JUDGMENT

Taylor J:

This is a Chandu Appeal. Police, apparently acting on information received, raided a coffee shop and in a drawer of the counter found a cigarette tin containing nine small packets of prepared opium; they arrested the shopkeeper. They did not find any pipe or other gear. The drawer was not locked; it contained about 15 small books, in which sales to credit customers were entered, and other articles indicating that the shopkeeper and his assistants all had access to the drawer and in fact used it. The shopkeeper was convicted of possession of the opium. He now appeals.

The defence at the trial was that the facts did not show that the accused had possession of the opium because he used the drawer jointly with others. The learned Magistrate in a very long and careful judgment rejected this defence for two main reasons. The first was his view that under s. 37 of the Dangerous Drugs Ordinance the burden of proving his innocence is on the accused. This is an over statement - the section has the effect of shifting the burden of proof of particular facts but that does not amount to shifting the general burden. The second reason was that he disbelieved the evidence of the accused who was the only defence witness and therefore held that the case for the prosecution was unrebutted.

Section 9 of the Ordinance contains an absolute prohibition of the possession of opium.

It is for the prosecution to establish possession but not necessarily by their own evidence alone, because s. 37 provides that on proof of specified facts, certain other facts shall be taken to exist, unless the accused can show that they did not exist. Three of these provisions are invoked in this case, one under para. (g) and two under para. (d) which are to the following effect. If any dangerous drug is concealed in any premises it shall be presumed to have been so concealed with the knowledge of the occupier. Any person who has custody or control of a drug shall, until the contrary is proved, be deemed to have possession and to know the nature of the drug.

The Magistrate's reasoning was this:

The opium was concealed in the premises. It is presumed to have been concealed with the knowledge of the accused. As he knew it was in the drawer of his counter he had custody. If he had custody he is deemed to have had possession. Therefore he is deemed guilty until he disproves possession. As to what constitutes "possession" reference wag made to Mak Thim's [1949] MLJ 54 case. His own evidence was disbelieved. He disprove nothing. He is deemed guilty of possession.

In my view this argument takes insufficient account of the particular facts proved. An accused is entitled to the benefit of anything which can be elicited from the prosecution evidence; the onus is on the prosecution to adduce convincing evidence of the facts necessary to raise a presumption before the onus on any issue is shifted. The opium was in a cigarette tin and in the same drawer there were the account books, some packets of cigarettes and also some money. This may have been the assistant's money. It is not likely that this drawer was also the till of the shop. There were cigarettes for sale on the counter. Those in the drawer were probably not for sale. It is unlikely that anyone would put his tin of opium among tins which might be handed out at any moment. The evidence on these points was not fully elicited. It was however, sufficient to show that the accused and his assistants all used the drawer and it is at least consistent with the case for the prosecution that the opium belonged to an assistant and that the accused did not actually know that it was there. The surrounding circumstances therefore went some way towards rebutting the presumption of knowledge before the accused gave evidence at all. Also the circumstances did not exclude the possibility that some enemy of the accused had "planted" the opium in the drawer and led the police to it. These points were not considered by the