JUDGMENT

Raja Azlan Shah J:

This is an appeal by the learned Deputy Public Prosecutor against the decision of the learned Magistrate who, at the end of the prosecution case, acquitted and discharged the respondent without calling upon her defence. The respondent was charged with assisting in carrying on a public lottery, an offence punishable under s. 4(1) (C) of the Common Gaming Houses Ordinance, 1953. The facts of the case are as follows.

On information received, PW1, a gazetted Senior Police Officer, raided a topfloor room of house No. 19, Jalan Masjid, Kuala Trengganu, together with a police inspector. On approaching the said room of the said house, respondent was seen some three feet from the dressing table on which Exh. P1 was lying. On seeing PW1 and the inspector, both of whom were in mufti, respondent tried to close the door, but it was eventually forced open by PW1.

In his grounds of decision the learned Magistrate came to the conclusion that there was no physical Possession on the facts disclosed. He based his conclusion on the fact that exhibit P1 was recovered from the dressing table some three feet away from the respondent and there was lack of evidence as to how the said exhibit came to be on the table or when or by whom they were left there. The facts speak for themselves, and it is for the learned Magistrate to draw the necessary inference of physical possession. With regard to the aspect as to how the exhibit came to be on the dressing table, to my mind the learned Magistrate has misdirected himself. What the prosecution has to accomplish in this case is whether it has proved its case beyond reasonable doubt but not beyond the shadow of a doubt. As was stated by Denning J (as he then was) in Miller v. Ministry of Pensions: [1947] All ER 372.

Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

With regard to the mental element, the learned Magistrate rightly directed his mind that knowledge or consciousness would depend on the surrounding circumstances. However, he failed to direct his mind adequately on the facts. He directed his mind to the circumstance when the respondent tried to close the door on PW1. But he failed to consider the other circumstance which, taken together, may well be that the element of possession was proved. That circumstance is the physical proximity of the respondent to the exhibit in question.

In view of the case as a whole, I am satisfied that the learned Magistrate has misdirected himself as to fact and law. I would therefore allow the appeal and order a new trial before another Magistrate.

Appeal allowed. New trial ordered.