Spenser Wilkinson J:

The appellant was charged before the Sessions Court with housebreaking by night by entering a building in order to the committing of the offence of theft of 26 sacks of tea dust valued at $6,500, contrary to s. 457 of the Penal Code.

At the close of the case for the prosecution Counsel for the appellant submitted that there was no evidence under s. 457 whereupon the learned President amended the charge to one of theft in a building of the same 26 sacks of tea dust, contrary to s. 380 of the Penal Code. It is not clear upon what ground it was submitted that there was no evidence under s. 457.Presumably the submission was made because there was no precise evidence of the time at which the breaking took place.Counsel appears to have been under the impression that s. 114 of the Evidence Ordinance did not apply to housebreaking. I think there is no doubt that it does.In Rex v. Loughlin 35 Cr App R 69, the Court of Criminal Appeal said:

It is perfectly good evidence of the prisoner being the housebreaker that he is found in possession of property stolen from a house quite soon after the breaking." Illustration (a) to s. 114 of the Evidence Ordinance is but an illustration of the general proposition contained in the Section and I have no doubt the principle expressed in Rex v. Loughlin 35 Cr App R 69 applies as much in this country as it does in England. I think it was unfortunate that the learned President did not alter the charge to one under s. 454 (housebreaking in order to the committing of theft) rather than to one under s. 380.

The appellant was re-charged upon the amended charge and claimed trial whereupon Counsel for the defence was asked whether he would like a short adjournment in order to consider the amended charge.In reply to this Counsel asked for an adjournment to a date about twelve days ahead, which the learned President (in my view quite properly) refused, whereupon Counsel asked for leave to withdraw from the case.The learned President thereupon (also in my opinion very properly) informed Counsel that if he wished to leave the Court he might do so, but that he could not give him leave to withdraw.Counsel thereupon left the Court leaving his client to fend for himself as best he could.

The appellant was then called upon for his defence and elected to give evidence on affirmation, which he did.He was also asked whether he wished to recall any of the prosecution witnesses present in Court or its precincts and he said he did not.The appellant then called two defence witnesses and at the conclusion of the evidence he was convicted under the amended charge and sentenced to six months' imprisonment.

Two main points were raised on behalf of the appellant in the appeal.The first was that there was no evidence that the appellant was sufficiently in possession of the stolen property to raise the presumption under s. 114 of the Evidence Ordinance, and the second was that the Court should have given the appellant an opportunity of obtaining another Solicitor.

With regard to the first point, upon my pointing out certain passages in the evidence, Counsel for the appellant abandoned his contention with regard to the possession of 12 of the bags of tea dust in question which had been stored for a short time with PW 6 and had been subsequently sold and delivered by the appellant to PW7. There was no doubt that these 12 bags formed part of the total of 26 bags which had been stolen some time during the previous night from the complainant's godown which had been broken into, and in my opinion there is equally little doubt that the appellant was in possession of them.

With regard to the remaining 14 bags of tea dust, the subject matter of the charge, ten bags were found in an open space in McNair Street and two bags had been found by the complainant loaded upon a tricycle, which was being pedalled by some person unknown but which subsequently proved to be the property of the complainant.

The only evidence