Right against self incrimination

1. SILENCE WHEN QUESTIONED BY NON-POLICE

An issue arises as to whether an adverse inference may be drawn from Xs silence in the face of Ys
accusation
Under the common law, A has the right of silence because no man is bound to accuse himself. This
common law right is preserved under s 261(2)(b) of the CPC (Tan Khee Koon)
However, an adverse inference may be drawn from As silence if he was confronted with an
accusation made by a person speaking on equal terms, and an answer could be reasonably
expected (Parkes, followed in Tan Khee Koon)
o Based on the rationale that a person on equal terms will not have the power to compel A to
speak, hence the policy regarding abuse of state power is not applicable.
o Hence, if A is asked by a passer-by whether he had committed the crime, he is reasonably
expected to defend himself against the accusation, and his failure to answer could be
evidence of guilt.
o Conversely, the accuseds silence would NOT be evidence against him if the question was
asked by a person in authority over him.

Therefore the issue is whether X & Y are on equal terms

o Alternatively: On the facts of the case, even though X & Y are on equal/non-equal terms, it
was reasonable/unreasonable to expect an answer because

Cases
Parkes
o A allegedly killed W1s daughter
o W1 testified she found daughter seriously injured with stab wounds, she confronted Df, a
neighbour in same compound, and said, "what she do you why you stab her?"
W1 repeated the question, but A refused to answer and tried to stab her when she
threatened to detain him till the police arrived
o At trial, A alleged that he didnt reply because he didnt know what W1 was talking about
o At PC, Lord Diplock cited R v Micthell, and held that this was a case where "a charge is
made against a person in that person's presence (and it was) reasonable to expect that
he will immediately deny it, and that the absence of such a denial is some evidence of an
admission on the part of the person charged, and of the truth of the charge.
Undoubtedly, when persons are speaking on even terms, and a charge is made,
and the person charged says nothing, and expresses no indignation, and does
nothing to repel the charge, that is some evidence to show that he admits the
charge to be true."

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 Tan Khee Koon
o A was a police officer who accepted bribes from a company director who was under
investigation for criminal breach of trust;
When the company director was arrested, he made accusations that he had paid A
bribes; A remained silent
At trial, P relied on As silence upon being confronted by the director
o At CoA, Yong CJ held that:
All that s 123(3) does is to leave the position as it stands at common law, where
the effect of silence is dependent upon the status of the accuser with respect to
the accused (citing the position in Parkes)
It is only if the relationship is equal that the silence may be taken as
evidence of the allegation.
On the facts, as the complainant was not superior to the appellant, and was
actually in an inferior position, the inference from silence was possibly that
the allegations were true.
However, such inferences are very much dependent on the circumstances.
In this case, the judge was satisfied that such an inference could be drawn.
This court is content to leave it at that.

R v Chandler
o It was held that context determines relative equality of status between accused and police.
There, the police interviewer and the accused were speaking on even terms
because the accused was in the presence of his solicitors.
E.g. a young detective questioning a local dignitary in an inquiry into alleged local
government corruption may be very much at a disadvantage.

Evaluation
HHL argues that the common law position is illogical because it is equally plausible that A might
think that the other person has no right to accuse him or that he should not be compelled to reply
the accuser.
o Conversely, if a person in authority accuses a party of a crime, there would then be greater
reason for the accused to protest his innocence by replying.
CTY argues that the common law test is unsound because even terms is too imprecise a term to
rely on rather, the focus should be on the words where an answer could be reasonably
expected (s 261(1) of CPC).
o The question to ask is under what exceptional circumstances can one reasonably expect
a person to answer such that a failure to respond equates to an admission of guilt
As such, a question being asked by a person on even terms is merely just one
possible circumstance where one can reasonably expect a response, but is not
determinative as a general rule.
Another possible example where it is reasonable to expect an answer could be
when A was accompanied by counsel

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A. Admission of Circumstances/Conduct for Implied Admissions
(S 8(2))

S 8(2) of the EA arguably renders conduct of A admissible if such conduct influences or is

influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
o Illustrations
o (f) The question is whether A robbed B. The facts that after B was robbed, C said in As
presence: The police are coming to look for the man who robbed B, and that
immediately afterwards A ran away are relevant.
o (g) The question is whether A owes B $10,000. The facts that A asked C to lend him
money, and that D said to C in As presence and hearing: I advise you not to trust A for he
owes B $10,000, and that A went away without making any answer, are relevant facts.
o (h) The question is whether A committed a crime. The fact that A absconded after receiving
a letter warning him that inquiry was being made for the criminal, and the contents of the
letter, are relevant.
However, HHL cautions against this: EA illustration (g) is not about ROS, is not about commission of
a crime. Special context of being questioned by police officer means CPC should apply and not s
8(2)
o But if its a case where its not a police questioning X and Xs conduct does not necessarily
constitute silence, it may be permissible under Illustration (g).

B. Presumption of Fact under s 116

Under s 116, the court is allowed to presume that if a man refuses to answer a question which he is
not compelled to answer by law, the answer if given would be unfavourable to him (s 116
illustration (h) of EA).

2. SILENCE WHEN QUESTIONED BY THE POLICE BEFORE CHARGE S

22, 261(1) OF CPC

A. If it is a Pre-S 23 Long Statement

An issue arises as to whether an adverse inference (AI) may be drawn from Xs failure to mention his
defence in his long statement made prior to a S 23 cautioned statement
o Generally speaking, no AI may be drawn from As silence in a long statement because he
has a right against self-incrimination under s 22(2) of the CPC (Kwek Seow Hock)
S 22(2) states that A need not say anything that may expose him to a criminal
charge, penalty or forfeiture
This makes sense because the suspect & the police are not on even terms
However, the right is weak in two respects:
[1] He risks incurring evidential disadvantage at trial if he exercises this
right (under s 261(1);
o Power to draw an adverse inference is conferred by s 261(1), and is
expressly confined to the situation where A fails to mention a
matter relevant to his defence on being charged with an

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 offence, or informed by a police officer that he may be
prosecuted for an offence
[2] Police do not have to inform him that he has this right (Mazlan)
A failure to explain to A that he has the right to remain silent pursuant to s 22(2) does not render
the statement inadmissible, and is not a breach of his constitutional rights under Art 9(1) of the
Singapore Constitution (Mazlan).
S 261(1) of the CPC arguably allows the drawing of adverse inferences if A fails to mention a
material fact of his defence, which he could reasonably have been expected to mention when
questioned, charged or informed.
An adverse inference will be drawn only if he fails to mention facts which he could reasonably have
been expected to mention upon being charged. (Terence Yap)
Per Kwek, this also encompasses s 22 statements made after the s 23 warning has been given.
o This is justified because A would have been warned of the consequences of not mentioning
material facts when his s 23 statement was taken.

Yes, AI Should be Drawn

Under s 261(1), it is arguable that the court is allowed to draw an AI if A fails to mention a matter
relevant to his defence which he could reasonably have been expected to mention when
questioned, charged or informed
o It is unclear whether questioned in s 261(1) includes s 22 long statements.
o In Kwek Seow Hock, CoA affirmed TJs decision, albeit without the use of the adverse
inference, and stated that it is entitled to disbelieve exculpatory statement that he had the
drugs in his possession for his own consumption because he had failed to mention such a
defence in his s 22 statements.
At [18]-[19]: Since A has a PASI under s 22, no adverse inference in general may be
drawn against him for failing to state any fact or circumstance which may
incriminate him in any way.
However, if the fact or circumstance withheld would exculpate A from an
offence, a court may justifiably infer that it is an afterthought and untrue,
unless the court is persuaded that there are good reasons for the omission
to mention the exculpatory fact or circumstance
Therefore, on application of the narrow Kwek rule (AI for exculpatory facts, but not inculpatory facts
withheld), the court may justifiably infer that (defence/exculpatory fact) is an afterthought and
untrue since X had no good reason for withholding the fact when giving his s 22 statement.
o Possible good reasons?
See Below
Intellectual capacity/state of mind Im not a lawyer, how would I have known its
exculpatory?
Some defences, such as sudden fight or diminished responsibility are both
inculpatory & exculpatory at the same time
KSH acknowledges that if a disclosure may expose A to a criminal charge, it
should attract privilege the conundrum here is that the fact that A had
intended for half the diamorphine to be for his own personal consumption
is inculpatory towards the offence of consumption, but exculpatory
towards the offence of trafficking still not protected by privilege
o Not a good reason

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 Was not informed of his s 22(2) RASI
Per Mazlan, the court was clear that under s 22 of the CPC, the polices
failure to inform a suspect who they question under s 22 of their s 22 rights
does not render his statement inadmissible at trial
Extra Evaluation: Law used to be different before the 1976 amendments,
r 3 of Sched E prohibited the questioning of persons in custody without
first giving them the standard caution set out in r 5.
However, despite the Law Societys best efforts to call for
the introduction of a legal requirement that the police
inform the suspect whom they wish to question under s 22
of his privilege against self-incrimination back in 2009,
Parliament was content with the law as it stood
Wanted to consult lawyer (Terence Yap)
Also in Lim Benny explanation that his brother told him he would engage
a lawyer and therefore A did not think it was important to mention the bag
contained counterfeit money was not accepted

Cases

Kwek Seow Hock v PP [2011] 3 SLR 157

Facts
A was arrested by CNB officers with 46 packets of diamorphine contained 25.91g
o Under s 17 of the MDA, presumption that A had the packets in his possession for the
purposes of trafficking
o In the long statements recorded pursuant to s 22 of the CPC, A stated that all the drugs
were for sale and that he had been instructed to deliver the packets and $6,650 in cash
to someone at Hougang
At trial, A claimed that he had intended to retain half of the packets for his own consumption
o This would reduced the quantity of diamorphine trafficked to be under the 15g
threshold for capital punishment
o However, he failed to mention the defence of consumption in both his long statements,
as well as his cautioned statement recorded pursuant to s 23 of the CPC

/held/
Under s 23 of the CPC, a person when charged with an offence or officially informed that he
may be prosecuted for an offence, has to be served with a notice informing him that if he holds
back any fact that he intends to rely on in his defence till he goes to court, his evidence may be
less likely to be believed (at [13])
o Basis for court to draw adverse inferences from a failure to mention material facts when
subjected to this caution can be found is s 261 of the CPC
o On the facts of the case, A omitted to mention the defence of consumption in his
cautioned statement
TJ cited Lim Lye Huat Benny there could be a plausible explanation for As
failure to mention his defence in his s 23 statement. It was early in the morning,
and he probably did not have any rest or food at the time the statement was

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 recorded. Additionally, he was probably feeling unwell due to his craving for
heroin and his consequent withdrawal symptoms.
In Lim Benny, court accepted As contention that no adverse inference should
be drawn against him with respect to his cautioned statement as it had been
recorded at an unearthly time when he had been too tired & hungry to think of
his defence
However, in this case, TJ did draw AI found that at the time where A was
giving his s 22 statement, it should have been apparent that it would be
important to state material aspects of his defence, such as that half of the
packets were for his own consumption
Rejected explanation that A was suffering from inner restlessness and
that his mental faculties were still affected at the time his statement was
recorded not his first time being charged with drug trafficking, and
should have known that the fact that he intended to keep half of the
drugs for consumption would be an important factor in his defence to a
drug trafficking charge
Two more opportunities to mention defence when further statements
recorded did not do so
Similar to the adverse inference drawn with reference to As failure to mention
his belief that he was carrying counterfeit money in Lim Benny explanation
that his brother told him he would engage a lawyer and therefore A did not
think it was important to mention the bag contained counterfeit money was not
accepted
At [17]: Court not always entitled to draw AI from failure to disclose material fact in a s 22 long
statement
o Because s 22 allows A to withhold mentioned any fact or circumstance that, if disclosed,
may incriminate him, A is bound to state truly the facts and circumstances with which
he is acquainted concerning the case, except that he may decline to state any fact or
circumstance which would incriminate him in any way (at [18])
Therefore no adverse inference, in general, may be drawn against him for
failing to state any fact or circumstance which may incriminate him in any
way
o However, if the fact or circumstance withheld will exculpate A from an offence the court
may justifiably infer that it is an afterthought and untrue, unless the court is
persuaded that there are good reasons for the omission to mention that exculpatory
fact or circumstance (at [19]) in fact, you have no right to withhold the disclosure of
these facts under s 22(2)***, this doesnt mean you have a right to draw AI, but thats
the basis of his argument
Accords with common sense if A believes he is not guilty of an offence that
he might be charged with, he would be expected to disclose why he has such
a belief
In this case, for a self-confessed trafficker like A, consumption would be an
exculpatory fact, and more credible if disclosed to an investigating officer at
the earliest opportunity after arrest
A claims he did not do so as he thought it would be of no use rejected by
Judge

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 o However, even if court did not draw AI against him for omitting to mention this material
fact earlier court is entitled to disbelieve his evidence as not being credible in
circumstances

PP v Mazlan bin Maidun [1992] 3 SLR(R) 968 no duty to inform A of privilege

Facts
As were charged with murder
During trial, TJ ruled that A1s statements to the police under s 121 of the CPC (now s 22) pf
the CPC were inadmissible
o Statements were made in Malay
o Before each statement, interpreter informed him that he was bound to state truly
the facts & circumstances of the case, but not that he was entitled to refrain from
stating anything which may expose him to a criminal charge
TJ refused to admit statement on Art 9(1) of the Constitution, which provides that no person
shall be deprived of life or liberty, save according to the law on the basis that the law also
encompasses the right of silence as a rule of natural justice, and s 22 must be construed so
as to give effect to that right
o Further, this also means that a person questioned under this section must have a
corresponding right to be told that he had a right of silence
o Therefore a s 22 statement must not only satisfy the voluntariness test, but must also
satisfy the conditions read into s 22 so a warning must be administered whenever a
statement is taken pursuant to s 22
AG certified 3 points of law for the CoA to consider:
o [1] Must A be expressly informed of her right to remain silent whenever a statement
was recorded from her pursuant to s 22?
o [2] Does a failure to inform her breach her constitutional rights under Art 9(1)?
o [3] Whether any statement recorded from A under s 22 and sought to be admitted
under s 122(5) (a.k.a. a 258(3)) of the CPC could not be so admitted if no caution
had been read to him in terms of s 22 of the CPC

/held/
S 22 contains one of several special powers of investigation given to the police power to
examine a person and compel her to answer questions while making police investigations
Express statutory provisions that required a caution to be administered in equivalent
circumstances were contained in the Rules Relating to Statements from Accused Persons
inserted in the CPC in 1960 the Schedule E rules
o Rule 6 required A in custody to be cautioned that he was not obliged to say
anything
o However, these rules were revoked by Act No 10 of 197 intended to render such
statements (that are not in substantial compliance with Sched E) admissible so long
as they are not tainted by ITP
o Therefore, no need for A to be expressly informed
Secondly, on the issue of whether a case falls outside Art 9(1) (and is therefore
unconstitutional) when police officers exercise the power to examine a person and compel
him to answer questions despite failing to observe precautions of s 22, CoA cited Ong Ah
Chuan and Haw Tua Tau:

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 o The word law in Art 9(1) includes principles of natural justice
o The right of silence has never been regarded as subsumed under the principles of
natural justice as this is a rule which originated as being largely evidential in nature
Holding it as a constitutional right would elevate this evidential rule to a
constitutional status despite it being given no explicit expression in the
Constitution requires a degree of adventurous extrapolation which (the
court does) not consider justified
Not merely a matter of balancing prejudice to the administration of justice
resulting from depriving the court of relevant & important evidence against
the interest protected by the right
o If the Legislature had intended to guarantee full protection of the right to be
informed of ones privilege against self-incrimination, the rule would have been
given specific parliamentary expression, the same way a person arresteds right to
be informed as soon as he may be of the grounds of his arrest and his right to
counsel is enshrined in Art 9(3)
o Moreover, s 23 and s 261, which expressly derogate from As entitlement to
withhold relevant information before trial, would be rendered ultra vires and invalid
if A was entitled to full protection of her right to be informed of her privilege
Finally, the failure to expressly inform A of her right to silence does not render a statement
inadmissible
o S 22 doesnt concern admissibility
o Under s 258, statements made to police officers in the course of a police
investigation are admissible unless they fail the voluntariness test of s 258(3)
o No evidential penalties for failure to comply with s 22 in the EA
If police officer fails to comply, he is the one who feels the effects of a
breach may be liable in civil proceedings for breach of statutory duty,
complaint may be made about him to the appropriate disciplinary tribunal,
or he may be found guilty under s 255C of the Penal Code
However, none of these courses of action affect the statements
admissibility & evidential value against A admissibility is still
governed by s 122
o But the failure to inform A of his PASI in circumstances where a positive duty has
arisen to give such info may amount to an inducement under s 258(3) - its
reasonable to assume that such an omission may have caused A to say what he
otherwise may not have
Court opined at [28] that there was at least reasonable doubt as to whether
he would have said the same things if he had been informed that he was
entitled to refrain from doing so
At [30]: Exercise of powers of compulsion coupled with silence as to the
limitations of those powers may create a positive misrepresentation of the
rights of the person questioned may amount to inducement for the
purposes of admissibility
Situation where an investigating officer has positively created in the
person questioned an inaccurate impression of his rights
Citing Tsang Yuk Chung the s 23(1) warning is only saved from being an
ITP by s 23(4) warning is to the effect that if there is any fact on which A

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 intends to rely in her defence in court, she is advised to mention it at least
once, and if she holds it back till she goes to court, it may be less likely
to be believed
CoA opined that this warning is far less pressing than what the interpreter
read, which is essentially that A is obliged to tell the truth, the whole truth,
and nothing but the truth if s 23(1) is an ITP save for s 23(4), then the
words of the interpreter in the present case would a fortiori constitute an
ITP, and there is no saving equivalent of s 23(4)

Ong Seng Hwee v PP [1999] 3 SLR(R) 1 - indicates that not informing a suspect of his right to silence is
unlikely to have any effect at all. Unless you can show immediate impact, you cant even argue that it was
materially an inducement at all (c/f Mazlan)
Facts
A admitted to employing three immigration offenders in his long statement
o Subsequently told the police that the immigration offenders were actually employed
by one Radakirshnan who subleased space on As premises, and produced various
documents purportedly supporting these allegations, including a statutory
declaration made by R
Also challenged the admissibility of his long statement on the basis that:
o It was made involuntarily he was told that he was bound to tell the truth, but not
cautioned that he was entitled to refrain from stating anything which might expose
him to a criminal charge
o ITP made throughout interrogation
o He had been given nothing to eat, and was ill and under the effects of medication

/held/
Trite that for involuntariness, the burden is on the Prosecution to prove the voluntariness of
the statement BaRD
Oppression
o Relevant inquiry whether circumstances prevailing at the time of recording the
statement were such that As free will was sapped and he couldnt resist making
the statement
o Not proven on the facts length of questioning was two hours, was allowed to take
his medication, and his conduct before and after the recoding of the statement did
not suggest he was seriously ill at all evidence suggested he was perfectly lucid
Incomplete recitation of s 22 alleged result was the impression that he was bound to state
truthfully the facts and circumstances of the case with which he was acquainted without
being aware of his entitlement to refrain from stating anything that might expose him to a
criminal charge.
o On the facts of the case, Court accepted the investigating officers testimony that
he did deliver the caution as reflected in the CPC
o But even if he didnt, court didnt believe that the inducement operated on As mind
or caused him to make the statement A himself testified that he denied for half an
hour that he had employed or harboured immigration offenders
Finally, found his evidence on ITP improbable testimony was highly inconsistent

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Lim Lye Huat Benny v PP [1996] 1 SLR 253, 262 Court did draw adverse inference as accused claimed
at trial to be innocent carrier of drugs but failed to mention this fact in his s 121 statement (now s 22) earlier.
Facts
A was charged with trafficking and alleged that he thought he was delivering counterfeit notes
and not diamorphine

/held/
LP Thean JA: As explanation for not mentioning his explanation was that his brother had told
him that his brother would engage a lawyer to defend him & therefore he did not think it was
important to mention that the bag contained counterfeit money
Explanation not accepted by TJ
o Thean JA held that TJ was entitled to take this view of his evidence and to draw an
adverse inference against him

Yap Giau Beng Terence v PP [1998] 3SLR 656, esp para 38 (HC)
Facts
A was charged with corruptly offering a gratification to Susan Goh and one of 2 taxi-drivers to
forbear from reporting him to police when they chased him after an accident.
o A failed to mention in the statement that he thought Susan was one of the victims and
he offered her compensation and asked her to negotiate with the other victims.
o Explanation for failure: A wished to consult a lawyer first so as not to say the wrong
thing.

/held/
At HC, Yong CJ held that this explanation was inadmissible.
o Whole purpose of s 123 is to compel A to outline the main aspects of his defence
immediately upon being charged, so as to guard against A raising defences at trial
which are mere afterthoughts.
o A cannot escape the consequences of s 123 (now s 261) simply by explaining that he
wished to consult a lawyer first, or else s 123 would be rendered otiose
o Emphasised that it is not in every case that an AI is drawn against A who keeps silent
upon being charged.
An adverse inference will be drawn only if he fails to mention facts which he
could reasonably have been expected to mention upon being charged.
o In the instant case, the appellant had failed to mention in his cautioned statement that
he had thought Susan Goh was one of the victims of the accident, that he had offered
her compensation and that he had later asked her to negotiate with the victims of the
accident on his behalf.
Must have been evident even without the benefit of consultation with a
lawyer, that these facts afforded a legitimate explanation for the offers of
money he allegedly made, and that it would be in his interest to mention
them.
These were facts which A could reasonably have been expected to mention
upon being charged, and TJ was perfectly entitled to draw AI against A under s
123 for failing to mention these material aspects of his defence in his cautioned
statements.

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Lau Lee Peng v PP [2000] 2 SLR 628
Facts
A was charged with the murder of V.
Pleaded the defence of provocation at trial, alleging abusive language and threats by V.
o Claims that V then used vulgar & abusive language on him & his mother, and
threatened to kill him as well
o Claims that an altercation ensued and blows were exchanged
o He only reached for the chopper when he thought V was reaching for the
chopper, and fearing for his life, grabbed it first and started slashing her neck
o (Bolded parts were only mentioned on appeal A claimed that this was because he
was of low intellect, and did not understand the importance of doing so)

/held/
As counsel argued that being a fishmonger of low intellect, A could have failed to mention the
crucial allegations in his statements because he did not understand the importance of doing so
at the relevant time
o Court did not accept the argument, cited Tan Boon Tat warning was couched in very
simple language, easily comprehensible by those who read English
o If A does not read & speak English, the charge & the notice of warning are both to be
accurately interpreted to him in a language he understands. This would amount to an
explanation to him of the charge & the warning. He would have understood from the
interpreter the substance of the charge & the implication of the warning
Court did not accept As explanation for not making these allegations sooner
o Pointed out that in his s 122(6) (now s 23) statement, he had the presence of mind to
create the fictional Ah Meng to bear responsibility for his crimes
o With that kind of mind, no reason he could have missed out the alleged abuses or
threats uttered by V, or the actions of V in trying to reach for the knives if these things
had occurred
Court therefore entitled to draw adverse inferences from As failure to make these allegations
earlier
o What inferences should be drawn is really a matter of judgment for trial judge, who
would consider the omission in light of the nature of the omitted fact in relation to the
charge A faces
o Regardless, having heard As evidence, TJ was certainly entitled to draw AI against A,
and there is no basis for an appellate court to interfere with that determination

HHL says unfair he had no legal advice, probably instinctively denied

No, Should not be Admitted

The inference was drawn from a non-disclosure in the context of questioning under s 22, and there
is no clear statutory basis for this
o The power to draw an adverse inference is conferred by s 261(1), and is expressly confined
to the situation where A fails to mention a matter relevant to his defence on being
charged with an offence, or informed by a police officer that he may be prosecuted
for an offence

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 o The provision under which A may be so charged or officially informed is actually s 23, where
the police is expected to set out the charge in writing, read it to A, and warn him that the
court may be less likely to believe him if he withholds any info in his defence, and then
reveals it only at trial. Then and only then is A invited to make a statement
S 261(1) therefore permits an adverse inference to be drawn against A from specifically the non-
disclosure of material facts when A was invited to give a statement under s 23 not clear if it
permits an adverse inference to be drawn from his non-disclosure during questioning under s 22,
which empowers the police to take statements in the course of their investigation, which applies
to situations where they have yet to decide on the charge

This view is also buttressed by policy considerations such as the potential for injustice since the
accused would not know what charges are brought against him, hence he would not know
what defences that he can rely on and what facts he need to bring up in order to establish the
defences. Furthermore, given that accused persons do not have an immediate right to council, it
further militates against the drawing of adverse inferences should the accused fail to mention
certain information in his s 22 statement.
o Arguably, police shouldnt even be able to question A under s 22 once theyve made an s
23 charge, but changes made in 2010 to s 22 render it explicit that post-charge
questioning is permitted
This amendment goes against the previously established parliamentary intention.
When parliament introduced the power to draw adverse inferences in 1976, it
decided against extending the power to the non-disclosure of pertinent facts at the
initial stages of investigation when A has yet to be charged with an offence or
officially informed that he might be prosecuted for it.
A provision in the amendment bill which would have allowed an adverse
inference to be drawn from As non-disclosure at the pre-charge stages was
deleted following strong opposition to its introduction.
Such a reading is logically sound. If A has not even been served with the charge, he
may not know what the police are investigating, or what they are going to use
against him. This is the equivalent of requiring Df in a civil case to reveal what his
defence was going to be to an undisclosed statement of claim and to submit to
questioning upon it.
o However, it is now common practice (and statutorily endorsed) for investigating officers to
take further statements under s 22 even after A has been charged under s 23
Not only is it somewhat premature to charge someone w/o completing
investigations, a failure to mention relevant facts in a statement taken days after A
has been charged can hardly be considered a failure to mention relevant facts on
being so charged or informed under s 261(1)
S 261(1) was based substantially on cl 1(1) of a bill drafted by the Criminal Law
Revision Committee of England and Wales as set out in its Eleventh Report on
Evidence (General) in 1972. The Committee noted that under the then Judges
Rules, post-charge interrogation of the accused was allowed only in very narrow
circumstances, and cl 1(1) (the power to draw adverse inferences) (would) not
apply to the limited questioning ... after the accused has been charged.
However, if you look at cases like KSH, the investigating officers obtained
statements from A under s 22 even though they had already proceeded against

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 him under s 23, w/o any indication of recautioning him on the risk of adverse
inferences

Reform
Considering the police do not have to give A access to legal advice immediately upon arrest, PASI
should be given greater protection.
o Art 9(3) constitutionally enshrines an accused persons right to counsel, but its satisfied as
long as he is allowed to consult a lawyer within a reasonable time after his arrest.
In Jasbir Singh, a delay of two weeks was also found to be reasonable, and As
incriminating statements taken were used to convict A
In determining what counts as a reasonable period, the protection of the
accused, his need for legal advice and the importance of the right against self-
incrimination are not ranked as highly as they should be
o The justification for this delay is that there is a risk that allowing a detained suspect to
consult a lawyer would likely obstruct police investigation even though the court has yet to
offer a convincing explanation of how this is so
In Leong Siew Chor for example, the defence counsel was willing to forego
confidentiality and meet his client in the presence of the DPP & the IO to advise his
client on his rights, but was still rejected by the police on the ground that they did
not want to take the risk of external parties impeding investigations and
resulting in A shutting up
HHL calls bullshit its fundamentally wrong to prevent A from seeing his
lawyer so as to reduce the chances of him getting to know of and claiming
his PASI, especially since the court is evidently quite willing to draw adverse
inferences from As non-disclosure of material facts in the investigatory
stage
Allowing suspects in custody the access to legal advice would help ensure
that As statement is taken fairly, accurately, in accordance with the law,
While we understand that the police investigation has to be guarded
from unlawful or improper impediments, its perverse to treat As
exercise of PASI as an impediment
Additionally, under the adverse inference rules in SG, the court is able to draw an adverse inference
from As failure to raise material aspects of his defence in his cautioned statements (Kwek)
o However, without the assistance of a lawyer, most people dont have the legal knowledge
or be in the state of mind to recall and identify the what facts have legal significance
immediately, much less to work out a legal defence
Furthermore, in Yap Terence, HC was of the opinion that A is expected to outline the main aspects
of his defence immediately upon being charged & cautioned under s 23
o Higher burden than just having to mention facts or matters in his defence
o But without the assistance of a lawyer, most people dont have the legal knowledge or be
in the state of mind to recall and identify the what facts have legal significance
immediately, much less to work out a legal defence
o To deny him access to a lawyer is placing him in a position where he cannot reasonably be
expected to do what hes being called to do in Yap Terence
o Should use English position no adverse inference if A has not been allowed an
opportunity to consult a solicitor prior to being questioned, charged or informed

13
C. Special Position for PCA

There is no right against self-incrimination under the PCA

o This is because s 26(d) of the PCA renders it an offence if the accused refuses or neglects
to give any information which may reasonably be required of him and which he has it in
his power to give (Taw Cheng Kong)

D. Procedural Irregularity

A s 22 statement is NOT rendered inadmissible merely by the fact that the accused was not
informed of his right to remain silent (Mazlan bin Maidun)
o Therefore, based on exp 2(e) of s 258(3), it seems that the evidence will only be rendered
inadmissible if it amounted to an ITP under s 258(3) of the CPC, such that it is rendered
involuntary.
o However, even though the evidence is nonetheless admissible, the presence procedural
irregularities would still possibly trigger (1) the discretion to exclude under Kadar (see
Wrongfully Obtained Evidence) or (2) affect the weight of the evidence.

3. SILENCE WHEN CHARGED S 23, S 261(1)

An issue arises as to whether an AI may be drawn from Xs failure to mention facts which were
subsequently relied upon in his defence of ________ when making his s 23 cautioned statement.
S 261(1) of the CPC allows the drawing of adverse inferences if the accused fails to mention a
material fact of his **defence* which he could reasonably have been expected to mention when
questioned, charged or informed.
o Therefore AI may only be drawn if:
[1] A relies on a fact in his defence;
[2] He failed to mention the fact to the police officer when he was invited to make
statement under s 23;
[3] In the circumstances existing at the time when the accused was questioned,
charged or informed, he could REASONABLY have been expected to mention
that fact..
o On the facts of the case...
Therefore the issue is whether it was reasonable to expect X to raise _______. The
courts may judiciously decide not to draw AI if As failure to mention _______ was
justified by circumstances (Terence Yap).
This is a matter of judgment for the trial judge, who would no doubt consider it in
the light of the nature of the omitted fact(s) in relation to the charge the accused
faced (Lau Lee Peng)
What are good reasons?
o Azman - the police officer persistently disbelieved accused when accused admitted to
making mistakes in statement. Thereafter, the court held that no adverse inference would
be drawn from accuseds silence because he had reasonable grounds for believing that it
was useless to say more.

14
 o Benny Lim - SGHC did not draw an adverse inference on the cautioned statement because
it was taken at an unearthly hour (4.25 4.55am) and the accused was too tired and hungry
to think of his defence.
o Kwek Seow Hock - the court as of the view that the accused was too tired and hungry to
think of his defence at the time the s 23 statement was recorded. Heroin craving also
played a role.
Bad reasons
o Yap Giau Beng - adverse inference was drawn against As failure to state material facts of
his defence in his cautioned statement because HC held that it was no excuse for A to say
that he wished to consult lawyer first because he did not wish to say the wrong things.
o Lau Lee Peng, court held that adverse inference was drawn against the accuseds failure to
state material facts of his defence in his cautioned statement because it was no excuse for
him to say that he was of low intellect.

A. Wanted to see a Lawyer

X may argue that he failed to mention (material exculpatory fact) because he wished to see a lawyer
before saying anything to the police. While Yong CJ in Terence Yap found this reason to be
insufficient since it would render s 261(1) otiose, it is submitted that it is in fact reasonable for even
an innocent person to refuse to respond to the notice before receiving legal advice.
o The assumption that all innocent people can provide a reasonable explanation for failing to
mention the defence they later rely on in their charged statement ignores the fact that
people with different charges, different personalities & different intellects respond
differently to the s 23 warning.
May instinctively deny everything especially problematic if they try and raise a
mixed defence;
May be afraid that raising a mixed defence involving both inculpatory &
exculpatory elements would implicate him in another crime
May not know that the material fact is a legal defence;
May be unsure about the consequences of his statement
o Therefore, the court should be slow to impose too onerous a burden on A by insisting that
A must outline the main aspects of his defence immediately upon being charged &
cautioned under s 23 (Terence Yap) since A has no right to access to a lawyer upon being
charged.
If arguing for police However, it can be argued that on the facts of the case, it was evident to X,
even without legal advice, that (the withheld fact) is exculpatory since it disputes the polices
version of the story. As such, the court is likely to draw an AI from Xs failure to mention (the
withheld fact).

B. Procedural Irregularity

Severe Non-Compliance
As seen in Exp 2(e) of s 258(3) a procedural irregularity does not affect the admissibility of the
evidence per se, unless the procedural irregularity amounts to an ITP under s 258(3) of CPC
such that it fails the voluntariness test.

15
 o However, it is arguable that merely and fully as used in Exp 2(e) suggests that severe
defects may result in inadmissibility
Procedural Irregularity might also affect:
o (1) Discretion PP v Dahalan bin Ladaewa; Muhammad bin Kadar v PP
o (2) Weight PP v Tan Kiam Peng

Failure to give S 23 Caution

The court in Tsang Yuk Chang has made clear that a failure to give caution under s 23 does not
affect admissibility of the statement, as long as the voluntariness test under s 258(3) is satisfied
The issue is then whether the court is entitled to nonetheless draw AIs from As silence or failure
to mention certain facts, even when he was not given caution under s 23.
o On this point, the court will take the non-compliance into consideration in its decision of
what inferences, if any at all, should be drawn from As failure to mention certain facts
(Tsang)
o Therefore the test for determining whether non-compliance with s 23 should affect the
drawing of adverse inferences under s 261(1) 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 noncompliance with s 122(6) be reasonably have been expected to
mention certain facts on which he was relying in his defence in court.
o Or put another way, was the result of the non-compliance such that he was not made aware
that his right to remain silent without suffering adverse consequences had been removed
by s 23 and s 261(1)?

PP v Tsang Yuk Chung [1990] 2 SLR(R) 39

Facts A was convicted of murder
o Cautioned statement (s 23) was admitted at his trial
Appealed argued that cautioned statement should be admitted, as the investigating officer
recording the statement had failed to comply with s 23 provisions since the officer recording
the statement failed to explain the charge or prescribed warning
/held/ S 23 itself doesnt provide for the admissibility of statements recorded thereunder
o Admissibility is still founded s 258(3)
o A statement, whether or not purported to have been made under s 23, is admissible so
long as s 258(3) is satisfied
In this case, the statement is admitted under s 23 not as an inculpatory, exculpatory, or mixed
statement, but as evidence of the failure by A to mention a fact which in the circumstances
existing at the time he could have reasonably been expected to mention when he was
charged and consequently allowing the court to draw such inferences as appear proper under s
261
o Non-compliance with s 23 doesnt result in inadmissibility, but in enabling the court
to take non-compliance into consideration when deciding what inferences, if any,
should be drawn from As failure to mention certain facts (at [20])
o However, court acknowledged at [21] that there may be a case where non-compliance
with s 23 is serious enough that it will not draw any inferences at all from As failure to
mention certain facts

16
 Non-compliance can be trivial in nature e.g. non-material typographical error
from a notice in writing and court consequently wont be prevented from
drawing such inferences as appear proper
At [23]: Test is whether it could be said that the circumstances existing at
the time when A 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 s 122(6) be reasonably have been expected to mention
certain facts on which he was relying in his defence in court.
Or alternatively - was the result of the non-compliance such that he was not
made aware that his right to remain silent without suffering adverse
consequences had been removed by s 122(6) and s 123(1)?
o Further erosion of As rights in the previous s 122(6) of the CPC, there was a
requirement of explaining the notice to A, which has been removed in s 23 all the
IO needs to do now is to serve and read the notice contained in s 23

When X Doesnt Understand the S 23 Warning

Under s 23(1) of the CPC, the accused must be served with and have read to him a notice in writing:
o You have been charged with or informed that you may be prosecuted for... If you keep
quiet now about any fact or matter in your defence and you reveal this fact or matter in
your defence only at your trial, the judge may be less likely to believe you. This may have a
bad effect on your case in court.
It should be noted that the requirement that a caution shall be explained to the accused has
been removed from s 23 of CPC (cf old s 122(6)). So at this point, so there is no duty to explain the
warning (Tsang)
o If you dont get it its too bad Not even a non-compliance
o If you dont understand English and it wasnt explained to you, that is a non-compliance
Under s 23(3) of the CPC, a cautioned statement made by an accused must (a) be
in writing; (b) be read over to him; (c) if he does not understand English, be
interpreted for him in a language that he understands; and (d) be signed by him.
Whether this is sufficient to render the statement inadmissible depends on how you
feel about discretions, but whether you can still draw an adverse inference would
depend on the Tsang non-compliance test, because being given a warning you
dont understand is equivalent to not being given a warning at all
Tsang: Therefore the test for determining whether non-compliance with s
23 should affect the drawing of adverse inferences under s 261(1) 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 noncompliance with s 122(6) be reasonably have been expected to
mention certain facts on which he was relying in his defence in court.
Or put another way, was the result of the non-compliance such that he was
not made aware that his right to remain silent without suffering adverse
consequences had been removed by s 23 and s 261(1)?

17
4. SILENCE DURING TRIAL S 230(1) & 291(3)

A. Preliminary Issue: When does X have to give Defence? (S

230(1)(j))

S 230(1)(j) of the CPC states that if the court is of the view that there is some evidence which is not
inherently incredible & which satisfies each & every element of the charge as framed by P or as
altered or framed by the court, the court must call on A to give his defence
Therefore, unless Ps evidence is inherently so incredible that no reasonable person would
accept it as being true, the court will call on X to give his defence (Haw Tua Tau)

B. Preliminary Issue: Is X compelled to testify?

Under s 230(1)(m), X may elect whether to enter the witness box to give evidence, such that he is
possibly exposed to xx by P

C. Drawing an AI under s 291

Where A is called to give defence but refuses to testify, his silence at trial upon being called to
enter a defence allows the court to draw such inferences from the refusal as appear proper (s
291(3)) when determining whether A is guilty of the offence charged.
This law is not unconstitutional as it does not create a genuine compulsion on A to submit
himself at trial to xx by P, as distinguished from creating a strong inducement to do so (Haw Tua
Tau)

Cases
In PP v Tse Nathan, it was held that the accuseds silence gave rise to an inference of knowledge of
drugs.
In Ramakrishana Ramayan v PP, it was held that accuseds refusal to testify could carry dire
consequences.
In Loo Koon Seng v PP, it was held that it is not enough to say that one keeps quiet to avoid
implicating others.

Application
What inferences the court can properly draw from As refusal to give evidence depends on the
circumstances of the particular case, and is a question to be decided by applying ordinary
commonsense (Haw Tua Tau at 153)
o However, it must be noted that the AI does not shift the burden of proof. The effect of an
adverse inference against an accused person is that once it is drawn it can be employed to
support or corroborate aspects of the Ps case (Constance Chee at [91]). The burden of
proof still lies with P to prove the charge BaRD.
Kelvin Chai citing Murray at [82]: This does not mean that court conclude A is guilty simply
because he does not give evidence.
o [1] First, P must establish a prima facie case;

18
 If not there is no case to answer, and the case has so little evidential value that a
failure to deal with the specific matters cannot justify an inference of guilt
If yes the fact that theres a case means that aspects of the evidence taken alone
or in combination with other facts clearly call for an explanation that A ought to
be in a position to give, if an explanation exists
o [2] In determining guilt, fact finder can only draw such inferences from the refusal as
appear proper
If aspects of the evidence taken alone or in combination with other facts clearly call for an
explanation which the accused ought to be in a position to give, if an explanation exists, then a
failure to give any explanation may as a matter of common sense allow the drawing of an inference
that there is no explanation and that the accused is guilty (Haw at 193, cited in Kelvin Chai)
o Took Leng How at [43]: However, an AI should only be drawn in appropriate circumstances.
A court would be in grave error if it were to draw an adverse inference of guilt if such
an inference were used solely to bolster a weak case.
As was observed by Prof Tan Yock Lin, citing the Australian decision of
Weissensteiner, As silence cannot fill in any gaps in the prosecutions case; it
cannot be used as a make-weight.
He further opined that [t]he inference is properly drawn where the silence
of the accused affects the probative value of the evidence which has been
given. Where evidence which has been given calls for an explanation
which the accused alone can give, then silence on his part may lead to
an inference that none is available and that the evidence is probably
true
o However, where there is a presumption at law, the presumption + AI may sufficiently
establish Ps case
o However, in cases where As mental or physical condition may make her unsuitable to be
called to give evidence in court, no AI should be drawn from the failure to testify (s 291(6),
per Took Leng How at [44])
Remaining silent on legal advice is:
o (A) A bad fucking idea;
o (B) No bar to the drawing of adverse inference by the court (Ramakrishnan so/ Ramayan v
PP).

Cases

Haw Tua Tau v. PP [1981] 2 MLJ 49 (PC)

/held/
S 291 made no change to existing law
o English law has always recognised the right of the deciders of fact in a criminal
trial to draw inferences from the failure of a defendant to exercise his right to give
evidence and thereby submit himself to cross-examination. It would in any event be
hopeless to expect jurors & judges, as reasonable men, to refrain from doing so
o Failure of A to go into the witness box to contradict the evidence of the prosecution
on matters that were within his own knowledge or to displace place a natural
inference as to his mental attitude at the time of the alleged offence that, in the
absence of some other explanation, would properly be drawn by any

19
 reasonable person from his conduct at that time
S 196 (Now s 291(3)) does not compel A to testify, though it provides him with an
inducement to testify
o Provision makes clear that A has a legal right to refuse to give evidence at trial,
and no legal sanctions can be imposed on him if he chooses to remain silent
o It is only when he elects to give evidence that he exposes himself to the risk of
being compelled, under the threat of legal sanctions, to answer questions put in
xx, which, if answered truthfully, may show that he was guilty of the offence with
which he was charged
o A is not compelled in law to give evidence on his own behalf
The inferences that the court may draw from his failure to testify are not
enlarged by the amendments to the Criminal Procedure Code; they are
limited, as they have always been, to such inferences as appear to the
decider of fact to be proper in the particular case having regard to all its
circumstances

Oh Laye Koh v PP [1994] SGCA 102

Facts
A was charged with murder of V
P sought to adduce evidence of three statements A had made to the police TJ was not
satisfied that they had been voluntarily made and therefore declined to admit them
Also felt that the circumstantial evidence that P adduced was insufficient to support a prima
facie case against A that even warrants calling for his defence

/held/
At [14]: TJ was at the liberty to draw any inferences as may appear proper from failure of A
to give evidence on oath, including the ultimate AI of guilt
o Cited Haw: Lord Diplock observed that it would be hopeless to expect jurors or
judges, as reasonable men, to refrain from drawing inferences from the accused's
failure to exercise his right to give evidence, including inferences adverse to the
accused.
o After all, only A is in a position to contradict Ps evidence on matters that are
peculiarly within his own knowledge or to displace a natural inference as to his
mental attitude at the time of the alleged offence that, in the absence of some
other explanation, would properly be drawn by any reasonable person from his
conduct at that time
o What inferences are proper to be drawn from an accused's refusal to give evidence
depend upon the circumstances of the particular case, and is a question to be
decided by applying ordinary commonsense
At [15]: Process would have involved TJS consideration of whether on the totality of the
prosecution witnesses' evidence (as tested in XX), together with any inference that could
properly be drawn from As silence, the accused's guilt could be established beyond
reasonable doubt
o On the facts of the case, incriminating primary facts:

20
 o Circumstantial evidence showed that he was one of the last people to have
been seen with V, tried to obtain false alibis from 3 different sources, and had
even led the police to the exact spot Vs body was found at
o The circumstantial evidence stacked up against the appellant at the close of
the prosecution case had been so damning in nature as to demand that he
proffered some explanation for the death of the girl who was last seen alive with
him.... By not rebutting the evidence, which as it then stood would have
warranted his conviction if unrebutted, the appellant's silence presented the trial
judge with an additional factor to consider in assessing whether the appellant's
guilt had been established beyond reasonable doubt.

Took Leng How v PP [2006] 2 SLR(R) 70, especially [40]-[45] As silence cannot fill up the gaps in Ps case
Facts
A appealed both his conviction and sentence under s 300 of the Penal Code for murder
one of the grounds was whether TJ was wrong to draw an adverse inference against A for
refusing to give evidence at trial

/held/
At [41]: Concept of adverse inference was first introduced in the CPC by the CPC
(Amendment) Act 1976
o Allows the court to draw whatever inferences as appear proper from As failure to
testify when called upon by the court to give evidence
o Citing Haw Tua Tau: PC opined that court can draw what inferences are proper to
be drawn from As refusal to give evidence (depending) on the circumstances of the
particular case, and (this) is a question to be decided by applying ordinary common
sense
o Such inferences can go towards many things, the strongest inference being one of
guilt itself
At [43]: an adverse inference should only be drawn in appropriate circumstances
o Court would be in grave error if it were to draw an adverse inference of guilt if such
inference were used solely to bolster a weak case
o Cited Tan Yock Lin: silence of A cannot fill in any gaps in Ps case; it cannot be
used as a make-weight. Inference is only properly drawn when As silence affects
the probative value of the evidence which has been given
o Where the evidence that has been given calls for an explanation that only A alone
can give, then silence on his part leads to an inference that no explanation is
available and the evidence is true
Current s 291(6) expressly forbids the drawing of inferences where it appears to the court
that As physical or mental condition makes it undesirable for him to be called upon to
give evidence
o D contended that no such inference should be drawn in the present case since A
was allegedly suffering from schizophrenia
o However, both psychiatrists who examined A filed reports stating that he was fit to
plead, and detailed statements that A gave the police evidenced his ability to
recollect the events that occurred from the date of Vs death to the date of As arrest
However, at [44], acknowledged that even where A is diagnosed as fit to plead yet still

21
 exhibiting certain mental or physical symptoms in the course of the trial, the drawing of
symptoms would appear undesirable, and may be unwarranted
o This is to be determined by the TJ, as he deems appropriate in the circumstances
On the facts of the case, A was the only person who could shed some light on the events
transpired between V and himself in that storeroom CoA found TJ justified in drawing the
inference that A had caused Vs death, or at least, that his failure to challenge Ps evidence
enhanced its probative value

Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619 at [80]-[83]; [1999] 1 SLR 25 especially [61]-[62]
Facts
A and A1 were jointly tried for attempting to export drugs from SG to Taipei
Both elected to remain silent

/held/
At [80], cited Bentham: innocence claims the right of speaking as guilt invokes the privilege
of silence.
In other words, the court in deciding whether a case has been made out warranting
conviction will act on the presumption that:
o All evidence of primary facts is true, unless it is inherently so incredible that no
reasonable person would accept it as being true;
o There will be nothing to displace those inferences as to further facts or the state of
mind of the accused that would reasonably be drawn from the primary facts in the
absence of any further explanation [81]
In this case, in electing to remain silent, court was entitled to draw such inferences from
the refusal as appeared proper, including the inference that A was guilty of which he
was charged
o Citing Murray: This does not mean that the court can conclude simply because A
does not give evidence that he was guilty of the offence he was charged with.
First, P must establish a prima facie case a case for A to answer
If not there is no case to answer, and the case has so little
evidential value that a failure to deal with the specific matters
cannot justify an inference of guilt
If yes the fact that theres a case means that aspects of the
evidence taken alone or in combination with other facts clearly call
for an explanation that A ought to be in a position to give, if an
explanation exists
Failure to give an explanation may as a matter of common sense,
allow the drawing of an inference that there is no explanation and
is guilty
Secondly, the court can only draw from a refusal to appear such
inferences as appear proper
What appears proper depends on the circumstances of the particular case,
and is a question determined by applying ordinary common sense (citing
Haw Tua Tau)

22
PP v Ker Ban Siong [1992] 2 SLR(R) 181
Facts
A was charged with criminal trespass since he entered the Bukit Timah Turf Club in
contravention of a notice prohibiting him from entering the club for one year
o A was called upon to enter defence remained silent
o Issue was whether a conviction for criminal trespass could be sustained unless there
was further evidence of an intention to annoy, over and above he fact that he had
entered in contravention of the notice

/held/
At close of Ps case, As counsel made a submission of no case to answer, contending that
the vital ingredient of an intention to annoy was not proved
Court held that it was proven by an adverse inference because A had chosen not to testify
in his own defence at trial
o TJ would have been justified in drawing an adverse inference as to the intention with
which he entered the club
o A had been warned on no uncertain terms that his presence on the premises was
undesirable, and he then chose to disregard the warning
o Presence called for some explanation, and A chose to offer none
o Court therefore made the inference that he chose not to testify because he entered
the Turf Club with intent to annoy

23