Lecture 12: The Prosecution’s Case

- Look at provisions of CPC carefully! Understand and apply!

- Summary trial:

An Overview Timeline

Wk 1
• Courts 26 (DAC), 23 (MAC), 21, 25N (traffic), 26N (reg)
• Charge read to @. Usually no plea taken.
MENTIONS • Applications for adjournment/remand/transfer etc
• If @ PG and parties ready, plea taken and case disposed of
• @ may get DATA or DNATA

If @ wants to PG If @ claims trial

• Courts 2, 3, 4, 24 (DAC), 23 (MAC), 14 (reg)
Wk 10 -
PTCS • Discuss triable issues, set trial days and dates 16

If @ claims trial

• Any of the hearing courts under GMC clusters

HEARING Wk 16 -
• Evidence will be heard to determine if @ is guilty or not 24

• Conduct of summary trials can be in the form of “mentions” or “hearings”. Generally, criminal courts that
are not designated “mentions” courts are “hearing” courts. This division is of administrative significance –
CPC does not draw a legal distinction.
o Mention is an appearance in court for various applications like remand, bail or adjournment or for
entering of guilty plea. Cases are fixed for mentions until the case is ready for hearing.
o PTC: If the accused pleads not guilty or claims trial, case will proceed for PTC before being fixed
for a “hearing” court.
o Hearing refers to taking of evidence by court for the purpose of adjudicating whether an accused
is guilty.

MENTION
- Accused are brought before the court in 2 ways:
 Arrest: Accused arrested must be brought before a court within 48 hrs if they were not released on
police bail (DAC, MAC): Art 9, Constitution – s36 (2) CPC
 Summons: Accused summoned must appear before a court
o E.g. police summons – PS, Private summons – PSS, dept/reg summonses –
MOM for Min of Manpower; BCA for Building Control Authority
 Difference between arrest and summons case is that former involves questions of police bail (s350
to s357 CPC) or court bail while the latter does not.
- Crim cases – apart fr traffic and departmental cases – all returnable for mention in sub court nos 23 and 26
(MC – 23, DAC and police summons cases – 26)
o In these two courts tt make application for trial

- After the charge has been considered against the accused person, he is produced in the subordinate courts
for the mention of the case against him. The accused may plead guilty or claim trial to the charge against
him.
- Practically speaking, immed brought to court 26 (if district court jurisdiction) for first appearance. If offence
is one that can be dealt with by magis and nt district judge, then court 23 (see classification system)
- Also another court dealing with straightforward matters like departmental summonses, conservancy charges
– such cases first mentioned in Night Court and also subseq mentioned in night court. (simple and go into
thousands)
 Not the subj matter of this lecture
- Court has own guidelines, in some cases x accept plea in first court mentioned and may transfer to another
court
- See fr pov of accused who 1. pleads guilty 2. claims trial
 In latter, court wll manage case betwe pros and defence lawyer
 When case fixed for hearing
 Management of cases where person not ready to plead – pre trial conference system

• Group management of crim cases (GMCC) implemented in sub courts

 Under system, once accused claims trialk, PTC date given
 Admin system to facilitate speedier hearing dates
 Hearing dats fixed by GMCC managers who have admin support staff
 At PTC,m pros and defence will exchange list of witneses and hearing days duration determined
 Once preliminaries finalized, dats for hearing fiven

• Before first mention case, to find out fr prosecutor relevant case arrest no
 Summons no known since shown on sumpns itself so when stand up to mention case, refer to summons
no straightaway
 Arrest case – to get arrest case no (MAC or DAC) – qote ref no and then accused’s name when mention
case
• If client claims trial, court will transfer case for PTC wk or mth later
 May want to ask further mention if not ready for trial
• At end of process, court will transfer case to partr court for PTC
• If client pleads guilty, court 26 will deal with it or send to antoher court to deal with case

• Their case is first “mentioned” in these courts, depending on type of cases

• At mentions stage, a few things can happen depending on whether parties are ready for plea taking
• First, charge is read and explained to @: s 180(a) CPC
• If PP not ready, can apply for:
1. adjournment for forensic (GSB, FPD, DSS) report, incomplete investigations, seek AGC’s concurrence,
consider reps by defence, etc
2. remand @ for further investigation (6 police divisions, QRP, CWP), psychiatric report (IMH)
• If @ (or DC) not ready, can apply for adjournment TEC, take instructions, make reps, prep
medical/psychiatric report (of @) or mitigation plea
• Legal basis: s 198 CPC

Mentions courts
• Mentions courts deal with all accused persons charged for the first time. This applies to all manner of
charges, including cases, which may eventually be channeled for hearing in the High Court. Appropriate
case numbers are assigned to the charges at the Crime Registry of the subordinate courts, delineating the
jurisdictional limits of the court, which may deal with the case.
– • When an accused is first charged or produced in Court, he or she appears before one of the five “mentions”
courts:

- (1) Court 26: - a district court that conducts mentions for DAC and some summons cases, as well as capital
cases which are awaiting the fixing of preliminaryinquiries. – at basement level
o Court 26 is a District mentions court where accused persons of DAC (District Arrest Cases), PS
(Police Summonses) and PI (Preliminary Inquiry) cases are first produced. All cases will be further
mentioned in these courts until the parties are ready for PTCs (pre-trial conferences).
– (2) Court 23 – a magistrate’s court that conducts mentions for MAC, private summonses and some other
summons cases.
– Court 23 is a Magistrate’s mentions court where accused persons of MAC (Magistrate’s Arrest
Cases), PS (Police Summonses), PSS (Private Summonses) cases and regulatory offences are first
produced.
– (3) Court 21 – traffic court which sits in the day to conduct mentions for more serious traffic cases. It is
also concurrently a hearing court.
– (4) Court 25N – district court that sits at night to conduct mentions for minor traffic summonses.
– (5) Court 26N – a magistrate’s court that sits at night to conduct mentions for minor regulatory
departmentalsummonses, e.g. HDB, URA, ENV, ACRA, IRAS, TC etc (this is court 26 by day)
– • Juveniles are produced in the Juvenile Court. (in fam court building)

Criminal Courts
– • Apart from the “mentions courts”, the other courts are known as “hearing courts”.
– • All “mentions” and “hearing” courts are managed under the Group Management of Cases (GMC) scheme
whereby the courts are clustered into 5 GMC groups, each led by a district judge.
– • The “GMC” Courts are Court 2, 3, 4, 5 and 24.
– • The GMC Courts are responsible for fixing and scheduling of cases for hearing in the courts under their
respective groups through pre-trial conferences (PTCs).
– • All cases which end in a guilty plea at the PTC stage are dealt with in the respective GMC Court.

RTG Court – Court 19

– • RTG (Remand Task Group) – under this category, a select group of remand cases are fixed for PTC /
mentions in the RTG Court so as to expedite their disposition.

• Function of the criminal courts:

o All criminal courts process criminal cases
o Some criminal courts have specially defined functions to enable more efficient and effective case
management.
o It is important to know the various functions so that one knows what he can or cannot do in these
courts.

• Overall: We presently have 32 subordinate courts, comprising 28 District Courts and 4 Magistrates’ Courts,
exercising original criminal jurisdiction1. Of these, 9 subordinate courts are specially designated for effective
case management and special functions. These are
o 2 day mentions courts (Courts 23 and 26), a filter court (Court 14), a centralised sentencing court
(Court 24), a day and a night traffic court (Courts 21 and 25N respectively).

A) Functions of Criminal Courts

• District Courts:
o Court 26: 1st mentions court (Bail Video Link)
o Court 14: filter/holding court

1
This number does not include the Coroner Court which, exercises quasi-criminal function and the
Juvenile Court which mainly deals with criminal cases involving children and young persons and juvenile
delinquents.
 o Court 21: traffic court
o Court 16: vulnerable witness hearing court (BVL)
o Court 24: centralised sentencing court
o Court 15: technology court (e-court)
o Court 25N: traffic night court
o Hearing courts in mezzanine, 3rd, 5th, 7th levels

• Magistrates’ Courts:
o Court 23: 2nd mentions court
o Court 22: Coroner’s court (?)
o Juvenile Court: Family & Juvenile Justice Division
o Court 26N: minor regulatory offences night court
o Hearing courts in mezzanine level
o Crime Registry: Duty Magistrate, Criminal mediation Magistrate

• Court 14 is a court dealing mostly with unrepresented defendants of statutory offences. It hears single-
day trials, which have a high potential that the defendants would plead guilty, and also hears show cause
matters. But if too many defendants do not plead guilty thereby necessitating full-trials, Court 14 will then
filter these cases to other available trial courts.
• Court 24 is a centralised sentencing court where offences attracting a certain sentencing tariff are
transferred for sentencing to maintain consistency and parity for like cases.
• Court 21 is the day traffic court dealing with all road traffic offences.
• Courts 13N and 23N are night mentions courts.
o Court 13N is a night court dealing with departmental summonses for regulatory offences.
o Court 23N is a night traffic court dealing with minor road traffic offences.
• Court 15, a technology court, is equipped to enable up to four parties to give evidence simultaneously via
videolink in a criminal case.
• In Court 16, vulnerable witnesses like child witnesses or victims of sexual offences may give evidence via
video link: see Registrar’s Circular No. 1 of 1996 for the procedure.
• In Court 26, remandees in the Queenstown Remand Prison may appear via videolink for bail or further
remand applications: see Para 89, Subordinate Courts Practice Directions No. 1 of 1999 for the procedure.
• Also note that under Section 6(1) Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of
Benefits) Act which imports s 62A Evidence Act, foreign witnesses may give evidence via video link in
trials involving drug trafficking or serious offences defined in the Second Schedule.
• In general, courts that are not criminal mentions courts are considered criminal trial courts. Hence, any case
in which accused persons claim trial or are taken to claim trial can be heard in the trial courts.

B) Types of Criminal Cases handled by the SubCourts

• District Courts:
o Court 26: DAC, PIC, PS
o Court 14: regulatory offences, MAC
o Court 21: DAC (traffic)
o Court 16: DAC (sexual offences)
o Court 24: DAC, departmental summonses
o Court 15: DAC
o Court 25N: LTA, TP
o Hearing courts: DAC, PS, dept/reg summonses

• Magistrates’ Courts:
o Court 23: MAC, PS, departmental summonses
o Court 22: CI
o Juvenile Court: JAC, BPC
o Court 26N: HDB, URA, ENV, RCB, IRAS, TC etc
 o Hearing courts: MAC, PS, departmental summonses
o Duty Magistrate: Mag Complt, search warrant, urgent summonses to witnesses etc
o Criminal mediation Magistrate

PROCEDURE FOR SUMMARY TRIALS

- Open Justice:
• Criminal proceedings should take place in open court and be freely reported
• It is not only the parties who have an interest in criminal proceedings but the public at large
are concerned that justice should be properly administered
• A-G v Leveller Magazine Ltd [1979] AC 440: “provides a safeguard against judicial
arbitrariness or idiosyncrasy and maintains the public confidence in the administration of
justice”
• Depart from this general rule provided in s. 7 Subordinate Courts Act (Cap. 321):
(2) a Sub Court shall have power to hear any proceedings or any part thereof in camera if the
court is satisfied that it is expedient in the interests of justice, public security or propriety,
or for other sufficient reason to do so
(3) a Sub Court may at any time order that no person shall publish the name, address or
photograph of any witness in any proceedings or any part thereof or any evidence or any
other thing likely to lead to the identification of any such witness
• s. 153(1) Women’s Charter (Cap. 353): when any person is charged with or convicted of
having committed any offence under Part XI (Offences Against Women and Girls), or under
section 354, 354A, 376 or 376B, or sections 354 and 511, or sections 354A and 511 or
sections 376 and 511, or sections 376B and 511 of the Penal Code (Cap. 224) in respect of any
woman or girl, the court may order that all proceedings before it shall be dealt with in camera,
but where the girl is under 16, the court shall order proceedings
SCA - Sittings in camera, etc.
7. —(1) The place in which any subordinate court is held shall be deemed an open and public court to which
the public generally may have access.
(2) A subordinate court shall have power to hear any proceedings or any part thereof in camera if the court is
satisfied that it is expedient in the interests of justice, public security or propriety, or for other sufficient
reason to do so.
(3) A subordinate court may at any time order that no person shall publish the name, address or photograph
of any witness in any proceedings or any part thereof or any evidence or any other thing likely to lead to the
identification of any such witness.
(4) Any person who acts in contravention of any order under subsection (3) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12
months or to both.
WC - Trials in camera in certain cases
153. —(1) When any person is charged with or convicted of having committed any offence under this Part,
or under section 354, 354A, 376 or 376B, or sections 354 and 511, or sections 354A and 511 or sections 376
and 511, or sections 376B and 511 of the Penal Code (Cap. 224) in respect of any woman or girl, the court
conducting a preliminary inquiry into, or trying the offence, or hearing any appeal or special case or any
point reserved by a Judge of the High Court in relation to the offence, may order that all proceedings before
it shall be dealt with in camera.
[16/93;
30/96]
(2) Whenever any such order is made, the court shall not be deemed an open court, and the court shall
order that no person shall have access to or be or remain in the court except such persons as are necessary
for the purpose of the proceedings.
(3) The court shall order proceedings before it to be dealt with in camera in any case where the girl in
respect of whom an offence under this Part, or under section 354, 354A, 376 or 376B, or sections 354 and
511, or sections 354A and 511, or sections 376 and 511, or sections 376B and 511 of the Penal Code is
alleged to have been committed has not attained the age of 16 years.
PC - Assault or use of criminal force to a person with intent to outrage modesty.
354. Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely
that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term
which may extend to 2 years, or with fine, or with caning, or with any two of such punishments.
 Outraging modesty in certain circumstances.
354A. —(1) Whoever, in order to commit or to facilitate the commission of an offence against any person
under section 354, voluntarily causes or attempts to cause to that person death, or hurt, or wrongful restraint,
or fear of instant death, instant hurt or instant wrongful restraint, shall be punished with imprisonment for a
term of not less than 2 years and not more than 10 years and with caning.
23/84.
(2) Whoever commits an offence under subsection (1) —
(a) in a lift in any building; or
(b) against any person under 14 years of age,
shall be punished with imprisonment for a term of not less than 3 years and not more than 10 years and with
caning.
Punishment for rape.
376. —(1) Subject to subsection (2), whoever commits rape shall be punished with imprisonment for a term
which may extend to 20 years, and shall also be liable to fine or to caning.
23/84.
(2) Whoever, in order to commit or to facilitate the commission of an offence of rape against any woman —
(a) voluntarily causes hurt to her or to any other person; or
(b) puts her in fear of death or hurt to herself or any other person,
and whoever commits rape by having sexual intercourse with a woman under 14 years of age without her
consent, shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years
and shall also be punished with caning with not less than 12 strokes.
Incest.
376A.
(a) Any man who has carnal knowledge of a woman with or without her consent who is to his knowledge his
grand-daughter, daughter, sister, half-sister or mother (whether such relationship is or is not traced through
lawful wedlock); or
(b) any woman of or above the age of 16 who with consent permits her grandfather, father, brother, half-
brother or son (whether such relationship is or is not traced through lawful wedlock) to have carnal
knowledge of her (knowing him to be her grandfather, father, brother, half-brother or son, as the case may
be),
is said to commit “incest”.
Punishment for attempting to commit offences.
511. Whoever attempts to commit an offence punishable by this Code or by any other written law with
imprisonment or fine or with a combination of such punishments, or attempts to cause such an offence to be
committed, and in such attempt does any act towards the commission of the offence, shall, where no express
provision is made by this Code or by such other written law, as the case may be, for the punishment of such
attempt, be punished with such punishment as is provided for the offence:
Provided that any term of imprisonment imposed shall not exceed one-half of the longest term provided for
the offence.

SUBORDIATE COURTS PRACTICE DIRECTIONS (2004) EDITION

159. Appearance in Court 26, Sub Courts via video link of accused persons who are remanded at Queenstown

Remand Prison

(1) Application
- all accused persons remanded at Queenstown Remand Prison (QRP) and whose next mention has been
fixed in Court 26, will appear before Court 26 for mention through live video link between Court 26
and the QRP Video Room
- Court 26 commence at 8.45 am from Mondays to Fridays. Sittings in Court 26 on Saturdays will
commence at 9.00 am.
- for present purpose, apply only to cases mentioned in Court 26. accused persons who are first charged
in Court 26 will continue to appear or be physically produced in Court 26 for the first mention

(2) Taking of “last minute” instructions

- counsel will be able to do so via a telephone placed at the counsel’s table
 - this is subject to the approval of the presiding District Judge

(3) Pre-mention interviews

- pre-mention interviews

(4) Time for submitting application form

- counsel are required to submit the prescribed application form (Form 42 of Appendix B)
- for mention on Mondays, or on such other days where the preceding day is a public holiday, the
application form must be submitted personally to the court officer in Court 26 by 12.00 noon on the day
preceding the mention date
- applications for premention interviews have to be limited to 5 per day

(5) Counsel who are briefed after the first mention in court
- cases where the accused person is represented by counsel (counsel case) will continue to be mentioned
first
- if counsel is instructed only after the case had been first mentioned in Court 26, the Court’s record
would not have a mentions slip and would not indicate that the case concerned is a counsel case
- counsel must state clearly in the last row of the mentions slip (Form 43 of Appendix B) that the accused
person is remanded at QRP so that the case can be brought forward in the order of mentions

(6) Counsel who are absent when their cases are mentioned in court
- should be present in court before 8.45 am
- if counsel is absent when a video link case is mentioned, the case would be stood down until all other
cases have been dealt with

160. Witnesses giving evidence through live video link

(4) where requires an interpreter, interpreter will interpret the proceedings from open court

IN THE SUPREME COURT OF THE REPUBLIC OF SINGAPORE

REGISTRAR’S CIRCULAR NO.3 OF 2001

CRIMINAL TRIALS IN THE HIGH COURT

WITNESS AND EXHIBIT NUMBERING

1. Preliminary Inquiry
- PS 1, PS 2 and so on
- Exhibits shall similarly be marked sequentially as P1, P2 and so on
2. Sequential witness numbering at High Court criminal trials
- witness numbers shall be assigned to witnesses in ascending order (starting with PW 1 for prosecution
witnesses and DW 1 for defence witnesses)
3. Amendment to witness’ conditioned statement
- suffix “A”
4. Witnesses called during trial within a trial
- witness numbers shall be given in ascending order to each witness in the sequence in which they are
called, even for those whose statements are read only and are not required to take the witness stand
5. Exhibit numbering
- the exhibit numbering shall follow the PI marking
6. Reference to witness by counsel and the court
- primary means for referring to a witness shall be by his name
- secondary means shall be the reference to his PW number

PARTIES TO PROCEEDINGS
– Public Prosecutor
– Accused
- Attorney-General (A-G) is PP and has control and direction of criminal prosecutions and proceedings: Art.
35(8) Constitution, s.336(1) CPC
- Power to deputise certain persons to assist him in the performance of his functions and duties: s.336(3)
CPC
- Most functions of PP exercised by Deputy Public Prosecutors (DPPs) and Assistant Public Prosecutors
(APPs)
- Some Acts require A-G’s consent to be obtained before person can be charged
- For certain offences, the sanction of the PP (s.129 CPC) or complaint of A-G (s. 130) is required
- For some other offences, only victim may lay a complaint (s.131 & 132)
- police officers and other public officers are also gazetted to conduct prosecutions in Sub Courts
- A-G may authorize an advocate to act for him as PP
- Private individual may initiate a prosecution by laying a complaint before a magistrate: s.128(1)(a) CPC
- Private person may only conduct prosecution in MC or DC: s.336(8) CPC
- Rules governing joinder of accused persons: s.176 CPC
- Company can also be charged with a criminal offence
- Company would appear by its “representative”: s.57(1)
- “Representative” is a person duly appointed in writing by a managing director of the company or by any
person having the management of the affairs of the company: s. 57(3) & (4)

Public Prosecutor
– • A-G is the PP and he has the control and direction of criminal proceedings – Article 35(8) of the
Constitution and CPC, s 336(1).
 jasbir singh - 1999 2 SLR 349 – appeal to high court – complaitn not satisfied – PP on
appeal intervened to withdraw appeal for paymet nof pros costs – HC held tt under
s336 and under 35 consttn, PP has powers ot intervene and withdraw appeal
– • A-G has the power to deputise certain persons to assist him in the performance of his functions and duties
(CPC, s 336(3).
 • A-G may authorise an advocate to act for him in conduct of any prosecution in court
– CPC, ss 336(4)-(7).
 Fiat must be tendered in court
– • A private individual may initiate a prosecution by laying a complaint before a magistrate – CPC, s
128(1)(a).
 • But a private person may only conduct a prosecution in summary cases in a
magistrate’s court or in summary non-seizable cases before a district court - CPC,
s336(8).
– trial in sub court are ‘summary’ cases because not preceded by PI whereas cases in HC are preceded by PI

Accused
– • More than one accused may be tried jointly with committing a single offence or for separate offences if
those offences are so linked together. For the rules governing joinder of accused persons, see section 176
CPC.
– • Apart from an individual, a company can also be charged with a criminal offence. The company would
appear by its “representative” and the representative may on behalf of the company do any act or thing
which an accused person may do on his own behalf (CPC, s 57(1)).
 Make sure tt u get letter in writing signed by manager of any person apptg person to
rep company in proceedings
 ‘the ltter of authority’ – this is the ‘LA’
(I) make sure tt not drafted just to athorise person to appear onspecific day –
because for next day, another LA reqd – whlsd be worded generally until
proceedings are concluded
– • A “representative” is a person duly appointed in writing by a managing director of the company or by any
person having the management of the affairs of the company (CPC, ss 57(3) & (4)).

Types of offenders
– • Two types – (1) juvenile offender (2) adult offender

Juvenile offenders
– • Part III of the Children and Young Persons Act (Cap 38).
– • “juvenile" means a male or female person who is 7 years of age or above and below the age of 16 years (s.
2).
– • Juveniles detained in a police station or when being conveyed to and from court or while attending court
are are not permitted to associate with adult accusedpersons other than an offender with which the child or
young person is jointly charged (s. 29).
– • Juveniles are brought before a Juvenile court presided over by a Magistrate.

– • For bail of juveniles – see s.30.

– • Where a juvenile is charged, his parent or guardian shall, unless the court otherwise orders, attend before
the court during all stages of the proceedings and the court may compel the attendance of the parent or
guardian (s.31).
 so parents shld accaompny child when tried in court
– • Basic proposition that a juvenile can only be tried by the juvenile court (s.33(1)) is subject to the following
exceptions:
 (i)Where a child or young person is charged with any offence triable only by the High
Court, he shall be tried by the High Court unless — (a) the Public Prosecutor applies to
the Juvenile Court to try such offence; and (b) the “legal representative” (defined in s
33(8)) of the juvenile consents to the offence being tried in the Juvenile Court.
 (ii) Where a charge is made jointly against a juvenile and a person who has attained the
age of 16 years, the charge shall be heard by a court of appropriate jurisdiction other
than a Juvenile Court (s 33(3)). – common for rioting offences. But if 3 adults PG and
juvenile claims trial, then he will be tried in juvenile court
– • A person who has attained the age of 16 years on the date of commencement of the hearing of the charge
shall not be tried by a Juvenile Court (s 33(6)).
 Don’t delay, make sure tt takes plea before turns 16!!!
 But where in the course of any trial before a Juvenile Court the child or young person
to whom the trial relates attains the age of 16 years, the Juvenile Court can proceed
with the trial and deal with the juvenile in accordance with the provisions of the Act (s
33(7)).
– Who can be present?
 • No person shall be present at any sitting of a Juvenile Court except — (a) members
and officers of the Court; (b) parties to the case before the Court, their solicitors and
counsel and witnesses and other persons directly concerned in that case; (c) bona fide
representatives of newspapers or news agencies; and (d) such other persons as the
Court may specially authorise to be present (see s. 34(2)).
– • Particulars of juvenile who is charged or who is a witness cannot be published (s. 35(1)).
– • The word “conviction’ and “sentence” are not used in the Juvenile Court but instead found guilty of
an offence/ a finding of guilt/ an order (s. 41).
– • Procedure in Juvenile Court – see s.42
 • Where the juvenile is not legally represented, his parents or guardian or, in their
absence, any relative or other responsible person can assist in conducting his defence (s
42(5)).
– • Before deciding how to deal with the juvenile, the Juvenile Court would call for a pre-sentence report
which would be put up by a probation officer setting out information on his background, general conduct,
home surroundings, school record, medical history etc. The Juvenile Court can also call for a psychiatric or
a psychological report to ascertain the mental state or state of development to enable it to deal with the case
in the best interests of the juvenile.
– • For restrictions on punishment of juveniles – see s. 37(1) to (3).
– • For orders that can be made on proof of the offence, see section 44(i) – (k) of the Act.
– • The Juvenile Court can convene a family conference in accordance with s 45 of the Act.
– • See s 46 for additional orders that can be made.
– • On the sentencing date, the Juvenile Magistrate would discuss the pre-sentence report and the method of
dealing with the juvenile with two advisers (s.32(3)).
 May or may not sit with the magistrates

PRELIMINARY PROCEEDINGS IN A CRIMINAL TRIAL

– • All criminal trials in District and Magistrate’s Courts are referred to as “summary” trials because unlike the
High Court trial, it is not preceded by a preliminary inquiry.
– • Sections 180 – 184, 195 -201 CPC are the relevant statutory provisions.

• Essentially means speedier, less cumbersome trial than one which requires PI (High Court trials)
• Must supplement this with working knowledge of other parts of CPC & EA & cases interpreting these: eg.
amendment of charges, recalling witnesses, impeachment, refreshing memory
• Must appreciate key differences with civil trial

Criminal Trial Civil Trial

Law: Part IV Constitution, CPC, EA, PC, statutory Law: EA, ROC, substantive law
law

No pre-trial disclosure Pre-trial disclosure

Oral EIC, XE, RE Affidavit EIC, oral XE, oral RE

Documentary evid usually applied for and admitted Documentary evid usually admitted in a bundle
individually in court

Beyond reasonable doubt Balance of probabilities

Penal sanctions Civil Remedies

Reading & Explaining the Charge in Language accused understands

• Summary trial commences with the reading and explanation of the charge to an accused who is brought
before the courts: Loh Siang Piow [1998].
• Having read and explained the charge in a language the accused understands, the accused will be asked how
he pleads: s 180(a) CPC.
• If the accused elects a foreign language or dialect, the court is duty bound to arrange for certified
foreign interpreters, who must swear in the prescribed form before interpreting for the accused: s209
CPC
o CPC provisions on interpreters are statutory safeguards to ensure that an accused is substantially
able to comprehend the proceedings to best enable him to present his defence.
• Court is duty bound to ensure that an accused is substantially understand the evidence given in the
proceedings and the right to an interpreter cannot be waived by an accused or his counsel: Mat Repin bin
Mamat v PP [1994]
o This enshrines the fundamental principles of equality before the law (Art 12) and due process (Art
9(1)) as laid down in Constitution

Facts
The appellant Repin was convicted for importing not less than 1,026g of cannabis. Repin could only speak and
understand the Kelantanese dialect. On the first day of hearing, the court provided a Bahasa Melayu (Malay
language) interpreter but the following day the services of a Kelantanese interpreter was secured. The chemist
weighted the plant material seized from the petrol tank of Repin’s scooter to produce a reading of 1,026g. After
visually examining the plant material and noting that it displayed the characteristics of the cannabis plant, she
took nine random samples of 5g each from the entire exhibit. All nine samples tested positive for cannabis. She
then certified the plant material to be 1,026g of cannabis. Repin’s counsel argued that: (a) there was procedural
irregularity in the conduct of the trial as the trial judge proceeded without providing a suitable or duly qualified
interpreter for the appellant; (b) the chemist had analyzed only 45g of the entire plant material and the
prosecution failed to show beyond a reasonable doubt that the entire plant material was 1,026g of cannabis; and
(c) at the very least the chemist should have analyzed 500g of the substance as this was the minimum amount of
cannabis to attract the death penalty.
Held, dismissing the appeal:
(1) It was the court’s duty to ensure that the accused was able to substantially understand the evidence given in
the proceedings and the accused could not waive the right to an interpreter. Notwithstanding non-compliance
with s 209(1) of the Criminal Procedure Code (Cap 68), an appellate court would only interfere if the accused
had been so prejudiced that there was a failure of justice. As the Kelantanese interpreter was already present by
the time the truly contentious prosecution witnesses took the stand, the appellant was not prejudiced by only
partially understanding the witnesses on the first day of the proceedings.

• Art. 12 & 9(1) Constitution

CPC - Interpretation of evidence to accused.
209. —(1) Whenever any evidence is given in a language not understood by the accused and he is present in
person, it shall be interpreted to him forthwith in a language which he understands.
(2) When documents are put in for the purpose of formal proof, it shall be in the discretion of the court to
interpret as much of them as appears necessary.
Constitution - Equal protection
12. —(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of
Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to
any office or employment under a public authority or in the administration of any law relating to the
acquisition, holding or disposition of property or the establishing or carrying on of any trade, business,
profession, vocation or employment.
(3) This Article does not invalidate or prohibit —
(a) any provision regulating personal law; or
(b) any provision or practice restricting office or employment connected with the affairs of any religion,
or of an institution managed by a group professing any religion, to persons professing that religion.
Liberty of the person
9. —(1) No person shall be deprived of his life or personal liberty save in accordance with law.

– • If the prosecution is ready, the accused would be required to plead to the charge – “guilty” or “not guilty”.
If he refuses to plead, then he would be regarded as claiming trial.
– If PP not ready, can apply for Adjournment for forensic (GSB, FPD, DSS) report, incomplete
investigations, seek AGC’s concurrence, consider reps by defence, etc
– If PP not ready, can also apply for Remand accused for further investigation (at any 6 police divisions,
QRP, CWP), psychiatric report (IMH)
 Reasonable cause for remand = there is suspicion that accused may have committed an
offence or where further evidence may be obtained by a remand – explanation to s198
CPC
 Length of remand: No restriction on how long District Judge can remand accused.
Magistrate’s Court cannot remand accused for a term exceeding 8 days at a time:
s198(2) CPC.
 If bail is offered in arrest case but accused is unable to furnish bail, he may also be
remanded.
 If investigations against accused is incomplete and the accused is required to be
remanded further, he will be held incommunicado and the court is entitled to refuse
access to counsel until investigations are completed.
(a) While accused has constitutional (Art 9(3)) and statutory right to
counsel (s195 CPC), right of access counsel is not immediate but
within reasonable time from arrest.
(b) Balance has to be drawn between public interest for investigations to
be completed without undue interference by the defence and the
interest of the accused to have legal advice early. Court must weigh
these competing interests before deciding what is reasonable time
before accused can have access to counsel: Jasbir Singh & Anor v PP
[1994]
– • If the prosecution is not ready (usu not ready by first mention), it would do one of three things:
(a) apply to remand the accused in custody if custody of the accused is necessary
for investigations to be completed (see CPC. s 198); or
 (b) offer bail to the accused;
(c) object to bail.
– • Alternatively, if the prosecution is ready at the first mention, the accused may ask for an adjournment or
counsel may ask for an adjournment.
– If accused (or counsel) not ready, can apply for Adjournment TEC, take instructions, make reps, prep
medical/psychiatric report (of accused or mitigation plea)
– Making representations
(I) Reps can be made at any time after counsel has been briefed by accused
even before the accused is formally charge in court.
(II) Reps to address to AG Chambers, IO or police division concerned.
(III) Rep can be made with view to withdraw or reduce charges or an offer can
be made to PG to some charges with the rest taken into consideration for
sentence.
– Plea Bargaining
(I) Plea bargaining process does not involve the court but as PP v Knight
Glenn Jeyasingnam [1999] shows, our courts recognise the benefit of plea
bargaining, which allows the courts to give a lighter penalty to accused
persons who plead guilty, so that less of the courts’ time and criminal
justice system’s resources are spent.
– Composition to Aggrieved party
(I) In making representations, the defence may also request PP to consider
composition if the offence is compoundable in law. Composition generally
means a private settlement of a criminal case usually by means of the
accused paying compensation to the victim.
(II) The ultimate decision whether to allow composition is a judicial one. s199
CPC and PP v Norzian Bin Bintat [1995] 3 SLR 462. Rationale that such
private settlements require courts’ consent is to avoid an inequitable legal
system where the rich can avoid criminal sanction by paying off the poor.
(III) Courts will generally disallow composition for cases involving public
interest, such as
a. maid abuse (PP v Kee Leong Bee [1999] 3 SLR 190) or
b. road bully cases (Wong Sin Yee v PP [2001] 3 SLR 197),
or
c. where aggravating circumstances of alleged offence are
present (PP v Mohamed Nasir Bin Mohamed Sali [1999]
4 SLR 83 where accused outrage the modesty of his niece.
Accused abused he close relationship of trust between
himself and the complainant over a protracted period of
three years )

• Medically Unfit: If either accused, witness, counsel or prosecutor is medically unfit to attend court, this is
constitutes reasonable cause for adjournment.
o Party’s attendance may be dispensed with subject to tendering of properly endorsed MC in strict
compliance with Subordinate Courts Practice Direction No. 1 of 1999, para 64.
o Note that even if accused is medically excused from attending court, if the court is of the view that
his non-attendance is more a deliberate attempt to evade proceedings, the court may refuse to grant
a further adjournment and may direct the accused to be arrested instead: Chua Tiong Tiong v PP
[2001]

• Legal basis  s 198 CPC – court will exercise this discretion if it is “necessary and advisable to do so”.

Power to postpone or adjourn proceedings.

198. —(1) If from the absence of a witness or any other reasonable cause it becomes necessary or
advisable to do so the court may, by order, postpone the commencement of or adjourn any inquiry
or trial on such terms as it thinks fit for such time as it considers reasonable and may, if the
accused is not on bail, by a warrant remand the accused in such custody as the court thinks fit.
 Form 36.
(2) No Magistrate’s Court shall remand an accused person to custody under this section for a
term exceeding 8 days at a time.

(3) Every order made under this section by a court other than the High Court shall be in writing
signed by the Magistrate or District Judge and shall state the reasons for it.

Explanation..—If sufficient evidence has been obtained to raise a suspicion that the accused may
have committed an offence and it appears likely that further evidence may be obtained by a remand
this is a reasonable cause for a remand.

– • The following is a list of common scenarios where adjournments are sought, and the usual time frames
permitted:

By the Defence:
(a) Accused wishes to engage counsel (‘TEC’) or apply for Criminal Legal Aid (CLAS) - 1 week and 2 weeks
respectively.
(b) Counsel has just been briefed (‘JBB’) - to apply for necessary papers (e.g. first information report, s 122(6)
statements) and to make representations to the A-G’s Chambers - 4 weeks
1. reps – to withdraw charges/ administer stern warning to client/ on no of charges to be
proceeded with./ reduction of charges/ composition (if compoundable)
2. cannot be tenderd at trial – plea barg statements are confidential
(c) Indication of intention to take a certain course and request for time to raise funds/make restitution - 2 to 3
weeks
(d) Indication of intention to take a certain course and request for time to prepare mitigation - 1 to 2 weeks
By the Prosecution
(a) Seeking DPP’s instructions - 1 to 2 weeks
(b) Prosecution applies for time for further investigations - 2 to 4 weeks
(c) Psychiatric report required - 2 weeks (remanded IMH to ascertain fitness to plea) – because accused must be
fit to plea – court may have reason to suspect tt acused not fit to plea – more so usu because of application
of the proseuciton -
(d) HSA report - 4 weeks
(e) Medical report on victim - 4 weeks
- • As a general rule, a case will remain in Court 26 for a ‘holding’ period of approximately 6 weeks from the
first mention.(6 to 8 wks)

DOES NOT APPLY TO FAST TRACK CASES – WHERE URGENT/ ACCUSED IN REMAND
– • With respect to (c) above, the accused must be fit to plead if his plea is to be accepted. If the court has
reason to suspect that an accused is not fit to plead, e.g. based on the court’s own observation of his
behaviour in court or on the prosecution’s application, the Court will order the accused to be remanded at
IMH to ascertain his fitness to plead – see CPC, sections 307 to 319.
– • Generally after a ‘holding’ period of approximately 6 weeks from the first mention, the case will proceed
to a pre-trial conference (“PTC”) if (1) the accused claims trial or is not otherwise prepared to plead guilty
or (2) the prosecution is not ready with their case. Depending on the availability of dates, the PTC will be
scheduled in 1 - 2 weeks from the last mention.
– • For “fast-track” cases or cases where the accused is in remand, the holding period may be shortened
considerably and the PTC may be fixed as early as one week from the date of the first mention.
– • PPO cases – such cases are transferred to a GMC Court within 2 weeks of being mentioned in Court 26.

APPLICATION FOR ADJOURNMENT AND REMAND

- an adjournment is likely to be necessitated by factors such as the accused wishing to instruct counsel,
counsel needing time to take instructions and make representations, prosecution needing time to
complete investigations, to obtain forensic or medical reports, et cetera
- court’s power to adjourn or postpone proceedings in criminal matters: s. 198(1) CPC
Power to postpone or adjourn proceedings.
198. —(1) If from the absence of a witness or any other reasonable cause it becomes necessary or advisable
to do so the court may, by order, postpone the commencement of or adjourn any inquiry or trial on such
terms as it thinks fit for such time as it considers reasonable and may, if the accused is not on bail, by a
warrant remand the accused in such custody as the court thinks fit.
Form 36.
- a properly endorsed medical certificate in strict compliance with para 135 (Pt XV) of the Subordinate
Courts Practice Directions 2006 must be tendered
 Sub Courts Prac - 135. Absence from Court on medical grounds
1(1) If:
0(a) any party to proceedings;
1(b) any witness;
2(c) any counsel; or
3(d) a Deputy Public Prosecutor or other officer or person appointed by the Attorney-General to assist him
or to act as his deputy in the performance of any of the functions or duties of the Public Prosecutor under
the Criminal Procedure Code (Cap. 68, 1885 Revised Edition) or under any other written law,
1is required to attend Court and wishes to excuse himself from Court on medical grounds, he must tender or
cause to be tendered to the Court an original medical certificate. The medical certificate so tendered must be
in the form and contain the information and particulars required by sub-paragraphs (2) to (5).
2(2) A medical certificate issued by a Government hospital or clinic may be in the pre-printed form
produced by the Ministry of Health, a sample of which appears at Form 52 of Appendix B. A medical
certificate issued by a restructured hospital or specialist centre may also be in a pre-printed form similar to
the sample which appears at Form 52 of Appendix B. The pre-printed medical certificate must:
0(a) be completely and properly filled in;
1(b) contain the name of the medical practitioner who issued the medical certificate;
2(c) state the name of the hospital or clinic in which the medical practitioner practices;
3(d) indicate that the person to whom the certificate is issued is unfit to attend Court, and specify the date(s)
on which he is unfit to attend Court;
1be signed in full by the medical practitioner and must not be merely initialled; and
2(f) be authenticated by a rubber stamp showing the medical practitioner’s full name and his designation in
the hospital or clinic, as the case may be.
2(3) If a medical certificate is not in Form 52 of Appendix B, then the medical certificate should:
1(a) be addressed to the Court for which the certificate was intended. It must not merely be addressed to
“whomsoever-it-may-concern”. Where the patient is unable to furnish the name of the judicial officer
concerned, the relevant medical certificate may be addressed to “The District Judge/Magistrate, Subordinate
Courts” or “The Registrar, Small Claims Tribunals”, as the case may be;
0(b) identify clearly the name of the medical practitioner who issued the certificate;
1(c) state the name of the hospital or clinic from which it had been issued;
2(d) be signed in full by the medical practitioner and not merely initialled;
3(e) be authenticated by a rubber stamp showing the medical practitioner’s full name, designation and any
other relevant particulars;
0(f) contain the diagnosis of the patient concerned, if any (unless the diagnosis cannot or should not
normally be disclosed);
1(g) contain a statement to the effect that the person to whom the certificate had been issued is medically
unfit to attend Court, and specify the date(s) on which the person is unfit to attend Court; and
2(h) bear the date on which it was written, and where this differs from the date of consultation this must be
clearly disclosed.
1(4) If any portion of the information set out in sub-paragraph (3) is not found in the medical certificate
proper, such information should be included in a memorandum attached to the medical certificate. This
memorandum must similarly:
0(a) identify clearly the name of the medical practitioner who issued the memorandum;
1(b) contain the name of the hospital or clinic from which it was issued;
2(c) be signed in full by the medical practitioner and not merely initialled; and
3(d) be authenticated by a rubber stamp showing the medical
0practitioner’s full name and designation.
2(5) All information and details in any medical certificate or any memorandum must be clearly and legibly
printed.
3(6) If the Directions set out in sub-paragraphs (2) to (5) are not complied with, the Court may reject the
medical certificate and decline to excuse the absence from Court of the person to whom the medical
certificate was issued. The Court may then take any action it deems appropriate.
4(7) This Paragraph shall apply to both civil and criminal proceedings in the Subordinate Courts, whether in
open Court or in chambers (including proceedings in the Family Court and the Small Claims Tribunals).
- even if accused is medically excused from attending court, if court is of view that his non-attendance is
more a deliberate attempt to evade proceedings, court may refuse to grant a further adjournment and
may direct that the accused be arrested instead: Chua Tiong Tiong v PP [2001] 3 SLR 425
 Chua Tiong Tiong v PP
Facts
The appellant, was convicted on a charge under s 6(b) of the Prevention of Corruption Act (Cap 241)
(“PCA”) of bribing a senior police officer to provide assistance and insider information relating to arrests
arising from his illegal moneylending activities. The appellant was sentenced to 18 months’
imprisonment. The senior police officer, one Lim, was convicted in the same trial on a corresponding
corruption charge. Lim was sentenced to 30 months’ imprisonment. The appellant appealed against his
sentence on the ground that it was manifestly excessive.
Held, dismissing the appeal and enhancing the sentence to 48 months’ imprisonment and a fine of
$100,000:
(1) The present case involved serious public interest considerations. Eradicating corruption in our
society was of primary concern, especially where public servants were involved, whose core duties were
to ensure the smooth administration and functioning of the country. Any loss of confidence in those
running the administration as a result of corruption would ultimately undermine the forces which sustain
our democratic institutions.
(2) Generally, in most cases, the giver of gratification bore equal culpability to that of the receiver and
hence sentences meted out should be similar in terms. However, there were cases where a giver was less
culpable and deserved a lesser punishment, such as when a giver was under compulsion or some form of
pressure to give. Conversely, a giver could be more culpable than the receiver, such as when the giver
intended to corrupt the establishment of law and order for his private gain or to pervert the course of
justice. In the latter situation, which was the case here, the giver deserved more punishment.
(3) In the light of all the considerations, the appellant’s sentence was manifestly inadequate. The
appellant’s elaborate bribery scheme had far-reaching consequences and if not stopped or deterred, would
compromise the entire foundation of our criminal justice system. The appellant’s previous antecedents all
demonstrated the need for a sentence which would sufficiently deter him from future criminal conduct.
He was clearly a recalcitrant offender and his present conviction simply showed his increasing disregard
of the law.
(4) The PCA was enacted to provide for more effectual prevention of corruption in Singapore. To give
effect to the punishment prescribed under s 6(b), a sentence of 48 months’ imprisonment and a fine of
$100,000 (in default 24 months’ imprisonment) would be appropriate.
- prosecution may apply for a remand if the custody of an accused is necessary for investigations
- while there is no restriction on how long a district court judge can remand an accused, a magistrate’s
court shall not remand an accused for a term exceeding 8 days at a time: s. 198(2) CPC
- accused may be ordered to be remanded where accused is unable to furnish bail or in vases where bail
has been denied
Power to postpone or adjourn proceedings.
198. —(2) No Magistrate’s Court shall remand an accused person to custody under this section for a term
exceeding 8 days at a time.
Explanation..—If sufficient evidence has been obtained to raise a suspicion that the accused may have
committed an offence and it appears likely that further evidence may be obtained by a remand this is a
reasonable cause for a remand.

FAM VIOLENCE CASES

– • For straightforward and simple cases and where the accused is not represented, these may be fixed directly
for hearing in Court 14 within two weeks from the last mention in Court 26 or Court 23.
 If in court 14 that means fixed for hearing
 Policy is no adjournment so must be ready for trial!

Particular procedures in a criminal trial

– • If the accused is absent, a warrant of arrest would be issued against him and the bail sum would be
forfeited. The surety would be asked at a later date (usually about a month later) to show cause why the full
sum ought not to be forfeited.
– • The law provides that the evidence must be taken in the presence of the accused (CPC, s 203).
– • This is subject to provisions which provide otherwise – for example: Magistrate may, by indorsing a
summons, permit theaccused to appear by his advocate (CPC, 137(1)). If the offence is punishable by fine
only or by imprisonment not exceeding three months and a ummons has been issued, the accused may plead
 guilty by advocate or his letter (CPC, 137(2)). If the court intends to impose a sentence of imprisonment the
accused must be present for this purpose (CPC, 137(5).
Non-appearance of accused
– If it is shown that the summons was served on the accused a reasonable time before the date on which he
was required to appear and there is no basis for an adjournment, the court may hear and determine the
complaint in his absence (CPC, s 180(p). Otherwise it may adjourn the hearing.

PRESENCE OF THE ACCUSED AT TRIAL

- attendance secured by court remanding accused in custody or releasing him on bail or in obedience to a
summons that has been served
- once accused is formally charged in Court, fresh bail would be offered at the first mention by the Court
- all court bails are processed at the Bail Centre
- s. 203 CPC provides that all evidence shall be taken in the presence of the accused or in his advocate
Evidence to be taken in presence of accused.
203. Except as otherwise expressly provided all evidence taken under Chapters XVII, XIX and XXI shall be
taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of
his advocate.
- physical attendance of accused to be dispensed with:
a) when magistrate endorses on the summons that the personal attendance of the accused is dispensed
with and permit him to appear by advocate: s.137(1)
b) in a summons case where the offence is punishable with a fine or imprisonment up to 3 months or
both, and the accused intends to plead guilty: s. 137(2) to (3)
c) court has decided to use a ‘live’ videolink in a case: s.364A(3) CPC, and procedure is set out in
Sub Courts Practice Direction 2006, Pt XVI, para 157, sessions are usually held between 8.45 am
to 9 am every morning

Personal attendance of accused may be dispensed with.

137. —(1) Whenever a Magistrate issues a summons, he may, at his discretion, by endorsement thereon or
footnote thereto, dispense with the personal attendance of the accused and permit him to appear by
advocate.
(2) In any case relating to an offence punishable by fine or by imprisonment not exceeding 3 months or by
both and in which a Magistrate has issued a summons, an accused person desiring to plead guilty and be
convicted and sentenced in his absence may appear by advocate, or may by letter addressed to the court
plead guilty and submit to pay any fine which may be imposed in respect of that offence, and the court may
thereupon record a plea of guilty and convict him according to law, and may sentence him to a fine with or
without a sentence of imprisonment in default of payment of the fine.
Act 31/96 wef 1.11.96 vide S 467/96.
(3) In case of a plea of guilty by letter the accused shall give in the letter an adequate postal address and the
court shall inform the accused by letter sent by registered post to that address of the sentence imposed. Any
fine so imposed shall be paid by the accused within 7 days from the date on which the court’s letter was
posted.
Evidence through live video or live television links.
364A. —(3) Notwithstanding any other provision of this Act or the Evidence Act, the court may, in its
discretion, order an accused person to appear before it through a live video or live television link whilst in
remand in Singapore in proceedings for any of the following matters:
(a) any application for bail;
(b) any extension of the remand of an accused person under section 198; and
(c) such other matters as the Minister may, after consulting the Chief Justice, prescribe.

Sub Courts Practice - 157. Appearance in Court 26, Subordinate Courts via video link of accused
persons who are remanded at Queenstown Remand Prison
The Directions contained herein shall govern the use of and the procedures in connection with the video link
facilities available in Court 26 for the use of counsel.
1(1) Application
0(a) With effect from 2 January 1996, all accused persons remanded at the Queenstown Remand Prison
(`QRP') and whose next mention has been fixed in Court 26, will appear before Court 26 for mention
through live video link between Court 26 and the QRP Video Room. All other aspects of the proceedings in
court will remain unchanged.
1(b) In order to facilitate these proceedings, Court 26 will commence earlier at 8.45 am from Mondays to
Fridays. Sittings in Court 26 on Saturdays will be unaffected and will commence at 9.00 am.
2(c) This mode of appearance shall, for the present purpose, apply only to cases mentioned in Court 26 and
not to other cases fixed for mention or for hearing in any of the other courts in the Subordinate Courts.
However, accused persons who are first charged in Court 26 will continue to appear or be physically
produced in Court 26 for the first mention.
3(d) A schedule of the cases where the accused persons are to appear before Court 26 via video link for that
day will be made available at the counsel’s table in Court 26 by 8.15 am every morning for reference.
1(2) Taking of “last minute” instructions
1(a) In a case where the accused person is appearing via video link and his counsel wishes to take `last
minute' instructions privately while that matter is being mentioned, his counsel will be able to do so via a
telephone placed at the counsel’s table. This is subject to the approval of the presiding District Judge.
2(b) In order not to disrupt the proceedings, such taking of `last minute' instructions should be restricted
only to matters relevant to the mention and be kept as short as practicable.
2(3) Pre-mention interviews
1(a) Additionally, a new facility will be provided in Court 26

0for counsel to conduct pre-mention interviews with the accused person who will be appearing in Court 26
via video link. This will be scheduled between 8.10 am and 8.40 am, prior to the commencement of the
court sitting at 8.45 am.
1(b) Arrangements will be made for the accused person to be produced at the QRP Video Room between
8.10 am and 8.40 am on the day that the case is due for mention via video link in Court 26.
0(c) Counsel who have reserved a time slot for a pre-mention interview must be present at Court 26 by 8.05
am to commence the interview via video link. Again, due to the time limitation, each interview has to be
limited to three (3) minutes. Similarly, such interviews should be restricted only to matters relevant to the
mention and be kept as short as practicable.
0(d) It is important to note that these pre-mention interviews are not designed to replace the taking of full
instructions by counsel, who may continue to apply to the Superintendent, QRP, to visit accused persons in
prison for an interview.
1(e) If a counsel is absent when his client is ready for the pre-mention interview, the counsel would lose his
time slot. The counsel can then apply to the Court to communicate with his client as detailed at sub-
paragraph (2) above when the case comes up for mention in open court.
2(4) Time for submitting application form
1(a) In order that a time slot may be reserved for the pre-mention interview, counsel are required to submit
the prescribed application form (Form 60 of Appendix B) as follows:
1(i) For video link cases fixed for mention on Mondays, or on such other days where the preceding day is a
public holiday, the application form must be submitted personally to the court officer in Court 26 by 10.30
am on the preceding Saturday, or the day preceding the public holiday, as the case may be; and
2(ii) for video link cases fixed for mention on Tuesdays to Fridays, the application form must be submitted
personally to the court officer in Court 26 by 12.00 noon on the day preceding the mention date.
3(b) In view of the time limitation, applications for pre-mention interviews have to be limited to five (5) per
day and would be processed on a “first-come-first-serve” basis. All applications by counsel may be deemed
approved, unless counsel is otherwise informed by the Court.
2(5) Counsel who are briefed after the first mention in court
0In view of the video link cases, there is a necessity to modify the order of mentions of cases. This will be
managed by the court officer in Court 26. Video link cases will be mentioned ahead of all other cases. As far
as practicable, cases where the accused person is represented by counsel (`counsel case') will continue to be
mentioned first.
0If a counsel is instructed only after the case had been first mentioned in Court 26, the Court's record would
not have a mentions slip and would not indicate that the case concerned is a counsel case. In such a case, the
counsel must state clearly in the last row of the mentions slip (Form 61 of Appendix B) that the accused
person is remanded at the QRP so that the case can be brought forward in the order of mentions. Otherwise,
it will be treated as an `accused-in-person' (`AIP') case and would be mentioned only after all cases
represented by counsel have been dealt with.
(6) Counsel who are absent when their cases are mentioned in court
Counsel whose clients are to appear in Court 26 via video link should be present in court before
8.45 am. If the counsel is absent when a video link case is mentioned, the case would be stood
down until all other cases have been dealt with. If there is a need, a second video link session will
 be scheduled at 10.30 am on the same morning.
(7) Instances where the Court may order an accused person remanded at the QRP to be physically
produced in Court 26

The court may order that an accused person who is to appear, or who has previously appeared, via video
link in Court 26 to be physically produced in court. These instances include the following:
1(a) when an accused person indicates that he intends to plead guilty;
2(b) when the charge(s) against an accused person is/are withdrawn;
1(c) when the accused person has to be produced in court for bail processing;
1(d) when the Court deems it necessary under section 364A(5) of the Criminal Procedure Code (Cap. 68,
1985 Revised Edition); or
2(e) when the presiding District Judge so orders.
- if accused voluntarily absents himself, court will issue a warrant for his arrest
judge also has discretion to examine witnesses produced by prosecution: s.375 CPC

Transfer of Cases to Other Courts – s186 CPC

During mentions, case may be Transferred from one court to another. Possibilities include:

CLASSIFICATION OF OFFENCES AND COURTS

- classification is made with reference to the hearing and sentencing jurisdiction
- case may also be transferred between different criminal courts upon prosecution’s application or on the
court’s own motion: s.186 CPC

• (1) Case wrongly classified or reclassified

o (DAC as MAC)
• (2) Accused has many previous convictions and PP wants to press for CT, PD which only District Court can
impose
• (3) Court does not have full sentencing powers
o (DJ hearing MAC ex. Mag powers)
• (4) Case management reason:
o eg. corruption and commercial crime cases are specially managed

• Legal basis  s186 CPC

Transfer of cases by other courts.

186. —(1) In any trial before a Magistrate’s Court in which it appears at any stage of the proceedings
that from any cause the case is one which the Magistrate’s Court is not competent to try or one which
in the opinion of that Court ought to be tried by a District Court or by the High Court, or if before or
during the trial application is made by the Public Prosecutor, the Court shall stay proceedings and
transfer the case to a District Court or proceed under Chapter XVII with a view to the committal of
the accused for trial by the High Court and shall record its order on the proceedings.

(2) In any trial before a District Court in which it appears at any stage of the proceedings that from
any cause the case is one which the District Court is not competent to try or one which in the opinion
of that Court ought to be tried by the High Court, or if before or during the trial application is made
by the Public Prosecutor, the Court shall stay proceedings and order the accused to be brought before
a Magistrate’s Court with a view to his committal for trial by the High Court and shall record its
order on the proceedings.

(3) The powers conferred by subsections (1) and (2), other than the power of a Magistrate’s Court to
transfer a case to a District Court, shall not be exercised except upon the application as aforesaid or
with the consent of the Public Prosecutor.

(4) If in a trial before a Magistrate’s Court or a District Court the accused, when charged, has refused
to plead or has not pleaded or has claimed to be tried, and no further step has been taken in the
proceedings, the Court may, if it thinks fit, stay the proceedings and transfer the case to another
 Magistrate’s Court or District Court, as the case may be, and shall record its order on the
proceedings.

PLEA OF GUILT

Workflow of plead guilty cases

– • If accused enters a plea of guilty at Court 26 or Court 23 he may be dealt with in Court 26 or 23 itself or
his or her case be transferred to:
 Court 24;
 community court.
– Ie may transfer after taking plea and recording it – do not be shocked tt coinviction and sentence
not given there and then
– Some cases may go to court 20

Procedure where Accused Pleads Guilty

If accused wishes to PLEAD GUILTY, and parties are ready for plea, mentions court can record plea and pass
sentence, follow this procedure:
WHERE AN ACCUSED PLEADS GUILTY TO A CHARGE
- must be advised on the offence for which he is charged and the maximum or minimum penalty for the
offence
- duty of a judge before accepting a plea of guilty is set out by Rajah Azlan Shah J. in Cheng Chong &
Ors v PP:
• judge must satisfy himself by:
a) considering each and every ingredient of the charge;
b) questioning the accused to see whether he really understands the charge and intends to admit the
facts without qualification; and
c) ascertaining that the accused understands the nature and consequences of his plea
- if the particulars of the charge do not coincide with the statement of facts, the court can order an
adjournment for the prosecution to either amend the charge or the statement of facts, the court cannot
acquit the accused: PP v Soon Tiew Choon
- if the court finds that the statement of facts discloses that the offence is made out and the accused
admits to the statement of facts without qualification, and does not qualify the plea of guilt or the
statement of facts at any stage of the proceedings, the court ought not to amend the charge, and unless
there are exceptional circumstances, the court ought to convict the accused: PP v Banphanuk

1) Charge read and explained to accused: s 180(a) CPC

- Charge(s) read (usually by the court interpreter) (there may be interpreter)
- Accused indicates that he wishes to plead guilty
- Intepreter will explain the punishment and implications of the charge
-  If accused does not plead guilty, he claims trial and the hearing dates will be given.

Procedure: s.180(a) & (b), s.187(1) CPC

Procedure in summary trials.

180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary trials:
(a) when the accused appears or is brought before the court, a charge containing the particulars of the offence
of which he is accused shall be framed and read and explained to him and he shall be asked whether he is
guilty of the offence charged or claims to be tried;
(b) if the accused pleads guilty to a charge whether as originally framed or as amended, the plea shall be
recorded and he may be convicted on it:
Provided that before a plea of guilty is recorded the court shall ascertain that the accused understands
the nature and consequences of his plea and intends to admit without qualification the offence alleged
against him;
 Commencement of trial.
187. —(1) When the court is ready to commence the trial, the accused shall appear or be brought before it and
the charge shall be read and explained to him and he shall be asked whether he is guilty of the offence charged
or claims to be tried.

2) The accused should also be fit to plead guilty. Where the accused is unfit, there are separate procedures,
which governs this. See Section 307 – 319 of the CPC.

Procedure when accused is suspected to be of unsound mind.

308. —(1) When a Judge or District Judge holding a trial or a Magistrate holding or about to hold an
inquiry or trial has reason to suspect that the accused is of unsound mind and consequently incapable of
making his defence, the Judge, District Judge or Magistrate, as the case may be, shall in the first instance
investigate the fact of such unsoundness.

(5) Any court before which a person suspected to be of unsound mind is accused of any offence may, on
the application of the Public Prosecutor, made at any stage of the proceedings before the trial, order that
that person be sent to a mental hospital for observation. The medical superintendent may, notwithstanding
any other provision of law, detain any such accused person for such period, not exceeding one month, as
may be necessary to enable him to form an opinion as to the state of mind of that person, and shall
forward a copy of his opinion, in writing, to the Public Prosecutor

Fitness to plead
- Not everyone’s plea will be excepted
- Should be fit to plead – if not fit, then not accepted
- Where accused is unfit to plead – separate procedure, s307-s319 CPC
- Accused appears to be of unsound mind, court must in the first instance inquire on this issue: s. 308(1) & (2)
CPC
- Court may on its own motion, or through the prosecution’s application order the accused to be remanded up
to a month each time in a mental institution (Institute of Mental Health) to ascertain his fitness to plead: s.
308(3) to (5) CPC

Procedure when accused is suspected to be of unsound mind.

308. —(1) When a Judge or District Judge holding a trial or a Magistrate holding or about to hold an inquiry
or trial has reason to suspect that the accused is of unsound mind and consequently incapable of making his
defence, the Judge, District Judge or Magistrate, as the case may be, shall in the first instance investigate the
fact of such unsoundness.
(5) Any court before which a person suspected to be of unsound mind is accused of any offence may, on the
application of the Public Prosecutor, made at any stage of the proceedings before the trial, order that that
person be sent to a mental hospital for observation. The medical superintendent may, notwithstanding any
other provision of law, detain any such accused person for such period, not exceeding one month, as may be
necessary to enable him to form an opinion as to the state of mind of that person, and shall forward a copy of
his opinion, in writing, to the Public Prosecutor.

- Essentially, when person is suspected to have some unsoundness of mind or other mental condition, court
will send him for psy exam to determine whether fit to plea
- Then he will be remanded in IMH for a mth and it will send psy report to the court and court will assess
whether he is fit to plead
- If yes, then case will cont (if he wishes to plead guilty still)
- If not, then provisions in sns will apply and if person unsound, then court wil record this to be so and he is
acquitted of the offence but only on ppr – he will be sent to mental institn
 Minister of Home Affairs will decide if he stays in mental institn or come out after a period
- The accused person can be remanded to a mental hospital
- Application has to be made to the judge
- Case will be adjourned
- Mental institution will then report to the judge or PP after observation as to whether the accused was of
sound mind when he committed the offence.
-  S 309, if the Medical Superintendent (defined as Medical Officer in charge of mental hospital) certifies
the accused is of sound mind and capable of making his defence, the court will proceed with the inquiry or
trial [unless satisfied to the contrary]

- What it the accused was of Sound Mind at the Trial/inquiry but unsound of mind when committing the
offence?
 The court will proceed with the inquiry or commit him to trial.

When accused appears to have been of unsound mind.

313. When the accused appears to be of sound mind at the time of any inquiry before a Magistrate’s Court
and the Court is satisfied from the evidence given before it that there is reason to believe that the accused
committed an act which if he had been of sound mind would have been an offence and that he was at the
time when the act was committed by reason of unsoundness of mind incapable of knowing the nature of
the act or that it was wrong or contrary to law, the Court shall proceed with the case and, if the accused
ought otherwise to be committed to the High Court, send him for trial.

P v Ismail bin Ibrahim [1998] 3 MLJ 243

- explains why a plea of guilt should not be accepted by the court in such circumstances.
- Accused was shown to be suffering from schizophrenia at the time of committing the offence but was
capable of making his defence at trial. If fact, the accused entered a guilty plea understanding the
consequences of his decision, which was accepted by the Magistrate who convicted him. DPP applied for
revision on the ground that the Magistrate should not have accepted the guilty plea.
- Held:
o (1).It is the duty of the court to ensure that an accused is fit to plead. Once the court is satisfied that
the accused is fit to stand trial, then the trial should proceed even though he was of unsound mind
at the time of the commission of the offence. If the accused can then establish that he was of
unsound mind at the time of the commission if the offence, he is entitled to raise the defence of
insanity under s 84 of the Penal Code
o (2).To argue therefore that the right to plead guilty as on the facts of this case is within the
exclusive domain of the accused is contradictory to some of the fundamental principles of criminal
jurisprudence. In such circumstances, the guilty plea of the accused must not be accepted by the
court and a plea of not guilty must be entered. The corollary is that an accused person who has
insanity available to him as a defence is not at liberty to enter a plea of guilty.
o (3).A plea of insanity can only be determined in a full trial. It cannot be done after a guilty plea has
been accepted for two reasons. First as a successful plea of insanity will result in an order of
acquittal, a full trial is warranted as such an order cannot be made after a plea of guilty. This is for
the reason that an order for acquittal can be made only after hearing all evidence. Secondly, the
court would require all available evidence, in particular the manner in which the offence was
committed to enable it to make a ruling in the plea. Such evidence will be available only in full
trial. Thus, where a guilty plea has not been accepted by the court on the ground that a plea of
insanity has been disclosed, it should be treated as a plea of not guilty and the trial should proceed
(see p 260B-E); PP v Nageswari [1994] 3 MLJ 463 followed.
o In this case, there was sufficient prima facie evidence on record to show that the accused was of
unsound mind at the time of the commission of the alleged offence. The learned magistrate ought
to have rejected the plea of guilty of the accused and entered a plea of not guilty instead

3) Must be unequivocal – signify without doubt and qualify admission to all ingredients of offence and
all averments of charge

4) Court must ensure that accused understand NATURE and CONSEQUENCE of his plea: s180(b)
CPC.
o Court must ensure that it is accused himself who wishes to plead guilty – from accused own mouth
and not counsel’s. Unless defendant is corporate defendant, which has authorized counsel as it
representatives under s57 CPC to plead guilty or if summons case punishable with fine or
imprisonment up to 3 years or both where accused personal attendance can be dispensed with:
s137 CPC.
 o Understand the nature of the plea = he must know what exactly he is being charged with – nature
of the offence.
 Hence, if he is charged for an offence under Section 379 of the Penal Code, he must
know he is charged for theft simpliciter and not robbery.
o Understand the consequence of the plea means that his attention is drawn to the max prescribed
punishment under the law such that he knows exactly the possible sentence he could receive upon
a conviction.
 Hence, he must know that under Section 379 of the Penal Code, he is liable to
imprisonment up to three years or a fine or both. This is particularly important where the
offence carries a mandatory sentence of any nature
o Tt accused intends to admit without qualifn the offence alleged against him =>< court under duty
to ensure tt all ingreidnet soncstig offence are included in SOF and admittred eihtout qualifn Toh
Lam Seng 2003 2 SLR 346; etc
Facts
The petitioner had pleaded guilty to a charge of voluntarily causing hurt under s 323 of the Penal Code
(Cap 224). In his mitigation plea, the petitioner raised the fact of provocation in some detail. He was convicted
and sentenced to 12 months of imprisonment.
The petition was premised on the fact that he had qualified his plea of guilt by raising the fact of provocation and
that it constituted a separate offence under s 334 Penal Code. He also appealed against his sentence on the
ground that it was manifestly excessive.
Held, dismissing both the petition and appeal:
(1) The allegation of provocation did not contradict the petitioner’s admission to the material elements of the
offence under s 323 of the Penal Code. The existence of provocation did not automatically take the offence out of
s 323 of the Penal Code. The allegation of provocation fell short of “grave and sudden provocation”. Provocation
was raised merely as a mitigating circumstance: at [16] to [18].
(2) Where the mitigation by the accused might qualify his plea of guilt, the judge ought to have made further
enquiry of the accused to ensure that he truly intended to unequivocally plead guilty to the charge. Although this
was not done, there was no injustice caused in the circumstance: at [10] to [11] and [19].
(3) Although the victim had essentially precipitated the attack, the petitioner’s numerous antecedents for
violent behaviour could not be disregarded. The sentence was not manifestly excessive: at [23] to [24].

- Koh Thian Huat v PP [2002] 3 SLR 28;

Facts
The petitioner (‘Koh’) was charged with theft under s 380 of the Penal Code (Cap 224). At his trial, the
court interpreter read and explained the charge to him in Mandarin, and he was convicted after he pleaded
guilty and admitted to the entire statement of facts (‘SOF’) without qualification.
Koh later indicated that he wished to retract his guilty plea and to engage counsel. The judge dismissed this
and sentenced him to seven years’ corrective training in view of his antecedents.
In his petition for revision, Koh argued that - (a) he did not have the requisite mens rea at the time of the
offence, and (b) his plea was invalid as he was uaware that he had a valid defence when he pleaded guilty
being unrepresented then. Koh appealed against his sentence as well.
Held, dismissing the petition and allowing the appeal against sentence to be withdrawn:
(1) The power of criminal revision was to facilitate the High Court’s supervisory and superintending
jurisdiction over criminal proceedings before a subordinate court so as to correct, if necessary, a miscarriage
of justice arising from the correctness, legality or propriety of any finding, sentence or order recorded or
passed, and also to the regularity of that court’s proceedings.
(2) The High Court’s revisionary powers were to be exercised judiciously and it must be satisfied that
‘serious injustice’ had resulted, or would result if it did not intervene. The onus lay on Koh to satisfy the
court that ‘serious injustice’ would result if leave to withdraw his plea was denied. Further, the ‘serious
injustice’ had to be of a nature and degree that warranted the court’s intervention and exercise of its
revisionary powers in order to rectify an error, or a purported error, of law or procedure made by the judge.
(3) Koh’s claim that he lacked the requisite mens rea failed. First, he admitted without qualification to the
SOF when he pleaded guilty and did not challenge it till much later. Second, he was unable to provide any
valid explanation for the inconsistencies between his version of facts and the SOF.
(4) There was nothing to suggest that Koh did not understand the salient aspects of his case when he
pleaded guilty. First, the interpreter had explained the entire proceedings to him in Mandarin. Second, the
judge observed that he appeared to understand what he was doing when asked to enter his plea, which was
 voluntary and unequivocal. Third, Koh was no stranger to court proceedings given his numerous
antecedents.
(5) There were both statutory and common law safeguards before a guilty plea could be regarded as the
basis for a conviction. Section 180(b) of the CPC required that the accused understood the nature and
consequences of his plea, and intended to admit without qualification the offence alleged against him. These
were also the safeguards under the common law, with the further requirement that the accused himself
pleaded guilty and not through his counsel.
(6) Koh’s conviction was sound as - (a) the facts were straightforward and undisputed, (b) the evidence
showed that he knew the nature and consequences of his plea, and (c) the judge had observed and adhered to
the safeguards.
(7) Koh was allowed to withdraw his appeal against sentence in the light of the judge’s written grounds of
decision and Koh’s antecedents.
Per curiam:
A revisional court confined itself to errors of law or procedure, and dealt only with questions of evidence or
disturbed the lower court’s finding of fact only in very exceptional circumstances. The main question facing
the court was whether substantial justice was done and whether it should interfere in the interests of justice.
It should not interfere when substantial justice was done.
- Balasubramanian Palaniappa Vaiyapuri v PP [2002] 1 SLR 314
Facts
The appellant was charged for outrage of modesty under s 354 of the Penal Code (Cap 224). He pleaded
guilty, pursuant to the statement of facts which he admitted to without qualification, and was sentenced to
12 months’ imprisonment.
He petitioned for a criminal revision, arguing that - (a) the trial judge had no jurisdiction to hear the matter
as consent had not been obtained from the under s 3(2) of the Tokyo Convention Act for the commencement
of proceedings, (b) his plea of guilt was not unqualified as he had informed the court during mitigation that
he drank heavily before the incident, and (c) the statement of facts was defective as not all the elements of
the offence were stated. He also appealed against his sentence on the basis that it was manifestly excessive.
Held, dismissing the petition and appeal, and enhancing the sentence:
(1) The trial judge had jurisdiction to hear the matter. The Solicitor General had the power to issue the
consent as he was the Acting Attorney General at the time in question. Further, his consent was valid as the
original charge to which he consented to did not concern an offence that was different from that which the
appellant was charged with in court.
(2) In determining the validity of the plea of guilt, the following safeguards should be observed: (a) the
accused himself must have pleaded, (b) the court must ascertain whether the accused understood the nature
and consequences of his plea; ‘nature’ of the plea meant that the accused must know exactly what he was
being charged with, while ‘consequences’ of the plea meant that he had to be aware of the punishment
prescribed by law so that he knew the possible sentence that he would receive on conviction, and (c) the
court must establish that the accused intended to admit without qualification to the offence he was charged
with.
(3) If the mitigation plea qualified the plea of guilt by indicating the lack of mens rea or actus reus, the
accused would not be deemed to have admitted to the offence without qualification, and the plea of guilt
would be rejected by the court. The appellant’s mitigating plea did not qualify or modify his plea of guilt,
and his claim of intoxication did not necessarily indicate the absence of mens rea for the offence.
(4) Some of the relevant considerations in the High Court’s exercise of its revisionary powers were - (a) it
was to be exercised sparingly, (b) some serious injustice must have occurred before the court would
intervene, (c) there was something palpably wrong in the lower court’s decision which struck at its basis as
an exercise of judicial power, and (d) it should not be used as a form of ‘backdoor appeal’ against conviction
for an accused who had pleaded guilty.
(5) It was not manifestly plain that the offence charged was nowhere disclosed in the statement of facts,
and no serious injustice had been caused nor was there anything palpably wrong in the trial judge’s
decision.
(6) For the defence of intoxication under s 86(2) of the Penal Code to stand, the accused had to prove on a
balance of probabilities that he was so intoxicated from consumption of alcohol that he was incapable of
forming any intention for the offence. The appellant could not plead the defence as no evidence was
adduced to show that he was so intoxicated that he could not form the necessary mens rea.
(7) The appellant’s sentence was not manifestly excessive, and was enhanced to 24 months’ imprisonment.
First, while the standard sentence for an offence where the victim’s private parts or sexual organs were
intruded upon was nine months’ imprisonment with caning, his offence was aggravated as he repeatedly
 took advantage of the victim. Second, his plea of guilt did not automatically merit a discount in sentencing,
and had to be balanced against the protection of the public. Third, the weight to be given to his absence of
antecedents would be greater where there was positive evidence as to his good character. Fourth, his plea of
good character was in fact an aggravating factor as the offence was exacerbated because he should have
known better. Fifth, absence of antecedents did not necessarily warrant a discount in sentence, and had to be
balanced against other considerations as well.
- “nature” refers to the nature of the offence for which he is charged while “consequences” refers to the
maximum punishment prescribed by law which he may be subjected to upon conviction
- mandatory punishment must be brought to the accused’s attention
- prosecuting counsel will summarise the facts of the offence by tendering a written SOF prepared by the
investigating officer
- CPC does not direct the court to consider a SOF before it accepts the accused’s plea of guilty
- Judicial practice for the court to scrutinize a SOF tendered by the prosecution to ensure that all the
elements of the charge are made out therein: Mok Swee Kok v PP [1994] 3 SLR 140;
Facts
The appellant Mok was charged with abetting a robbery with hurt. He pleaded guilty to the charge and was
duly convicted. Mok appealed against sentence. On appeal the Court of Appeal referred to the statement of
facts presented in the court below. Concern arose as to whether that statement of facts sufficiently supported
the charge of abetting robbery with hurt to which Mok had pleaded guilty. The court was faced with the
question of the legal status of a statement of facts its power to re-open an appellant’s conviction where he has
pleaded guilty and was appealing only against sentence. The court reserved judgment on 16 January 1992 and
on 10 August 1993, a five-judge Court of Appeal was convened to hear further argument on these two issues.
Held, allowing the appeal:
(1) In Singapore the statement of facts was that the court bore a legal duty to record a statement of facts
following an accused’s plea of guilt and to scrutinize the statement for the express purpose of ensuring that all
the elements of the charge are made out therein.
(2) To constitute a proper plea of guilt, the accused must admit without qualification. It was not necessary,
however, for the accused to admit every fact alleged in the statement of facts, as long as what he admitted
contained all the essential ingredients of the offence he was charged with and what he disputed (or did not
admit) was irrelevant or immaterial to the offence.
(3) Once an accused pleaded guilty and was convicted on such a plea, s 44(2) of the Supreme Court of
Judicature Act (Cap 322) (“the Act”) prohibited an appeal against conviction. However, this did not preclude
the possibility that the issue of his conviction may come to the notice of the Court of Appeal in the course of
an appeal against sentence. The court may in hearing the appeal come upon material which induced serious
doubts as to the legality of the appellant’s conviction. In such a situation, its powers were governed by s 54(1)
of the Act. Section 54(1), properly construed, empowered the court to inquire into the propriety of the
conviction even where an appellant pleaded guilty.
(4) Section 54(1) did not, however, give the Court of Appeal the sort of far-reaching revisionary
jurisdiction exercised by the High Court over the subordinate courts. Nor does it alter the stringent rule in
s 44(2) of the Act barring appeals against conviction by accused persons who pleaded guilty.
(5) Applying the above principles to the present appeal, the court was empowered to re-open Mok’s
conviction for abetting robbery with hurt. Having regard to the full records of appeal, including the statement
of facts and the verbatim notes of proceedings, it was clear that Mok’s conviction for abetting robbery with
hurt could not be sustained. It was accordingly quashed and a conviction for abetting house-breaking in order
to commit theft was substituted. The original sentence of 7 years’ imprisonment and 12 strokes of the cane.
was accordingly altered to a sentence of 5 years’ imprisonment (with effect from 23 September 1991).
- PP v Liew Kim Choo [1997] 3 SLR 699
Facts
The respondent Liew was acquitted of two charges of knowingly living off the earnings of the prostitution of
another person. The prosecution appealed against acquittal arguing that the trial judge erred in concluding that
the case against her was not proved beyond reasonable doubt. They alleged that: (a) Liew procured and
introduced potential customers to a pimp, one Lim who supplied prostitutes to customers; and (b) Liew and
Lim would share the earnings from prostitution. Liew denied knowing Liew or any or his prostitutes and
receiving any money in connection with such activities. Liew, who was charged and tried separately, pleaded
guilty to managing a place of assignation and to living off the earnings of prostitution. He admitted to a
statement of facts prepared by the investigating officer, in which he incriminated Liew. Lim then appeared as a
prosecution witness but later gave evidence which was inconsistent with his statement of facts and his
evidence exonerated Liew. The prosecution successfully applied to cross-examine him on his statement of
 facts. The issue before the court concerned the admissibility and evidential value of Lim’s earlier statement of
facts for the purposes of proving the elements of the offence with which Liew was charged. The statement of
facts contained the only evidence suggesting that Liew received the earnings of Lim’s prostitutes.
Held, dismissing the appeal:
(1) The evidence in this case was largely circumstantial. A conviction could not be justified unless the
inferences needed to be drawn could be drawn beyond reasonable doubt. The only evidence suggesting that
Liew received the earnings of the prostitutes was circumstantial evidence contained in the statement of facts
admitted to by Lim when he pleaded guilty.
(2) At common law, a guilty plea could not be used except in the proceedings in which the plea was taken.
The fact that Lim pleaded guilty to a related offence was not conclusive proof of the facts comprising that
offence for the purposes of the present proceedings. That said, if the statement of facts amounted to an
admission or confession under the Evidence Act (Cap 97), it would be prima facie admissible as it came
within one of the relevancy provisions of the Act. In this case, the statement of facts came within the definition
of a ‘confession’ in s 17 read together with s 20 of the Evidence Act and could therefore be used to prove the
facts stated. However, even if the statement of facts was admissible, it would still be accomplice evidence and
it would have to be treated with caution as a consequence of illustration (b) of s 116 of the Evidence Act.
(3) As the evidential status of the statement of facts had been impugned, the prosecution had not proved the
third element of the offence beyond reasonable doubt. The acquittal was therefore justified unless the deeming
provision in s 146(3) of the Women’s Charter (Cap 353) (‘the Charter’) applied. Since the prosecution failed to
adduce any other evidence to reinforce the impugned allegations in the statement of facts, they failed to prove
beyond reasonable doubt the facts required to bring the deeming provision into effect. Appeal dismissed.

Per curiam
(1) A statement of facts should not be accorded the same status as a voluntary confession made in police
custody, because of: (a) the possibility that a person might voluntarily plead guilty to a charge and admit a
statement of facts even though he was innocent, thereby rendering the statement thoroughly inaccurate; and
(b) the fact that the statement was not prepared by the person admitting it but by the prosecution or the
investigating officer and it was not necessarily based on an interview with the accused.
(2) It was a well-established principle that in admitting a statement of facts, it did not matter that the person
pleading guilty did not agree with certain particulars which were not material to the charge against him so long
as the major elements comprising the offence were not disputed.
- SOF contains assertions of the facts, mens rea, actus reus, and should also contain a summary of events,
the SOF must support the charge
- Accused must admit to the SOF without any qualification of essential facts that establish the ingredients
of the offence
- Chota Bin Abdul Razak v PP [1991] 3 MLJ 77 at p 81: “it is not essential, however, that the accused
should admit every iota of facts contained in the statement. If what he admits contains all the
ingredients that constitute the offence and what he disputes or does not admit is irrelevant or immaterial
to the offence, such an admission, in my opinion, is sufficient for the purpose of s. 180(b), and the court
should accept his plea of guilty”
Procedure in summary trials.
180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary
trials:
(b) if the accused pleads guilty to a charge whether as originally framed or as amended, the plea shall be
recorded and he may be convicted on it:
Provided that before a plea of guilty is recorded the court shall ascertain that the accused understands the
nature and consequences of his plea and intends to admit without qualification the offence alleged against
him;
- if accused admits to the SOF without qualification, the court will pronounce him guilty and convict him
as charged
- admission does not absolve the court of its duty to ascertain whether facts are sufficient to constitute an
offence in law
- court cannot convict an accused if the facts in the SOF do not in law amount to an offence: Ng Kim
Han & Ors v PP [2001] 2 SLR 293
Facts
The seven accused pleaded guilty to gaming in a common gaming house (a factory in this case), an offence
under s 7 of the Common Gaming Houses Act. The tenant of the factory, one Chua, was separately convicted
of permitting the factory to be used as a common gaming house under s 4(1)(b) of the Act. Chua was
 subsequently acquitted when, on his appeal, the High Court found that the factory was not used primarily for
gaming, and so did not constitute a “common gaming house”. Following Chua’s acquittal, the accused sought
criminal revision to set aside their convictions.
Held, allowing the petition:
(1) Gaming was only an offence when taken place in a common gaming house. Following from Chua’s case,
it was clear that the accused were not arrested in a common gaming house. As the statement of facts did not
refer to the fact that the factory was being used primarily for gaming, the accused had been convicted despite
the absence of a crucial element of the offence. An injustice had been occasioned which warranted the exercise
of revisionary powers.
(2) The fact that the accused pleaded guilty on their own accord could not be a bar to the exercise of
revisionary power. The fact that an accused had admitted to the premises being a common gaming house did
not absolve the court of its duty to ascertain whether the premises did actually fall within the legal definition
of a common gaming house. As all parties were ignorant of the concept of the common gaming house, it could
not be contended that the accused who were laymen and unrepresented, to fully understand the nature of their
charge when they pleaded guilty. While an accused could not complain he was unrepresented, an accused’s
folly in failing to obtain legal representation could not make right what was manifestly wrong.
(3) In the present case, despite a delay of about 13 months between their plea of guilt and the filing of the
petition, there was no unreasonable delay by the accused as the petition was filed less than 3 months after the
High Court decision in Chua’s case. This delay did not attenuate the injustice of the case to any appreciable
extent.
- counsel also has a duty to inform the court that the facts in the SOF taken together do not disclose an
offence
- court must reject the accused’s guilty plea and request the prosecution to clarify or amend the SOF
- petitions for criminal revision: Ng Kim Han & Ors v PP; Chen Hock Heng Textile Printing Pte Ltd v PP
[1996] 1 SLR 745; Cf Ma Teresa Bebango Bedico v PP [2002] 1 SLR 192
- Disputes about the Facts Following a Plea of Guilty:
• If the dispute is serious enough to have a significant effect on sentence and the prosecution
disputes the accused’s version – the prosecution would have to adduce evidence in support of its
own version as a post-conviction hearing: R v Newton [1982] 4 Cr App R (S) 388
1) Where there is a dispute about relevant facts which might affect the sentence, defence counsel
should notify the prosecution that the accused disputes the prosecution’s version of the facts
2) Court should also be informed at the outset of the hearing of the guilty plea
a) judge can decline to hear
b) hearing itself would follow normal adversarial lines
- Taking Charges into Consideration:
• Prosecuting counsel may apply to take into consideration (t.i.c.) the other outstanding charges
against the accused for the purpose of sentence under s. 178 CPC
• These charges will be read and explained to the accused and he must admit to the offences and
consent to have them taken into account for sentencing
• Court does not pass an individual sentence on each charge because an accused can only be
punished for the offence with which he was charged and convicted: Knight v PP [1992] 1 SLR 720
Knight v PP
Facts
The appellant Knight pleaded guilty to attempted cheating with intention of inducing one Ng to invest
$3m in a club and was sentenced to two months’ imprisonment. He also pleaded guilty to a second charge
under s 6(c) of the Prevention of Corruption Act (Cap 241) for knowingly using, with intent to deceive his
principal, a false vehicle invoice for the purposes of obtaining a government vehicle loan, and was
sentenced to one month’s imprisonment. He appealed against sentence in respect of both charges.
Held, allowing the appeal:
(1) With respect to the first charge under s 417 of the Penal Code (Cap 224), the more serious
misrepresentations were not part of the charge preferred against Knight and fell outside the scope of the
charge. The omission to include these misrepresentations did not render the charge defective but merely
reduced its gravity. Knight could only be punished for the offence with which he was charged and of
which he was convicted. These misrepresentations could not be taken into account in determining the
appropriate sentence as they were not part of the charge.
(2) As some white-collar crimes are more serious than others, it was clearly wrong to group all of them
into one category and say that custodial sentence was the norm for them. The aggravating circumstance
were that Knight was, at the material time, the director of CAD, the department specially formed to
 investigate and prosecute commercial crimes, including those crimes as the present ones which Knight
himself committed.
(3) As against that, there were mitigating and other circumstances which are in his favour. Taking into
consideration all the relevant facts and circumstances, both the aggravating and mitigating ones, and also
the level or degree of criminality in respect of each of the charges, the appellant would be adequately
punished with: (a) a fine of $7,000 in respect of the first charge, and in default of payment thereof a term
of imprisonment of three months; and (b) a term of imprisonment of one day and a fine of $10,000 in
respect of the second charge, and in default, a term of imprisonment of four months.
(4) The imposition of a nominal custodial sentence was appropriate in this case; it was not a farce. It
signified that in the court’s view, Knight must suffer a custodial sentence, albeit a nominal one, and also
that, but for the very strong mitigating circumstances in his favour, a substantive term of imprisonment
would have been meted out to him.
• Effect of t.i.c. charges is that the sentence which the court would otherwise have imposed for the
charge or charges to which he has pleaded guilty may – and usually will – be increased: PP v Mok
Ping Wuen Maurice [1999] 1 SLR 138
Facts
The accused, 17 years of age, with no previous conviction, pleaded guilty to a charge of robbery in
furtherance of a common intention with two others. He also pleaded guilty to a charge of a consumption
of controlled drug. A third charge of pushing a police constable with intent to deter him from discharging
his duty as a public servant was taken into consideration. The accused was convicted and ordered to
undergo reformative training. Both the Public Prosecutor and the accused appealed against sentencing.
Held, both appeals dismissed:
(1) Rehabilitation was the dominant consideration where the offender was 21 years and below. Young
offenders were in their formative years and chances of reforming them into law-abiding adults were
better. The corrupt influences of a prison environment and the bad effects of labeling and stigmatisation
might not be desirable for young offenders. However, some young people could be calculating in their
offences. Hence the court would need to assess the facts in every case.
(2) Consistency in sentencing, though not an overriding consideration, was a desirable goal. One of the
accomplices of the accused who was of the same age as the accused was in fact given reformative
training, whereas the other accomplice, 19 at the time of the offence, was sentenced to six years’
imprisonment and 24 strokes of the cane. His sentence was most harsh as he had previous convictions.
(3) The accused was at the time of this appeal, 18 and fit for National Service. Probation was rarely
granted in such situation.
Per curiam
When taking into consideration outstanding offences, it must be clear that the accused admitted to those
offences; however, he must not be convicted of them. Such a consideration might enhance the accused’s
sentence. Ultimately, it was in the court’s discretion whether to consider the offence or not.
• With 12 t.i.c. charges, court may impose 3 weeks’ imprisonment per charge and order both to run
consecutively, totaling 6 weeks’ imprisonment
• How much weight to accord is ultimately in the court’s discretion
• Amount of increase will be considerably less than what would have been the sentence had the
offences been proceeded with
Outstanding offences.
178. —(1) Where in any criminal proceedings instituted by or on behalf of the Public Prosecutor the
accused is found guilty of an offence, the court, in determining and in passing sentence, may, with the
consent of the prosecutor and the accused, take into consideration any other outstanding offence or offences
which the accused admits to have committed:
Provided that, if any criminal proceedings are pending in respect of any such outstanding offence or
offences and those proceedings were not instituted by or on behalf of the Public Prosecutor, the court shall
first be satisfied that the person or authority by whom those proceedings were instituted consents to that
course.
(2) When consent is given as in subsection (1) and an outstanding offence is taken into consideration, the
court shall enter or cause an entry to that effect to be made on the record and upon sentence being
pronounced the accused shall not, unless the conviction which has been had is set aside, be liable to be
charged or tried in respect of any such offence so taken into consideration.

o Charge must contain all the legal elements and the brief factual particulars of the case against
accused. It must notify with sufficient clarity and certainty to the accused what is alleged against
 him, including the manner in which the alleged offence was committed so that he knows what
allegations to refute: s158 to s160 CPC. Accused shld be aware of
 Offence for which charged
 Ingredients to be proved by proseuciotn
 Partrs which proseuciotn has stated in charge
 Max penalty or min penalty
 Gnerla penalties awarded

S180
(b) if the accused pleads guilty to a charge whether as originally framed or as amended, the plea shall be
recorded and he may be convicted on it:

Provided that before a plea of guilty is recorded the court shall ascertain that the accused understands the
nature and consequences of his plea and intends to admit without qualification the offence alleged against
him;

Form of charge.
158. —
(1) Every charge under this Code shall state the offence with which the accused is charged. (Form 27)
(2) If the law which creates the offence gives it any specific name, the offence may be described in the
charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of
the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be
mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by
law to constitute the offence charged was fulfilled in the particular case.
(6) If the accused has been previously convicted of any offence and it is intended to prove that previous
conviction for the purpose of affecting the punishment which the court is competent to award, the
fact, date and place of the previous conviction shall be stated in the charge. If the statement is
omitted the court may add it at any time before sentence is passed.

Particulars as to time, place and person or thing.

159. —(1) The charge shall contain such particulars as to the time and place of the alleged offence and the
person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably
sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it
shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been
committed and the dates between which the offence is alleged to have been committed without specifying
particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence:
Provided that the time included between the first and last of such dates shall not exceed one year.

When manner of committing offence must be stated.

160. When the nature of the case is such that the particulars mentioned in sections 158 and 159 do not
give the accused sufficient notice of the matter with which he is charged, the charge shall also contain
such particulars of the manner in which the alleged offence was committed as will be sufficient for that
purpose.

Determining validity of plea

- Proviso to s180(b) CPC
- Provided that before a plea of guilty is recorded the court shall ascertain that the accused understands the
nature and consequences of his plea and intends to admit without qualification the offence alleged against
him;
- For court to ascertain; usu court will do so after accused pleads guilty to charge and interpreter reads out
charge to accused n accused says he wishes to plead guilty
- Interpreter will usu ascertain but judge has the duty actually to do so
- Test in determining the validity of the plea of guilt
– Roughly speaking, court must be satisfied that he knew what he was doing when he pleaded
guilty

Lee Weng Tuck v PP [1989] 2 MLJ 143

 court must ensure accused himself wishes to plead guilty and not through counsel
o ie in court accused himself must say so, in practice
o lawyer cannot be his mouthpiece
 court must ascertain accused understands nature and consequences of his plea ‘nature’ of the plea:
the accused must know exactly what he was being charged with.
 ‘consequences’ of the plea: accused had to be aware of the punishment prescribed by the law so that
he knew the possible sentence that he would receive upon conviction.
 • court must ascertain accused intends to admit without qualification to the offence
 this is wher SOF comes in

see Koh keng huat

Rajeevan Edakalavan v PP [1998] 1 SLR 815

- “the fact that the petitioner was not informed of his right to counsel or the defences open to him did not
make the plea any less valid”

Qualified Pleas of Guilt.

• If the plea is qualified, court will reject the plea (note that if there are disputes of fact which go to the
material elements of the charge, the plea of guilt will be deemed qualified)
- If plea is qualified by indicating the lack of mens rea or actus reus, the accused would not be deemed to
have admitted to the offence w/o qualification and the plea would be rejected:

Ulaganathan Thavnilarasan v PP [1996] 2 SLR 534

- I.e. Disputes of Fact that affect the material elements of the charge.
- Facts:
– The petitioner applied for criminal revision of a decision of the district judge convicting him
on a plea of guilt. At trial, the petitioner was unrepresented. He pleaded guilty and admitted to
the prosecution’s statement of facts. However in his mitigation, he claimed that the act was
done unintentionally. The district judge queried the petitioner’s acceptance of the facts.
– The prosecutor then applied for the matter to be stood down for her to explain matters to the
petitioner. The court was adjourned. Upon resitting, the petitioner withdrew his earlier
mitigation, and submitted another. The district judge sentenced the petitioner to imprisonment
and caning.
- Held:
– It was the prosecutor who had explained the effect of the initial mitigation to the petitioner
and thus the court below could not have been properly satisfied that the accused understood
the nature and consequences of his plea of guilt as required by Section 180(b). That failure
was not curable by s 396 and an injustice was caused since the petitioner was unrepresented.
– Further, it was not appropriate, given the adversarial nature of criminal proceedings, for the
prosecutor to have given an explanation to the petitioner. This was so although there was no
evidence of any misconduct by the prosecutor. The conviction of the petitioner was, therefore,
a palpable injustice warranting revision. The sentence was thus set aside, and the case remitted
for an early retrial in another court.
- Comments: Highlights imprudence of prosecutor communicating with the accused – it was not for the
prosecutor to explain the matter to the accused.

- Eg If SOF is read and accused when asked if he admits, says he didn’t know => denying MR. this means
that court will reject the plea if MR is an element of the offence.

5) SOF (prep by IO) tendered by PP:

 o Prosecutor reads Statement of Facts – accused will then indicate whether admits without qualif the
SOF
o SOF must support the charge.
o The CPC does not prescribe a requirement for a statement of facts. It is however an established
judicial practice for the court to scrutinize an SOF tendered by PP to ensure that the elements of
the charge are made out: Mok Swee Kok v PP
o Also good practice to obtain copy of SOF before hand so that no quibble about facts – otherwise
client may dispute some allegations of fact –
 if matters in dispute go to material element sof charge, magis will deem plea of guilt to be
qualified and rej plea and date for hearing will be fixed;
 if dispute x affect position tt offence committed but degree of culpability and possible
sentence, court cld hold Newton hearing
o (1) • Try to obtain the SOF early and go through it with the accused first before mentioning your
case. Tt least read it before accusd tenders his plea. this would avoid the accused qualifying his
plea in the course of proceedings and it would also ensure your mitigation plea does not conflict
with the SOF. And so tt no material contradictions. If this happens, tell court at the outset.
 If the accused admits his guilt, the Court will not record the plea until it is satisfied that
the accused understands the nature (nature of the offence) and consequences
(punishment) of his plea and the admission of guilt is without qualification (CPC, s
180(b)).
 • The accused must plead guilty from his own mouth.
 • A proper plea of guilt must constitute an admission to the essential elements of the
offence.
 • If the plea is equivocal – for example, the accused pleads guilt to theft but then
qualify this by saying that he had no intention to steal, the plea will be invalid. The
court will proceed as if he had pleaded not guilty.
o (2) After an unequivocal plea has been entered, the prosecutor would proceed to read the statement
of facts (SOF) of the case.
 • The court is under a duty to scrutinise the SOF to ensure that all the ingredients
constituting the offence are included and that the facts in the SOF do amount to an
offence in law. As counsel, you are also to do your part.

The Statement of Facts

- Charge is brief allegation of what offence is based on legal reqts in offence provision eg Penal Code
- Very bare and may merely say tt accused at time and date committed partr crime under partr
provision
- SOF contains circusmtncs of the offence – read for accused to admit in order for judge to have facts to
sentence accused on
- Eg theft – straightforward facts
- But aggravated theft for eg – may have elaborate scheme and therefore complicated facts.
Sentence corresp different and judge shld have more considerations.
 SOF is practical and essential so that the judge knows the offence committed etc. should state the name,
occupation, where he is from, offence, how arrested, why etc – slightly expanded version of the charge for
simple cases. Also, so that there will not be any quibbling as to the facts.
 Accused must admit to the essential elements of the charge/offence, but not to every fact in the SOF
because there may be some facts that he is not aware of.

- Mok Swee Kok v PP [1994] 3 SLR 140: there is no statutory requirement for an SOF but “the recording of
an SOF by the court following an accused’s plea of guilt…has evolved into a legal duty on the court…”
- It is not necessary for accused to admit every fact in the SOF, as long as what he does admit contains all the
essential ingredients of the offence and what he disputes is irrelevant or immaterial to the offence.
- Essential that accused admits without qualifn if not plea will NOT be accepted and cannot
proceed
- Without SOF, plea may be invalid and can be quashed later ->
- SOF must disclose every element of the offence failing which the case is subject to revision:
Mok Swee Kok v PP [1994] 3 SLR 140
- The Court of Appeal noted that over the years, a practice has emerged of making applications to the High
Court to exercise its powers of revision under Section 268 of the CPC on the ground that the statement of
facts tendered in the court below did not satisfy every element of the offence charged. The accused in such
cases will usually have pleaded guilty in the subordinate courts to the offence charged.
- The application for revision arises because, being dissatisfied with the sentence imposed, he is advised not
simply to appeal against sentence (which he is entitled to do) but also to mount an indirect appeal against
conviction by means of an application for revision (which he is not entitled to do).
- In such cases, although the High Court is capable of reviewing the conviction in exercise of its powers of
revision, it must be stressed that the very scope of these powers obliges the court to act with great
circumspection and only where it is manifestly plain that the offence charged is nowhere disclosed in the
statement of facts tendered.

Chen Hock Heng Textile Printing Pte Ltd v PP [1996] 1 SLR 745
- Where it was manifestly plain that the offence charged was nowhere disclosed in the statement of facts, the
correct procedure was to apply for revision. The revisionary powers given to the High Court were very wide
and there was no need to stretch the meaning of the provisions in the CPC in order to do justice in a case
such as this.
- In the present case, the error was compounded by the fact that the notice of appeal stated that the appeal was
only against sentence. Nevertheless, the error was so fundamental that the court should still exercise its
extensive powers of revision under Section 266 and 268 of the CPC and quash the conviction.

Ong Ah Yeo, Yenna v PP [1993] 2 SLR 73

- Facts
o The petitioner Ong pleaded guilty to of abetment by intentionally aiding one Lim to commit
criminal breach of trust. She was convicted and sentenced to six months’ imprisonment. She
applied to set aside the conviction on the ground that Lim had claimed trial to the criminal breach
of trust charge and the prosecution’s statement of facts in support of the charge against her did not
in fact support that charge.
- Held, granting the petition and setting aside the conviction:
o (1) Illustration (a) of explanation 2 of s 108 of the Penal Code (Cap 224) indicated that an
abettor’s liability could extend beyond situations in which the principal was entitled to be acquitted
where the actus reus of the offence was not committed. However, this extension did not apply to
abetment in the form of intentional aid rather than instigation or conspiracy.
o (2) Reading Explanation 2 of s 107 read with s 108 of the Penal Code, a person abetted an
offence who aided in the commission of an act which might only be a constituent part of the whole
actus reus of the offence. If he was said to have aided only where the aid yielded results, then it
followed that he only intentionally aided that offence if the whole actus reus of the offence itself
was proved to have been committed. If it had not, and only the act which formed a part of the actus
reus of the offence was proved to have been committed, his intentional aiding of that act only
supported his liability for intentionally aiding an attempted commission of the offence (assuming
the evidence amounts to such attempt).
o (3) However, the fact that the act intentionally aided must have been committed did not mean
that the principal should necessarily be convicted prior to the alleged abettor in order that the latter
be found liable for aiding him. The court which tried an abettor on a charge of intentionally aiding
an offence must direct its mind towards making a finding as to whether or not the whole actus reus
of the offence he was alleged to have aided was in fact committed; and the court must do so in all
cases, including where the principal had not been convicted of that offence by the time the alleged
intentional aider was tried.
o (4) Here, even assuming that the statement of facts disclosed the commission of the act/s
constituting the offence of criminal breach of trust alleged against Lim, it did not address
Ong’s intention at the time she did the acts for which she was charged. It had not been
proven that she intentionally aided the commission of such act/s with the intention that Lim
should misappropriate the moneys.
o (5) The charge itself was strictly improper because it did not allege that the moneys
misappropriated were property to which Lim was entrusted over which he had dominion. The
cumulative deficiencies in the prosecution case were not to be lightly regarded. The petition would
be granted and Ong’s conviction set aside.
- A petition for revision can be presented on the ground that the SOF did not contain all the elements which
constitute the offence charged.
- See the relevant offence provision for all elements of the offence eg Penal code or some
other statute
- But it cannot be a ‘backdoor appeal’ against conviction for accused persons who had pleaded guilty to their
charges.
- Governing principle is that revisionary power of High Court should be exercised only if some serious
injustice had been caused. Petition should only be allowed where it was manifestly plain that the offence
charged was nowhere disclosed in the SOF tendered.

Balasubramanian Palaniappa Vaiyapuri v PP [2002] 1 SLR 314

- (mens rea of OM inferred from SOF. ‘not manifestly plain that the offence of OM was nowhere disclosed in
the SOF’).
- Facts
o The appellant was charged for outrage of modesty under s 354 of the Penal Code (Cap 224). He
pleaded guilty, pursuant to the statement of facts which he admitted to without qualification, and
was sentenced to 12 months’ imprisonment.
o He petitioned for a criminal revision, arguing that - (a) the trial judge had no jurisdiction to hear
the matter as consent had not been obtained from the under s 3(2) of the Tokyo Convention Act for
the commencement of proceedings, (b) his plea of guilt was not unqualified as he had informed the
court during mitigation that he drank heavily before the incident, and (c) the statement of facts was
defective as not all the elements of the offence were stated. He also appealed against his sentence
on the basis that it was manifestly excessive.
- Held, dismissing the petition and appeal, and enhancing the sentence:
o (1) The trial judge had jurisdiction to hear the matter. The Solicitor General had the power to
issue the consent as he was the Acting Attorney General at the time in question. Further, his
consent was valid as the original charge to which he consented to did not concern an offence that
was different from that which the appellant was charged with in court.
o (2) In determining the validity of the plea of guilt, the following safeguards should be observed:
(a) the accused himself must have pleaded, (b) the court must ascertain whether the accused
understood the nature and consequences of his plea; ‘nature’ of the plea meant that the accused
must know exactly what he was being charged with, while ‘consequences’ of the plea meant that
he had to be aware of the punishment prescribed by law so that he knew the possible sentence that
he would receive on conviction, and (c) the court must establish that the accused intended to admit
without qualification to the offence he was charged with.
o (3) If the mitigation plea qualified the plea of guilt by indicating the lack of mens rea or actus
reus, the accused would not be deemed to have admitted to the offence without qualification, and
the plea of guilt would be rejected by the court. The appellant’s mitigating plea did not qualify or
modify his plea of guilt, and his claim of intoxication did not necessarily indicate the absence of
mens rea for the offence.
o (4) Some of the relevant considerations in the High Court’s exercise of its revisionary powers
were - (a) it was to be exercised sparingly, (b) some serious injustice must have occurred before the
court would intervene, (c) there was something palpably wrong in the lower court’s decision which
struck at its basis as an exercise of judicial power, and (d) it should not be used as a form of
‘backdoor appeal’ against conviction for an accused who had pleaded guilty.
o (5) It was not manifestly plain that the offence charged was nowhere disclosed in the statement
of facts, and no serious injustice had been caused nor was there anything palpably wrong in the
trial judge’s decision.
o (6) For the defence of intoxication under s 86(2) of the Penal Code to stand, the accused had to
prove on a balance of probabilities that he was so intoxicated from consumption of alcohol that he
was incapable of forming any intention for the offence. The appellant could not plead the defence
as no evidence was adduced to show that he was so intoxicated that he could not form the
necessary mens rea.
o The appellant’s sentence was not manifestly excessive, and was enhanced to 24 months’
imprisonment. First, while the standard sentence for an offence where the victim’s private parts or
sexual organs were intruded upon was nine months’ imprisonment with caning, his offence was
aggravated as he repeatedly took advantage of the victim. Second, his plea of guilt did not
 automatically merit a discount in sentencing, and had to be balanced against the protection of the
public. Third, the weight to be given to his absence of antecedents would be greater where there
was positive evidence as to his good character. Fourth, his plea of good character was in fact an
aggravating factor as the offence was exacerbated because he should have known better. Fifth,
absence of antecedents did not necessarily warrant a discount in sentence, and had to be balanced
against other considerations as well

• Some practice points on PG:

o On day of PG, always insist for a set of charges and SOF with latest amendments from PP and go
through with @ first before mentioning your case
o When your turn comes, ask court if it has the copies with latest amendments
o Advantage:
 Show the court and your client that you are on the ball
 Help court to minimise any human errors.
 Avoid accused qualifying plea in the course of proceedings because of misunderstanding
of SOF
 Ensure mitigation plea you prep does not qualify the plea

6) Accused admit to SOF w/o qualification: s 180(b) CPC

o Court must establish that accused intends to admit without qualification the offence alleged against
him: Balasubrmaniam Palaniappa Vaiyapuri v PP [2002]
o It is not necessary, however, for the accused to admit every fact alleged in the statement of facts, as
long as what he does admit contains all the essential ingredients of the offence he is charged with
and what he disputes (or does not admit) is irrelevant or immaterial to the offence: Mok Swee Kok
v PP
o If the facts in dispute pertain not to the elements of the offence but aggravating or mitigating
features relevant for the purpose of sentence, the court can accept the guilty plea and order a post-
conviction hearing under the principles of R v Newton to determine which version to accept so as
to determine the appropriate sentence.
o Conviction may be quashed by superior court if it is manifestly plain that the offence charged is
not disclosed in the SOF: Ng Kim Han v PP [2001]. Fact that accused admitted to SOF does NOT
absolve the court to ascertain whether those facts are sufficient to constitute an offence in law.
o But if accused has unqualifiedly admitted to contents of an SOF, these facts should not thereafter
be readily open to dispute. Permitting otherwise may unduly prolong proceedings or possibly even
undermine soundness of the conviction: Koh Thian Huat v PP [2002]
o Any procedural step that may rise doubt that court did not properly satisfy itself that accused
understood the nature and consequences of his plea of guilt can result in unsafe conviction
 When court allowed PP to explain any part of the proceedings to an unrep accused,
it was held that this raised doubts as to whether her plea was unequivocal which is
an incurable injustice resulting in the quashing of the conviction: Ulaganathan
Thamilarasan v PP [1996] – also inapprop because of adversarial nature of crim
proceedings
o The admission to SOF means that formal proof by evidence is dispensed with

7) CPC (pleading guilty by electronic means) (amendment) regulations 1999 – accusd can pelad guilty at com
terminal designated by registrar to pay fine using electronic fudns transfer system
o Also given longer time to plead guilty by electrical means o presciged offence in section 137A
CPC
o Prev to do so at least 2 day before date fixed for mention
o Now allowed until 12pm on mention date to plead guilty

8) Court pronounces accused guilty upon his plea and convict him as charged, and records this
o (3) If there is no dispute, the court will convict the accused n the basis of his plea.
 • If the accused takes issue with any of the facts stated so as to qualify his guilty plea the
court will reject the guilty plea and direct that the case be tried.
9) TIC charges (if any) read and explained to accused, who must admit to the offences and consent to
have them TIC: s178 CPC
o Court does not pass individual sentence for each of these TIC charges. But may increase the
overall sentence for the charge(s) to which the accused has pleaded guilty. This is cos an accused
can only be punished for the offence with which he was charged and convicted: Knight v PP
[1992]
o The effect of taking charges into consideration is that the sentence, which the court would
otherwise have imposed may be increased. PP v Mok Ping Wuen Maurice [1999] 1 SLR 138 and
PP v N [1999] 4 SLR 619)
o How much weight to accord to TIC charges so that this reflected in the individual and aggregate
sentences is ultimately in the court’s discretion.
o (4) If any charges have been stood down, the prosecutor would apply to have them taken into
consideration (TIC) with the consent of the accused (s 178(1)). The accusedwould be asked if he
admits the offences and gives his consent for them to be taken into account into sentencing.

◦ Cannot be sentenced for these TIC charges but just for the court’s knowledge as the accused can be
sentenced only on charges that he has pleaded guilty to.

◦ However, consideration of the TIC charges may result in higher sentence imposed for the charge
pleaded guilty to.
- Prosecutor reads out previous convictions of accused who confirms them (if any)
- For judge to take into account when he decides on sentence
 If the accused does not admit to them, the Prosecution must adduce proof.
 Court of law or military court

10) Criminal record (if any) read by PP, or NK, or NSK

o After court has recorded conviction, court shall “pass sentence according to law” either forthwith
or on such day as the court may appoint: s180(n)9i) CPC
 Altho “pass sentence according to law” is not defined in CPC, it generally
understood as judicial practice of making relevant inquiries on the offenders’
background, character and antecedents before meting out approp punishment.
o PP will inform the court whether the accused has any relevant previous convictions or antecedents.
 Nothing Known = accused has clean record
 Nothing Similarly Known = accused has some antecedents which are of a dissimilar
nature from present offence
 Previous Convictions = past court convictions of offences of the same or similar type.
o PP will tender certificate of criminal conviction (if any) known as CRO 60, which details list
of offences accused committed previously and sentence he received: s372 CPC and s45 EA.
o Note where accused has previous record but PP does not put the record before court; puts only part
of the record; or puts before court record containing errors in favour of accused, counsel is under
NO DUTY TO MAKE ANY DISCLOSURE to the court if disclosure would be to accused’s
detriment. However, counsel shall not lend himself to any assertion that accused has no
convictions nor ask PP witness where there are previous convictions against the accused in the
hope of receiving a negative answer: Rule 78 Professional Conduct Rules, Cap 161.
o (5) The prosecutor would then read the antecedent report (if any) of the accused and the accused
would be asked to confirm the record is accurate. Section 372 CPC lays down the procedure for
proving a previous conviction if there is a dispute.

How previous conviction or acquittal may be proved.

372. —(1) In any inquiry, trial or other proceeding under this Code a previous conviction or acquittal or an
order directing any person to be under the supervision of the police may be proved, in addition to any other
mode provided by any law for the time being in force —
(a) by an extract certified under the hand of the officer having the custody of the records of the court, whether
of Singapore or of the States of Malaya or elsewhere, in which that conviction, acquittal or order was had, to
be a copy of the sentence or order; or
 (b) alternatively, in the case of a previous conviction, either by a certificate signed by the officer in charge of
the prison in Singapore or the States of Malaya or elsewhere in which the punishment or any part of it was
inflicted or by production of the warrant of commitment under which the punishment was suffered,
together with, in each of those cases, evidence as to the identity of the accused person with the person so
convicted or acquitted or against whom the order was made.

11) Accused admits to criminal record (if any)

12) Accused (or DC) mitigates orally or in writing

– (7) The defence would next be given an opportunity to mitigate. This is usually done by tendering
a written plea.
- Be realistic abt mitigation – prepare for it!
- Plea in mitigation:
- Accsed to inform court on reasons for commiting offence etc and court will take
them into acct if good mitigating factors
- Plea in mitigation (by defence Counsel or the accused himself)
- Submissions on sentence (if any)
- For prosecution toa ddress court on sentence – what aggravating factors to take into
accout/ ask court to give deterrent or jail sentence because warranted by case
o Mitigate by putting before court circumstances leading to the offence, his background, and
character and other factors why court should exercise leniency towards him.
o Important mitigation plea does not
 qualify the earlier plea of guilty by either suggesting lack of mens rea (e.g. theft – forgot
to pay) or actus reus (did not commit offence but PG to get over the case) or
 take a stand inconsistent with SOF, which support the essential ingredients of the offence.
 If this happens, the earlier plea will be rejected by the court, which will regard the accused as
claiming trial to the charge.
o While accused has right to PG to any offence, the court has overriding duty to decide whether to
accept the plea and it may reject such a plea at any stage before sentence is passed if court
entertains any doubt that plea is unequivocal.
 Once earlier guilty plea rejected, accused is taken to claiming trial.
 However, if inconsistencies relate to facts that affect sentence (e.g. facts showing
aggravating or mitigating factors), but not elements of the offence, plea will not be
rejected. Instead, post-conviction hearing under R v Newton principles will be held to
determine proper sentence.
o Important that counsel does not in mitigation lea make allegation that is scandalous or calculated to
vilify or insult any person: Rule 80 PCR

13) PP address court on sentence (if any)

o (6) The prosecutor may make an address on sentence.
o Esp if deterrent sentence is warranted of it there are aggravating factors to public interest
considerations that PP wish court to take into account in sentencing.
o Note that even if PP do not press for deterrent sentence, the court should still impose such a
sentence if one is warranted in the circumstances: PP v Tan Fook Sum [1999]
Facts

Tan Fook Sum (“Tan”) pleaded guilty to a charge of wilfully endangering the safety of an aircraft and that of 237
passengers and 21 crew members on board by lighting a fire in the aircraft’s toilet while it was in flight, an
offence punishable under para 45 of PV of the Air Navigation Order read with para 80(6) of the same Order. The
Prosecution appealed against the sentence of $2000 or in default four weeks’ imprisonment. Tan was served with
the notice of appeal and relevant documents but did not appear for the hearing of the appeal. The appellate court
proceeded with the appeal when a warrant of arrest issued against him could not be executed.

Held, allowing the appeal and enhancing the sentence by an additional term of 12 months’ imprisonment:
(1) If the court could proceed to hear an appeal in Tan’s absence under section 254 where service could not be
effected, a fortiori, where service had been effected but he deliberately refused to attend the hearing. Tan was
given every opportunity to defend the appeal but had persistently declined to do so, and as such must be taken to
have waived any argument he could have raised in his favour under the principle audi alteram partem.

(2) The court must pass sentence according to law: s 180(n)(ii) and 192(2) of the Criminal Procedure Code
(“CPC”). A “sentence according to law” meant that the sentence must not only be within the ambit of the
punishable section, but it must also be assessed and passed according to established judicial principles. The latter
required the court to balance the diverse and competing policy considerations, viz retribution, deterrence and
public interest. Only the public interest should affect the type of sentence to be imposed while aggravating or
mitigating circumstances affect the duration or severity of the sentence imposed.

(3) An offence under para 45 of the Order was a serious one. The abhorrence with which such conduct was
regarded by the courts in other jurisdictions could be seen in the custodial sentences meted out to those who
endangered the safety of air travel by acts of “air rage”. The gravity of the offence committed in the instant case
was so much greater because not only the safety of the passengers and the crew but also that of the aircraft was
imperiled by Tan’s wilful act. The principles of deterrence, retribution and the public interest (in the sense that
the public had a legitimate expectation to be protected from such acts) all combined to warrant a substantial
custodial sentence in addition to a fine.

(4) Tan’s conduct was a deliberate and intentional act of retaliation calculated to cause inconvenience to the
cabin crew. An act which was done after deliberation and with premeditation as opposed to where it was done on
the spur of the moment and in “hot blood” was an aggravating circumstance.

(5) The potential danger of a fire started in an aircraft toilet could not be underestimated as it was an especially
vulnerable area. The severity of the offence should correspond to the degree of harm caused to the victims, and in
this respect, harm was not limited to physical injury but included psychological or mental harm. It was irrelevant
that no one was injured or that there was no serious damage caused to the aircraft. If someone had been injured
the accused could have been charged with another offence.

(6) Hardship was not a relevant factor here. As a factor, hardship caused to the family by way of financial loss
occasioned by imprisonment weighed little today, and of no weight if the term of imprisonment was short.

(7) The fact that the respondent was a first offender in respect of the offence charged was also of little
assistance. However, the weight to be given to this would be greater if there were positive evidence as to
character.

(8) There was no mitigation value in a plea of guilt where the offender pleaded guilty in circumstances
knowing that the Prosecution would have no difficulty proving the charge against him, or if he had been caught
red-handed.
(9) A trial judge could not justify a manifestly inadequate sentence by pointing to the Prosecution’s omission to
press for a deterrent sentence. A deterrent sentence could be awarded entirely within the court’s discretion. The
Prosecution need not apply for deterrence before the court could exercise such discretion.

14) Mitigation

- Mitigation of Sentence:
• Defence is entitled to mitigate by putting before the court the circumstances leading to the offence,
his background and character, and other factors
• Important that accused or his counsel does not in the plea of mitigation make statements that
contradict material admissions
• Counsel should not in a mitigation plea make an allegation that is scandalous or calculated to vilify
or insult any person: Rule 80, Legal Profession (Professional Conduct) Rules (Cap. 161, Rule 1)
Mitigation plea
80. An advocate and solicitor shall not in a plea in mitigation make an allegation that is scandalous or
calculated to vilify or insult any person.
- Pronouncement of Sentence and Consequential Orders:
• If accused is sentenced to imprisonment and needs time to sort out personal affairs before serving
sentence, application for deferment of sentence can be made under s. 223 CPC
• Burden lies on offender to satisfy court’s exercise of discretion for the postponement
• Court granting the postponement of the commencement of a sentence of imprisonment should not
ordinarily grant reprieve in excess of 15 days unless the circumstances in the case are
overwhelmingly urgent thereby requiring the offender’s immediate attention, or if the interests of
justice otherwise demands it: Loh Kok Siew v PP [2002] 3 SLR 22
Facts
The applicant (‘Loh’) was convicted and sentenced to three years’ imprisonment. He appealed against
conviction, but later withdrew it, and successfully applied to postpone the commencement of the
sentence for two months as he needed time to settle some work commitments.
Loh then filed the present criminal motion where he sought leave to further postpone the
commencement of sentence by another two months.
Held, dismissing the motion:
(1) A sentence of imprisonment took effect from the date on which it was passed, unless the
sentencing or appellate court exercised its discretion under s 223 of the Criminal Procedure Code
(Cap 68) (‘CPC’) to postpone its commencement.
(2) In deciding whether to grant a further postponement of commencement of sentence, the
paramount consideration was the applicant’s reasons for such postponement; other considerations
included the length and the reasons given in support of the first postponement, the reasons given in
support of the first postponement. The court would be guided as well by whether the interests of justice
required the discretion be exercised in the applicant’s favour, and would also adopt a robust approach in
ensuring that the discretion was not abused. Ultimately, the burden lay on the applicant to satisfy the
court that the peculiar circumstances and conditions in his case necessitated the court’s exercise of the
discretion in his favour.
(3) The motion was dismissed. First, the court granted a two-month extension the reason given by
Loh, and he was precluded as such from asking for a further extension using the same reason. Second,
granting a further postponement would send out a wrong message that the interests of justice could be
subordinated to other considerations. Third, Loh was clearly granted more than enough time to settle
his work commitments before his sentence was due to begin.
Per curiam:
The court granting a postponement of commencement of sentence of imprisonment should not
ordinarily grant reprieve in excess of 15 days unless the circumstances of the case were
overwhelmingly urgent and required the applicant’s immediate attention, or if the interests of justice
otherwise demanded it. This was in accordance with the spirit behind s 225 of the CPC, which although
inapplicable in the present case, was still instructive.
• If fines are imposed, accused may apply to allow time for payment of fine or to pay by
installments: s. 224(b)(i) or (ii) CPC
• After sentence is passed, prosecution may apply to withdraw other pending charges: s. 177 CPC, or
apply for disposal orders of seized exhibits: s. 386 CPC or under other written law
Date of commencement of sentence.
223. Subject to the provisions of this Code and of the Supreme Court of Judicature Act, every sentence of
imprisonment to which section 221 or 222 apply shall take effect from the date on which it was passed,
unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs.
Provisions as to sentence of fine.
224. Where any fine is imposed under the authority of any law for the time being in force then, in the
absence of any express provision relating to the fine in such law, the following provisions shall apply:
(b) in every case of an offence in which the offender is sentenced to pay a fine the court passing the
sentence may, at any time before the fine has been paid in full in its discretion, do all or any of the following
things:
(i) allow time for the payment of the fine and grant extensions of the time so allowed;
(ii) direct payment of the fine to be made by instalments:
Provided that before allowing time for payment of a fine or directing payment of a fine to be made by
instalments the court may require the offender to execute a bond with or without sureties conditioned
upon payment of the fine or of the instalments, as the case may be, on the day or days directed and in the
event of the fine or any instalment not being paid as ordered the whole of the fine remaining unpaid shall
 become due and payable and the court may issue a warrant for the arrest of the offender;
Withdrawal of remaining charges on conviction on one of several charges.
177. —(1) When more charges than one are made against the same person and when a conviction has been
had on one or more of them, the officer or other person conducting the prosecution may, with the consent of
the court, withdraw the remaining charge or charges or the court of its own accord may stay the inquiry into
or trial of the charge or charges.
(2) Such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction is
set aside, in which case the court, subject to the order of the court setting aside the conviction, may proceed
with the inquiry into or trial of the charge or charges so withdrawn.
Order for disposal of property.
386. —(1) During or at the conclusion of any inquiry or trial in any criminal court the court may make such
order as it thinks fit for the disposal of any document, livestock or other property produced before it.
(2) The power conferred upon the court by this section includes power to make an order for the forfeiture or
confiscation or for the destruction or for the delivery to any person of any property regarding which any
offence is or was alleged to have been committed or which appears to have been used for the commission of
any offence but shall be exercised subject to any special provisions regarding forfeiture, confiscation,
destruction or delivery contained in the Act under which the conviction was had or in any other Act
applicable to the case.
(3) When the High Court or a District Court makes such order and cannot, through its own officers,
conveniently deliver the property to the person entitled to it, that court may direct that the order shall be
carried into effect by a Magistrate.
(4) When an order is made under this section in a case in which an appeal lies, the order shall not, except
when the property is livestock or is subject to speedy and natural decay, be carried out until the period
allowed for presenting an appeal has passed or, when an appeal is presented within that period until the
appeal has been disposed of.
(5) In this section “property” includes, in the case of property regarding which an offence appears to have
been committed, not only such property as was originally in the possession or under the control of any party,
but also any property into or for which it has been converted or exchanged and anything acquired by such
conversion or exchange, whether immediately or otherwise.

15) Court passes sentence: s 180(n)(ii) CPC

o Once sentence passed and recorded, court is functus officio and cannot reconsider or alter its
judgment: s217 CPC. Judgment includes conviction based on PG.
o S217(2) provides that clerical errors may be rectified before the “court rises for the day” –
judicially defined to mean that court ceased to sit for business when the working day for court had
ended: Chiaw Wai Onn v PP [1997]
o But if there is no clerical error or other mistake in the original judgment, court cannot alter original
sentence: PP v Lee Wei Zheng Winston [2002] Only available recourse if criminal revision in the
High Court.
– (8) Thereafter, the court would pass sentence or may adjourn the case to consider sentence.
 • If the accused is sentenced to imprisonment and he needs time to sort out his personal
affairs before serving sentence, an application for deferment of the sentence can be
made. The burden would be on the defence to persuade the court to allow the
postponement of the commencement of the sentence. The normal period granted is
between two to three weeks’.
 Burden on u to convince court to allow deferment of snetnce – not that apply and
will get it
 • However, if you are going to make such an application for postponement of the
commencement of the sentence, it is best that you let the Court know at the outset.
 • If fines are imposed, the accused may be allowed time topay the fine or to pay by
instalments. If the amount is more than $10,000, the Court would require the accused
to execute a bond with surety or sureties conditioned upon payment of the fine (CPC, s
224(b)(ii)).
(I) Surety must be in position to ensure tt accused will keep faith
(II) Cannotbe offshore!
16) PP make ancillary application for exhibit disposal (if any) [s 386 CPC] or withdraw other pending
charges [s 177]

17) If accused is dissatisfied with sentence, he may

o apply for bail pending appeal: s 244 and s25 CPC
o fine imposed, apply for installment or deferred payment: s244 CPC
o apply for deferment of sentence if accused needs time to sort out personal affairs before serving
sentence: s233 CPC (note Lim Teck Leng Roland and Loh Kok Siew v PP in Judgment &
Sentencing Lecture)
o • If the plea was equivocal or invalid, then the proper procedure would be to file a petition for
criminal revision to set aside the conviction.
 NOT TO APPEAL

18) Appeal against sentence – then to file at court registry or tell court tt I undertake to file the appeal (MUST E
FIELD ON SAME DAY) -

Procedure after plea of guilt

- Following this, sentencing
- Counsel will usu then ask for adjournment to prepare mitigation
- During interim period, accused may decide to retract his plea -

Correction of error
- Section 217 CPC
Judgment not to be altered.
217. —(1) No court other than the High Court, when it has recorded its judgment, shall alter or review the
judgment.
(2) A clerical error may be rectified at any time and any other mistake may be rectified at any time before the
court rises for the day.

Retraction of plea

- Retraction of Plea of Guilt:

• Accused cannot be permitted merely at whim to change his plea, except upon valid and sufficient
grounds which satisfy the Court that it is proper and in the interests of justice that he should be
allowed to do so: Ganesun s/o Kannan v PP [1996] 3 SLR 560
Facts
The appellant Ganesun was charged under s 57(1)(e) of the Immigration Act (Cap 133) (‘the Act’) for
employing a Sri Lankan national who overstayed on his visit pass. He pleaded guilty, and a second
charge was taken into consideration. At the, Ganesun applied to retract his guilty plea, but the trial
judge disallowed his application. Ganesun appealed against the trial court’s refusal to allow him to
retract his plea.
Held, dismissing the appeal:
(1) The trial judge exercised his discretion properly in refusing the allow Ganesun to retract his guilty
plea. This discretion must be exercised judicially and for valid reasons. An accused person could not be
permitted merely at a whim to change his plea, except upon valid and sufficient grounds which satisfy
the Magistrate that it was proper and in the interests of justice that he should be allowed to do so.
(2) The discretion existed so long as the court was not functus officio. The court should adhere to
following safeguards in determining the validity of a plea of guilt: (a) the accused himself wished to
plead guilty; (b) the accused understood the nature and consequence of his plea; and (c) the accused
intended to admit without disqualification the offence alleged against him. In the present case, there
was no doubt that Ganesun wished to plead guilty, and the evidence showed clearly that he understood
the nature of the charge and the consequences of his plea. There was nothing to suggest that he failed to
appreciate the material facts of the case. It was clear that Ganesun intended to admit without
qualification the offence alleged against him. The statement of facts was interpreted and explained to
him, the mandatory sentence of imprisonment was also explained.
(3) The court was satisfied that the trial judge applied his mind to the relevant criteria in determining
 whether to exercuse his discretion to allow Ganesun to retract his plea, and as such exercised this
discretion correctly.
• If his plea was self-induced, in that he had thought it more convenient to plead guilty and pay a
fine than claim trial, it is not open to him afterwards to challenge the correctness of his conviction
by saying he misunderstood his counsel’s advice: Lee Eng Hock v PP [2002] 1 SLR 364
Facts
The petitioner (‘Lee’) was charged with certain offences. He admitted without qualification to the
statement of facts, pleaded guilty, and was convicted and sentenced. Lee sought a criminal revision,
contending that he pleaded guilty to avoid imprisonment as that was how he understood his former
counsel’s advice, and that he wanted the matter to be quickly disposed of even though he was
convinced of his own innocence.
Held, dismissing the petition:
(1) The High Court’s power of criminal revision was to be exercised sparingly, and it was not to be
used as a convenient form of ‘backdoor appeal’ against conviction for accused persons who had
pleaded guilty. Serious injustice, or the fact that there was something palpably wrong in the decision
that struck at its basis as an exercise of judicial power by the lower court, had to be shown before the
power would be exercised.
(2) The safeguards to be observed before a plea of guilt was recorded were – (a) the accused himself
intended to plead, (b) the accused understood the nature and consequences of his plea, and (c) the
accused intended to admit without qualification the offence alleged against him.
(3) There was no reason for the court to exercise its revisionary power. Lee did not show any
irregularity in to his plea of guilt which caused serious injustice. First, he pleaded guilty as he himself
wanted to do so. He did not prove his claim that his former counsel advised him to plead guilty to avoid
imprisonment; on the contrary, he stated in his affidavit that he misunderstood the advice. Second, the
court interpreter had informed him of the nature and possible consequences of his plea. Third, he had
admitted to the statement of facts without qualification.
• Packir Malim v PP [1997] 3 SLR 429
Facts
The petitioner Packir pleaded guilty to theft of several pieces of clothing from a stall and was sentenced
accordingly. He sought revision of the decision arguing that: (a) he was coerced into pleading guilty by
the treatment he received in the hands of the police; (b) his attempt to explain the true events was not
interpreted to the magistrate by the court interpreter; and (c) as he was not represented when he made
the plea, and was prevented from contacting his employer, the plea could not be without qualification.
Packir also lodged an appeal against sentence.
Held, dismissing the petition and appeal:
(1) The court could not accept Packir’s allegations of coercion and failure to interpret as they rested
on facts not disclosed in the record or exhibits. The allegations of coercion were untested and Packir
made no attempt to adduce fresh evidence.
(2) Pleas by unrepresented persons were not more easily vitiated than by those represented.
(3) The inconsistencies noted in the plea were negligible, and did not prejudice Packir.
(4) Packir failed to make out his application for revision. The plea of guilt held good and he was
precluded by s 224 of the Criminal Procedure Code (Cap 68) from appealing against his conviction. On
the related appeal against sentence, none of the matters raised constituted relevant mitigation. The
magistrate took into account the fact that he was a first offender in her sentencing and there was
nothing manifestly excessive in the sentence.
- Errors in Judgment:
• General rule, once the court has passed and recorded the sentence, it is functus officio and cannot
reconsider or alter its judgment: s. 217 CPC
• S. 217(2) provides that clerical errors may be rectified at any time and ‘any other mistake’ may be
rectified before the court rises for the day
• ‘rises for the day’ in s, 217(2) has been judicially defined to mean that the court ceased to sit for
business when the working day for the court had ended: Chiaw Wai Onn v PP [1997] 3 SLR 445
Facts
The appellant Chiaw was charged and convicted in the court below for abetting one Poon in disposing
of 640 pieces of Hewlett Packard computers valued at $1,855,072 by providing the latter with cash to
acquire the stolen computers. Chiaw’s main defence was that he did not know that his ‘loan’ to Poon
was used to buy stolen goods. He also claimed that his presence on the day of the theft was fortuitous
as he had offered to fetch Poon around because the latter’s car had broken down, and that the excess
 $60,000 which he received was to discharge an earlier debt which Poon owed him. The district court
sentenced Chiaw to 12 months’ imprisonment. On appeal, his sentence was initially enhanced to a fine
of $80,000 but was immediately revoked the same afternoon because the High Court exceeded its
jurisdictional limit. The sentence was then substituted by a sentence of six months’ imprisonment.
Held, dismissing the appeal:
(1) Chiaw’s account of his presence at every stage of the criminal enterprise was incredulous. The
sheer coincidences were inexplicable. Moreover, if he was not a party involved in some way or another
with the theft, it was inconceivable that the other participants would have readily agreed to his presence
at every stage of the criminal enterprise from the planning to its execution.
(2) On the circumstantial evidence alone, Chiaw clearly participated in the criminal activity. His
presence at all the relevant stages of the theft went beyond mere presence, but indicated that he was
well aware of the theft and was an active participant. The prosecution had clearly discharged the
burden of proving this beyond reasonable doubt. Even if knowledge could not be inferred, the mens rea
for a s 414 charge would have been constituted under the alternative limb that Chiaw had ‘reason to
believe’ that the computers were stolen. The requirement here would have been lower than actual
knowledge.
(3) The rules on whether the High Court in its criminal appellate capacity could alter the judgment,
including sentence of a subordinate court, were set out in s 217 of the Criminal Procedure Code
(Cap 68) (CPC). Section 217 did not attempt any substantive enactment with regard to the High Court.
As such, s 217(1) laid down a general prohibition against alteration of judgments by the subordinate
courts. Section 217(2) was an excepting proviso to this prohibition by prescribing the limited
circumstances as to when the subordinate courts could alter or review their judgments. The entire
section did not apply to the High Court at all.
(4) In s 217(2), ‘any other mistakes’ meant more than clerical mistakes. In practical terms, the phrase
‘rises for the day’ in s 217(2) meant when the working day for the court had ended. This purposive
construction afforded the judge a realistic opportunity to know of and correct any non-clerical mistake
in the judgment without unduly offending the principle of finality. The limited time period within
which a non-clerical mistake might be rectified ensured that the accused would not have suffered any
real detriment. For the sake of prudence, the accused or his counsel should be present to avoid any
allegation of prejudice or impropriety.
(5) The High Court in its appellate jurisdiction must necessarily have whatever powers the lower
courts possessed. The powers conferred on the lower courts by s 217 must, by implication, have also
been available to the High Court in its appellate capacity. As such, this court had the requisite power to
alter Chiaw’s sentence even though it was a substantive mistake, because it had not arisen for the day
when the rectification was made.
(6) Even if the above view was wrong, the court was still empowered to substitute a six-month
imprisonment term for a $80,000 fine. Since the court was not functus officio, it could alter the
sentence. No real detriment or prejudice would have occurred in this case.
Judgment not to be altered.
217. —(1) No court other than the High Court, when it has recorded its judgment, shall alter or review the
judgment.
(2) A clerical error may be rectified at any time and any other mistake may be rectified at any time before
the court rises for the day.

• Qualifying plea vs. Retracting plea

o If plea is qualified, plea has to be rejected by court. If not, conviction is wrong in law
o If accused tries to retract plea, court may refuse depending on what stage retraction occurs.
o If only inconsistent with details that do not affect elements of offence, not qualifying plea.
However, Newton Hearing may be required if details material for sentencing
o Newton Hearing:
 Prosecution calls evidence,
 Defence calls evidence,
 submissions,
 court rules

- See Chiaw wai onn

 – interpreting s217 - wider meaning than just clerical mistakes - mistakes as to law etc can still
be rectified before the court rises for the day
- Sub court judges cannot alter finding – but on tt day if spot mistake – can alter – go back to the judge
- Sn also applies when judge oversteps limit in sentencing
- The only alternative after 24 hr mark is passd is crim revision

- Ganesun s/o Kannan v PP [1996] 3 SLR 560

– court has discretion to withdraw a plea of guilty and to substitute a plea of not guilty.
Discretion has to be exercised judiciously and for valid reasons.
– cannot be done once court is functus officio (i.e. upon sentencing) – court cannot allow
accuseda to retract plea anymore
– rationale – chaos otherwise created
- ‘functus officio’ - an expression applied to a judge, magistrate or arbitrator who has given a decision
or made an order or award so that his authority is exhausted.
 The judge can vary any order before it is passed and entered. After it has been passed and entered,
the court is functus officio and can make no variation itself. Any variation which may be made
must be made by a court of appellate jurisdiction (see Re V.G.M Holdings Ltd [1941] 3 All ER
417)
 Note: The court can reject an accused’s change of plea to not guilty so long as it is satisfied that the
accused had intended to plead guilty knowingly.
 Comments: The trial judge had a discretion to withdraw a plea of guilty and to substitute a plea of
not guilty, and that discretion existed so long as the court was not functus officio. The discretion
has to be exercised judicially and for valid reasons, and the appellant could not be permitted
merely at whim to change his plea. The plea of guilty had to be valid and unequivocal, and in order
to determine the validity of the plea of guilt, the safeguards propounded in Lee Weng Tuck v PP
were to be followed.

- Tests guiding the court:

 ‘functus officio’: when a matter has been finally disposed of by a court, the court cannot, in the
absence of a direct statutory provision, entertain a fresh prayer for the same relief unless and until
the previous order of final disposal has been set aside – Lim Teck Leng Roland v PP [2001] 4 SLR
61)

- court must be satisfied that when he pleaded guilty, he did not understand the nature and conseq of his plea –
same test as above
- rational
- restrictive – court x therefore easily allow persons to retract plea of guilt
- rationale – based on whim, then crim proced cannot mov eon. Expeditious disposal of case
affected
- PP v Sam Kim Kai [1960] MLJ 265 – court should record grounds on which discretion to accept retraction
of plea is exercised
- R v McNally [1954] 1 WLR 933 - discretion to allow retraction of plea should be exercised in accused’s
favour if there was a question of mistake or misunderstanding)
- Lee Weng Tuck v PP [1989] 2 MLJ 43 – retraction of pleas was allowed because court had grave doubts the
appellants understood nature and consequences of their pleas and that they intended to admit without
qualification the offences.
– Retraction of plea was allowed. It was a drug trafficking case. The appellants had not been
told or knew that the offence to which they had pleaded guilty carried the death sentence
although it was not mandatory. They were also not told that even though the death sentence
was not mandatory, in view of current sentencing policy on trafficking in hard drugs, the death
penalty would be imposed in the absence of most exceptional circumstances.

- Use of statement of facts to prove facts in trial of accomplice

 PP v Liew Kim Choo [1997] 3 SLR 699:
 • The SO is a statement on which he could properly be cross-examined under Section 147
of the Act” but numerous factors militate against its being a sole basis of conviction.
• Accused may have his own reasons for pleading guilty (e.g. cannot afford counsel). SOF
is not drafted by the Accused. Accused will not be concerned about parts of the SOF not
relevant to him.
• Comment: can be used by not given much weight by the courts.

- Accused in person – same rules apply in considering validity of plea / allowing of retraction…

Packir Malim v PP [1997] 3 SLR 429

- Facts: The petitioner Packir pleaded guilty to theft of several pieces of clothing from a stall and was
sentenced accordingly. He sought revision of the decision arguing that: (a) he was coerced into pleading
guilty by the treatment he received in the hands of the police; (b) his attempt to explain the true events was
not interpreted to the magistrate by the court interpreter; and (c) as he was not represented when he made the
plea, and was prevented from contacting his employer, the plea could not be without qualification. Packir
also lodged an appeal against sentence.
- Held, dismissing the petition and appeal:
- The court could not accept Packir’s allegations of coercion and failure to interpret as they rested on
facts not disclosed in the record or exhibits. The allegations of coercion were untested and Packir
made no attempt to adduce fresh evidence.
- Pleas by unrepresented persons were not more easily vitiated than by those represented.
- The inconsistencies noted in the plea were negligible, and did not prejudice Packir.
- Packir failed to make out his application for revision. The plea of guilt held good and he was precluded by
s 224 of the Criminal Procedure Code (Cap 68) from appealing against his conviction. On the related appeal
against sentence, none of the matters raised constituted relevant mitigation. The magistrate took into account
the fact that he was a first offender in her sentencing and there was nothing manifestly excessive in the
sentence.
- That left then the inadequacies of the plea of guilt and the statement of facts. The petitioner firstly relied
upon the Malaysian case of Sau Soo Kim v PP [1975] 2 MLJ 134. There Lee Hun Hoe CJ said at pp 135–
136:
- Encik Lamin drew the attention of the court to the proviso of s 50(2) of the Courts of Judicature Act 1964.
This makes clear that where an accused person has pleaded guilty and been convicted on his own plea there
shall be no appeal except as to the extent or legality of the sentence. Where an accused, as in the case of the
appellant, is legally represented at trial the proviso should be adhered to strictly. But, where an accused
person is not represented by counsel at the trial then perhaps an appellate court should peruse the record of
the trial carefully to satisfy itself that there is no irregularity giving rise to miscarriage of justice. Being
unrepresented he would not have the benefit of legal advice. It is thus proper for an appellate court in such a
situation to correct miscarriage of justice arising form misconception of law, irregularity of procedure or
apparent harshness of treatment resulting in injury or undue hardship to such an accused. For example, if an
accused pleaded guilty to a charge which creates no offence known to law and further the facts also disclose
no offence, clearly such a conviction should not be allowed to stand. Surely, such a plea of guilty to what is
not an offence is no plea at all.
- Upon this statement, petitioner’s counsel submitted that as the petitioner was not represented and he was
allegedly refused contact with his employer, the plea he made could not be said to be without qualification.
- Lee Hun Hoe CJ’s dicta concerning an unrepresented accused does not support that contention at all. All that
the judge was concerned with was that the court should be careful to ensure that the plea was correctly
made. But the judge cannot be understood to be saying that pleas by unrepresented persons are more easily
vitiated than by those represented. The learned judge gave the example of a plea to an unrecognised offence
as not being a real plea — such a plea would be bad whether the accused is represented or not. The
acceptance of the petitioner’s submission would in practical terms mean that no plea by an unrepresented
person could ever be accepted as unqualified. This cannot be.
- The need to ensure that a plea of guilt is properly made was noted by the Court of Appeal of Singapore in
Mok Swee Kok v PP. The petitioner relies on that case in contending that the plea here was not proper
because of inconsistencies in terminology in the description of the items stolen and of the stall. The
inconsistencies related to the reference to a display counter at the stall instead of roller stands and to the
dresses being described variously as suits, traditional dresses, traditional dressing, and Chinese clothings.
 But these inconsistencies were negligible, and the petitioner was not prejudiced in any way. The elegant
variation in terms was perhaps sloppy, but it is clear that no one would have been misled.

Rajeevan s/o Edakalavan v PP [1998] 1 SLR 815

- accused after having been convicted and sentenced, applied to higher court to say tt plea shldbe retracted
because judge x inform him of what defences cld be
- –not duty of judge or prosecution to inform unrepresented accused of defences or other options that might
be open to him and advantageous to his case.
- Facts
- The petitioner Rajeevan was charged with and convicted of using criminal force with an intent to outrage the
modesty of a woman under s 354 of the Penal Code (Cap 224). He was sentenced to six months’
imprisonment and three strokes of the cane. Rajeevan petitioned for a criminal revision on the ground that
the court proceedings were flawed in that it contravened art 9(1) of the Constitution, and as a consequence,
culminated in a miscarriage of justice. His main arguments were that: (a) there was no mention of the fact
that he had undergone a blood alcohol content test upon his arrest; and (b) as he was not advised of his right
to legal counsel, he pleaded guilty in his state of shock under the mistaken belief that he had no defence to
the charge and that he would not have done so had the defence of intoxication been made known to him.
- Held, dismissing the petition:
- (1) Article 9(3) clearly stated that a person under arrest “shall be allowed to consult and be defended by a
legal practitioner of his choice”. The operative words were “shall be allowed” Nowhere in art 9(3) did it
provide that there was a further right to be informed of one’s right to counsel. There was no obligation
imposed on the relevant authority to inform and advise the person under custody of his right to counsel. To
read such a right into art 9(3) was tantamount to judicial legislation.
- (2) Rajeevan’s second argument was untenable and struck at the roots of the independence of the judge as
the adjudicator. It was not the judge’s duty to inform him of the defences or other options that may have
been open to him and advantageous to his case. That was the duty of counsel who was appointed to defend
him in court, if the accused chose to be represented. The onus did not shift to the judge (or the prosecution,
for that matter) simply because the accused was unrepresented. That would place too onerous a burden on
the judge. Furthermore, the judge would be performing two completely incompatible and irreconcilable
roles – one as the adjucator, the other as the de facto defence counsel. The judge’s position of impartiality
and indepenendece would be gravely undermined.
- (3) Before an accused’s plea of guilt was accepted, the court must ensure that the plea was valid and
unequivocal in that: (a) the accused himself wished to plead guilty; (b) the accused understood the nature
and consequences of his plea; and (c) the accused intended to admit without qualification to the offence
alleged against him. On the evidence, Rajeevan’s plea was valid and unequivocal.
- (4) The plea of intoxication was dismissed as the amount of ethanol in Rajeevan’s blood was low.
- (5) There were no grounds whatsoever for exercising the court’s powers of criminal revision. Petition
dismissed.

‘Newton Hearing’
- after statement of facts read to accused, he may admit without qualification the essential elements but may
dispute certain facts which are not element sof the offence but material to sentencing
- ie facts which affect culpability eg whether dragged into offence or did it wilingl and
schemed => materiality in how court shld sentence the accused
- where sharp divergence on a question of fact relevant to sentence
- If the dispute of facts does not affect the position that the offence has been committed (i.e. not a qualified
plea of guilt), but affects the degree of culpability and therefore the possible sentence, the court could hold a
Newton hearing.
– Example: Charge of Rioting with a dangerous weapon. No dispute of presence at the scene
and the offence does not require everyone to be present  Accused however says that he did
not hit anyone but merely chased pple away in contrast to the Statement of Facts  This does
not affect the position that the offence was committed but would affect individual culpability
and hence the sentence. A Newton Hearing is required.
- • Defence counsel should notify the prosecution and the Court at the outset that a plea of guilty would be put
forward on the basis that the accused disputes the prosecution’s version of the facts.
- • If there is a dispute which does not pertain to the elements of the offence – that is it relates to how the
offence was committed and not whether it was committed – the court would convict the accused of
theoffence.
- • If the dispute is serious enough to have a significant effect on sentence and the prosecution disputes the
accused’s version – then the Court would proceed to conduct a hearing to determine which version to accept
so as to determine the appropriate sentence.
- • The hearing itself follows the normal adversarial lines with the prosecution and defence given the
opportunity to call such evidence as they wish and to cross-examine the witnesses called by the other side.
- • If the defence version is so implausible that a judge ought not to be obliged to waste his time hearing
evidence before rejecting it, the judge can decline to hear evidence and sentence on the version of the
prosecution.

- 2 approaches:
- court hears evidence from parties and comes to conclusion
- court hears no evidence, but comes to conclusion on basis of submissions of counsel.
 Benefit of doubt as far as possible to be given to accused where there is a substantial
conflict between the two sides.
- Practically speaking, court WILL hear evid, unlikely for second approach to take place
- R v Newton 77 Cr. App. R. 13 – three approaches (other approach not set out here relates to jury proced
which is not applicable in sg)
- In this case, Newton charged for buggering wife, pleaded guilty, SOF stated tt he did not
have consent of wife. Newton disputed tt he used violence; pros did not accept tt there was
no consent and no violence => principles then set out here
- Subsequent English cases clarified that where there is a substantial conflict as to the facts of the offence,
and the court is unwilling to sentence on the basis of the accused’s version, it must hear evidence on the
question: e.g. Smith (1986) 8 Cr App R (S) 169, unless:
- the difference in the 2 versions of the facts is immaterial to sentencing, and the same
sentence would be passed however the question is determined.
- the version put forward by the Defence is ‘manifestly false’ or ‘wholly implausible’.
- the Defence version does not amount to a contradiction of the Prosecution’s case but relates
to extraneous matters explaining the background of the offence or other circumstances
which may lessen the sentence.

Claim trial cases - PTCs

– conducted in chambers – NOT in open court
– • The pre-trial conference is a judicial initiative. There is no statutory provision in criminal cases to hold a
PTC.
 Arguably this has acquired status of an integral process in criminal justice by judicial
practice like SOF. PTC has been judicially referred to in Guy Ermer Eldon v PP and
many other cases.

– • The Courts that conduct PTCs are: 2, 3, 4, 5, 24 (District Courts) and 23 (Magistrate’s Court).
– PTCs: Court 23 conducts PTCs for all cases fixed in magistrate’s trial courts. Court 26 fixes PTCs in five
District Courts (Courts 2, 3, 4, 5, and 24) under a group management of cases scheme. \

– • Objective of a PTC is basically to ensure the parties would be ready for trial with the timelines
(usually cases are disposed of within 6 months of first being charged) and to estimate the number of
days required.
 Narrow down contentious issues and determine trial days.
 Court-encouraged disclosure
 Expedite proceedings
 Obt info fr parties to determine status of case before trial

– Disclosure:
– In the process, there is usually limited disclosure by the prosecution and defence of their respective cases
and the evidence they are relying on. This helps in plea bargaining and to narrow down contentious issues to
make a more accurate assessment of the time required for trial.
- The court would also ascertain if the prosecution is using any statement of the accused as part of its case and
if there would be any challenge to the admissibility of the statement on the ground of voluntariness.
- The court would also ascertain if the prosecution intends to lead evidence of any witnesses by way of
conditioned statement under s 371 and if the defence would have any objections. Also, if the facts are not
materially in dispute whether the preparation of an agreed statement of facts (CPC, 367) would assist.
– • There is no power for a PTC Court to order the prosecution to furnish any documents to the defence.
– • So, don’t make any application at the PTC for the Court to order the prosecution to extend the
accused’s s 121(1) statement to you. The application should be made during trial after accused has
given his oral evidence: Ronnie Tay Kok Poh v PP; Soosainathan s/o Dass Saminathan v PP.
 But the PP can always volunteer to show or give you.
– • For other documents, the application must be made to the trial court under s 58 CPC “only after the
recording of prosecution evidence has commenced”, and “at an appropriate time … when the trial is well
under way before the court has before it the necessary material to decide the necessity or desirability of
production of the document”: Kulwant Singh v PP.

• What are usually discussed at PTC?

o What are issues that require judicial determination?
o Any undisputed facts: can agree on ASOF?
o Witnesses – all located, local or foreign, language, formal or factual or expert witness, can
dispense with attendance, can use conditioned statement (s 371 CPC), any offered to defence
 S180(d) – court obtain names of persons likely to be acquainted with the facts of case and
able to give evid for PP / anyone else court thinks fit.
 Numbef of witnesses to be determined
 In practice, PP and defence’s resp to apply to Chambers Mag at Crime Registry of Sub
Courts for issue of summonses to witnesses – s42 CPC Sch B Form 30.
 Evid via Video link e.g. vulnerable witnesses – application shld be made at PTC so Court
16 can be used.
 Court will enquire whether defence has any objn to admission of pros witnesses’s statements
under section 371 CPC
o How long the defence case in terms of hearing days will take
o Brief nature of the witnesses’ evidence
o Documents – amended charges, cautioned statement, medical report, forensic report (note s 369
CPC), alibi evidence like passport, etc
o Number of days required and dates suitable for both sides
o Consensual pre-trial discovery
 e.g. PP provide defence with forensic reports or drug analysis which may give defence
idea of nature of PP’s evid against accused to facilitate plea bargaining
 defence can also request for disclosure of statemtns to police by accused if wish to
challenge its admissibility of pros x indicate they are relying on statements of accused as
part of pros case
 to then take into consideration no of days for hearing, allowance for voir dire
o Defence may serve requisite notice to PP if it intends to rely on alibi evidence at trial in accordance
with s182 CPC.
o Issues like whether joint trial or separate trials (s169 to s176 CPC) to be held for multiple offences
or multiple accuse persons.
o PTC judge may also request prosecution to prepare conditioned statements for formal witnesses
under s371 CPC or invite parties to ready statement agreed facts on non-contentious issues.
o Note – During PTC, court has NO POWER to direct disclosure of witness’ statements or accused
statements by prosecution to defence. Entirely up to PP to furnish to the defence such statements if
they so desire.

Report of certain persons.

 369. —(1) Any document purporting to be a report under the hand of any of the persons mentioned in
subsection (2) upon any matter or thing duly submitted to him for examination or analysis or report
may be used as evidence in any inquiry, trial or other proceeding under this Code unless the court or
the accused requires that person to be called as a witness:

Provided that in any case in which the Public Prosecutor intends to give in evidence any such report
he shall deliver a copy thereof to the accused not less than 10 clear days before the commencement of
the inquiry, trial or other proceeding.

- All pre trial matters to be dealt with proper – narrow down issues
- Defence need not disclose defence and can disclose during trial

- Preparation for Hearing:

• Apart from documents that prosecution is required to give notice of under s. 369 CPC, whether
there are documents the prosecution is willing to disclose, eg photographs, medical reports, s.
121(1) statement of accused
• S. 180(d) CPC: court shall obtain from complainant or otherwise the names of any persons likely
to be acquainted with the facts of the case and to be able to give evidence for the prosecution
• In practice, it is the prosecution’s and defence’s responsibility to apply to the Chambers’ Magistrate
at the Crime Registry of the Subordinate Courts for issue of summonses to witnesses
• Such summonses are provided for under s. 42 CPC (Schedule B Form 30)
• Counsel sometimes loosely refer to such summonses as “subpoena to witnesses”
• If services of interpreter required for any witnesses, the Registrar should be informed 2 days after
the PTC at which the hearing is fixed or 2 weeks before the day when the interpreter is required,
whichever is earlier (Sub Courts Practice Directions 2006, Pt XV, para 144)

Sub Court Practice - 144. Request for court interpreters

1(1) Any party requiring the services of an interpreter of the Court for any of its witnesses
must inform the Registrar by letter no later than 2 working days from the date of the PTC or
other proceeding at which the hearing date is fixed or 2 weeks before the day when the
interpreter is required, whichever is earlier. This practice is to be followed for all fresh and
adjourned hearings, whether in open Court or in chambers.
2(2) Where an interpreter is required and the Registrar has not been so informed, any
deployment of an interpreter will be subject to availability.
3(3) The letter should contain the following information:
0(a) Case number;
1(b) Parties to the suit;
2(c) Names of witness(es) requiring an interpreter;
3(d) Court/Chamber number;
4(e) Stage of proceedings (e.g. fresh or adjourned hearing);
5(f) Date and time of hearing (in the event the hearing is fixed for more than 1 day,
the date and time on which the interpreter’s services are required);
6(g) Number of days required; and
7(h) Language/dialect.
4(4) Where the services of the interpreter requested are no longer required prior to the start of
the hearing, such as in the event of a settlement prior to the trial, the party who has requested
the services of the interpreter must inform the Registrar in writing immediately.
5(5) This Paragraph shall apply to both civil and criminal proceedings.
• Adequate preparation for hearing means deciding on issues, evidence necessary to prove the
issues, order in which witnesses are to be called, preparing for examination-in-chief and cross-
examination
• Counsel on both sides should be familiar with the law on the use of statements, admissibility of
statements, impeachment by proof by former inconsistent statements, and refreshing of witnesses’
memory using previous statements
• How s. 122(2) CPC cross-reference with s. 157 and 147 EA for witness statements
• How s. 122(5) CPC or s. 24 EA cross-reference with s. 157 and 147 EA for accused’s statement
 • How s. 161 to 163 relate with s. 147(4) EA for refreshing of witness’ memory
• Also to be familiar with statutory exceptions to hearsay in s. 371 and 376 to 385 CPC and law on
opinion evidence, character evidence, and any other criminal procedure or evidential provisions
• On how written judgments should be cited: Sub Courts Practice Directions 2006, Pt VII, para 53

TRIAL

- The procedure to be followed by the court in hearing a case is set out in the Criminal Procedure Code.
- The Prosecution presents its case first. The Defence may cross-examine all of the Prosecution’s witnesses.
At the conclusion of the Prosecution’s case, the court will decide whether to call on the accused person to
enter on his defence.
- Section 180 of the CPC governs the procedure in which the trial will proceed. – summary trial
- Section 187 – High court - states that: -187. —(1) When the court is ready to commence the trial, the
accused shall appear or be brought before it and the charge shall be read and explained to him and he shall
be asked whether he is guilty of the offence charged or claims to be tried.
- In practice however, hearing of evid does not commence forthwith.
 So under s186(4) CPC, if accused refused to plead or has not pleaded or has claimed
to be tried, and not further step has been taken in the proceeding, the court may stay
proceedings and transfer the case to another Mag Court or DC.
 In practice, if accused plead not guilty or claims trial, case will be adjourned for few
mentions for parties to ready the case for hearing before it is transferred to one of the
Judge-manager courts for PTCs.

- two types of trial

- Summary Trial (s180 CPC) – not a trial in HC. In sub courts. Start and end can occur by
same judge and case disposed of. No committal hearing for summary trial.
- High Court Trial (ss187-193 CPC)
 Committal hearing that precedes every trial to sieve out cass where no prima
facie evid to commit trial in HC
 In sg, this committal hearing is known as Prelim Inquiry – sep hearing presided my
magis where pros adduces evid fr witneses and magis determines at end after hearing
pros and defence – whether suff evid to commit accused for trial
 Not for him to decide whether accused guilty or not of charge to be tried of
 Just to determine tt some evid
- Accused elects to be tried – enters plea of not guilty

- Case for the Prosecution:

• S. 180 CPC is repeated on the first day of hearing
2. Charge will be read and explained to accused, if he decides to plead guilty, case is said to have
“cracked” and summary trial procedure for a guilty plea
3. If pleads not guilty, prosecution need not give opening address but may forthwith adduce
evidence: s. 180(e) & 181 CPC
• Witnesses are examined in accordance with s. 137 to 168 EA
• Prosecution will lead witness’ evidence
• prosecution has the unfettered discretion whether to summon or use any witness
• it has no obligation to summon any particular witness unless the failure to do so is shown to
be actuated by oblique motive: Chia Sze Chang v PP [2002] 4 SLR 523;
Facts
The police raided a lounge co-owned by the appellant (“Chia”), and arrested him for breaching the
Public Entertainments and Meetings Act (Cap 257, 2001 Ed). Chia was charged under s 19(1)(c)
of the Act for failing to ensure that: (a) singers employed by the lounge did not sit with the
customers (“the first charge”), and (b) only persons registered with the lounge served the
customers drinks (“the second and third charge”).
 Chia was convicted and fined a total of $27,000, which he paid. He appealed against his
conviction.
Held, dismissing the appeal:
(1) The appeal against conviction under the first charge was dismissed. First, the singers in
question were employed by the lounge, and the trial judge found that they were sitting with
customers. Chia did not adduce evidence to the contrary and in this regard, an appellate court
should be slow to overturn a trial judge’s findings of fact. Second, the singers were not called as
prosecution witnesses because they had left Singapore, and not because their testimony would
prejudice the prosecution’s case. Hence, no adverse inference was drawn against the prosecution
under s 116 illustration (g) of the Evidence Act (Cap 97, 1997 Ed). Third, Chia did not satisfy the
condition that ‘the licensee shall ensure that the singers do not sit with the customers’; the court
found that he turned a blind eye to the goings-on in the lounge’s rooms.
(2) The appeal against conviction under the remaining charges was also dismissed. First, the two
women caught serving drinks were not registered with the lounge. Second, they were correctly
identified by the officer in question. Third, that they were the ones serving drinks was established
despite the few inconsistencies between the evidence of the officer and the prosecution witnesses.
Fourth, that the prosecution did not call the women or two of the customers in question did not
weaken its case as there was direct and credible evidence from other material witnesses.
(3) The heavy fine imposed was necessary to act as a deterrent. Chia was previously fined no
less than six times for breach of the Act, and he paid all of them. The court expressed the need to
stop such licensees from treating fines as business losses.
• Roy Selvarajah v PP [1998] 3 SLR 517
Facts
The appellant Selvarajah was convicted by the district court of abetting one Nagammal to remain
unlawfully in Singapore after the expiry of her visit pass on 7 January 1995, an offence under
s 15(1) Immigration Act (Cap 133, 1995 Ed) (‘the Act’), punishable under s 15(3)(b) of the Act
read with s 109 Penal Code (Cap 224). Selvarajah was originally charged with Nagammal but at
the commencement of the trial, the prosecution applied to stand down the charge for overstaying
against Nagammal and instead proceeded with against the appellant. Nagammal then became a
material prosecution witness against Selvarajah. The prosecution led evidence from an
investigating officer (PW1) and from an officer from the Ministry of Labour (PW2) to show that
Nagammal was an overstayer.
Defence counsel’s objected to the admissibility of the evidence of PW1 and PW2 on the ground of
hearsay was rejected by the district judge. Selvarajah appealed against conviction on the grounds
that: (a) that the charge was defective; (b) the principal offence of overstaying under s 15(1) of the
Act was not made out; (c) the principal offender was not dealt with; (d) the principal offence was
not shown to be committed as a result of Selvarajah’s abetment; (e) the conviction was not
supportable; and (f) the manner in which the trial was conducted was prejudicial to the appellant.
He also appealed against the sentence on the ground that it was manifestly excessive.
Held, dismissing the appeal:
(1) The prosecution’s failure to set out the particulars of intentional aiding did not render the
charge of abetment defective. Section 160 Criminal Procedure Code (Cap 68) (CPC) provided that
where the particulars provided in ss 158 and 159 of the CPC did not give the accused sufficient
notice of the matter with which he was charged, the charge shall also contain such particulars of
the manner in which the alleged offence was committed as would be sufficient for that purpose. In
this case, there was sufficient information in the charge for Selvarjah to be put on notice as to the
case against him. There was no need for the prosecution to state in the charge how Selvarajah
intentionally aided Nagammal to overstay in Singapore. It was sufficient for the prosecution to
lead evidence, through its witnesses, of how he had intentionally aided her to overstay.
(2) PW1’s evidence was that she checked the records with the Data Processing Centre in the
Immigration Department which showed that Nagammal’s social visit pass expired on 7 January
1995. This was admissible as evidence to show that Nagammal was an overstayer. The records at
the Centre were relevant and admissible by virtue of s 380 of the CPC, an exception to the hearsay
rule. However PW1’s evidence that she was informed by the Work Permit Department that no
work permit was ever issued to Nagammal was clearly hearsay and inadmissible.
(3) PW2’s evidence that the Work Permit Department sent a letter to inform the employers that
their in-principle approval had expired was admissible to show that Nagammal did not turn up at
the Work Permit Department and, accordingly, no work permit was ever issued.
 (4) On the evidence, the prosecution had proved beyond reasonable doubt that Nagammal had
remained unlawfully in Singapore. The fact that she was not yet tried was not a bar to the
conviction of Selvarjah who was alleged to have intentionally aided her. It was clear on the
evidence that the principal offence of overstaying was committed as a result of Selvarjah’s
abetment. The evidence showed that Selvarajah brought Nagammal into Singapore to work and
was under a legal obligation to follow up with the documentation with the Work Permit
Department but failed to do so. The evidence of all the employers was clear and damning to
Selvarajah who supplied Nagammal to work in their households. Nagammal’s testimony of how
Selvarjah sent her to numerous homes was corroborated in material respects by the former
employers.
(5) There was no prejudice to the appellant in the manner in which the prosecution was
conducted especially in view of the strong corroborative evidence from no less than ten
prosecution witnesses, there was no danger that the appellant was convicted based on the evidence
of Nagammal alone.
(6) On the issue of sentencing, the district judge considered that a deterrent sentence was called
in view of Selvarajah’s reprehensible conduct. After bringing Nagammal to Singapore, he had no
qualms about sending her to various households and in keeping her in Singapore for more than
two years, despite her pleas to be allowed to return to India. Having regard to the factors
considered by the district judge, and also the need to protect the public interest in deterring would-
be offenders from abetting illegal overstayers to remain in Singapore, the sentence imposed was
not excessive.
• prosecution may decide not to use such witnesses
• practice then is for prosecution to tender the witness for cross-examination or alternatively to
offer the witness to the defence
• obligations placed upon the prosecution with regard to the calling of witnesses was
summarized in The Lee Tong v R [1956] MLJ 194:
(1) all witnesses from whom statements have been taken should be brought to the court
by the prosecution, except those whose evidence will clearly and obviously throw no
light on the case; any witness not so brought to court must be made available to the
accused, should he desire to call him.
(2) Prosecuting officer is not bound to call or to offer for cross-examination a witness
whose evidence is in his opinion unnecessary or is obviously hostile
(3) Existence of witnesses brought to court but not called or offered for cross-
examination must be brought to the attention of the court so that they are available to
be called by the defence, or by the court should the court consider this necessary
• Vulnerable witnesses such as victims of sexual offences or child witnesses may give evidence
via ‘live’ videolink: s. 364A(1) CPC; Sub Courts Practice Direction, Pt XVI, para 158 for the
procedure
• Application to give evidence in such manner usually made at PTC stage to facilitate early
arrangements
• Court 16 equipped for this purpose
• Vulnerable Witnesses Support Programme provides emotional support to vulnerable
witnesses, a volunteer support officer will accompany the witness to court

Opening
- Trial preceded by opening address describing the evidence. Unless complicated, no opening address in
summary trial (opening by pros or defence)
- But in complex cases parties do give opening address for court to know what evid they are
adducing tro prove each element
- Note that in HC, opening address by pros is reqd under CPC
- • A plea of not guilty will lead to the commencement of the trial proper.
- • If the case is complicated, the prosecution will open its case by making an opening address – stating
shortly the nature of the offence charged and the evidence by which he proposes to prove the guilt of
the accused.
- • In 99 per cent of the cases, there will be no opening address and the prosecution will just proceed to
call its witnesses and produce other evidence immediately.
- Trial commences
 Charge read and explained to accused again
 If PG, summary trial procedure for guilty plea above applies.
 If plead not guilty, PP need not vie an opening statement but may forthwith adduce evid: s180(e) and s181
CPC
 PP’s case: Witnesses examined in accordance with s137 and s168 EA (leading qns, oath etc)
 i) PW1 EIC by PP }
 ii) PW1 XE by DC/@ } s 180(c), (e) CPC rw s 140 EA
 iii) PW1 RE by PP }
 iv) PW2, 3, 4 etc follow the same process until last PW2

Order of witnesses
- Prosecution witnesses
- (evidence in chief)
- Then defence will cross examine pros witness
- PP has unfettered discretion whether to summon or use any witness. No obligation to
summon any particular witness unless the failure to do so is shown to be actuated by oblique
motives: Chia Sze Chang v PP [2002]
- PP may summon certain witness but during the bearing, it may decide not to use such
witnesses as their evidence would not add much to PP’s case. Normal practice is for PP to
offer these witnesses to defence for XX.

- • The prosecution witness’ evidence may be led by way of a statement under s 371 if the
defence has no objection. Otherwise, the witness will give oral evidence after taking the oath
or affirmation. Whether the evidence is adduced by way of a statement or orally, the witness
may be cross-examined by the accused and then re-examined by the prosecution.
 If client asks u to say anything irrelevant, tell him tt irrelevant – you are an officer of
the court – don’t waste court’s time
- • Vulnerable witnesses such as victims of sexual offences or child witnesses my give
evidence via ‘live’ videolink under s 364A(1) of the CPC. Court 16 is equipped for this
purpose.
- • If you intend to apply to the trial court to allow your witness to give evidence by way of
videolink, please inform the PTC judge to facilitate early arrangements.
- • Once the witnesses have been examined in this manner and the prosecution has produced
all the evidence he intends to call his case comes to a close.
- • The prosecution must have in court all witnesses from whom statements have been taken
in the course of investigations, but they have a discretion who to call, provided there is no
ulterior motive.
- • The prosecution will offer the witnesses that it does not wish to call to the defence. You
can then interview the witness and decide whether you wish to call him or her.

Test at Close of Prosecution’s Case

- when PP Closes its Case. DC or accused can make submission of no case to answer:
- High Court – s189(1) CPC
- “When the case for the prosecution is concluded the court, if it finds that no case against the
accused has been made out which if unrebutted would warrant his conviction shall record
an order of acquittal; or if it does not so find, shall call on the accused to enter on his
defence.”
- Summary Trial – s180(f) CPC
- “if … the court finds that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the court shall record an order of acquittal.” =>
if there is case made out against accused which unrebutted, wd warrant conviction, then
must call for the defence
- Defence can make a submission of “No Case to Answer”

2
At any stage, court may also ask witness to clarify his evidence
 - According to s 180(f) this means “no case against the accused has been made out but which, if
unrebutted, would warrant his conviction”.

- Nature of burden on prosecution

- • The principles which govern the determination of this issue are set out in the decision of the
Privy Council in PP v Haw Tua Tau. It is a minimum evaluation test at this stage so the
prosecution only needs to ensure that there is evidence adduced, which is not inherently
incredible and which, if it were accepted as accurate, would establish each essential element
of the offence. The Court does not consider the veracity or accuracy of the prosecution
witnesses at this stage. – vry low threshold
- • Whilst the assessment of credibility is not in issue at this stage, however, if the credibility
has been so shaken such that the witness upon which the prosecution case depended on was
self contradictory and out of all common sense or reason, or so inherently weak that it is
inherently incredible or manifestly unreliable, then the court would find that there is no case to
answer (PP v IC Automation (S) Pte Ltd).

• PP v IC Automation (S) Pte Ltd, HC:

 All that is required at this stage of the proceedins is a minimum evaluation of the
evidence as a while (also Ng Theng Shuang v PP [1995] 2 SLR 36)
Facts
The appellant Ng was convicted and sentenced to death on two charges of using an arm
with intent to cause injury. At trial, Ng’s alibi was that he was staying in Taiping, Malaysia
at the time of the offence and was not involved in the shooting incidents. The trial judge
disbelieved him and found that that the prosecution had proved beyond reasonable doubt
that Ng shot and injured the two victims. On appeal, Ng’s counsel argued that: (a) the test
as set out in Haw Tua Tau v PP requiring a minimum review of the evidence at the close of
the prosecution case should be reconsidered in the light of the Malaysian Supreme Court
decision in Khoo Hi Chiang v PP & Anor; (b) the trial judge erred in calling for Ng’s
defence at the end of the prosecution’s case; and (c) there was no direct identification of Ng
and that the evidence connecting him with the shooting incidents were all circumstantial.
Held, dismissing the appeal :
(1) In Khoo Hi Chiang, the Malaysian Supreme Court required a maximum evaluation of
the evidence by the court such that the court would rule that a case beyond reasonable
doubt had been made out against the defendant before calling his defence. The Malaysian
Supreme Court emphasized the words ‘would warrant a conviction’ and ignored the crucial
words ‘if unrebutted’ within s 189(1) of the Criminal Procedure Code (Cap 68) which dealt
with the procedure to be followed at the close of the prosecution’s case. The provision
clearly called for a two-stage process in a criminal trial and this could only be achieved if a
minimum evaluation of the evidence was made at the close of the prosecution’s case. At
that juncture, the question that the court had to ask itself was a purely hypothetical one:
Whether the evidence would warrant the defendant’s conviction if it accepted the
prosecution’s evidence as accurate. Thus, the test in Haw Tua Tau remained the proper test
applicable to s 189(1). From an evaluation of the evidence adduced by the prosecution,
there was a prima facie case made out against Ng on each of the charges. The trial judge
correctly called on Ng to enter on his defence.
(2) On the facts, there was an unbroken chain of prosecution evidence which connected
Ng with the shootings and the hijacking of the station wagon The prosecution’s evidence
inexorably pointed to Ng alone. From the surrounding circumstances, Ng’s intention to
injure could also be gathered. As such, the trial judge’s decision to accept the prosecution’s
evidence and reject the defence was justified. The prosecution proved the charges against
Ng beyond reasonable doubt.
 Totality of prosecution evidence must be considered
 If evidence of the witness upon which the prosecution case depended on was self
contradictory and out of all common sense or reason, the court is entitled to reach the
conclusion that there is no evidence to support an essential ingredient in the charge;
alternatively, the evidence may be said to be so inherently weak that it is inherently
incredible or manifestly unreliable
 This will be a question of degree
  The state of the rest of the evidence must also be taken into account

Haw Tua Tau v PP [1981] 2 MLJ 49

- Refused to follow Khoo Hi Chiang v PP [1994] 1 MLJ 265
- haw tua tau test: Judicial interpretation of “prima facie case”
o • At the end of the prosecution’s case what had to be decided was a question of law only. As
decider of law, the judge had to consider whether there was some evidence (not inherently
incredible) which if he were to accept as accurate, would establish each essential element in the
alleged offence (i.e. whether a prima facie case was made out)
o • If such evidence as respects any of those essential elements were lacking, then and only then, was
he justified in finding that “no case against the accused has been made out which if unrebutted
would warrant his conviction.”
o In considering whether the prosecution has made out a case against the accused, the approach as
laid down by Lord Diplock assumes:
 (a) that the evidence on the primary facts is true, unless the evidence is inherently
incredible that no reasonable person would accept it as being true, and
 (b) that there will be nothing to displace the inferences as to further facts or the state of
mind of the accused which would reasonably be drawn from the primary facts in the
absence of any further explanation. ->
• eg theft – essential elements – person must take item out of anothers possession
without consent dishonestly – 3 elements. Pros evid must support all 3 elements.
At close of pros case court assumes that there is noth to rebut state of mind of
accused – court assumes that dishonesty element is there because of inferences
fr pri evid. But in the first place, pros must have adduced evid of primary facts
so as to form premise from which to infer this mens rea. (court will then have to
call for the defence to show tt elements indeed not properly estd)
 The application of limb (b) necessarily involves the court drawing such inferences. The
court looks at the totality of the evidence and considers what inference, if any, that can
reasonably be drawn therefrom.
• Holes may have been poked by cross exam of defence counsel of pros case
• Court by looking at pros case therefore see hether evid to support each element
=>>> will then CALL for DEFENCE so that acsued and witnesses can testify
• Court need not be satisfied beyond reasonable doubt tt accused is guilty

Haw Tua Taw v PP examined in Sim Ah Cheoh v PP

 If the prosecution has not adduced some evidence (which is not inherently incredible) which, if the court
were to accept it as accurate, would prima facie establish each essential element in the alleged offence at the
end of its case, the court is justified in finding “no case against the accused has been made out”. In making
this ruling, however, the court must keep an open mind about the veracity and accuracy of the evidence.
 Court has no positive oblig to decide whether evid has sastifised cout tt accused guilty beyond reaodnable
doubt
 To decide whether prima facei case made out, only to ac ton twp presumptns and ask two hypo ns
 That all evid of pri facts tre unless inherently incredible tt no reaonsable person wld accept it as true
 And nth to displace inferences as to sec dacts or state of mind of accusd which wld reasonably be
drawn fr pri facts in absence of any other explanation
 Veracity and accuracy of evid by pros witnesses and defence witnesses shld be considered only after
close of case for defence

Reaffirmed in Ng Theng Shuang [1995] 2 SLR 36

- The CA rejected the Maximum Evaluation test propounded by the Malaysian Courts and also clarified and
explained the operation of the test propounded in Haw Tua Tao.
- The appellant Ng was convicted and sentenced to death on two charges of using an arm with intent to cause
injury. At trial, Ng’s alibi was that he was staying in Taiping, Malaysia at the time of the offence and was not
involved in the shooting incidents. The trial judge disbelieved him and found that that the prosecution had
proved beyond reasonable doubt that Ng shot and injured the two victims. On appeal, Ng’s counsel argued
that: (a) the test as set out in Haw Tua Tau v PP requiring a minimum review of the evidence at the close of
 the prosecution case should be reconsidered in the light of the Malaysian Supreme Court decision in Khoo
Hi Chiang v PP & Anor; (b) the trial judge erred in calling for Ng’s defence at the end of the prosecution’s
case; and (c) there was no direct identification of Ng and that the evidence connecting him with the shooting
incidents were all circumstantial
- Rejecting the Minimum Evaluation Test:
o We respectively agree with Lord Diplock (in Haw Tua Tao) that the crucial words in s 189(1) of
the Criminal Procedure Code, which deals with the procedure to be followed at the close of the
prosecution’s case, are ‘if unrebutted’. Clearly s 189(1) calls for a two-stage process in a criminal
trial and this can only be achieved if a minimum evaluation of the evidence is made at the close of
the prosecution’s case and this of necessity makes the question that the court has to ask itself at the
close of the prosecution’s case a purely hypothetical one
- Affirming Rubin JC’s enunciation:
o The guidelines of Lord Diplock in Haw Tua Tau were neither novel nor a total innovation of the
criminal law. Practitioners at the criminal Bar might be aware that what Lord Diplock attempted in
Haw Tua Tau was to modulate and amplify the practice directions issued by Lord Parker CJ to the
benefit of magistrates and justices in 1962…
o “Without attempting to lay down any principle of law, we think that as a matter of practice justices
should be guided by the following considerations”:
 (a) when there has been no evidence to prove an essential element in the alleged offence;
 (b) when the evidence adduced by the prosecution has been so discredited as a result of
cross-examination or is so manifestly unreliable that no reasonable tribunal could safely
convict on it.
o Apart from these two situations a tribunal should not in general be called on to reach a decision as
to conviction or acquittal until the whole of the evidence which either side wishes to tender has
been placed before it. If, however, a submission is made that there is no case to answer, the
decision should depend not so much on whether the adjudicating tribunal (if compelled to do so)
would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal
might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a
case to answer.

• “prima facie case”: Chew Gim Ser v PP [2005] 1 SLR 201

Facts
The appellant faced two charges (“the third and fourth charges”) in relation to the importation of 250
cartons of 200 sticks (ie 50,000 sticks) of Marlboro brand cigarettes (“the cigarettes”) from Malaysia
into Singapore on 23 October 2003 without paying customs duty and goods and services tax (“GST”).
The cigarettes were found hidden amongst consignments of fish on a Malaysian-registered lorry at
Tuas Checkpoint. One unopened packet containing 20 sticks of Marlboro cigarettes, similar to those
found on the lorry, was later found at the appellant’s home.
The driver of the lorry, Khairu Nazri bin Husain (“Khairu”), admitted to importing the cigarettes.
Khairu was employed by a Malaysian company (“the company”) that the appellant was a director of.
The lorry belonged to the company. The appellant’s elder brother, Chew Gim Hock (“Gim Hock”), had
instructed him to drive the lorry from Johor Baru to Singapore and deliver the cigarettes to the
appellant, as the company’s other driver, Muniandy s/o T M Rajoo (“Muniandy”), was prohibited from
entering Singapore.
Khairu was sentenced to nine months’ imprisonment for his part in smuggling the cigarettes. The
appellant’s defence was that he did not know what had transpired in Johor Baru and was not concerned
in smuggling the cigarettes. As for the packet of Marlboro cigarettes found at his home, the appellant
said that he had found it lying around and decided to take it home with him.
The district judge preferred the evidence of Khairu, the sole prosecution witness, to that of the
appellant, concluding that the appellant was in charge of the company’s operations in Singapore and
Johor Baru and was concerned in the importation of the cigarettes. She further drew an adverse
inference against the appellant that the evidence of his brothers and employees, who were not called as
witnesses, would have been unfavourable. The appellant was convicted on the third and fourth charges,
and pleaded guilty to two other charges relating to the packet of Marlboro cigarettes. He was sentenced
to a total of 15 months’ imprisonment.
The appellant in his appeal against conviction argued that the District Judge was wrong in several
aspects. He also filed a criminal motion seeking to adduce as additional evidence on appeal a statutory
declaration made by Muniandy after the conclusion of his trial. The appellant contended that it had not
 occurred to him that Muniandy was a potentially important witness until Muniandy’s evidence was
discovered in the course of enquiries made in relation to a charge against his younger brother, Chew
Cheng Huay (“Cheng Huay”). Cheng Huay had been charged with offering money to Khairu, together
with Muniandy, to persuade Khairu to accept full criminal liability for smuggling the cigarettes.
Muniandy stated that he and Khairu were partners in the smuggling operation, and their employers
were unaware of their smuggling activities. He also declared his willingness to attend court and give
evidence, despite the likely criminal consequences.
Held, dismissing the criminal motion and appeal against conviction on the third and fourth charges, but
allowing the appeal against sentence:
(1) The appellant failed to satisfy any of the three conditions to be satisfied before leave was granted
to adduce additional evidence on appeal. There was nothing to suggest that Muniandy could not be
located before trial, and the appellant must have known all along Muniandy’s potential importance as a
witness. Muniandy’s evidence would not have had an important influence on the outcome of the
appellant’s case, and was not sufficiently reliable: at [24] to [27], [29], [31] and [32].
(2) The appellant failed to show the existence of any extenuating circumstances that would justify
invoking the exception that additional evidence might be allowed on appeal in the most extraordinary
circumstances, where the evidence was necessary in the interests of justice: at [35].
(3) There were no grounds to disturb the judge’s decision that the Prosecution had made out its case
at trial based on Khairu’s evidence, and that the appellant was concerned in the importation of the
cigarettes: at [42] to [44].
(4) That the Prosecution did not call Muniandy and Gim Hock as witnesses was no grounds for
drawing adverse inferences against the Prosecution. Both persons were resident in Malaysia and not
compellable as witnesses before the Singapore courts. They were also not witnesses relevant to the
Prosecution’s case: at [46]
and [48].
(5) The judge’s decision to convict the appellant could not be faulted, and she had correctly drawn an
adverse inference against him for failing to call any witnesses to support his defence. The appellant’s
failure to contact Gim Hock after the lorry had been seized at Tuas Checkpoint was telling. The packet
of Marlboro cigarettes found at his home also connected him with the cigarettes on the lorry, and his
explanations for its discovery were incredible and contradictory: at [50]
to [54].
(6) With regards to sentencing, the judge was correct in so far as the appellant was a bigger player in
the scheme of things compared to Khairu, and so ought not to receive the same sentence as Khairu.
Nevertheless, the imposition of a substantial fine in addition to an appropriate term of imprisonment
would have been adequate to reflect the appellant’s greater culpability in this case: at [59]
and [60].

 now integral part of our criminal jurisprudence.PP v Sng Siew Ngoh 1996 a SLR 143
 Facts: The respondent Sng was charged voluntarily causing grievous hurt to the victim by poking her
eyes with his fingers, resulting in the permanent privation of her sight in the right eye and for
voluntarily causing hurt by biting and kicking the victim, as well as spraying insecticide into her eyes.
The district judge acquitted and discharged Sng for want of a prima facie case. The prosecution
appealed, arguing that the trial judge erred in: (a) not admitting the statement of the victim; (b) failing
to consider the evidence of the eye specialist; and (c) failing to apply the proper test to determine
whether there was a prima facie case.
 Held, allowing the appeal:
 (1) Section 147 of the Evidence Act (Cap 97, 1990 Ed) (‘the Act’) provided a general scheme
governing cross-examination on previous statements. There was thus no conflict between s 147(3) and
s 122 of the Act as the latter made reference to it. The victim’s statement could thus to relied on for the
truth of the facts contained in it.
 (2) In determining whether a prima facie case was made out, regard must be had to s 189(1) of the
Criminal Procedure Code (Cap 68) (CPC). It was necessary to consider whether the evidence adduced
of the primary facts at the end of the prosecution’s case was so inherently incredible that no reasonable
person could believe it. In this case, the trial judge failed to apply the test properly to the evidence of
the eye specialist. That being the case, the elements of the offence had been made out, and the evidence
of the prosecution was such that, if unrebutted, justified a conviction. Appeal allowed.
 HC held that specialist had not testified tt it wa highly improbably, extr unlikiely or impossible to have
ben caused by jabbing of finger and therefore evid and pros case not inherently incredible
Kong See Chew v Public Prosecutor [2001] 3 SLR 94
- The relevant test on whether the prosecution had established a prima facie case against an accused was that
enunciated in Haw Tua Tau v PP. Under the test, the question to be asked was whether there was some
evidence, which was not inherently incredible and which, if accepted to be accurate, would prove every
essential element in the charge brought against the accused. On the evidence of Tye and James, a prima
facie case had been established and the judge was correct in calling for Chew’s defence. The fact that the
evidence was circumstantial in nature did not change the application of the test. It was not at the stage of the
close of the prosecution’s case that the court must be satisfied that the evidence led to the irresistible
inference and conclusion that the accused committed the crime. The test laid down in Ang Sunny v PP with
respect to convictions based on circumstantial evidence should be applied only at the close of the trial.
- The judge's decision to reject Chew’s explanations could not be faulted. Chew’s claim that he suffered a
demotion was not believable.
- The provision was not mandatory and did not impose on the court an obligation to make the presumption. To
determine whether or not an adverse inference should be drawn, the court would consider all the
circumstances, most importantly and particularly, the materiality of the witnesses not produced. If the
witnesses that were not called were not material or were dispensable and the prosecution's case had been
sufficiently proved by other independent evidence, then no adverse inferences would be drawn against the
prosecution for failing to call such witnesses. On the other hand, if the prosecution's failure to call the
witness amounted to a withholding of evidence from the accused or the court, then an adverse inference
would be drawn against the prosecution. In this case, the circumstances did not justify the drawing of any
adverse inference against the prosecution for not calling Jeffrey or Chua Tiong Tiong. They were not
indispensable witnesses and the prosecution's case had already been sufficiently proved by other
independent evidence.
- The evidence against Chew was essentially circumstantial in nature and rested mainly on the oral
testimonies of Tye and James. However, that did not prevent the prosecution from proving its case. The
court was not persuaded that the judge’s findings were reached against the weight of the evidence. On the
contrary, the sum total of the evidence led to the irresistible conclusion that Chew committed the offence he
was charged with

- With respect to circumstantial evidence

– In some cases no direct evid eg accused peron taking out item out of possession, taking out
being element offence
– court assumes that there will be nothing to displace the inferences as to further facts or the
state of mind of the accused which would reasonably be drawn from the primary facts in the
absence of any further explanation.
– court draws inferences from the primary facts, and, in drawing such inferences, the court
looks at the totality of the evidence and considers what inference, if any, can reasonably be
drawn therefrom.
– • If the prosecution’s evidence is circumstantial, the test of proof beyond a reasonable
doubt in Sunny Ang v PP does not apply at this stage. (this is only at close of ENTIRE
case) In considering what inferences be drawn the court does not apply the test whether the
evidence looked at in its totality would inevitably and inexorably lead to only one inference or
inferences for establishing the essential elements of the charge.
– • The threshold at the close of the prosecution’s case is low, so do not make a submission
of ‘no case’ just for the sake of it.
– Sunny ang case – he brought wife to diving trip after which he reported that wife was dead
because did not did not emerge dr diving. No evid tt he cut diving equipment. Body never
found. No evid tt he did anything violent causing wife to disappear, but available evid – he
had bought big insurance policies, he was last person seen with wife, he had prepared the
diving equipment etc. => this is circumstantial evidence.

PP v Oh Laye Koh [1995] 1 CLAS 142

- Bus driver originally charged with murder of schoolgirl, whom he was ferrying to and from school. All that
the Prosecution had was circumstantial evidence since after a voir doire, the trial judge refused to admit 3
statements of the accused. The Circumstantial evidence was:
o i) Accused was the last person with the deceased.
o ii) Lie, which Accused has asked his mechanic to perpetrate.
o iii) Accused led police to recovery of books of deceased, which were 5km away where the body of
the deceased was found.
- Bus driver. Charged with murdering sch girl who took his bus to sch everyday. Girl found murdered –
circumstantial evid linking oh to girl, eg he was last onie seen with her. he had said certain affectionate
things to girl as heard by other fridns of girl. Also some physical and documentary evid linking him to girl.
But no evid that he had killed her.
- The same test applies as per haw tua tau. Only diff is that this is circumstantial – so it is for court to infer
prima facie case
- Held:
o The correct test to be employed at the close of the prosecution case is that enunciated by the case
of Haw Tua Tau v PP.
o With respect to circumstantial evidence, the court assumes that there will be nothing to displace the
inferences as to further facts or the state of mind of the accused, which would reasonably be drawn
from the primary facts in the absence of any further explanation.
o The court draws inferences from the primary facts, and, in drawing such inferences, the
court looks at the totality of the evidence and considers what inference, if any, can reasonably
be drawn therefrom – Note difference from test of “inevitable and inexorable” at close of trial in
Sunny Ang v PP [1966] 2 MLJ 195
Comments:
o CJ: The element of ‘intention’ is rarely, if ever, proved by direct evidence; it is inevitably to be
inferred from the surrounding circumstances. In this respect, ‘intention’ is to be distinguished from
‘motive’, even though the presence of a motive may bolster the inference that an intention to
commit the offence was existent. The absence of motive, however, need not necessarily mean that
no intention was present. Therefore, from the totality of circumstances in the instant case, it was
our opinion that a reasonable inference could be drawn to the effect that the respondent had caused
the death of the deceased intentionally within s 300(a) of the Penal Code.

• In Tan Siew Chey v PP:

 The test in Sunny Ang is relevant and applicable at the close of the trial in considering
whether he prosecution has proved the charge against the accused beyond reasonable
doubt, and in that connection, where the evidence against the accused consists wholly of
circumstantial evidence, the court will have to consider whether the evidence, in its
totality, would lead inevitably and inexorably to the one conclusion, and one conclusion
only, that the accused has committed the offence with which he was charged
 The test is not relevant or applicable at this stage, ie the close of the case for the
prosecution, when court is not considering whether the prosecution has proved the charge
against the accused beyond reasonable doubt
 We assume (a) that the evidence on the primary facts to be true, unless the evidence is
inherently incredible and (b) that there will be nothing to displace the inferences as to
further facts or the state of mind of the accused which would reasonably be drawn from
the primary facts in the absence of any further explanation
 (b) necessarily involves the court drawing inferences from the primary facts, and looking
at the totality of the evidence
 but in considering any inference to be drawn the court at this stage does not apply the test
whether the evidence looked at in its totality would inevitably and inexorably lead to only
one inference or inferences for establishing the essential elements of the charge
• if the court accepts the submission of no case, the accused will be acquitted under s. 180(f) CPC
• court may also acquit if it considers the charge to be “groundless” under s. 180(g) CPC
• if court is of view that an amendment is required to the charge, court will amend the charge and the
amended charge will be read and explained to the accused and his plea retaken: s. 180(i) CPC
 • if accused not ready, and if proceeding immediately is not likely in the opinion of the court to
prejudice the accused, the court will proceed with the new or altered charge: s. 164 CPC
• if accused pleads not guilty: s. 167 CPC
• if prejudice the accused, court may direct a new trial or adjourn the trial for such period as it is
necessary: s. 165 CPC

- Test at close of prosecution’s case where identification is in issue

– Same test applies
– PP v Manit [1995] 1 SLR 326
– The respondent Manit and 3 others were jointly tried for murder committed in the course of a
gang robbery under s 396 of the Penal Code (Cap 224). The case against the four accused was
based primarily on statements made to the police by Manit’s co-accused (the 1st, 2nd and 4th
accused). At the close of the prosecution’s case, the trial judge held that the prosecution failed
to make out a case against Manit because the statements did not positively identify Manit as
one of the perpetrators of the offence. The judge held further that there was no other evidence
which sufficiently incriminated Manit in respect of the charge against him. Accordingly,
Manit was discharged and acquitted without calling on his defence. The prosecution appealed,
arguing that the statements by Manit’s co-accused identified him as an accomplice, and that
there existed other evidence showing Manit’s involvement in the offence. DPP Appealed.
– Held: Appeal was allowed.
 All that Haw Tua Tau requires at close of prosecution case is to act on a
hypothetical question i.e. assume all primary facts are true. It does not require
a judgment on the witnesses’ veracity. The accuracy of the identification is to be
decided at the close of the case.
– Comments:
 Accuracy of the evidence is not a relevant factor in the judge’s consideration of the
evidence against the accused at the close of the prosecution’s case.

- When at the close of prosecution’s case evidence makes out another charge :
– • If the Court finds the prosecution’s evidence to justify another charge, it may amend the
charge and ask the accused to plead again: s 180(h) and (i). The prosecution and defence
would be given an opportunity to recall witnesses with reference to the amendment. (CPC, s
167)

PP v Iris Tan [1994] 3 SLR 214

- Entertainment artiste – guy performed in public and got entertainment license for certain period and one of
conds of licence waw tt perofmrance x be lewd or obscene. But then he turned behind and snipped off his
pubic hair – lewd. Breached cond of licence. He wa chargewd for partr offence relating to licence.
- Two probs – no valid licence (public entertainment and licences act) and the lewd act
- But turned out fr pros evid that acused cld not be made out – not prima facie evid for tt. Actually licence was
valid. Charge preferred had not prima facie evid tosuport it.
- Court then called for offence on amended charge -> this SHLD be the procedure. Otherwise accseud will go
scot free when evid is clear that another offence has been prima facie made out.
- • In a clear case, the court should amend the charge and then call on the Accused to enter his defence.
- Comments:
- Furthermore, cannot just acquit at the end of the prosecution case. If there is some other
offence, then the charge should be re-framed.

- Summary
• You can make a submission of no case to answer in either of the 2 situations set out in Ng Theng
Shuang v PP.

Section 189 CPC - Procedure after conclusion of case for prosecution.

189. —(1) When the case for the prosecution is concluded the court, if it finds that no case against the accused
has been made out which if unrebutted would warrant his conviction, shall record an order of acquittal or, if it
does not so find, shall call on the accused to enter on his defence.
(2) Before any evidence is called for the defence, the court shall tell the accused that he will be called upon
by the court to give evidence in his own defence and shall tell him in ordinary language what the effect will
be if, when so called upon, he refuses to be sworn or affirmed, and thereupon the court shall call upon the
accused to give evidence.

 Identical to section 180(f) CPC

 Submission of no case to answer should not be made just for the sake of it: Ong Lee Koon v PP [1995] –
onky where pros has not made out ingredients of the charge – must apply mind to facts of the case and ask
whether there is evid to support every limb of the charge
 PP is not obliged to reply to any such submission.
 Ultimately court has to decide if prima facie case has been made out where such submission was made.

 Court to decide if defence to be called: s180 (f), CPC

 If the court is satisfied that all the ingredients of the offence are prima facie made out, it is obliged
to call for the defence. If not, the accused shall at that stage be acquitted without his defence being
called: s180(f) of the CPC.

– • If the Court accepts the submission it will acquit the accused without requiring him to present his case.
– If Court finds prosecution has not made out prima facie case against accused, it shall order
acquittal: s180(f) CPC
– Note: Court may acquit any any other stage if it considers charge to be “groundless” under s180(g)
CPC – rarely invoked.

– • If the accused does not make a plea of no case to answer or his plea fails, he will be asked to present his
case.
– • Although the accused cannot be compelled to give evidence, he will be told by the Court that if
he chooses not to testify, appropriate inferences may be drawn in determining his guilt.
– • It is crucial you advise your client of these consequences.
– • If the accused decides to remain silent, he can call other witnesses. Thereafter, he may make a
submission that the prosecution has not proved its case beyond a reasonable doubt. The
prosecution has the right of reply.
– Under section 189(2), accused need not give evid himself, can cal lother witneses to do so – but if
gives evid, msut do so before other witnesses
– If refuses to give evid after being called ot do so, runs risk of convictin uunless court dsastified tt
evid adduced by pros fails to est accused’s guilt beyond reasonable doubt even though est prima
facie case

 If Court finds prosecution evidence justify another charge, it may amend the charge and ask accused to plead
again: s 180(h) and (i) CPC
 If he pleads not guilty to amended charge or if no amendment, accused shall be called to enter upon his
defence s180(j) CPC

 If there is prima facie case, Court will administer Standard Allocution: s 180 (k)(i) CPC
 Before defence evid adduced, court will tell accused – “s180(k)(i) before any evidence is called for
the defence, the court shall tell the accused that he will be called upon by the court to give
evidence in his own defence and shall tell him in ordinary language what the effect will be if, when
so called upon, he refuses to be sworn or affirmed; and thereupon the court shall call upon the
accused to give evidence.”

Defence case:
 Accused must be first to give evidence: s180(k)(ii) CPC
 Note s196(1) CPC – no unsworn statement from the dock. If acused gies evid, he shall do so on
oath or affirmation and be liable to XX.
 Whether accused gives evid or remain silent, but may still call other witnesses
 Note s196(2) CPC: court may draw such inferences as appear proper if accused remained silent /
refuses to be sworn / having been sworn refuses to ans qn w/o good cause.
- Defence witnesses (if defence is called)
– if defence is called, then defence witneses called one by one – first witness has to be accused
person and all defence witneses will follow this offence – roles reversed however (cross
examiner is prosecutor)

- rebuttal evidence by prosecution if allowed. – rules as to when pros can call rebuttal evid – see cases
- Rebuttal evidence
- court’s discretion to allow
- if prosecution is misled, taken by surprise, or a matter arises unexpectedly in trial which
prosecution could not reasonably have anticipated.
- in answer to evidence of the accused in support of an issue, the which of which lay upon the
accused.
- Zainal bin Kuning v Chan Sin Mian Michael [1996] 3 SLR 121, PP v Bridges
Christopher [1998] 1 SLR 162

Zainal bin Kuning v Chan Sin Mian Michael [1996] 3 SLR 121
- During the trial, after the close of the case for the respondents, the appellants’ counsel applied for leave to
call Mr Raj Kumar as a witness to give evidence by way of rebuttal of the first respondent’s evidence. It
seems to us that the purpose of calling Mr Raj Kumar was to show that the first respondent did not carry out
any investigation or make any enquiry with Mr Raj Kumar after the receipt by the first respondent of Mr Raj
Kumar’s letter dated 13 May 1989, which suggested the possibility that other persons were involved in the
commission of the crime then under investigation. If this is correct, as we are think it is, then clearly Mr Raj
Kumar’s evidence was not in the nature of a true rebuttal of the case of the first respondent. There was no
suggestion that Mr Raj Kumar was not available earlier, and the appellants could and should have called him
before they closed their case. Instead, they obtained an affidavit from Mr Raj Kumar only on 13 February
1995,and thereafter neither gave notice of the affidavit to the respondents, nor attemptedto have it
introduced into evidence until after the respondents had closed theircase.
- 39 Further, counsel for the respondents drew our attention to the following sequence of events at the
trial. The appellants did not call Mr Raj Kumar and closed their case on 5 April 1994 and the trial was
adjourned to 15 August 1994. On 15 August 1994, counsel for the appellants applied for leave to amend the
statement of claim, notwithstanding that he had closed his case; counsel for the respondents objected. The
notes of proceedings contained the following statement as having been said by counsel for the appellants: ‘If
amendment allowed, not calling any more evidence.’ The learned judge granted leave to amend. On 17
November 1994, the first respondent filed a further affidavit in response to the amended further and better
particulars. On 20 February 1995 the trial resumed and the first respondent took the stand and gave
evidence. His first and second affidavits were tendered and admitted. Up to that moment, there was no
indication from counsel for the appellants that he had intended to call Mr Raj Kumar as a witness. It was at
or near the end of the trial that he sought leave to call Mr Raj Kumar as a witness. The learned judge refused
the application. Having regard to what had transpired, it is not surprising at all that the learned judge refused
the application. In our opinion, he was fully justified in so doing.
- 40 It is true that a discretion lies with the trial judge to allow the plaintiff to call evidence to rebut
evidence of the defence: Williams v Davies 1 Cr & M 464; 149 ER 481. This is so even where the defence
was disclosed in the cross-examination of the plaintiff and his witnesses: Shaw v Beck (1853) 8 Exch 392.
Generally, leave will be granted where the party has been misled or taken by surprise: Bigsby v Dickinson
(1876) 4 Ch D 24. The same principles were enunciated in Rafiq Jumabhoy v Alrich [1994] 3 SLR 1.
- There, Chao Hick Tin J said, at p 32: It seems to me settled law that evidence in rebuttal should only be
permitted to a plaintiff (i) if a matter or development has quite unexpectedly arisen during trial which the
plaintiff could not reasonably anticipate or (ii) in answer to evidence of the defendant in support of an issue,
the proof of which lay upon the defendant: see Supreme Court Practice Vol 1, para 38/1/7. Evidence in
rebuttal is not allowed to merely confirm the plaintiffs’ case: see Jacobs v Tarleton (1848) 11 QB 421.
- 41 In this case, for the reason we have given it certainly cannot be said that Mr Raj Kumar’s evidence
was not sought to be admitted earlier because the appellants were either misled or taken by surprise or that
‘a matter or development’ quite unexpectedly arose which they, the appellants, could not have reasonably
anticipated.

PP v Bridges Christopher [1998] 1 SLR 162 [Affirmed Zainal bin Kuning]

- The practice and procedure for calling of rebuttal evidence in civil cases will only be allowed in the case of
a matter arising ex improviso, ie one which the plaintiff could not reasonably have foreseen; where the
plaintiff had been misled or taken by surprise or in answer to evidence of the defendant in support of
an issue the proof of which lay upon the defendant. This rule should also applied to summary criminal
trials
- Per CJ: the generally accepted rule in England in criminal cases(on rebuttal evidence) is the rule stated by
the Court of Appeal in Zainal bin Kuning and there is no reason why that rule should not also apply to
summary criminal trials in our jurisdiction

 Section 188 – in HC, mandatory for PP to open case

 Defence’s Case
 Opening submission – can make subsmission of no case to ans at close of pros case
 Discretion in HC and sub court for counsel whether or not to open case
 Seldom do so because by time comes to defence case, facts well estd before court
 Also x to tell court what defence to allegation is since already put case based on accusd;’s
instructions to complainant and pther pros witnesses
 Not the practice to open case in sub courts

 i) Counsel may open his case stating facts or law on which he intends to rely and make comments
as he thinks necessary on the evid for PP: s181 CPC.
 ii) Accused EIC by self / counsel }
 iii) Accused XE by PP } If accused elects to give evid.
 iv) Accused RE by self / counsel }
 v) DW2, 3, 4 etc follow same process until defence closes its case

 Accused shall at any time while making defence be allowed to recall and XX any PP witness
present in the court or its precincts: s180(l) CPC
 Accuse may apply to court to issue any process for compelling attendance of any witness for
purpose of examination or XX or production of doc or other thing. Upon application, court shall
issue the process unless it considers the application should be refused on ground that it is made for
the purpose of vexation or delay or for defeating the ends of justice, in which case that ground
shall be recorded in writing: s180(m)(i) CPC.
 If there are co-accused persons in a trial, any accused person who elects to give evidence may be
cross-examined on behalf of any other accused person: Section 180(k)(iii) of the CPC

 Closing Submissions
 i) Counsel or accused make closing submissions: s 181(b) CPC
 ii) PP make closing submissions: s 181(c) CPC

 If there is need to recall or summon any witness at this point (s399 CPC), may do so (Sim Cheng
Hui v PP [1998] 2 SLR 302)
 For lengthy evid, court may direct or parties may request to submit and exchange written closing
submissions before date of judgment.

 Final submission at close of defence case – detail depends on type of case – assess yourself
whether in client’s interests to go into detaied submission
 General rule is present case as best as possible
 put up all facts, review fact presented in relation to charge and maek full submission in
law – strengths of defence, weakenss of pros case, discrepancies in pros witnesses’
evidence at diff times, emphasizing what is circumstantial evid and probative value
(Nadasan chandra secharan v PP 1997 1 SLR 723 and legal issues supported by case law,
what pros evid has not put to defence witnesses and singid, and what defence evid not
rebutted by pros
Nadasan Chandra Secharan v Public Prosecutor [1997] 1 SLR 723
- Facts
- The appellant Nadasan was charged and convicted of murder. The judge accepted the prosecution’s version
of events. He was satisfied that the circumstantial evidence adduced had proved the guilt of the appellant
beyond a reasonable doubt and convicted him accordingly. Nadasan appealed arguing that on the totality of
evidence, the prosecution failed to prove their case beyond a reasonable doubt. In particular, Nadasan raised
four main pieces of contentious evidence: (a) whether the tyre skid marks at the scene of the crime
originated from the tyres of his van; (b) whether the tooth fragment found originated from the deceased; (c)
whether the jewellery items found were the same one which the deceased wore just prior to the offence; and
(d0 whether the learned judge erred in rejecting Nadasan’s evidence that his van broke down and that he
took more than an hour to repair it.
- Held, allowing the appeal:
- (1) On the evidence, the surveys conducted by the prosecution expert were carried out haphazardly
without definition of the proper objectives and methodology. Since the survey was a factor that went into his
final conclusion and in view of the survey’s unreliability, the prosecution expert evidence was found to be
flawed.
- (2) Even if the prosecution expert’s survey was accepted, the probability of whether Nadasan was at the
crime scene or not would have required a consideration of other data (such as total vehicle population) and
any other evidence linking him to the crime scene. Such evidence was within the court’s exclusive remit, not
the expert’s. It was only after considering the statistical data of the prosecution expert and such other
relevant evidence in the case that the court could decide whether Nadasan’s van was present at the crime
scene. On the evidence, the prosecution failed to adduce sufficient evidence to place Nadasan’s van at the
crime scene. There was clearly basis for doubt that the skid marks at the crime scene were caused by
Nadasan’s appellant’s van.
- (3) On the totality of the expert evidence adduced, the prosecution failed to prove adequately that the tooth
fragment originated from the deceased. The immense value of DNA evidence and its use in criminal trials
were not doubted. However, every failure to observe the procedure stated in the validation paper would have
affected the weight to be attributed to the expert evidence unless there were other independent sources to
verify and confirm that such departures did not affect the reliability of the findings.
- (4) Even assuming that there was sufficient evidence to prove that the tooth fragment originated from the
deceased, Nadasan gave a reasonable explanation for its possible presence in his van. Since there were
instances in the past when Nadasan and the deceased had met inside the van for food and drinks, and the
deceased had a habit of using her teeth to open bottle caps, there was a possibility that the tooth fragment
could have broken off on such an occasion.
- (5) As regards the presence of the jewellery items, no forensic and metallurgical tests were run. Nadasan had
explained that his van was used by various people to attend weddings and jewellery items were transported
on such occasions. The van was also used to ferry passengers to picnics, social functions and even the
airport. Thus, the jewellery items could have been present in the van either because the deceased had lost
them or because they were lost by other people who had used the van.
- (6) On the evidence, it seemed too speculative to contend that it was impossible for Nadasan to have taken a
long time to trace and rectify the problem with the van’s filter, bearing in mind the conditions he was
working under. Thus, it was not incredible that his van had indeed broken down on the day in question and
he took more than an hour to repair it.
- (7) The law on circumstantial evidence was clear. For a conviction, the inference of guilt had to be
irresistible at the end of the trial. Looking at the cumulative evidence, it was not possible to reach the one
and only conclusion that Nadasan ad committed the murder. The prosecution had thus failed to discharge its
burden of proof.

• Where it is accusation against accused’s bare denial, note tt burden of proving lack of motive to implicate
accused is on pros

Khoo Kwoon Hain v Public Prosecutor [1995] 2 SLR 767

• Facts
• The appellant Khoo was convicted on two counts of aggravated outraging of modesty under s 354A(1) of
the Penal Code (Cap 224). Khoo was a supervisor in a restaurant where the complainant worked. The
complainant alleged that Khoo molested and wrongfully restrained her. Apart from the complainant’s
complaints to her sister, Zaiton, and her police report, there was no corroboration of the complainant’s
evidence. The complainant alleged that she told one ‘aunty’ about the incident shortly after it happened.
 However, the proscution did not call the ‘aunty’. Khoo’s defence was that he merely tapped her on her
shoulders to console her and possibly touched her arms when talking to her, but he denied any encounter
which was in any way sexual. The district judge held that Khoo lied and his lies corroborated the
complainant’s testimony. He also declined to draw an adverse inference against the prosecution for not
calling the ‘aunty’ as a witness. Khoo appealed arguing that: (a) the prosecution failed to discharge its
burden of proof against him; (b) evidence in corroboration must be indepndent; (c) the district judge ought
to have drawn an adverse inference under s 116(g) of the Evidence Act against the prosecution for failing to
call the ‘aunty’; and (d) the district judge erred in holding that his lies amounted to corroboration.
• Held, allowing the appeal:
• (1) Although the complainant’s previous complaints to her sister and the police amounted to corroboration
by virtue of s 159 of the Evidence Act (Cap 97, 1990 Ed), the complaints were not corroboration by
independent evidence. As such, the court should treat Zaiton’s evidence with great circumspection. It would
be erroneous to attach to them such weight as would have been the case had they been independent
evidence.
• (2) Mere corroboration by virtue of s 159 of the Evidence Act was insufficient to remove the caution that a
complainant’s testimony in a case involving sexual offences had to be unusually convincing for the court to
convict without corroboration. If the complainant’s evidence was not unusually convincing, the fact that she
repeated it several times could not add much to its weight.
• (3) There was insufficient evidence to come to the conclusion that the complainant did not have a
boyfriend. The only evidence was Zaiton’s statement that, to her knowledge, the complainant did not have a
boyfriend. This was at best an equivocal answer. It was also pertinent.that when it was put to the
complainant that she was unhappy because she had broken up with her boyfriend, she did not deny that she
had a boyfriend.
• (4) Four criteria had to be satisfied before a lie amounted to corroboration: (a) it had to be deliberate; (b) it
had to relate to a material issue; (c) the motive for the lie must be a realization of guilt and a fear of truth;
and (d) the statement must be clearly shown to be a lie by independent evidence. As the alleged lies related
to immaterial issues, they could not amount to corroboration. In any event, there was no clear independent
proof that what Khoo told the court were lies.
• (5) In this case, the prosecution did not even revel who the ‘aunty’ was. By not calling ‘aunty’ and not
making her available to the defence, the defence was put in an invidious position of being unable to rebut a
bare allegation by the prosecution’s chief witness. In order to be fair to the defence, an adverse inference
ought to be drawn against the prosecution under s 116(g) of the Evidence Act.
• (6) Once an adverse inference was drawn against the prosecution under s 116(g) of the Evidence Act, the
complainant’s credibility would have been shaken. It was thereafter very difficult to conclude that the
complainant’s evidence had been unusually convincing. This was fatal to the prosecution’s case as well as to
the safety of the conviction. Having examined the notes of evidence, the court was not satisfied that the
complainant’s evidence was unusually convincing. There were sufficient inconsistencies in the
complainant’s evidence to raise a reasonable doubt.

- Closing submissions very impt in setting out defence for purposes of trial just completed and als impt for
any appel tt follows
- Watch out for judge reaction and don’t quote lengthy cases or submissions unless have a pt to make in fact
or law tt is vry impt
- PP has right of reply but courts quite flexible and if sth tt pros said in reply tt defence wld like to address
court on, can seek permission to make further submission; court will then allow pros right to comment on
what was said

 Court can return verdict immediately or reserve judgment after having examined evidence, assessing vercity
and accuracy thereof and whether proof of guilt has been proven beyond reasoanbe doubt (c.f haw tua
tau prima facie case test which is only at close of pros case)

 If court finds accused not guilty, it shall acquit if no other charges pending: s 180(n)(i) CPC

 If court finds accused guilty, PP will inform court if accused has any previous convictions, and DC or
accused will present mitigation. Court then passes sentence: s 180(n)(ii) CPC
 PP or DC may make consequential applications: bail pending appeal, disposal of case exhibits etc

• Some points that arise in practice

o PWs offered by prosecution to defence – how to use?
 Peh Lee Tong v R [1956] MLJ 184 – Discuss what happened when PP decided not to call PW
– duty to offer PW to DF; interview these witnesses and decide if you want to use them for
your defence.
o PP seeks to introduce rebuttal evidence – how to deal with this?
 Accused say I was coerced into it. PP may want to use rebuttal evidence, call recording officer
to stand to rebut accused was coerced. S 399 CPC
o How to deal with hostile witness: s 156 CPC
o More than one @ each with different DC: B1, B2, B3 – how to proceed with hearing?
 Each one of them can XX, can give defence
o Trial-within-a-trial – at which stage and what happens?
 When statement of accused is in issue. If witness? No need trial within a trial therselvan v PP.
Nothing in CPC talks about voire dire. Lim Seng Chuan v PP Court of criminal appeal
o @, witness, or DC fall sick during hearing (or mentions and PTCs): make sure you get properly
certified MC that complies with Subordinate Courts PD.
 In prescribed form – who is ill, why, when to when you’re ill. Not in compliance,
counsel/witness can be cited for contempt

• Preparing for Hearing – cardinal principles

o Success at trial depends on 90% of preparation before trial (esp for XE questions which should be
brief, leading and lethal), and 10% of response to situation during trial. Don’t go in “cold”.
o Criminal trials are largely factual and evidential but you must know the legal basis and procedure
for any application you are making. Eg. impeachment, refreshing memory, recalling witness –
settled law. This is what you have control over.
o Speak slowly and tell @ and your witnesses to speak slowly. Watch the judge’s pen every now and
then. Unlike High Court, DJs and Mags have to record verbatim.
o If you do not know a point, ask for the court’s guidance. Do not mislead the court

Preliminary inquiry to commit accused for trial to the High Court

- Witnesses called at the Preliminary Inquiry (ss138-158 CPC)
- Evidence of witnesses : oral / conditioned statements (s.141 CPC)
- By way of statements
 Must satisfy certain conds before they can be used
- Can also be orally led but this is tedious.
- Usu statements of witneses are taken as read – magis will usu say this. Defence usu x testify
and say tt they reserve defence for HC hearing and at end, magis if satisfied of some evid to
comit accused for trial wil make this order and commit accused for appearing in HC
- Usu takes at most half a day to one day
- Need for PI? Takes up time and resources and in practice, all PIs result in accused being commited. Pros will
x bring charge where no evid at all to bring accused to HC.
- Just a formality? Shld dispose of?
- Calling fresh witnesses during High Court trial - notice under s188(3) CPC (contrast with summary
trial)

Written statements before examining Magistrate.

141. —(1) In preliminary inquiries conducted under this Chapter, a written statement by any person shall, if
the conditions mentioned in subsection (2) are satisfied, be admissible as evidence to the like extent as oral
evidence to the like effect by that person.
(2) The said conditions are —
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge
and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to
prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;
 (c) before the statement is tendered in evidence, a copy of the statement is given, by or on behalf of the party
proposing to tender it, to each of the other parties to the proceedings not less than 7 days before the date of
hearing; and
(d) none of the other parties, before the statement is tendered in evidence at the preliminary inquiry, objects to
the statement being so tendered under this section.
(3) The following provisions shall also have effect in relation to any written statement tendered in evidence
under this section:
(a) if the statement is made by a person under the age of 21 years, it shall give his age;
(b) if it is made by a person who cannot read it, it shall be read to him before he signs it and shall be
accompanied by a declaration by the person who so read the statement to the effect that it was so read; and
(c) if it refers to any other document as an exhibit, the copy given to any other party to the proceedings under
subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be
necessary in order to enable the party to whom it is given to inspect that document or a copy thereof.
(4) Notwithstanding that a written statement made by any person may be admissible in preliminary inquiries
by virtue of this section, the court before which the proceedings are held may, of its own motion or on the
application of any party to the proceedings, require that person to attend before the court and give evidence.
(5) So much of any statement as is admitted in evidence by virtue of this section shall, unless the court
otherwise directs, be read aloud at the hearing, and where the court so directs an account shall be given orally
of so much of any statement as is not read aloud.
(6) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence
under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker
of the statement.
(7) Section 368 shall apply to any written statement tendered in evidence in preliminary inquiries under this
section, as it applies to a deposition taken in such proceedings.

Opening case for prosecution.

188. —(3) A person who has not given evidence at a preliminary inquiry shall not be called as a witness
by the prosecution at any trial before the verdict is given, unless the accused person or his advocate and the
Registrar have been previously served with a notice in writing of the intention to call the person stating the
person’s name and address and the substance of the evidence intended to be given.

Order of Examination
- Examination-in-chief – see evidence act – prosecutor: leading questions cannot be asked unless defence
consents etc
- Cross-examination – see EA – leading questions can be asked. SHLD use!
- Re-examination – use of open ended and non leading questions. But only to reexamine areas which defence
has covered in cross examination, if not so, then prosecutor cannot go into those areas. Only for witness to
explain sth he was not given oppty to say during cross examination.
- Questions at court’s discretion - s.399 CPC – court can also ask qn of witness at any pt intime during
evidnce process when witness on stand
- Many judges quite proactive when dealing with witnesses on stand

Power of court to summon and examine persons.

399. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person
as a witness or examine any person in attendance, though not summoned, as a witness or recall and re-examine
any person already examined and the court shall summon and examine or recall and re-examine any such
person, if his evidence appears to it essential to the just decision of the case.

Compelling Witnesses
• For investigations
 Section 120 of the CPC (police)
 Other investigating agencies: EFWA, Prevention of Corruption Act, Customs Act, Misuse of Drugs Act

Police officer’s power to require attendance of witnesses.

120. —(1) A police officer making a police investigation under this Chapter may, by order in writing, require
 the attendance before himself of any person being within the limits of Singapore who from the information
given or otherwise appears to be acquainted with the circumstances of the case and that person shall attend as
so required:
Provided that no person shall be required under this section to attend at any place distant more than 11
kilometres from his usual place of abode.
(2) If any such person fails to attend as so required such police officer may report such failure to a Magistrate
who may thereupon in his discretion issue a warrant to secure the attendance of that person as required by
such order.

• Failure to attend
 Either a warrant under Section 120 of the CPC or
 Prosecution under Section 174 of the Penal Code

Police officer’s power to require attendance of witnesses.

120. —(1) A police officer making a police investigation under this Chapter may, by order in writing, require
the attendance before himself of any person being within the limits of Singapore who from the information
given or otherwise appears to be acquainted with the circumstances of the c ase and that person shall attend as
so required:
Provided that no person shall be required under this section to attend at any place distant more than 11
kilometres from his usual place of abode.
(2) If any such person fails to attend as so required such police officer may report such failure to a Magistrate
who may thereupon in his discretion issue a warrant to secure the attendance of that person as required by
such order.

Non-attendance in obedience to an order from a public servant.

174. Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience
to a summons, notice, order or proclamation, proceeding from any public servant legally competent, as such
public servant, to issue the same, intentionally omits to attend at the place or time, or departs from the place
where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with
imprisonment for a term which may extend to one month, or with fine which may extend to $500, or with
both; or if the summons, notice, order or proclamation is to attend in person or by agent before a court of
justice, with imprisonment for a term which may extend to 6 months, or with fine which may extend to
$1,000, or with both.

• For attendance in Court

 Summons/warrant issued by courts
 Section 42-45 CPC & Form 30
 Section 332 & Form 59 (witness who is in prison)

Summons how served.

43. —(1) The summons shall, if practicable, be served personally on the person summoned by showing him
the original summons and by tendering or delivering to him a copy thereof under the seal of the court.
(2) Every person on whom a summons is so served shall, if so required by the serving officer , sign a receipt
for the copy thereof on the back of the original summons.
(3) In the case of a corporation the summons may be served on the secretary or other like officer of the
corporation.
(4) Where the person to be summoned cannot, by the exercise of due diligence, be found the summons may be
served by leaving a copy thereof for him with some adult member of his family or with his employee residing
with him.
[42
Procedure when personal service cannot be effected.
44. When the person to be summoned cannot, by the exercise of due diligence, be found and service cannot be
effected as directed by section 43 (4) the serving officer shall affix a copy of the summons to some
conspicuous part of the house or place in which the person summoned ordinarily resides, and in such case the
summons, if the court so directs either before or after such affixing, shall be deemed to have been duly served.
[43
 Proof of service.
45. When a summons issued by a court is served an affidavit of such service purporting to be made before an
officer duly authorised to administer an oath shall be admissible in evidence.

Failure to attend

• Warrant under Section 54 of the CPC & Form 7

Issue of warrant in lieu of or in addition to summons.

54. A criminal court may, in any case in which it is empowered to issue a summons for the appearance of any
person, issue, after recording its reasons in writing, a warrant for his arrest —
(a) if either before the issue of the summons or after the issue of the summons but before the time fixed for his
appearance the court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of
his appearing in accordance therewith and no reasonable excuse is offered for such failure.
[53
Form 7.

Discharge of Accused at any stage of summary trial – DATA or DNATA – s184 CPC
• During mentions, if PP after considering reps decides to let @ off after administering a stern warning,
or if it finds its evidence do not merit prosecution, it may apply for DATA. Effect: @ is released as a
free man.
• If PP considers that it needs much more time to gather evidence, it may apply for DNATA, and revive
the charge later when it is ready. Effect: @ is released with charge hanging over him.
• Legal basis: s 184 CPC (rw s 35 Constitution, s 336 CPC)

• Summary tiral commences when charge first read and explained to accused – loh siang piow
• Juris of court to grant discharge under section 184 only arises when PP informs court tt wld not further
pros def on charge

During the mentions, PP may need more time to gather evidence (DNATA) or decides to let accused off (DATA)

• Discretion to institute or discontinue criminal proceedings against an accused vests constitutionally

and statutorily with the PP: Art 35 Constitution and s336 CPC
o The court cannot interfere with the PP’s decision not to prosecute an accused: Arjan Singh v PP
[1993].
o The court can only grant discharge under s184 CPC if the PP or those acting under his his authority
informs the court as such: Ranjit Kaur d/o Awthar Singh v PP [1999]

• PP may decline to further prosecute at any stage of the summary trial before judgment has been delivered.
When the court is so informed, all proceedings on the charge against the accused shall be stayed and he shall
be discharged from and of the same: s184 CPC. Such discharge shall not amount to acquittal (DNATA)
unless the court so directs: s184(2) CPC. The prima facie position under s184(2) CPC is in favour of a
DNATA: TS Video and Laser Pte LTd v Lim Chee Yong [2002]

• When PP informs the court that it will not further prosecute the accused the case or is withdrawing the
charge, the court may order either DATA or DNATA depending on whether PP intends to resurrect
proceedings against accused in the future:
o DATA3
 If PP after considering reps decides to let accused off after administering a stern warning,
or if it finds its evidence does not merit prosecution, it may apply for DATA.
 Effect = Accused is released as a free man.
o DNATA4

3
Discharge Amounting to Acquittal
4
Discharge Not Amounting to Acquittal
  If PP considers that it needs much more time to gather evidence, it may apply for
DNATA, and revive the charge later when it is ready.
 Effect = Accsued is released with charge hanging over him.

o Note – Court will have to consider and weigh the public interest and any potential prejudice to the
accused by the DNATA since the order means that accused can be tried again on the same offence
without offending the doctrine of autrefois acquit enshrined in Art 11 and s239 CPC. Thus if it is
clear that PP has no intention to proceed against the accused, court will order DATA.

• Legal basis  s 184 CPC (rw s 35 Constitution, s 336 CPC)

Public Prosecutor may decline further to prosecute at any stage of summary trial.
184. —(1) At any stage of any summary trial before judgment has been delivered, the Public
Prosecutor may, if he thinks fit, inform the court that he will not further prosecute the defendant upon
the charge and thereupon all proceedings on the charge against the defendant shall be stayed and he
shall be discharged from and of the same.

(2) Such discharge shall not amount to an acquittal unless the court so directs except in cases coming
under section 177.

Public Prosecutor.
336. —(1) The Attorney-General shall be the Public Prosecutor and shall have the control and
direction of criminal prosecutions and proceedings under this Code.

Person once convicted or acquitted not to be tried again for offence on same facts.
239. —(1) A person who has once been tried by a court of competent jurisdiction for an offence and
convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be
liable to be tried again for the same offence nor on the same facts for any other offence for which a
different charge from the one made against him might have been made under section 172 or for
which he might have been convicted under section 173 or 174.

- In the alternative you can seek for your client a discharge amounting to an acquittal which amts to complete
and final withdrawal of charge
 Can then write to CID on client’s behalf to retrieve fingerprint and photograph records taken at
time of admisntering station charge
 DATA also granted after charge is compounded

Lecture 13 Evidential Matters

Evidence by Statements aka ‘conditioned statements’

- Expeditious way of adducing evidence in chief
- Can be used in two sitn:
– For Preliminary Inquiry – s141 CPC – often used. To cut down time
– For general cases – s371 CPC – normal hearing in summary trials and HC trials.
- usually used for formal witnesses where evid is formal and not going to be disputed and not so material and
relevant to the charge
– eg medical witnesses/ drug analysis
– but evid of victim – shld not use conditioned statement because –
 unlikely tt opposing lawyer will agree to its use
 pros wld also wnt victim to say in own words and for judge to be able to observe her

Requirements: section 141 and s371

- Signed by the witness
- Declaration by witness – true to the best of his knowledge
- Service of opposing party (note: time frame for service – can be otherwise agreed by opposing counsel. If
not objected then it’s ok)
- s 141: served on other parties not less than 7 days before date of hearing
- s 371: does not state time period for service of the statements. S 371(2)(c) merely states
‘before the hearing in which the statement is to be tendered in evidence’ – a copy must be
served on the other parties.
- not objected to by opposing party – if he objects at the outset then conditioned statements x be used
o S 141: No time limit – s 141(1)(d) merely states that before the hearing of which the statements are
to be tendered as evidence, none of the parties object to it.
o S 371: Other parties can file a notice objecting to the statements being tendered within 7 days
from the service of the statements

•  Effect of both s 141 and s 371 is that such statements of any person, if admissible (subject to
voluntariness), have the same effect as oral testimony.
o Note: If use of the s 141/371 statement is objected to, the Witness must give oral testimony in order for
his evidence to be taken at trial.
o Note: Even if s 141/371 statement is admitted, there is still a right to cross-examine the deponent.
• Civil cases
o Evidence by Affidavits: Order 38, RSC
o Form and procedure on preparation of affidavits: Order 41, RSC

Statements of Prosecution’s Witnesses

• Is Defence Counsel entitled to it?

Husdi v PP [1979] 2 MLJ 304

• A statement made by a witness in the course of investigation is absolutely privileged — The prosecution is
under no duty to supply the statement to the accused even though the statement is recorded by the act of a
public officer as a requirement of written law
• It has also been argued that as a matter of policy, it is undesirable to allow the defence to inspect witnesses’
statements. There is a need to sustain and encourage free flow of information from informants both to
initiate, and to achieve progress with investigations. The statements recorded in the course of a criminal
investigation would often affect others (e.g. causing embarrassment or rendering them potentially liable to
suits for defamation, breach of confidence) who might not even have given a statement to the authorities in
the first place. Persons giving statements to investigative agencies would have assumed that their statements
were treated as being given in confidence and to be used for the specific purpose of investigation and
nothing else.

Selvarajan James v PP [2000] 3 SLR 750

• The Criminal Procedure Code does not impose on the prosecution an onerous duty of disclosure — The
court cannot direct the prosecution to produce the witnesses’ statements to the defence
• Facts: The appellant appealed against the conviction of the abetment of theft as a servant and sentence. In
the course of preparing for the appeal, the appellant discovered that the appellant had made a total of three
statements to the police, out of which only two inculpatory statements were adduced by the prosecution
during the trial in the lower court. The third statement was apparently exculpatory in nature and the
appellant applied by way of criminal motion for the court to order that the prosecution be directed to
produce the third statement and for leave to adduce the third statement as fresh evidence.
• Held: There was no requirement in the CPC for the prosecution to disclose witnesses` statements to the
defence. It was up to Parliament and not the court to impose upon the prosecution the duty to produce
witnesses` statements to the defence.
• Even if the prosecution had produced the third statement to the appellant, the three conditions of non-
availability, relevance and reliability had to be applied before it could be admitted by the High Court
pursuant to s 257(1) of the CPC. The third statement in the present case did not satisfy the second and third
conditions, therefore the court would not have granted leave for it to be adduced in any case. The motion
was accordingly denied The case of Juma'at bin Samad v PP [1993] 3 SLR 338 followed.
• Yong Pung How CJ noted:
o The CPC does not impose on the prosecution an onerous duty of disclosure. This differs from
the requirements in civil cases where extensive rules of discovery are provided for in the
Rules of Court. For criminal cases, there is no requirement in the CPC for the prosecution
to disclose witnesses’ statements to the defence. The present duty of disclosure on the part
of the prosecution in criminal cases, as provided for in the CPC is minimal. It is not for this
court to impose such requirements on the prosecution. It is for Parliament to decide if it wants
to enact these revisions when it updates the CPC and, until then, the court cannot direct the
prosecution to produce witnesses’ statements to the defence.

Trial-within-a-trial

General
- Confessions of accused persons – oral and written
- Definition of Confession – s17(2) Evidence Act
- a confession is an admission made at any time by a person accused of an offence stating or
suggesting the inference that he committed the offence.
- Anandagoda v R [1962] MLJ 289 (Privy Council)
- objective reasonable man test, whether statement amount to statement that accused
committed offence or suggest the inference that he committed the offence.
- Statement must be looked as a whole and considered on its own terms without reference to
extrinsic facts.

Test
- Involuntary statements inadmissible
- Relevant provisions - s122(5) & s122(6) CPC / ss24 & 25 Evidence Act
Section 122(5) & (6) of the CPC

Admissibility of statements to police.

122. —(5) Where any person is charged with an offence any statement, whether it amounts to a confession
or not or is oral or in writing, made at any time, whether before or after that person is charged and
whether in the course of a police investigation or not, by that person to or in the hearing of any police
officer of or above the rank of sergeant shall be admissible at his trial in evidence and, if that person
tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of
impeaching his credit:

Provided that the court shall refuse to admit such statement or allow it to be used as aforesaid if the
making of the statement appears to the court to have been caused by any inducement, threat or promise
having reference to the charge against such person, proceeding from a person in authority and sufficient,
in the opinion of the court, to give such person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.

(6) Where any person is charged with an offence or officially informed that he may be prosecuted for it, he
shall be served with a notice in writing, which shall be explained to him, to the following effect:

“You have been charged with/informed that you may be prosecuted for —
(set out the charge).
Do you wish to say anything in answer to the charge? If there is any fact on which you intend to rely in your
defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may
be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any
fact now, and you would like it written down, this will be done.”.

Section 24 & 25 of the Evidence Act

 Confession caused by inducement, threat or promise when irrelevant in criminal proceeding
24. A confession made by an accused person is irrelevant in a criminal proceeding if the making of the
confession appears to the court to have been caused by any inducement, threat or promise having reference
to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of
the court to give the accused person grounds which would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding
against him.
Confession to police officer below the rank of sergeant not to be proved
25. *No confession made to a police officer who is below the rank of sergeant by a person accused of any
offence shall be proved as against the person.

Characteristics
- Separate proceeding from main trial
Lim Seng Chuan v PP [1975-1977] SLR 136
- Facts: The appellant Lim was charged with murdering a 13-year-old girl. The uncontradicted medical
evidence was that the girl had been sexually assaulted by a male person and manually strangulated before
she was thrown from some height by the same person on the pavement of the block of flats. The prosecution
sought to prove by circumstantial evidence that Lim was the man in question there being no direct evidence.
The prosecution further attempted to prove Lim’s cautioned statement made to a police officer at the CID. A
trial within a trial or voir dire was conducted to decide on the admissibility of cautioned statements as well
as confessions. During the voir dire, evidence which was not material to the question of admissibility but
which affected the outcome of the case was led. The evidence in question was a statement by one Tan
regarding a conversation he had with Lim in which Lim admitted his involvement with the girl’s death. The
trial judges found the appellant guilty of murder and in their grounds of judgment, it was clear that they
relied on Tan’s evidence on the issue of whether or not Lim murdered the girl. The question before the Court
of Criminal Appeal was whether the trial judges erred in taking into account Tan’s evidence during the ‘trial
within a trial’ in considering whether or not the appellant was guilty of murder as charged.
- Held, allowing the appeal and ordering re-trial:
- Fairness to the accused, which was a fundamental principle of the administration of criminal justice,
required that the ‘trial within a trial’ be considered a separate or collateral proceeding as: (a) evidence may
be given at a trial within a trial which was inadmissible on the charge against the accused but may be
relevant on the issue to be decided at the trial within a trial; and (b) conversely, evidence may be given at the
trial within a trial which may be relevant and admissible on the charge but not relevant on the issue to be
decided in the trial within a trial and the accused or counsel may well decline to challenge such evidence in
the justifiable belief that it could not adversely affect the accused on the issue to be decided at the trial
within a trial.
- As the trial was unsatisfactory, the conviction was not allowed to stand and a retrial was ordered.

- Evidence in TWT generally not to be used for main trial –

 Separate or collateral proceedings
 Evidence led in the trial-within-a-trial is not evidence for the main trial unless the evidence is
admitted again for the purposes of the main trial
 Evidence in 1 trial-within-a-trial cannot be used in another – Goh Joon Tong v PP [1995] 3
SLR 305
 Evidence in the main trial may not be used in the trial-within-a-trial – Fun Seong Cheng v
PP [1997] 3 SLR

Teo Yeow Chuah v PP [2004] 2 SLR 563

- Facts
- The appellant, Teo Yeow Chuah (“Teo”) was charged under the Misuse of Drugs Act (Cap 185, 1985 Rev
Ed) (“MDA”) for possessing for the purpose of trafficking, not less than 55.29g of diamorphine, which
carried the death penalty. In the course of investigations, Teo admitted that the drugs found on his person, in
a car he was driving and in a bag at the rooftop of his rented apartment, belonged to him. Some details of the
admission were recorded in a pocket book kept by Station Inspector Ang (“SI Ang”), one of the officers at
 the scene when Teo was arrested. Additionally, Teo provided three long statements in which he admitted to
the offence.
- At trial, Teo challenged the records in SI Ang’s pocket book, claiming that his answers to two of SI Ang’s
questions were the result of threat, inducement or promise. A voir dire was conducted and the answers were
found to have been given voluntarily. Teo also claimed that most of his first and second long statements and
part of his third long statement were fabricated. The trial judge rejected Teo’s contentions and convicted him
on the charge.
- On appeal, Teo contended that the trial judge erred in: (i) admitting into evidence the statement made to SI
Ang; (ii) failing to find that the Central Narcotics Bureau had not adhered to the fundamental principles of
investigation by failing to send the bag for fingerprint analysis; (iii) failing to appreciate that SI Ang’s
threats or promises were operative on Teo’s mind during the recording of the three long statements;
(iv) failing to convene a voir dire to determine the admissibility of the long statements; (v) failing to
appreciate that Teo might not have been fully apprised of the possibility that he was facing the death penalty
because the charge did not mention the death penalty; and (vi) relying on evidence adduced in the voir dire
at trial.
- Held, dismissing the appeal:
o (1) The court ought to be satisfied beyond a reasonable doubt that the statement of the accused
sought to be admitted in evidence was given voluntarily without any threat, inducement, promise
or any form of oppressive conduct or coercion. It was clear from the records in respect of the
statement to SI Ang that the trial judge did not err in his evaluation of the evidence tendered at the
voir dire. There was also no objection from counsel for Teo as to the voluntariness of the long
statements. There was also nothing in the records to suggest that the voluntariness of the
statements was ever in issue: at [20] to [21].
o (2) There was no primary or statutory obligation on the part of the authorities to undertake a
fingerprint examination, particularly in a case where the accused was apprehended with the
offending substance. Once possession was prima facie established under the MDA, it was for the
accused to explain how he came into possession of the drugs. Since Teo had openly admitted to the
ownership of the seized bag, his argument that the CNB had failed to adhere to the fundamental
principles of investigation was unsustainable: at [27] to [28].
o (3) The finding by the trial judge that Teo was fully aware of the penalty he was facing was based
on the evidence before him, and should not be disturbed. In any event, it was clear from the
records that the charge and the notice of warning were served on the accused. The records also
showed that the accused had confirmed, by appending his signature to the charge, that the nature
and consequences of the charge had been explained to him in Hokkien through an interpreter: at
[30].
o (4) It would appear from the records that counsel for the accused himself had expressed a
view that it would be prudent to use the evidence adduced in the voir dire for the purposes of
the main trial. Given the unconditional express approval by counsel, and the fact that the two
short answers given by the accused to SI Ang had been held as being made voluntarily, there
was nothing in the proceedings below to suggest that the use of the evidence adduced in the
voir dire at the main trial occasioned any miscarriage of justice.
o However, trial judges, as a matter of law and practice, should avoid using evidence adduced
at voir dire for the purposes of the main trial, except in the circumstances pointed out by the
Privy Council in Wong Kam-ming [1979] 1 All ER 939: at [23] to [24].

- Generally, an accused has no rights to cross-examine a co-accused if the statement sought to be admitted
in evidence by the prosecution is that of the co-accused
 Jasbir Singh & Anor v PP [1994] 2 SLR 18 – no prejudice suffered
 See Panya Martmontree below

- Accused claimed that he did not make the statement – is there a need for a trial-within-a-trial? Is this an
issue of fact or an issue relating to voluntariness
o Ajodha v The State [1982] AC 204
- Police corporal alleged to have recorded the statement – is there a need for a trial-within-a-trial?
o Beh Chai Hock v PP [1996] 3 SLR 495 [see below]
- “The true position was that the procedural safeguard of a voir dire was necessary
whenever the admissibility of a confession was challenged, provided that the dispute over
 the admissibility was not confined to a pure point of law, but was one which required the
calling of evidence of the accused person and other witnesses in support of or against the
admissibility of the confession.”

- Matters which Counsel should take instruction on

– Whether accused was assaulted
– Whether medical evidence supports the allegation
– Capital cases – read the pre and post statement medical examination report
– Take careful instructions when alleging impropriety on the part of the police officers – eg
oppression
– Wild allegations can be rebutted by reference to lock-up diaries and other relevant diaries in
the police station

Burden of Proof
- Same as the main trial
- Prosecution to prove statement are made voluntarily beyond reasonable doubt
- Accused has to raise a reasonable doubt

PP v Panya Martmontree [1995] 3 SLR 341

- Facts
o The four appellants were convicted under s 396 of the Penal Code (Cap 224) of murdering two
persons in the course of gang robbery. The only material evidence against them comprised the
statements of the first, second and fourth appellants. On appeal, the appellants argued that: (a) the
statements were inadmissible as they had been made involuntarily; (b) the accused had a right to
cross-examine the prosecution witnesses during the voir dire of the co-accused; (c) the use of each
appellant’s confession against his co-appellants was wrong as the confessions had been retracted;
(d) there were material inconsistencies in the statements, which rendered them unreliable; and (e)
each appellant deserved to be awarded the lesser of the sentences prescribed by s 396, namely, life
imprisonment with not less than 12 strokes of the cane, rather than death. The third appellant
further argued that he could not remember where he was, and that he could not to be implicated by
the other appellants’ statements.
- Held, dismissing the appeal:
o (1) The prosecution bore the burden of proving the voluntariness of statements beyond a
reasonable doubt. It was not sufficient for the appellants to raise only the slightest doubt. The use
of the word ‘appears’ in the proviso to s 122(5) CPC did not impose the prosecution with any
higher burden than the normal one in criminal trials. All that was required was that the trial judge
determine whether the evidence of inducements, threats, promises or assaults, taken together with
the prosecution’s evidence, raised a reasonable doubt that the accused was influenced into making
the statement. In this case, the judge did not err in rejecting the evidence that the statements of the
first, second and fourth appellants were made involuntarily.
o (2) An accused in a joint trial had no right to cross-examine witnesses during the voir dire
of a co-accused. The voir dire was to allow the maker of the statement to challenge the
admissibility of the statement sought to be used against him. The accused suffered no prejudice
since the co-accused’s statement would only be admitted if its voluntariness was proved beyond a
reasonable doubt. The accused may then test the evidence at the main trial. The evidence adduced
during a voir dire could not, in any case, be used at the trial proper and the trial judge was trained
to set his mind against inadmissible evidence.
o (3) The retraction of an accused’s confession only affected its weight. In this case, the judge
exercised care in determining whether the confessions could be relied upon and indicated that he
was aware of the danger of the accused lying. He examined the evidence carefully and did not err.
o (4) On the evidence, the third appellant was sufficiently identified by the second and fourth
appellants. The statements indicated clearly that an offence under s 396 of the Penal Code was
committed. The differences between the various statements were not sufficient to indicate that any
of them ought not to be believed.
o (5) The third appellant’s defence that he was not in Singapore at the time, and could not
remember where he was, was evidence of denial only and not evidence in support of an alibi. The
judge was correct in regarding the passport as unreliable evidence in support of that denial.
Improper admission of statement/ no voir dire held
- In appeal – if one of grds was improper admission of statement then qn is whether conviction shld still stand
- Whether it occasioned a failure of justice
- s169 Evidence Act – improper admission or rejection of evidence not ground of itself for new trial or
reversal of decision if there was other sufficient evidence to justify the decision …

No new trial for improper admission or rejection of evidence

169. The improper admission or rejection of evidence shall not be ground of itself for a new trial or
reversal of any decision in any case if it appears to the court before which such objection is raised that,
independently of the evidence objected to and admitted, there was sufficient evidence to justify the
decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

Beh Chai Hock v PP [1996] 3 SLR 495

- Accused had 2 statements taken from him. Both were in fact confessions. One was recorded by a Cpl and
the other allegedly by a Sgt as the prosecution claimed. The 1st statement was thrown out at trial under s
25 EA and s 122(5). The 2nd confession was admitted by the trial judge. However, the Accused had
alleged that the recorder of that statement was also a CPL and not the Sgt. The trial judge declined to
hold a voir doire. Accused was convicted and appealed.
- Issue: Was a Voir Doire necessary when the dispute as to the identity of the recorder of the statements? &
Was the defect curable under s 396 PC?
- Held:
o The trial judge made a serious error of law when he failed to hold a voir dire to resolve the
issue of the identity of the recorder of Beh’s statement. The trial judge’s mistake was in
thinking that a voir dire need only be conducted when the question of the voluntariness of a
confession was raised. The necessity for a voir dire encompasses situations other than when
the voluntariness of a confession is in dispute. As a general rule, it would cover all
situations when the admissibility of a confession is challenged. In this case, since the
question of the identity of the recorder of the statement was effectively a challenge to its
admissibility, the trial judge should have held a voir dire to resolve the question of
admissibility.
o The trial judge also erred in failing to realise that there was a subsidiary issue of the
voluntariness of Beh’s statement. The trial judge should have conducted a voir dire to
determine if the statement was voluntarily made.
o The trial judge’s failure to conduct a voir dire was not an irregularity which could be cured
under s 396 of the Criminal Procedure Code (Cap 68). Beh’s statement had been improperly
admitted in evidence before the close of the prosecution’s case. Before the curative power
under s 396 could be exercise, the court had to determine if the improper admission of
evidence would have resulted in a different result from that which the court would have
reached had the evidence not been admitted. In this case, if Beh’s statement was excluded
from consideration, there was no other admissible evidence before the court to prove that Beh
was guilty of the charge.
o  The approach of the court in answering this question is to ask if the improper
admission of evidence would have resulted in a decision different from that which the
court would have reached had the evidence not been admitted. In other words, the test to
determine if the improper admission of evidence has occasioned a failure of justice is
whether or not without that evidence, there was sufficient evidence to justify the
conviction.
o  Such an approach was consonant with s 169 Evidence Act.
- Comments:
o S 396 not applicable when the Prosecution has not proved an essential element
of the offence.

- In this case, the effect of non-admissibility would be that the Prosecution would not have made out a prima
facie case [s 396 cannot operate to cure such defects!]
- S 396(1) CPC is similar to s 169 EA.
 Irregularities not to vitiate proceedings.
396. Subject to the provisions hereinbefore contained, no finding, sentence or order passed or made by a
court of competent jurisdiction shall be reversed or altered on account of —
(a) any error, omission or irregularity in the complaint, summons, warrant, charge, judgment or other
proceedings before or during trial or in any inquiry or other proceeding under this Code;
(b) the want of any sanction required by section 129; or
(c) the improper admission or rejection of any evidence,
unless the error, omission, improper admission or rejection of evidence, irregularity or want has occasioned
a failure of justice.

• So: If the statement though wrongly admitted, is not relied upon for conviction, arguably there is no failure
of justice.

• Order for a Re-Trial by appellate court (as opposed to setting aside conviction & acquitting accused)
o Two competing principles
 That persons guilty of crimes should be brought to justice and should not be allowed
to escape scot-free merely because of some technical blunder by the trial judge in the
course of the trial.
 Fairness to the accused: The prosecution should not ordinarily get a second chance
to make good the deficiencies of its case

Privilege

- Privilege extends only to professional communication between an advocate and solicitor and his client:
s128 Evidence Act

Professional communications
128. —(1) No advocate or solicitor shall at any time be permitted, unless with his client’s express consent, to
disclose any communication made to him in the course and for the purpose of his employment as such advocate
or solicitor by or on behalf of his client, or to state the contents or condition of any document with which he has
become acquainted in the course and for the purpose of his professional employment, or to disclose any advice
given by him to his client in the course and for the purpose of such employment.
(2) Nothing in this section shall protect from disclosure —
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any
crime or fraud has been committed since the commencement of his employment.
(3) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact by or
on behalf of his client.
Explanation.—The obligation stated in this section continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, a solicitor: “I have committed forgery and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose this communication is protected from
disclosure.
(b) A, a client, says to B, a solicitor: “I wish to obtain possession of property by the use of a forged deed on
which I request you to sue”.
This communication being made in furtherance of a criminal purpose is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, a solicitor, to defend him. In the course of the proceedings B
observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled,
which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since
the commencement of the proceedings, it is not protected from disclosure.

- Does not extend to other form of professional communication e.g. communication made between a patient
and his doctor
- Privilege belongs to the client and not to counsel – need to get client approval – client can waive privilege
- Obligation continues even after the employment has ceased
- What it does not protect
– Any communication made in furtherance of any illegal purpose
– Any fact observed by any counsel in the course of his employment as such showing that any
crime or fraud has been committed since the commencement of the employment

- Communication during marriage

– Privilege covers communication only, not actions that wife eg may observe of the husband
– ss124 Evidence Act

Communications during marriage

124. No person who is or has been married shall be compelled to disclose any communication made to him
during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any
such communication unless the person who made it or his representative in interest consents, except in suits
between married persons or proceedings in which one married person is prosecuted for any crime committed
against the other.

- Privilege against self incrimination: 134(4) & 134(5) EA - witness not excused from answering questions
on the ground that answer will incriminate

Witness not excused from answering on ground that answer will criminate
134. —(4) Where the accused gives evidence in any criminal proceedings —
(a) he shall not be entitled to refuse to answer a question or produce a document or thing on the ground
that to do so would tend to prove the commission by him of the offence charged; and
(b) except as regards any question, document or thing which in the opinion of the court is relevant solely or
mainly to the accused’s credibility as a witness (not being, in the case of a question, one asked by virtue of
section 56), he shall not be entitled to refuse to answer a question or produce a document or thing on the
ground that to do so would —
(i) tend to expose him to proceedings for some other offence or for the recovery of a penalty; or
(ii) tend to expose his wife or husband to proceedings for an offence or for the recovery of a penalty.
(5) Where a person being the wife or husband of the accused gives evidence in any criminal proceedings,
that person —
(a) shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to
do so would tend to prove the commission by the accused of the offence charged; and
(b) except as regards any question, document or thing which in the opinion of the court is relevant solely or
mainly to that person’s credibility as a witness, shall not be entitled to refuse to answer a question or
produce a document or thing on the ground that to do so would tend to expose her or him to proceedings as
mentioned in subsection (4) (b) (i).

Lim Lye Hock v PP [1995] 1 SLR 238

- “…when the spouse of an accused is called as a witness, he or she is a competent and compellable witness…
save and except that under s124 he or she is not compellable to disclose any marital communication…and
furthermore not permitted to do so without the consent of the accused...”
- LP Thean JA:
o … [T]he spouse of an accused can give evidence against him of any fact but is not
compellable to disclose any marital communication made by the accused, and if she is
prepared to disclose such communication, she is not permitted to do so without his consent.
o For instance, if the wife has seen her husband committing the offence or returning home
with blood stains on his clothes, in proceedings brought against the husband she is both
competent and compellable to testify on what she saw. On the other hand, if the husband
has confessed to her that he committed the offence or has explained to her how the blood
stains were splattered on his clothes or has written to her a note or letter to that effect,
she is not compellable to disclose such communication or produce the note or letter and,
if she is prepared to disclose such communication or produce the note or letter, she is not
permitted to do so, unless he consents to such disclosure.
o In our judgment, the wife’s evidence of what the appellant told her was not admissible in
evidence and ought to have been disallowed.
- *** The Privilege does not apply to facts observed by the Spouse (but only to maritalcommunications]
- The Privilege continues even after marriage has terminated
o Ibrahim bin Awang Mat v Ibrahim bin Dollah [1987] 2 MLJ 471
s27 Evidence Act

- Section 27 of the Evidence Act is an exception to:

 hearsay evidence rule
 Section 24 of the EA: voluntariness
 Section 122 of the CPC: voluntariness
- s27 represents loosely what is known as the doctrine of confirmation by subsequent facts
 rationale: admissibility of the part of the statement which is subsequently confirmed by the
discovery of a material fact is that it must be reliable.

Section 27 of the Evidence Act – fact discovered by virtue of statement

How much of information received from accused may be proved
27. When any fact is deposed to as discovered in consequence of information received from a person accused of
any offence in the custody of a police officer, so much of such information, whether such information amounts to
a confession or not, as relates distinctly to the fact thereby discovered may be proved.

Confession caused by inducement, threat or promise when irrelevant in criminal proceeding

24. A confession made by an accused person is irrelevant in a criminal proceeding if the making of the
confession appears to the court to have been caused by any inducement, threat or promise having reference to the
charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the
court to give the accused person grounds which would appear to him reasonable for supposing that by making it
he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

- s122 CPC
Admissibility of statements to police.
122. —(1) Except as provided in this section, no statement made by any person to a police officer in the course
of a police investigation made under this Chapter shall be used in evidence other than a statement that is a written
statement admissible under section 141.
(2) 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 that 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 of it; and the statement may be used to impeach the credit
of the witness in the manner provided by the Evidence Act.
(3) Nothing in this section shall be deemed to apply to any statement made in the course of an
identification parade or falling within section 27 or 32 (a) of the Evidence Act.
(4) 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 made under this Chapter, that statement may be used
as evidence in the prosecution.
(5) Where any person is charged with an offence any statement, whether it amounts to a confession or not or is
oral or in writing, made at any time, whether before or after that person is charged and whether in the course of a
police investigation or not, by that person to or in the hearing of any police officer of or above the rank of
sergeant shall be admissible at his trial in evidence and, if that person tenders himself as a witness, any such
statement may be used in cross-examination and for the purpose of impeaching his credit:
Provided that the court shall refuse to admit such statement or allow it to be used as aforesaid if the making of
the statement appears to the court to have been caused by any inducement, threat or promise having reference to
the charge against such person, proceeding from a person in authority and sufficient, in the opinion of the court,
to give such person grounds which would appear to him reasonable for supposing that by making it he would
gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
(6) Where any person is charged with an offence or officially informed that he may be prosecuted for it, he shall
be served with a notice in writing, which shall be explained to him, to the following effect:
“You have been charged with/informed that you may be prosecuted for —
(set out the charge).
Do you wish to say anything in answer to the charge? If there is any fact on which you intend to rely in your
defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be
less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact
now, and you would like it written down, this will be done.”.
(7) No statement made by an accused person in answer to a written notice served on him pursuant to subsection
(6) shall be construed as a statement caused by any inducement, threat or promise as is described in the proviso
to subsection (5), if it is otherwise voluntary.
(8) In subsection (6), “officially informed” means informed by a police officer or any other person charged with
the duty of investigating offences or charging offenders.

- s27 Evidence Act is also expressly exempted by s122(3) CPC

PP v Chin Moi Moi [1995] 1 SLR 297

- The respondent was charged with theft of a gold bangle in a dwelling. She gave a statement to the arresting
officer to the effect that she had thrown the bangle out of a window in the victim’s flat. As a consequence,
the officer proceeded immediately to the foot of the block of the flat, where he found a gold bangle lying on
a grass verge directly below the kitchen window of the flat.
- At the trial, the prosecution sought to admit the statement under s 27 of the Evidence Act (Cap 97, 1990 Ed).
The defence objected on the ground that it was involuntary.
- At the conclusion of the voir dire, the district judge ruled that the statement was made involuntarily and
rejected it. The respondent was subsequently acquitted.
- On the public prosecutor’s appeal, it was argued that it was unnecessary to prove that the statement had been
made voluntarily when only part of the statement was sought to be admitted under s 27. It was also argued
that once the statement fulfilled the conditions under s 27, it would have to be admitted.
- Held: On Appeal. Yong CJ
 (1)Section 27 of the Evidence Act represents loosely what is known as the doctrine of confirmation
by subsequent facts. This doctrine holds that where in consequence of a confession, otherwise
inadmissible, a search is made and facts are discovered which confirm the confession in
material points, the possible influence which through caution had been attributed to the
improper inducement is seen to have been nil and the confession may be accepted without
hesitation (Wigmore Evidence in Trials at Common Law Vol III, s 856, p 550). The rationale for
the admissibility of that part of the statement which is subsequently confirmed by the discovery of
a material fact is that it must be reliable
 (2) Section 27 is clearly not a backdoor avenue for the admission of statements made by an
accused person to the police, bypassing s 24 [of the Evidence Act (Cap 97, 1990 Ed)] and s 122(5)
of the CPC
 (3) It is material to note that ‘information’ under s 27 does not only apply to statements. The words
‘whether such information amounts to a confession or not’ clearly indicate that ‘information’ is
not only limited to a statement by the accused but also encompasses acts or conduct of the
accused which relate distinctly to the fact discovered. This would of course consist of acts like
pointing out the place where an article is hidden or where the accused leads the police to the
article. As was held by Gunn SCJ in Wai Chan Leong (supra), ‘information’ included knowledge
derived by the person informed by the accused as well as the means taken to impart that
knowledge
 (4) Before s 27 can be invoked, it is essential to prove that a fact was discovered in
consequence of the information received from the accused. The information must be such as
has caused discovery of a fact, ie the fact must be the consequence and the information the cause
of its discovery (per Gunn SCJ). If there is no link between the information and the fact
discovered, such information would not be admissible under s 27.
- Appellate court found that invol but what happened was tt after statement given, police brought her to
ground floor of falt and found that valuable item
 Part of statement talking abt accused throwing it which was found shkd have been admnittewd in
evid even though x pass test of vol
 So this is an exception to hearsay and voluntariness
 must first prove that the discovery of the fact resulted only from the information received from the
accused.
  Court must look at all the circumstances of the case, the offence charged, the other evidence
adduced, and the relevance of the fact which is discovered as a consequence, so that no more than
what was necessary is admitted in evidence.
 ‘information’ from accused not limited to statements.
 Can include acts or conduct of the accused which relate distinctly to the fact discovered, e.g.
gestures or pointing out to place where item was hidden.
s.27 should be strictly construed and applied. No more than that which showed how the fact which
was discovered was connected with the accused was admissible.
– Comments:
 The prosecution had in fact attempted to adduce the whole statement, and not merely the material
portion containing the information given by the respondent leading to the discovery of the bangle.
Yong Pung How CJ observed that s 27 could not apply as such and the defence was entitled to
object to the admissibility of the whole statement. Accordingly, a voir dire would have to be
conducted. The district judge therefore did not err in law in doing so. But there was evidence
nonetheless that the discovery of the bangle only resulted from the information received from the
respondent. The district judge erred when he failed to consider this fact, and the relevant portion of
the statement was admissible under s 27 of the Evidence Act and ought to have been so admitted.
That part of the statement was clearly distinctly related to the fact discovered. The order of
acquittal was quashed and a retrial was ordered, together with a direction to the district judge to
admit the material part of the statement

Impeachment

What is the definition of and purpose of impeachment?

- Whether civil or crim trial, impeachment can come into play
- Provisions are in the evidence act – apply to both civil and criminal hearings
- To impeach a witness’s credit is to disparage or undermine his character and moral reliability and
worth.
– So that can arg later tt evid of partr witness shld not be believed because character and
reliability is in qn
- The purpose of impeachment of a witness’s credit is to undermine his credibility by showing that his
testimony in court should not be believed because he is of such a character and moral make-up that he is
one who is incapable of speaking the whole truth under oath and should not be relied on.

Kwang Boon Keong Peter v PP [1998] 2 SLR 592

- Facts
- The accused was convicted of three charges under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993
Ed) for the receipt of ‘ang pows’ from PW3 corruptly as gratification or reward. In convicting the accused,
the district judge relied on the uncorroborated evidence of PW3 and photocopies of two documents (Exhibits
P4 and P5) which contained a list of the persons to whom PW3 had offered ‘ang pows’. The district judge
also found that the credit of the accused had been impeached under s 157 of the Evidence Act (Cap 97) as
what the accused had said under cross-examination was inconsistent with his previous statement to the
Corrupt Practices Investigation Bureau (‘CPIB’). The accused appealed against the conviction. There were
four issues considered on appeal: (a) impeachment of the credit of the accused under s 157; (b) admissibility
of Exhibits P4 and P5 as evidence under s 67(1)(c) of the Evidence Act; (c) whether PW3 should be treated
with caution as a witness because he was the payor of gratification; and (d) the conviction under s 6(a) of the
Act.
- Held, dismissing the appeal
o (1) Section 157 provided for the impeachment of the credit of a witness by the party who
called him if the consent of the court was given or by the opposing party. This applied to all
witnesses, including the accused.
o (2) The purpose of the impeachment of a witness’s credit was to undermine his credibility by
showing that his testimony in court should not be believed because he was of such a character and
moral make-up that he was incapable of speaking the whole truth under oath and should not be
relied on.
 o (3) Section 157(c) allowed for the impeachment of a witness’s credit by proof of a former
statement inconsistent with any part of his evidence in court which was liable to be
contradicted.
o (4) There were two effects upon the proof of a former statement inconsistent with any part of the
witness’s evidence which was liable to be contradicted: (a) his credit was impeached under
s 157(c); and 9b) his former statement was admissible as evidence of any fact stated therein under
s 147(3).
o (5) A successful impeachment of a witness’s credit under s 157 went only to the weight of his
oral testimony in court and not to its admissibility.
o (6) In the present case, the inconsistencies between the accused’s statement to the CPIB and his
oral testimony in court were sufficiently material to call into question the credit of the accused. The
explanation given by the accused for the discrepancies was not credible. Thus his credit was rightly
impeached and his former statement correctly admitted into evidence.

- the subj of this lecture: Impeachment by previous statements

– Common scenario: witness gives one version of the incident in his/her statements and a
different version in court.

When will impeachment be allowed?

- 4 classes of discrepancies:-
– Minor
– Apparent
– Serious
– Material
- If the discrepancy bet court evid and prev statmet is serious and amterial, ie material discrepancy tt is
relevant to the judge, only then wil impeachment process be allowed
- If minor and immaterial eg just commas, phrasing of sentence, language, then no pt going thorugh
impeachemtn process even though discrepancy on the face of it – not relevant to the charge
– Bottomline is, differences between the statement and evidence in court must be irreconcilable
and must be on a point material to the issue.
– If the discrepancy is not material to fact in issue (i.e. does not relate to the elements of the
charge), then should not waste time: see Taylor J’s comment in Muthusamy’s case.
- mere omission to mention a detail does not amount to a discrepancy — Where the police statement gives an
outline of substantially the same story there being no apparently irreconcilable conflict between the two on
any point material to the issue, the difference is not such as to affect the credit of the maker of the statement
- Some discrepancies in evidence will nevertheless be excusable, especially when they are attributable to the
fallibility of human memory [PP v Kalpanath Singh [1995] 3 SLR 564]

- The phrase ‘previous inconsistent or contradictory statement’ need not be restricted to a situation where the
witness gives two substantive opposing versions of an event
– When a witness has given a detailed account of events in a previous statement and
subsequently claimed that he was unable to remember the events stated in his previous
statement, even after it was shown to him to refresh his memory, the previous statement
constituted a materially inconsistent statement —
– The court has to compare the oral evidence and the previous statement and assess the overall
impression which has been created as a whole. [PP v Heah Lian Kim [2000] 3 SLR 609
- The contrast between a witness’s positive identification at the preliminary inquiry and her ambivalence at
the trial gives rise to a serious discrepancy. [Lim Young Sien v PP [1994] 2 SLR 257
- When Cross-examining a witness on previous statements of facts in which he has pleaded guilty  PP v
Liew Kim Choo.
 Where a witness other than an accused person has pleaded guilty in earlier proceedings, the
statement of facts may be subsequently used to prove facts in the trial of his accomplice if the
witness gives inconsistent evidence at that trial.
  In admitting the statement of facts, it does not matter that the person pleading guilty disagrees
with certain particulars which are not material to the charge against him so long as the major
elements comprising the offence are not disputed.
 The statement of facts is unproved and cannot be accorded the same weight as a statement made to
the police — It should be treated with circumspection

Procedure of Impeachment:

Sources
- Procedure derived from case law and practice
- See ss 147 and 157 Evidence Act (also s.156)
 fr 157 tt we derive right to argue that witnesses’ credit impeached

- S157EA - remember there are 4 ways to impeach credit of witnesses

Impeaching credit of witness
157. The credit of a witness may be impeached in the following ways by the adverse party or, with the consent
of the court, by the party who calls him:
(a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be
unworthy of credit
b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other
corrupt inducement to give his evidence;
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be
contradicted; - most commonly used
(d) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of
generally immoral character

- S 157 is read with s 147 if one chooses to go under s 157(c), previous inconsistent statement.

Section 147 Evidence Act:

1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing,
and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing
being shown to him or being proved; but if it is intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of
contradicting him.
(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in
question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony,
does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but
before such proof can be given, the circumstances of the supposed statement, sufficient to designate the
particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such
statement.
(4) Where a person called as a witness in any proceedings is cross-examined on a document used by him to
refresh his memory, that document may be made evidence in those proceedings.
(5) Where a document or any part of a document is received in evidence by virtue of subsection (4), any
statement made in that document or part by the person using the document to refresh his memory shall by
virtue of that subsection be admissible as evidence of any fact stated therein of which direct oral evidence
by him would be admissible. .
(6) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section
regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the
accuracy or otherwise of the statement and, in particular, to the question whether or not the statement was
made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not
the maker of the statement had any incentive to conceal or misrepresent the facts.
(7) Notwithstanding any other written law or rule of practice requiring evidence to be corroborated or regulating
the manner in which uncorroborated evidence is to be treated, a statement which is admissible in evidence by
virtue of this section shall not be capable of corroborating evidence given by the maker of the statement.

- common scenario:
 o Where a witness called by a party turned hostile (i.e. witness gives evidence contrary to what
he had given in his statement), the party calling him may cross-examine him as to the previous
inconsistent statement made by the witness – Section 156 Evidence Act. [apply to do so under
s 156 EA]
o Previous statement has to be proved if hostile witness denies making it.

• If witness admits making statement but alleges that he did not make it voluntarily – no need to have trial-
within-a-trial (Thiruselvam s/o Nagaratnam [2001] 2 SLR 125)
• The statement of a witness whose credit was impeached may be admitted for the truth of the contents under
Section 147(3) EA.

Cross-examination as to previous statements in writing

147. —(3) Where in any proceedings a previous inconsistent or contradictory statement made by a person
called as a witness in those proceedings is proved by virtue of this section, that statement shall by virtue of this
subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be
admissible.

• Evidential value of previous inconsistent statement: Section 147(6) EA see above

Procedure for cross-examining a witness on a previous inconsistent statement

- The procedures for cross-examining a witness on a previous inconsistent statement serve to ensure that the
court’s time is not wasted on inconsistencies that are not material and do not really impact on the witness’s
credibility. The relevant procedures were first comprehensively laid down in:

Muthusamy v PP [1948] MLJ 57.

- Taylor J: … The proper way to apply the section is this. On the request of either side, the court reads the
former statement. If there is no serious discrepancy the court so rules and no time is wasted. The first
necessity is to read it with the confident expectation that it will be different from the evidence but looking
judicially to see whether the difference really is so serious as to suggest that the witness is unreliable.
- Differences may be divided into four classes:
o (a) minor differences, not amounting to discrepancies;
o (b) apparent discrepancies;
o (c) serious discrepancies;
o (d) material discrepancies.
- …If the witness admits making the former statement, or is proved to have made it, then the two conflicting
versions must be carefully explained to him, preferably by the Court, and he must have a fair and full
opportunity to explain the difference. If he can, then his credit is saved, though there may still be doubt as to
the accuracy of his memory. This procedure is cumbersome and slow and therefore should not be used
unless the apparent discrepancy is material to the issue.

- The above procedure was subsequently adopted in a number of other Singapore cases.
- In Lim Young Sien v PP [1994] 2 SLR 257, counsel for the appellant had proceeded to cross-examine one
of the narcotics officers, without first seeking leave of the court to do so. Yong Pung How CJ noted that
the purpose of the time-honoured practice of applying for leave before counsel embarks on cross-
examining a witness on previous inconsistent statements is to prevent precious judicial time from being
wasted unnecessarily. It is important that the trial judge is satisfied that the previous statement is
‘inconsistent or contradictory’ within the meaning of the section. It is only where the inconsistency is
serious or material that s 147 would be invoked. See also PP v Heah Lian Khin [2000] 3 SLR 609 and the
related cases cited below at pp 238–242.
- Where the cross-examination on previous inconsistent statements concerns the accused himself, there is no
need to apply the procedure in Muthusamy nor for leave of court to be obtained to use the statements:
Logantha Venkatesan & Ors v PP [2000] 3 SLR 677 (see the case extract below at p 237). The Court of
Appeal observed that in view of s 122(5) of the Criminal Procedure Code, any statement made by the
accused was admissible at his trial for the purpose of cross-examining him and impeaching his credit,
provided that it was made voluntarily

Thiruselvam s/o Nagaratnam v PP [2001] 2 SLR 125

• for co asccused statmetn, there is no reqt for voluntariness before using the statement against the person
• Where s 147 Evidence Act is invoked and the previous statement of a witness, who is not the accused
before the court, is used to cross-examine him and to prove the existence of certain facts stated therein,
there is no requirement to prove that the witness made the statement voluntarily — What is required is
proof that the statement was made by him — The question of voluntariness must still be considered in
determining the weight to be attached to the statement — A voir dire is only necessary where use of the
statement of an accused person is contemplated and the accused claims that the statement was not given
voluntarily
• The appellant was charged with abetting Katheraven in trafficking in 807.6 g of cannabis. Katheraven earlier
pleaded guilty to two non-capital charges for supplying cannabis to Sgt Andrew, an agent provocateur. At
the appellant’s trial, Katheraven retracted the material parts of the statements which implicated the appellant.
The prosecution applied to cross-examine him on his previous inconsistent statements with a view to
impeaching his credit. Katheraven disputed that he made the statement voluntarily. The trial judge held that
there was nothing in s 147 of the Evidence Act which required the admissibility of a statement of a witness
to be subject to the additional proof of voluntariness. The statements implicated the appellant in the supply
of the cannabis to him and the trial judge found that they were admissible as proof of the appellant’s guilt.
• On appeal, it was submitted, inter alia, that one such statement (P29) was a confession made by Katheraven
at the time when he was an accused person. There were then criminal proceedings pending against him.
Therefore, s 24 of the Evidence Act applied to that statement, and the trial judge should have conducted a
voir dire to determine whether the statement was given voluntarily.
• Why – dmissibiliyt provision – s147(3)
o No reqt of voluntariness here.
• In tt case, key pros witness was co accused, then he turned, so pros used sttemetns to CNB to cross
ecxamine him
o Evid went in by virtue of 147(3)
• One of grds of appeal was tt witness when gave statement was accused, so s24 and all the TIP tests shd have
applied and shld have held voir dire.
• CA examined the provisions and ocincluded tt confession only relates to person tried at tt time and not to
person hwo at time gave statement was accused but in tt proceedings he was called as witness
o No imposition of vol test
o Therefore tria judge cld hold guilt conviction without voir dire
o TIP still relevant only in tt it affects weight
o (sg courts take very robust view on admissibility)
o ie admissibility and weight are two separate issues)
• always ask whether person cross examined is in capacity of witness or accused – severe implications as to
admissibility or weight
o s24/ s122(5) – issues of vol will bar admissions of statements for accused
o for witness, goes in once proved tt made but matters of vol go to weight
o even if he is an accused, if is in capacity of witness – then arg on vol doomed to fail
• court only grants leave to cross xamine if grds to do so
• LP Thean JA: …
o 40.It is not in issue that Katheraven was at the time he made P29 an accused person in the
proceedings then pending against him, and that the statement was, in so far as it concerned
him, a confession falling within s 17(2) of the Evidence Act. Now, if he were an accused
person in the present proceedings, clearly under s 24 of the Evidence Act the prosecution
would have to prove that he made the statement voluntarily. But in the present proceedings he
was not an accused person; the proceedings were not against him, but against the appellant.
Only the appellant was an accused person; Katheraven was merely a witness. The question
therefore is whether s 24 is applicable with regard to P29, which was a confession made by
Katheraven who was an accused person at the time he made it.
o The wording s24 EA refers in general terms to a confession made by an accused person and
says that it is irrelevant in a criminal proceeding in certain circumstances. There is nothing in
the section to confine these crucial words to a definite or particular accused person or criminal
proceeding. Hence, in a sense these words are capable of a construction which suggests that
the section is applicable to a confession made by a person who, at the time he made it, was an
accused person with reference to the proceedings against him, but who is not an accused
 person in ‘a criminal proceeding’ in which he appears merely as a witness. In our view, we do
not think that such an application was intended by that section.
o 42.This section has to be construed in the context of the meaning of a confession which is
defined in s 17(2) of the Evidence Act as follows: ‘A confession is an admission made at any
time by a person accused of an offence, stating or suggesting the inference that he committed
that offence.’
o In our view, the words ‘accused of an offence’ relate to the offence with which the accused is
being charged and the admission relates to that offence. If the admission relates to some other
offence with which the accused is not being charged or to an offence with which a person
other than the accused is charged, such admission, in so far as the accused is concerned, has
no relevance.
o 43.Reverting to s 24 of the Evidence Act, it seems to us that the words ‘an accused person’
must bear some relevance to the ‘criminal proceeding’, and it follows that the words ‘an
accused person’ means a person who ‘is accused’ of the offence and the words ‘a criminal
proceeding’ mean the criminal proceeding in which that person is accused of the offence, ie
the proceeding in which the accused is charged with the commission of the offence to which
the confession relates. In our opinion, s 24 is confined to a confession made by a person who
is an accused person in the criminal proceedings in which he is being charged. It has no
application where the confession, though made by a person who was at the time he made it an
accused person, is used in other proceedings in which the person who made it is not an
accused person but merely a witness.
o 45.In our opinion, where s 147 is invoked and a previous statement of a witness, who is not
the accused in the proceedings before the court, is used to cross-examine him and also to
prove the existence of certain facts stated therein, what is required to be proved is that the
statement was made by the witness. There is no requirement under s 147 to prove further that
the witness made the statement voluntarily. We are reinforced in our view by the provisions of
s 147(5)
o In this regard, we agree with what the trial judge said in ¶74 of his grounds of judgment: ‘In
my opinion, the safeguards for ensuring the reliability of statements admitted under s 147 are
found in s 147(5). If a statement has been involuntarily extracted from any witness (and all the
more so from a witness who at the time of giving the statement was an accused person), the
weight of that statement admitted for the purpose under s 147(3) may be significantly reduced
although its admissibility per se remains unaffected.’
o 46.Where, however, the witness is an accused person himself, then the application of s 147 is
subject to s 24 of the Evidence Act and also s 122(5) of the Criminal Procedure Code, if the
latter is applicable. In other words, if the statement is a confession, then before the use of that
statement under s 147 it must be proved that the statement was made by the accused
voluntarily. If the statement is not a confession but falls within s 122(5) of the Code, equally it
must be proved that the accused made the statement voluntarily. This requirement is
specifically enjoined by the respective statutory provisions.
o 47.In conclusion, in so far as P29 is concerned, there is no requirement to conduct a voir dire
to determine that it was made by Katheraven voluntarily before it is admitted for cross-
examination or as substantive evidence under s 147 of the Evidence Act. It does not follow,
however, that the court can ignore the question of the voluntariness in the making of the
statement. If it is raised in the process of examination and cross-examination of the witness,
and it is found that the statement was not made voluntarily, that is certainly an important
factor to be considered in determining the weight to be accorded to the statement.

- The High Court has previously observed that although there was strictly no statutory requirement for a voir
dire to be conducted to determine whether a witness, as opposed to an accused person, had given his
statements voluntarily, it was nonetheless good policy and prudent to conduct a voir dire where there is an
allegation that the statement was given involuntarily.
o These observations were made even in recent cases such as PP v Heah Lian Khin [2000] 3 SLR
609 and Yusof bin A Samad v PP [2000] 4 SLR 58.
o With the Court of Appeal’s decision in Thiruselvam s/o Nagaratnam, it is clear that there is no
requirement to adhere to this practice.
 o In practice, where voluntariness of a witness’s statement is in issue, the prosecution will still
call all necessary witnesses in order to establish that the statement was voluntarily made as
the court must ultimately be able to determine the weight to be attributed to the statement.
- Impeachment procedure does not apply to accused persons

Procedure for cross-examining an accused person on a previous inconsistent statement

- The above procedure pertaining to cross-examination on previous inconsistent statements is applicable only
to cross-examination of witnesses other than the accused. When the prosecution seeks to cross- examine the
accused on a previous inconsistent statement made by the accused, there is no requirement to obtain leave of
court.

Loganatha Venkatesan & Ors v PP[2000] 3 SLR 677

- Ex CID inspector’s wife got two men to kill him. On appeal, to arg impeachment proced of the accused
- To impeach the credit of accused, just cross-examine him on the statement instead of going through
the laborious impeachment procedure c.f. muthusamy – to show material and severe discrepancies
- CA felt tt admissibility here is not 147.3
o If pros cn prove tt statement was vol and admissibe, sttemnt admissible ANYWAY. So no need
to rely on 147 and need to prove material and serious discrepancy is unnec.
o Judge does not need to state whether statement is impeached
- Comments: An impeachment of the witness’s credit did not automatically lead to a total rejection of his
evidence. The court must carefully scrutinize the whole of the evidence to determine which aspect might be
true and which aspect should be disregarded. Thus, regardless of whether his credit was impeached, the
duty of the court remained, that is, to evaluate the evidence in its entirety to determine which aspect to
believe.

- By virtue of s 122(5) of the Criminal Procedure Code, the prosecution is not required to go through the
procedure laid down by Taylor J in Muthusamy’s case in cross-examining the accused on his own previous
inconsistent statement
- The third appellant, Julaiha, was convicted in the High Court with abetment of murder by conspiracy. Based
on discrepancies in her evidence in court and her statements to the police, Julaiha was cross-examined for
the purpose of impeaching her credit. The trial judge noted in his grounds of decision that he had taken these
aspects into account in deciding whether her evidence had raised a reasonable doubt. On appeal, the
prosecution submitted that the trial judge ought to have made a specific ruling on impeachment of Julaiha’s
credit. The defence in turn contended that the absence of a specific ruling indicated that Julaiha’s credit was
not impeached. Both arguments were premised on the application of the procedure laid down in
Muthusamy’s case [1948] MLJ 57.
- LP Thean JA: …
o 53.In this case, s 122(2) of the CPC is not applicable for the simple reason that the witness, who
was being cross-examined on the previous statements made to the police, was Julaiha herself, the
accused. Instead, it is s 122(5) of the CPC which is applicable, and under this section any statement
made by her ‘to or at the hearing of any police officer above the rank of sergeant’ was admissible
at her trial, and, as she herself was a witness, the prosecution was entitled to use it in the cross-
examination and for the purpose of impeaching her credit, provided that such statement was
made voluntarily. By reason of this subsection, which was not in existence at the time of
Muthusamy, the prosecution is not required to go through the ‘cumbersome and slow’
procedure laid down by Taylor J. There was no need for the prosecution to apply to court for
permission to use the statements made by Julaiha, whether for cross-examination or
impeaching her credit, so long as the statements were made voluntarily. Section 122(5) does
not require any such permission to be sought.
o Section 147 sets out the procedure to be followed in cross-examining a witness with respect to
previous statements made by him. …
o Next, there is s 157 of the Evidence Act which prescribes the ways in which the credit of a witness
may be impeached. …
o We also do not find in these provisions of the Evidence Act any procedure such as that laid down
by Taylor J which is required to be followed.
 o When the credibility of a witness was sought to be impeached, there was no requirement that the
trial judge must, at any stage of the trial, make a ruling on whether the credit of the witness was
impeached. The court was only required to consider the discrepancies and the explanation
proffered by the witness for the purpose of an overall assessment of his credibility. An
impeachment of the witness’s credit did not automatically lead to a total rejection of his evidence
and the court remained under a duty to evaluate the evidence in its entirety to determine which
aspect of it should be accepted or disregarded
- Notes: It is arguable that notwithstanding the above observations, the court should, as a matter of practice
and prudence, ascertain first whether the discrepancies are material before permitting the prosecution to
embark on cross-examination of the accused on his previous inconsistent statements. Not every
inconsistency will have a material bearing on the case. A fortiori, not every inconsistency will be relevant.
The entire exercise may be counter-productive if the inconsistencies or discrepancies turn out to be
inconsequential.

Hostile Witnesses
- Above method of impeachment
 Need not be done by prosecuting party or defence alone
 Eg if defence witness turns hostile against defence case because of self interest, then defence can
go thorugh impeachemetn process against him too and use the statements instead

– But this is odd – defence in fact arguing that court shld disregard own witness – shld try the following
instead:

- A) S161EA - may wish to refresh memory of witness first

 may not go into impeachemt process straightaway eg where witness not hostile but has forgotten
the evidence because period of time has passed

Refreshing memory
161. —(1) A witness may while under examination refresh his memory by referring to any writing made by
himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court
considers it likely that the transaction was at that time fresh in his memory.
(2) The witness may also refer to any such writing made by any other person and read by the witness within
the time mentioned in subsection (1), if, when he read it, he knew it to be correct.
(3) Whenever the witness may refresh his memory by reference to any document, he may, with the permission
of the court, refer to a copy of such document if the court is satisfied that there is sufficient reason for the
non-production of the original.
(4) An expert may refresh his memory by reference to professional treatises.

- B) S156EA - cross-exam of own witness

– When quite sure of hostility of own witness, may call court to cross examine own witness
– Eg in corruption cases
 Eg charge taker of bribe. Will need to cll giver to testify. His evid is crucial. But
because he has dity hands, there is potential tt he is hostile because he wants to prxt
himself
 But may have statement earlier – nconsitent with court evidence
 Then will want to impeach the witness and use statement earlier
 Since own witness, can only ask open ended questions during evidence in chief --->
witness may be hostile
– So EA s156 allows counsel to cross examine own witness by applying to court. Up to judge to
decide whether to allow cross exam of own witness.
– If witness appears hostile, court may allow cross exam
– Then can ask straightforward leading questions to compare with statement – in eic cld not ask
these qns
– Get out areas of evid materially inconsistent with statement
– S 156 is discretionary. Court usually grants when it sees that the witness is being evasive.
 Questions by party to his own witness
156. The court may, in its discretion, permit the person who calls a witness to put any questions to him, which
might be put in cross-examination by the adverse party.

- Counsel is generally not allowed to cross-examine his own witness: see s 144(1) of the Evidence Act. If
counsel wishes to do so, the court’s leave must first be obtained. In this respect, s 156 of the Evidence Act
provides:
- The court may, in its discretion, permit the person who calls a witness to put any questions to him which
might be put in cross-examination by the adverse party.
- Likewise, counsel is not permitted to impeach the credit of a witness whom he has called, without first
obtaining the court’s permission. Section 157(c) of the Evidence Act provides:
- The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of
the court, by the party who calls him … [emphasis added]
- S145.1.a – qn must not put in motu of witness which he wil echo bac again – cofidication of cl
- Dang for witness to be chosing wat cunsel says
- But overtime, opposing party can cross exmine witness
o Two assumptns – witness called by u will be favourable and pliant to u, if ask leding qn – then
danger tt own witness will be echoing what u want hi to say – inherent danger
o Second assumptn is tt opposing witness likely to be hostie to u andd more resistant to ur cross
exam and likely tt witness x want to ns qn directly
o So court allows u to cross examine and out leading qn to opposing witness
- Where underlying premise disappears, rule x apply – danger of leading qn disappears – therefore when own
witness is hostie, u can cross exaine ur own witness
- This discretion grantd sparingly – two grds, one of which is tt he is defiant
- Rationle extended - See 145(2) – court may prohibit – this means tt eic witness – then find tt own witness
helps defence – the apply unde this sn to bar opponent fr cross examining own witness
- When own witness is poliant to cross examiner – corut can therefore also prohibit
- No hard and fast rule – can be varied

The procedure for treating a witness as hostile

Re Wee Swee Hoon, decd [1953] MLJ 123

- Brown J: … When a witness has given an answer or answers, which the party calling him knows to be in
conflict with some statement or evidence which he has previously made or given, the proper procedure, in
my opinion, is for Counsel then to ask him (as was done in this case) whether he made a statement (or gave
evidence) at a certain place on a certain date. Having heard his answer (whatever it may be) no further
questions should be put at that stage. But Counsel should then hand to the Judge the statement (or record of
the evidence), and apply for leave to cross-examine him under the provisions of section 155 of the Evidence
Ordinance. The Judge, having given the other side an opportunity of seeing the document and making his
submissions on the application, will then give his ruling. That, in my view, is the proper procedure, in a
situation of this kind.

Yuen Chun Yii v PP [1997] 3 SLR 57

- An application to treat a witness as hostile should be made as soon as it was obvious that he was hostile —
Even if resort to s 147 or 157(c) of the Evidence Act was not deemed appropriate, the proper application at
that stage should have been to cross-examine the witness under s 156 of the Evidence Act — Where such an
application is made, the opposing party should be given an opportunity to view the previous conflicting
statement
- The appellant was an officer with the Housing and Development Board. He was involved in processing the
tenancy assignment applications of one Chia. Chia made a profit from the assignments, and he later gave the
appellant $5,000. The appellant was subsequently charged under s 6(a) of the Prevention of Corruption Act
(Cap 241, 1993 Ed). In paragraph 25 of a statement given by Chia to the CPIB (‘the CPIB statement’), he
had said that the $5,000 was given ‘for the [appellant’s] help in the assignment of the tenancies’. During his
evidence-in- chief, Chia suggested that the $5,000 had nothing to do with the appellant’s role in the
assignment of the tenancies. It was thus clear by then that Chia had taken a hostile stand towards the
prosecution’s case. Instead of applying to treat Chia as a hostile witness, the DPP sought to refresh Chia’s
memory by referring him to paragraph 25 of the CPIB statement. At this juncture, the defence was not given
 an opportunity to view the statement. After evidence-in-chief, Chia was cross- examined by the defence. By
then, the prosecution took the view that Chia had turned hostile to their case, and applied to treat Chia as a
hostile witness for the purposes of re-examination. It was only then that the defence was given sight of the
statement. After re-examination by the prosecution, defence counsel was allowed to further cross-examine
Chia on those portions of Chia’s evidence in re- examination which related to the CPIB statement. At the
conclusion of the trial, the appellant was convicted. On his appeal to the High Court, his conviction
was reversed.
- Yong Pung How CJ: …
o 27.The English Court of Appeal has held, albeit in a slightly different context, that an application
to treat a witness as hostile should be made as soon as it was obvious that he was hostile: R v
Pestano [1981] Crim LR 397. The same principle may apply here. On being referred to ¶25 of his
CPIB statement, Chia had not adopted it without qualification. Instead, he had tried to explain what
he meant. It was thus apparent at that stage that he was at least a potentially unfavourable witness,
if not clearly hostile. Assuming that resort to s 147 or 157(c) EA was not deemed appropriate,
the proper application at that stage should have been to cross-examine Chia under s 156 EA,
which provides:
o ‘The court may, in its discretion, permit the person who calls a witness to put any questions to him
which might be put in cross-examination by the adverse party.’
o 28.Section 156 EA itself does not say how such ‘cross-examination’ should take place. In this
regard, some useful guidelines have been laid down by Brown J in Re Wee Swee Hoon, deceased;
Lim Ah Moy & Anor v Ong Eng Say [1953] MLJ 123. …
o 29.… Indeed, the primary safeguard is that the defence should be allowed to view the statement
sought to be referred to. Irrespective of whether the correct procedure was under s 161 EA
(refreshing memory) or s 156 EA (cross- examining one’s own witness), the defence was
entitled to view the statement.
o 30.It is true that s 156 EA is not limited to any particular stage of the examination. The court’s
discretion under s 156 can even be exercised at the re-examination stage, provided the adverse
party is allowed to further cross- examine the witness: Dahyabhai v R 1964 AIR 1563 SC.
However, having elected not to go into the procedure available under s 156 EA when the apparent
inconsistency in Chia’s evidence was first raised, it appeared to me to be unfair for the prosecution
to only refer him to the statement in re- examination. If reference to the CPIB statement was
deemed necessary during examination-in-chief, the entire statement should have been referred to
there and then, at least as soon as it was obvious that Chia was a potentially unfavourable or hostile
witness: see R v Pestano.
o 31.Moreover, while the court’s discretion under s 156 EA is admittedly wide, it is doubtful whether
it should have been exercised in this case in favour of the prosecution during re-examination, in
spite of the objections raised by the defence. This was not a case where the prosecution had
inadvertently omitted to refer to the statement during examination-in-chief. They were obviously
aware of inconsistencies in Chia’s evidence, and had intended all along to refer to the statement.
o 32.The defence was eventually shown a copy of the CPIB statement only during re-examination,
and permitted to cross-examine Chia after re- examination. To this extent, it may be arguable that
no substantial prejudice was in fact occasioned. I would respectfully disagree. By permitting the
prosecution to dictate both when the statement could be produced and whether the defence should
be allowed to view it, these were serious irregularities which resulted in the improper admission of
evidence, at least in so far as ¶25 of the CPIB statement was concerned. In my view, this had
operated unfairly to the defence.

- C) S147(1) & (2)EA - oral or written statements

– Can also cross examine on prev statements which are inconsistent
– Without these provns, court has not right to allow cross exam of prev inconsistent statement

Cross-examination as to previous statements in writing

147. —(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into
writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without
such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those parts of it which are to be used for the
purpose of contradicting him.
 (2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in
question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony,
does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but
before such proof can be given, the circumstances of the supposed statement, sufficient to designate the
particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such
statement.

- D) S157EA - remember there are 4 ways to impeach credit of witnesses

– How do I impeach? (for witnesses not accused)
 See ss.147, 156 and 157 of Evidence Ac
 Locus classicus - Muthusamy [1948] 1 MLJ 57
 Establish from witness’ court testimony discrepancies with his previous statement
(usu. by cross-exam. Apply under s.156 EA if need to cross-exam own witness)
 As prosecutor for eg will have statements of all witneses and acuced statement
 Will compare and see if any discrepancies – then consider if want to go into
impeachment process
 Involves prosecutor prod statemtns, highlighting parts mateiraly inconsistent and
cross examining him with it, asking him to explan
 What if witness says that he did not give the statement voluntarily?
 This is what happends for accused, not so common for witnesses other than accused
 Statements of other witnesses not put in unless impeachemt – cant be used
 No need to go through trial within trial
– Process:
 First have evidence, inconsistent
 underline parts of statement that are inconsitent with evidence in red on 4 coies of
statement on one original, one for court, one for witness, one for dfence lawyer, one
for self
 tender to court
 tell court tt inconsistent with evid of witness
 Apply to court under Section 147(1) of the EA (for defence witness) or
Section156 of the EA (for prosecution witness) to cross-examine witness to
establish discrepancies.
 If court asks for purpose of line of questioning, say relevant to facts in issue or that
you may have an application to make at a later stage
 ask judge tt wish to go through impeacement process against witness – application
for impeachment
 judge will look at statement underlined and evid of witness tt judge has recorded and
determine if inconsisntences are mterial., if they are, then judge will allow
impeacehemtn process to carry on. If of view tt not material, will not allow process
to cont – waste of time.
– Once court allows application, court will direct copy to be served on witness (and to the
defence lawyer).- court may say immaterial and disallow. Alternatively, court may allow ->
 Tender copy to witness and allow him to read statement.
 Ask witness to confirm the language statement made in, the signature on statement
and whether it was made voluntarily – must est whether made statement vol because
this goes to weight of statemenet (impt even though he is not the accused) - and
whether it belongs to him
 If statement is not contested, court will admit and mark the highlighted portions of
the statement
– If witness said statement not made voluntarily, no need to go through a voir dire, as it
affects weight only - Sim Bok Huat Royston v PP [2001] 2 SLR 348, Thiruselvam v PP
[2001] 2 SLR 125
– If witness contests the statement, adduce evidence from the witnesses in the main trial
showing the circumstances surrounding the recording of the statement
 – After statement admitted, explain to the witness the discrepancy and give him a chance to
explain
 To go through each discrepancy
 As he explains, to hear and if lacking and unbelievable, cont to cross examine him.
This is the impeachment process!
– If witness’s explanation is satisfactory, credit is saved.
 Note: With the Court of Appeal’s decision in Thiruselvam s/o Nagaratnam, it is clear
that there is no requirement to conduct a voir doire for witnesses other than the
accused. In practice, where voluntariness of a witness’s statement is in issue, the
prosecution will still call all necessary witnesses in order to establish that the
statement was voluntarily made as the court must ultimately be able to determine the
weight to be attributed to the statement.
 But is GOOD PRACTICE and POLICY to order a voir doire whenever a witness
claims statement made involuntarily.
 Rationale for this – court must have discretion to judge whether to allow
impeachment because otherwise inefficient.

– After satisfying yourself that there are material discrepancies, apply under 157(c) EA if
you want to impeach.
 process x not merely end prior; at end of ful hearing whether oral or written, will arg
tt because of impeachment, witnees evid – uinconsistnecies not acceptable and
therefore credit shld be impeached and evid disregarded => impeachement process
during the evidnce and testimony of witness is for counsel to arg at end tt credit
impeached during closing/ presentation of arg
 So must address on the impeachment!!! To be argd at end of the case that evid to be
disregarded
– However, if you want to substitute evidence as well, apply also under s.147(3) EA - see Sng
Siew Ngoh [1996] 1 SLR 143, Chai Chien Wei Kelvin [1999] 1 SLR 25.
 Tender copy of statement with underlined portion to court for court to determine
whether material discrepancies exist.
 Only relevant parts should be tendered. Prejudicial and irrelevant parts to be
covered up.
• Wong Kim Poh v PP [1992] 1 SLR 289

Effect of Impeachment
- Lim Young Sien v PP
• Any failure to apply for leave to invoke the section is merely procedural.
• It does not in any way prevent a trial judge from invoking the section, provided that all the conditions
are satisfied

- Credit demolished
- Evidence of the witness must be carefully scrutinized – couyrt can then reject the evid on which there
are material discrepancies
– Court may choose toa cept some other parts of the evid – does not mean tt if witness lied on
some areas, other areas not acceptable
– Simnilarly court can still, for witness who has been impeached, which part to accept or reject
(l.oganathan’s case)
- Impeachment does not lead automatically to total rejection of the evidence. The court must scrutinise
the whole evidence to determine which aspect may be true and which may be disregarded- Loganatha’s case
- Regardless of whether credit is impeached, the duty of the court is to evaluate the evidence in its entirety to
see which aspect to believe
- Inconsistent portions still admissible under 147(2) EA – for these, how to asses weight to be given to the
statement?
 – 147(6)

Must court rule that credit is impeached?

- No - Loganatha’s case and Low Siew Hwa Kenneth v PP [2003] 3 SLR 448.
- Regardless of whether credit is impeached, the duty of the court is to evaluate the evidence in its entirety to
see which aspect to believe
- What about an accused?
– Loganatha – prosecutor x have to go through same process as muthsamy because accused
statement is admissible in evid as contrasted in witness statement
– For latter, court to go through the impeachment process
– Section 122(5) CPC applies for accused – if given vol, statement is admissible so
impeachement of accused is correspondingly simple – cross exmine, get inconsistencies, note
down parts of statement ot use, tender to court orig, tender to court and accused and awyer,
and then stragithaway ask accused abt statement – first aks him whether he mde it, signed it,
made vol, x need toshow to the court undelrkined portions and ask about impeachmenet
process. Can straightaway cross examine because it is admissible in evidence
– If he says tt statement given involuntarily because induced or threatned or oppression etc, then
statement cannot be admitted yet – hearing has to pause for trial wihin a trial to take place
– This is the second diff bet witness and accused - for witness, not trial within a trial.
– If statement found vol, then cross eamine on parts inconsistent, then arg tt statement
impeached.
– If invol, cannot go on to examine because statement is inadmissible

Can Defence Counsel apply for statement for the purpose of impeachment under s.122(2) CPC?

- If pros witness stating what you think is inconsistent to police but x have witness’s statement (defence
layers x have the statemtn because not given), defence lawyer can apply for statement of
witness/prosecution to be supplied to him under section 122(2) CPC
 When any witness is called, court shall on request of accused or pros refer to any statement made
by tt wtness to police office rin course of investigation and if court thinks it expedient in interst of
justice,e direct witness to be firnished with copy and statemet may be used to impeach witness
 Note!!! Witness only not accused
- Limited way tt defence lawyer can apply for this to be shown to the court and furnished to defence lawyer
so tt he can go through impeachement process
 Section is limited

- No - Rosli bin Othman [2001] 3 SLR 587

 Appellant charged and convicted under s 354 PC of molesting stepdaughter. During Trial, defence
counsel applied under s 122(2) CPC to be furnished with a copy of the complainant’s statement to
the police in the course of their investigations with a view towards impeaching her. Trial judge
dismissed the application on the basis that the defence were on a fishing expedition for discovery
of the prosecution’s case. Appellant convicted. On appeal
 Not that every time application made, court ot look at witnese statement and direct copy to be
furnished
 Court will nt allow fishing expedition
 If accused in person/counsel to show to court grds tt sttemtn ought to be referred ot because of
material contradiction of statement with evid in court
- Unless and until counsel showed, to the court’s satisfaction, grounds for belief that the witness statement
ought to be referred to because of existence of contradiction
- Held: Appeal:
– Section 122(2) of the CPC can be divided into two limbs:
 The first being the application by the prosecution or defence for the witness
statement, whereupon the court shall refer to it, and
  The second being the court`s discretion, in the interests of justice, to furnish such
statement to the accused, and/or for the purposes of impeaching the maker of the
statement.
– The present appeal dealt with how the word ‘shall’ should be interpreted
– The three cases cited by counsel for the appellant did not assist his arguments that the court
was compelled or obliged under an application under s 122(2) to refer to witness statements to
the police. On the contrary, it reinforced the position that there must be reason to believe that
the evidence which a witness gave in the witness box differed in material particulars from his
police statement before a court was obliged to entertain reference to that statement.
– There must be reason to believe that the evidence which a witness gave in the witness box
differed in material particulars from his police statement. Only when the court was satisfied of
this would they then be obliged to refer to the statement, and in this sense they had no
discretion
– The resultant approach to s 122(2) was this: - unless and until counsel showed, to the
court`s satisfaction, grounds for belief that the witness statement ought to be referred to,
more often than not because the statement was in contradiction to the witness`s
testimony in court, the court shall not refer to the said statement. Once grounds were put
forward, and the court was satisfied that there was reason to believe the existence of such
contradiction or inconsistency, it shall have no choice but to refer to it to determine the factual
basis of the application. On this basis, and this basis alone, the word ` shall ` in s 122(2)
becomes mandatory.
– This approach not only discouraged the abuse of s 122(2), but also served as some form of
sieving mechanism preventing vexatious and groundless applications. It was in the interests of
justice that the court be aware of the contents of the statement to determine the true state of
affairs surrounding the trial, provided there was reason to do so.
– In addition, this approach was consistent with PP v Sng Siew Ngoh, where s.122 was stated to
be a restriction on all statements made out of court, unless expressly provided. Adopting
counsel`s arguments would mean allowing for admission of witness statements by the back
door, thus circumventing the whole restriction cast on statements under s 122(1)
– “…on a purposive reading of s 122(2), it did not compel him [the trial judge] to refer to the
complainant’s statement to the police, for the purposes of deciding if at all the appellant
should be given a copy of that statement; rather, s 122(2) conferred on him a discretion
whether to refer to the statement or not, and Defence counsel had to show why he should in
fact exercise his discretion to do so. This counsel had not done.”

- Comments:
 Not easy in real life for Defence Counsel to satisfy the test propounded in Rosli given the
abovementioned lack of discovery and any obligation on the Prosecution to make available the
statements of its witnesses to the Defence.

Can a police statement used to impeach the credit of the witness be admitted as substantive evidence?

Effect of Section 147(3)EA

- s147(3) - proved statement used to contradict the witness shall constitute substantive evidence
– Substantive evidence - can be relied upon for the truth of the facts stated
– Only inconsistent portions of the statement should be used in substitution of the witness’ oral
testimony in court

- Previously, former statement used for impeachment cannot be admitted as substantive evidence under
s147(3)EA: see Somwang v PP [1992] 1 SLR 850
– Very restrictivce
- But Principal objection was that it would be contrary to the purpose of s 122CPC if s 147(3)EA were to
enable the former inconsistent statement to be used as substantive evidence : see Sagar v PP [1995] 1 SLR
660
- Then sn siew ngoh – 147(3) holds tt can be used as substantive evid
- The position of the law changed after Foong Seow Ngui & Ors v PP [1995] 3 SLR 785
 – Case decided that former statement may be used as evidence of the facts stated therein,
i.e., substantive evidence, under s147(3)EA
– Note that in this case the statement was recorded by Narcotics Officer from CNB and
therefore governed b s 24 EA and not s 122(1) CPC
- Issue finally dealt with in Tan Khee Khoon v PP [1995] 3 SLR 724 and then Sng Siew Ngoh v PP [1996] 1
SLR 143
– In Sng’s case, CJ’s discussed issue extensively.
– Read the case for CJ’s dismissal of arguments against applicability of s 147(3)
Tan Khee Khoon v PP [1995] 3 SLR 724
- The appellant, a police officer, was charged with corruption. It was the prosecution’s case that the appellant
had, amongst other things, received a writing desk from the complainant as gratification. At the trial, the
appellant called one Tan who testified that it was he who had given the desk to the appellant, and not the
complainant. According to Tan’s testimony, the complainant had told Tan that the desk was no longer
wanted. Tan had thus arranged for the desk to be moved from the complainant’s workplace and given to the
appellant. Tan further testified that the appellant was not told whom the desk was from. However, the
prosecution adduced evidence of a previous statement by Tan, where the latter claimed not to have given the
desk to the appellant. Tan’s credit was accordingly impeached. In convicting the appellant, the trial judge
relied upon the truth of the facts stated in Tan’s previous inconsistent statement, ie that Tan was not the one
who gave the desk to the appellant.
- Held: Appeal:
 The Court of Appeal (citing Foong Seow Ngiu v PP) did not deal directly with a situation where a
statement has been made under s 121 of the CPC, by a witness who is not the accused.
 Nonetheless, in view of the disposition of the court to accept that there is no inconsistency in the
application of s 147(3) of the Evidence Act, to a statement under s 122 of the CPC, it should follow
that there is similarly no difficulty in applying the former to a statement made under s 121 but
admissible under s 122(2). In any event, s 122(2) contemplates the operation of s 147(3) of the
Evidence Act.
- Comments: Where the prosecution applies to impeach the credit of a defence witness, the previous
inconsistent statement of the witness is admissible as evidence under s 147(3) of the Evidence Act

Sng Siew Ngoh v PP [1996] 1 SLR 143

- The respondent was charged with voluntarily causing grievous hurt through poking the victim’s eyes with
her fingers, which led to blindness in of one of the eyes. The victim had previously given a statement to the
investigating officer that the respondent assaulted her several times, with the most serious incident being
when the respondent intentionally inserted her finger into both her eyes. However, in court, the victim
changed her stance and testified that the injury was caused when some insecticide accidentally got into her
eyes. The victim also gave a statutory declaration to the effect that she did not wish to proceed with her
complaint against the respondent. The prosecution accordingly applied to impeach the victim’s credit on the
basis of her previous statement to the investigating officer. The trial judge held that he could not rely on the
statement as evidence of the truth of the facts stated therein, and acquitted the respondent. The prosecution
appealed, and the High Court reversed the acquittal
- Held: Appeal:
o When a prior statement is used to impeach the credit of a witness giving testimony in court,
there are two possible sources of evidence: the prior statement or the testimony. The testimony
has been given in court – it may still be considered as evidence. But as a result of the
impeachment process, that evidence may be considered unreliable. For the court to close its
eyes to the evidence in the inconsistent statement may be to deny itself a possible source of
evidence. The very fact of its inconsistency would indicate that either the testimony in court or
the inconsistent statement should contain the truth. What is more, the inconsistent statement
would have been given closer in time to the events related than the testimony at trial. While
the inconsistent statement would not have that inherent reliability which confessions or dying
declarations would have for example, it would be altogether too artificial to exclude it as well
- Comments:
 o Both Sng Siew Ngoh and Tan Khee Koon deal with reference by the prosecution to previous
inconsistent police statements of witnesses other than the accused.
o For such witnesses, there is no express provision in s 122 of the Criminal Procedure Code
which allows, as an exception to the general prohibition in s 122(1), their statements to be
admitted as substantive evidence. As such, the courts have relied on the reasoning that s
122(2) is an exception to the prohibition against s 122(1).
o Section 122(2) makes reference to s 157 of the Evidence Act, and s 157 in turn has to be read
with s 147 of the Evidence Act. Section 147(3) states that the previous inconsistent statement
can be admitted as evidence. See also Rajendran s/o Kurusamy & Ors v PP [1998] 3 SLR 225
(case extract reproduced below at p 260).
- CJ’s comments in Sng’s case
– “It must be emphasized once more that it could not be argued that there is a distinction
between using as evidence and using to impeach. As noted above, this is too subtle a
distinction. Whatever the position at common law, given the clear expression of purpose of the
legislature, any argument against the application of s 147(3) on the basis that there is a
distinction between the use as evidence and use to impeach cannot stand ….”

- Note: s 147(3) does not automatically follow s 157(c) all the time. i.e. u do not necessarily need to use a
previous statement of the accused as substitutative evidence if you for e.g. intend to rely on your own
witness’s story. SO instead, u impeach the credit of the Accused but choose not to use a previous
statement of his if it contradicts your own witnesses’s account.

- Other kind of statements can also be used for the purpose of impeachment and thereafter admitted as
substantive evidence under s147(3)EA
– For example, PI statements, statement of facts in previous case (but note limited weight –
PP v Liew Kim Choo [1997] 3 SLR 699), etc
- The respondent Liew was acquitted of two charges of knowingly living off the earnings of the prostitution of
another person. The prosecution appealed against acquittal arguing that the trial judge erred in concluding
that the case against her was not proved beyond reasonable doubt. They alleged that: (a) Liew procured and
introduced potential customers to a pimp, one Lim who supplied prostitutes to customers; and (b) Liew and
Lim would share the earnings from prostitution. Liew denied knowing Liew or any or his prostitutes and
receiving any money in connection with such activities. Liew, who was charged and tried separately, pleaded
guilty to managing a place of assignation and to living off the earnings of prostitution. He admitted to a
statement of facts prepared by the investigating officer, in which he incriminated Liew. Lim then appeared
as a prosecution witness but later gave evidence which was inconsistent with his statement of facts and his
evidence exonerated Liew. The prosecution successfully applied to cross-examine him on his statement of
facts. The issue before the court concerned the admissibility and evidential value of Lim’s earlier statement
of facts for the purposes of proving the elements of the offence with which Liew was charged. The statement
of facts contained the only evidence suggesting that Liew received the earnings of Lim’s prostitutes.
- Held: Appeal dismmised
o The evidence in this case was largely circumstantial. A conviction could not be justified unless
the inferences needed to be drawn could be drawn beyond reasonable doubt. The only
evidence suggesting that Liew received the earnings of the prostitutes was circumstantial
evidence contained in the statement of facts admitted to by Lim when he pleaded guilty.
o At common law, a guilty plea could not be used except in the proceedings in which the plea
was taken. The fact that Lim pleaded guilty to a related offence was not conclusive proof of
the facts comprising that offence for the purposes of the present proceedings. That said, if the
statement of facts amounted to an admission or confession under the Evidence Act (Cap 97), it
would be prima facie admissible as it came within one of the relevancy provisions of the Act.
In this case, the statement of facts came within the definition of a ‘confession’ in s 17 read
together with s 20 of the Evidence Act and could therefore be used to prove the facts stated.
However, even if the statement of facts was admissible, it would still be accomplice evidence
and it would have to be treated with caution as a consequence of illustration (b) of s 116 of the
Evidence Act.
 o As the evidential status of the statement of facts had been impugned, the prosecution had not
proved the third element of the offence beyond reasonable doubt.
- Per curiam
o A statement of facts should not be accorded the same status as a voluntary confession made in
police custody, because of: (a) the possibility that a person might voluntarily plead guilty to a
charge and admit a statement of facts even though he was innocent, thereby rendering the
statement thoroughly inaccurate; and (b) the fact that the statement was not prepared by the
person admitting it but by the prosecution or the investigating officer and it was not
necessarily based on an interview with the accused.
o It was a well-established principle that in admitting a statement of facts, it did not matter that
the person pleading guilty did not agree with certain particulars which were not material to the
charge against him so long as the major elements comprising the offence were not disputed.

- A Statement of Facts by an accomplice who has pleaded to its contents (i.e. pleaded guilty) can be used to
impeach and substitute the evidence of the accused.
- However, little weight has been attached to the SOF since the facts were prepared by the prosecution and the
accomplice may have own reasons for pleading guilty.
- Conditioned Statements under s 141 CPC at the PI can also be used.

- Can there be a conviction based on a previous inconsistent statement alone???

PP v Sng Siew Ngoh [1996] 1 SLR 143 – yes

- Held: Appeal:
o Though a statement admissible as evidence under s 147(3) cannot corroborate the
evidence of the maker, there is no reason why such a statement itself would require
corroboration. Provided the trial judge is satisfied that sufficient weight, in accordance
with the factors listed in s 147(5), may be accorded to the evidence disclosed in a prior
inconsistent statement, there does not appear to be any reason why a conviction could
not be determined on such evidence alone …
o The dangers of falsification and inaccuracy, to which all out of court evidence is prone, are
recognised and highlighted. So long as these are borne in mind, there is nothing inherently
wrong in admitting inconsistent statements for the truth of the facts contained in them.
- Comments:
o In convicting an accused based solely on a prior inconsistent statement, the court must be
satisfied that a conviction in such circumstances is not unsafe.
o In Lim Young Sien v PP [1994] 2 SLR 257, the Court of Appeal ruled that the trial judge,
having admitted a previous inconsistent statement of a witness, was not obliged to accept the
statement as true as admissibility and weight are two entirely distinct matters that must be
clearly borne in mind

- S122)1) – bar on admissibility

o – that is why prev cases refused to admit as evid
o Admnissoins and confesionsa re cout of court statements and law has right rein on this bcuas
eof fear of concotion and unreliability
o This is why s122(1) – except as prvided, no statement made to police officer under chapter
hall be used in evid other than statement tt is written statement under s141
o This is why 122(5) is exception to general rule – ie tt al statmens to police made after
commencemt of investigation is barred
o Including statements made in course of PI
o Pre sng – courts say tt looking at 122 – does not talk abtu 147(3) and therefore due to the bar
inconsistency statement is iunadmissible, but canb be used to impeach credt
o But in sng, cj Yong felt tt 122(2) talks abt impeachment even though not speciifclly referred to
– 147(3) further talks abt ‘in any proceedings’ – therefore bar in s122 overcome
o Appreciate this fact when reading the cases!

Weight of Facts to be considered? – S 147(6) Evidence Act.

 Cross-examination as to previous statements in writing
147. —(6) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of
this section regard shall be had to all the circumstances from which any inference can reasonably be drawn
as to the accuracy or otherwise of the statement and, in particular, to the question whether or not the statement
was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether
or not the maker of the statement had any incentive to conceal or misrepresent the facts.

- See Sim Bok Huat Royston v. PP [2001] 2 SLR 348 and Chai Chien Wei Kelvin v PP [1999] 1 SLR 25 for
guidance
- • the contemporaneity of a statement with the occurrence
- • the possibility of misrepresentation by the maker
- • explanation of the inconsistency
- • the court must consider the context of the inconsistent portions, which requires that the
whole of the statement be examined
- • the cogency and coherence of the facts to be relied upon
Chai Chien Wai Kelvin v PP
- There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A
court if fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to
reject the other. It is therefore necessary to scrutinise each evidence very carefully as this involves the
question of weight to be given to certain evidence in particular circumstances.

Sim Bok Huat Royston v PP [2001] 2 SLR 348

- The accused police officer Sim was charged with corruptly accepting an unspecified sum of money from
Chua (an infamous moneylender) in return for using his position as an officer to assist the latter in his
affairs, under s 6(a) of the Prevention of Corruption Act.
- The only issue was that of the acceptance of the gratification itself. The prosecution’s case hinged on one
Tan, who gave 2 statements to the CPIB stating that he assisted Chua to hand over an envelope containing
cash to the accused. During the trial, Tan denied that the events described in his statement ever took place.
He allegedly concocted his statements because one of the recording officers had conducted oppressive acts
on him. The judge then ordered a voir dire to ascertain the voluntariness of his 2 statements. The accused
was not allowed to cross-examine the recording officers during the voir dire. After the voir dire, the judge
ruled that the statements were voluntarily made and admissible.
- When the main trial continued, Tan maintained that the statements were false and made involuntarily. The
recording officers also testified during the main trial. The accused’s defence was a bare denial of the receipt
of the money.The judge convicted the accused (primarily on Tan’s previous inconsistent CPIB statements)
and sentenced him to 9 months’ imprisonment. At the appeal, the accused argued first, that he had been
prejudiced because he was not allowed to cross-examine the recording officers during the voir dire; and
secondly, that one of the statements raised serious doubts whether the envelope in question contained cash.
- Held: Appeal:
 There was no statutory provision requiring that a witness’ statement to be voluntary before it
became admissible. It was thus unnecessary and procedurally incorrect for the judge to have
ordered a voir dire to determine the voluntariness of Tan’s statements. To be admissible under
s 147 of the Evidence Act, all that was required was for the prosecution to prove that the 2 previous
inconsistent statements had been made by Tan. While the weight of a witness’ involuntary
statement might be significantly reduced, it remained admissible under s 147 which did not
stipulate a requirement of voluntariness.
- “At this juncture, I pause for a moment to mention that I am aware of the dangers of relying solely on a
previous inconsistent statement of a witness to found a prima facie case for the prosecution, let alone sustain
an entire conviction. Admittedly, the evidence contained in such a statement is potentially unreliable on
three counts: first, it is obviously hearsay, being an out-of-court and hence unsworn assertion, second it is, at
least in this case, the word of a participant in the offence itself who may thus be seen to have had a motive to
lie or frame the accused, and lastly, it is almost always extracted under custodial and interrogative conditions
which greatly increase the risk of false statements”
- Comments:
- Rather, the checklist in s 147(6) applied instead.

Meaning of “Previous inconsistent or contradictory statement”

- The phrase is not restricted to positive oral assertions in court which are contradictory to the contents of a
previous statement.
- If witness falsely claims in his oral evidence to have no recollection of material facts (trying to evade), he
contradicts the essence of his previous statement which contains a detailed account of the facts and it is open
to the court to accept the contents of his previous statement as substantive evidence.

PP v Heah Lian Khin [2000] 3 SLR 609

- He claimed tt cld not remember
- Pros tried to impeach him
- Lower court rejected the application by the proseuciton on grds that what witness said (I forgot) not
materially incosnsitent
- pros appealed
- HC said tt – see above
- Facts: Cpl Tay had given a previous written statement (exh P7I) to CPIB officers in which he related a
detailed account of the surrounding circumstances and events during which he supplied the relevant
information to the respondent. In particular, he admitted that he had been asked by the respondent to provide
tip-offs of impending raids and he had promised to try to do so due to their close friendship. However, when
called to give his oral testimony, Cpl Tay claimed that he could not recall many of the material details
relevant to the three charges. In the light of his oral testimony, the Prosecution sought to impeach Cpl Tay’s
credit with his previous written statement (exh P7I) and to admit it as substantive evidence pursuant to
s 147(3) Evidence Act (Cap 97, 1997 Rev Ed) (“EA”). The district judge disallowed the application on the
ground that there was no material inconsistency between exh P7I and Cpl Tay’s oral testimony. The
Prosecution also sought to refresh Cpl Tay’s memory by referring to exh P7I pursuant to s 161 EA. Cpl Tay,
however, maintained that he could not recall the events described therein. The Prosecution then resorted to
s 45A EA to admit the record of criminal proceedings taken against Cpl Tay earlier in which he had pleaded
guilty to and was convicted of related charges of communicating information to the respondent in
contravention of the OSA. The district judge allowed the application and admitted the record of proceedings
which included the charges and statement of facts, into evidence (exh P8). At the conclusion of the trial, the
judge was of the view that the sum of the evidence did not show that the respondent had reasonable grounds
to believe that the information received by him was protected information, communicated in breach of the
OSA. Accordingly, she acquitted the respondent on all three charges for want of a prima facie case. The
Prosecution appealed.
- Held: Appeal:
o 1) The court must first find that there were serious discrepancies or material
contradictions between the witness’s oral testimony and his prior statement in writing
before it could grant leave to invoke ss 147(1) or 157(c) EA
o (2) In construing the phrase “previous inconsistent or contradictory statement”, a
flexible as opposed to a rigid, semantic interpretation should be adopted. Due to varying
permutations of inconsistent statements, an absolute oppositeness was not essential and the
operation of the statutory provisions should not be so unduly restricted. The court should
compare the oral evidence with the previous statement as a whole to determine whether
they were compatible, congruent or consonant in substance, spirit or form.
o (3) In interpreting s 147 EA, and bearing in mind s 9A Interpretation Act (Cap 1) a
purposive approach should be adopted so as to give effect to the intent and will of Parliament.
Applying a purposive approach, the phrase “previous inconsistent or contradictory statement”
must necessarily encompass a witness who had deliberately and falsely claimed that he was
unable to recall the facts. This construction accorded with the spirit and objectives of s 147(3)
EA and would not unduly broaden the scope of the legislative amendments. The court would
still be required to evaluate the credibility of the witness’s testimony; while the weight to be
attached to the previous statement would continue to be governed by the safeguards set
out in s 147(6) and the factors set out in the case on the subject?
 o (4) In the premises, the district judge applied the wrong approach in determining
whether Cpl Tay’s oral evidence was materially inconsistent with or contradicted his previous
statement exh P7I. The district judge should have assessed whether the alleged lack of
recollection was a lie and stemmed from a deliberate refusal for whatever reason, to
testify as to his true recollection. Taking all the circumstances into account, there were
sufficient grounds to conclude that Cpl Tay lied when he claimed to have no recollection of
the relevant events. Thus, the situation was within the scope of s 147(3) EA and the district
judge should have allowed the Prosecution to proceed to prove and cross-examine Cpl Tay on
the relevant portions of exh P7I.
o (5) The Prosecution’s contention that exh P7I should have been admitted into evidence
pursuant to s 147(4) EA was misconceived. Cpl Tay had not refreshed his memory using
exh P7I and as such, the pre-condition for the exercise of s 147(4) was absent.
- Per curiam:
o (1) Unlike statements made by accused persons, there were no statutory provisions
which subjected the admissibility of a witness’s statement to the requirement of voluntariness.
Although a mere witness was generally not exposed to the danger of pressure or harassment,
such danger could arise with respect to a witness who was an “accomplice” who had either
been dealt with or was not charged. Such a witness would have been either a suspect or an
accused person at the time of recording of the statements. In such circumstances, the same
policy reasons for the statutory safeguards existed regardless of the current status of the
witness. To be consistent with these policy considerations, and as a prudent measure, the court
would generally have to be satisfied as to its voluntary nature before it allowed the admission
of previous inconsistent statements of such witnesses.
o (2) The district judge was not entitled to admit the record of proceedings exh P8
pursuant to s 45A EA and to rely on it as substantive evidence against the respondent.
Section 45A EA was limited to proving the fact that a particular individual had been convicted
or acquitted of an offence, where relevant to an issue in the proceedings, and was intended to
save judicial time and costs in subsequent civil proceedings. It did not create an avenue for the
admission of a previous conviction of a person as substantive evidence against an accomplice
in subsequent criminal proceedings. The error made by the district judge did not, however,
give rise to any failure of justice, so far as it related to the first charge against the respondent.
The statement of facts would have been admissible as substantive evidence in any case (see
[87] – [91]).
o (3) In determining whether there was prima facie evidence showing that the respondent
had any reasonable ground to suppose that the information was protected information
communicated in breach of the OSA, it should be borne in mind that a guilty mind could be
proved by direct evidence of knowledge or by inferring knowledge from the primary facts. If
it was obvious that the information was official secret information, then the mere fact that it
was received from someone working in the government would raise the inference that the
recipient knew or had reasonable ground to believe that it was communicated to him in
contravention of the OSA.

Lee Yuen Hong [2000] 2 SLR 339

- If long time elapsed since police statement recorded, little weight should be given to the statement -
• Caution must always be exercised when admitting a previous inconsistent statement for the truth of its
contents. Although it may have been made voluntarily, the weight to be accorded to it should still be
carefully considered. Lee had given her long statement about 19 months after the incident. Hence, little
weight was attached to its substance due to the lack of contemporaneity.

What action can be taken against the hostile witness?

- Prosecuting a witness for giving false evidence, information, etc (because two inconsistent versions, so
must have lied)
- Contempt of court – s 324 CPC, S 323, S 320 CPC. [Judge will ask W why he refuses to answer – Judge to
inform W that he has power to imprison W for 7 days for contempt. Court will then deal with the W under s
320 CPC]
- Investigation before charging
- Type of offences (examples)
- • Penal Code s 182; s 191; s 193
- • Prevention of Corruption Act - s 28

Illegally Obtained Evidence

- General rule – Court will admit such evidence but there is judicial discretion to exclude if its reception
would operate unfairly against the Accused
- Cheng Swee Tiang v PP [1964] MLJ 291
- R v Sang [1980] AC 402

SM Summit Holdings v PP [1997] 3 SLR 922

- These were two related matters which had their origin in a raid carried out by the Business Software
Alliance (‘BSA’) at the premises of Summit Holdings and Summit CD Manufacture (‘Summit’) pursuant to
two search warrants obtained by BSA before a magistrate in respect of copyright and trade marks offences
allegedly committed by Summit. In support of the application for the search warrants, three statutory
declarations were used. One was that of a private investigator, Jimmy Chew, who deposed that he entered
into a contract with one Tan Siang Yong for Summit to replicate counterfeit masters of CD-ROMs which
Summit did.
- Three search warrants were eventually issued, including one by a High Court judge. BSA proceeded to
execute the warrants. Summit applied by way of criminal revision to quash the search warrants and sought
an order for all the items and documents seized pursuant to the warrants to be returned. Yong Pung How CJ
held that the statutory declaration of the private investigator should have been disregarded in the application
for the search warrant. Nevertheless, his Honour upheld the two search warrants issued by the magistrate on
other grounds but quashed the third search warrant for want of jurisdiction. He ordered all the documents
(and copies) seized pursuant to the first two search warrants and all items seized pursuant to the third search
warrant be returned to the plaintiffs.
- The statutory declaration of the private investigator had to be disregarded as: (i) it revealed that the private
investigator had engaged in illegal conduct in procuring Summit to commit an offence and this illegal
conduct on his part preceded the offence and was designed to bring about the very commission of the
offence; and (ii) it did not reveal that Summit have in their premises copies of the infringing CD-ROMs, as
distinct from merely showing that they lacked a comprehensive procedure in their premises for detection of
counterfeit CDs.
- Held
o Not all forms of illegally obtained evidence were admissible. Distinction between illegality
on the part of the law enforcement officer in the obtaining of evidence of a crime that was
already committed, and on the other hand, illegality that preceded the crime and which was
designed to bring about the commission of the crime. In the former case, illegality was only in
relation to the means of proof of an offence already committed, whereas in the latter, illegality
on the conduct of the law enforcement officer constituted an essential element of the charge.
In the latter, the evidence ought not to be admissible as the illegality and threat to the rule of
law assumed a particularly maglinant aspect.
o Not the usual case of entrapment in the form of a trap purchase, where a law enforcement
officer who is out to trap a seller of counterfeit products pretends to be a genuine purchaser
and purchases a counterfeit product. In such a case the illegality is only in relation to the
means of proof of the offence already committed. What Jimmy Chew did here was to bring
eight counterfeit masters and ask the petitioners to replicate them. The petitioners did in fact
replicate the masters and, on that basis, the complaint was made that the petitioners were
engaged in counterfeiting CDs. This was a clear case where the illegality preceded the
crime and was designed to bring about the commission of the crime
o There are several distinguishing features between Sang and the present case. First, as alluded
to earlier, this was not a typical case of illegality in obtaining the evidence of a crime already
committed but a case where the illegality procured the very offence. Secondly, Sang was a
decision involving the alleged illegality on the part of the police or law enforcement officers;
but this was a case of an illegality on the part of a private investigator. Thirdly, Sang
 concerned the admissibility of evidence, not whether one was entitled to retain the evidence
after an illegal search warrant.
o The court only has a discretion to exclude relevant evidence where the prejudicial effect
outweighs the probative value, and where the evidence is tantamount to a self-incriminatory
admission which was obtained from the defendant, after the offence was committed. The
criteria for exclusion is not that it is obtained illegally but improperly due to trickery, violating
the accused’s privilege against self-incrimination. The court is not concerned with the means
of obtaining the evidence.
- Comments:
o In convicting an accused based solely on a prior inconsistent statement, the court must be
satisfied that a conviction in such circumstances is not unsafe. In Lim Young Sien v PP [1994]
2 SLR 257, the Court of Appeal ruled that the trial judge, having admitted a previous
inconsistent statement of a witness, was not obliged to accept the statement as true as
admissibility and weight are two entirely distinct matters that must be clearly borne in mind

Hearsay Exceptions

- Depositions / statements
- s364 – witness is dangerously ill
- s367 – Deposition of medical witness
- s368 – Deposition of certain other witnesses
- s375 – Record of evidence (of witnesses) in absence of accused
- s369 – Report of certain persons eg. Analyst or registered medical practitioner employed by the Health
Sciences Authority etc. – service of report 10 clear days
- s372 – previous conviction or acquittal (note s374) – See Registration of Criminals Act
- s376 – Proof by formal admission of any fact of which oral evidence may be given in criminal proceedings
(Statement of Agreed Facts included)
- ss378-385 – Admissibility of out-of-court statements or documents as evidence of facts stated
- s382 – Admissibility of hearsay evidence by agreement of parties
- Records from Computer – ss35 and 36
– Evidence Act s35(1) – computer output “shall be admissible if it is relevant or otherwise
admissible according to the other provisions of this Act or any written law and it is” agreed
between parties that neither authenticity nor accuracy are disputed except in a criminal case
where no counsel represented the Accused at time of agreement
- approved process – proof by certificate under s35(3) or shown that there is no reason to doubt
or suspect the truth or reliability of the output and that computer was functioning properly at
all material times

Evidence by ‘videolink’
- s364A – Evidence through live video or live television links (only with the leave of court) if :
- witness under 16 years old
- offences of violence and against women or children
- expedient for justice or
- minister certifies in public interest
- Also used for mentions in Court 26 for remand cases
Silence of the Accused

After defence called

- Accused remaining silent after defence was called (after haw tua tau test calling for his defence) –
- Ie he may choose to testify or not to testify and merely call defence witneses to support his
case
- Not testifying = remaining silent
- Court therefore x have accused evidence on what happened – has to rely on other evid
 - s.196(2) CPC. Court in determining guilt may draw such inferences from the refusal to testify
as appear proper.
- The appropriate inferences will depend on the circumstances of the case, and will be determined by
common sense: Haw Tua Tau v PP [1980–1981] SLR 73.
- The Privy Council in Haw Tua Tau also acknowledged that by virtue of ss 123 and 196 of the
Criminal Procedure Code, the law in Singapore permits adverse comment to be made in
relation to a failure to answer questions before trial or to give evidence at trial: see also Taw
Cheng Kong v PP [1998] 1 SLR 943 and PP v Mazlan bin Maidun [1993] 1 SLR 512 for
further observations on the statutory qualifications to the right of silence.
- Apart from adverse inferences, the accused’s silence may also result in a failure to raise a reasonable doubt
in the prosecution’s case. In cases where a statutory presumption is operative, it may mean that the accused
has failed to discharge his burden of rebutting the presumption on a balance of probabilities. The approach
taken by the court is to assess the totality of the evidence adduced by the prosecution together with any
inference that could properly be drawn from the accused’s silence to determine whether guilt has been
established beyond reasonable doubt.
- Thus, if the evidence taken alone or in combination with other facts clearly calls for an explanation which
the accused ought to be in a position to give, his silence may lead to an inference that he has no
explanation to offer. The inference that may be drawn includes the ultimate inference that the accused is
guilty of the offence charged

PP v Gan Lim Soon [1993] 3 SLR 261

- Evidence must be scrutinised to ensure that the charge is made out beyond reasonable doubt
- No longer a prima facie test
- CJ : but if apart from the disputed facts and credibility of witnesses, there is hard evidence (whether
documents or photographs or what are known as silent facts), which is itself sufficient to constitute a prima
facie case on the charge, the accused cannot choose to remain silent when called upon. If he does remain
silent, the unavoidable result is that the case would have been effectively proved against him beyond
reasonable doubt by default
- Comment:
- In Gan Lim Soon’s case, the respondent had elected to remain silent after his defence was
called on a charge of negligent driving. In reversing his acquittal, the High Court did not
expressly draw an adverse inference from his silence. The High Court held that there was
prima facie evidence permitting inferences of the respondent’s negligence. As the
prosecution’s case on the ‘hard evidence’ was unrebutted, the ‘unavoidable result’ was that the
respondent would be found guilty and convicted.

PP v Poh Oh Sim [1990] SLR 1047 – Remaining silent may not lead to conviction :
- Pros may have crossed prima facie hurdle but might have been probed by defence case and even though
accused silent may be still not be convicted (but in practice accused wont remain silent for fear of adverse
inference)
- Fpr defence to advise client carefully and for accused to make decision himself
- even if the accused remained silent, the court could still acquit him if, having received the evidence against
him, it concludes that the case against the accused was dependent on the evidence of witnesses, and the
credibility of these witnesses had been seriously impinged.

Failure to give evidence in cautioned statement - s122(6) / 123(1) CPC

- If fails to say material facts in cs but says a lot in evidence in court – whether adverse inference can be
drawn against him?
- Court can choose to say tt these are merely afterthoughts - under s123 court can draw adverse inference if
cautoind statement x contain what defence shld say
- Yap Giau Beng Terence v PP [1998] 3 SLR 656 (adverse inference would be drawn only if
accused failed to mention facts which he could reasonably have been expected to mention
upon being charged) – if already mentioned gist of defence, then x matter tt he x say in
cautioned statement
 - Garmaz s/o Pakhar v PP [1995] 3 SLR 701 (High Court ruled that District Judge wrongly
drew adverse inference against appellant for not disclosing alibi defence in s122(6) CPC
statement
- Lau Lee Peng v PP [2000] 2 SLR 628 (to determine what inference to be drawn against
accused for an omission, the court has to consider it in the light of the nature of the omitted
facts in relation to the charge the accused faced)

Tay Kok Poh Ronnie v PP [1996] 1 SLR 185 - ***NO Adverse Inference Drawn***

- No adverse inference arises where the facts in question had already been raised in the accused’s earlier s
121 statement — Where these facts were not even relevant to the charge as framed, the accused is not
expected to say anything in answer to some supposed or speculative charge which the prosecution could
bring but has not
- The appellant was convicted on a charge of corruptly giving gratification to a PUB officer (‘Chua’) who
would be inspecting the work done by the appellant’s firm. Chua was jointly tried with the appellant and
also convicted. The charge alleged that the appellant gave the sum of $100 to Chua through a worker
(‘Goh’) at the worksite. The prosecution’s case, however, was that one Koh, the appellant’s site supervisor,
had been given the money by the appellant to hand over to Goh. When asked to give his s 122(6) statement,
the appellant had said that he had nothing to say. At the trial, the appellant denied giving money to Koh, and
alleged that Koh had fabricated the evidence against him. He maintained that whatever he had stated in his s
121 statement was true and sought to rely on the contents of the statement. However, his application for the
statement to be produced in support of his defence was rejected by the district judge. In convicting the
appellant, the district judge drew an adverse inference from the appellant’s failure to mention in his s 122(6)
statement that the allegation by Koh was a fabrication. Furthermore, he had not denied the charge in the s
122(6) statement.
- Held:
o Short answer would be that accused had already made the denial in his s 121 statement, as even
the single paragraph admitted showed. It would therefore be unfair to draw any adverse inference
against the appellant merely because he did not make the same denial again in the s 122(6)
statement.
o The purpose of s 122(6) of the Criminal Procedure Code (Cap 68) is to encourage accused
persons to disclose their defence early. That being the case, it would be unwholesome to allow it to
be used as a procedural trap for the unwary layman who is accused of a crime. It is unreasonable to
expect him to know the legal subtleties between a long statement made to the authorities and a
short statement. Hence, where an accused stands by his s 121 statement which was made before his
s 122(6) statement, it is often, if not invariably, unfair to draw an adverse inference against him
under s 123 of the CPC for not disclosing his defence again in his s 122(6) statement. Unless the s
121 statement is before the court, the court would not be in a position in such a case to see what
has or has not been said to the investigating authorities. It may be different where the defence does
not wish to rely on the s 121 statement, but that is a separate matter.
o As for the appellant’s failure to even mention Koh in his s 122(6) statement or the fact that he was
not in his office at the relevant time, there is yet another reason for not drawing any adverse
inference against the appellant. This is that an accused is only expected to say things in answer to
the charge. Those are the terms of the s 122(6) notice. He is not expected to say anything in answer
to some supposed or speculative charge which the prosecution could bring but has not. If the
charge is badly drawn up, then the prosecution must reap what it has sown. The court may hold
that an error in the charge is not material under s 162 of the CPC. The court may even alter the
charge under s 163. However, it would be going much too far to expect an accused in his s 122(6)
statement to answer a defective charge on the basis that there had been no error in the charge. An
accused person should be entitled to take the charge as it was read to him

PP v Azman bin Abdullah [1998] 2SLR 704

- The court’s discretion to draw an adverse inference under s 123 of the Criminal Procedure Code must be
exercised judiciously — It is not the law that an adverse inference must be drawn whenever an accused
elected not to say anything in his s 122(6) statement

Failure to State material fact/defence before or during Arrest:

- S 116 illustration (h): 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.

Anand Naidu a/l Raman v PP

- The accused was convicted of drug trafficking. His defence was that he was merely an innocent courier for
one John. He was not aware the items were drugs, but had believed that they were Chinese New Year
‘goodies’ and decorations. However, upon his arrest and thereafter, the appellant never mentioned John or
any other aspect of the story he relied on in court. The Court of Appeal rejected his explanation that his
omission to mention these facts arose from fear upon arrest
- Held:
 This excuse rang hollow particularly in the light of the fact that even after the appellant was formally
charged, and statements taken from him, he still did not divulge anything about John or that he was set-
up by John. He further added that because he was scared he stuck to his story. But he recognised that if
he had at the time of his arrest divulged the role of John in all this, John could have been arrested .
 Ultimately what significance this court should place on a lie must depend on the circumstances
and the issue in dispute. Here, the appellant was asked specifically at the time of his arrest what were
the things he passed to TSL. If he had genuinely thought that the things were Chinese New Year
goodies and decorations why did he deny passing anything over to TSL. This question went to the heart
of the matter: his knowledge of the things he passed over. We had no doubt that the false answers were
given because of a realisation of guilt.

Lee Lye Hoh v PP CCA/5 2000

- Collective instances of failure to mention the defence can fortify the prosecution’s case.