JUDGMENT

Thomson J:

This is an appeal from the Magistrate's Court at Teluk Anson. The appellant was convicted of assisting in carrying on a public lottery in contravention of s. 4(1)(c) of the Common Gaming Houses Ordinance and was fined $1,500 or six months imprisonment in default of payment. Against that conviction and sentence he has now appealed.

There has at no time been any material dispute as to the facts of the case.

During the morning of 10 March 1956, police officers entered a shop in Teluk Anson which belongs to a partnership of which the appellant is a member and in connection with which he acts as cashier. The appellant was found sitting at a small counter at the back of the shop. In front of him was a small notebook containing 50 sheets of smooth paper and 50 sheets of rough paper bound alternately, the sheets of smooth paper being perforated near the binding so as to permit easy removal. Nothing was written on any of these sheets. In, a waste-paper basket beside the appellant was found a Day Book of the type commonly used in shops which was completely filled with entries relating to trade transactions which had clearly been transferred to other books of account and inside this was found a booklet similar to the one lying in front of the appellant. From this booklet 17 of the smooth perforated sheets were missing and the rough sheets corresponding to these missing sheets were inscribed with certain characters through the medium of carbon paper of which a sheet was found in the book. These characters were stated by an expert witness to relate to our old friend the characters lottery and it has never been in dispute that these rough sheets were duplicates of characters lottery tickets.

In addition, there was produced a piece of paper which was clearly the original of one of these duplicate tickets but on which appeared in addition to the material appearing on the duplicate the figures "10/3" possibly in a different handwriting and certainly written with a different instrument from the other characters on the paper.

The appellant himself gave evidence. He said, and this was at no time in dispute, that a number of other people beside himself had access to the waste-paper basket and that the table in front of him was used by other people. But he was at some pains (and he was represented by Counsel) to avoid any direct denial of the charge.

If the duplicates of tickets found in the account book in the waste-paper basket were found in the possession of the appellant then the well-known presumption contained in s. 11 of the Ordinance clearly arose against him. As, however, there would appear to have been some confusion in the mind of the Magistrate as to what that presumption is it is necessary to point out that it is to the effect that the person found in possession is to be "presumed until the contrary is proved to be assisting in a public lottery then in progress". It is, I hope, unnecessary to observe that in the nature of things nobody could be assisting in a public lottery not in progress, at least not in the present state of our knowledge relating to time. The words mean what they say. They mean that the person found in possession is to be presumed to be assisting in a public lottery which is in progress at the time he is found in possession. And it is for him to rebut the presumption. He can do so in two ways. Either he can give some innocent explanation which is believed or, as was pointed out by Thorne CJ in the case of PP v. Lee Fook [1932] MLJ 127; [1931-32] FMSLR 289, he can point to something in the material found which in itself is sufficient to rebut the presumption as, for example, if the material found consisted of printed tickets which on the face of them referred to a lottery which was some years old. But until he rebuts the presumption it retains its full force against him. In the present case the appellant made no attempt to give any explanation and there is nothing in the nature of a date on any of