Statements (Confessions, Admissions) of Accused

Persons
Overview:

• Intro: relation to hearsay rule

• Focus on criminal context (will not cover admissibility

of admissions in civil cases – provided for in EA – self-
study)

• CPC regime: admissibility of statements of accused in

criminal cases

o The ‘voluntariness’ requirement: rationales 1

o The ‘voluntariness’ requirement: analysis
• Inducement, threat, promise….
• Oppression
• Effect of drug withdrawal
• Burden and Standard of Proof

o Mixed statements

o Doctrine of confirmation by subsequent discovery of

fact

o Use of confession against co-accused

2
 Intro: Relation to Hearsay Rule

• Prosecution calls W to testify in court: ‘A (accused)

said he stabbed V.’ Oral evidence of A’s statement.

• Prosecution tenders as evidence document which

contains statement signed by A: ‘I stabbed V.’ Written
evidence of A’s statement.

• Prosecution tenders as evidence an audiovisual

recording of A speaking to the camera: ‘I stabbed V.’
Real(?) evidence of A’s statement.
3
• Oral/written/audiovisual evidence of A’s statement is
adduced to prove truth of facts asserted in the
statement (ie, to prove the fact that A stabbed V).

• At common law, the evid is hearsay and generally

inadmissible.

• But it’s admissible if it falls under a hearsay exception.

Admissions and confessions are hearsay exceptions.
In Sg, admissible under certain provisions of CPC.

• Rationale: Lee Chez Kee v PP at [102], Rajah JA: the

‘admissibility [of a confession] is premised on the fact
that it is a statement made against the interest of its
maker and hence inherently more reliable.’
4
 CPC regime: Admissibility of Statements

Statements made by accused admissible under s.258(1)

CPC: ‘Subject to subsections (2) and (3), where any
person is charged with an offence, any statement made
by the person, whether it is oral or in writing, made at
any time, whether before or after the person is charged
and whether or not in the course of any investigation
carried out by any law enforcement agency, is
admissible in evidence at his trial...’ [Formerly s122(5)]

s.258(2): ‘Where a statement referred to in subsection

(1) is made by any person to a police officer, no such
statement shall be used in evidence if it is made to a
police officer below the rank of sergeant.’
5
s.258(3): sets out the so-called ‘voluntariness rule’
(analyzed later). Issue of voluntariness is decided at an
ancillary hearing or a voir dire (trial within a trial): s 279
CPC.

6
 ‘Voluntariness’ Requirement: Context & Rationales
Challenging the assumption about reliability of
confessions: why would accused confess? Was he
‘made’ to confess? Are confessions inherently suspect?
Leo et al, ‘Bringing Reliability Back In: False
Confessions and Legal Safeguards in the Twenty-First
Century’ (2006) Wisconsin L Rev 479, 515-516:
‘the police, prosecutors, judges, jurors, and the media
all tend to view confessions as self-authenticating and
see them as dispositive evidence of guilt. Juries tend
to discount the possibility of false confessions as
unthinkable, if not impossible. False confessions are
viewed as contrary to common sense, irrational, and
self-destructive.’ 7
From Kassin and Gudjonsson, (2005) 24 Scientific
American Mind 32, at 29-31

Three major types of false confession:

(1) Voluntary false confession: ‘People might voluntarily

give a false confession for reasons including a
pathological desire for notoriety; a conscious or
unconscious need to expiate feelings of guilt over prior
transgressions; an inability to distinguish fact from
fantasy; and a desire to aid and protect the real
criminal.’

8
(2) Compliant false confession: ‘the suspect confesses
to achieve some end: to escape an aversive situation,
to avoid an explicit or implied threat, or to gain a
promised or implied reward.’

(3) Internalized false confessions: ‘During interrogation,

some suspects – particularly those who are young,
tired, confused, suggestible and exposed to false
information – come to believe that they committed the
crime in question, even though they did not.’

9
Safeguards:

- Appropriate Adult Scheme;

- audiovisual recording (introduced in 2018): Senior

Minister of State for Law at second reading of Criminal
Justice Reform Bill 2018: ‘[Courts] will be able to take
into account the [suspect’s] demeanour when deciding
on the weight to be accorded to statements. Secondly,
video-recordings also provide an objective account of
the interview, to assist the Court in deciding on any
allegations made about the conduct of the
[questioning].’
10
• Reliability rationale
Poh Kay Keong v PP [1996] 1 SLR 209 at [42]:
‘The purpose or object of [the voluntariness rule] is to
ensure the reliability of a confession and is founded on
the premise that a confession brought about as a
result of an inducement, threat or promise is not
reliable and therefore should be excluded.’

11
• Rationale based on Nemo debet prodere se ipsum
principle
Lord Diplock, R v Sang: ‘The underlying rationale…,
though it may originally have been based upon
ensuring the reliability of confessions is … now to be
found in the maxim nemo debet prodere se ipsum, no
one can be required to be his own betrayer’

• Protective rationale
Ashworth, ‘Excluding Evidence as Protecting Rights’
[1977] Crim L Rev 723 (optional reading)

12
• Disciplinary rationale
Cf. SM Summit Holdings v PP [1997] 3 SLR(R) 138 at
[48]: ‘it is not the business of the court to discipline the
police.’

• Deterrence rationale
PP v Sng Siew Ngoh [1996] 1 SLR 143 at 154, [48]:
‘The basis of the [the voluntariness rule] is not rooted
in the reliability or otherwise of the statement made to
the police, but is intended clearly to prevent any
impropriety on the part of the interrogators.’

13
• Integrity rationale
- S 24(2) of the Canadian Charter of Rights and
Freedoms:
‘…the evidence shall be excluded if it is established
that, having regard to all the circumstances, the
admission of it in the proceedings would bring the
administration of justice into disrepute.’

14
- Ashworth, “Re-drawing the Boundaries of
Entrapment” (2002) Crim L Rev 161,163, quoted by
the S’p HC in Wong Keng Leong Rayney v Law
Society of S’pore [2006] 4 SLR(R) 934 at [52]:
‘...criminal justice would lose its moral
authority if courts did not insist that those who
enforce the law should also obey the law. It is
therefore, at root, a principle of consistency –
that it would be inconsistent for the courts, as
guardians of human rights and the rule of law,
to act on evidence obtained by methods which
violate human rights and/or the rule of law.’

15
- cf Law Society of Singapore v Tan Guat Neo
Phyllis [2008] 2 SLR(R) 239 at [148]: ‘this view
was expressed without the benefit of hearing
arguments about the effect of the EA and the
separation of powers’ (Context of entrapment –
later lecture)

16
 Analysis of the ‘Voluntariness’ Requirement
s.258(3): “The court shall refuse to admit the statement
of an accused... 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 the accused, proceeding from a person
in authority and sufficient, in the opinion of the court,
to give the accused grounds which would appear to
him reasonable for supposing that by making the
statement he would gain any advantage or avoid any
evil of a temporal nature in reference to the
proceedings against him.’
[Voluntariness test. Formerly (i) proviso to s.122(5) of
the pre-2010 CPC and (ii) s. 24 EA.]
17
1. An ‘inducement, threat or promise’ was made
- Clear eg, promise of leniency (eg lighter charge) if
confess to crime.
- cf. situation where the investigating officer warned the
suspect: ‘you’d better tell the truth’
• Lim Kim Tjok v PP (1977, HC) : “It is settled law that
the words `you had better tell the truth` or equivalent
expressions have always been held to import a
threat or inducement.
• But shift in judicial attitude: Lim Thian Lai v PP
(2005, CA) at [18]. “[T]the current view is that the
import of such words should be assessed in the
context of the individual case.”
18
- Is bad treatment alone enough to constitute
‘inducement, threat or promise’? (cf. ‘oppression’ –
will be dealt with later).
PP v Tsang Yuk Chung (HCt, 1988):
‘We did not believe the accused’s testimony that he
was left naked in his cell for about an hour or that
both his hands were handcuffed in front when he
was giving his statement…. In any case,… these
incidents, even if they occurred, did not detract from
the voluntariness of the statement. The accused was
not subject to any inducement, threat or promise
when he gave his statement.’

But now see below on oppression doctrine

19
- Self-perceived inducement: Lu Lai Heng v PP
Accused gave statement ‘under the impression that
his mother could be in trouble because the drugs were
found in her room…. It was his understanding that [the
officers] would let his mother go free in a day or two if
he admitted that he owned the drugs.’

Held: this was the accused’s ‘own perceived

impression’; no officer told him anything to that effect.
‘Such a self-perceived inducement… could not in law
amount to an inducement or promise within the
meaning of s 24 of the Evidence Act’. [This section,
since repealed, contained the voluntariness test which
is now in s.258(3)CPC.]
20
2. The inducement, threat or promise must have
“proceeded from a person in authority”

cf. inducement by a friend.

Police and other law enforcement officers clearly fall

within this category.

What about interpreter assisting police in

interrogation?

21
PP v Lim Boon Hiong

Drug trafficking case. Accused alleged that interpreter

told him that he would get only 5 years imprisonment
and 5 strokes of cane if he made admissions in his
statement.

HCt disbelieved the accused. Obiter: in any case, the

interpreter was in the circumstances not a ‘person in
authority’ for the purposes of the voluntariness test.

Adopted meaning of “person in authority” in Deokinanan

v R: “anyone who has authority or control over the
accused or over the proceedings or the prosecution
against him”.
22
• Interpreter is not “person in authority”. Hence: “If
inducement or promise is made by the interpreter in a
one-on-one conversation with the accused (when the
accused is aware that he is merely an interpreter),…
admissions made by the accused following the
inducement emanating solely from the interpreter
would still be admissible.” [46]
• But: “An interpreter…could in principle be regarded as
a person in constructive authority if his inducement or
promise to the accused was made in the presence of
a person in actual authority provided the accused
subjectively believed, on reasonable grounds, that the
person in actual authority heard the inducement or
promise made by the interpreter and took no step to
dissociate himself from it”. [47] 23
Chin, ‘CPC 2010: Confessions and Statements by
Accused Persons Revisited’:
‘On principles, if the suspect (subjectively) believes…
that the person (because he/she is part of a team of
investigators questioning the accused) proffering the
inducement has authority over his case, then the
general rule should operate to bar the statement…
[because] there is a real risk of a false confession
created by the accused acting on an inducement that
he believes is held out by a person in authority….
Whether an interpreter should be regarded as a
person in authority or not should not depend on the
chance of whether the “person in actual authority”
happens to be around at the time the inducement,
threat or promise is made. It is easy to manipulate 24
such situations’
3. The inducement, threat or promise must have
“caused” the accused to make the statement

Cf. oft-repeated general statement of the voluntariness

test: eg Lim Thian Lai v PP [2006] 1 SLR 319 at
325.
‘There [are] two components in determining
voluntariness, the objective component and the
subjective component. The objective component
relate[s] to determining whether the threat,
inducement or promise was made. The subjective
component relate[s] to determining whether the
threat, inducement or promise, if made, did operate
on the accused’s mind. Both components must be
present before a statement made by the [accused]
should be excluded on the ground that it was not
25
voluntarily made.’
In Lim Thian Lai v PP (CA), police officer allegedly told
accused that if he were to admit to the crime, the
charge would be reduced from murder to
manslaughter, and he would serve only a few years’
imprisonment.
Even if true, subjective limb is not satisfied. Accused
said he did not trust policemen. So he can’t claim
that he relied on the promise made by the police
officer.
CA noted that the accused was not ‘a babe in the woods
who might easily succumb to fear or intimidation. He
is an experienced street operator used to the rough
and tumble of life…. [Not] a man who could or would
be easily broken.’

26
4. The inducement, threat or promise must have
“reference to the charge against the accused”

Poh Kay Keong v PP

‘[1] You still like that [ie, don’t ‘co-operate’], I will

charge your brother, your sister-in-law. They are
house owner. I recommend they [HDB] cheong kong
[confiscate] the house. [2] Your key cannot open the
door why you scared? Won’t get hanged. You give
me a good statement. I know what to do.’

27
In relation to statement underlined in [1]:
Trial judge:
‘[S 24 EA – ie, the voluntariness rule] does not operate
where a confession is made in order to save a third
party, whether a family member or not. In such cases,
the statement would not be rendered inadmissible….’
CA:
‘The purpose or object of s 24… is to ensure the
reliability of a confession and is founded on the
premise that a confession brought about as a result of
an inducement, threat or promise is not reliable and
therefore should be excluded.’ (At 220.)
28
Lord Reid in Customs and Excise Commissioners v
Harz & Anor [1976] AC 760 at 821, cited by S’pore CA
in Poh Kay Keong:
‘Suppose that a daughter is accused of shoplifting and
later her mother is detected in a similar offence,
perhaps at a different branch, where the mother is
brought before the manager of the shop. He might
induce her to confess by telling her that she must tell
him the truth and it will be worse for her if she does
not: or the inducement might be that if she will tell the
truth he will drop proceedings against the daughter.
Obviously the latter would in most cases be far the
more powerful inducement and far the more likely to
lead to an untrue confession. But if this rule were right
the former inducement would make the confession
inadmissible but the latter would not. The law of
England cannot be so ridiculous as that.’ 29
CA, Poh Kay Keong:

The requirement that the ‘inducement, threat or promise

must have reference to the charge’ is satisfied so long
as it ‘was made to obtain a confession relevant or
relating to the charge in question.’

[Followed recently by HC, albeit dicta, in PP v Sulaiman

bin Jumari [2019] SGHC 210.]

30
5. The inducement etc must be “sufficient… 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.”
Two elements: the inducement etc must be:
a) ‘sufficient in the opinion of the court to give the
accused person grounds which would appear to him
reasonable for supposing….’
b) ‘that by making it he would [1] gain any advantage or
avoid any evil [2] of a temporal nature [3] in reference
to the proceeding against him’.

31
Poh Kay Keong

‘[1] You still like that [ie, don’t ‘co-operate’], I will

charge your brother, your sister-in-law. They are
house owner. I recommend they [HDB] cheong kong
[confiscate] the house. [2] Your key cannot open the
door why you scared? Won’t get hanged. You give
me a good statement. I know what to do.’

In relation to [1] – element (b):

‘the “advantage” or “evil” has reference to the

proceedings against an accused person if it was
gained or avoided (as the case may be) by the
making of a statement… relevant or relating to the
charge brought against the accused.’ 32
In relation to [2] [see previous slide]– element (a):

Trial judge: ‘[The statements in [2]] are vague. I do not

see what inducement they carry.’

CA: the statements ‘amounted to a representation to the

appellant that as the key he had could not open the
door to the flat, he had nothing to worry about and
would not be subject to the death penalty and that he
should give a good statement and leave it to the
investigating officer who would make out the
appropriate charge.’

33
Distinguished in Ismail bin Abdul Rahman v PP [2004] 2
SLR 74 at 86-7:
This case said to be different from Poh Kay Keong
because of difference in ‘‘the degree of assurance
(discernible to the reasonable man) allegedly given
to the respective appellants to the police officer
involved. In Poh Kay Keong the appellant was told
that he would not hang, whereas here the appellant
was told that the officer would try to get the appellant
a lighter sentence. As such,…the appellant had no
reasonable grounds for supposing that he would gain
any advantage or avoid any evil of a temporal nature
by giving [his] statements, failing the objective limb of
the voluntariness test….’
Is this reasoning persuasive? 34
Doctrine of Oppression

• Common law: Reg. v. Priestly (1967) 51 Cr.App.R. 1,

adopted in R v Prager [1972] 1 WLR 260, 266:
Oppression ‘imports something which tends to sap,
and has sapped, that free will which must exist before
a confession is voluntary. . . . Whether or not there is
oppression in an individual case depends upon many
elements.... They include such things as the length of
time of any individual period of questioning, the length
of time intervening between periods of questioning,
whether the accused person had been given proper
refreshment or not, and the characteristics of the
person who makes the statement. What may be
oppressive as regards a child, an invalid or an old man
or somebody inexperienced in the ways of this world
may turn out not to be oppressive when one finds that
the accused person is of a tough character and35 an
experienced man of the world."
Even before 2010, Singapore Cts were already
applying this doctrine even though not there was no
explicit statutory provision. Eg of a pre-CPC Act
2010 case, Gulam bin Notan v PP [1999] 1 SLR(R)
498 at [53], CA:
‘It is… well established that the common law concept
of involuntariness by oppression in R v Prager… has
been subsumed under s 24 of the Evidence Act.’

36
Post-2010, now see s 258(3), Expln 1 of CPC:

‘If a statement is obtained from an accused by a

person in authority who had acted in such a manner
that his acts tend to sap and have in fact sapped the
free will of the maker of the statement, and the court
is of the opinion that such acts gave the accused
grounds which would appear to the accused
reasonable for supposing that by making the
statement, he would gain any advantage or avoid
any evil of a temporal nature in reference to the
proceedings against him, such acts will amount to a
threat, inducement or promise, as the case may be,
which will render the statement inadmissible.’
37
Qn: should oppression have been crafted onto the
‘voluntariness’ test? Chin, 2012 article:
‘no…need to link the ground of oppression to that of
voluntariness. It should be a separate ground for
invalidating confessions in situations where there is
just illegitimate pressure [without i.t.p.]’.
The provision (‘Explanation’) on oppression implies that
‘the accused at the time he is suffering from the “acts
of oppression” still has a mind capable of reason, even
as his will to resist making a statement is wilting such
that he accedes to making a statement, he chooses to
avoid the evil. However this does not cohere well with
the requirement that his “free will” must be gone at the
time of the statement, which suggests that there is no
operating mind capable of choice.’ 38
PP v Tan Boon Tat [1990] 1 SLR(R) 287 [upheld [1992]
1 SLR(R) 698]: ‘[accused] was handcuffed
and…made to squat at the car porch for a long time.
All throughout, since the time of his arrest at about
3.30 to 4 o’clock in the afternoon to about 1 am the
following morning, he was not given any food or drink
at all. He was therefore very tired and hungry and
was in a daze and a state of confusion when the
statement was given. It was not disputed that at the
CNB premises, except during the short interval when
the statement was recorded, the accused was at all
times handcuffed…. It was also not disputed that no
food or drink was given to the accused throughout
this period. That was highly inconsiderate of the
officers concerned.’ 39
Tan Boon Tat, con’t:
‘We accept that the accused at the material time was
tired, hungry and thirsty. He was also under great
stress, having regard to the fact that he was in
custody and confronted with a charge of having
trafficked in a substantial quantity of what was
believed to be controlled drugs. But we do not think
that the accused was in such a state of shock,
exhaustion or fatigue that he had no will to resist
making any statement which he did not wish to
make.’

40
PP v Fung Yuk Shing
Trial judge: ‘No explanation was given for the failure to
provide the accused with any sustenance other than
that he did not ask for it…. That was not an
acceptable explanation. When a person is placed
under arrest, those having control over him should
find out for themselves whether he has been fed. It
should not be left to the person to ask; the person
may be too frightened to ask, or he may not know
that he can or need to ask. In the event, the
accused was without food for about seven hours…
and that was compounded by the anxiety of his
arrest and being charged with a capital offence.’
Statement excluded - ‘his free will was sapped’.
41
Fung Yuk Shing v PP [1993] 2 SLR(R) 771 at [17]:
CA: ‘while it is basically a question of fact as to whether
failure to offer an accused food and drink constitutes
a “threat” or an “inducement” which might render any
statement he made involuntary…, there will be
varying degrees of seriousness as far as such
failures are concerned. An accused might be
continually grilled for days on end without being
given food and drink or he might go without such
sustenance for a few hours. The failure to offer
sustenance might be a deliberate ploy to weaken the
accused’s will or it might be a genuine oversight
amidst the flurry of investigative activity.

42
‘[I]t [isn’t] realistic to take the sweeping stand that
every failure to offer an accused sustenance
constitutes a “threat” or an “inducement” of such
gravity as to automatically render any statement he
makes involuntary. There are numerous factors to
be taken into account. In the present case…[, a]t no
point during the interrogation… did [the appellant]
ask for a meal or complain of hunger pangs. He was
medically examined twice…: neither medical report
made any mention of his having been in a state of
collapse or even in a physically weakened state due
to hunger and thirst. [T]he omission to offer the
appellant sustenance … was [not] so serious and
engendered such grave consequences that the
appellant’s will might have been completely 43
overborne.’
Seow Choon Meng v PP [1994] 2 SLR(R) 338 at [33]:
‘Robust interrogation is… an essential and integral
aspect of police investigation. However,… if the
questioning is too vigorous or prolonged, it becomes
oppressive….’ (dictum; ct disbelieved accused’s
allegations)
eg, PP v Lim Kian Tat
One statement was ‘taken during an 18-hour
interrogation with an hour’s break. It was taken
during the fourth night in a row in which the accused
did not have any adequate sleep…. We are satisfied
that the accused had spoken, after the police had
rejected his earlier versions, and had spoken when
he would not have otherwise…. [The statement was]
made in circumstances where there was oppression.’ 44
Post-2010 case on oppression decided under Expln 1 to
s 258(3): Tey Tsun Hang v PP (2014, HC)
1) Expln 1 merely codified existing law. No change. As
before, the ‘litmus test for oppression is whether the
investigation was, by its nature, duration or other
attendant circumstances, such as to affect the
accused’s mind and will such that he speaks when
he otherwise would have remained silent.’
2) No need for an ‘overt act from a person in authority
such as a specific threat, inducement or promise’.
3) Allegations of (a) badgering, (b) room too cold/stuffy,
(c) body search. Held: rejected (b). Neither (a) or (c)
is enough to constitute oppression. Re (a), the
pestering was not ‘so intense that the accused’s mind
and will were sapped.’ 45
• 4) the judge emphasized that where oppression is not
made out and a statement is admitted, ‘this did not
mean that all the contents of [the] statement should
be accepted without question’. The circumstances in
which the statement was taken may nevertheless
affect its weight. As the judge puts it ‘People do say
things that are untrue for a variety of reasons.’

46
Effect of Drugs/Withdrawal Symptoms

Garnam Singh v PP (1994, CA) at [31]:

‘We would conceive that, in order for the effects of
withdrawal from drugs to affect the drug user’s
medical and psychological condition to render any
statement he makes to be involuntary, he must be in
a state of near delirium, that is to say, that his mind
did not go with the statements he was making. Such,
however, was not the case here.’

Cf. Public Prosecutor v Dahalan bin Ladaewa [1995] 2

SLR(R) 124 at [74].

47
Cf. PP v Ismil bin Kadar at [26] (2009 HCt decision, Woo
J):
‘I would respectfully suggest that a drug abuser’s
mind may not go with his statements even if he was
not in a state of near delirium. Thus, a drug abuser
may not be nearly delirious but still be in a state of
drowsiness or confusion such as to make it unsafe
to admit his statement made in such circumstances.’

In this case, while the accused persons suffered

some withdrawal symptoms, they were not serious
enough to affect admissibility of their statements.

Qn: how to rationalise exclusion on the ground of

serious withdrawal/drug effects? See
48
Qn: how to rationalise exclusion on the ground of
serious withdrawal/drug effects?
On the ground of involuntariness (resulting in
inadmissible): Garnam Singh, Ismil bin Kadar?
Discretionary? Dahalan bin Ladaewa (?)
Discretionary – on ground that evid is prejudicial by
reason of unreliability: PP v Sulaiman bin Jumari at
[60]: ‘Turning then to the drug withdrawal, I accepted
that this could operate as a separate ground on
which a court could exercise its common law
discretion to exclude evidence where its prejudicial
effect outweighs its probative value, as indicated by
the guidance given by the Court of Appeal decision
in Kadar.’
49
Burden and Standard of Proof

Panya Martmontree v PP [1995] 2 SLR(R) 806 at [26]:

• burden is on the prosecution to prove the

voluntariness of the confession

(See also s. 106EA and also s.138(2) EA.)

50
• must prove this beyond reasonable doubt.
See also PP v Lim Boon Hiong at [36]: ‘in order for a
confession to be rendered inadmissible under s 24 of
the EA, a trial judge need not find, as a matter of fact
on a balance of probabilities, that there had been
inducement. It is sufficient if there is a reasonable
doubt as to the existence of an inducement and/or
promise.’

• However, it is not the case that ‘the slightest

suspicion of an inducement, threat or promise or of
an assault is sufficient to rule out a statement’ under
the voluntariness rule. (Panya Martmontree at [32])
51
 Mixed Statements

Tang Tuck Wah v PP citing Chan Kin Choi v PP

(decision of Court of Appeal)
‘in dealing with a ‘mixed statement’ both the
incriminating parts and the excuses or explanations
must be considered in determining where the truth
lies. And also, it should be borne in mind that the
incriminating parts are likely to be true whereas the
excuses need not carry the same weight. Therefore,
the learned district judge as a decider of facts was
entitled, on a consideration of the whole of the
evidence before him, to treat the inculpatory parts of
the appellant’s statement as containing matters of
truth, and to reject his explanations he gave
favourable to himself.’ 52
 Confirmation by subsequent discovery of fact
[to be discussed in seminar]

s 27 EA (repealed, now provided in s 258(6)(c) CPC –

next slide):
“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.”

53
• S 258(6)(c) CPC:
“Notwithstanding any other provision in this section —
… (c) when any fact or thing is discovered in
consequence of information received from a person
accused of any offence in the custody of any officer of
a law enforcement agency, so much of such
information as relates distinctly to the fact or thing
thereby discovered may be proved.”

PP v Chin Moi Moi [1995] 1 SLR 297 at 303: ‘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’.
54
Eg from Pulukuri Kottaya
‘I killed X with a knife. I have hidden the knife in the
roof of my house.’
Knife discovered in the roof.
• PP v Chin Moi Moi
‘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…. If there is no
link between the information and the fact discovered,
such information would not be admissible under s 27.’
Q: significance of adding the two words ‘or thing’ in 55
s258(6)(c)?
cf Lam Chi-Ming v R (1991, PC) at 220:
“the rejection of an improperly obtained confession is not
dependent only upon possible unreliability but also upon
the principle that a man cannot be compelled to
incriminate himself and upon the importance that
attaches in a civilised society to proper behaviour by the
police towards those in their custody. All three of these
factors have combined to produce the rule of law
applicable in Hong Kong as well as in England that a
confession is not admissible in evidence unless the
prosecution establish that it was voluntary. This, perhaps
the most fundamental rule of the English criminal law, …
never did admit of the exception to be found in the
Indian and Ceylon Criminal Codes and in a few of the
cases in the late 18th and early 19th century.” 56
 Use of Confession Against Co-Accused
S 258(5) CPC (formerly s 30 EA) (amended in 2018)
“When 2 or more persons are tried jointly in any of the
following circumstances, and a confession made by
one such person affecting that person and any other
such person is proved, the court may take into
consideration the confession as against the other
person as well as against the person who makes the
confession.”
Accused Accused
A B

confession 57
• S 258(5) CPC applies only to a confession.
S 258(7): ‘In this section, “confession”, in relation to
any person who is tried for an offence, means any
statement made at any time by him stating or
suggesting the inference that he committed that
offence.’

s.17 EA:
(1) An admission is a statement… which suggests any
inference as to any fact in issue or relevant fact….
(2) 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.
58
A confession is an admission. But not every admission
is a confession.

‘The term “admission” is the genus of which

“confession” is the species. It is not every statement
which suggests any inference as to any fact in issue or
relevant fact which is a confession, but only a
statement made by a person accused of an offence
whereby he states that he committed that offence or
which suggests not any inference but the inference
that he committed that offence.’ The King v Cooray,
approved by the PC in Anandagoda v The Queen,
291.

59
 General Test for Confession: Anandagoda v R [1962]
MLJ 289 (numbering added)
‘The test whether a statement is a confession is an
objective one, whether to the mind of a reasonable
person reading the statement at the time and in the
circumstance in which it was made it can be said to
amount to a statement [i] that the accused committed
the offence or [ii] which suggested the inference that
he committed the offence.’
Similarly, a little later: ‘The appropriate test in deciding
whether a particular statement is a confession is
whether [i] the words of admission in the context
expressly or substantially admit guilt or [ii] do they
taken together in the context inferentially admit guilt?’
60
[*roman numerals inserted]
In applying this objective test,

– the statement must be looked at as a whole

– it must be considered on its own terms without

reference to extrinsic facts (ie, not to look at other
evidence adduced in the case)

– irrelevant to consider whether the accused intended

to make a confession

61
Quoted Wigmore who in turn quoted from a judgment of
a court in the US:
‘the admission of a fact, or of a bundle of facts, from
which guilt is directly deducible, or which within and
of themselves import guilt, may be denominated a
confession, but not so with the admission of a
particular act or acts or circumstances which may or
may not involve guilt, and which is dependent for
such result upon other facts or circumstances to be
established.’

Anandagoda test followed in Chin Seow Noi v PP (CA,

1993)
62
Cf Tong Chee Kong v PP (CA 1998):

‘for a statement to amount to a confession, it need not

be of a plenary or unqualified nature; it can also be of
a non-plenary nature so long as the statement
connected the accused in some way with the
offence….’

‘Tay in his statement had admitted that he had taken

delivery of the drugs and was in possession of the
drugs and this unequivocally connected him with the
offence with which he was charged.’

63
• s 258(5) CPC applies only where two or more persons
are jointly being tried. Not applicable if separately tried
(eg, Lee Chez Kee v PP) or where only one of them is
charged. See illustrations:

“(a) A and B are jointly tried for the murder of C. It is

proved that A said “B and I murdered C”. The court
may consider the effect of this confession as against
B.

(b) A is on trial for the murder of C. There is evidence

to show that C was murdered by A and B and that B
said “ A and I murdered C”. This statement may not be
taken into consideration by the court against A as B is
not being jointly tried.”
64
• The persons must be jointly tried under specified
circumstances, namely (s.258(5)(a)-(c)):

(a) jointly tried for the ‘same offence’. See s 258(5B):

“offence” includes an abetment of, a conspiracy to
commit, or an attempt to commit, the offence.

(b) “the proof of the facts alleged in the charge for the
offence for which… (A) is tried… would, for each of
the rest of those persons, result in the proof of the
facts alleged in the charge for the offence for which
that person is tried…” Eg, illustr (c).

(c) Charged with different offences but only if they are

of offences specified in s.258(5)(c).
65
• S258(5) CPC applies only to a confession made by A
which affects himself and B, his co-accused.
Illustrn (a): A says: ‘B and I murdered C’.

• Where s 258(5) new CPC applies, the court may ‘take

[A’s confession] into consideration as against [B].’
Previously, Ramachandran v PP [1993] 2 SLR 671, at
680, CA held: ‘On the basis of the decided authorities,
it is abundantly clear that the confession of a co-
accused can only play a supportive role in a criminal
prosecution. It cannot by itself form the basis of a
conviction.’
66
• Law changed a few months later: Chin Seow Noi v PP
[1994] 1 SLR 135 at [84]:

‘…s 30 [EA, now s 258(5) CPC]... allows the

conviction of an accused person to be sustained solely
on the basis of a confession by his co-accused,
provided, of course, that the evidence emanating from
that confession satisfies the court beyond reasonable
doubt of the accused’s guilt.’

Ramachandran v PP said to be per incuriam.

67
Compare general observations made in Lee Chez Kee v
PP [2008] 3 SLR 447 (CA), per V K Rajah JA:
Unreliability of co-accused’s confession, ibid at [102]
• The admissibility of a confession ‘is premised on the
fact that it is a statement made against the interest of
its maker and hence inherently more reliable.’
• ‘In the case of a co-accused’s confession, the part
implicating another accused is most definitely in the
interests of its maker. In this respect, this part of the
confession may not be reliable vis-à-vis the other
accused against whom the confession is admitted
against.’
• Also, accused may have no opportunity to cross-
examine co-accused since latter has right not to
68
testify.
 Rationale for admitting co-accused confession
despite unreliability: ibid at [112]:

‘...s 30 of the EA was designed to avoid a situation in

a joint trial whereby one of the co-accused had
confessed to the charge, and yet, the court was
being asked to perform the intellectually difficult task
of excluding this evidence against the other co-
accused. This means that the court should still be
cautious of the dangers of a co-accused’s
statements, given the potential lack of an opportunity
to cross-examine its maker.’

69
Need to reconsider Chin Seow Noi v PP, ibid, at [113]:

‘I acknowledge that this court has, in a series of cases

since Chin Seow Noi v PP..., ruled that a conviction
may be founded entirely on the confession of a co-
accused alone under s 30 of the EA. Given ... the
law’s seeming concern with the unreliability of a co-
accused’s confession..., it does seem a bit out of the
ordinary for a co-accused’s confession admitted under
s 30 to be attributed so much weight to the extent of it
being able to secure a conviction on its own. The need
to reconsider this decision may come in the future.’

70
Norasharee bin Gous v PP (2017 CA)

• Y, K and N jointly tried with on various charges under

MDA. All convicted.
• N and K sentenced to death and Y to life
imprisonment. (Y had received a ‘certificate of
substantive assistance’ from PP).
• N and K appealed. Y did not. Concentrate on N’s
appeal.

71
• Noting that Chin Seow Noi was given ‘somewhat
negative treatment’ in Lee Chez Kee, CA held at [59]:
‘In our view, Chin Seow Noi … is correct in so far as it
stands for the principle that X may be convicted solely
on Y’s testimony. However, the foregoing discussion
shows that Y’s confession has to be very compelling
such that it can on its own satisfy the court of X’s guilt
beyond a reasonable doubt. In this regard, it would be
relevant to consider the state of mind and the incentive
that Y might have in giving evidence against X. If X
alleges that Y has a motive to frame him, then this must
be proved as a fact…. Of course, Y may well be truthful
despite having an incentive to lie or could be untruthful
despite not having such an incentive.’
72
• Court may ‘refuse to take into consideration [A’s]
confession as against [B]… if the prejudicial effect of
the confession on [B] outweighs the probative value of
the confession’: s.258(5A).

[brief reference to this discretion by the HCt in PP v

Imran bin Mohd Arip [2019] SGHC 155 at [56]-[61]. The
topic of discretion to exclude prejudicial evidence will be
covered in a later lecture.]

73