Wan Suleiman FJ:

When I dismissed the appeal I did not think that this matter called for any written grounds of judgment, but since the allowing of the Public Prosecutor's motion for issue of a certificate under s. 66 of the Court of Judicature Act I now feel that it would only be proper to state why I dismissed this appeal.

The respondent was tried before the Sessions Court, Kuala Lumpur on the following charge:

That you on 25 June 1974 at about 2.50 p.m. at No. 16, Hale Road, in the City of Kuala Lumpur, did have in your possession an offensive weapon, to wit a 'Kerambit' knife otherwise than with lawful authority, and that you have thereby committed an offence punishable under s. 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance No. 43/58.

It should be noted here that the words "or for a lawful purpose" which appears in s. 6(1) of the Ordinance was omitted, though any charge under that subsection which left out these words would be defective. However, both the notes taken by the learned president and his grounds showed that neither defence Counsel nor the learned president had failed to note the omission, and indeed the defence was that the possession of this offensive weapon was for a lawful purpose.

In the Sessions Court prosecution called two witnesses, the P.C. who made the arrest, and the Investigating Officer who was no doubt called to produce formally the exhibits handed over to him.

Over the objection of the prosecuting officer who said that prosecution did not intend to tender the cautioned statement the Investigating Officer had recorded from respondent and that it could only be used to impeach the credit of respondent, an eventuality which had not arisen at that stage defence Counsel was successful in persuading the Court to order its production. Counsel had relied on the wording of s. 75 of the Internal Security Act, 1960 under which the statement was recorded. Since the prosecution had never suggested that the respondent had not been properly cautioned or had not made the statement voluntarily, it was argued that the statement shall "be admissible at his trial in evidence".

The statement was duly marked Exh. P3. I shall not comment on the appropriateness of it being given a marking which would suggest that it was a prosecution exhibit since the point was never raised during the appeal.

At the termination of the cross-examination of the Investigating Officer by defence Counsel, prosecutor closed his case.

The learned president acquitted respondent without calling upon him to make his defence. In his grounds of judgment he referred to the cautioned statement P3 in which accused had stated that he had brought P1 from Changkat Stadium. It is clear from his judgment that he accepted defence Counsel's submission that from this fact it could be inferred that he had the weapon for a lawful purpose and further that there was no evidence of its use for an unlawful purpose. It should be noted that the prosecuting officer did not challenge the correctness of this inference.

The main ground of appeal is whether a cautioned statement such as the present one recorded in accordance with s. 75 of the Internal Security Act, 1960 is admissible in evidence where the prosecution for reasons of their own does not wish to produce it as part of the prosecution case.

The relevant part of s. 75 reads:

(1) Where any person is charged with any offence against this Act or against any written law for the time being specified in the Second Schedule any statement, whether such statement amounts to a confession or not ... shall notwithstanding anything to the contrary contained in any written law, be admissible at his trial in evidence and, if such person tenders himself as a witness, any such statement may be used in impeaching his credit.

It seems to me that there can be no doubt that once it is established (or as in this case not denied, indeed tacitly admitted) that the statement was (a) vo