Spenser Wilkinson J:

This was an appeal from the decision of the juvenile Court at Bukit Mertajam. The appellant was charged that on the 18 December 1951 at about 9 a.m. he committed criminal trespass by entering the compound of house No. 622, Mukim 17, Pagar Tras, Machang Buboh with intent to commit theft.

Although the charge mentions 9 a.m. as the time of the alleged offence from the evidence it is clear that 9 p.m. was meant.

The complainant's story was that having heard his dog's bark he got up and looked out of his window and saw someone striking a match near his fowl house ten yards away. He then opened the door and went out and saw a male Chinese. The complainant shouted "thief!" and the male Chinese ran away. He complainant chased him for thirty yards. As he ran he found a bicycle on a small path and upon his finding the bicycle the person whom he was chasing turned back and claimed the bicycle. The male Chinese proved to be the appellant, who claimed the bicycle as his. Nevertheless, the complainant retained the bicycle (which, of course, he had no right to do) until the next morning, when he reported to the Police.

Apart from formal evidence of arrest, the evidence of the complainant was the only evidence against the appellant.

There were various grounds of appeal, but the main points which emerged from the arguments before me were whether there was sufficient evidence of intent to steal and whether there was sufficient evidence of actual trespass.

As regards the intent to steal, I was of opinion that the circumstances of the boy being seen striking a match in darkness near a fowl house and then running away when disturbed was sufficient evidence, if believed, upon which the Court could have inferred intention to steal. On the other hand the action of the appellant in returning and claiming his bicycle seems consistent with his running away having been due as much to innocent fear as to guilty intention. This point is not mentioned by the learned President in his grounds of decision.

As regards the actual trespass, the evidence is to my mind most unsatisfactory. In examination-in-chief the complainant did not state where the bicycle was found, though the inference from the way he told the story appears to me to be that it was at least thirty yards from the house. In cross-examination the complainant said: "You entered my compound", and in reply to the Court he said : "The bicycle was on a small path in my compound". No evidence was given as to what he meant by the expression "my compound", nor as to its extent, nor how it lay in relation to the public road or foot-path. The complainant may well have looked upon some of the land near his house as his compound, although he may not have been in legal possession of it.

The evidence for the prosecution on this point was thus, to say the least of it, very vague. In the absence, however, of anything else to cast doubt upon the complainant's evidence I would have hesitated to interfere with the derision of the learned President who had the advantage of seeing the complainant in the witness-box.

It was pointed out on behalf of the appellant, however, that the complainant having given evidence that he went to the Police Station the next morning and made a report, the report was not produced in evidence. In my opinion the failure to produce the report in this case was fatal to the prosecution case. If the report had told a story similar to that told by the complainant in the witnessbox it would have been admissible in evidence under s. 157 of the Evidence Ordinance. If the report did not support the complainant's story in the witnessbox then he could have been cross-examined upon it under s. 145 of the Evidence Ordinance. As, however, the report was not produced at all it appears to me that s. 114 illustration (g) applies, and I must, therefore, presume that the report would have been unfavourable to the prosecution case. If this were so, the complainant's evid