The appellant was charged originally with possession of obscene video cassette tapes contrary to section 292(a) of the Penal Code before a learned magistrate sitting at Bandar Seri Begawan. In the midst of the hearing the charge was amended to one of possession for the purpose of hire.

He was convicted and sentenced to 2 weeks imprisonment and fined $1,000. He now appeals against both conviction and sentence.

Section 292(a) of the Penal Code reads:

"Whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

Exception. — This section does not extend to any book, pamphlet, writing, drawing or painting kept on used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose."

He was charged on December 19, 1979 and at the hearing which commenced sometime in June 1980 the charge was amended to read and I quote verbatim:

"That you at about 1100 hours on the 17th day of December, 1979, at Shop No. 301 Seri Complex, Bandar Seri Begawan, in the State of Brunei, has in your possession obscene picture entitled 'The Punished Lovers' in Video cassette tape to wit, that certain parts of the tape are visually obscene and that you have thereby committed an offence punishable under section 292(a) of the Penal Code."

After the amendment the prosecution invited the court to view the tape or tapes which was acceded to.

After the viewing the prosecution officer, A.S.P. Chong, gave evidence. He told the court that after an application for and the issue of a search warrant he with others visited the Chong Hock Music Centre at a given address where he saw a number of video cassette tapes VHS and Betamax Systems. He approached the appellant who was there and told him he wished to seize the tapes for censorship and the appellant replied "all right". He seized 240 video tapes, issued the appellant a receipt therefor and brought them back to police headquarters. The police found 2 tapes under the label "The Punished Lovers" a tape for each system obscene. On December 19, i.e. two days later he telephoned the appellant and told him he would be charged with possession of two obscene tapes and the appellant was so charged. A.S.P. Chong was then cross-examined by counsel for the appellant after which this exchange took place between court and the prosecution officer. Court:From the facts Mr. Prosecutor your charge should be for possession of video tape for purposes of hire. P.O.:I leave it to the court to amend.

The matter was adjourned to June 16, 1980. At the resumed hearing A.S.P. Chong was re-examined. Then followed A.S.P. Adenar Umar who told the court that he went with A.S.P. Chong to the shop and it was he himself who censored the 240 tapes and found the two under the title "The Punished Lovers" obscene and tendered the tapes. After the close of the prosecution's case defence counsel said he would make a submission of no case but would require time to do this research. This was granted.

On June 19 counsel for the defence submitted that the accused was charged with possession. The court intervened and said that possession alone was not an offence and he would amend the charge as he had intended. It was amended to read:

"That you at about 1100 hours on the 17th day of December, 1979 at Shop No. 301, Seri Complex Bandar Seri Begawan, in the State of Brunei have in your possession 2 video cassette tapes for purposes of hire entitled 'The Punished Lovers' in that they contain the