Buttrose J:

The two appellants were convicted of being concerned in the delivery of uncustomed goods, namely, a large quantity of dutiable cigarettes which were not under customs control under s. 113(1)(a) of the Customs Ordinance, 1960, (No. 44 of 1960) hereinafter referred to as 'the Ordinance'. They were each sentenced to pay a fine of $5,000 in default 12 months imprisonment. The first appellant paid the fine but the second appellant did not and has now served more than half his sentence. They now appeal.

There were only two grounds of any substance argued on the appeal:

(1) That the learned District Judge was wrong in refusing the application made during the trial to view the locus in quo where, so it was said, the physical features were an important consideration in arriving at a decision on the material issues. With this ground was involved the general submission that on a proper appraisal of the prosecution evidence the police witnesses could not, at the time and in the circumstances, have seen what they allege they did; and

(2) That the learned District Judge erred in law in amending the charge to one under s. 113(1)(a) of the Ordinance which applies only to delivery from or in connection with ships.

With regard to the first point the position was that the offence was committed at 5.30 a.m. on 31 July 1962, just inside the entrance of a small lane off Phillip Street. A witness was called by the first appellant for the purpose of giving evidence as to what he was able to see when he went to the scene of the crime some months later at the same time. An attempt, apparently, was made to reconstruct the crime to some extent by the witness placing his car in the lane at or about the same position as the suspect car. This scene however was not enacted till 30 April 1963, some nine months after the offence was alleged to have been committed.

The learned District Judge held that this evidence was inadmissible and in my view his decision was right. It was not a question of what a witness could or could not see at the scene of the crime nine months later but what the police witnesses saw at half past five on the morning in question. It would in any event be impossible to ensure that precisely the same conditions prevailed on both occasions.

On the learned District Judge ruling that the evidence was inadmissible Counsel for the first appellant applied for a view. This was refused by the learned District Judge and in my judgment he was right in so doing. It is difficult to see what useful purpose could be served by such a course. Photographs depicting the locus in quo were before him and the locality and physical features were described by the witnesses. If we viewed the scene at 5.30 in the morning some ten months after the incident the same objections would apply as in the case of the witness and might indeed have led to an erroneous conception of the situation.

It was for the witnesses at the time and in the circumstances on the morning in question to say what they saw and whether the learned District Judge accepted their evidence.

There was ample evidence if accepted by the learned District Judge to establish that an offence under the Customs Ordinance had been committed by the two appellants. It is true there were contradictions in the evidence of the police witnesses but these were all before the learned District Judge and Counsel for the second appellant in his address at the close of the prosecution case specifically drew his attention to this matter.

After a thorough examination of the record I am quite satisfied that it was possible for the prosecution witnesses to see what they said they did and in this connection it must not be overlooked that the main prosecution witness said he had a torch light and shone it and furthermore dawn was breaking.

So much for this aspect of the case.

With regard to the second point the learned District Judge at the close of the prosecution case on 25 April 1963 amended