Bellamy J:

At the conclusion of the arguments I dismissed this application intimating that I would give my reasons in writing at a later date. I now proceed to do so.

This was an application by motion under s. 310 of the Criminal Procedure Code of the Federated Malay States (hereinafter referred to as "the Code") for an order that the petition of appeal filed herein on the 6 October 1954 be amended by adding the new grounds of appeal as contained in the notice of motion.

The appellant was charged on the 23 August 1954 in the Sessions Court at Kuala Lumpur on a charge of driving a motor car whilst under the influence of drink to such an extent as to be incapable of having proper control of the said vehicle, contrary to s. 6(1) of the Motor Vehicles (Driving Offences) Proclamation.To this charge the appellant, who was unrepresented, pleaded guilty.He was convicted and sentence was postponed to the 26 August 1954.On the 26 August 1954 the appellant was sentenced to one month's imprisonment and disqualified from holding a driving licence for one year.

The appellant lodged a notice of appeal against sentence on the same day and upon his application to be released on bail pending the hearing of the appeal he was admitted to bail on the same day.On the 29 September 1954 a copy of the learned President's grounds of decision was served upon the appellant, and on the 6 October 1954 he lodged his petition of appeal.This petition of appeal was settled by an experienced member of the Federation Bar, and it was based on two grounds which were fully set out.These grounds were, firstly, misdirection by the learned President on a point of law relating to sentence; and secondly, severity of sentence.On the latter ground no fewer than seven factors in mitigation of sentence, none of which was raised by the appellant in the Sessions Court, were pleaded as a ground or grounds for altering the sentence of imprisonment imposed by the learned President.

On 20 October 1954, that is, within two days of the hearing of the appeal, as the learned Deputy had previous to that date intimated that he would object to the proposed amendments of the petition of appeal being argued at the hearing of the appeal, the appellant's present solicitor filed this motion.

The proposed amendments of the petition of appeal read:

3. That the learned President erred in law in convicting the accused in the complete absence of an essential ingredient to the offence namely any evidence that the extent of the intoxication was such as to render the appellant incapable of having proper control of his motor car.

4. That the learned President was wrong in law in not amending the plea of guilty to one of not guilty when the appellant made a statement in mitigation which was inconsistent with his plea of guilty.

5. That the learned President erred in law in not calling for evidence or information regarding the background antecedents and character of the appellant before passing sentence upon him.

The grounds of the motion, as shown in the affidavit in support thereof sworn to by the appellant's present solicitor, were that the appellant's present solicitor was retained to represent the appellant at the hearing of his appeal on the 19 October 1954 (that is, after the time fixed for lodging the petition of appeal had expired) and that, having perused the record of the proceedings, he, the appellant's present solicitor, was of opinion that such further grounds of appeal should be filed.

In opposing the motion the learned Deputy submitted that to succeed the appellant had first to satisfy the Court that there were substantial reasons why the proposed amendments were omitted from the petition of appeal which was lodged on the 6 October 1954, and that the reason adduced, namely, that in the appellant's Counsel's opinion such amendments should be filed, was not sufficient.In support of his submission he cited the decisions in the Court of Criminal Appeal in England in the cases of Ri