These three appellants were among five persons charged with gang robbery under section 395 of the Penal Code. Of the other two one was acquitted. He was the younger brother of the first appellant. His defence, an alibi, raised some doubt in the mind of the learned trial judge who decided to give him the benefit of such doubt. The fifth accused was the one who had made a confession. He repeated it at the trial and was sentenced to two years imprisonment the judge taking into account his having made a clean breast of things. He has not appealed. Upon an amended charge of robbery, under section 392 of the Penal Code, these appellants were convicted and each sentenced to seven years imprisonment with six strokes of the rottan. They appeal against both conviction and sentence.

There are two common grounds of appeal against conviction: first, it was argued that the evidence of identification was unsatisfactory and secondly, that the confession of Ramasamy, the fifth accused, was not a confession and on that account should not have been taken into consideration against these appellants in the absence of other evidence clearly implicating them and each of them.

We think the most convenient and logical way to deal with these appeals is to start with the confession by Ramasamy. A confession, as defined in section 17(2) of the Evidence Ordinance, "is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence". The learned trial judge held, in our view quite rightly, that the statement by Ramasamy was a confession. It told of a robbery and of his own participation therein. More than that, he merely attempted to palliate his own offence by alleging that he acted under coercion. Of him the judge said, "He may not have been the villain of the piece but he did take part in the robbery". It follows that, so far as the self-exculpatory statements were concerned, the judge interpreted them as in no way negativing facts which constituted the offence. This, in our judgment, cannot be regarded as inconsistent with the pronouncement of Lord Atkin in Pakala Narayana Swami v King-Emperor [1939] MLJ 59, 66 IA 66, 81 that "no statement that contains self-exculpatory matter can amount to confession if the exculpatory statement is of some fact which if true would negative the offence alleged to have been committed". The allegation of coercion even if true (which it was plainly held not to be), was no defence: see section 94 of the Penal Code. In the instant case the offence was a robbery, nothing in the statement negatived the commission of such offence or the deponents participation therein, including his receipt of part of the proceeds of the crime. Consequently we hold that the statement was in the fullest sense a confession.

It carried full weight with the judge and we share the same view. It was wholly voluntary. It was made after he had caused himself to be taken into custody. What struck us most about the character of this confession is that in the telling no attempt was made to magnify the guilt of his confederates, in order that he might trade his own liberty for theirs. The inescapable fact here is that, whether or not it was true that he was an involuntary accomplice, his own guilt or innocence could not in any event have any bearing on their being answerable for the joint offence. This is important in evaluating the confession as contributing to the prosecution case.

Taking this view of the confession, it follows that section 30 of the Evidence Ordinance properly applies, so that the confession may be taken into consideration as against other persons jointly tried for the same offence who are affected thereby. In this connection, we would express our qualified agreement with the judgment of Ismail Khan J. (as he then was) in Public Prosecutor v Lai Pong Yuen [1968] 1 MLJ 12, 14 where he followed Bhuboni Sahu v The King AIR