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CONFESSIONAGAINTS

CO-ACCUSED

WITHOUTPREJUDICE

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DISCOVERY STATEMENT

CONFESSIONMADE TO THE

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ADMISSION&

CONFESSION

Admission & Confession (Section 17 – 31 of EA 1950)

• Section 17 of EA 1950: Admission and confession defined. (Pengakuan dan pengakuan salah ditakrifkan)

• (1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned. (Pengakuan ialah pernyataan, lisan atau dokumen, yang menyarankan sesuatu kesimpulan mengenai sesuatu fakta isu atau mengenai sesuatu fakta relevan, dan yang dibuat oleh mana-mana orang dan dalam hal keadaan yang tersebut kemudian daripada ini).

• (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. (Pengakuan salah ialah pengakuan yang dibuat pada bila–bila masa oleh seseorang yang dituduh atas suatu kesalahan, menyatakan atau menyarankan kesimpulan bahawa dia telah melakukan kesalahan itu).

Admission & confession (Section 17 – 31 of EA 1950)

• Meaning of the word “statement” in the section

• Basically, the word statement refers to something that is stated. It need not be communicated to anyone.

• (The appellant was heard of muttering to himself that he had finished the deceased)

• Per Subba Rao J in Sahoo v State of UP AIR 1966 SC 40 that: “A scrutiny of the provisions of sections 17 to 30 of the Evidence Act

discloses, as one learned author puts it, that statement is a genus (kind/type), admission is the species (categories) and confession is the sub-species (sub-categories)”.

“ Shortly stated, a confession is a statement made by an accused admitting its guilt. What does the expression statement mean? The dictionary meaning of the word statement is the act of stating, reciting or presenting verbally or on paper. The term statement therefore includes both oral and written statements. Is it also necessary ingredient of the term that it shall be communicated to another? The dictionary meaning of the term does not warrant any such extension”.


• Meaning of the word “statement” in the section

• Admission and confession are exceptions to the hearsay rule. The Evidence Act places them in the category or relevant evidence presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true.

• The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be.

• The following illustration pertaining to a written confession brings out the said idea; A kills B; enters in his diary that he killed him, puts it in his drawer and absconds. When he places his act on record, he does not communicate to another; indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the aces of a statement in writing, there cannot be any difference in principle in the case of an oral statement. Both must stand on the same footing”.


• What is admission?

• Section 17 (1) relates to informal admission whilst section 58 of the Act deals with the formal admissions.

• Section 18 to 20 relate to the circumstances in which statements made by different categories of persons may amount to admissions. Section 21 relates to the relevancy of admissions.

• Section 22 and 23 provide exceptions to the admissibility of admissions. The effect of admissions is governed by section 31 of the Act.

• According to section 17 (1) an admission is a statement of fact, whether oral or documentary, made by a party to a case which adversely affects his own interest. The essentials of an admission under section 17 (1) appear to be as follows:

1. It must be a statement. 2. It may be either oral or contained in document e.g. letters, dispositions,

affidavits, plaints, written statements, deeds and others. 3. It should suggest an inference as to fact in issue or relevant fact. 4. It may be one of the persons mentioned in the Act (See section 18, 19 and 20

of EA) 5. It is to be made under the circumstances provided in the Act (See sections

20 to 23 of the Act).

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• What is admission?

• In the case of MA Clyde v Wong Ah Mei (1970) 2 MLJ 163, the respondent had claimed damages in respect of the death of one Soon Ah as a result of his being knocked down by a car driven by the appellant. The learned trial judge found in favour of the respondent, as he held that the bicycle on which the deceased was riding was knocked down from behind by the appellant's car. He held that the onus to explain why the collision took place was with the appellant and as the appellant had chosen not to give evidence, he gave judgment against her. A report made by the appellant to the police about the accident was admitted in evidence and on appeal it was argued inter alia that the evidence had been wrongly admitted.

• Held, dismissing the appeal: (3) the report of the appellant in this case was a first information report and was admissible under sections 17, 18 and 21 of the Evidence Ordinance, 1950.


Categories of

admission

Formal admission

Informaladmission


• What is confession?

• S.17 (2) defines a confession.

• S.24, 25 and 26 of the Act set out the circumstances under which confessions are to be excluded.

• S.28 and 29 describe the situations in which a confession becomes relevant despite section 24.

• S.27 of the Act relates to facts discovered in consequence of information received. The confession of a co-accused is governed by section 30.

• According to Sir James Stephen’s, there are two categories of statement which can amount to confessions.

(1) a plenary confession which refers to a full and direct acknowledgement of guilt. For example, “I killed Ricky”.

(2) Second, non-plenary confession which is not full ad direct acknowledgement of guilt but is an incriminating statement, for example “I am the owner of the gun which caused the death”.

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• Our s.17 (2) of EA 1950 contains two categories of the confession namely: (1) the plenary confession and (2) non-plenary confession.

• Our definition then can be split into two parts i.e. (1) A confession is an admission made at any time by a person accused of an

offence a) Stating that he committed that offence (Plenary confession) and

(2) Suggesting that he committed that offense (Non-plenary confession). Plenary means “complete”, “full”, or “entirely”.

• Distinction between admissions and confessions

• In R v Wong Ah Kin, Burton Ag CJ observed that:

“The Evidence Ordinance defines an admission and a confession, a confession being included under the general definition of admissions. And then under section 21 it makes admissions relevant. The effect of that is that all confessions are relevant and can be proved unless they are excluded by some other section of the Ordinance or by some other rule of law not perhaps contained in the Ordinance”.

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• Distinction between admissions and confessions

• A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him; while an admission usually relates to a civil transaction and comprises all statements amounting to admissions as defined in section 18.

• A confession if deliberately and voluntarily made may be accepted as conclusive in itself of the matters confessed; an admission is not conclusive proof of the matters admitted, but may operate as an estoppel.

• A confession always goes against the person making it; an admission may be used on behalf of the person making it under the Exceptions provided in section 21.

• The confession of one of two or more accused jointly tried for the same offence can be taken into consideration against the co-accused (Section 30). But an admission by one of several defendants in a suit is no evidence against another defendant.

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• Meaning of confession: The Anandagoda objective test

• As stated earlier, our section 17 (2) of EA 1950 contains two categories of the confession namely the plenary confession and non-plenary confession. Our definition then can be split into two parts i.e. A confession is an admission made at any time by a person accused of an offence:

a) Stating that he committed that offence (Plenary confession) and b) Suggesting that he committed that offense (Non-plenary confession).

• In so far as (a) is concerned, there is no difficulty. If a person accused of an offence states expressly that he committed the offence of which he is charged, clearly it is a confession.

• In so far as (b) is concerned, Indian authorities do not seem to accept it. The Privy Council in Pakala Narayana Swami v E AIR 1939 PC 47 did not accept the (b) part of the definition of confession. It stated that:

“Moreover a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession”.

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• However, any doubt about the inferential aspect of the statement constituting a confession in the (b) part of the definition was laid to rest by the Privy Council in the Sri Lankan case of Anandagoda v The Queen [1962] 1 MLJ 289 where the appellant with two others were tried together with conspiracy to murder and with the murder of the deceased, One Adeline, by running her over with a car. The appellant was found guilty of murder.

• The facts are as follows late at night on March 14, 1959, the dead body of a woman was discovered lying at Timbiriwewa near the 27th mile-post on the road between Puttalam and Anuradhapura. A post-mortem examination conducted on March 16, 1959, revealed that the woman was between 20 and 25 years of age, that she had been about seven months advanced in pregnancy, and that her body bore numerous injuries consistent with her having been run over by a motor-car. The case for the prosecution was that the dead body was that of Adeline Vitharana, that her death had been caused by a motorcar being deliberately driven over her dead body at least twice, that the consequent injuries were the cause of her death.

• Besides what appeared to be strong evidence, the prosecution adduced evidence by a police officer who said that the appellant made certain admissions to him while in his charge at the police station on March 22, 1959.

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• On appeal the appellant submitted that the above statements were wrongly admitted in evidence because they gave rise to an inference or inferences prejudicial to the appellant, or suggested the inference that he committed the offence of which he was found guilty, and therefore constituted a confession within the meaning of section 17 (2) of the Ceylon Evidence Ordinance (Which is pari material with the Malaysian Evidence Act 1950).

• Held, dismissing the appeal: 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 that the accused committed the offence or which suggested the inference that he committed the offence. The statement must be looked at as a whole and it must be considered on its own terms without reference to extrinsic facts. The appropriate test in deciding whether a particular statement is a confession is whether the words of admission in the context expressly or substantially admit guilt or do they taken together in the context inferentially admit guilt?

Continue…• Reception of the Anandagoda objective test by the Malaysian

Federal Court

• The Federal Court in Lemanit v PP [1965] 2 MLJ 26 where in this case, the appellant was convicted of the offence of using an arm, to wit by causing a bomb to explode with intent to cause physical injury to persons and property. The evidence established an intent to injure property but did not establish a clear intent to injure persons. The prosecution relied on a confession made by the appellant and recorded by a magistrate. One of the principal grounds of appeal was that the statement was not a confession and should not have been admitted in evidence.

• Held: • (1) the failure to prove both the intents that is the intent to cause

physical injury to person and property is not fatal to a conviction under section 4 of the Arms Offences Ordinance as proof of either intent would suffice and no substantial miscarriage of justice could be said to have occurred in this respect as far as the trial judge's direction to the jury was concerned;

• (2) the statement made by the appellant in this case was clearly inculpatory and therefore the statement was rightly recorded and admitted in evidence as a confession. (Inculpatory evidence is a legal term used to describe evidence that shows, or tends to show, a person's involvement in an act, or evidence that can establish guilt).

Continue…• Reception of the Anandagoda objective test by the

Malaysian Federal Court & Singapore Cases

• The Anandagoda objective test was again followed in Abdul Khalid Bin Abdul Hamid [1995] 1 MLJ 692.

• A Series of Singapore cases which have a similar provision as the Malaysian provision i.e. section 17 (2) of the Evidence Act, further confirmed this test.

• In Suradet v PP [1993] 3 SLR 265, the court held that the words “suggesting the inference that he committed the offence” in section 17 (2) of the Singaporean Evidence Act clearly demands a wider interpretation than that placed by the Indian Supreme Court in Pakala Narayana Swami v E.

• In Tong Chee Kong v PP [1998] 2 SLR 843 it was held that for a statement to amount to a confession, it need not be of a plenary or unqualified nature; it can also be of non-plenary nature so long as the statement connected the accused in some way with the offense.

Continue…• A statement that does not amount to a confession can be used as an admission.

• The Privy Council in a appeal from India held in Ghulam Hussain v R [1950] LR 77 IA 65 state that a statement made under section 164 of the Code of Criminal procedure (similar to our section 115 Criminal Procedure Code) which does not amount to a confession can be used against the maker as an admission. This question has been raised in courts in India and it has been answered in the affirmative.

• See Golam Mohammad Khan v The King Emperor [1924] ILR 4 Pat 327, Abdul Rahim v The King Emperor [1925] AIR Cal 926 and Muhammad Bakhsh v King Emperor [1941] AIR Sind 129.

• An admission is substantive evidence of the fact admitted and is admissible as an exception to the hearsay rule. Per Augustine Paul J in PP v Dato’ Seri Anwar Bin Ibrahim (No.3) [1999] 2 MLJ 1 states:

“A party's own statements are in all cases admissible against himself (see Slatterie v Pooley 6 M & W 664). Thus, s 21 provides, inter alia, that admission are relevant and may be proved as against the person who makes them. An admission is treated as an exception to the hearsay rule and thus admissible. As Sarkar on Evidence (14th Ed) Vol I says at p 309: The ordinary idea of hearsay is what is heard out of court from a non-witness, and admissions are therefore generally treated as exceptions to the hearsay rule”.

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• The statement must either be accepted or rejected as a whole.

In Pika Bewa v Emperor (1912) ILR 39 Cal 855 Holmwood and Sharfuddin JJ. held that:

“where the only evidence of an offence is a statement by the accused and it is relied on by the prosecution as evidence thereof it must be taken as a whole, and nothing must be read into it which is not contained therein. As they said, "it is all the evidence we have; and when the accused's own statement is to be relied upon, it must be taken as a whole”.

• An admission must be based on personnel knowledge. Per Lord Hodson in Compt of Customs v Western Letric [1965] 3 All ER

599 states: “The appellant accordingly seeks to restore the conviction of the respondents

because of their admission that the origin of the goods has been wrongly declared. Their Lordships are of the opinion that the conviction ought not to be allowed to rest on the admission alone. If a man admits something of which he knows nothing it is of no real evidential value. In this case, the admission made by the respondents’ agent was an admission made on reading the marks and labels on the goods and was of no more evidential value than those marks and labels themselves”.

The Evidential value of an admission was explained by Desai J in Ramji Dayawala v Invest Import AIR 1981 SC 2085 states that :

“Admission, unless explained, furnishes the best evidence”.

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• Issue: Can plead of guilty (admission) be admitted as piece of evidence against the accused.

• In Noor Mohamed v Palanivelu [1956] 1 MLJ 114, the plaintiff, suing through his next friend, brought this action for damages against the defendants for personal injuries sustained by him while he was riding on a bicycle along Batu Road after his day's, work at the Customs Office at Kuala Lumpur. He collided with a lorry and fell off his bicycle. The vehicle was driven by the first defendant, a learner driver, at whose side sat R. an instructor, at a school for learner drivers owned by the 2nd defendant. The first defendant was a registered pupil at the school. The plaintiff as a result of that accident sustained injuries though no serious disfigurement but during his period of incapacitation he did not suffer any financial loss. The plaintiff alleged that the first defendant overtook him from the rear swerved to the left across his path and without giving a signal stopped suddenly. The plaintiff swerved to the right to avoid knocking into the back of the lorry and in so doing he hit the rear right side of the lorry, lost his balance and another motor vehicle which was following knocked him. The plaintiff was corroborated by P.W. 3, the driver of the following motor vehicle. The first defendant and R., the instructor, however, denied negligence. The first defendant however had pleaded guilty to a charge of inconsiderate driving before a Magistrate -- for which he was convicted.

• Held: the plea of guilty to the inconsiderate driving was admissible as against the first defendant. Plead of guilty is relevant under section 17 (1), 18, and 21 of EA 1950. But as for the verdict it is not admissible as it is not relevant.

• See Hollington v Hewthorn & Co (1943) 1 KB 587, where at p. 600, Goddard L.J. said: “In the present case, had the defendant before the magistrates pleaded guilty or made some admission in giving evidence that would have supported the plaintiff's case, this could have been proved, but not the result of the trial”.

Confession: The issue voluntary

• S.24 of EA 1950 provides for a confession caused by inducement, threat or promise when irrelevant in criminal proceeding where it states that:

“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”

(Dalam prosiding jenayah sesuatu pengakuan salah yang dibuat oleh orang tertuduh adalah tak relevan jika mahkamah berpendapat bahawa pengakuan salah itu telah dibuat oleh sebab sesuatu dorongan, ugutan atau janji berkenaan dengan pertuduhan terhadap orang tertuduh itu…)


• A confession is irrelevant if it does not satisfy the requirements enumerated in the section.

• Per Sarkaria J in Veera Ibrahim v Maharashtra [1976] 3 SCR 672 states:

“To attract the prohibition enacted in section 24, Evidence Act, these facts must be established:

a) that the statement in question is a confession; b) that such confession has been made by an accused person; c) that it has been made to a person in authority; d) that the confession has been obtained by reason of any inducement,

threat or promise proceeding from a person in authority; e) such inducement, threat or promise, must have reference to the charge

against the accused person; and f) the inducement, threat or promise must in the opinion of the court 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.

• Accused’s statement must be voluntary

• In the celebrated case of Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232, Abdoolcader FJ said that:

“No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement [Ibrahim v R [1914] AC 599, 609 per Lord Sumner)].

• This test was accepted by the House of Lords as the correct approach in Director of Public Prosecutions v Ping Ling [1975] 3 All ER 175, [1976] AC 574 in which the House said that is not necessary before a statement is held to be inadmissible because it is not shown to have been voluntary, that it should be thought or held that there was impropriety in the conduct of the person to whom the statement was made, and that what has to be considered is whether a statement is shown to have been voluntary rather than one brought about in one of the ways referred to.

• It appears from the decision in Ping Lin (ante) that the classic test of the admissibility of an accused's confession that the prosecution must establish beyond reasonable doubt that it was voluntary, in the sense that it was not obtained from him either by fear or prejudice or hope of advantage created by a person in authority, or by opression, should be applied in a manner which is part objective, part subjective.




• In the Privy Council in Wong Kam-Ming v The Queen [1980] AC 247 PC Lord Hailsham of St. Marylebone said (at page 261):

“... any civilized system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilized society it is vital that persons in custody or charged with offences should not be subjected to ill-treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary”.



• In R v Wilson [1981] 1 NZLR 316 the New Zealand Court of Appeal held that confessions obtained by overbearing the will of a person in custody by tactics amounting to compulsion should not be received in evidence and that whether a case is of that kind is a question of fact and degree. The defendant in that case had been subjected to prolonged interrogation in the confinement of a small room which was unfair and oppressive and it was held that there was accordingly oppression and the means employed must be regarded as themselves involving a miscarriage of justice.

Confession: The issue voluntary• Accused’s statement must be voluntary

• Sharma J, in the useful case of PP v Law Say Seck [1971] 1 MLJ 199 where is it decided that it is left to the court entirely to form its own opinion as to whether an inducement, threat or promise held out in any particular case was sufficient to lead the person to suppose that he would gain an advantage of a temporal nature. In doing so the mind of the person making the statement has to be judged rather than that of the person in authority. In scrutinizing a case of this kind the court has to perform a threefold function: It has to determine the sufficiency of inducement, threat or promise; it has to clothe itself with the mentality of the accused to see whether the grounds would appear to the accused reasonable for a supposition mentioned in section 24 of the Evidence Ordinance; lastlyit has to judge as a court if the confession appears to have been caused in consequence of any inducement, threat or promise.

• See also Md Desa Bin Hashim v PP [1996] 1 AMR 59



• In Aziz Muhamad Din v PP [1997] 1 CLJ Supp 523: “Thus what is important is the effect that the inducement,

threat or promise has on the accused”.

• In this respect Brennan J in speaking for the Federal Court of Australia in Collins v R (1980) 31 ALR 257 said at p 307:

“ So the admissibility of the confession as a matter of law (as distinguished from discretion, later to be discussed) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary.

“ The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard; it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.



• It is therefore clear that the inducement, threat or promise must have 'caused' the person to make the statement.

• In the Indian Supreme Court case of Pyare Lal v State of Rajasthan AIR 1963 SC 1094 Subba Rao J said that to determine involuntariness the mere existence of the threat, inducement or promise is not enough.

• As Sharma J said in PP v Law Say Seck & Ors [1971] 1 MLJ 199 one should be able to say that without it the person would not have made a statement. It follows that an inducement, threat or promise per se is insufficient to render the confession inadmissible.



• In the light of the foregoing an accused is obliged to testify in the trial within the trial in order to effectively challenge the admissibility of his statement.

• Lord Edmund – Davies in Wong Kam-Ming v R [1979] 1 All ER 939 states:

“As already been observed, an accused seeking to challenge the admissibility of a confession may for all practical purposes be obliged to testify in the voir dire if his challenge is to have any chance of succeeding”.

• See also R v Brophy [1981] 2 All ER 705



• From the case of Hasibullah Bin Mohd Ghazali v PP [1993] 3 MLJ 321:

(a) in deciding the issue of admissibility of a confession made by an accused person, the onus is not on the accused to show involuntariness but on the prosecution to prove beyond any reasonable doubt that the confession was voluntary. The judge in this case had reversed the onus and disregarded the requirement that the prosecution must prove beyond any reasonable doubt that the confession was voluntary;

(b) in deciding whether or not a statement made by an accused person was obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority, the cardinal point is not so much the state of mind of the police officer but that of the accused.


• In Ibrahim v R [1914] AC 599, the appellant, a private in the Indian Army, was convicted of the murder of a native officer. Shortly after the murder the commanding officer went to see the appellant, who was in custody, and said to him: "Why have you done such a senseless act?" The appellant replied: "Some three or four days he has been abusing me; without a doubt I killed him." No threat or inducement was offered to the appellant before he made this statement. At the trial evidence of this conversation was admitted.

• Held: without deciding whether or not the answer made by a person in custody to a question put to him by a person with authority over him was admissible in evidence, the general circumstances of the case were such, and the preponderance of unquestioned evidence so great, that it was unlikely that the jury were substantially influenced by the disputed evidence, and there was, therefore, no substantial miscarriage of justice as would justify interference by the Board.



• In DPP v Ping Lin [1975] 3 All ER 175, police officers discovered the appellant smoking heroin in his flat in the company of two friends. Substantial quantities of Chinese heroin were found in the flat. The appellant and his two friends were taken into custody. On the following day, after a caution had been administered, the appellant was questioned by a detective superintendent. At first the appellant maintained that he was not a dealer but only a smoker of the drug. He admitted that he had obtained the heroin from 'a man in Gerrard Street'.

• The appellant then said: 'You let me go, and I find you man plenty heroin.' The superintendent replied: 'That can't be done', and continued his interrogation of the appellant. The superintendent suggested to the appellant that he had habitually dealt with drugs in a big way. The appellant then admitted in effect that he was a dealer on a retail scale by saying: 'Yes. All right. But I don't sell much.' He added: 'Let me out, and I'll get you a man with a big packet.' The superintendent again said 'That can't be done'. The appellant then said: 'If I help police, can you help me?'

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• The superintendent replied: 'I can make no deal with you', but then added: 'If you show the judge that you have helped the police to trace bigger drug people, I am sure he will bear it in mind when he sentences you.' The appellant then disclosed the name of his supplier of heroin who was subsequently arrested by the police. The appellant and two others were charged with conspiring with one another and with other persons to contravene the Misuse of Drugs Act 1971. At the appellant's trial, objection was taken to the admissibility of the appellant's verbal statements to the superintendent on the ground that they had been induced by reason of the superintendent's remark concerning the view which a judge might take when he came to sentence the appellant.

• The trial judge ruled that the statements were voluntary and should be admitted. The appellant was convicted and appealed.

• Held - In all the circumstances of the instant case, and particularly in view of the fact that the appellant had made his confession to retail trading before any possible inducement had been made to him, it could not be said that the judge had erred in principle and the appeal would therefore be dismissed.


• PP v Scott Allen Hazlett [2005] 4 MLJ 564 where four accused were jointly charged, and tried under s 302 of the Penal Code for the murder of an elderly woman, one Mdm Seow Saw Poh @ Siew Siaw Poh, on the night of 27 December 1998 at Jalan Tebrau 1, Ukay Heights, Hulu Kelang, District of Gombak, Selangor. They were originally tried before Kang Hwee Gee J on 17 January 2000. The learned judge heard the case only partially. Subsequently, the first accused died while under remand in prison. With the consent of the prosecution and the defence, the case against the remaining three accused was ordered be heard de novo (from the beginning).

• The prosecution, in its endeavour to establish a prima facie case of the offence of murder against all the three accused, relied mainly on the evidence of the prosecution’s key witness, one Haikal Shah bin Muhammad Kamal (‘PW3 ’), who claimed to be an eye-witness as well as an accomplice to the alleged crime. The defence sought to impeach the credit of PW3. There were also issues on the voluntariness of the oral cautioned statement of the first and second accused. The prosecution sought to adduce the oral cautioned statement of the second accused through a woman police (PW14).

Continue…• Held: the prosecution failed to establish a prima facie case: The prosecution had

failed to establish that prima facie the oral statement of the second accussed was voluntary.

First, in the present case, once it appeared to PW14 in the course of the interrogation that the second accused had imparted or about to impart(convey) information crucial for the purpose of prosecution or further investigation, PW14 should have made arrangements for the accused to be brought before another police officer, competent to record a cautioned statement, who was uninvolved in the investigation of the case. In the present case, this was not done although PW14 had ample opportunity to do so.

Second, there was ample time to take down a written cautioned statement, yet no reason given as to why the oral cautioned statement was not reduced into writing.

Third, for the purpose of body examination to ensure that the second accused had not been physically abused, PW14 being a female officer should not have asked the second accused to remove his shirt, and should not have personally carried out the body examination. Such an examination was inappropriate and oppressive. It was high handed and amounted to disrespecting a person’s modesty. The second accused being a male, such body examination should have been carried out by a male police officer.

Confession: The issue voluntary• Cases where expressions used were held to have an involuntary effect:

(1) R v Thompson (1783) 1 Leach 291: “Tell me where the things are and I will be favorable to you”.

(2) R v Blackburn (1852) 6 Cox CC 333: “ A promise of pardon”.

(3) R v Richards (1832) 5 C & P 318: “If you do not tell me all about it, I will send for a constable”.

(4) R v Thomas (1836) 7 C & P 345: “It will be better for you to split and not suffer for all of them”.

(5) R v Fennell (1881) 7 QBD 147: “You had better tell the truth; it may be better for you”.

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(6) R v Kingston (1830) 4 C & P 587: “You had better tell all you know”.

(7) R v Barker (1941) 28 Cr App R 52: “Offer of non-prosecution”

(8) R v Gills (1866) 11 Cox CC 69: “Immunity from prosecution”.

(9) R v Luckhurst (1853) 23 LJMC 18: “If you don’t tell me, I will give in charge of the police till you do

tell me”.

(10) PP v Naikan [1961] MLJ 147: “You had better tell the truth”.


• Cases where expressions used were not held to have an involuntary effect

(1) R v Court (1876) 7 C & P 486: “Be sure to tell the truth”.

(2) R v Reave and Hancock (1872) LR 1 CCR 362: “You had better, as good boys, tell the truth”.

(3) R v Reason (1872) 12 Cox CC 228: “I must know more about it”.

(4) R v Sleeman (1853) 6 Cox CC 245: “Don’t run your soul into more sin, but tell the truth”.

(5) PP v Ramasamy [1991] 1 MLJ 75: “You better tell the truth”.


• The issue of oppression

• Oppression has gained momentum as an additional factor to render a confession as involuntary.

• It can be traced to the pen of Abdoolcader FJ in Dato’ Mokhtar Bin Hashim v PP [1983] 2 MLJ 232 where his Lordship said at page 273:

“It appears from the decision in Ping Lin (ante) that the classic test of the admissibility of an accused's confession that the prosecution must establish beyond reasonable doubt that it was voluntary, in the sense that it was not obtained from him either by fear or prejudice or hope of advantage created by a person in authority, or by oppression, should be applied in a manner which is part objective, part subjective”.

Confession: The issue voluntary• The issue of oppression

• Per Faiza Thamby Chik JC in PP v Chan Choon Keong [1989] 2 MLJ 427 states:

“The other point is whether the cautioned statement was obtained under oppressive circumstances. The relevant facts to be looked at and considered to show what are called 'oppressive circumstances' negativing voluntariness are:

(1) characteristics of the accused; (2) period of time during which he was questioned; (3) length of time during which he was in custody; (4) whether or not he was given opportunities of rest and

refreshment. I find these 'wrongful manners of exercise of authority' by the recording officer and other officers as improper, following R v Fulling [1987] 2 All ER 65 where it was stated at p 69: 'This in turn leads us to believe that 'oppression' ... should be given its ordinary dictionary meaning.

“The Oxford English Dictionary had its third definition of the word 'oppression' and runs as follows Exercise of authority or power in a burdensome, harsh or wrongful manner. Unjust or cruel treatment of subjects, inferiors, etc. The imposition of unreasonable or unjust burden. As it was said in R v Priestley (1966) 50 Cr App R 183 'oppression means something which leads to sap (undermine) and has sapped that free will which must exist before a confession is voluntary”.


• In PP v Chong Boo See [1988] 3 MLJ 292, Edgar Joseph Jr J said that the test of oppression would depend upon subjective considerations such as his age, health, sex and personality.

• Abdoolcader FJ said in Dato’ Mokhtar Bin Hashim v PP [1983] 2 MLJ 232 that

“As to the long and odd hours of interrogation stated in the station diaries this would appear to be suggestive of oppression within the definition by Sachs J in R v Priestly which was adopted in R v Prager”.

• PP v Tan Gong Wai [1985] 1 MLJ 355, the accused was allowed no sleep or refreshments from the time he was brought into the customs office at 8.00pm on 18 April 1981 until his cautioned statement was recorded from 5.15am to 7.20am on 19 April. Edgar Joseph Jr J said that this amounted to oppression.


• In PP v Chan Choon Keong [1989] 2 MLJ 427, the accused was interrogated from 21 to 24 December 1984, and at one time even between 12.45am and 1.00am. He was questions for a whole night with his hands handcuffed behind his back. The statement was recorded from 11.45 am to 2.15 pm. In rejecting the statement as being involuntary, Faiza Thamby Chik said that the least the recording officer could have done was to stop recording the statement at lunch time and continue after lunch.

• In PP v Kamde Bin Raspani [1988] 3 MLJ 289, Zakaria Yatim J rejected the cautioned statement for the reason that the interrogations were carried out after 6.30 pm in violation of rule 20 of the Police (Lock-Up) Rules 1953 which states “Prisoners shall be locked up for the night by 6.30 pm and shall rise and be dressed by 6.30 am”. (See also PP v Lee Chee Meng [1991] 1 MLJ 227).

• Handcuffing of an accused while he is making a statement has been held in some cases to amount to oppression.

• (See PP v Mohd Bin Wan The [1989] 2 CLJ 652, PP v Abdul Rahim Bin Ibrahim Penang Criminal Trial No 47 (58)-15-86, unreported, and PP v Mohd Fuzi Bin Wan The [1989] 2 CLJ 652)


• Section 28 provides that Confession made after removal of impression caused by inducement, threat or promise relevant. (Pengakuan salah yang dibuat selepas terhapusnya sangkaan yang disebabkan oleh dorongan, ugutan atau janji adalah relevan).

• S.28(1) If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant. (Jika sesuatu pengakuan salah yang tersebut oleh apa-apa dorongan, ugutan atau janji itu telah, pada pendapat mahkamah, dihapuskan dengan sepenuhnya, maka pengakuan salah itu adalah relevan”.

Confession: The issue voluntary• Principle and scope

• This section must be read with s.24 of the Act. A confession as is referred to in the latter section will become relevant if made after the impression caused by any such threat, inducement or promise has been fully removed. Once the existence of an inducement, threat or promise has been established there is a presumption of its continuance. The onus is then on the prosecution to prove that the impression caused by the said inducement, threat or promise was fully removed when the confession was made.

• Per Chaturvedi J in Bhagirath v State of MP AIR 1959 states: “Now, there is no doubt that, after their arrest, all the appellants were

beaten and there was also some inducement given. When once the existence of improper inducement, threat or promise has been established so as to bring the case within the provisions of section 24, there is a presumption of its continuance, and the prosecution has to prove that the impression caused by the original inducement, threat or promise was fully removed when the prisoner made the confession”.


• Application of the section a) A case where no attempt was made by the prosecution to prove that the

impression caused by the inducement had been removed.

In Lim Sing Hiaw v PP [1965] 1 MLJ 85, the appellant was tried and convicted for unlawful control of a firearm in contravention of section 57(1) of the Internal Security Act, 1960, and for consorting with armed persons in contravention of section 58(1) of the same Act and was sentenced to death. On appeal it was argued inter alia: (iv) the confession of the accused should not have been admitted in evidence. It appeared that prior to the making of the statement to the police, the accused had been questioned by the Special Branch and according to him he had given a statement as he was threatened that if he did not do so he would be taken into the jungle and shot.

Held: (4) the appellant's subsequent statement was wrongly admitted because there was no evidence to show that the original threat or premises made to the appellant to make the previous statement had been dissipated (abandoned) (5) considering the admissible evidence in this case the appeal must be dismissed because although the statement had been wrongly admitted there had been no substantial miscarriage of justice.


• Application of the section b) A case where the impression caused by a promise was held to

have been removed as shown by the answer given by the accused to the questions asked by the Magistrate.

In Abdullah Bin Awang Bongkok v PP [1956] MLJ 90, the appellant in this case was convicted of murder and sentenced to death. The only point which was argued was whether the confession made by the appellant to a Magistrate should have been admitted in evidence.

Held: (1) the answers to the further questions put to the appellant by the Magistrate made it plain beyond any doubt that the statement was made freely and voluntarily and was properly admitted in evidence under s.24 of the Evidence Ordinance.


• Section 29 provides “Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.” (Pengakuan salah yang selainnya relevan tidak boleh menjadi tak relevan oleh sebab janji akan merahsiakannya, dsb).

- s.29(1) If such a confession as is referred to in section 24 is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make a confession and that evidence of it might be given against him.

Drunk

Unnecessaryanswer

Deception

No warning

Promiseof

secrecy

Section29


• Principle and scope • This section should also be read with section

24 of the Act. It operates as a general rule of inclusion (addition) and states that if such confession as is referred to in section 24 is otherwise relevant, it does not become irrelevant merely because:

a) under a promise of secrecy (dibuat atas sesuatu janji akan merahsiakannnya). If a confession is obtained from a person with a promise that it would be kept a secret, it thereby does not become irrelevant.

See R v Thompson [1836] 7 C & P 345.


• Principle and scope b) In consequence of a deception practiced on the

accused person for the purpose of obtaining it (hasil daripada sesuatu perdayaan yang dilakukan ke atas orang tertuduh itu bagi maksud hendak mendapatkannya).

This part of the section must be read with the rule that illegally obtained evidence is admissible. The court is not concerned with how the evidence was obtained.

However, in such cases the court always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. Per Chong Siew Fai CJ in Goi Ching Ang v PP [1999] 1 MLJ 507 states:

“Fairness requires fair trial which, in turn, needs fair procedure. Fair process requires that the legitimate interests of both the prosecution and the defence are adequately provided for.

Continue…

- While the police ought to be given a reasonable opportunity to question suspects and accused persons, in its investigation, the accused must also be reasonably protected from the danger of extraction of unreliable statements and of statements (even if reliable) by some improper means. Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission”.


• Principle and scope c) When he was drunk (apabila dia mabuk). Although a confession made

by a person when he was drunk is admissible the weight to be attached to it is another matter.

The weight of a confesssion may be affected by the circumstances under which it was made as in the case of R v Spilsbury 7 Car & P 187, where it was alleged that a constable had made the accused drunk and that the latter then made a statement. Coleridge, J. observed:

"A statement made by a prisoner while drunk is not therefore inadmissible as evidence and to render a statement inadmissible it must be obtained by hope or fear. This is a matter of observation for me upon the weight which ought to attach to this statement when it is considered by the jury.“

See also R v Santokh Singh [1933] MLJ 178.


• Principle and scope d) Because it was made in answer to questions which he

need not have answered, whatever may have been the form of those questions (kerana pengakuan salah itu telah dibuat dalam menjawab soalan-soalan yang tidak perlu dijawabnya, walau apa pun bentuk soalan-soalan itu).

Suffian LP in Datuk Haji Harun Bin Haji Idris states “Section 29 of the Evidence Act which clearly provides that if a confession is otherwise admissible, i.e. because the court is satisfied that it was made voluntarily, it does not become inadmissible simply because it was "made in answer to questions which he need not have answered, whatever may have been the form of those questions."

See State of Bombay v Kathi Kalu AIR 1961 SC 1808.

Continue…

- This should not, however, be taken as an open invitation to the authorities to apply pressure to extort confessions from suspects as from the words "appears to the Court" in proviso (a) to subsection (1) of section 15 of the Act and in section 24 of the Evidence Act, it is quite clear that before admitting a statement the court will require sufficient proof that it was made voluntarily.


• Principle and scope e) Because he was not warned that he was not bound to make a confession

and that evidence of it might be given against him. (kerana dia tidak diberi amaran bahawa dia tidak terpaksa membuat pengakuan salah itu dan bahawa keterangan mengenai pengakuan salah itu boleh diberikan terhadapnya).

It must be noted that section 24 of the Act to which this section relates does not require any form of warning to be given. Be that as it may, the question whether an accused person was warned may become relevant to enable the court to decide whether the confession was voluntary. A statement by an accused person is not admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it was not extorted by fear of prejudice or induced by hope of advantage held put by a person in authority.

See R v Voisin [1918] 1 KB 531 & Soudreau v The King [1949] SCr 262.

Confession made to the police

• S.25 provides for Confession to police officer below the rank of inspector not to be proved. (Pengakuan salah kepada pegawai polis berpangkat rendah daripada Inspektor tidak boleh dibuktikan).

• S.25 (1) Subject to any express provision contained in any written law, no confession made to a police officer who is below the rank of Inspector by a person accused of any offence shall be proved as against that person. (Tertakluk kepada sesuatu peruntukan nyata yang terkandung dalam mana-mana undang-undang bertulis, tiada apa-apa pengakuan salah yang dibuat oleh seorang yang dituduh atas sesuatu kesalahan kepada pegawai polis berpangkat rendah daripada Inspektor boleh dibuktikan bagi menentang orang itu).


• Principle and scope• Meaning of the word police officer in the section was

explained by Per Burton ag CJ in the R v Wong Ah Kin [1935] MLJ 169 “Now, it is perfectly clear to my mind that when the Evidence Ordinance says 'Police' it means police…The words 'police officer' must be construed strictly to mean that he is a member of the Police Force and nothing else”. In this case, a statement made to An Assistant Protector of Chinese was held to be admissible on the ground that he was not a police officer within the meaning of this section.

Continue…• In Man Woo v R [1951] MLJ 20 where this was a chandu case.

At the hearing the question was raised as to the interpretation of s. 25 of the Evidence Ordinance. In the present case a statement was made to a Senior Customs Officer. It is true that in a sense the activities of all Government officers engaged in enforcing the law are police duties. It is nevertheless, in my opinion, entirely contrary to the ordinary use of language to describe officers so engaged as Police officers. Further, the addition of the words "below the rank of Inspector" can only have reference to that body ordinarily known as the "Police" and which is governed by the Police Ordinance

• Per Sharma J in Chua Beow Huat v PP [1970] 2 MLJ 29 states “I am consequently of the view that a customs officer is not a "police officer" within the meaning of s. 25 of the Evidence Ordinance”.

Confession made to the police• Principle and scope

• In Public Prosecutor V. Tay Yam Peng [1951] 1 LNS 67 the Court of Appeal followed Man Woo V. Rex [1951] 1 LNS 50 and held that the words "police officer" in s. 26 of the Evidence Ordinance were to be given their ordinary everyday meaning and that following that test a chandu officer was not a police officer within the meaning of s. 26 of the Evidence Ordinance”.

• Section 2 of the Police Act 1967 (Act 344) defines him as a member of the Royal Malaysian Force.

• In PP v Tay Yam Peng [1951] MLJ 144, the Court of Appeal hold that a Chandu Officer is a not a police officer.

Continue…

• Per Abdul Aziz J in Koh Jok Sim v PP [1966] 2 MLJ 50 states “It is fairly well settled that s. 113 of the Criminal Procedure Code and ss. 25 and 26 of the Evidence Ordinance do not apply to excise officers and there is nothing in law to prevent the answers given to an excise officer by a person subsequently accused of an offence from being used in evidence subject to the important proviso that the Court is satisfied that the answers were voluntarily given”.

• Similar decision was made by Wan Suleiman F.J. in Abdul Ghani bin Jusoh & Anor v Public Prosecutor [1981] 1 MLJ 25 and Barret v PP [1982] 2 MLJ 284 relating to a statement of an accused person recorded by a Probationary Police Inspector. A Probationary Police Inspector is regarded as a person below the rank of an Inspector.


• Application of the section

a) A report containing a confession made to a police officer below the rank of an inspector will be excluded.

See PA Anselam v PP [1941] MLJ 157 where in the present case it was an admission of a fact which would tend to prove the guilt of the accused, and amounted to a confession. Having been made to a police officer below the rank of Inspector it is excluded by section 25 of the Evidence Enactment.



b) In order to render a statement admissible there must be evidence to show that the officer to whom it was made was not below the rank of inspector.

In Yee Ya Mang v PP [1972] 1 MLJ 120 where the appellant was charged under section 9(a) of the Arms Act, 1960 for having in his possession a pistol and three rounds of ammunition, without an arms license or an arms permit. The pistol and the three rounds of ammunition were not found in the house occupied by the appellant but at a spot in a rubber estate pointed out by the appellant. In the course of police investigation the appellant said that he had a revolver. Subsequently he took the police officer to the spot where the revolver was found.

Continue…

• The spot pointed out by the appellant was a pit, covered by pieces of wood, underneath which was found a plastic bag. Inside this plastic bag was a stocking containing the subject matter of the charge. About an hour earlier the appellant had taken the police to a different spot in another rubber estate from where a toy pistol was recovered.

• Held: (1) the confession made by the appellant was inadmissible under section 25 of the Evidence Ordinance as there was no evidence to show that the police officer to whom it was made was not below the rank of inspector.

Badges of Rank of Senior Police OfficersInspektor General Polis (IG)

Deputi Inspektor General Polis (DIG)Komissioner Polis (CP)

Deputi Komisioner Polis (DCP)Senior Asistan Komisioner I (SAC I)

Senior Asistan Komisioner II (SAC II)Asistan Komisioner Polis (ACP)

Superintandan Polis (SUPT.)Deputi Superintendan Polis (DSP)Asistan Superintendan Polis (ASP)

Cif Inspektor (C/INSP)Inspektor (INSP)

Inspektor Percubaan (P/I)

Badges of Ranks of Junior Police OfficersSub-Inspektor (SI)Sarjan Mejar (SM)

Sarjan (SJN)Koperal (KPL)

Lans Koperal (L/KPL)Konstabel (KONST)

Confession made to the police while in custody

• S.26 provides for the Confession by accused while in custody of police not to be proved against him. (Pengakuan salah oleh tertuduh semasa dalam jagaan polis tidak boleh dibuktikan bagi menentangnya).

• S.26 (1) Subject to any express provision contained in any written law, no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Sessions Court Judge or Magistrate, shall be proved as against that person. (Tertakluk kepada sesuatu peruntukan nyata yang terkandung dalam mana-mana undang-undang bertulis, tiada apa-apa pengakuan salah yang dibuat oleh seseorang semasa dia berada dalam jagaan seseorang pegwai polis boleh dibuktikan bagi menentang orang itu melainkan jika pengakuan salah itu dibuat di hadapan seorang Hakim Mahkamah Sesyen atau Majistret).


• Principle and scope

• Whilst section 25 of the Act relates to a confession made to a police officer, this section is concerned with a confession made by anyone to a third person while he is in the custody of a police officer. In order to be admissible it must be have been made in the immediate presence of a sessions court or magistrate. This section also applies to all categories of police officers.

• In Lee Yew Seng v PP [1967] 1 MLJ 215 the appellants were charged with robbing a goldsmith's shop. There was ample evidence at the trial to show that the appellants took active part in the robbery but at the trial a confession made by the first appellant while he was in the custody of the police was admitted in evidence. The appellants were convicted and they appealed.

Continue…

• Held: the confession was inadmissible. Ong Hock Thye FJ states “Such a confession was manifestly inadmissible and ought to have been excluded. Its maker was in the custody of a police officer and section 26 of the Evidence Ordinance clearly provides that whilst in such custody, no confession made by any person, unless made in the immediate presence of a president of the sessions court or magistrate, shall be proved against such person. Here, the evidence clearly showed that the first appellant was in the company and custody of the officer commanding the police district when he made his confession”.


• Meaning of the word custody

• In Sambu v R [1947] MLJ 16 where it was held, (1) that the accused's statement to the police officer that he had taken the cloth from Godown 14 was improperly admitted in evidence, contrary to Section 26 of the Evidence Ordinance, as it was a confession made by him while he was in the custody of a police officer. Brown J states “There is nothing technical about being in custody. A person is in custody when he is in a state of being guarded and watched to prevent his escape. In order to answer the question of whether the appellant was in custody at the time when he is alleged to have made the statement it is only necessary to consider what would have happened if, at that time, he had tried to run away”.

• (See also PP v Salamah Bte Abdullah [1947] MLJ 178).

Confessions made to a magistrate

• Under this section, a confession made to a magistrate is admissible.

• In Chong Teng v PP [1960] MLJ 153, Held: (1) the statement in question amounted to a confession and by reason of section 26 of the Evidence Ordinance a confession made by a person while in custody is only admissible if it is made in the immediate presence of a Sessions Court President or a Magistrate.

• In Muka Bin Musa v PP [1964] 30 MLJ 275, Held: in the absence at the trial of any evidence to cast doubt upon the correctness of the appellant's statement it could not be said that there was any possibility of such substantial misinterpretation as to destroy the force of the confession. (Appeal dismissed).

Continue…• It is also not objectionable for a police officer to

inform a person of his right to make a confession before a magistrate.

• Per Ong CJ in Yap Chai Chai v PP [1973] 1 MLJ 219 states:

“for the mere fact that this appellant was informed by a senior police officer of the proper way to set about making his confession by doing so before a magistrate was by itself not intrinsic evidence of coercion, inducement, threat or promise, which this appellant had expressly denied as motivating his decision”.



a) A confession made by a person to a doctor when he is in the custody of the police is inadmissible under this section. See Eng Sin v PP [1974] 2 MLJ 168

b) Failure to object to the admissibility of an inadmissible confession does not render it admissible. See Packiam v PP [1972] 1 MLJ 247 & Wong Kok Keong v R [1955] MLJ 13 at p 16 at page 16.

c) The effect of the improper admission of a confession. It would depend on whether there was other evidence to justify a conviction. See Lee Yew Seng v PP [1967] 1 MLJ 215.


• Section 25 v section 26

• A confession admissible under section 25 of EA 1950 would be excluded if the provisions of section 26 of the Act apply. Willan CJ in Tan Shu En v PP [1948] MLJ 196 states “It is also beyond doubt that, if the confession made to Mr. Kandiah was not excluded by the provisions of section 25 of the Evidence Ordinance, it would still be inadmissible under section 26, on the ground that the second appellant was in “police custody” at the time of making it”. In this regard, under section 25, the relevant question is “To whom was the question made?” If the answer is that it was made to a police officer below the rank of an Inspector, it is excluded. Under section 26, the question is “Under what circumstances was the confession made?” If the answer is that the confession was made while the accused was in police custody, such confession shall be excluded unless it was made in the immediate presence of the Session Court Judge or Magistrate.

Confession & the issue of discovery statement• Section 27 provides on “How much of

information received from accused may be proved”. (Setakat mana maklumat yang diterima daripada tertuduh boleh dibuktikan) (1) 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 that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. (Apabila sesuatu fakta dideposkan sebagai telah didapati hasil daripada maklumat yang diterima daripada orang yang dituduh melakukan kesalahan semasa dalam jagaan sesorang pegawai polis, maka sekian banyak daripada maklumat itu yang jelas berhubungan dengan fakta yang didapati secara demikian boleh dibuktikan sama ada maklumat itu terjumlah kepada pengakuan salah atau tidak).

Confession & the issue of discovery statement

• Faced with this obstacle or to get around the objection to the admissibility of the confessional statement, the prosecution often rely on s. 27 of the Evidence Act, which permits information whether it is confessional or not to be admitted provided such information leads to the discovery of the relevant fact. This section is an exception to the law of confession as contained in sections 24, 25, and 26 of the Act. Under this section, a statement made by a person while in custody of the police, whether it amounts to a confession or not, is admissible provided that the conditions prescribed in the section are strictly complied with.

• Note: If the confession is admissible, then there is no need to resort to section 27. But if the confession is inadmissible, then the prosecution may wish to rely on section 27 to admit at least a part of the accused’s statement. It should also be noted that section 27 also applies where the information given by the accused does not amount to a confession but for example merely shows he had had knowledge of where the stolen items was hidden. In Pulukuri Kotayya v E AIR 1947 PC 67, Sir John Beaumont in delivering the judegement of the Privy Council said that “Normally the section is brought into operation when a person in police custody produces from some place of concealment some object such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused”.


• Rational for this section

• This section renders a self-incriminatory statement admissible if such statement can properly be regarded as information relating distinctly to a fact thereby discovered. In Pulukuri Kotayya v E AIR 1947 PC 67, the court said that the section seems to be based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that the information is true and accordingly can be safely allowed to be given in evidence.


• Conditions of admissibility under section 27 of EA 1950• The section requires proof of the following facts before it

can be invoked namely: a) the information must have been received from a person accused of an offence; b) such person must have been in the custody of a police officer at the time of giving the information; c) a fact must have be deposed to as having been discovered in consequence of such information; and d) so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.


• a) The information must have been received from a person accused of an offence. In other words, the accused himself gave the information

• Per Suffian LP in Chong Soon Koy v PP [1977] 2 MLJ 78 states “It is submitted that the information supplied by the accused was not admissible, since he was arrested under s. 73(1) ISA and at the time he gave the statement he was not "a person accused of any offence" within s. 27. There is no merit in this argument, since these words mean "a person accused at the time or subsequently of any offence”.

• The prosecution must prove beyond reasonable doubt that the accused did give the information. As stated in PP v Basri Bin Salihin [1993] 1 CLJ 420 & Krishnan Ramar [1987] CLJ 145)

• The police officer to whom the information was supplied ought to give evidence of the discovery of the fact before giving evidence of the information See Tan Hung Song v R [1951] MLJ 181 where the examination in chief would proceed on these lines: Did the accused speak to you? Yes. As result of what he said what did you do? I took the accused to his house. What did you find? I found this knife which was concealed in the roof) The police officer should not merely state that in consequence of what the accuse told him he did so and so (See Tham Fatt v R [1954] MLJ 172).



• Even if the information was given involuntarily it is still admissible under the section: See PP v Er Ah Kiat [1966] 1 MLJ 9; Thurtell and Hunt (1824), Notable British Trials, pp. 144 and 145 & Queen v. Murugan Ramasamy [1964] 3 WLR 632 at p. 636. Per Raja Azlan Shah J also states in Chandrasekaran v PP [1971] 1 MLJ 153 that “Section 27 is a concession to the prosecution. It is the express intention of the legislature that, even though such a statement is otherwise hit by the three preceding sections viz., s. 24-26 of the Evidence Ordinance, any portion thereof is nevertheless admissible in evidence if it leads to the discovery of a relevant fact. The reason is that, since the discovery itself provides the acid test, the truth of the statement that led to the discovery is thereby guaranteed. Admissibility of evidence under s. 27 is in no way related to the making of the confession; rather, such evidence is admitted on clear grounds of relevancy as directly connecting the accused with the object recovered”.



• However, in Md Desa Bin Hashim v PP [1995] 3 MLJ 350, the Federal Court ruled that section 27 is governed by section 24 of the Act. Gopal Sri Ram JCA states that “…to qualify for admission under s. 27, it must have been made voluntarily. A discovery made in consequence of a confession extracted by illegitimate means in the sense described in s. 24 is inadmissible”. In Goi Ching Ang v PP [1999] 1 MLJ 507 a different panel of the Federal Court re-instated section 27 of the Act as an independent provision. Chong Siew Fai CJ said “It will thus be seen from the judicial pronouncements that the independence and distinctiveness of s. 27 of the Evidence Act 1950 and its being regarded as an exception to s. 24 thereof are deeply rooted in our case-law, and so far as we are aware, has stood unchallenged for decades”.

• However, due to the lack of language-nexus between s. 27 on the one hand and s. 24 and comparable provisions in other enactments on the other hand, the apparent intention of the legislature, and the long line of past decisions of our courts not a few of which were from eminent members of the appellate and the highest courts, any departure from the entrenched judicial interpretation laid down in the above quoted and other numerous cases would be a policy decision and should, in our view, be left to the legislature. (See also Francis Anthonysamy vPP [2005] 2 CLJ 481)

• However in PP v Krisna Rao a/l Gurumurthi [2000] 1 MLJ 274 Kang Hwee Gee J states “the law is clear where the presiding judge is vested with the discretion whether to admit or not to admit any evidence, he is bound to exercise his discretion by applying the test whether the prejudicial effect of its admission would outweigh its probative value”

Confession & the issue of discovery statement• b) Such person must have been in the custody of a police officer at

the time of giving the information

• The meaning of the word “custody” is not restricted to custody of a person after formal arrest. The effect of information given before a person is taken into custody: The general rule under this section is that when the information is given the accused must have been in custody of the police. However, even where a person is not in the actual custody of the police at the time of giving the information he may be deemed to have submitted himself to such custody when he gave the information. In the Indian Supreme Court case of State of UP v Deoman Upadhyaya [1961] 1 SCR 14 Shah J said “When a person not in custody approaches a police officer investigating an offence and offers to give information leading to discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police”. This argument is rationale of the Federal Court’s decision in Soh Ten Seng v PP [1964] MLJ 380 where information received from the accused through the telephone when he was not in the actual custody of the police was held to be the information for the purposes of section 27.


• c) A fact must be deposed to as having been discovered in consequence of such information

• What is the fact discovered?: The fact discovered is not the item (the murder weapon for example) but more towards a psychological fact that the accused had knowledge of the place where the object was found. In Pulukuri Kottaya case, the court said that the fact thereby discovered was the place where the object was found and the accused’s knowledge as to this. Sir John Beaumont in Pulukuri Kottaya’s case gave the rationale for including the knowledge of the accused person when he said: “It is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Suffian LP in Chong Soon Koy v PP states “What was the fact discovered? The fact discovered embraces the place from which the pistol and ammunition were produced and the knowledge of the accused as to this”.

• There must be proof of some fact discovered as a result of the information given by the accused before the section can be invoked: Per Murray-Aynsley CJ in Hamiron Bin Mat Udin v PP [1948] MLJ 50 states “It was claimed by the prosecution that it was as a result of the statements made by accused that the body was found; and also that it was because of accused's statement that the Police Inspector was able to identify the body by the rope round the neck. It is to be observed, however, that there is no evidence on the record to suggest that the body was found at the place which was pointed out by the second accused - indeed there was no evidence at all as to where the body was found or by whom. Moreover the body was identified by both the second and fourth prosecution witnesses without reference to the rope round the neck. …So section 27 has no application”. See also PP v Tan Ngak Phiew [1990] 2 CLJ 843



• Where there is discovery without any evidence of information within the meaning of the section then the section has no application: Per Ong J in Gurusamy v PP [1965] 1 MLJ 245 states “Section 27 clearly had no application in this case. Evidence of the discovery of the stolen property was admissible without having to invoke the section, the only purpose of which is to render self-incriminatory statements admissible if such statements can properly be regarded as information relating distinctly to the fact thereby discovered. The appellant was never alleged to have made any statement. Hence, negative evidence on this point must necessarily be held in his favour, because had he given any information, such information should have been given in evidence by the police officer who heard it”.

• Whether the thing recovered must have been hidden: The use of the word discovered in section 27 of the Act would appear to suggest that the thing recovered should in the first place have had the characteristic feature of having been hidden. In MP State v Dhannalal Moruji [1961] 2 Cr LJ 238, Krishnan J said that “…the discovery…should be the finding of something which had been partly or wholly concealed and which might not have been found out, at least at that time, except as a consequence of the statement. When there is no concealment obviously there is no discover”.



• If the police had prior knowledge of the existence of the thing discovered then the section has no application: As was appropriately stated in the Indian case of Amin v. State AIR [1958] All 293 that the recovery of the articles cannot be described as a discovery under s. 27 where they are not recovered from any hidden place and if in the normal course of investigations the investigating agency is bound to see them and take them in possession without the accused making any statement of pointing them out. It has become a normal device of the investigating agency to turn an ordinary recovery into a discovery to utilize the provision of s. 27 against the accused. See also PP v. Liew Sam Seong [1982] 1 MLJ 223 & Md Desa Hashim v PP [1995] 3 MLJ 350.

• PP v Basri Bin Salihin [1994] 2 MLJ 476 Visu Sinnadurai J considered the question of what constitutes prior knowledge of the fact by the police and said that it would appear that in most cases any prior knowledge by the police that the accused had in his possession or had hidden drugs in a particular place, though the exact and specific location had not been identified, would make the subsequent confession of the accused inadmissible under section 27 in so far as to the fact relates to the accused’s knowledge of the drugs or the place where the drugs were found.

Confession & the issue of discovery statement• d) Admissibility of information upon proof of requirements of

section

• Upon proof of the elements discussed above then so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

• Under this section only the information which relates distinctly to the discovery of the fact is admissible: Per Hashim Yeop A Sani J in PP v Toh Ah Keat [1977] 2 MLJ 87 states “Section 27 of the Evidence Act however deals with a very special type of statement which even if self-incriminatory is nonetheless admissible under that section provided that the conditions prescribed are strictly complied with”. The law on s. 27 of the Evidence Act was dealt with conclusively by the Privy Council in P Kottaya v. Emperor AIR 1947 PC. In that case the statement challenged was, "I stabbed with a spear. I hid the spear in a yard in my village. I will show you the place." The Privy Council held that the whole of the statement was admissible except the first part. Meaning of the word distinctly in the section: Per Sharma J in Yee Ya Mang v PP [1972] 1 MLJ 120 states “The word distinctly in section 27 of the Evidence Ordinance is important. It means that only that part of the statement which leads directly to the recovery is admissible”.


• Evidential value of fact discovered under this section: The evidentiary value of a fact discovered under this section could range from evidence of mere knowledge to evidence of possession of the fact discovered depending on the information supplied and the circumstances of the case. Sharma J states in Yee Ya Mang v PP [1972] 1 MLj 120 “A good deal depends upon whether the production was accompanied by information given by the accused in custody as would be admissible under s. 27 of the Evidence Ordinance. Such information can be relied on by the prosecution as incriminating evidence against the accused along with the production or discovery of the articles in question but the mere production of such articles by itself would not necessarily prove his possession.


• Evidentiary value of information admitted under this section: In an appropriate case the information will constitute sufficient evidence for the prosecution to establish a prima facie case against the accused. In Chong Soon Koy v Public Prosecutor [1977] 2 MLJ 78, the Federal Court held that the statement relating to the discovery of the firearm and ammunition was rightly admitted in evidence under section 27 of the Evidence Act. In that case the Appellant, who had been arrested by the Police, gave a police officer "information with regard to a firearm and some ammunition which he had hidden in the Berapit Hills in Bukit Mertajam." According to the evidence of the Police Officer, as a result of this information, the Police went to the place led by the Appellant and there the Appellant recovered the firearm and ammunition. The Federal Court ruled that this evidence alone was sufficient to justify the conviction of the Appellant by the trial judge. (See also PP v Lau Kee Hoo [1984] 1 MLJ 110)

Confession & the issue of confession of co-accused

• Section 30 provides for Consideration of proved confession affecting person making it and others jointly under trial for same offence (Pertimbangan mengenai pengakuan salah terbukti yang menjejaskan orang yang membuatnya dan orang-orang lain yang dibicarakan bersesama atas kesalahan yang sama). It states (1) When more persons than one are being tried jointly for the same offence, and a confession made by one of those persons affecting himself and some other of those persons 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. (Apabila lebih daripada seorang dibicarakan bersesama atas suatu kesalahan yang sama, dan pengakuan salah yang dibuat oleh seorang daripada mereka yang menjejaskan dirinya dan beberapa orang yang lain itu terbukti, mahkamah boleh menimbangkan pengakuan salah itu bagi menentang orang yang lain itu dan juga bagi menentang orang yang membuat pengakuan salah itu).

• Illustration (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.

• Illustration (b) A. is on his 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.


• Principle and scope

• This section is an exception to the general rule that a confession only affects the party making it. Under this section where one or more persons than one are being tried for the same offence, a confession made by one of them can be used against the other.

• The explanation to the section

• Explanation - "offence" as used in this section includes the abetment of or attempt to commit the offence. In Joygun Bibi v. State PLD [1966] SC (Pak) 313 clearly illustrates the application of the explanation to s. 30. The appellant was convicted of abetting the murder of her husband committed by one Majid. Majid had confessed to the murder and at the same time implicated the appellant. The Court there said that, such a confession could be admitted under s. 30, merely as a matter to be taken into consideration. See also Goh Joon Tong v PP [1995] 3 SLR 305 & R v Amrita Govinda 10 Bom HC 497.


• Requirements of the section

• a) The person must be tried jointly for the same offence.

• The term ‘tried jointly’ has been judicially defined to mean legally tried jointly, with the confessing accused for the same offence. For example in an old leading Indian case Dengo Kandero v. Emperor AIR [1937] Sind. 94 it was ruled that a confession of a person who is dead and has never been brought to trial is not admissible under s. 30 as the confession of the co-accused. In this case Dengo, Amin and one Haji were charged with conspiracy to murder one Rahimbux (the deceased). The prosecution case was that Dengo had incited Amin and Haji to murder Rahimbux. They sought to put in the confession of Haji who implicated Dengo with the offence charged. But Haji died before he could be tried. It was held that this confession was not admissible under s. 30 as Haji and the accused were not tried jointly.

• On the other hand in Ram Sarup Singh v. Emperor AIR [1937] Cre. 39 where J was tried jointly with L for conspiracy to cheat, and the trial proceeded for some time, and when about six months before the delivery of the judgment, when the trial had proceeded for more than a year, J died and before his death his confession was put on record, it was held that J’s confession implicating the accused was admissible in evidence as there was a joint trial when the confession was made.




• An essential requirement for the application of s. 30 is the joint trial in for the same offence. The expression ‘same offence’ means ‘identical offence’. Thus the ‘same offence’ means the identical offence and not the offence of the same kind. It means the same specific offence. The test whether the accused are tried for the same offence is whether the two persons are accused of the same offence of the same definition arising out of a single transaction; it is only then that the confession of one may be used against the other though it inculpates (incriminate/blame) himself through acts separable from those ascribed to his accomplice and capable therefore of constituting a separate offence from those of the accomplice. So in PP v. Lai Pong Yuen & Ors. [1968] 1 MLJ 12, where the three respondents were charged with bribery and corruption under the Prevention of Corruption Act and the Penal Code, and where one of them made a self-inculpatory confession implicating one of the co-accused, Ismail Khan J held that this confession was inadmissible under s. 30 because all the three respondents were charged for offences under s. 9(ii) of the Prevention of Corruption Act. The offences alleged against the first and second respondents were on different dates. Moreover there were charges in the alternative under ss. 161 and 165 of the Penal Code against the first two respondents. There was therefore no joint trial for the same offence for the purpose of s. 30 of the Evidence Act."




• An essential requirement for the application of s. 30 is the joint trial in for the same offence. The expression ‘same offence’ means ‘identical offence’. Thus the ‘same offence’ means the identical offence and not the offence of the same kind. It means the same specific offence. The test whether the accused are tried for the same offence is whether the two persons are accused of the same offence of the same definition arising out of a single transaction; it is only then that the confession of one may be used against the other though it inculpates (incriminate/blame) himself through acts separable from those ascribed to his accomplice and capable therefore of constituting a separate offence from those of the accomplice.

• In Hakim Ali v. State PLD [1960] 31, the Court emphasised that one of the requisites of applying s. 30 is that the persons must have been tried jointly for the ‘same offence’. The expression ‘same offence’ means the identical offence and not an offence of the same kind. Where therefore Hakim and Rafique, the two accused in the above case were jointly tried for the same kind of offence, (namely under s. 411 Penal Code), but the property in respect of which they were charged was different in the case of each accused (i.e., Hakim being charged under s. 411 Penal Code for being in possession of currency notes and other articles, Rafique being charged separately under s. 411 Penal Code for being in possession of stolen property) it was held that the confession of Rafique though it implicated Hakim, could not be taken into consideration at all against Hakim.




• In R. v. Amrita Govinda 10 Bom. HC 497 where three persons were tried jointly, one for murder another for abetting it and the third for concealing evidence of the crime, the confession of the third accused to the offence charged against him was held to be inadmissible as evidence against the other two as it was not a joint trial for the same offence.

• In Bishnu v. R. 1 CWN 35 31 four persons were jointly tried, one for receiving stolen property under s. 411 Penal Code, and the other three for theft under s. 380 of the Penal Code. It was held that the magistrate was in error of law in admitting the confession of the three accused against the one who was charged with the offence of receiving stolen property.

• In Naresh v. R. 42 CWN 814 P was tried for rape of a girl, and H for abduction at the same trial. It was held that the confession of P implicating H was not admissible against H, as H was being tried not for the same offence.


• Requirements of the section• b) There must be a confession which must be proved

• As held by the Privy Council in Bhuboni Sahu v The King AIR 1949 PC 257, the section applies to confession only and not to statements which do not admit the guilt of the confessing party. Thus the confession statement must be a confession within the meaning of section 17 (2) of the Act and must have been voluntarily made.

• c) The confession must be one affecting the maker and the co-accused

• The confession must be such that it implicates the maker substantially to the same extent as the co-accused against whom it is sought to be taken into consideration. In Dr. Jainand v. Rex AIR 1949, 291 is worth noting where the Court held: When an accused person in his statement or confession imputes the commission of the offence to his co-accused, but does not implicate himself as fully and substantially as he does his co accused, the said statement cannot be used as evidence against the co-accused. The words "affecting himself and some other of such persons" in s. 30 are important and do suggest that before the confession made by one person can be taken into consideration as against other persons, who are being tried jointly with him for the same offence, it must affect the maker as well as others. If the statement does not affect the matter thereof or only ascribes to him a part not sufficient by itself to justify his conviction for the offence for which he is being jointly tried with others, it will not be a confession of the nature contemplated by s. 30.


• The value of co-accused’s confession under section 30: Further reference can be made to the Privy Council case of Bhuboni Sahu v The King AIR 1949 PC 257 where Sir John Beaumont said at page 257 “Confession of co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in section 3, it is not required to be given on oath, nor in the present of the accused, and it cannot be tested by cross-examination”. Confession of co-accused can be used only in support of other evidence and cannot be made the foundation of conviction. Sir John Beaumont further stated “.. .. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct ....”. See also Surif v PP [1965] 1 MLJ 36).


• Gopal Sri Ram JCA in Juraimi Bin Husin v PP [1998] 1 MLJ 537 states “The way in which the section must be applied has been fairly worked out in the decided cases. The evidence against an accused must be first marshalled, putting aside the confession of the co-accused. If the court is prepared to convict on the other evidence, it may pray in aid the co-accused's confession to lend assurance to the conclusion of guilt already arrived at. This was also the view taken by the Federal Court in Herchun Singh v PP [1969] 2 MLJ 209 i.e. to lend assurance.

• The Singapore courts have now interpreted this section in a different way. In Ramachandran a/l Suppiah v PP [1993] 2 SLR 671, the Court of Appeal had held that the section should be construed such as that, as against an accused person, the confession of a co-accused could only play a supportive role and cannot itself form the basis of a conviction. In Chin Seow Noi v PP [1994] 1 SLR 135 the Court of Appeal said that since section 3 defines evidence as includes instead of means and includes like in Indian Evidence Act, it should be extensive to include evidence confessions of co-accused. This interpretation has now been consistently followed by the courts in Singapore (See Abdul Rashid v PP [1994] 1 SLR 119; Lee Yuan Kwang v PP [1995] 2 SLR 349; & PP v Rozmaan Bin Jusoh [1999] 2 SLR 181). In Malaysia, interesting to note that there are one case had accept this view like the case of Indran v PP [1985] 2 MLJ 408 “statements of the co-accused were credible evidence to commit the applicants for trial”.


• Do we need corroboration?

• In PP v Yeoh Teck Chye [1981] 2 MLJ 176 the Federal Court said that the evidence of a co-accused is not similar to the evidence of an accomplice and that the rule relating to corroboration does not apply to it. “It is well settled law that where prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given the incriminating evidence is not placed in the position of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case, for that rule applies only to witnesses called for the prosecution — see R v Barnes & Richards 27 Cr App R 154. Section 30 of the Evidence Act, in substance says the same thing i.e. that the court may take into account such incriminating evidence against a co-prisoner”.

Confession & the issue of retracted confession• In Yap Sow Keong & Anor. v. PP [1947] MLJ 90 the two

appellants were convicted of armed robbery contrary to ss. 392 and 397 of the Penal Code. The sole evidence against the first appellant was a confession he had made to a magistrative which he subsequently retracted at the trial, alleging that he had made the confession because he had been beaten by a detective while in police custody. He was convicted, the trial Judge obviously holding that the confession though retracted, was voluntary. On appeal against his conviction, Willans CJ said that "In our view the law as to the admissibility of retracted confessions in evidence is clear, and put shortly it is that an accused person can be convicted on his own confession, even when it is retracted, if the Court is satisfied of its truth”.

• In Osman & Anor. v. PP [1967] 1 MLJ 137 the appellants were convicted of murder. The evidence which had led to their conviction was again the retracted confessions of the appellants. The trial Judge after satisfying himself that the appellants’ confession were made voluntarily, convicted them on these confessions, even though they were later retracted and not corroborated by other evidence.

Admission & the issue of without prejudice communication privilege

• The law relating to "without prejudice" communications is provided for by s. 23 of the Evidence Act 1950 where it provides “Admissions in civil cases when relevant”

• In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.


• The "without prejudice" rule is lucidly stated in a trilogy of local cases. In Malayan Banking Bhd v. Foo See Mooi [1981] 2 MLJ 17, 18 FC Chong Min Tat FJ stated that: “It is settled law that letters written without prejudice are inadmissible in evidence of the negotiations attempted. This is in order not to fetter (restrain) but to enlarge the scope of the negotiations, so that a solution acceptable to both sides can be easily reached”. In Oh Kuang Liang v. Associated Wood Industries Sdn Bhd [1995] 2 CLJ 961 Justice Abdul Malik Ishak expressed his considered view that the "'without prejudice' rule applies generally to exclude all negotiations genuinely aimed at settlements whether oral or in writing from being given in evidence". Four years later in Dusun Desaru Sdn Bhd v. Wong Ah Yu [1999] 2 CLJ 749, at p 755 the learned judge stated the rule in his own inimitable lucid style when he said: “… without prejudice communications can be said to be privileged or for a better nomenclature privileged communications”.


• Rationale underlying the rule

• The broad public policy of encouraging litigants to settle their differences is acknowledged to be the underlying purpose of the "without prejudice" rule. In the leading House of Lord's case of Rush & Thompkins Ltd v. Greater London Council & Anor, [1998] 3 All ER 737 where Lord Griffiths (at pp 739-740) aptly observed that the rule "is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish”. It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v. Head [1984] 1 All ER 597 at 605-606: “It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings”.


• Rationale underlying the rule

• They should, as it was expressed by Clauson J in Scott Paper Co. v Drayton Paper Works Ltd. [1927] 44 RPC 151 at 157 be encouraged freely and frankly to put their cards on the table … The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability”.

• In fact a decade earlier in the English case of Tramountana Armadora SA v. Atlantic Shipping Co SA, [1978] 2 All ER 870 Donaldson LJ had pointed out that it is in the public interest that there should be a procedure whereby the parties to a dispute can discuss their differences freely and frankly to make offers of settlement without fear of being embarrassed by such exchanges in case the settlement was not made.


• The rule is not absolute

• The "without prejudicial" material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement. The court will not allow the phrase to be used to exclude an act of bankruptcy (Re Daintrey, ex p Holt [1893] 2 QB 116, or to suppress a threat if an offer is not accepted (Kitcat v Sharp [1882] 48 LT 64). In certain circumstances, the "without prejudice" material may be looked at to determine a question of costs after judgment has been given (Cutts v Head [1984] 1 All ER 597), an admission of an "independent fact" in no way connected with the merits of the case is admissible even if made in the course of negotiations for a settlement (Waldrige v Kennison [1794] 1 Esp 143).


• The privilege continues even after a compromise has been reached unless it has been waived. Per Vincent J in Boss s/o Ramasamy v Penang Port Sdn Bhd [1996] 5 MLJ 511 “I am mindful that there are many authorities for the legal proposition that unless expressly or impliedly waived, the privilege which (for reasons of public policy that out-of-court settlements should be encouraged) attaches to correspondence in the course of genuine settlement negotiations, continues to operate even after negotiations have been concluded and a settlement reached (see the decision of the House of Lords in Rush & Tompkins Ltd v Greater London Council [*517] & Anor [1989] AC 1280)”


• When evidence of "Without Prejudice" communications may be admissible in evidence. Evidence of negotiations becomes admissible when action is taken by the parties after the conclusion of an agreement. In Malayan Banking Bhd v. Foo See Mooi [1981] 2 MLJ 17 where Chang Min Tat FJ had already clearly stated that: “But it is also settled law that where the negotiations conducted without prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement


• Does section 23 cover plea negotiations or bargaining in criminal cases?

• This issue has not been expressly raised in the Malaysian courts, perhaps for the simple reason that plea bargaining is not officially condoned. Neither are there any reported cases on the issue either from India or Brunei where s. 23 of their respective Evidence Laws are in pari materia our s. 23.

• The ground-breaking judgment of the Singapore High Court PP v. Knight Glenn Jeyasingam, [1999] 2 SLR 499 addressed this issue. In this case Yong Pung How CJ had the opportunity to deliberate on this issue, and after surveying the relevant state of the law in USA, Canada, Australia and England, concluded that in Singapore plea negotiations too should be accorded the "without prejudice" privilege against disclosure.

EVIDENCE 1 (OUTLINE)

THE HISTORICAL BACKGROUND

THE EVIDENTIAL CONCEPT

ILLEGALLY OBTAINED EVIDENCE

HEARSAY EVIDENCE

RES GESTAE

RELEVENCY SECTIONS(SECTION 7, 8 & 9)

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EVIDENCE 1 (OUTLINE)

SIMILAR FACT EVIDENCE

ADMISSION & CONFESSION

EXPERT’S OPINION

JUDICIAL NOTICE

DYING DECLARATION

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