong, both in the lower Court and before this Court, was that although it may well be that the substance found formed part of a species of a plant or plants known as Cannabis Sativa, there was no sufficient evidence that it constituted what I may describe as the finished product known as Indian hemp. In my view, that contention was well founded. The evidence of the Chemist was hardly convincing. He said that he had carried out tests which satisfied him that the exhibits were from the plant known as Cannabis Sativa. But his evidence is, to my mind, open to the construction that because the plants were of the species known as Cannabis Sativa, then it followed as a necessary, inference or consequence that they were Indian hemp within the meaning of the Ordinance. No evidence was given by him that they were pistillate as distinct from staminate plants, nor was any test carried out or evidence given by him as to whether or not the resinassuming they contained resin-had, in fact, been extracted. With regard to the exhibits themselves the Chemist said:

The exhibits may have a few stems. I cannot tell how much is stem and how much is flowering tops. There are also leaves.

In the absence of cross-examination and in the ordinary case, no doubt the evidence of the Chemist would reasonably and properly have been held to be sufficient to satisfy a Court that the substance found was Indian hemp. But in the particular circumstances of this case and having regard to the nature and purpose of the cross-examination I do not consider that his evidence was conclusive on this issue. The argument raised by Mr. Choong may well seem to have been of an unduly technical nature. But his contention was that from the homogeneous mass of dried up earth, earth mould, broken twigs and dried up leaves p