STATEMENTS UNDER SECTION 122 (6) OF THE CRIMINAL PROCEDURE CODE (CPC): SOME OBSERVATIONS
| Citation | (1991) 3 SAcLJ 238 |
| Author | PATRICK NATHAN |
| Date | 01 December 1991 |
| Published date | 01 December 1991 |
Recent decisions1 by the Court of Criminal Appeal and the High Court in Singapore have substantially elucidated the law relating to statements made under Section 122 (6)2 of the CPC. There is no statutory definition of the word “statement” appearing in Section 122 of the CPC, but subsection (6) envisages a written statement in view of the exhortation “If you wish to mention any fact now, and would like to have it written down, this will be done”.
A statement whether or not it is purported to have been made under Section 122 (6) of the CPC is admissible in evidence so long as Section 122 (5) is satisfied. Section 122 (6) itself does not provide for the admissibility of statements recorded thereunder. That section 122 (5) governs the admissibility of statements under 122 (6) is indicated by section 122 (7), which reads:—
“(7) No statement made by an accused person in answer to a written notice served on him pursuant to subsection (6) shall be construed as a statement caused by any inducement, threat or promise as it is described in the proviso to subsection (5) if it is otherwise voluntary.”
The rationale in requiring a statement under Section 122 (6) is stated in Section 123 (1) of the CPC.
“123.—(1) Where in any criminal proceedings against a person for an offence, evidence is given that the accused, on being charged with the offence or officially informed that he might be prosecuted for it, failed
to mention any fact, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so charged or informed, as the case may be, the court, in determining whether to commit the accused for trial or whether there is a case to answer, and the court, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper: and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.”
(emphasis added).
In such a case, the statement is admitted as evidence of the failure by the accused to mention a fact which in circumstances existing at the time he could reasonably have been expected to mention when so charged or informed thereby enabling the court to draw such inferences as appear proper.
Non-compliance with Section 122 (6) enables the court having to take such non-compliance into consideration when deciding what inferences, if any at all, should be drawn from the failure of the accused to mention certain facts.
The court may consider non-compliance with Section 122 (6), such a defect that it will not draw any inferences from the failure of the accused to mention certain facts. On the other hand, non-compliance may be trivial in nature eg. a non-material typographical error and the court will not in such a case be prevented from drawing such inferences as appear proper.
The test is whether it could be said that the circumstances existing at the time when the Accused was charged with the offence or officially informed that he might be prosecuted for it, were such that he could not as a result of the non-compliance with Section 122 (6) be reasonably have been expected to mention certain facts to which he was relying in his defence in court.
It is also to be noted that a cautioned statement such as 122 (6) statement, which amounts to a confession but retracted at a trial can be used to convict the accused person if the court is satisfied of the truth: Ismail bin U.K. Abdul Rahman v P.P.3
In the case of Tsang Yuk Chung v. PP,4 the Court of Criminal Appeal made some observations on the requirement that the notice in writing “shall be explained”. The court noted that while those words confer some measure of protection for an accused person whose right of silence has been affected, albeit not removed, by the enactment of Section 122 (6) and 123 (1) of the CPC — and such protection was important especially if the accused person is uneducated or illiterate — it could, in their opinion, create some unnecessary problems eg. what the mandatory explanation should consist of. Should the explanation involve an explanation of the law relating to the offence which is the subject matter of the charge? If so, are police officers competent to give such explanations? What is the effect if they err in their explanations etc? Furthermore the mandatory explanations do not seem to be exempted by Section 122 (7) from being any inducement, threat or promise as is described in the proviso to Section 122 (5). This is important, as the court was of the view that explanations may be challenged as being “inaccurate, or even outright wrong…”.
The court held that in its opinion the requirement is satisfied if an accused person is told in general terms what the charge and warning means. Since accused persons differ in background, what form the explanation should take must ultimately depend on the facts of each case.
In Public Prosecutor v. Tan Boon Tat5 the trial court held that the word ‘explain’ should be construed in a broad sense manner. To ‘explain’ is to make one understand. If an accused is made to understand the substance of the charge and the adverse implication of not stating any fact which might assist his case in definite, that subsection would have been complied with. It is clearly not intended by that section that the recording officer should explain the ingredients of the charge. If the accused does not read English and the charge is accurately interpreted to him in a language which he understands, it would amount to an explanation to him of the charge. The accused would have understood from the interpreter the substance of the charge.
If the actual wording in the notice or warning appears defective would it nullify that notice? This appeared to be the contention raised in the case of Public Prosecutor v. Chia Chee Yee.6 In that case the actual wording used
by the Inspector was ‘You have been charged with that you may be prosecuted for’. Counsel for the accused made the point that for a statement to be admissible under that provision the person must have been charged with the offence or has been officially informed that he may be prosecuted for it. He submitted that the wording used by the investigating officer was “obscure” as it sought to combine two alternative situations into one, a defect which rendered the whole statement inadmissible. It was held by the trial court, both Justice Coomaraswamy and Chao Hick Tin, Judicial Commissioner (as he then was), that since the statement given by the accused was voluntarily made without any inducement, threat or promise, the accused was not misled by slight deviation in the wording of the notice read to him.
It would appear that the test of admissibility is based on the statement being voluntary rather than on defects in language or expression. However, the observations made in Tsang’s case must be borne in mind and in particular the Court of Criminal Appeal’s judgment regarding “a non — material typographical error” (emphasis mine.)
In the case of Public Prosecutor v. Tan Boon Tat (supra), defence counsel objected to the 122 (6) statement tendered by the prosecution as, inter alia, no proper warning was given to the accused. It was argued that if the notice of warning was explained to the accused, the recording officer would have said so in the statement. The court held that the admissibility of the statement was not governed by Section 122 (6) but 122 (5) of the CPC and in the case of statements made to narcotics officers, by the Evidence Act.
A failure to explain the charge and warning to the accused cannot afford a reason for excluding the statement made by the accused which is otherwise admissible. The purpose of Section 122 (6) of the CPC is to inform the accused of the charge he is facing and to give him an opportunity of stating any fact which he intends to rely in his defence in court and further to warn him that if he does not state it then, his silence may give rise to an adverse inference against him. If a statement is made by the accused, the failure to comply with Section 122 (6) may affect the weight to be attached to it.
A statement on being admitted in evidence has yet to be considered and tested as for its probative value eg. “whether it is inherently credible or inherently consistent with the facts and circumstances”, and in such an exercise a failure to observe the procedure prescribed in Section 122 (6) can be a relevant factor. If...
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