Spenser-Wilkinson J:

[1] This was an application by way of motion by the Deputy Public Prosecutor that the Court should hear further arguments in Criminal Appeal No 39 of 1949 and view its judgment therein. The appeal in question, which was heard before me on the 17 October was against the acquittal of Heng You Nang by the Sessions Court upon certain charges under the Customs Enactment. At the conclusion of the Deputy Public Prosecutor's argument I dismissed the appeal upon grounds which I now proceed to set out.

[2] The accused was charged in the Sessions Court as follows:

I. That you being Nakhoda of local craft No 15 did on 26 May 1949 at about 5 am at Pengkalan Bake Batu, Sepang, make a declaration for the consideration of an officer of Customs, that is to say, a declaration that you had no cargo on board the said local craft, the same declaration being untrue or incorrect, thereby committing an offence under s 113(i)(b) of the Customs Enactment Cap 5 of 1936, and punishable there-under.

II. That you Heng You Nang did on 27 May 1949 at about 5 am at the mouth of Sepang River, Sepang export goods, to wit 110 bags of flour and ten cartons of green peas, in contravention of the provisions of the Prohibition of Exports Order 1949, thereby committing an offence punishable under s 117(i) of the Customs Enactment Cap 5 of 1936.

III. That you did on 27 May 1949 at about 5 am at the mouth of Sepang River, Sepang attempt to export goods, to sit 110 bags of flour and ten cartons of green peas in contravention of the provisions of the Prohibition of Exports O 1949, thereby committing an offence punishable under s 119 of the Customs Enactment Cap 5 of 1936.

Alternatively:

IV. That you being Nakhoda of local craft No 15 were on 27 May 1949 at about 5 am at the mouth of Sepang River, Sepang, concerned in exporting prohibited goods, to wit 110 page of flour and ten cartons of green peas, and thereby committed an offence under s 114(i)(a) of the Customs Enactment Cap 5 of 1936, Punishable under thereunder.

[3] The facts were that at 5.30 pm on 26 May 1949 the accused applied to the Preventive Out-door Officer at Pengkalan Baka Batu for a Port Clearance in respect of his motor tongkang. He stated that the was going out with his tongkang empty. Thereupon the officer inspected the tongkang and found that it was empty, signed a Pott Clearance and handed it to the accused. The vessel then left that part of the river.

[4] Next morning at 5 am a Preventive Out-door Officer on patrol duty in the Customs Launch saw this tongkang leaving the mouth of the river. He called upon the tongkang to stop, speaking in Malay but it did not do so. The tongkang was then chased and boarded and it was found that there were on board about 110 bags of flour, and ten cartons of tinned provisions.

[5] The President of the Sessions Court, at the close of the case for the prosecution, held that there was no evidence sufficient to warrant a conviction and he acquitted and discharged the accused.

[6] Against this acquittal the Public Prosecutor appealed upon the following grounds, which, in the events that have happened, I think it necessary to set out in full:

(i) The learned President should have called upon the Respondent for his defence in respect of each charge.

(ii) There is no provision in the Customs Enactment Cap 5 of 1936 that the declaration referred to in s 113 must be in writing. Section 48 indicated clearly that it need not be in writing.

(iii) The learned President was wrong in not exercising his discretion under s 158 of the Criminal Procedure Code by altering the charge as to the date and time of the commission of the first offence. By omitting to do so, he caused a miscarriage of justice.

(iv) The learned President was wrong in law in not admitting the statement made by the Respondent on the 27 May 1949.

(v) The learned President was wrong in law in not admitting the reply made by the Respondent to the Preventive Outdoor Officer (PW 4) to the effect that he was