CASE NOTES - S. 121 (5) C.P.C. — A Policemen’s Charter?

• Date: 01 December 1989
• Published date: 01 December 1989
• Author: AMARJIT SINGH
• Citation: (1989) 1 SAcLJ 106

S. 121 (5) C.P.C. — A Policemen’s Charter?

PP v Chan Sway Beng 1

PP v Chan Sway Beng is the latest of a series of cases 2 on both sides of the Causeway and in the State of Brunei which grapple with the complex issue of the admissibility of a confessional statement under section 122(5) of the Criminal Procedure Code3 to the police by an accused person whilst in custody.

In Chan Sway Beng’s case, Grimberg J.C. delivering the judgement of a two judge court in a capital case whilst rejecting the statement on the voir dire on the ground that the notice of warning under section 122(6) and the charge had not been explained to the accused, ruled against the defence on the issue of the admissibility of the statement referred to and canvassed as a preliminary point of law. In doing so, the court declined to follow the Brunei case of PP v Yator bin Bunta which rendered a statement made by an accused whilst in police custody as inadmissible and which had differed from the decisions in two earlier cases:-

1. (a) the Brunei High Court’s own decision by Roberts C.J. in PP v Zainal bin Ismail (which itself had not followed the decision of its judge, Garcia J. in PP v Emran bin Haji Md Noor; and

2. (b) PP v Ng Goh Weng decided by the Federal Court of Malaysia.

The Singapore court opined the judgments of Roberts C.J. and the Federal Court to be “right” and the position in Singapore “clearer”.

Roberts C.J.’s decision rests in the end on a teleological consideration, “but it is an express provision in the sense that it enacts a law which is in clear conflict with section 26 and which is unworkable unless it supercedes it”, a diametrically opposite stand to that taken in Yator’s case by O’Connor J where he had concluded after analysing the law that “there is no conflict between section 26 and section 117(1). They are not only reconcilable but are complementary” on what can be seen to include the deontological factor i.e. taking into consideration rights and principles.

The Federal Court in Ng Goh Weng’s case on the other hand simply held section 113(1) (equivalent of the Singapore section 122(5)) of the Code to be the exception expressly permitted by section 26 of the Evidence Act.

The Singapore court followed the interpretation given to the word “express” as given in the Privy Council case of Shanmugam v Commissioner for Regulations for Indian and Pakistani Residents4 which had also been cited in Yator’s case and held:

“In our judgment section 121(5) of the Criminal Procedure Code lets in a confession, whether or not made pursuant to section 121(6) so long as the maker has been charged and whether or not it is made while he is in police custody. That follows directly from the very wide language of the subsection”.5

In arriving at the above decision, the court pointed out that the Brunei Code’s section 117(1) was in significantly different terms in that it did not commence with the words as in the Singapore Code “where any person is charged with an offence ……“ and there was no proviso as appears after section 121(5) of the Singapore Code.

These points may be briefly answered by stating that the Brunei Code does contemplate a statement in respect of a person charged as the phrase “person is charged” appears in the body of section 117(1) whereas in the Singapore Code the phrase appears twice and hence the earlier use of the expression may be considered tautalogous. Further, the equivalent of our proviso in section 121(5) is in fact contained in section 117(2) of the Brunei Code which qualifies section 117(1) explicitly. In any case section 24 of the Evidence Act of both countries also cover the situation.

The court only conceded one obvious restriction on admissibility — that of a statement being obtained by inducement, threat or promise.

The court’s additional reason in support of its decision in favour of admissibility was that to agree with the defence submission and rule against admissibility would mean that the prosecution could apply to keep out a confession with exculpatory passages made by an accused whilst in custody. But an exculpatory statement or a statement with an exculpatory content would not be hit by section 26 of the Evidence Act by virtue of section 17(2) of the Act which defines a confession as an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed the offence.6

The grounds of admissibility of an accused’s confession whilst in custody is therefore narrowed down and confined to the court’s adoption of the interpretation of the word “express” in Shanmugam’s case — that the language of section 122(5) directly allows the admissibility of the statement and provides the necessary exclusion of section 26 of the Evidence Act.

The language in section 122(5) is indeed broad and emphatic and the inclination to give it a natural meaning as the court has done cannot be entirely ignored.

The court in coming to its conclusion does not consider and decide if section 26, an important provision in the Evidence Act must therefore be deemed to be impliedly repealed although this seems to be the...