Willan (Malayan Union) CJ:

The appellant, a youth of eighteen years of age, was charged with, and pleaded guilty to, the offence of carrying arms contrary to s. 3(1) of the Public Order and Safety Proclamation No. 50, promulgated on 31 January 1946 s. 3(1) reads as follows:

Any person who carries arms shall on conviction be punishable with death or with penal servitude for life or with imprisonment for a term which may extend to ten years and shall also be liable to a fine.

In the same proclamation "arms" is defined as including "any fire-arm, airgun, air-pistol, automatic gun, automatic pistol and any other kind of gun or pistol from which any shot, bullet or other missile can be discharged or noxious fumes can be emitted, and any kind of fire-arm whether of the same kind as those enumerated or not and also includes any hand grenade".

The facts of this appeal are that the appellant was challenged by a Detective Sub-Inspector at 9.40 p.m. on the 1 May 1946, on a road which lay on the outskirts of the town of Ipoh.When challenged the appellant at once threw a revolver on the ground and tried to make away.The Detective Sub-Inspector arrested the appellant, picked up the revolver and found it loaded with six rounds of ammunition.Both the revolver and ammunition were in a serviceable condition.

After the appellant had been convicted on his plea of guilty and prior to sentence, Crown Counsel read out in Court a statement which the appellant had made to the police after his arrest.In that statement the appellant had admitted that he was carrying the revolver for the purpose of committing robbery.In his grounds of judgment the trial Judge states that he was partly influenced by this motive in sentencing the appellant to death.

The appellant has appealed against sentence on three grounds:

(a) His youth.

(b) That he has no previous convictions against him;

(c) That the trial Judge was wrong in taking into account the statement made by the appellant to the police, because such statement is not admissiable in evidence.

Dealing with ground (c) first, this raises the important point as to whether a statement made to the police by an accused person can be used by the prosecution at his trial for the purpose of demanding a severe sentence.

The relevant provisions of the law dealing with the use to which statements made to the police can be put are contained in s. 113 of the Criminal procedure Code , which is as follows:

113(i) No statement made by any person to a police officer in the course of a police investigation made under this chapter shall be signed by the person making it, nor shall such statement, save as herein provided, be used in evidence.

(ii) when any witness is called for the prosecution or for the defence, other than the accused, the Court shall on the request of the accused or the prosecutor refer to any statement made by such witness to a police officer in the course of a police investigation under this Chapter, and may then, if the Court thinks it expedient in the interests of justice direct the accused to be furnished with a copy thereof, and such statement may be used to impeach the credit of such witness in the manner provided by the Evidence Enactment.

(iii)Nothing in this section shall be deemed to apply to any statement falling within ss. 27 and 32(i) of the Evidence Enactment.

(iv)When any person is charged with any offence in relation to the making or contents of any statement made by him to a police officer in the course of a police investigation under this Chapter such statement may be used as evidence in such prosecution.

Clearly, by sub-section (i) and (ii) statement made by the appellant to the police would not have been admissible in evidence, and if the appellant had not pleaded guilty, it could not have been proved in evidence against him at his trial.Since he pleaded guilty, do the provisions of s. 113 of the Criminal Procedure Code prevent the prosecution making use of such statement after conviction and before s