Ambrose J:

The appellant was charged with:

(1) possession of prepared opium in contravention of s. 9 of the Dangerous Drugs Ordinance; and

(2) possession of smoking utensils in contravention of s. 10(2) of the same Ordinance.

He was convicted of both offences and ordered to be remanded for a period of four weeks for the purposes of an examination and report by the Opium Treatment Centre's Advisory Committee.

The evidence for the prosecution was as follows. A raid was made by a detective sergeant, a detective corporal and a detective on the attic of No. 26, New Bridge Road, on 21 January 1958, about 8.20 p.m. On entering the attic, the detective corporal and the detective saw the appellant holding a confectionery tin in his hands and attempting to get out of the attic through an opening on the left side of the attic. On examination the tin was found to contain a phial of chandu, a small tin of chandu dross, an opium pipe-head, a rag and some tools.

The defence was that the appellant went with a friend to the premises in question to see the occupier, who was one Kia Beng Seng, to buy a fishing net. The appellant and his friend were told by the occupier's wife that the occupier was out. She asked them to go to the roof garden and wait. They went upstairs and sat in the attic. The detectives entered the attic after they had been there for ten minutes. The confectionery tin was in a corner of the attic. The appellant did not hold the tin at any time. Neither the tin nor its contents belonged to him.

One ground of appeal was that there was an irreconcilable conflict between the evidence of the detective corporal in Court and his statement to the police. The detective corporal said in Court that he felt the pipe-head which was in the tin and found that it was warm. He did not say so in his statement to the police. In my view, an omission of this sort from the statement to the police is not a serious discrepancy. The Magistrate considered that it was not likely that the detective corporal was lying when he said the pipe-head was warm but that it was possible that he was honestly confusing the facts of another opium case with the present one. Counsel for the appellant contended that such a possibility of confusion should have created a doubt in the mind of the Magistrate, the benefit of which should have been given to the appellant. In my opinion, the Magistrate gave the benefit of the doubt to the appellant by refraining from finding as a fact that the pipe-head was warm.

Another ground of appeal was that there was no evidence of possession. I shall deal first with the charge relating to possession of prepared opium. The Magistrate was satisfied beyond reasonable doubt that the appellant did attempt to take out of the attic the confectionery tin in which were found a small tin containing chandu dross and a phial containing chandu. I can see no reason for interfering with this finding of fact. Chandu dross and chandu come within the definition of "prepared opium" to be found in s. 2 of the Dangerous Drugs Ordinance. Prepared opium is a dangerous drug as defined in the same section. Section 37(d) of the Dangerous Drugs Ordinance provides as follows:

any person who is found to have in his custody or under his control any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.

What does the word "custody" mean? According to the view expressed by Brown A-G CJ, in Ho Seng Seng V. Rex it means watching over or keeping safe. With great respect to the learned Judge, I am unable to agree with his view that the difference between "control" and "custody" is that "control" implies a power of disposal while "custody" does not.

I have given the most careful consideration to the meaning of the word "custody" in s. 37(d) of the Ordinance under consideration and have come to the conclusion that it me