Chapter 6 - Admissions

Question 1

ADMISSIONS

Overview

Answer 1

1) General principles
2) Admissions in civil cases
3) Confessions in criminal cases

Question 2

GENERAL PRINCIPLES

Overview

Answer 2

1) What is admission
2) What is confession
3) Definition of “statement”
4) Relationship between a&c
5) Admissibility of a&c
6) Whether communication is necessary
7) Mode of proving admission
8) Whether admission is conclusive proof
9) Whether conviction by confession is possible

Question 3

GENERAL PRINCIPLES

What is admission

Answer 3

1) The law:
- S.17 + S.18(1)
2) Application - PP v DSAI (No.3):

• The word “proceeding” in s. 18(1) may be civil or criminal (see Sarkar on Evidence 14th edn. vol. I p. 323).
• An accused is also “party to the proceeding.

Question 4

GENERAL PRINCIPLES

What is confession

Answer 4

PP v DSAI (No. 3):

• A confession is a statement by an accused admitting his guilt.

Question 5

GENERAL PRINCIPLES

Definition of “statement”

Answer 5

Sahoo v State of UP:

• The dictionary meaning of the word ‘statement’ is ‘the act of stating, reciting or presenting verbally or on paper.’
• includes both oral and written statements.
• “statement” does not require it to be communicated.
• Therefore, a statement is something that is stated but need not necessarily be communicated to anyone.

*ref. to in PP v DSAI (No. 3).

Question 6

GENERAL PRINCIPLES

Relationship between A&C

Answer 6

PP v DSAI (No.3):

• A statement is a genus; admission is the species; and confession is the sub-species.

The King v Cooray:

• Admission: genus;
• Confession: specie.

Question 7

GENERAL PRINCIPLES

Admissibility of A&C

Answer 7

1) The law:
- S.21
2) Whether it is substantive piece of evidence - PP v DSAI (No.3):
- An admission, once admitted as evidence, is a substantive evidence of fact admitted.

Question 8

GENERAL PRINCIPLES

Whether communication is necessary

Answer 8

Sahoo v State of UP:

• The dictionary meaning of the term & the reason underlying the doctrine of admission does not warrant that it must be communicated;
• The probative value of an admission or a confession does not depend upon its communication to another therefore can be admitted in evidence only on proof.
• No communication is required.

*ref. to in PP v DSAI (No. 3).

Question 9

GENERAL PRINCIPLES

Mode of proving admission

Answer 9

Sahoo v State of UP:

1) Oral admission:
- The proof of oral admission or confession can only be offered by witnesses who heard the confession or admission.
2) Written admission or confession:

• e.g. Written confession that A kills B; He does not communicate to the other as he only enters in his diary that he kills B;
• At the trial, the statement of the accused can certainly be proved as confession made by him;
• The principle & probative value of the evidence is the same as the oral statement.

Question 10

GENERAL PRINCIPLES

Whether admission is conclusive proof

Answer 10

1) The law:

S.31

2) Application - MA Clyde v Wong Ah Mei & Anor:
- The admission cannot be regarded as conclusive, and it is open to the person who made it to explain it away.
3) Whether it is the best evidence - Ramji Dayawala & Sons (P) Ltd v Invest Import:
- Unless explained, an admission furnishes the best evidence.

Question 11

GENERAL PRINCIPLES

Whether conviction by confession is possible

Answer 11

1) Whether corroboration is needed - Juraimi Hussin v PP:
- An accused person may be convicted solely on the strength of a confession but as a matter of prudence the court looks for corroboration.
2) Application - PP v Lim Kiang Chai:

• OTF, there are several corroborative evidence which the court found to be effective in corroborating the cautioned statement by the accused.
• e.g. the evidence of witnesses that they saw the pillion rider open fire at the deceased’s car and fled on a motorcycle ridden by another person.

Question 12

ADMISSIONS IN CIVIL CASE

Overview

Answer 12

1) General rule
2) Exclusion of admission in civil cases
3) Conditions to fulfil

Question 13

ADMISSIONS IN CIVIL CASE

General rule

Answer 13

1) general rule:
- S.21: relevant & admissible.
2) who can make admissions:
- S.18: party to proceedings

Question 14

ADMISSIONS IN CIVIL CASE

Exclusion of admission in civil cases

Answer 14

1) The law:

S.23

2) Scope of exclusion - Indran A/L Jeganathan v Nithiyani A/P Kulaveerasingam:
- include communications made in the course of negotiations with a view to settling a family dispute.
3) Rationale for exclusion - Dusun Desaru Sdn Bhd v Wang Ah Yu:
- enable parties engaged in an attempt to compromise litigation & communicate with one another freely & w/o embarrassment.

Question 15

ADMISSIONS IN CIVIL CASES

Conditions to fulfil for exclusion - overview

Answer 15

1) General conditions
2) Ongoing negotiations
3) The use “without prejudice”
4) Examples of without prejudice communication
5) Waiver of privilege

Question 16

CONDITIONS TO FULFIL FOR EXCLUSION

General conditions

Answer 16

1) Malayan Banking v Foo See Moi:
- DISPUTE & NEGOTIATIONS: the parties must be in dispute and that dispute led them to negotiate with one other; and
- COMMUNICATION: the relevant communications contain suggested terms that would finally lead to a settlement of the dispute.
2) Dusun Desaru Sdn Bhd v Wang Ah Yu:

• communication need not have to contain the classical offer in the context of contract;
• suffice that communication forms part & parcel of the negotiations towards settlement.

Question 17

CONDITIONS TO FULFIL FOR EXCLUSION

Ongoing negotiations

Answer 17

Ted Bates (M) Sdn Bhd v Balbir Singh Kholi:

• the negotiations must be ongoing with a view of settling disputes.

Question 18

CONDITIONS TO FULFIL FOR EXCLUSION

The use of “without prejudice”

Answer 18

Rush & Tompkins Ltd GLC:

• does not depend solely on the use of the phrase;
• test: surrounding circumstances, whether the parties were seeking to compromise the action.

Question 19

CONDITIONS TO FULFIL FOR EXCLUSION

Examples without prejudice communication

Answer 19

1) Absolute rejection - Nicholson v Southern Star Fire Insurance:
- If the letter shows an absolute rejection of the claim by P, then there is no intention at all to negotiate he privilege will not arise.
2) Apology - Healey v Thatcher:
- An apology would be accepted & be protected under umbrella of without prejudice communication.
3) Negotiations towards settlement - South Shropshire DC v Amos:
- Communication forms part & parcel of the negotiations towards settlement is sufficient to be protected under the privilege.

Question 20

CONDITIONS TO FULFIL FOR EXCLUSION

Waiver of privilege

Answer 20

AB Chew Investments Pte Ltd v Lim Tjoen Kong:

• D himself made the reference to the privileged discussions;
• held: such conduct had amounted to a waiver of privilege.
• However, privilege was not waived just because a party filed an affidavit-in-reply to an affidavit containing privileged communication.

Question 21

CONFESSIONS IN CRIMINAL CASES

Overview

Answer 21

1) General principles
2) Admissibility of confession
3) Burden of proving voluntariness
4) Voir dire
5) Mixed-statements
6) Exclusions under S.24 - inducement, threat or promises
7) Exclusions under S.25 - made to police officer
8) Exclusions under S.26 - in custody of police officer
9) Relationship between S.26 & 26
10) Exclusion under common law - Oppressions
11) Confessions by Co-Accused under S.30
12) Retracted confession
13) Relationship between all the confession sections
14) Exclusions under CPC

Question 22

GENERAL PRINCIPLES ON CONFESSION

Overview

Answer 22

1) What is confession
2) A&C
3) Test for confession

Question 23

GENERAL PRINCIPLES ON CONFESSION

What is confession

Answer 23

1) Meaning of confession:
PP v DSAI (No.3):

• statement by an accused admitting his guilt.

Question 24

GENERAL PRINCIPLES ON CONFESSION

Admission & confession

Answer 24

1) principle - PP v DSAI (No.3):

• statement = genus;
• admission = specie;
• confession = sub-species.

2) Whether confession is an admission: PP v DSAI (No. 3):
- an accused is a party to the proceedings & by virtue of S.18(1), confession made by him is an admission.

Question 25

GENERAL PRINCIPLES ON CONFESSION Test for confession

Answer 25

Anagonda v R: - objective test; - must be looked as a whole & must be considered on its own w/o reference to extrinsic facts; - Whether the mind of a reasonable person reading the statement; - At the time & in the circumstances in which it was made; - It can be said to amount to the statement that the accused committed the offence or suggests such inference.

Question 26

ADMISSIBILITY OF CONFESSION Overview

Answer 26

1) The law 2) General rule 3) To whom it was made 4) In what form it was made 5) Admissibility of purely exculpatory statement

Question 27

ADMISSIBILITY OF CONFESSION The law

Answer 27

S.21

Question 28

ADMISSIBILITY OF CONFESSION General rule

Answer 28

R v Wong Ah Kin: - All confessions are relevant & can be proved unless they are excluded by some other sections or other rule of law. - S.21: a confession is relevant regardless of to whom it was made & in what form. - The admissibility depends on the vitiating factors set-out under S.24-26. - If the vitiating factors are activated, the confession is inadmissible.

Question 29

ADMISSIBILITY OF CONFESSION To whom it was made

Answer 29

PP v Othman Aziz: - confessions could be admitted under S.21 regardless of to whom it was made; - provided it was proved to be made voluntarily.

Question 30

ADMISSIBILITY OF CONFESSION In what form it was made

Answer 30

Junaidi bin Bambang v PP: - Accused make confessions on the letters admitting that he has killed the three deceased & tried to commit suicide. - On the evidence available, the court found the two tests laid down for extra-judicial confessions in Abu bin Hussin v. Public Prosecutor are satisfied; - the confession is thus admissible. The test - Abu Hussin v PP: - where an accused denied making certain statements recorded in the confession before a Magistrate, two entirely separate and distinct questions had to be considered in relation to the so-called confession: - (i) whether in fact the appellant did say the things he was said to have said, and - (ii) whether or not these things were true.

Question 31

ADMISSIBILITY OF CONFESSION Purely exculpatory statement

Answer 31

PP v Adetunju Adeleye Sule: - A purely exculpatory statement or self-serving statement is not evidence of the facts stated; - The court ought to not to take such statements into account for ordering an acquittal & discharge. - i.e. irrelevant & inadmissible.

Question 32

BURDEN PROVING VOLUNTARINESS General rule

Answer 32

Chan Ming Cheng v PP: 1) To prove in/voluntariness: - On prosecution to show positively that the statement was voluntarily given. 2) To raise reasonable doubt on voluntariness: - no burden for reasonable doubt; - only needs to show suspicious circumstances; 3) Example of suspicious circumstances: - reasonable suspicion as to the voluntariness of the statement.

Question 33

VOIR DIRE When should be held

Answer 33

PP v Mohammed Noor bin Jantan: - GR: cautioned statement is admissible if court is satisfied that it was made voluntarily; - Exception: when the defence challenge the voluntariness of the statement; voir dire ought to be held. - if the defence does not challenge, there is no reason for holding voir dire.

Question 34

MIXED STATEMENTS Overview

Answer 34

1) What amounts to mixed-statements 2) Admissibility of mixed-statements 3) Examples of mixed-statements

Question 35

MIXED STATEMENTS What amounts to mixed-statements

Answer 35

Lemanit v PP: - Statement made by the accused was held to be a confession although it appeared to contain prostestation of innocence in some aspects; - The exculpatory part sounded as follows: “I was forced to set fire to the bomb”; “And to throw it at a place where there were no people”. - Taken the statement as a whole without reference to the extrinsic facts, the statement amounts to an admission suggesting the inference that he committed the offence.

Question 36

MIXED STATEMENTS Admissibility of mixed-statement

Answer 36

Chan Kin Choi v PP: - Mixed-statements were admissible; - The incriminating part & exculpatory parts must be considered in determining where the truth lies. - H/ever, the incriminating part is likely to be true; - Whereas the exculpatory part did not carry the same weight.

Question 37

MIXED STATEMENTS Examples of mixed-statements

Answer 37

1) Ho Sek Kong v PP: - The statement: “I did it but I had not intended to do it”; - Held: Amounted to confession according to S.17(2). 2) Weight - R v Leung Kam Kwok: - the entire statement is admitted but only the inculpatory part is evidence of the truth of its contents. - The exculpatory part is not evidence of the truth of its contents, but is only admitted to show the context in which the admission was made.

Question 38

EXCLUSIONS UNDER S.23 - INDUCEMENT, THREAT OR PROMISES Overview

Answer 38

1) test to determine presence of vitiating factors 2) who is person in authority 3) whether reference to charge is necessary 4) application & example

Question 39

EXCLUSIONS UNDER S.23 - INDUCEMENT, THREAT OR PROMISES Test to determine presence of vitiating factors

Answer 39

PP v DSAI (No. 3): - Whether a statement is voluntarily made is a question of fact and the test is part objective and part subjective. - Whether there is an inducement, threat or promise, it is objectively determined; - Whether such inducement, threat or promise has operated on the mind of the accused, it must be subjectively answered from the perspective of the accused.

Question 40

EXCLUSIONS UNDER S.23 - INDUCEMENT, THREAT OR PROMISES Who is person in authority

Answer 40

Deokinanan v R: - A person in authority may be someone that engaged in the arrest, detention, examination or prosecution of the accused; - a police officer is a person in authority but a person in authority under S.24 does not necessarily a police officer; - It is to be viewed subjectively, from the point of view of the accused who made the alleged confession. - The test is whether the accused truly believe, that at the time he made the declarations, the person he dealt with had some degree of power against him. - OTF, their Lordships agree that the mere fact that a person may be a witness for the prosecution does not make him a person in authority.

Question 41

EXCLUSIONS UNDER S.23 - INDUCEMENT, THREAT OR PROMISES Whether reference to charge is necessary

Answer 41

1) Ong Hock v R: - The inducement, threat or promise must have reference to the charge and the proceedings. 2) cf. Lim Kim Tjok v PP: - Although the threat has no reference to the charge, the confession was ruled to be involuntary thus excluded & inadmissible.

Question 42

EXCLUSIONS UNDER S.23 - INDUCEMENT, THREAT OR PROMISES Application & example

Answer 42

1) PP v Azilah Hadri & Ors: - A confession was made by the accused to his superior; under his custody and care throughout the journey; - at voir dire, the accused had regarded the said questioning by ACP Mastor in his commanding tone as an ‘order’ from his superior for him to answer. - Held: there was an obvious inducement and threat inflicted by ACP Mastor in procuring the said confession from the accused & it is a clear case that the confession is inflicted by fear in the mind of the second accused. - The alleged confession is involuntarily made & therefore inadmissible as evidence. 2) Aziz Muhd Din v PP: - Made by person in authority: the person not in authority (i.e. the father) can be considered as the agent of the person in authority. - Inducement, threat or promise: His advice to the accused to admit so that matters will be “lebih senang” was with the encouragement of the police personnel in the car. - He said that he told his son to admit so that “... tidak kena susah-susah - lebih baik mengaku.” - It is lear that he gave the statement as he thought that by doing so he would gain an advantage.

Question 43

EXCLUSIONS UNDER S.25 - MADE TO A POLICE OFFICER The law

Answer 43

S.25

Question 44

EXCLUSIONS UNDER S.25 - MADE TO A POLICE OFFICER Below the rank of Inspector

Answer 44

PP v Ng Goh Weng & Anor: - If clearly the statement was made to an officer below the rank of Inspector, then the duty of the committing Magistrate to simply reject it.

Question 45

EXCLUSIONS UNDER S.25 - MADE TO A POLICE OFFICER Probationary Inspector

Answer 45

Abdul Ghani Jusoh & Anor v PP: - any statement recorded by someone who is a probationary Inspector is a statement not recorded in accordance with section 113, and in consequence inadmissible. - i.e. Probationary inspector cannot be regarded as an inspector.

Question 46

EXCLUSIONS UNDER S.26 - IN CUSTODY OF POLICE OFFICER Meaning of custody

Answer 46

Eng Sin v PP: - in state of being guarded & watched to prevent his escape; - it is only necessary to consider what would have happened, if at that time he had tried to run away.

Question 47

EXCLUSIONS UNDER S.26 - IN CUSTODY OF POLICE OFFICER Example

Answer 47

1) Eng Sin v PP: - a confession made to a doctor was excluded on the ground that the accused was in custody of the police, having been sent to hospital for examination & returned therefrom under police report. 2) cf. PP v Azilah Hadri & Ors: - To conclude that the accused was then under arrest or police custody simply because the backpack was put on the accused and that he being escorted to go to toilet at the place of transit is stretching too far. - Held: The accused was not under the arrest or custody of police within the definition of which as envisaged in s. 26 and s. 113 of CPC.

Question 48

RELATIONSHIP BETWEEN S.25 & 26

Answer 48

PP v Nyambang Ak Entuhan: - S.25: applies when the accused person confesses to the police officer above the rank of Inspector before any investigation has begun or otherwise not in the course of investigation.

Question 49

EXCLUSIONS UNDER COMMON LAW - OPPRESSIONS Overview

Answer 49

1) Definition of oppressions 2) Categories of oppressions 3) Application & example

Question 50

EXCLUSIONS UNDER COMMON LAW - OPPRESSIONS Definition of oppressions

Answer 50

1) R v Priestly: - Oppression is something that ‘saps that free will which must exist before a confession is voluntary’. 2) R v Fulling: - WRONGFUL EXERCISE OF POWER: exercise of authority or power in a burdensome, harsh or wrongful manner; - UNJUST TREATMENT: It is unjust treatment of subjects or inferiors, etc and the imposition of an unreasonable & unjust burden. 3) PP v Chan Choon Keong: - 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 burdens.

Question 51

EXCLUSIONS UNDER COMMON LAW - OPPRESSIONS Categories of oppressions

Answer 51

1) Physical oppression - PP v Chan Choon Keong: - e.g. forced to eat chilli padi, threat to rub chilli padi on his private parts. 2) Psychological oppression - Hasibullah Mohd Ghazali v PP: - e.g. forced to get out of his bed during early hours. 3) Psychological oppression - PP v Goh Kim Looi: - e.g. The manner of interview conducted is by a male officer with authority on a female accused, with only the two of them in a closed & small room.

Question 52

EXCLUSIONS UNDER COMMON LAW - OPPRESSIONS Application & example

Answer 52

Long interrogation: 1) PP v Kamde Raspani: - The accused was interrogated for 17 hours & after 6.30pm; - It was held to be oppressive & in breach of lock-up rules. 2) cf. PP v Veeran Kutty: - The interrogation went on beyond 6.00pm; - It was held to be a minor breach & since it was carried out for 4 hours, it was not oppressive.

Question 53

CONFESSIONS BY CO-ACCUSED Overview

Answer 53

1) The law & scope 2) Tried jointly & same offence 3) Affect the maker & co-accused 4) Must be a proved confession 5) Whether conviction can be based solely on confession by co-accused

Question 54

CONFESSIONS BY CO-ACCUSED The law & scope

Answer 54

1) The law: - S.30 2) Scope - PP v Nordin bin Johan: - confession made by the accused may be taken into consideration against other co-accused. - Pre-requisite: there must be some cogent evidence against the co-accused quite apart from the statement of the accused.

Question 55

CONFESSIONS BY CO-ACCUSED Tried jointly & same offence

Answer 55

Explanation to S.30

Question 56

CONFESSIONS BY CO-ACCUSED Affect the maker & co-accused

Answer 56

1) Principle - Dr. Jainand v R: - the confessions must affect the maker substantially to the same extent as it does to his co-accused; - If the statement does not affect the maker thereof or insufficiently affect him to justify his conviction in the joint trial, it will not be a confession within S.30. 2) Example - Msimanga Lesaly v PP: - The accused made a statement that was totally exculpatory of her; - such statement did not amount to a confession that could be used against the co-accused.

Question 57

CONFESSIONS BY CO-ACCUSED Must be a proved confession

Answer 57

Herchun Singh v PP: - free from vitiating factors in S.24-26; - must be within S.17(2) & must be voluntarily made.

Question 58

CONFESSIONS BY CO-ACCUSED Whether conviction can be based on it

Answer 58

1) Supportive evidence only - Bhuboni Sanu v The King: - Confession should be used as a basis for conviction only when there is other evidence already pointing to the guilt of the accused; - i.e. the confession of a co-accused is merely a supportive evidence. - However, the requirement of corroboration is required only as a rule of practice & prudence. 2) Not proof - Fairus Abdullah & Anor v PP: - A confession by a co-accused is not proof & can only be used in support of other evidence; - Confession per se of a co-accused cannot be made the foundation of a conviction.

Question 59

RETRACTED CONFESSION Whether conviction can be based on it

Answer 59

Yap Sow Keong v PP: - An accused may be convicted on his own confession, even when it is retracted, if the court is satisfied with its truth. - Aconviction based on a retracted confession need not be corroborated. - H/ever court must enquire into the matter with great care & to satisfy itself that the confession has not been made as a result of vitiating factor.

Question 60

SUMMARY OF S.24 - 27 Relationship between all the sections

Answer 60

Md Desa bin Hashim v PP: - The principle is that S.25 and S.26 are subject to S.27 but all these three sections are governed by and are subject to S.24.

Question 61

EXCLUSIONS UNDER CPC The law & scope

Answer 61

1) S.113: - GR: no statement made in the course of police investigation shall be admissible & used as evidence. - Exceptions, i.e. where exceptions are applicable, the statement is admissible. * to impeach the credit of the witness * to support his own defence * if the accused is charged for perjury. * statement made in ID parade is admissible; * statement made for information leading to discovery is admissible; * statement made as an exception to rules against hearsay is admissible.