Rigby J:

I allowed this appeal stating at the time my reasons for so doing. In deference to the learned Magistrate who tried the case and, indeed, in compliance with the provisions of s. 319 of the Criminal Procedure Code, I now state in writing the grounds upon which the appeal was allowed.

The appellant, an 18 year old student, was convicted of dishonestly retaining stolen property, to wit, seven plants of orchids which he knew, or had reason to believe, was stolen property, contrary to s. 411 of the Penal Code.

For the prosecution to succeed it was necessary to prove:

(1) that the orchids had been stolen; and

(2) that the appellant retained them knowing or having reason to believe that they had been stolen.

The first ingredient provided no real difficulty. Two witnesses, father and son, gave evidence. The son Stated that On the evening of the 23 October 1959 he attended as usual to his father's orchids, and at 7 a.m. on the following morning he found more than 50 plants missing. On the 8 November 1959, he was called to the police station, where he was shown a number of orchid plants. He identified three of those plants as part of the stolen orchids saying that those three plants had been given to him by his father. The father was also called to the Police station. He lived with his son on the same premises from which the orchids had been stolen, but was away from his house on the night or early morning on which they were stolen. At the police station he was shown 19 pots if orchids. He purported to identify 17 of these pots, Including the three already identified by his son, as part of the stolen property.

It was then necessary to prove that the stolen orchids, or part of them, were found in the possession of the appellant and that he had retained them knowing, or having reason to believe, that they were stolen property. The only witness called to prove this essential ingredient of the charge was a Police Officer. The Officer stated that on the morning of the 7 November 1959, "acting on information" he proceeded to the house of the appellant. There, he found seven plants of orchids in pots. The Officer then said in evidence "I interrogated accused. He did not give a satisfactory explanation. I took possession of the seven plants. Next day PWs one and two identified the seven plants in my presence.

The evidence for the prosecution consisted solely of these three witnesses.

Mr. Chang Min Tat, for the appellant, submitted that at the close of the case for the prosecution no prima facie case had been made out against the appellant and he should accordingly have been acquitted forthwith by the Magistrate without being called upon for his defence. The main ground upon which Mr. Chang based his contention was that there was at that stage, namely, at the close of the case for the prosecution, no evidence whatsoever that the plants had been brought to the house by the appellant and/or that they were in his possession as distinct from in the possession of any other of the members of the house in which he lived and in which the plants were found. The only evidence on the record from which possession might conceivably be inferred as against the appellant were the words of the Police Officer "I interrogated accused. He did not give a satisfactory explanation." But Mr. Chang submitted that although the interrogation by a Police Officer and the explanation offered by a suspect might have been admissible if the charge had been one under s. 29 of the Minor Offence Ordinance, it was clearly not admissible in respect of the present charge under s. 411 of the Penal Code, where an offence of theft had already been known to have been committed and had been reported to the police and the police had already started their investigations. Mr. Chang accordingly submitted that the contents of any statement which the appellant might have made to the Police Officer, in reply to his interrogation, was clearly inadmissible under s. 113(i)