JUDGMENT

Spencer Wilkinson J:

At the conclusion of the hearing of this appeal I intimated that the appeal would be dismissed and that I would give my reasons in writing later, which I now proceed to do.

The appellant was charged with the theft of a brief case or bag, contrary to s. 379 of the Penal Code. The facts were that a person, whose name had not been disclosed, snatched a bag out of the hand of the complainant, Don Dias at about 1.15 p.m. on the 15 May, 1955 at Farquhar Street near the junction of Farquhar Street and Love Lane. The complainant describes the incident thus:

Someone snatched away my bag. That someone came in a trishaw. After snatching P1 (i.e. the bag) he ran to a trishaw behind me. I saw a trishaw passing me before the bag was snatched.

The complainant proceeded to chase the trishaw and, according to him, shouted out "Mata mata." A Police Constable who at about this time arrived at the junction of Farquhar Street and Pitt Street heard shouts of "Orang Samoon" and a trishaw being pointed out to him by some bystander he chased the trishaw on a bicycle. He shouted out to the trishaw man to stop. The trishaw pedaller, although he turned round five or six times, instead of stopping proceeded to pedal away as fast as he could, and entered King Street, where the passenger who had seized the bag jumped out of the trishaw and ran into a back lane leaving the bag in the trishaw. 1 The learned Magistrate relying, as I think rightly, upon s. 114 of the Penal Code convicted the accused, who was the trishaw pedaller, of theft.

The first point taken on behalf of the appellant on the appeal was that although the complainant, Don Dias made a report at the Central Police Station his report was not put in evidence and he relied upon my decision in the case of Chin Khing Siong V. Rex for the contention that the omission to produce the report was fatal to the prosecution case. In that case, however, the prosecution evidence was very vague, and the evidence of the complainant was the only evidence against the appellant. In those circumstances I held that the failure to produce the report was fatal, because the report in that case would have been decisive one way or the other as to whether the complainant's story should be believed. In the present case, however, as pointed out by the learned Deputy Public Prosecutor, the principal witness in the case was not the complainant but the Police Constable who had chased the trishaw. In my opinion, therefore, the failure to produce the report in this case, although it was in my opinion a very serious omission on the part of the prosecution was not fatal to the prosecution case.

I would like to take this opportunity of reiterating what I have said before that where a complainant has made a report to the Police the report must be produced as part of the prosecution case. In the case of Abdullah V. Regina - unreported) I said:

Many appeals would in my opinion be saved if Magistrates would exercise their powers under s. 165 of the Evidence Ordinance and insist upon the production of Police reports where the evidence discloses that a complainant made a report to the Police.

Since that judgment was given I have had occasion to consider the wording of s. 165 of the Evidence Ordinance and have held that that section, referring as it does only to "the Judge" and not to "the Court" as do many of the other sections, confined the operation of this section to a Judge of the High Court and did not apply to Magistrates' Courts. I am nevertheless of the opinion that a Magistrate has ample power, quite apart from that or any other section, to insist on the production by the prosecution of a report made by any witness before him. If a Magistrate indicates that in his opinion a report ought to be produced and the prosecution still fails to produce it the presumption under s. 114 of the Evidence Ordinance will be so strong that the evidence of the witness in question will be discredited.

It should