Public Prosecutor v Mazlan bin Maidun and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 31 December 1992
• Neutral Citation: [1992] SGCA 90
• Docket Number: Criminal Reference No 1 of 1992
• Date: 31 December 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: Bala Reddy (State Counsel) and Shanti Abdul Ghani (State Counsel)
• Citation: [1992] SGCA 90
• Defendant Counsel: Choo Han Teck as amicus curiae,JB Jeyaretnam (JB Jeyaretnam)
• Court: Court of Appeal (Singapore)
• Subject Matter: Constitution of the Republic of Singapore art 9,Constitutional Law,Fundamental liberties,Examination of witnesses by police pursuant to s 121(1) of Criminal Procedure Code (Cap 68),Statements taken by police from accused pursuant to s 121 of CPC,Right to remain silent,Whether such statements admissible,ss 121(1), (2) & 122(5)Criminal Procedure Code (Cap 68),Whether there was breach of constitutional rights in that accused was not told that he is entitled to refrain from stating anything which might expose him to a criminal charge,Evidence,Whether necessary to inform person examined of right to remain silent,Statements,s 121 Criminal Procedure Code (Cap 68),Inducement,Criminal Procedure and Sentencing,Statements taken pursuant to s 121(1) of CPC without administration of caution in terms of s 121(2)

The two accused were jointly charged with committing a murder on 25 March 1988 at about 2.30am on Bukit Timah Avenue. The body of the deceased was found lying on the road at 4am by police patrolmen. He had been stabbed to death with a single-edged knife just after he had emerged from a nearby gambling den.

In the early evening of 28 March 1988 the first accused was detained, arrested for the murder and then taken to the CID. There, he gave a statement at 10.30pm after being administered a warning as prescribed in s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`). The next day he led the investigating officer to a carpark in Toa Payoh where the deceased`s wallet was recovered from a covered drain. He made further statements in Malay on 5 April and 8 April 1988. Before each statement the interpreter informed him only that he was bound to state truly the facts and circumstances with which he was acquainted concerning the case.

At the trial, the first accused disputed the admissibility of all these statements. In particular, he contended that the statements he gave on 5 April and 8 April 1988 were inadmissible on the ground that they were not made voluntarily. He said that if he had known that he was entitled to avoid saying anything which might expose him to a criminal charge he would not have said anything.

On 31 March 1988 the second accused was brought to the CID and gave a statement there at 7.15pm. At 10.05pm he was arrested for the same murder. At 11.15pm he gave another statement. On 11 April and 19 April 1988 he made further statements. All his statements were, by consent, admitted in evidence at the trial.

The trial judges admitted the first accused`s s 122(6) statement after finding that it was made voluntarily. They decided however that the remaining statements were unsafe and should not be admitted. Their reasons for so deciding form the basis for this reference.

Essentially, the trial judges held that art 9(1) of the Constitution, which provides that no person shall be deprived of life or liberty save according to the law, also encompasses the right of silence, and s 121 of the CPC must be construed so as to give effect to this right. Further, the person questioned under this section must have a corresponding right to be told that he has a right of silence. Accordingly when a s 121 statement is sought to be admitted under s 122 (5), it must satisfy not only the conditions described in s 122 (5) but also the conditions read into s 121. The trial judges declined to follow PP v Tan Ho Teck 1 and PP v Chandran a/l Gangatharan & Ors [1989] 3 CLASNEWS 11 and held that a warning had to be administered whenever a statement was taken pursuant to s 121 of the CPC. Since the accused in this case was not told of his right of silence, they held that the s 121 statements were inadmissible. Moreover, he had been told that he was bound to talk, and had been in police custody for some time, before those further statements were taken; this was an alternate basis fortifying the conclusion that the statements were inadmissible.

The Attorney General, pursuant to s 265(3) of the CPC, certified three points of law for the consideration of the Court of Criminal Appeal. These were:

(1) Whether a suspect or an accused must be expressly informed of a right to remain silent whenever any statement is recorded from him pursuant to s 121 (2) of the CPC.

(2) Whether a failure to so inform him is a breach of his constitutional rights under art 9(1) of the Constitution.

(3) Whether any statement recorded from a suspect or an accused under s 121(1) and sought to be admitted in evidence under the provisions of s 122(5) of the CPC cannot be so admitted if no caution has been read to him in terms of s 121(2) of the Code.

We answered all three questions in the negative and now give our reasons for doing so. It is helpful to set out here the terms of s 121.

(1) A police officer making a police investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined.

(2) Such person shall be bound to state truly the facts and circumstances with which he is acquainted concerning the case except only that he may decline to make with regard to any fact or circumstance a statement which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) A statement made by any person under this section shall be read over to him and shall, after correction if necessary, be signed by him.

Section 121 contains one of several special powers of investigation given under Chapter XIII of the CPC. Under s 121(1), power is given to police officers making police investigations to examine a person and to compel him to answer questions. Conditions are prescribed in ss 121(1) and (3) for the use of this power so as to ensure the reliability of the statements recorded: a statement must be reduced into writing, read over to the witness and he must then sign it. Furthermore, the exception contained in s 121(2) applies as a limitation upon that power of compulsion.

Express statutory provisions that required a caution to be administered in equivalent circumstances were contained in the `Rules Relating to Statements From Accused Persons` inserted in the CPC [Cap 113, 1970 Ed] in 1960, known as the `Schedule E` rules. Rule 6 of Schedule E expressly required the accused in custody to be cautioned that he was not obliged to say anything.

The caution to be administered to a prisoner when he is formally charged shall be in the following words - `Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.`

However these rules were revoked by Act No 10 of 1976. The history of this legislation has recently been dealt with by this Court in Mohamed Bachu Miah & anor v Public Prosecutor [1993] 1 SLR 249 , and the conclusion was [at p 265]:

What then is the effect of the repeal of the previous proviso (b) to s 121(5), that is, the inadmissibility of a statement by a person under arrest which was not recorded in substantial compliance with Schedule E ... ? As stated before, in the context of s 121(5) as it stood before the 1976 amendment, the proviso operated as a limitation on the general scope of that provision. We have stated that s 121(5) was intended to apply to statements made by a person while under police custody; otherwise there would have been no need to impose restrictions of the kind set out in the proviso. If this is the correct construction of s 121(5), as we think it is, then the repeal of the second limb of the proviso could not have further restricted the scope of that subsection. On the contrary, it can only mean that the applicability of s 121(5) is further widened and that the only circumstance where a statement made by an accused, whether in police custody or not, may not be admitted in evidence is where it is tainted by inducement, threat or promise.

The removal of the restriction against the admission of statements made by a person under arrest if such statement were not recorded in substantial compliance with Schedule E, and in particular for present purposes with rule 6, was therefore in our judgment intended to render such statements admissible so long as they are not tainted by inducement, threat or promise. For these reasons we answered the first question in the negative.

In so doing, it must follow that the second question should also be answered in the negative. There are, however, other independent reasons contributing to this. Article 9(1) of the Constitution does not in fact refer to a `right of silence` or a `privilege against self-incrimination`. Indeed there is no specific constitutional or statutory provision protecting such a `right` or such a `privilege`. Article 9(1) provides:

No person shall be deprived of his life or personal liberty save in accordance with law.

Its reverse side is that a person may be deprived of life or personal liberty in accordance with law. The deprivation of life and personal liberty subsequent to conviction is provided for in the penal statutory provisions. In the process of...