JUDGMENT

Faiza Thamby Chik JC:

The issue here is simply this. Can the prosecution be permitted after closing their case but during the case for the defence to use the cautioned statement of an accused person which has not been introduced at the prosecution stage to impeach his credit during the course of his cross-examination by the prosecution?

In this trial, the 1st accused Wong Yee Sen with four others is facing a charge of dangerous drug trafficking under s. 39B(1)(a) of the Dangerous Drugs Act 1952.

At the end of the case for the prosecution, I ruled that a prima facie case has been made out and I called upon the accused together with the other four accused persons to enter upon their defence.

Then at this stage of the proceeding, the defence applied for this ruling on the cautioned statement of the 1st accused as well as those three others which have not been part of the evidence for the prosecution who have already close their case.

I then proceeded to hear the submissions on the defence's application for a Court ruling as to whether the prosecution is permitted to use the cautioned statement of the 1st accused to impeach his credit; the cautioned statement not being part of the prosecution's substantive evidence.

In his submission, Mr. Gurbachan Singh Pannu submitting on behalf of the other four defence Counsel applied for a Court's ruling as to whether the prosecution is permitted to use the cautioned statement of the 1st accused to impeach his credit as stated in s. 37A of the Dangerous Drugs Act 1952, after not having used the cautioned statement as part of the case for the prosecution in evidence. The learned Counsel submitted that the prosecution could not be allowed to do so unless the cautioned statement was used as substantive evidence earlier in the case for the prosecution. He quoted me two main cases in support of his contention:

(1) PP v. Teng Chen Choi [1989] 2 CLJ (Rep) 377;

(2) PP v. Peh Ning Ning FTCT No. 46/86 (unreported)

Both are the decisions of the Honourable Mr. Justice Mahadev Shankar. He also submitted that s. 37A of the Dangerous Drugs Act 1952 should be read conjuctively.

Mr. W.P. Leong, Counsel for the 2nd accused submitted that the prosecution having offered the four recording officers who recorded the cautioned statements of the other four accused persons to the defence, it is up to the defence to use the cautioned statements or not.

In his submission, the learned DPP, Encik Jalaludin Saleh, submitted that the two main authorities submitted by the defence are those of High Court rulings and therefore he said are not binding in this Court. He again submitted that s. 37A of the Dangerous Drugs Act 1952 should be read disjunctively and stressed that s. 37A(1) inter alia states:

... if such person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit.

The submissions were made on 26 June 1989, the 23rd day of the trial.

When the Court met again on 29 June 1989, the 24th day of the trial, I ruled that that was not the appropriate stage as it was not necessary for me to make such a ruling as the occasion has not arisen yet at this stage for such a ruling.

Then on 27th day of the trial, that is on 1 November 1989, the prosecution in the course of cross-examining the 1st accused asked, "Did you make a cautioned statement to the police?" 1st accused answered, "Yes, I did." "What did you tell the police in the cautioned statement?" At this stage, defence Counsel Encik Gulam Mustaffa, Counsel for the 1st accused objected to the question because he said that the cautioned statement has not been admitted in evidence and a ruling by me is yet to be made on this matter. In the circumstances, the learned DPP withdrew the question in expectation of this ruling.

In PP v. Teng Chen Choi [1989] 2 CLJ (Rep) 377, Mr. Justice Mahadev Shankar said:

It was not open to the prosecution to utilise the cautioned statement to impeach the accused's