Howes J:

In this appeal the appellant was charged with, and convicted of dishonestly receiving stolen property, namely timber and sheet roofing valued at $60'da$80, under s. 411 of the Penal Code (Cap. 45).

Alternatively, he was charged with having in his possession on 12 March, timber and sheet roofing, which was reasonably suspected to be stolen property, and having failed to give a satisfactory account of the same; an offence punishable under s. 35 (i) of the Minor Offences Enactment (Cap. 46).

The appellant appeared in person, and his grounds of appeal were (1) that the conviction was against the weight of evidence, and (2) that the sentence (six months RI) was excessive.

As a preliminary, I am not satisfied that a charge under s. 35 (i) of the Minor Offences Enactment can be tried as an alternative charge to one under s. 411 of the Penal Code.

Under s. 35 (i) of the Minor Offences Enactment, once a person is found in possession of anything reasonably suspected of being stolen, the onus is on him to account satisfactorily how he came by the same; and evidence of what such person said to the Police, is admissible in a charge under s. 35 (i) of the Minor Offences Enactment, but is not admissible to prove an offence under s. 411 of the Penal Code.

Under s. 411, the onus is on the prosecution throughout to prove (1) that the property in question was stolen property; (2) that the accused received or retained the property; (3) that he did so dishonestly; and (4) that he knew or had reason to believe that the property was stolen property. This, however, is subject to the presumption contained in s. 114 (a) of the Evidence Enactment (Cap. 10) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods, knowing them to be stolen, unless he can account for his possession.

Moreover, in order to convict under s. 411, the Court must be satisfied that the property was stolen by some other person, to the knowledge of the accused; and there should be some evidence to show that such was the case.

In the present case, the appellant was employed by the complainant, who is a building contractor, as a watchman, and was in charge of the place in which a quantity of left-over building material was stored.

On 15 March, some picture-rails, which the complainant was able to identify as his property, and which had been stored at the place at which the appellant was employed to watch, and also some other timber and galvanised iron roofing which, although the complainant could not identify these, were similar to some which had been stored at the same place, were found to be incorporated in the structure of the house of the appellant.

The appellant's explanation was that on 3 January , he asked Hoh Sam (a carpenter employed by the complainant) for some timber to make a charpoy, and he gave him "4 rafters like Ex 1 (the picture-rail) and one of those big pieces of timber", pointing to a length of timber in Court. Hoh Sam in crossexamination had denied that the appellant asked for any timber, and the Magistrate accepted his denial as true.

I think the evidence, certainly as regards the picture-rails, showed that these were stolen by the appellant. There was no evidence that these or the other materials were stolen by any other person, and consequently there was no evidence to support the conviction under s. 411.

The misjoinder of the alternative charge, did not as it happened, involve any injustice to the appellant; and the Magistrate could, under s. 167 of the Criminal Procedure Code, have convicted the appellant of theft by a servant, although he was not charged with that offence.

I alter the conviction on the substantive charge to one of theft by a servant, s. 381 of the Penal Code, and maintain the sentence, which having regard to the purpose for which the appellant was employed, and the fact that he had been twice previously convicted for offences against property, cannot be