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Law of Evidence

Group (B)
LC3001B

AY 2011/2012 (Semester 2)

As a code of non-exhaustive character, the Evidence Act has an impressive coherence and rationality,
which compares favourably with the common laws uncoordinated patchwork of disparate elements. The
disadvantage of the Act, however, is that it lacks the flexibility of the common law; as a result, in particular
areas of application, its rationality has failed to stand the test of time. For practitioners and the courts alike,
problems of fitting out or trimming and squaring the developments in the common law with the Act in these
areas have exacerbated this fundamental difficulty.

Standards & Burden of Proof


Standards of Proof
Definitions and Interpretations
Section 3(3) EA: A fact is said to be proved when, after considering the matters before it, the court either
believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it exists.
Section 3(4) EA: A fact is said to be disproved when, after considering the matters before it, the court
either believes that it does not exist or considers its non-existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition that it does not exist.
Section 3(5) EA: A fact is said to be not proved when it is neither proved nor disproved.
Loo Chay Sit v. Estate of Loo Chay Loo [2009] SGCA 47 (civil case) at [20]:
In a case where a fact is said to be "not proved", the court is unable to say precisely how the
matter stands because of a lingering doubt as to the existence and non-existence of the fact; put
simply, the court is unable to decide one way or the other. The court thus refrains from making an
affirmative pronouncement as to the existence or non-existence of the fact.
Eu Lim Hoklai v. PP [2011] SGCA 16 (criminal case) at [44]-[45]:
The Judge...felt that for that reason he too could not take a firm position on...[whether the
wounds were self-inflicted]. In our view, this was an error on his part This is not to say that a
fact sought to be proved may not be regarded as not proved which is one of the distinct concepts
of proof under s.3(5) of the [EA]. It may well be that a Judge has a lingering doubt as to the
existence or non-existence of a fact and thus concludes that it is "not proved". But in a criminal
matter, where the elements of the offence are concerned, such a doubt could well constitute a
reasonable doubt to defeat the Prosecutions case, and where a defence is concerned, such a doubt
does not automatically preclude an accused from proving his defence.

Are there one or two standards of proof in the EA?


PP v. Yuvaraj [1970] 1 AC 913 (PC), per Lord Diplock:
Lord Diplock acknowledged that the Evidence Ordinance applies to civil and to criminal proceedings
alike and the definitions of proved and disproved draw no explicit distinction between facts required to
be proved by the prosecution in criminal proceedings and facts required to be proved by a successful party
to civil proceedings and that [t]he definitions in the Evidence Ordinance do not attempt to spell out
explicitly the degree of probability for which a prudent man ought to look before he acts on the supposition
that a fact does not exist.
His Lordship, however, pointed out that the degree of probability for which a prudent man ought to look
before he acts on the supposition that a fact does not exist [must, as a matter of commonsense,] depend
upon the nature of the action contemplated. A degree of probability sufficient to induce a prudent man to
spend a dollar on the supposition that a fact did not exist might be insufficient to induce him to risk a
million dollars.

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Accordingly, his Lordship concluded that it cannot be supposed that the Evidence Ordinance intended by a
provision contained in what purports to be a mere definition section to abolish the historic distinction
fundamental to the administration of justice under the common law, between the burden which lies
upon the prosecution in criminal proceedings to prove the facts which constitute an offence beyond all
reasonable doubt and the burden which lies upon a party in a civil suit to prove the facts which constitute
his cause of action or defence upon a balance of probabilities.

Two standards of proof in criminal law?


SK Chan CJ, in his capacity as the then-AG of Singapore, wrote in 1996 that [i]n theory, it can be argued
that less serious commercial crimes and many regulatory offences could be made punishable on proof on a
balance of probabilities So perhaps it may not be a heresy to suggest that the criminal law may be able
to accommodate two standards of proof, the heavier one for serious offences, the lighter one for minor
offences. The criminal law is not static; neither is the criminal process. (SK Chan, Criminal Process The Singapore Model (1996) 17 SLR 433-504 at 501-502.)

Criminal Standard of Proof


The sacrosanct principle of beyond a reasonable doubt
A person may only be convicted of a crime if his guilt has been proved beyond reasonable doubt by the
Prosecution. This principle is purported to be sacrosanct and constitutes a fundamental right that the
courts have constantly emphasised (Sakthivel Punithavathi v. PP [2007] SGHC 54 at [78])1. In the same
vein, VK Rajah J, as he then was, stated in Jagatheesan s/o Krishnasamy v. PP [2006] SGHC 129 at [61]
that the principle is a bedrock principle of the criminal justice system in Singapore because while it
protects and preserves the interests and rights of the accused, it also serves public interest by engendering
confidence that our criminal justice system punishes only those who are guilty.

What is beyond a reasonable doubt?


In Jagatheesan, VK Rajah J referred to Denning Js, as he then was, formulation of reasonable doubt in
Miller v. Minister of Pensions [1947] 2 All ER 372 and considered that a reasonable doubt is a doubt
which can be justified by a reason in the context of the evidence as opposed to a mere fanciful doubt. In
determining whether the Prosecution has proved its case beyond a reasonable doubt, the trial judge will
objectively consider the evidence to ascertain whether there is a doubt logically ascertained.
VK Rajah JA further elaborated on the objective approach in Sakthivel, stating that the trial judge must
consider the evidence in its entirety and test it against logic and common sense. A determination that
the Prosecution has proved his case beyond a reasonable doubt would require the trial judge to be able to
say precisely why and how the evidence supports the Prosecutions [case theory] 2 without filling the
gaps in the prosecutions case on [his] own initiative and through conjecture and supposition, as well as to
be satisfied that the Prosecution had categorically [dispelled] any reasonable doubts that may [have arisen]
on the evidence presented.

Not proved beyond a reasonable doubt by virtue of the lack of evidence submitted
1

C.f., however, SK Chan, Criminal Process - The Singapore Model (1996) 17 SLR 433-504 at 501:
The principle is not sacrosanct, although it is true that a conviction for an offence generally attracts greater
disabilities than a judgment in a civil suit.
2
Cited with approval in Eu Lim Hoklai v. PP [2011] SGCA 16 and Thong Ah Fat v. PP [2011] SGCA 65.

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VK Rajah J also noted in Jagatheesan that as the starting point is the presumption of innocence in favour
of the accused, [r]easonable doubt might also arise by virtue of the lack of evidence submitted, when such
evidence is necessary to support the Prosecutions theory.

Where both the Prosecutions and Defences case theories are improbable
Where both the Prosecutions and the Defences contentions of what occurred are improbable, the trial
judge should simply rule that the burden of proof has not been properly discharged, since it is not for the
defence to clarify weaknesses in the Prosecutions case (VK Rajah JA in Sakthivel,).

What constitutes as a reasonable hypothesis sufficient to raise a reasonable doubt?


Took Leng How v. PP [2006] SGCA 3
Prosecutions case: The accused had smothered the victim to death with his bare hands.
Defences case: The victim had a sudden onset of fits that was not brought about by the smothering, and,
consequently, choked to death on her own vomit.
The majority (Yong CJ and Chao JA), citing Miller v. Minister of Pensions with approval, held that not
every doubt that is raised by the Defence will amount to a reasonable doubt. The question in all cases is
whether such doubts are real or reasonable, or whether they are merely fanciful or of remote possibility.
The majority was of the opinion that the Defences case was entirely speculative, as it would require the
court to assume that an extreme coincidence had occurred. In the majoritys view, there was no basis for
such an assumption, and accordingly, no reasonable doubt had been raised as to whether the death of the
deceased was due to smothering by the accused.
On the other hand, Kan J, representing the minority, was of the opinion instead that doubt raised by the
evidence, which had not been removed by the Prosecution, was not a fanciful one. Specifically, the absence
of injuries to the victim's nose when bruises to other regions were present raised a doubt whether there was
smothering of the nose. The vomitus, bruised tongue and faecal discharge, the possibility of a spontaneous
fit and the incomplete family history also created doubt whether the death resulted from smothering.

Does the standard of proof vary in respect of purely circumstantial evidence?


VK Rajah JA adopted the only reasonable inference test in PP v. Chee Cheong Hin Constance [2008]: In
a criminal case, proof beyond any reasonable doubt is required. Grave suspicion is no substitute for proof
beyond reasonable doubt. In the same vein, moral certainty cannot replace the requirement for explicit and
certain evidence. The various links in the interlocking chain of evidence must establish a complete chain
that rules out any reasonable likelihood of an accuseds innocence. Guilt must be the only rational
inference and conclusion to be drawn from the complete chain of evidence. In assessing the
circumstances, the court should discount fanciful or speculative possibilities. However, if more than one
reasonable inference can be elicited from the factual matrix, the inference most sympathetic to the
accused ought to be accepted.

Loosening of the standard of beyond a reasonable doubt?


In Ang Jeanette v. PP [2011] SGHC 100, the accused was charged under s.44(1) of the CDSA for
remitting a total of more than S$2m on various occasions to, inter alia, one Michael Walters. On one
occation, the accused's brother had called her and told her to take instructions from one "Mike", who would
call her shortly regarding receiving money from someone and remitting it overseas. Following instructions
from Mike, she met Aloysious on various occasions and remitted the moneys that she had received from
him. At trial, evidence was led from Nail, the lead investigator in an FBI investigation concerning several
fraudulent money transfers from various bank accounts in the U.S. to several bank accounts in Singapore.
The defence submitted a no case to answer on the premise that the Prosecution had not proved beyond a
reasonable doubt all the constituent elements of a specific predicate offence listed in the 2nd Schedule of the

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CDSA, i.e., that there was in fact criminal conduct which tainted the moneys handled by the accused,
thereby failing to establish a link to the accused's alleged belief as to the nature of the moneys.
S.44(1) CDSA (Assisting another to retain benefits from criminal conduct):
a person who enters into or is otherwise concerned in an arrangement, knowing or having
reasonable grounds to believe that, by the arrangement
(a) the retention or control by or on behalf of [X] of [Xs] benefits of criminal conduct
is facilitated (whether by concealment, removal from jurisdiction, transfer to nominees or
otherwise);

and knowing or having reasonable grounds to believe that that other person is a person who
engages in or has engaged in criminal conduct or has benefited from criminal conduct shall be
guilty of an offence.
VK Rajah JA held that it [was] not necessary for the Prosecution to satisfy the court beyond a reasonable
doubt that all the constituent elements of a specific offence listed in the Second Schedule have been met
[so as to] mitigate [against] the Prosecution's understandable concern that it would have to prove two
offences to the same exacting standards every time it undertakes a prosecution of an offence under s.44(1)
(a) of the CDSA. His Honour, however, attempted to steer a middle ground by holding that it was still
necessary for the Prosecution to adduce some evidence linking the moneys in question with particular
criminal conduct, ie, some act that may constitute one or other of the offences (or classes thereof) listed in
the Second Schedule, from which the moneys dealt with in an arrangement under s.44(1)(a) are derived,
and in which the other person is engaged or has engaged, or from which he has benefited. [It would suffice
if] circumstances [arose such that] the only logical inference to any reasonable person is that the
moneys involved in the arrangement are criminal property, and that the other person engages in, or
has engaged in, or has benefited from, criminal conduct.
In essence, VJ Rajah JA had redefined the actus reus (actual criminal conduct to merely some act linking
the moneys in question with some act that might constitute one or other of the offences (or classes thereof)
listed in the Second Schedule) required to be proved, which in turn relaxed the Prosecutors burden of
adducing evidence necessary to prove the actual actus reus of the predicate offence.
His Honours decision was quite patently driven by policy considerations:
There is no reason to assume that Parliament intended the Prosecution to go through the awkward
and costly exercise of summoning foreign witnesses to prove all the ingredients of a foreign
offence when these predicate offences are often in practice difficult to pin down. Indeed, given the
inherent difficulties of legal proof in most such matters, taking such a technical view of the
requirements of s.44(1)(a) of the CDSA would be tantamount to driving a coach and horses
through it and robbing it of its intended efficacy.

Civil Standards of Proof


What is balance of probabilities?
In Miller v. Minister of Pensions, Denning J defined balance of probabilities as such:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case.
If the evidence is such that the tribunal can say: We think it more probable than not, the burden is
discharged, but, if the probabilities are equal, it is not.
In other words, the test is not whether the claimants case is more probable than the defendants, but
whether the claimants case is more probably true than not (Clarke v. SilkAir (Singapore) Pte Ltd
[2002] SGCA 26).

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By way of illustration, in The Popi M [1985] 2 All ER 712, a ship sank due to water entering a hole on the
port side. The shipowner claimed the hole was caused by a collision with a submerged submarine, whereas
the insurer claimed that it was caused by wear and tear. The trial judge found in favour of the shipowner
because its version of facts was less improbably than the insurers.
On appeal, the H.L. overturned the trial judges decision, pointing out that the trial judge was incorrect to
assume that it was a matter of choosing between the ship owners and insurers theories of what had
happened. As the burden of proof was on the shipowner, the trial judge should have considered whether the
shipowners case was more probably true than untrue. The H.L. proceeds to hold that the shipowner had
failed to discharge the burden of proving its case on a balance of probabilities.
In Clarke v. SilkAir (Singapore) Pte Ltd, the personal representatives of a passenger who had died when a
SilkAir aircraft crashed argued in an action for damages that SilkAir could not limit its liability to pay
damages because, inter alia, the crash was intentionally caused by or resulted from willful misconduct of
the pilot. Yong CJ, delivering the judgment of the SGCA, held that the personal representatives had failed
to show that its contentions were more probably true than untrue. It was not a question of whether their
theory of what had happened was more probable than SilkAirs theory of what had happened.

Higher than on a balance of probabilities but lower than proof beyond reasonable
doubt in civil fraud, dishonesty or where other serious allegations are concerned?
In Tang Yoke Kheng v. Lek Benedict [2005] SGCA 27, Choo J held that there are, indisputably, only two
standards of proof. For criminal cases, the standard is proof beyond reasonable doubt; for civil matters, the
standard is that of a balance of probabilities, where, minimally, the party charged with the burden of
proving will succeed if he can show just that little more evidence to tilt the balance. However, where fraud
is alleged in a civil case, his Honour held that because of the severity and potentially serious implications
attaching to a fraud, even in a civil trial, judges are not normally satisfied by that little bit more evidence
such as to tilt the balance. They normally require more Therefore, the standard of proof in a civil case,
including cases where fraud is alleged, is that based on a balance of probabilities; but the more serious the
allegation, the more the party, on whose shoulders the burden of proof falls, may have to do if he
hopes to establish his case.
Subsequently in Westlake Eating House v. Koh Choon Chin [2006] SGHC 92, Phang J (as he then was),
following Tang Yoke Kheng, rejected the notion of a 3rd standard of proof that lies somewhere between the
criminal and civil standards of proof. Acknowledging that there was nothing wrong in theory with the
proposition that there is in fact a 3rd (or intermediate) standard of proof, Phang J noted that the SGCAs
acknowledgment in Tang Yoke Kheng itself that the court would normally require more evidence and not
just merely that little bit more evidence such as to tilt the balance was recognition, implicit or otherwise,
of a 3rd standard of proof. However, Phang J clarified that the SGCA preferred to draw a distinction
between a 3rd standard of proof and the civil standard of proof within which more proof is required than that
in a standard civil case where fraud is not an issue, thereby preserving the traditional approach of
having only 2 standards of proof. Phang J noted that in the practical sphere of application, this
distinction was merely a matter of nomenclature and semantics, rather than logic, and that the court was
well equipped and able to draw the necessary lines, regardless of the specific formula adopted. Quite apart
from the fact that his Honour was bound by Tang Yoke Kheng, Phang J expressly approved of the SGCAs
approach in so far as it did not make a difference to the amount of proof required, in view of the
seriousness, in situations of civil fraud. He considered the SGCAs approach to be one that combined
theory and practice, and provides more conceptual clarity than the third standard of proof approach,
which only serves to confuse the situation where the courts were already always doing what they ought to
be doing in practice, viz, to require more evidence in situations where fraud has been alleged.
Thus, reiterating the SGCA in Tang Yoke Kheng, his Honour concluded that the standard of proof in civil
proceedings where fraud and/or dishonesty is alleged is the civil standard of proof on a balance of
probabilities. However, where such an allegation is made, more evidence is required than would be the
situation in an ordinary civil case. The focus is on the degree of probability required, which will (in turn)
impact on the amount of evidence required.

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Standards & Burden of Proof


Burden of Proof
General Principles
Relevant provisions in the EA
Burden of proof
103.(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the
existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that
person.
Illustrations
(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of
facts which he asserts and which B denies to be true.
A must prove the existence of those facts.
On whom burden of proof lies
104. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side.
Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, Bs
father.
If no evidence were given on either side, B would be entitled to his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not
proved.
Therefore the burden of proof is on B.
Burden of proof as to particular fact
105. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustrations
(a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the
admission.
(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it.
Burden of proving fact to be proved to make evidence admissible
106. The burden of proving any fact necessary to be proved in order to enable any person to give evidence
of any other fact is on the person who wishes to give such evidence.
Illustrations
(a) A wishes to prove a dying declaration by B. A must prove Bs death.

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(b) A wishes to prove by secondary evidence the contents of a lost document.


A must prove that the document has been lost.
Whereas s.103 is concerned with the proof of facts in issue, s.105 is concerned with the proof of relevant
facts. S.104 provides that if neither party adduces evidence, the party who asserts the fact would fail to
prove it.

Legal burden versus Evidential burden


Legal burden refers to the burden of proving an allegation of fact to the requisite standard of proof. It
always remains on the party who weeks to prove that fact.
Evidential burden refers to the burden of adducing evidence to meet the standard of proof or to prevent the
opposing party from meeting the standard of proof. It may shift from one party to another throughout the
trial.
By way of illustration, the Prosecution must prove the facts in issue on which he relies on to establish the
elements of the offence. This burden is imposed by s.103 and is referred to as the legal burden. The
Prosecution must also adduce evidence, failing which he will not be able to prove the facts in issue. This is
referred to as the evidential burden. The Defences obligation, with the legal burden not being on him, is to
challenge and/or weaken the effect of the prosecutions evidence. The Defences aim is to reveal that the
Prosecutions evidence is not sufficiently adequate to meet the standard required for the court to determine
that the facts in issue are proved beyond a reasonable doubt.
Where the Prosecution has adduced sufficient evidence to bring his case beyond a reasonable doubt (i.e.
discharged his evidential burden required to discharge the legal burden), the evidential burden will shift to
the Defence, who will then have to adduce sufficient evidence to raise a reasonable doubt. If the Defence is
successful in doing so, the evidential burden will shift back to the Prosecution, who will have to adduce
sufficient evidence to remove the reasonable doubt raised by the Defence.
Similarly, where the Defence raises a defence, he has the legal burden of proving on a balance of
probabilities the facts in issue on which he relies on to establish the defence. If the Defence is successful,
the evidential burden shifts to the Prosecution, who must then cross-examine the defence witnesses or
adduce other evidence to at least equalize the probabilities.
The distinction between the obligation to prove facts and the obligation to raise evidence can be fatal to a
case. In PP v. Abdul Naser bin Amer Hamsah [1996] SGCA 61 the Prosecution argued that the accused,
who was charged with murder, had the burden of proving that he did not intend to cause the injuries to his
victim. Thean JA affirmed the finding of the trial judge that the accused only had an evidential burden to
show a reasonable doubt.

Burden of Proof in the Civil Context


Who bears the burden of proof in civil cases?
In Rabobank International v. Motorola Electronics Pte Ltd [2010] SGCA 47, the Pf sued the Df to
recover a debt which had been assigned to it by the original creditor. The Df argued that it had an implied
right of contractual set-off against the original creditor. The issue before the SGCA was which party carried
the burden of proof in respect of the implied right of contractual set-off?
Chao JA held that [i]n civil trials, the pleadings are central in determining the occurrence of the burden of
proof, because the pleadings state the material facts establishing the legal elements of a claim or a defence
The legal burden of proving a pleaded defence rests on the proponent of the defence, unless the
defence is a bare denial of the claim This rule is consistent with the general principle underlying ss.103
and 105 of the Evidence Act, viz, that he who asserts must prove.

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Special knowledge (s.108) in the civil context


Burden of proving fact especially within knowledge
108. When any fact is especially within the knowledge of any person, the burden of proving that fact is
upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of
the act suggest, the burden of proving that intention is upon him.
Surender Singh s/o Jagdish Singh v. Li Man Kay [2009] SGHC 168 arose in the context of medical
negligence alleged by the husband of the Deceased against the operating doctor and, vicariously, NUH.
Following her operation, the Deceased was transferred to Ward 43 at about 1410 hours with instructions
that she be monitored hourly in the ward. Although she her condition was reviewed at about 1430 hours,
she was not monitored again as per scheduled at 1530 hours. There was a pronounced gap in the evidence
in respect of the time period between 1430 hours up until the next time that she was examined (circa 16001615 hours). The Pfs submitted that pursuant to s.108, the burden should fall on NUH to prove that the
Deceased was adequately and appropriately monitored since the Pfs were not in a position to provide
further details on how the Deceased was cared for when she was there, and that what happened during the
time in respect of which there was an evidential gap was a matter within the knowledge of NUH.
Lai J held that pursuant to s.108, the burden was on NUH to prove that the Deceased was adequately and
appropriately monitored in Ward 43 during the crucial period after 1430 hours. [As] the Pfs were not
privy to any of the events that took place before [1600 hours,] [i]t would be disproportionately difficult
for the Pfs to prove a negative that the staff of NUH had failed to monitor the Deceased in Ward 43. It
was for NUH to show that the Deceased was monitored during the period in question. Lai J then went on
to delineate the ambit of s.108, stating that notwithstanding his holding, a mere allegation by the Pfs that
the Deceased was not monitored in Ward 43 [was] insufficient to invoke s.108 of the EA. The Pfs [had to]
first establish a prima facie case against NUH that the Deceased was not monitored.
While improper conviction is a serious consequence of an overly expansive application of s.108, the danger
is less pronounced within the civil sphere. However, as Surender Singh demonstrated, the court must still
ensure that the conditions of s.108 are clearly satisfied before requiring a party to prove a fact which the
other party is required to prove pursuant to the general rules in ss.103-105. Thus, for e.g., the Pf has the
legal burden to prove negligence against the Df, and he cannot argue that under s.108, the Df must prove
the non-existence of a certain fact (which indicates negligence) unless the elements of s.108 are clearly
satisfied. It is important to note that when the elements of s.108 are satisfied, the language of the section
clearly imposes upon the relevant party a legal burden as opposed to a mere evidential burden.

Burden of Proof in the Criminal Context


Who has the burden of proving that the accused comes within a particular exception?
Burden of proving that case of accused comes within exceptions
107. When a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the general exceptions in the Penal Code (Cap. 224), or within any special
exception or proviso contained in any other part of the Penal Code, or in any law defining the offence, is
upon him, and the court shall presume the absence of such circumstances.
Illustrations
(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the
act.
The burden of proof is on A.
(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self-

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control.
The burden of proof is on A.
(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335,
voluntarily causes grievous hurt shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances, bringing the case under section 335, lies on A.
S.107 EA imposes the legal burden on the accused to prove the elements of the defence according to the
requisite standard set out in s.3 EA. This is a departure from the common law approach embodied in
Woolmington v. DPP [1935] AC 462, which laid down the rule that in order to prove guilt, not only must
the Prosecution prove the elements of the offence, it must also disprove any defence put forth by the
Defence that is not insanity or a statutory exception. That s.107 imposes the legal burden on the accused to
prove the elements of the defences such as accident, provocation, or self-defence was the conclusion of the
PC in Jayasena v. R [1970] AC 618 in interpreting a similar provision to s.107 EA under the law of
Ceylon, and [s.107] could not be construed in the light of Woolmington v. DPP.

Where the essence of a defence is merely a denial of the requisite intention


If the accused raises the defence of accident, he is merely denying that he had the requisite intention, a fact
which the Prosecution is required to prove under s.103. Yet, s.107 requires him to prove accident because it
is a general exception in the Penal Code (s.80). The problem is phrased by Soertsz J in the Sri Lankan case
of R v. Chanderasekera (1942) 44 NLR 97 as such:
The position is, however, different in cases in which, by involving the fact in issue in sufficient
doubt, the accused ipso facto involves in such doubt an element of the offence that the
prosecution had to prove [F]or instance, [where] the jury were in sufficient doubt as to
whether the death of the [victim] was the result of an accident or not, the jury are necessarily as
much in doubt whether the intention to cause death or to cause an injury sufficient in the ordinary
cause [sic] of nature to cause death existed or not. In such a case, the proper view seems to me to
be that the accused succeeds in avoiding the charge of murder, not because he has established his
defence, but because, by involving the essential element of intention in doubt, he has produced
the result that the prosecution has not established a necessary part of its case.
The SGHCs approach to this issue in Jumaat bin Samad v. PP [1993] SGHC 145, in relation to the
defence of intoxication under s.86(2) of the Penal Code, was to adhere strictly to the terminology of the
EA, with the result that the accused had the burden of proving the elements of intoxication in accordance
with s.107 EA. Yong CJ went on to hold that the Prosecution was entitled to treat the accused as if he were
sober in proving beyond reasonable doubt that the accused had the necessary mens rea, even though
[t]he court may have to answer some rather hypothetical and artificial questions in the process.
The implication of Yong CJs holding is that all the Prosecution needs to show is an apparent intention
arising from the actus reus of the crime, i.e., the Prosecution does not need to raise independent evidence
of actual intention unless the accused proves intoxication on a balance of probabilities (in which case the
evidential burden shifts to the Prosecution). The consequence of this appears to be that the Prosecution does
not have a legal burden and only an evidential one in relation to intention, which somewhat contradicts the
requirement under s.103 EA that the Prosecution must prove all the elements of an offence. In this respect,
the approach in Chanderasekera, that defences which require the proof of additional facts should be
distinguished from defences which merely challenges the Prosecutions case, arguably accords better with
reality. Notwithstanding the concessions, it remains the case that Jumaat bin Samad is consistent with
s.107, and, as pointed out by Yong CJ, is therefore the preferable solution.
In the context of accident, Jumaat bin Samad could possibly be extrapolated to stand for the proposition
that the Prosecution need only show that apparent intention of the accused from the act and leave it to the
accused to prove that his act was accidental.

9 | Page

Defence of alibi
The defence of alibi is more than merely a denial of presence at the scene of the crime, but instead asserts
collaterally that the accused was present somewhere else (Per Yong CJ in PP v. Chong Siew Chin [2001]
SGHC 372). S.107 EA is not applicable as alibi is a non-statutory defence. Instead, alibi is covered under
Illustration 2 of s.105 EA.
Burden of proof as to particular fact
105. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustrations
(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it.
In Syed Abdul Aziz v. PP [1993] SGCA 65 (followed by Yong CJ in Ramakrishnan s/o Ramayan v. PP
[1998] SGHC 273 and Chong Siew Chin), Rajendran J held that it was for the Prosecution to prove that
the accused could not rely on an alibi and for the accused to prevent such proof by raising a reasonable
doubt as to his presence at the scene of the crime. In other words, the accused bore only an evidential
burden to raise the issue of alibi.
The formulation of Rajendran J (and subsequently Yong CJ) is difficult to reconcile with s.3(3) EA read
with s.105 EA, as the accused merely has an evidential burden to adduce evidence so as to raise a
reasonable doubt, and need not prove the legal elements of the defence. More doubt is cast over the holding
when taking into consideration Lord Devlins pronouncement in Jayasena that there is only one burden of
proof in the EA, viz, the legal burden of proof. Practically speaking, even if the accused bore a legal burden
of proving the fact that he was somewhere else at the material time, the conclusion might very well be the
same, since if the accused fails to prove that fact on a balance of probabilities, it may still have the effect of
raising a reasonable doubt over the Prosecutions allegation that the accused was at the scene of the crime
during the material time.

Words of exception or qualification in the statute creating the offence


R v. Edwards [1975] QB 27 concerned whether an accused who was charged for selling intoxicating liquor
without a licence. The relevant statute did not state expressly that the burden of proving the existence of a
license should be on the accused. The accused contended that since the statute conferred on a constable the
right to inspect the register of licenses, the Prosecution should have called evidence to prove that the
accused did not have a valid license.
Lawton LJ held that if the true construction of an enactment under which the charge is laid is that the
enactment prohibited the doing of a certain act, save in specified circumstances, it was not for the
Prosecution to prove a prima facie case of lack of excuse or qualification, instead, the accused had the
legal burden to prove that he was entitled to do the prohibited act and, accordingly, in the present case
the accused had to prove that he held a license.
Subsequently, in R v. Hunt [1987] AC 352, the accused was charged with unlawful possession of morphine
contrary to s.5 of the Misuse of Drugs Act 1971. The Act provided that no offence would be committed if
the drug was mixed with other matter and the morphine only consisted of 0.2% or less. The question here
was whether the Act gave rise to an exception to liability or whether they defined the elements of the
offence.
The HL held that Woolmington did not establish a rule of law that the burden of proving a statutory defence
lay on the accused only where the statute specifically so provided, since a statute could place the burden
of proof on the accused by necessary implication, and that each case turned on the construction of the
particular legislation. This did not mean that Edwards was wrongly decided, instead, Lord Griffith
preferred to adopt the formula stated by Lawton LJ as an excellent guide to construction rather than as an
exception to the common law rule that the Prosecution must prove every element of the offence charged.
Where, however, a linguistic construction does not indicate clearly on whom the burden of proof lies, the

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court, according to Lord Griffith, should look to other considerations to determine the intention of
Parliament such as the mischief at which the Act was aimed and practical considerations affecting the
burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in
discharging the burden. In his Lordships view, the last consideration is one of great importance, as
Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove
his innocence in a criminal case, and a court should be very slow to draw any such inference from the
language of a statute.
His Lordship took into account the gravity of drug-related offences and indicated his preference for
resolving any construction ambiguity in favour of the accused by placing the burden of proving the nature
of the substance involved in so serious an offence on the Prosecution. Accordingly, on a true construction
of the provisions, the offence involved possession of morphine in a prohibited form, and as it would have
been particularly onerous for the accused to prove that the substance was not prohibited given the fact that
the drug had been seized from in during the police investigations, it was for the Prosecution to prove that
the morphine consisted of more than 0.2% and not for the accused to prove that there was 0.2% or less.
The English CA adopted a syntactical approach and classified defences based on the syntax or the
sectional location of the provision. On the other hand, the HL in Hunt, while upholding Edwards as
reaching the correct conclusion on the facts, preferred to employ a purposive approach, paying attention
to not only the linguistic structure of the statute, but also to the mischief at which it was aimed as well as
various practical matter which affect the burden of proof. The effect of the less mechanical approach in
Hunt is that there will be situations where although words of exception or qualification appear in a statute,
they may be construed as not imposing the burden of proof on the accused, and, conversely, even if a
statutory provision does not contain words of exception or qualification, the court might still hold that the
section does impose the burden of proof on the accused. In principle, the Hunt approach is the better one.
However, taking into account the language of s.107, which expressly imposes the burden of proof on the
accused to prove, inter alia, that he comes within any special exception or proviso contained in any law
defining the offence, as well as the decision of Tan Khee Wan Iris v. PP [1995] SGHC 94 (below), it will
invariably be the case, at least where words of exception or qualification appear in a statute, that the burden
will be placed on the accused.
Edwards and Hunt were applied by the SGCA in PP v. Kum Chee Cheong [1993] SGCA 95, which
concerned s.3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act:
it shall not be lawful for any person to use or to cause or permit any other person to use a
motor vehicle, unless there is in force a policy of insurance.
Thean JA held that the result of Edwards and Hunt was that
[w]here an enactment prohibits the doing of an act save in specified circumstances or by persons
of specified class or with specified qualifications or with licence or permission of specified
authorities, it is a matter of construction whether the burden of proving the circumstances,
qualification, licence or the like shifts3 to the defendant, and if on the true construction of the
enactment, the burden shifts to the defendant it is for him to show that he is entitled to do the
prohibited act and that burden is not an evidential burden but a legal burden. It follows therefore
that in such case there is no necessity for the Prosecution to establish prima facie evidence of the
specified circumstances, qualification or licence or the like as provided in the enactment entitling
the defendant to do the prohibited act.
On the facts, as the Motor Vehicles (Third-Party Risks and Compensation) Act did not expressly provide
for on whom the burden lies to prove that there is in force such policy of insurance, the Court opined that
the mischief at which the Act is directed is the risks of injury or damage to third parties arising from the use
3

For the sake of clarity, the legal burden, unlike the evidential burden, does not shift from one party to
another at any time during the course of the trial. The confusing terminology employed by the SGCA
should be contextualized and interpreted as who has the legal burden from the outset pursuant to the
circumstances of the trial.

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of motor vehicles and the purpose of the Act is undoubtedly to make mandatory the necessary insurance to
be taken out to cover such risks. Furthermore, while the accused would have little difficulty in producing
the policy, it would be impossible or disproportionately difficult for the prosecution to prove that [the
accused] did not have in force at the material time such policy of insurance. Accordingly, the SGCA was
of the opinion that the burden was on the accused to prove that he had the policy of insurance at the
material time.
The SGCAs approach appeals to common sense since it is eminently harder to prove a negative averment
than a positive one (unless, in the context of Kum Chee Cheong, there was a centralised insurance policy
registry through which the Prosecution could have obtained a list of policyholders with valid policies at the
material time to show that the accused was not on the list although this might constitute negative hearsay
where the person who compiled the list does not testify (R v. Patel [1981] 3 All ER 94)). Hence, where it is
easier for the accused to prove a positive averment, which conversely means that the prosecution would
have to prove the same positive averment but as a negative averment, then the burden should be on the
accused.
Of note also is the fact that the SGCA did not consider s.107, as was point in Tan Khee Wan Iris v. PP
[1995] SGHC 94 at [12]. Tan Khee Wan Iris arose in the context of the Public Entertainments Act, which
prohibited the provision, or assistance in the provision, of public entertainment except by license. Yong CJ
held that the PEA prohibits any person from providing public entertainment save within a special exception
or proviso, viz, with a valid license, and therefore, s.107 EA applied so as to impose on the accused the
legal burden of proving that the case fell within the special exception or proviso. Accordingly, the
Prosecution was not required to show any mens rea regarding the absence of a license.
In light of Tan Khee Wan Iris, an issue as to the compatibility of the purposive approach in Hunt, as
endorsed by the SGCA in Kum Chee Cheong, with s.107 EA is raised. The crux of the matter is whether
the court will construe the exception or proviso to determine whether it is one of substance or form, such
that if it is one of substance, the burden will be on the accused, but if it is one of form, the burden will be
on the Prosecution. Alternatively, the court could conclude that s.107 does not make a distinction between
substance and form so that the burden will be on the accused regardless.

Special knowledge in the criminal context


Burden of proving fact especially within knowledge
108. When any fact is especially within the knowledge of any person, the burden of proving that fact is
upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of
the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is
on him.
In Mary Ng v. R [1958] AC 173, the accused was charged for accepting money from a 3rd party to induce a
judge to show favour to the 3rd party. The Prosection argued that it was for the accused to prove a lack of
influence over the judge as that matter was especially within her knowledge.
The PC rejected the Prosecutions argument and held that it was not for the accused to prove that she had
not acted deceitfully; rather, it was for the Prosecution to prove beyond a reasonable doubt that she had not
so acted.
In other words, the PC was mindful of adopting a literal interpretation of s.108, as that would have had the
effect of requiring the accused to disprove the elements of the offence on the basis that he is in a better
position to know about the circumstances of the case.
In the same connection, VK Rajah J (as he then was) emphasised in PP v. Chee Cheong Hin Constance

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[2006] SGHC 9 that s.108 does not impose any burden on the accused to prove that no crime was
committed [and] cannot relieve the Prosecution from its burden of proof. It can only be employed to
address certain exceptional cases where it would be impossible or at any rate disproportionately difficult
for the Prosecution to establish facts which are "especially" or "particularly" within the knowledge of the
accused which an accused can prove without difficulty or inconvenience.
PP v. Abdul Naser bin Amer Hamsah [1996] SGCA 61, a case involving the alleged murder of a tourist
during a robbery, is an e.g. of a case where s.108 did not apply.
The Prosecution contended that the accused had intentionally caused the injuries to the deceased tourist by
stamping on her face while she was lying on the ground, and that pursuant to s.108, it was for the accused
to prove that he had caused the injuries accidentally on a balance of probabilities. In his defence, the
accused contended that he had accidentally stepped on the deceaseds face.
Referring to Illustration (a) to s.108, the SGCA (unanimous in respect of this issue) held that the provision
had no application in the present case at all. S.108 and Illustration (a) would be applicable if the defence
was that the accused did stamp his foot on the deceased's face but that his intention was not to cause, and
that the stamping did not cause those injuries, as where this is the case, the act of stamping was done "with
some intention other than that which the character and circumstances of the act suggest". However, the
accuseds defence was that he had accidentally stepped on her, and accordingly there was no act within the
meaning of the Illustration.
Note: It was perhaps more appropriate for the Prosecution to have brought the case under s.107, under
which the argument could be made, notwithstanding the difficulties discussed above, that the accused bore
the legal burden of proving on a balance of probabilities the elements of the defence of accident, instead.

Presumptions
Presumptions
4.(1) Whenever it is provided by this Act that the court may presume a fact, it may either regard such
fact as proved unless and until it is disproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as
proved unless and until it is disproved.
(3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the
one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving
it.
Briefly, s.4(1) deals with presumptions of fact, s.4(2) deals with rebuttable presumptions of law and s.4(3)
deals with irrebuttable presumptions of law.

Rebuttable presumptions of law


Presumptions
4.(2) Whenever it is directed by this Act that the court shall 4 presume a fact, it shall regard such fact as
proved unless and until it is disproved.
Interpretation
3.(1) In Parts I, II and III, unless the context otherwise requires
Disproved
(4) A fact is said to be disproved when, after considering the matters before it, the court either believes
that it does not exist or considers its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it does not exist.

Note that the use of the word shall is misleading, as the presumption is not mandatory in the true sense,
i.e., it is rebuttable.

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Reading s.4(2) with s.3(4), the party seeking to rebut the presumption bears the burden of disproving it in
accordance with the standard laid down in s.3(4). In other words, the rebuttable presumption of law is a
legal presumption which imposes the legal burden of proof on the party against whom the presumption
operates so that he must rebut the presumption on a balance of probabilities. This was explained by Lord
Diplock in the PC case of Yuvuraj, which concerned the Malaysian Prevention of Corruption Act 1961.
The Act provided, inter alia, that upon proof that the accused (a) had received gratification, and (b) was
then in public employment, it shall be deemed that he had received gratification for corrupt purposes,
unless the contrary is proved.
Lord Diplock held that in order for the accused to rebut the presumption, the presumed fact (that he had
received gratification for corrupt purposes) had to be disproved on a balance of probabilities, as the words
proved created a legal burden as opposed to a mere evidential one5.

Rebuttable presumption in the context of the Misuse of Drugs Act (Cap. 185)
Under the Misuse of Drugs Act, the Prosecution would have to prove, in the case of drug trafficking, that
the accused was knowingly in possession of controlled drugs and that his purpose was to sell, give,
administer, transport, send, deliver or distribute or to offer to do [any of these acts] or to do or offer to do
any act preparatory to or for the purpose of trafficking in a controlled drug.
As the facts of possession, knowledge and intention to traffic may be particularly difficult to prove, the
MDA contains certain rebuttable presumptions that arise when certain prescribed facts are present.
Thus in PP v. Tan Kiam Peng [2006] SGHC 207, VK Rajah J, as he then was, observed that the MDA
establishes 3 core evidential presumptions in connection with drug trafficking:
(1) S.18(1) MDA: A person who is proved to have had in his possession or custody or under his
control a controlled drug shall, until the contrary is proved, be presumed to have had that drug in
his possession.
(2) S.18(2) MDA: If a person is proved or presumed to have had a controlled drug in his possession he
shall, until the contrary is proved, be presumed to have known the nature of that drug.
(3) S.17 MDA: Upon proof of possession of an amount of the controlled drug in excess of a certain
stipulated quantity it shall be presumed, unless it is proved to the contrary, that the possession was
for the purposes of trafficking.
In the same case, VK Rajah J mounted a robust defence of the necessity of these presumptions:
It does not require a great deal of common sense to appreciate that in certain instances it is
plainly necessary to alter evidential rules in order to combat pernicious social evils in the interests
of the wider community. It would be difficult in the vast majority of this particular genre of cases
(and particularly drug offences) to prove the existence of mens rea when the factum of possession
is the only objective factor invariably present; hence the entirely reasonable suggestion by these
eminent legal jurists that it is imperative that the possessor of the substance explain persuasively
his lack of knowledge. Inadequate comprehension or appreciation of the origins and basis of the
entirely pragmatic and morally defensible legal reasoning underpinning such presumptions has
often led to intemperate criticisms of the core presumptions created by the MDA by ill-informed
observers and commentators.
When the case went on appeal, the SGCA took a similar stand:
The Act is structured in such a manner as to ensure that truly innocent persons are (in so far as
the issue of possession is concerned) able to rebut the initial presumption (in s.18(1)) without any
difficulties. However, this structure also ensures that accused who are truly guilty under the
relevant provisions of the Act are not given carte blanche to deny possession by mere assertion,
without more, hence undermining the general policy of the Act itself [T]he inimical effects that
5

If it were merely an evidential burden, the accused would simply have to adduce some evidence to
suggest some possibility that the gratification was not used for corrupt purposes, whereas the Prosecution
would have to prove beyond a reasonable doubt that the gratification was used for corrupt purposes.

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would result from a frustration of the general policy of the Act generate not only social ills and
tragedy but also simultaneously violate the individual rights of those who are adversely and
directly impacted by the availability (and, hence purchase as well as consumption) of controlled
drugs on the open market (including, in many instances, innocent members of their respective
families as well). These very important aspects have generally been downplayed by critics of the
Act who, at best, mention them in passing without more only to revert to the alleged
contravention of the rights of the accused against whom (in their view) no presumptions should
operate against. However, these critics never directly address the issue as to what the reality would
be if no presumptions were in operation [T]he Legislature has put in place a structure that
balances the rights of accused persons on the one hand and the rights of persons in the wider
society on the other.
The constitutionality of the MDA presumptions was challenged, albeit unsuccessfully, in Ong Ah Chuan v.
PP [1980] SGPC 6 on the grounds that it violated the presumption of innocence and principles of natural
justice. The PC held that the presumption did not violate the principles of natural justice as natural justice
requires that a person should not be punished for an offence unless it has been established to the
satisfaction of an independent and unbiased tribunal that he committed it. [T]here should be material
before the court that is logically probative of fact sufficient to constitute the offence with which the accused
is charged. Instead, the PC noted that [p]resumptions of this kind are a common feature of modern
legislation concerning the possession and use of things that present danger to society like addictive drugs,
explosives, arms and ammunition.

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Similar Fact and Character Evidence


Similar Fact Evidence
Similar Fact Evidence in Criminal Cases
The statutory scheme for similar fact evidence
Facts showing existence of state of mind or of body or bodily feeling
14. Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any
state of body or bodily feeling, are relevant when the existence of any such state of mind or body or
bodily feeling is in issue or relevant.
Explanation 1 A fact relevant as showing the existence of a relevant state of mind must show that the
state of mind exists not generally but in reference to the particular matter in question.
Explanation 2 But where upon the trial of a person accused of an offence the previous commission by
the accused of an offence is relevant within the meaning of this section, the previous conviction of such
person shall also be a relevant fact.
Illustrations
(a) A is accused of receiving stolen goods, knowing them to be stolen. It is proved that he was in possession
of a particular stolen article.
The fact that at the same time he was in possession of many other stolen articles is relevant as tending to
show that he knew each and all of the articles of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a counterfeit coin, which at the time when he
delivered it he knew to be counterfeit.
The fact that at the time of its delivery A was possessed of a number of other pieces of counterfeit coin is
relevant.
The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin,
knowing it to be counterfeit, is relevant.
(c) A sues B for damage done by a dog of Bs, which B knew to be ferocious.
The facts that the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.
(d) The question is whether A, the acceptor of a bill of exchange, knew that the name of the payee was
fictitious.
The fact that A had accepted other bills drawn in the same manner before they could have been transmitted
to him by the payee, if the payee had been a real person, is relevant, as showing that A knew that the payee
was a fictitious person.
(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.
The fact of previous publications by A respecting B showing ill-will on the part of A towards B is relevant,
as proving As intention to harm Bs reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B and that A repeated the matter complained of
as he heard it, are relevant as showing that A did not intend to harm the reputation of B.
(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B being induced to trust C,
who was insolvent, suffered loss.
The fact that at the time when A represented C to be solvent C was supposed to be solvent by his
neighbours, and by persons dealing with him, is relevant, as showing that A made the representation in
good faith.
(g) A is sued by B for the price of work done by B upon a house of which A is owner by the order of C, a
contractor.
As defence is that Bs contract was with C.

16 | P a g e

The fact that A paid C for the work in question is relevant as providing that A did in good faith make over
to C the management of the work in question, so that C was in a position to contract with B on Cs own
account and not as agent for A.
(h) A is accused of the dishonest misappropriation of property which he had found, and the question is
whether, when he appropriated it he believed in good faith that the real owner could not be found.
The fact that public notice of the loss of the property had been given in the place where A was, is relevant
as showing that A did not in good faith believe that the real owner of the property could not be found.
The fact that A knew or had reason to believe that the notice was given fraudulently by C who had heard of
the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A
knew of the notice did not disprove As good faith.
(i) A is charged with shooting at B with intent to kill him.
In order to show As intent, the fact of As having previously shot at B may be proved.
(j) A is charged with sending threatening letters to B.
Threatening letters previously sent by A to B may be proved as showing the intention of the letters.
(k) The question is whether A has been guilty of cruelty towards B his wife.
Expression of their feelings towards each other shortly before or after the alleged cruelty are relevant facts.
(l) The question is whether As death was caused by poison.
Statements made by A during his illness as to his symptoms are relevant facts.
(m) The question is, what was the state of As health at the time when an assurance on his life was effected?
Statements made by A as to the state of his health at or near the time in question are relevant facts.
(n) A sues B for negligence in providing him with a motor car for hire not reasonably fit for use whereby A
was injured.
The fact that Bs attention was drawn on other occasions to the defect of that particular motor car is
relevant.
The fact that B was habitually negligent about the motor cars which he let to hire is irrelevant.
(o) A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing his intention to shoot B.
The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.
(p) A is tried for a crime.
The fact that he said something indicating an intention to commit that particular crime is relevant.
The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant.
Facts bearing on question whether act was accidental or intentional
15. When there is a question whether an act was accidental or intentional or done with a particular
knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of
which the person doing the act was concerned, is relevant.
Illustrations
(a) A is accused of burning down his house in order to obtain money for which it is insured.
The facts that A lived in several houses successively, each of which he insured, in each of which a fire
occurred, and after each of which fires A received payment from a different insurance office, are relevant as
tending to show that the fire was not accidental.
(b) A is employed to receive money from the debtors of B. It is As duty to make entries in a book showing
the amounts received by him. He makes an entry showing that on a particular occasion he received less
than he really did receive.
The question is whether this false entry was accidental or intentional.
The facts that other entries made by A in the same book are false, and that the false entry is in each case in
favour of A, are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit dollar.
The question is whether the delivery of the dollar was accidental.
The facts that soon before or soon after the delivery to B, A delivered counterfeit dollars to C, D and E are
relevant as showing that the delivery to B was not accidental.
The language of ss.14 and 15 clearly suggest that they are primarily concerned with the admission of
similar fact evidence to show the accuseds state of mind or mens rea.

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Under s.14, any evidence, including similar fact evidence, may be admitted for the purposes stated therein.
On the other hand, s.15 is narrower than s.14 in that it is concerned exclusively with evidence of similar
facts. The purpose of s.15 is that if the accused alleges that his act was unintentional or done without
particular knowledge, the Prosecution may wish to adduce evidence of a series of similar occurrences in
which the accused was involved and thereby show the improbability of the accuseds explanation.

Difference between the categorization approaches under ss.14 and 15 and in Makin
On a plain reading of ss.14 and 15, the sections do not express a standard for the degree of relevance, so
that if the evidence shows a particular state of mind or body or bodily feeling under s.14 or intention or
knowledge under s.15, it will be admissible as a matter of law irrespective of its probative force. In other
words, on a strict reading, it would appear that ss.14 and 15 adopt a categorization approach to the
admissibility of similar fact evidence. While Makin also adopts a categorization approach, it is not entirely
similar to ss.14 and 15. In particular, the formulation in Makin is broader because it allows the adduction of
similar fact evidence to rebut a defence which would otherwise be open to the accused. A literal
interpretation would mean that propensity evidence may be admitted to rebut any defence which the
accused raises even if it involves a denial of the actus reus. In contrast, in the scheme of the EA, even
extremely probative evidence which virtually confirms that the accused committed the alleged offence will
not be admissible under ss.14 or 15, as actus reus is excluded from their ambit. Hence, the evidence in R v.
Straffen [1952] 2 KB 9116 would not be admitted under ss.14 or 15.

A lacuna in respect of ss. 14 and 15?


On a literal reading of s.15, it is required that the accuseds acts formed part of a system. It would
therefore appear that a single act, irrespective of its probative worth, may not be adduced under s.15. While
it may be true that the existence of a series of similar occurrences would increase the probability, and
therefore the weight of the evidence, that the accused acted with intention, design or knowledge, it is
equally true that evidence of one act, although not part of a series of similar occurrences in the ordinary
sense of it, may nevertheless be sufficiently probative in certain circumstances to warrant admission, as
where the occurrence is in itself an extremely rare one to begin with.
Thus, the position under the EA is unsatisfactory, as a single but highly probative act will not only be
inadmissible under s.15, but also under s.14 if the condition of having reference to the particular matter
in question is not satisfied, as where the act was committed against someone in circumstances which have
nothing to do with the trial of the accused.

The common law approach to similar fact evidence


The first significant case in respect of similar fact evidence is the PCs decision in Makin v. AG for NSW
[1894] AC 64, where a husband and wife were charged with murdering a baby which had been found
buried in their garden. There was evidence to show that they had agreed to adopt it for financial
consideration.
The PC concluded that evidence of the discovery of other bodies of dead babies, which had been adopted
under similar circumstances, in the yards of other houses previously occupied by the husband and wife,
could be admitted to rebut the defence that the death of the baby was accidental. The basis of admissibility
was that the evidence of the discovery of so many bodies of other babies in similar circumstances was
particularly relevant to show that the defence of accident was most improbable. In coming to the decision,
Lord Herschall formulated what is regarded as the categorisation approach to similar fact evidence:

The accused denied strangulating a young girl to death. The prosecution adduced evidence of the
accuseds confession to the murder of 2 other girls, both of which shares similar circumstances to the
subject of the charge. Other than the fact that the accused was in the area at the time of the murder, there
was no other evidence which implicated him. Thus, the evidence would have proved the necessary actus
reus of the offence.

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The mere fact that the evidence adduced tends to show the commission of other crimes does not
render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it
bears upon the question whether the acts alleged to constitute the crime charged in the indictment
were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
The Makin formulation places emphasis on certain types of evidence as opposed to the degree of relevancy
of evidence in general. Thus, a principal difficulty with the Makin approach is that highly probative
evidence could be excluded because it is not adduced for one of the stated purposes, whereas evidence
of low probative value might potentially be admitted merely because it fits into one of the categories.
The rigidity of the Makin formulation has encouraged English judges, as Lord Wilberforce observed in the
subsequent case of Boardman v. DPP [1975] AC 4217, to create categories of circumstances in which
similar fact evidence could be adduced as exceptions in a bid to work around the exclusionary rules.
Hence, in the subsequent landmark decision of Boardman v. DPP [1975] AC 421, the HL reformulated the
rules of similar evidence as laid down in Makin, favouring a balancing test approach over the
categorisation approach. The case concerned a headmaster of a boarding school who was charged, inter
alia, for committing buggery with S and inciting H to commit buggery with him. The issue before the HL
was whether the trial judge, in convicting the accused, was correct in admitting the evidence on one charge
to corroborate the evidence in respect of the other charge and vice versa, and, accordingly, whether the trial
judge should have ordered separate trials instead. The main similarities in the testimonies of S and H were
in the accuseds modus operandi, viz, the accused had woken them up in the middle of the night in the
school dormitory, spoke in a certain tone of voice, invited them to do the act in the sitting room and
indicated his wish to be the passive partner.
The HL held that similar fact evidence is admissible if it has a sufficient degree of probative force so as to
override any prejudicial effect that it might have on the accused. This would depend on the general
circumstances of each case, such that [w]hether in the field of sexual conduct or otherwise, there is no
general or automatic answer to be given to the question whether evidence of facts similar to those the
subject of a particular charge ought to be admitted. The speeches of the various law lords also suggested
that the similar fact evidence sought to be admitted must have the quality of striking similarity in order to
be admissible. In this connection, Lord Salmon said that [t]he similarity would have to be so unique or
striking that common sense makes it inexplicable on the basis of coincidence.
Boardman v. DPP is a landmark case because it changed the emphasis of the rules of similar fact
evidence from one that is based on certain fixed purposes for which evidence may be adduced (such as to
rebut a particular type of defence raised), to one where admissibility is determined by the degree of
probity of the evidence whatever the purpose of its adduction. The Boardman approach is therefore
more encompassing than the highly technical categorization approach espoused in Makin.
The Boardman approach was modified in DPP v. P [1991] 2 AC 447, in which a parent was charged with
child sexual abuse. The similar fact evidence was an allegation that the accused had also sexually abused a
sibling of the victim. The victim was different, and it was agreed on all sides that there was nothing
strikingly similar about the way in which the 2 alleged sexual abuses were carried out.
Lord Mackay, while retaining the core of the balancing test as laid out in Boardman, concluded that to
regard striking similarity as an essential qualification for the admissibility of similar fact evidence is to
restrict the operation of the principle in a way which gives too much effect to a particular manner of stating
it. Hence, the circumstances in which there may be sufficient probative force are not restricted to cases
involving striking similarities but can be derived from some other sources, such as a relationship in time
or circumstance. Ultimatelty, [w]hether the evidence has sufficient probative value to outweigh its
prejudicial effect must in each case be a question of degree.

Reception of Boardman in Singapore jurisprudence


7

Lord Wilberforce: The English courts have tended to engage in a specious manner of outflanking the
exclusionary rule.

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The balancing test in Boardman, as redefined by the HL in DPP v. P, was first received into Singapore law
by the SGHC in PP v. Teo Ai Nee [1995] SGHC 70. The case involved copyright offences relating to sound
recordings. The Prosecution sought to adduce evidence of the accuseds conduct and convictions for
copyright offences from 10 years ago, relating to similar sound recordings involving the same artiste, to
show that the accused knew that the recordings infringed copyright.
Yong CJ held that there [was] no reason why Singapore courts should not formulate and adopt a common
law test like that set out in Boardman and DPP v. P, and that the Singapore courts should not be
constrained by any such self-imposed strictures of [the] EA.
Applying the balancing test, Yong CJ came to the conclusion that the evidence of the accuseds previous
acts did not have adequate probative force to make it just to admit the evidence. In addition, Yong CJ
considered the evidence to be too vague, insufficiently cogent and lacking in the strength of inference to
justify admissibility under ss.14, 15 and 11(b) EA.
Subsequently, in Tan Meng Jee v. PP [1996] SGCA 34, although the issue of whether the balancing test
expounded in Boardman applied to situations where the similar fact evidence was not within one of the
matters identified in ss.14 and 15, the SGCA nevertheless held, per curiam, that [w]hile the plain wording
of the EA does seem to adopt a categorization approach to similar fact evidence, it [is] quite clear,
without deciding whether similar facts adduced for other purposes can ever be relevant, that at least where
the similar facts are being adduced to prove one of the matters identified in ss.14 and 15, a balancing
process must take place. According to the SGCA, there was no controversy with such an approach as it is
warranted both in principle as well as on the wording of the legislation itself. As to the actual content of
the balancing process, the SGCA identified 3 factors (non-exhaustive) that should provide some guidance
to the trial judge, viz, the cogency, strength and relevance of the evidence sought to be adduced.
The authority of Tan Meng Jee has, however, been undermined by the SGHC decision of PP v. Mas Swan
bin Adnan [2011] SGHC 107. Chong J noted that the SGCAs approval of the Boardman test in Tan Meng
Jee was partly influenced by two other factors, viz, (1) it accepted that the courts had a general discretion to
exclude any kind of evidence prejudicial to the accused if it would be unjust to do so, even if the evidence
was deemed relevant and admissible under the EA; and (2), it took the view that the Boardman test was, in
substance, simply another form of the fairness exception. Chong J then observed that in light of the
decisions in Phyllis Tan and Lee Chez Kee, it is clear that the admissibility of similar fact evidence has to
be determined according to the categories of relevance under ss.14 and 15 and Tan Meng Jee is
inconsistent with the EA in so far as it allows for the exclusion of similar fact evidence that is otherwise
deemed relevant under those provisions. However, Chong J went on to qualify that his holding did not
mean that all previous cases where the balancing test had been applied were necessarily wrongly decided,
instead, decisions that have applied the striking similarity test were entirely consistent with ss.14 and
15, as the term similar occurrence in s.15 appeared to correspond with the striking similarity test.
The reformulated approach of Chong J therefore appears to be as such: all evidence that fall within the
specific categories are admissible, regardless of probative force, whereas those which do not will still be
admissible if they satisfy the strikingly similar test.
In a way, this is a slight improvement on the classic categorisation approach, since the problem with the
that approach is that in addition to evidence of low probity being potentially admissible, evidence of
extremely high probity that do not fall within any specific category would be excluded, and typically, the
more striking the similarity, the higher the probity.

Can similar fact evidence be adduced to prove actus reus?


As mentioned earlier, unlike the Makin formulation, which allows the adduction of similar fact evidence to
rebut a defence which would otherwise be open to the accused, the plain wordings of ss.14 and 15
suggests quite clearly that actus reus is excluded from their ambit. Yong CJ confirmed in Lee Kwang Peng
v. PP [1997] SGHC 201 that similar fact evidence that establishes actus reus does not qualify for inclusion
under ss.14 and 15.
However, whether similar fact evidence could nonetheless be admitted under s.11(b) in order to prove
actus reus is less straightforward.

20 | P a g e

When facts not otherwise relevant become relevant


11. Facts not otherwise relevant are relevant
(b) if by themselves or in connection with other facts they make the existence or non-existence of any fact
in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is whether A committed a crime at Singapore on a certain day.
The fact that on that day A was at Penang is relevant.
The fact that near the time when the crime was committed A was at a distance from the place where it was
committed, which would render it highly improbable, though not impossible, that he committed it, is
relevant.
(b) The question is whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact
which shows that the crime could have been committed by no one else and that it was not committed by
either B, C or D is relevant.
This issue was explored by the SGHC in Lee Kwang Peng, which concerned a taekwando instructor who
was charged for outrage of modesty against 3 boys between the ages of 12 and 14. The Prosecution stood
down the charges relating to the 3rd victim prior to the commencement of trial, at which all 3 victims gave
evidence against the accused. The accused was convicted, and on appeal, it was contended that the 3rd
victims evidence should not have been admissible.
Yong CJ held that the evidence was admissible by virtue of s.11(b), which, owing to the phrase highly
probable or improbable, marries relevance to probity arguably to a greater extent than either s.14 or
15, and therefore embodies the balancing mechanism of probative force against prejudicial effect
established in Boardman. Yong CJ acknowledged that the use of s.11(b) would be contrary to the scheme
of the Act as conceived by the draftsman, but his Honour was nevertheless prepared to employ a purposive
interpretation, which would pave the way for future treatment of the EA as a facilitative statute as
opposed to a mere codification of the draftman's statement of the law of evidence.
The use of s.11(b) to admit similar fact evidence is, however, problematic within the general scheme of the
EA. Specifically, unlike ss.14 and 15, s.11(b) is not recognized by s.122(5) as a basis for permitting crossexamination on evidence admitted under it. The logical implication is that, notwithstanding the conceivably
wide ambit of s.11(b), the draftsman had intended for the admission of similar fact evidence to be governed
only by ss.14 and 15.

Admissibility of similar fact evidence where the identity of the perpetrator is in issue
In DPP v. P, Lord Mackay stated that [w]here the identity of the perpetrator is in issue, and evidence of
this kind is important in that connection, obviously something in the nature of what has been called in the
course of the argument a signature or other special feature will be necessary, and merely showing that the
probative value of the evidence overrides the prejudicial effect of the similar fact evidence is insufficient
for it to be admissible. In the context of child molestation, Yong CJ held in Lee Kwang Peng that the fact
that a person accused of child molestation had his position of power over the victims to achieve those ends
might provide a sufficient hallmark to render the evidence of one victim admissible in the case of the other
where the danger of collusion can be discounted.

Collusion: conspiracy or innocent infection


On the issue of whether the 3 boys had fabricated or innocently embellished their case in Lee Kwang Peng,
Yong CJ considered the distinction between 2 forms of collusion formulated by Lord Mustill in R v. H
[1995] 2 AC 596, which may be summarised as follows: (a) a conspiracy by the witnesses to tell deliberate
untruths; and (b) unintended (or unconscious) untruths or embellishments (characterised as innocent
infection) resulting from the mutual recounting of facts.

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According to Yong CJ, the Prosecution must rebut an allegation of collusion by conspiracy by proving
beyond a reasonable doubt that there was no real risk of collusion. As for innocent infection, the court
must always be alive to [the possibility of contamination] even if it considers the possibility to be slight.
According to Yong CJ, innocent infection affects the probative value (weight of evidence) and not the
validity of the evidence, and accordingly, the Prosecution does not have to prove the absence of any risk of
contamination in these circumstances.
The reasoning is difficult to comprehend. The fact is that even the unintended embellishment of evidence
may have the effect of falsifying the facts. Whether it does so depends on the degree of the embellishment
and the circumstances of the case. The HCA in Hoch (1988) 165 CLR 292, in contrast, opted for the more
logical view that collusion or innocent infection goes into the probative value calculation at the
admissibility stage. Even a cursory reading of R v. H will reveal that the primary reason for taking the
assessment of collusion and innocent infection from the judge flows from the dynamics of jury trial. The
jury, the Lords said, must decide questions of fact, and collusion is a question of fact. Needless to say, this
rationale for the decision cuts no ice in Singapore. The preferable approach would be that if there is a
reasonable doubt at the end of the case that the validity of the Prosecutions evidence is contaminated by
innocent infection, the accused must be acquitted. Accordingly, it is for the Prosecution to prove beyond a
reasonable doubt that its evidence has sufficient integrity to warrant a conviction.

Whether a similar fact evidence which failed the Boardman test could nevertheless be
admitted as corroborating evidence
In Lee Kwang Peng, Yong CJ made remarks to the effect that even if the testimony of a witness is
inadmissible as similar evidence because it failed the Boardman test, "it may nonetheless be admissible as
corroborating evidence", as the exclusion of evidence as similar fact evidence does not necessarily rob it
of its corroborative quality".
The implication seems to be that testimony of similar fact evidence, although inadmissible as similar fact
evidence (to prove guilt), may be admissible to corroborate. One would have thought that the question of
admissibility is necessarily prior to the question of corroboration only if evidence is admissible can it
corroborate. The consequences of any other position is incalculably disastrous. It would mean that evidence
considered to be more prejudicial than probative and which therefore is likely to distort the fact-finding
process is nonetheless admissible for the purposes of corroboration. It would also mean that other kinds of
inadmissible evidence must, logically, be given the same dispensation, for e.g., involuntary confessions and
inadmissible hearsay, since the inadmissibility of these on the basis that their prejudicial effect outweighing
their probative value would not rob them of their corroborative quality.

Can similar fact evidence that would otherwise be excluded nevertheless be admitted
for the purpose of setting the background of the facts in issue?
In R v. M [2000] 1 All ER 148, X and his co-accused were charge with raping Xs sister. The CA held that
[w]here it is necessary to place before the jury evidence of part of a continual background of history
relevant to the offence charged and without the totality of which the account placed before the
jury would be incomplete or incomprehensible, then the fact that the whole account involves including
evidence establishing the commission of an offence with which the accused is not charged is not of itself a
ground for excluding the evidence.
Accordingly, the CA affirmed the trial judges decision to permit background evidence showing that X had
been taught by family members to abuse his sisters sexually when he was young and that he had been
involved in a history of sexual abuse. Such evidence explained why S had not sought help and why X was
able to carry out the alleged offences without fear.

Policital genesis of the rule in DPP v. P?


22 | P a g e

It could be speculated that a deeper political motivation is discernable from the HLs decision in DPP v. P.
Specifically, the HL was perhaps swept by populist sentiments over the prevalence of sex crimes in the
West at the time when the case was decided, and the requirement of striking similarity stood in the way
of the HL. Thus, they were at pains to do away with it in order to create an exception to permit the general
admissibility of similar fact evidence for sex crimes.
It is also interesting to note that Yong CJ admitted in Lee Kwang Peng (a sexual offence case) that the
circumstances revealed no striking similarity. In both Teo Ai Nee, a copyright infringement case, and Tan
Meng Jee, a drug trafficking case, the Court meticulously examined the similarities between the similar
fact evidence and the charge at hand. In both these cases, the similar fact evidence offered was rejected
because they were insufficiently similar to the charge. Both cases paid lip service to DPP v. P, but applied
Boardman, whereas Lee Kwang Peng applied DPP v. P literally. Professor Hor suggests that hidden
political agenda permeate sex-related offences, which rationalizes the disparity.

Similar Fact Evidence in Civil Cases


The statutory scheme for similar fact evidence
Sections 14 and 15 apply to both criminal and civil cases, as confirmed by Choo J in Rockline Ltd v. Anil
Thadani [2009] SGHC 20. However, as the prejudice which may arise from similar fact evidence is
generally of a lesser severity in civil cases, the court in a criminal case is likely to be stricter when
exercising its discretion in admitting similar fact evidence (per Choo J in Rockline). As Lord Denning
observed in Mood Music Publishing v. De Wolfe [1976] Ch 119 (endorsed in Rockline),
The criminal courts have been very careful not to admit [similar fact] evidence unless its
probative value is so strong that it should be received in the interests of justice: and its admission
will not operate unfairly to the accused. In civil cases the courts have followed a similar line but
have not been so chary of admitting it.

Common law position


The old position is set out in Mood Music Publishing v. De Wolfe [1976] Ch 119, where the Pf claimed
that the Df published musical work which infringed the Pfs copyright in his musical work. The Df
contended instead that the similarity of the work was coincidental.
The court held that similar fact evidence would be admitted if it was logically probative (i.e. logically
relevant in determining the fact which is in issue) and provided that its effect on the other party is not
oppressive or unfair and that the latter had fair notice of it so as to be able to deal with it.
The decision in Mood Music Publishing was reached on the basis that the admissibility of similar fact
evidence in civil cases must have a necessary degree of relevance to the issues. More recently, there has
been a shift in the common law towards a more flexible basis of admissibility. In OBrien v. Chief
Constable of South Wales Police [2005] 2 AC 534, Lord Philips held that relevance was the test for
admissibility of similar fact evidence in civil cases. In other words, the evidence is admissible if it is
potentially probative of an issue in the action. However, Lord Philips went on to hold that the court may
yet decide to exclude relevant evidence where justice so requires. In considering whether the justice so
requires, the court may take into account a range of factors. For e.g., the evidence may be excluded if it is
insufficiently cogent such that there is a risk of prejudice that could undermine a fair trial. Consideration
may also be given to the burden which admission would lay on the resisting party: the burden in time, cost
and personnel resources.

Position in Singapore
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Mood Music Publishing was cited with approval by the SGHC in Hin Hup Bus Service (a firm) v. Tay
Chwee Hiang [2006] SGHC 169. There, a bus operated by X was involved in an accident with a concrete
mixer. X had been accident-free for 20 years and suddenly within a span of 10 months, 8 similar accidents
took place. The Defence sought to adduce this fact as evidence to prove that the present accident was
staged to defraud insurers.
Lai J was satisfied that the probative force of the evidence outweighed any prejudicial effect: the 7 previous
accidents involving X constituted evidence of a regular "system" which justified the admissibility of such
evidence as similar fact evidence.
The question remains whether the more flexible approach in OBrien, which Lai J did not make any
reference to in Hin Hup Bus Services, will be applied in Singapore. The fact that the HL found support for
the discretion to exclude evidence in rule 32.1(2) of the English Civil Procedure Rules weakens the
authority of OBrien, given that such a discretion does not find expression in the EA. This is particularly
the case in the light of Law Society of Singapore v. Tan Guat Neo Phyllis, which held that apart from the
confines of the EA, there is no residual discretion to exclude evidence which is otherwise rendered legally
relevant by the EA.

Different considerations in a civil trial


At a criminal trial, probative force of the evidence must be weighed against its potential prejudicial effect
whereas, in the civil context, the countervailing consideration is described as fairness, which bears on the
similar fact rule as an ethical demand for equal treatment of litigants, and not prejudice. This is implicit in
the judgment of OBrien, where it appears that only the first part of the DPP v. P test was adopted, viz,
that the evidence must be logically probative of an issue in the case. Hence, while the test in DPP v. P
requires a balancing of probative value against prejudicial effect, all that is matters under the OBrien test
is whether the evidence is logically probative of an issue in the case. Implicit in this approach is the view
that the prejudicial effect of the evidence is not a factor that bears on its admissibility as a matter of law in
civil proceedings.

The Concept of Prejudice


The dilemma surrounding the normative conceptualization of the similar fact rule can be succinctly put as
such: under what circumstances should the accuseds antecedent acts be considered relevant and therefore
admissible to prove his guilt?
The institutional perspective encompasses the usual rhetoric such as admitting only good evidence so that
the trial is not unnecessarily protracted, fact-finders are not distracted/confused, and sloppy criminal
investigation is not encouraged. But the principal objection to similar fact evidence has to be that of
prejudice to the accused. Thus, from the prejudice perspective, similar fact evidence is unconnected to the
offence tried and has the potential to unduly influence the trier of fact by condemning the accused as a
criminal from the outset. There are also other dimensions to the concept of prejudice. One associated risk is
that of cognitive error. That human beings, by the very nature of our being, have a tendency to draw
stronger inferences from evidence of antecedent acts than is rational cannot be discounted, as much as the
judiciary is supposed to represent the bastion of objectivity. Another related aspect of prejudice is based on
the idea that we cannot completely dissociate the emotional aspect of our existence from our supposed
rational aspect. The consequence of this is that the trier of fact may be tempted to convict the accused not
because the evidence, construed objectively and dispassionately, supports the charge but because of other
extraneous factors beyond the control of a human being, such as the feeling of repulsion towards the
accused. A yet again related theme is the fear that the accused may be deprived of the benefit of the
presumption of innocence because of the strong antipathy that the fact-finder may feel towards him when
his hideous past is revealed. Against this backdrop, the trier of fact may assign more weight to the evidence
than it objectively warrants. Finally, on a more philosophical level, it seems only right that a person should
not be penalised for his past having already paid his debt to society. After all, the assumption is that the

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punishment was supposed to have been commensurate to the gravity of the offence, and to penalize him for
anything more than he had been sentenced to would be fundamentally incorrect.
But what does prejudice entail? There are, conceivably, 2 conceptions of prejudice. The first is inferential
prejudice courts are likely to overestimate the probative value of similar fact evidence and are likely to
err in the inferential steps between past misbehaviour and present misconduct. The second, and more
intriguingly, is moral prejudice, which is embodied in the so-called forbidden chain of reasoning enunciated
by Lord Hailsham in Boardman: the fact that the accused had on other occasions behaved in a certain way
suggests that he has a tendency or propensity to behave in that certain way, and therefore is likely to have
committed the offence for which he is presently being charged. The forbidden chain of reasoning involves
an assumption or a prejudgment that the accused must have acted in the particular way alleged in the light
of a background conception of his previous misconduct. Thus, as a result of this prejudgment, the trier of
fact might subconsciously revoke the principle that reasonable doubt must be resolved in favour of the
accused. Accordingly, under the 2nd conception, the focal point of prejudice is the making of such an
assumption, and the ban enforced by the similar facts rule on the so-called forbidden chain of reasoning
should be understood as a moral injunction against making such an assumption.

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Similar Fact and Character Evidence


Character Evidence
Character Evidence in Criminal Cases
The statutory scheme for character evidence
In criminal cases previous good character relevant
55. In criminal proceedings, the fact that the person accused is of a good character is relevant.
Admissibility of evidence and questions about accuseds disposition or reputation
56.(1) In any criminal proceedings, the accused may
(a) personally or by his advocate ask questions of any witness with a view to establishing directly or by
implication that he is generally or in a particular respect a person of good disposition or reputation;
(b) himself give evidence tending to establish directly or by implication that he is generally or in a
particular respect such a person; or
(c) call a witness to give any such evidence.
(2) Where any of the things mentioned in subsection (1) has been done, the prosecution may call, and any
person jointly charged with the accused may call or himself give, evidence to establish that the accused is a
person of bad disposition or reputation, and the prosecution or any person so charged may in crossexamining any witness (including, where he gives evidence, the accused) ask him questions with a view to
establishing that fact.
(3) Where by virtue of this section a party is entitled to call evidence to establish that the accused is a
person of bad disposition or reputation, that party may call evidence of his previous convictions, if any,
whether or not that party calls any other evidence for that purpose.
(4) Where by virtue of this section a party is entitled in cross-examining the accused to ask him questions
with a view to establishing that he is such a person, section 122(4) shall not apply in relation to his crossexamination by that party.
Parties to civil suit and their wives or husbands, and husband or wife of person under criminal trial
122.(4) Where in any criminal proceedings the accused gives evidence, then, subject to this section and
section 56, he shall not in cross-examination be asked, and if asked shall not be required to answer, any
question tending to reveal to the court
(a) the fact that he has committed, or has been charged with or convicted or acquitted of, any offence other
than the offence charged; or
(b) the fact that he is generally or in a particular respect a person of bad disposition or reputation.
(5) Subsection (4) shall not apply to a question tending to reveal to the court a fact about the accused such
as is mentioned in paragraph (a) or (b) thereof if evidence of that fact is (by virtue of section 14 or 15 of
this Act or of section 265 or 266 of the Criminal Procedure Code 2010 or of any other written law)
admissible for the purpose of proving the commission by him of the offence charged.
(6) Where in any criminal proceedings in which 2 or more persons are jointly charged, any of the accused
gives evidence, subsection (4) shall not in his case apply to any question tending to reveal to the court a fact
about him such as is mentioned in subsection (4)(a) or (b) if evidence of that fact is admissible for the
purpose of showing any other of the accused to be not guilty of the offence with which that other is
charged.
(7) Subsection (4) shall not apply if
(a) the accused has personally or by his advocate asked any witness for the prosecution or for a person
jointly charged with him any question concerning the witnesss conduct on any occasion or as to whether
the witness has committed, or has been charged with or convicted or acquitted of, any offence; and
(b) the court is of the opinion that the main purpose of that question was to raise an issue as to the witnesss

26 | P a g e

credibility,
but the court shall not permit a question falling within subsection (4) to be put to the accused by virtue of
this subsection unless it is of the opinion that the question is relevant to his credibility as a witness.
(8) Subsection (4) shall not apply where the accused has himself given evidence against any person jointly
charged with him in the same proceedings.
Although evidence good and bad character are found in different provision (s.55 and s.122(4) respectively),
they are materially connected as when the accused adduces evidence of his good character, the Prosecution
and co-accused may, in order to rebut the evidence of good character, be entitled to present evidence of his
bad character, or cross-examine him concerning the same under s.56.

Accuseds good character


As the accuseds good character is a relevant fact under s.55, he is entitled to give evidence of his good
character, which includes both reputation and disposition8. How an accused may adduce evidence of his
good character is provided for in s.56. Thus, he may do so either by (a) asking questions of any witness
with a view to establishing directly or by implication that [the accused] is generally or in a particular
respect a person of good disposition or reputation; or (b) the accused himself giving such evidence; or (c)
specially calling a witness to testify.
It was held in Tan Nguan Siah v. PP [1993] SGCA 75 that s.56 only applies where an accused person
puts his character in issue, that is to say, when he has given evidence of his own good character. It is then
possible for the prosecution to attack his character.
It is important to note that s.56 allows, in addition to general disposition and reputation, even evidence of
particular disposition or reputation to be adduced, whereas ss.54, 55 and 57, pursuant to Explanation 2
to s.57, are limited to only general reputation and general disposition, and does not include particular acts
by which reputation or disposition are shown.
In Tsang Kai Mong Elke v. PP [1994] SGCA 17, the accused, who had been charged with importation of a
controlled drug, admitted that she knew she was carrying an illegal drug. Furthermore, the court assessed
her as an alert and intelligent person who could not have been manipulated into bringing the drugs into
Singapore. The issue before the SGCA was whether the trial judge had failed to consider the good character
of the accused.
Yong CJ held that because of the nature of the appellant's defence and her own admission at trial that she
thought she was carrying cannabis into Singapore, the evidence of her good character and good family
background would not be of any material assistance to her defence or to rebutting the presumptions in [the
MDA].

Accuseds bad character


Section 122(4), which is made subject to s.56, prohibits an accused from being asked in cross-examination,
and if asked he is not bound to answer, any questions which tend to reveal that he has committed, or has
been charged with, or convicted or acquitted of any offence other than the one with which he is charge, or
that he is generally or in a particular respect a person of bad disposition or reputation.
Thus, the protection in s.122(4) only applies to the accused himself under cross-examination.
On the other hand, s.56 provides that the accused loses his s.122(4) shield when he, any witness he calls or
through his advocate when cross-examining a Prosecution witness adduces evidence, whether in the course
of giving testimony or under cross-examination, of the accuseds good character.

Explanation 2 to s.57 In ss.54, 55, 56 and 57, the word character includes both reputation and
disposition; but, except as provided in s.56, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition are shown.

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Does s.122(4) apply where the accused volunteers evidence which tend to reveal the
accuseds bad character?
The protection in s.122(4) does not apply where the accused himself had, for whatever reason, voluntarily
raised evidence of his bad disposition or reputation and the Prosecution was merely testing the evidence
under cross-examination. In Tan Nguan Siah v. PP [1993] SGCA 75, the accused was charged with drug
trafficking. His defence was that the drugs were for his own consumption, and to show how serious an
addict he was, he disclosed, under EIC (notwithstanding the Prosecutions concerns over prejudice), his
previous spells of detention at a drug rehabilitation centre, as well as his failure to attend urine tests while
being under police supervision. The Prosecution then proceeded to cross-examine the accused on those
matters with the aim of showing that the extent of his addiction was not as great as he had made it out to be.
The Defence argued that the trial judge had, to the prejudice of the accused, erred in allowing the accused
to be cross-examined on his periods of detention at the drug rehabilitation centre and had thereby allowed
evidence of "bad character" to be improperly admitted at the trial.
Karthigesu JA, after perusing the entire cross-examination transcript, held that there was nothing that
transgressed the parameters of what the accused said in his EIC. S.122(4) had no application as the
Prosecution were simply testing the evidence the accused had given in his own defence. This, Karthigesu
JA held, the Prosecution was entitled to do, as the accused had given evidence in his own defence to show
the extent of his heroin addiction and his consequent need for large quantities of heroin.

S.122(4) shield not applying pursuant to s.122(7) when the accused questions
Prosecutions or his co-accuseds witnesses with a view to undermining their credibility
Pursuant to s.122(7), the accused loses the protection provided by s.122(4) if his primary purpose in
questioning the witness for the Prosecution or co-accused is to raise an issue as to his credibility. Thus, it
only applies where such a witness is questioned, and only where the main purpose is to challenge the
witnesss credibility. Thus, if the accused, who is charged with theft of a watch, questions the Prosecution
witness to the effect that he gave the accused the watch as a present, he will not lose the protection, as this
goes to the defence, even though it necessarily goes to the credibility of the Prosecution witness as well.
However, if the accused alleges in a general vein that the Prosecutions or co-accuseds witness has given
false evidence or questions him about his previous arrests or charges or convictions for the purpose of
reducing his credibility, s.122(7) would apply. The line is, however, rather thin when the Prosecution
witness is an alleged accomplice and he is asked about his arrest or charges brought against him in respect
of the same transaction which led to the Prosecution of the accused in a separate proceeding. The line of
questioning arguably goes to defence as much as to his credibility.
Where s.122(7) applies, the credibility of the accused may be attacked in cross-examination. The word
credibility, however, raises difficult issues as to its definition and scope, which directly impacts the range
of questions that an accused may be asked where s.122(7) applies. The crux of the matter is whether
credibility implies that only questions regarding conduct or offences that involves dishonesty will
attract the operation of s.122(7), or whether it encompasses other conduct or offences involving any type
of wrong. In Garmaz s/o Pakhar v. PP [1995] SGHC 240, certain police officers were charged with acting
corruptly. In the course of the cross-examination of a Prosecution witness (who was allegedly involved in
the alleged corrupt activities of the accused), counsel for the accused asked him: Were you ever arrested
by CPIB and charged for any offence?
Yong CJ held that the shield provided by s.122(4) was lowered as the facts fell squarely within s.122(7)
EA, and accordingly, the Prosecution was entitled to cross-examine the accused on their previous pleas of
guilt to disciplinary charges in other proceedings. The disciplinary charges, according to Yong CJ, [were]
not really connected in any way with the corruption charges in question. As they do not indicate a
propensity towards corruption, Yong CJ held that the probative value of the evidence [was] minimal. At
best there [was] only some relevance towards the [accuseds] credibility.
The implication of the holding is therefore that where the operation of s.122(7) is attracted, the accuseds
credibility may be affected by unrelated offences, although the impact of such evidence must depend on the
circumstances.

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Accused losing s.122(4) protection pursuant to s.122(8) where he gives evidence


against a co-accused
Pursuant to s.122(8), the accused will lose his s.122(4) protection if he has given evidence against a coaccused who is tried in the same proceedings, whether or not they are charged with the same offence or
different offences.
An example where s.122(8) was operative is PP v. Tan Chaun Ten [1996] SGHC 281, where one of the
co-accused gave evidence of the others involvement in the alleged crime and became subject to crossexamination on his character.
The 11th Report (1972) of the UK Criminal Law Revision Committee noted that where s.122(8) is
operative, the protection is removed not only in favour of the accused against whom the evidence is given
but also in favour of the prosecution and any of the other co-accused. Singapore has yet to make a
pronouncement as to whether both the co-accused and the Prosecution are entitled to cross-examine the
accused, but the language of s.122(8) does not draw any distinction between the positions of the co-accused
and the Prosecution concerning the cross-examination of the accused, and hence on a strict reading, both
the co-accused and the Prosecution should be so entitled.

Character Evidence in Civil Cases


The statutory scheme for similar fact evidence
In civil cases character to prove conduct imputed irrelevant
54. In civil cases the fact that the character of any person concerned is such as to render probable or
improbable any conduct imputed to him is irrelevant, except in so far as such character appears from facts
otherwise relevant.
Character as affecting damages
57. In civil cases, the fact that the character of any person is such as to affect the amount of damages which
he ought to receive is relevant.
Explanation In sections 54, 55, 56 and 57, the word character includes both reputation and
disposition; but, except as provided in section 56, evidence may be given only of general reputation and
general disposition, and not of particular acts by which reputation or disposition are shown.
Section 54 concerns the admission of character evidence where it appears from the facts to be relevant.
Evidence of character is also relevant pursuant to s.57 if it affects the quantum damages to be awarded.
As explained by Choo J in Rockline Ltd v. Anil Thadani [2009] SGHC 20,
Section 54 is not a shelter for bad character. In civil cases, as it is generally, the law protects a
person from adverse findings against him only on the evidence that he was of bad character.
Character in itself is an irrelevant fact. A person might be in breach of contract whether or not he
was of good character; and conversely, a person of bad character might suffer a civil wrong
inflicted on him by a person of good character. Section 54 emphasized the point that relevant
evidence may sometimes leave impressions of character that might influence the courts findings
of fact but such subsidiary impressions are not grounds for rejecting the otherwise relevant
evidence. The second ground was based on the complaint that the passages in the affidavits in
question contain scandalous or vexatious assertions concerning some of the defendants.

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Hearsay & Res Gestae


Hearsay
Conceptual Basis for the Admission of Hearsay under the EA
Previously, the general consensus was that the common law exclusionary rule against hearsay should apply
through s.62, which requires oral evidence to be direct, i.e., the witness must testify only on the basis of his
personal perception, whether he see, heard or otherwise perceived, of the fact.
However, VK Rajah JA held in Lee Chez Kee v. PP [2008] SGCA 20 that the hearsay rule does not find
implicit expression in s.62, which prohibits the use of indirect evidence, and [t]o say that s.62 imports the
hearsay rule is to confuse a description of the mode of proof with the type of proof. This is because s.62
is not concerned with relevancy; it simply tells us how to prove facts which already have been found to be
relevant by the definition of relevancy in the earlier parts of the EA. Thus, s.62 should not be relied on for
the purpose of determining the admissibility of hearsay evidence in accordance with the common law.
Instead, according to his Honour, the hearsay rules operate purely in the context of whether a statement is
declared to be relevant or irrelevant in Part I of the EA.
VK Rajah JAs views were echoed earlier in Roy S Selvarajah v. PP [1998] SGHC 272, where Yong CJ
said:
The EA does not formulate the rule against hearsay evidence. Rather it adopts an inclusionary
rule, stating what may be admitted in evidence. Under s.5 of the EA, evidence may be given in
any proceedings of fact in issue or relevant fact. The common law definition of hearsay
corresponds with the terminology of the EA. Statements of relevant facts are hearsay and
inadmissible unless they fall within an exception to the hearsay rule since they are adduced to
prove the facts to which they refer. However, where the statement itself is relevant, then it is the
fact that the statement was made which is in issue
However, s.62 restrains the admissibility of multiple hearsay by preventing a witness from recounting a
statement of a relevant statement as opposed to the relevant statement which he has himself perceived (see
below).

Definition and Application of the Hearsay Rule


CPC 2010
Hearsay evidence in criminal proceedings
268. In any criminal proceedings, a statement is admissible as evidence of any fact stated therein to the
extent that it is so admissible by this Code, the Evidence Act (Cap. 97), or any other written law.
While the EA does not define hearsay, the definition of hearsay finds expression in s.268 of the CPC 2010.
The EA and CPC 2010 espouse contrasting approaches to the hearsay rule.
The CPC 2010, by virtue of the words or any other written law encompasses the traditional common law
position. The common law definition of hearsay as adopted in Soon Peck Wah v. Woon Chye Chye is as
such:

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The assertions of persons made out of court whether orally or in documentary form or in the form
of conduct tendered to prove the facts which they refer to (i.e. facts in issue and relevant facts) are
inadmissible unless they fall within the scope of the established exceptions.
However, VK Rajah JA held in Lee Chez Kee that due to the different conceptual bases, it is not
appropriate to adopt the common law definition for the purpose of the EA. Instead, hearsay in the EA is
perceived as such: the statement itself, even though it may be of relevant facts, is an irrelevant fact and
inadmissible due to the lack of general provisions under the EA making statements of relevant facts
themselves relevant facts. Thus, out of court statements of relevant facts or facts in issue are only
admissible under the EA to the extent that the statements are legally relevant pursuant to any of
ss.17-41 (Lee Chez Kee, per VK Rajah JA).
In other words, the EA does not formulate the rule against hearsay evidence. Rather, it adopts an
inclusionary approach, stating what may be admitted in evidence. The important question, as pointed out by
VK Rajah JA in Lee Chez Kee, is thus whether the statement to be admitted satisfies any of the definitions
of legal relevancy (which is a separate issue from whether the statement is logically relevant) in the EA. If
so, it is relevant, and is made admissible by s.5 of the EA and that is the end of the enquiry. It does not
matter whether evidence of the relevant fact thus established matches that which the common law denotes
as being original evidence or as being hearsay evidence admissible under an exception to the hearsay rule.
In short, Singapore applies a two-step approach in ascertaining the admissibility of hearsay evidence: (1)
whether the evidence is relevant under ss. 611 of the EA; and (2) even if it is not, does it nevertheless fall
under ss.1457 of the EA.

Key question for what purpose was the evidence tendered?


The answer to this question will determine whether the evidence amounts to inadmissible hearsay or, where
the s.17-40 exceptions are not applicable, whether it will be admissible (relevant). Where the purpose of
adducing evidence of an out of court statement is to establish the truth of what is contained in the
statement, this will constitute hearsay. However, where the purpose of adducing evidence of an out of court
statement is not to prove the truth of facts referred to in the statement, but to prove the fact that the
statement was made, this is original evidence and will therefore be admissible pursuant to s.5.
The aforementioned principle was borne out in the case of Subramaniam v. PP [1956] 1 WLR 965, where
Lord Radcliff held that [i]t is hearsay and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish
by the evidence, not the truth of the statement, but the fact that it was made.
The law on hearsay can be divided into 4 parts, viz, (1) hearsay statements; (2) non-hearsay statements; (3)
assertions that border between hearsay and non-hearsay; and (4) admissible hearsay under ss.17-41.

Express assertions by statement or conduct


In R v. Gibson (1887) 18 QBD 539, the accused was charged with malicious wounding by throwing a
stone. An unidentified woman had said to the Prosecutor at the scene, The man who threw the stone went
in there, indicating a house in which the accused was found. The womans statement to the Prosecutor was
not made while giving evidence in the proceedings, and was obviously tendered for the purpose of
suggesting that the person found in the house was the culprit, i.e., that the fact stated was true.
The statement was held to be inadmissible hearsay; evidence of the identity of the accused should have
been given by calling the women to testify.

Implied assertions by statement


In Teper v. R [1952] AC 480, the accuseds shop was on fire. The policeman at the scene heard a bystander
yell: your place burning and you are going away from the fire?

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The statement was held by the PC to amount to an implied assertion that the person driving away from the
scene at the time had been the accused, and accordingly the conviction was quashed.
In Wright v. Doe dTathan (1837) 112 ER 488, the issue was whether the testator was mentally competent
to make a will. The party who claimed the wills validity sought to adduce certain letters which had been
written to the testator for the purpose of showing that the writers (who had since died) must have assumed
(on the basis of the style of their language) that he was sane.
It was held on appeal that the letters were rightly excluded as they were tendered to prove the writers
implied assertions concerning the testators sanity.
The difficulties posed by the implied assertions by statement also split the HL in R v. Kearley [1992] 2 AC
228. The accused was charged with dealing in illegal drugs. As the limited quantity of illegal drugs found at
his house was insufficient to charge him with the offence, the police remained on the premises for several
hours for the purpose of securing more evidence. During the course of they stay, they answered 10 phone
calls asking for Chippie to supply the usual. 7 visitors also came to the house asking for Chippie so
that they could purchase drugs. The callers and visitors were not called to testify. The police officers gave
evidence of their conversations with the callers and the visitors to show that the accused had been dealing
in drugs.
The majority held that the testimony was inadmissible as the statements impliedly asserted that the accused
was a drug dealer. Neither was the evidence admissible to show the beliefs of the callers and visitors which
were irrelevant in the circumstances of the case.
The minority (Lord Griffiths and Lord Browne-Wilkinson) considered the evidence to be admissible on the
basis that the large number of callers and visitors seeking drugs from the accuseds home gave rise to a
clear inference that the accused had set up a drug market which was accessible to members of the public.
Accordingly, in the view of the minority, this was circumstantial rather than hearsay evidence. Lord
Griffith stated that as a matter of common sense it [was] difficult to think of much more convincing
evidence of his activity as a drug dealer than customers constantly ringing his house to buy drugs and a
stream of customers beating a path to his door for the same purpose.
The majoritys conclusion can be supported on the basis that if the callers and visitors had expressly stated
that the accused was a drug dealer, this would have been clearly hearsay. The fact that a person believes
that another person is involved in criminal conduct does not necessarily mean that this is true, and such
evidence would be too unreliable for a court to rely upon.
On the other hand, in the absence of a conspiracy of a conspiracy to frame the accused, the minority
judgment might be supported on the basis that 17 persons could not all be wrong about their assumption
that the accused was a drug dealer. The weakness of the minoritys approach, however, is that it inevitably
attracts the question of how many callers/visitors is required to justify an inference of a market?
The facts of Kearley might perhaps be a situation in which the flexible approach based on reliability as
endorsed by Mason J in Walton v. The Queen (1989) 84 ALR 59, even though he was alone in his view,
could have applied. In Kearley, there was no evidence suggesting that all 17 persons had conspired to frame
the accused, which renders the implied assertion, taking into account also the circumstances, highly
probative. In view of the repeated admonishment that in Singapore, the court is the trier of fact, and that the
court is purportedly more than capable, vis--vis a panel of jurors, of undertaking such a balancing
exercise.
Certain implied assertions are specifically made admissible under the EA (s.32A) and CPC 2010 (s.269).
These include the implied assertions arising from a protest, greeting or other verbal utterances.
Evidence Act
Protesting, greeting, etc., treated as stating fact that utterance implies
32A. For the purposes of section 32(1), a protest, greeting or other verbal utterance may be treated as
stating any fact that the utterance implies.
CPC 2010
Definitions, etc., for sections 270 to 277

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269. (3) For the purposes of this section and of sections 270 to 277, a protest, greeting or other verbal
utterance may be treated as stating any fact that the utterance implies.
Section 32A EA and s.269(3) CPC 2010 assume that implied assertions of a verbal nature are hearsay and
can only be admitted as an exception to the hearsay rule. Accordingly, the statement of a bystander,
although hearsay, may be admissible under the limited circumstances in s.32 EA for a civil case and s.269
CPC 2010 for a criminal case where the conditions under s.32(1) EA and s.270 and s.271 CPC 2010 are
respectively complied with.

Implied assertion by conduct


In Wright v. Doe dTatham, there was evidence that the testators neighbours, his servants and children
treated him as insane. No dispute was taken over the admissibility of this conduct even though it must have
involved underlying assumptions (and therefore implied assertions) by the neighbours, servants and
children to the effect that the testator was insane. It was, however, implicit from the judgment of Baron
Parke that had they been contested, they would have been inadmissible as being hearsay. Baron Parke
provided a number of hypothetical examples illustrating his view that an assertion implied by conduct
should be hearsay. These examples include a ships captain who, having inspected the ship, sails off (an
implied assertion that the vessel is seaworthy), a doctor who allows his patient to sign a will (an implied
assertion that the patient is mentally competent), and the payment of a bet as evidence that the event on
which the bet depended occurred.
The reliability of an implied assertion by conduct, and therefore whether it should be admissible, can
vary in accordance with what is at stake, with cases where the stakes are higher being, in general, more
straightforward than those where the stakes are lower. Thus, in Baron Parkes e.g. of the ship captain, it is
unlikely that the captain would have sailed off unless he is certain of the seaworthiness of his vessel. On the
other hand, if X smiles at and greets Y with a handshake, there may be an underlying assumption in such
conduct that the two are acquainted, but it could also very well be the case that X was simple introducing
himself to Y, or that he had mistaken Y for someone else. The stakes involved here are certainly much
lower than making a mistake in the ship captains case.
The Singapore courts have yet to address the specific question of whether implied assertions arising from
conduct are excluded by the hearsay rule. The EA does not specifically apply the hearsay rule to implied
assertions by conduct ss.17-40 contemplate statements only. While the use of the word otherwise in
s.32 arguably encompasses implied assertions by conduct, s.32A states that a protest, greeting or other
verbal utterance may be treated as stating any fact that the utterance implies, but no reference to conduct
which gives rise to an implied assertion is made. It must be assumed then that such assertions do not
constitute hearsay and should be admissible under s.8(2) as original evidence.
Motive, preparation and previous or subsequent conduct
8.(2) The conduct of any party or of any agent to any party to any suit or proceeding in reference to such
suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any
person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or
is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1 The word conduct in this section does not include statements unless those statements
accompany and explain acts other than statements; but this explanation is not to affect the relevancy of
statements under any other section of this Act.
Explanation 2 When the conduct of any person is relevant any statement made to him or in his presence
and hearing which affects such conduct is relevant.
Illustrations
(f) The question is whether A robbed B.
The facts that after B was robbed, C said in As presence: The police are coming to look for the man who
robbed B, and that immediately afterwards A ran away are relevant.

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(g) The question is whether A owes B $10,000.


The facts that A asked C to lend him money, and that D said to C in As presence and hearing: I advise you
not to trust A for he owes B $10,000, and that A went away without making any answer, are relevant facts.
(h) The question is whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal,
and the contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that after the commission of the alleged crime he absconded, or was in possession of property or
the proceeds of property acquired by the crime, or attempted to conceal things which were or might have
been used in committing it, are relevant.

Assertions by omission negative hearsay


The cases of R v. Patel [1981] 3 All ER 94 and R v. Shone (1983) 76 Cr App Rep 72 are representative of
the common law in the area of negative hearsay.
In R v. Patel, the accused was charged with assisting A to enter into the country illegally. The Prosecution
sought to adduce evidence (through an immigration official) that A was not listed in the Home Office
records as a person entitled to a certificate of registration in the UK and that, therefore, he was an illegal
immigrant.
The CA held that as the absence of his name from the records was an assertion that he was an illegal
immigrant, the records could not be admitted. Bristow J noted that had an immigration officer who could
satisfy the court of the proper compilation and accuracy of the records testified in court, his testimony as to
the significant of the omission of As name from the list would have been admissible.
Bristow Js dictum was endorse in R v. Shone, which involved the disappearance of certain car springs and
the issue of whether they had been stolen. The springs could be identified because they bore identification
numbers, which were stated in the company's stock records.
The CA held that the employees of the company who were personally responsible for the stock records
could testify that the absence of specific entries in the records indicated that they had not been sold or used.
The argument that the absence of specific entries in the stock records amounted to an out of court assertion
that the springs had not been sold or used by the company was rejected. The CA classified the evidence
tendered by the employees as direct evidence which entitled the trier of fact to draw the inference that as
there were no specific entries of the springs in the records, the springs must therefore have been stolen.
In the context of Singapore, assertions by omission are not expressly covered by the EA. While the new
s.32(1)(b) allows statements made by such person in the ordinary course of trade, business, profession or
other occupation to be admitted, this provision seems to contemplate positive assertions of the contents
therein. This would require the evidence of a negative fact to be defined as a positive assertion of it.
Alternatively, if an omission from a document could be defined as direct evidence from which the inference
of what it does not say can be drawn, then the evidence would then be admissible under s.9 or s.11, as was
the case in Sagurmull v. Manraj [1990] 4 CWN.
Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or is made in course of trade, business, profession or other occupation;
(b) when the statement was made by such person in the ordinary course of trade, business, profession or
other occupation and in particular when it consists of
(i) any entry or memorandum made by him in books kept in the ordinary course of trade, business,
profession or other occupation or in the discharge of professional duty;
(ii) or of an acknowledgment (whether written or signed) for the receipt of money, goods, securities or
property of any kind;
(iii) any information in market quotations, tabulations, lists, directories or other compilations generally

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used and relied upon by the public or by persons in particular occupations; or


(iv) a document constituting, or forming part of, the records (whether past or present) of a trade, business,
profession or other occupation that are recorded, owned, or kept by any person, body or organization
carrying out the trade, business, profession or other occupation,
and includes a statement made in a document that is, or forms part of, a record compiled by a person acting
in the ordinary course of trade, business, profession or other occupation based on information supplied by
other persons;
In the context of criminal law, a record may be admitted if it satisfies the conditions set out in s.272 CPC
2010:
Admissibility of certain records as evidence of facts stated
272.(1) Without prejudice to section 35 of the Evidence Act (Cap. 97), in any criminal proceedings a
statement in a document is, subject to this section, admissible as evidence of any fact stated in it of which
direct oral evidence would be admissible if
(a) the document is, or forms part of, a record compiled by a person acting under a duty from information
which
(i) was supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed
to have had, personal knowledge of the matters dealt with in that information; and
(ii) if not supplied by that person to the compiler of the record directly, was supplied by him to the compiler
of the record indirectly through one or more intermediaries each acting under a duty; and
(b) the person who originally supplied the information from which the record containing the statement was
compiled satisfies the condition specified in subsection (2)(a) or (b) or any of the conditions specified in
subsection (2)(c).
(2) The conditions referred to in subsection (1)(b) are
(a) that the person in question has been or is to be called as a witness in the proceedings;
(b) that the person in question, being compellable to give evidence on behalf of the party wishing to give
the statement in evidence, attends or is brought before the court
(i) but refuses to be sworn or affirmed; or
(ii) is sworn or affirmed but refuses to give any evidence; or
(c) that it is shown with respect to the person in question
(i) that he is dead or is unfit by reason of his bodily or mental condition to attend as a witness;
(ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore;
(iii) that he is outside Singapore and that it is not practicable to secure his attendance;
(iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the
statement in evidence, he refuses to do so; or
(v) that, because of the time that has elapsed since he supplied the information and considering all the
circumstances, he cannot reasonably be expected to remember the matters dealt with in the statement.
(3) A statement shall not be admissible in evidence in any criminal proceedings by virtue of subsection (2)
(b) or (c)(ii), (iii) or (iv) if the person who originally supplied the information from which the record
containing the statement was compiled did so after the commencement of investigations into the offence
which is the subject-matter of the proceedings.
(4) Where a document setting out the evidence which a person could be expected to give as a witness has
been prepared for the purpose of any pending or contemplated proceedings, whether civil or criminal, and
that document falls within subsection (1)(a), then in any criminal proceedings in which that person has
been or is to be called as a witness, a statement contained in that document shall not be given in evidence
by virtue of subsection (2)(a) or (c)(v) without the leave of the court; and the court shall not give leave
under this subsection in respect of any such statement unless it is of the opinion that, in the particular
circumstances in which that leave is sought, it is in the interests of justice for the witnesss oral evidence to
be supplemented by the reception of that statement or for the statement to be received as evidence of any
matter about which he is unable or unwilling to give oral evidence.
(5) A reference in this section to a person acting under a duty includes a reference to a person acting in the
course of any trade, business, profession or other occupation in which he is engaged or employed for the
purposes of any paid or unpaid office he holds.

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Avoiding the Hearsay Rule


Where the statement is tendered as evidence of makers state of mind
Out of court statements adduced for the purposes of establishing a partys state of mind may be relevant
and therefore admissible. In Subramaniam v. PP [1956] 1 WLR 965, the accused was charged with being
a terrorist. He claimed that he had been forced by the terrorists to operate with them and that he was told by
them that he would be killed if he did not comply.
The PC determined that the evidence is admissible as the purpose of tendering the statement was not to
prove their factual content (that the terrorist would have killed the accused), but rather to show the
accuseds state of mind for the purposes of establishing the defence of duress, which depended on how
the accused reacted to the terrorists irrespective of whether the threats would have actually been carried
outs.
In the context of Singapore, where, as in Subramaniam, the evidence is held to show the accuseds state of
mind, it will be admissible under s.8 or s.14 EA.
The line between hearsay and original evidence, however, is not that clear in every case. In R v. Ratten
[1972] AC 378, the accused was charged with murder by shooting his wife. A telephone operator testified
that she had received a telephone call (it was established that the call was made 3 minutes before the
shooting), that a female voice answered, that the caller was sobbing hysterically and that she said get me
the police please.
The PC concluded, inter alia, that the circumstances in which the statement was made indicated that the
wife was in a state of fear.
It could be argued, however, that the statement should have been excluded as hearsay because the wife had
impliedly asserted that she was being threatened and that the Prosecution was tendering the statement to
prove the facts underlying this assertion.
If the statement is to be adduced to show state of mind, this must be an issue in the proceedings. In R v.
Blastland [1986] AC 41, the accused was charged with murder and buggery of a boy. Although he had
admitter to meeting the boy and attempting buggery with him, he denied the charge of murder. He
contended that he had run off after noticing another man (M) in the vicinity (whom the accused believed
might have seen him and the boy together). The accused sought to tender statements made by M (who did
not testify) to certain witnesses indicating his knowledge that the boy had been murdered even before the
discovery of his body. To avoid the hearsay rule, the accused argued that the statements were original
evidence because they revealed Ms state of mind.
Lord Bridge held that the statements were inadmissible because Ms state of mind was irrelevant to any
issue before the jury.
It is difficult to comprehend the decision of the HL. Surely, the fact that Ms knowledge could possibly
have been acquired from his own act of murder was relevant to the issue of whether the accused had
committed the murder? The HL might have been able to come to the same conclusion but via the more
defensible explanation that the witnesses evidence of what M had said to them was hearsay as it was
tendered to prove the inference (based on Ms knowledge) that M could have killed the boy.
That said, the evidence of the witnesses would probably be admissible in Singapore under s.32(1)(c) EA
(statement against the interests of the maker).

Whether the identity or origin of a person/thing may be proved by the existence of a


written piece of identification or other writing bearing a name?
The issue here is whether the existence of a written piece of identification, such as a ticket or label, or other
writing bearing a name or identifying markings can be adduced to prove the identity or origin of a person or
thing, or will it be excluded as hearsay evidence? The doubt is in whether the document concerned makes

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any statement as to identity. In reality, such documents have both hearsay (the act of attaching a label or
any similarly deliberate piece of identification to an object probably amounts to a statement) and nonhearsay components.
This difficult is illustrated in R v. Rice [1963] 1 QB 857, where Rice and another person were convicted of
conspiracy. The Prosecution needed to establish that Rice flew from London to Manchester on a particular
day, and was permitted to call an officer from the airline to testify that a used air ticket bearing Rices name
was found in a file containing used tickets issued for the journey. Rice denied that he was on the flight and
argued that the ticket was hearsay evidence as it was tendered to prove its assertion that he had flown to
Manchester on the day shown on the ticket.
The CA rejected the argument on the basis that the ticket was relevant and admissible circumstantial
evidence on the issue of whether Rice had flown to Manchester. According to Winn J, the mere existence of
the ticket in that form, including the name Rice, was non-hearsay, circumstantial evidence that someone
using the name Rice flew to Manchester on the relevant day, and therefore also of the fact that the accused
Rice had done so.
As it was the airlines practice of collecting used tickets in a file, it is likely that if the facts of Rice were to
come before the courts in Singapore, s.32(1)(b) would apply to render the ticket admissible, thus avoiding
the conceptual difficulties that the court in Rice grappled with.

Real evidence
Real evidence generally concerns tangible objects produced before the court from which direct evidence
can be derived or inferences can be drawn from the circumstantial evidence about the relevant facts.
Sketch
In R v. Percy Smith [1976] Crim LR 511, it was held that a police sketch is an assertion of the person
giving the description through the hand of the police artist and therefore is not hearsay. In R v. Cook [1987]
1 QB 417, a lady who had been robbed described the assailant, and from this description a photofit was
produced by the police which was then photographed and used in court. The accused contended that the
photofit picture was hearsay, i.e., an assertion by the police officer of a relevant fact (the accuseds identity)
which he did not himself perceive. The CA regarded the production of the sketch or photofit be a police
officer making a graphic representation of a witnesss memory as another form of the camera at work,
albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly
afterwards.
The pronouncements in R v. Cook that photofits or sketches may be likened to photographs is doubtful. The
former involves human processing which can have a grave impact on the accuracy and therefore reliability
of the final product, whereas the latter simply captures an image in its original state.
Computer print-out
In PP v. Ang Soon Huat [1991] 1 MLJ 1 (HC), the accused was charged with trafficking in diamorphine.
Computer printouts of the results of the chromatograph and spectogram tests conducted on the substance
were held to be admissible as real evidence. The court drew a distinction between the case where the where
only the computer printout was tendered in evidence (without accompanying oral evidence) and the
printout was nothing more than a regurgitation of the information fed in (as in Aw Kew Lim v. PP [1987] 2
MLJ 601), and the situation in which the computer not only records, but also processes and calculates the
information fed into them, with accompanying oral evidence to confirm these matters. The former would
constitute hearsay evidence whereas the latter would constitute real evidence.
The case would be decided differently today in view of s.35 EA, which concerns the admissibility of
computer output.

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Admissible Hearsay ss.17-40


Availability proviso under s.32, the introduction of an interest of justice discretion
and other safeguards
Section 32(1)(j): a person who is dead or who cannot be produced as witness
Previously, evidence of the subject matters described in s.32(1) can only be admitted where, apart from
satisfying the requirement prescribed in the relevant subsection, it is additionally shown that the maker of
such statement was dead, incapable of being found or of giving evidence, or that his attendance could be
procured without unreasonable delay or expense.
Under the amended EA, the hearsay exceptions under s.31(1) will no longer be subject to satisfaction of the
availability proviso. In addition, the circumstances in the availability proviso will itself themselves
constitute free-standing exceptions to hearsay under s.32(1)(j).
32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or is made by a person who is dead or who cannot be produced as witness;
(j) when the statement is made by a person in respect of whom it is shown
(i) is dead or unfit because of his bodily or mental condition to attend as a witness;
(ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore;
(iii) that he is outside Singapore and it is not practicable to secure his attendance; or
(iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the
statement in evidence, he refuses to do so;
An issue may potentially arise in respect of the definition of not practicable to secure his attendence. The
previous s.32 availability proviso contained the words whose attendance cannot be procured without an
[unreasonable] amount of delay or expense, and thus unreasonable delay or expense are likely to be some
of the factors affecting practicality.
Whether or not there is ground for holding that the relevant evidence cannot be procured without
unreasonable delay or expense within the meaning of s.33 EA is purely a question of fact which needs to
be proved, and accordingly a mere allegation of unavailability will not be sufficient (Jet Holdings Ltd v.
Cooper Cameron (Singapore) Ltd [2006] SGCA 20).
Section 32(3): discretion to exclude evidence in the interest of justice
To prevent abuse of these broadened hearsay exceptions, a new s.32(3) was introduced to confer on the
courts a discretion to exclude hearsay evidence whose admission would not be in the interests of justice.
Further, where hearsay evidence is admitted, s.32(5) confers on the court to shall assign such weight as it
deems fit to the statement.
The concept of interest of justice is highly amorphous and capable of subjective determination, and may
consequently result in inconsistency between cases. This risk is particularly pronounced in the context of
criminal cases. S.114(1)(d) of the UK Criminal Justice Act 2003 lists the following factors for determining
what is in the interest of justice:
(1) probative value
(2) value in relation to understanding the other evidence;
(3) availability of other evidence;
(4) importance of the evidence;

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(5) circumstances in which the statement was made;


(6) reliability of the maker;
(7) reliability of the evidence of the making of the statement;
(8) whether oral evidence of the matter can be given, and if not, why not;
(9) whether there is any difficulty in challenging the evidence;
(10) any risk of unfairness.
It is worth noting, however, that the discretion in s.114(1)(d) of the UK CJA 2003 is an inclusionary one,
whereas the one in s.32(3) is an exclusionary one. Notwithstanding the technical difference, the list is
helpful in determining the application of the s.32(3) discretion, since the interest of justice is a substantive
ground for inclusion is simply the reverse of saying that the interest of justice is a substantive ground for
exclusion.
The phrasing of the discretion necessarily implies that all evidence admitted pursuant to s.32(1) are in the
interest of justice. While its purported function is to serve as a weapon of last resort persuade the court to
exclude technically admissible evidence, one unintended consequence may be that the discretion will likely,
and perhaps even invariably, be invoked as a weapon of first resort. Thus, attempting to adduce admissible
hearsay evidence will almost always be met with the objection of admission being against the interest of
justice.
Section 32(4): notice procedure
32.(4) Except in the case of subsection (1)(k), evidence may not be given under subsection (1) on behalf
of a party to the proceedings unless that party complies
(a) in the case of criminal proceedings, with such notice requirements and other conditions as may be
prescribed by the Minister under section 428 of the Criminal Procedure Code 2010 (Act 15 of 2010); and
(b) in all other proceedings, with such notice requirements and other conditions as may be prescribed in
Rules of Court (Cap. 322, R 5) made by the Rules Committee constituted under section 80 of the Supreme
Court of Judicature Act (Cap. 322).
Section 32(4) only contemplates hearsay evidence that is raised pre-trial. It has no effect if the hearsay
issue comes up during trial.
Section 32C: challenging the credibility of the maker
Admissibility of evidence as to credibility of maker, etc., of statement admitted under certain
provisions
32C.(1) Where in any proceedings a statement made by a person who is not called as a witness in those
proceedings is given in evidence by virtue of section 32(1)
(a) any evidence which, if that person had been so called, would be admissible for the purpose of
undermining or supporting that persons credibility as witness is admissible for that purpose in those
proceedings; and
(b) as regards any matter which, if that person had been so called, could have been put to him in crossexamination for the purpose of undermining his credibility as witness, being a matter of which, if he
had denied it, evidence could have been adduced by the cross-examining party, evidence of that matter
may with the leave of the court be given for that purpose.
(2) Where in any proceedings a statement made by a person who is not called as a witness in those
proceedings is given in evidence by virtue of section 32(1), evidence tending to prove that, whether before
or after he made that statement, he made another statement (orally, written or otherwise) inconsistent
with the first-mentioned statement is admissible for the purpose of showing that he has contradicted
himself.
(3) For the purposes of section 32(1)(b), subsections (1) and (2) apply in relation to both the maker of the
statement and the person who originally supplied the information from which the statement was made.
(4) Section 32(2) applies for the purposes of this section as it applies for the purposes of section 32(1).

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Section 160: matters which may be proved in connection with s.32 or s.33
What matters may be proved in connection with proved statement relevant under section 32 or 33
160. Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in
order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by
whom it was made, which might have been proved if that person had been called as a witness and had
denied upon cross-examination the truth of the matter suggested.
There is no ostensible distinction in substance between s.160 and s.32C apart from terminology: credit
and credibility; corroborate and supporting; impeach and undermining.
Some evidence are, however, not able to be corroborated:
Evidence not capable of corroboration
160A. For the purpose of any rule of law or practice that requires evidence to be corroborated or that
regulates the manner in which uncorroborated evidence is to be treated
(a) a statement that is admissible in evidence by virtue of section 32(1) is not capable of corroborating
evidence given by the maker of the statement; and
(b) a statement that is admissible in evidence by virtue of section 32(1)(b) is not capable of corroborating
evidence given by the person who originally supplied the information from which the statement was made.

Section 32(1)(a): dying declaration


Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
when it relates to cause of death;
(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances
of the transaction which resulted in his death, in cases in which the cause of that persons death comes
into question; such statements are relevant whether the person who made them was or was not at the
time when they were made under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question;
Under s.32(1)(a), there is no requirement that the maker must be under expectation of death or even in a
dying state at the time of the statement.
In Yeo Hock Cheng v. R [1938] MLJ 104, the court was concerned with 2 statements made by the
deceased girl to her father and her sister. In her statement to her father, she said that the accused had
threatened to kill her if she told him (her father) that she had slept at the accuseds house. The statement
was made 9 days before the murder and there was evidence that in the intervening period, the relationship
between the deceased and the accused had altered because he had promised to marry her. In the statement
to her sister, she said that she was going to meet the accused and that he had asked her to dress in the
clothes of a man. The statement was made on the day of the murder.
In respect of the statement made to her father, the CA held that the statement consisting of the threat was
too remote to relate to the circumstances of the transaction which resulted in her death. In respect of the
statement made to the sister, it was held that the fact that the statement was made on the day of the murder
clearly pointed to circumstances of the transaction which resulted in her death. Furthermore, she had been
asked to disguise herself presumably with a view to avoiding recognition. Accordingly, the statement to the
sister came within the purview of s.32(1)(a).
It should be noted that one of the basis for not admitting the statement to the father was that the victim and
the accuseds relationship had changed for the better within that 9 days. This implies that, notwithstanding
that a distinction qualified by time appeared to have been drawn, no time limitation was placed by the

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court on s.32(1)(a) per se. This would be consistent with the plain language of the section, which does not
make any reference to time.
If a suicide note is concerned, then statements that tend to prove disprove the suicide, even if it were some
time before the death of the deceased, would be relevant as tending to disprove the suicide. The time lapse
will only go to weight, and the judge has the discretion to assign a weight, in accordance with s.32(5),
which he deems fitting for corresponding with the time lapse.

Section 32(1)(b) and 34: business records and accounts


32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or is made in course of trade, business, profession or other occupation;
(b) when the statement was made by such person in the ordinary course of trade, business, profession or
other occupation and in particular when it consists of
(i) any entry or memorandum made by him in books kept in the ordinary course of trade, business,
profession or other occupation or in the discharge of professional duty;
(ii) or of an acknowledgment (whether written or signed) for the receipt of money, goods, securities or
property of any kind;
(iii) any information in market quotations, tabulations, lists, directories or other compilations generally
used and relied upon by the public or by persons in particular occupations; or
(iv) a document constituting, or forming part of, the records (whether past or present) of a trade, business,
profession or other occupation that are recorded, owned, or kept by any person, body or organization
carrying out the trade, business, profession or other occupation,
and includes a statement made in a document that is, or forms part of, a record compiled by a person acting
in the ordinary course of trade, business, profession or other occupation based on information supplied by
other persons;
Illustrations
(b) The question is as to the date of As birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given
day he attended As mother and delivered her of a son, is a relevant fact.
(c) The question is whether A was in Singapore on a given day.
A statement in the diary of a deceased solicitor regularly kept in the course of business that on a given day
the solicitor attended A at a place mentioned in Singapore for the purpose of conferring with him upon
specified business is a relevant fact.
Entries in books of accounts when relevant
34. Entries in books of accounts regularly kept in the course of business are relevant whenever they refer
to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to
charge any person with liability.
Illustration
A sues B for $1,000 and shows entries in his account-books showing B to be indebted to him to this
amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.
Multiple hearsay
Section 32(1)(b) may potentially give rise to an issue of multiple hearsay, that is, statements concerning
matters of which the makers of those statements have no personal knowledge. This may arise, for e.g.,
where a medical report is compiled by the doctors staff who did not have personal knowledge of the
information given by the doctor. Where the medical report contains the opinions of the doctor, a further
issue in respect of hearsay opinion, which will only be admissible if the conditions in s.32B are satisfied.

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Statement of opinion
32B.(1) Subject to this section, section 32 applies to statements of opinion as they apply to statement of
fact.
(2) A statement of opinion shall only be admissible under section 32(1) if that statement would be
admissible in those proceedings if made through direct oral evidence.
(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a relevant
matter on which he is not qualified to give expert evidence, if made by way of conveying relevant facts
personally perceived by him, is admissible as evidence of what he perceived.
As s.32(1)(b) EA now includes the words supplied by other persons, a literal construction would give
rise to the conclusion that multiple hearsay falls within the ambit of the section. This interpretation is
reinforced by the fact that the purpose of the amendment was to enhance the admissibility of hearsay
evidence in general. While acknowledging that multiple hearsay is prima facie allowed, it appears however
that the affected party could nevertheless argue that admission would be against the interest of justice. But
if one considers that including a discretion to exclude on the basis of being against the interest of justice
necessarily means that hearsay evidence that are expressly allowed under s.32(1) are prima facie in the
interest of justice to admit, then perhaps multiple hearsay would affect weight under s.32(5) rather than
admissibility.

Section 32(1)(c): against the interest of the maker


32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or against interest of maker;
(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if
true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

Section 32(1)(e): existence of a relationship


32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or relates to existence of relationship;
(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between
persons as to whose relationship by blood, marriage or adoption the person making the statement had
special means of knowledge, and when the statement was made before the question in dispute was raised;

Section 32(1)(h): feelings and impressions


32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or is made by several persons and expresses feelings relevant to matter in question;
(h) when the statement was made by a number of persons and expressed feelings or impressions on their
part relevant to the matter in question.
A few issues arise in respect of s.32(1)(h), viz, whether there is a minimum number of persons, whether the
persons who made the statements must be identified, and whether the statements must be made around the
same time.
As to the last issue, Khoo J remarked in Saga Foodstuffs Manufacturing v. Best Food [1994] SGHC 281
that the purpose of s.32(1)(h) is to admit evidence of reactions by persons in circumstances which exclude
the opportunity for reasoned reflection and possibility of concoction and distortion, which seems to

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suggest that the more spontaneous and coincidental the statements made, the more likely such statements
will be admissible.
As for the first 2 issues, it would seem that the lower then number of people and the more anonymity
involved, the higher the prejudicial effect and accordingly, the more it would be in the interest of justice to
exclude under s.32(3). Accepting that proposition, the evidence may nevertheless be admissible under the
similar fact rule. For e.g., a number of people recounting that their impression of the accused was that he
hated his wife might be admissible under s.14.

Section 32(1)(i): a person who is compellable but refuses to give evidence


32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or is made by a person who is compellable but refuses to give evidence;
(i) when the statement was made by a person who, being compellable to give evidence on behalf of the
party desiring to give the statement in evidence, attends or is brought before the court, but refuses to be
sworn or affirmed, or is sworn or affirmed but refuses to give any evidence;

Section 32(1)(k): agreement by parties


32. (1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally,
in a document or otherwise), are themselves relevant facts in the following cases:
or by agreement
(k) when the parties to the proceedings agree that for the purpose of those proceedings the statement may
be given as evidence.
(6) Notwithstanding paragraph (k) of subsection (1), an agreement under that paragraph does not enable a
statement to be given in evidence in criminal proceedings on the prosecutions behalf unless at the time the
agreement is made, the accused or any of the co-accused is represented by an advocate.
The effect of a strict reading of s.32(6) seems to be that as long one of the co-accused was represented,
s.32(1)(k) would be applicable. Problems arise where the unrepresented accused does not appreciate the
value or impact of the evidence to be adduced, and in so agreeing unwittingly incriminates himself.

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Hearsay & Res Gestae


Res Gestae
Statutory Scheme
Section 6 of the EA
Where the evidence is inadmissible as hearsay, it may nevertheless be admissible under the doctrine of res
gestae. The rule is set out in s.6 EA:
Relevancy of facts forming part of same transaction
6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction are relevant, whether they occurred at the same time and place or at different times and
places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders
at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.
(b) A is accused of waging war against the Government by taking part in an armed insurrection in which
property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is
relevant as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties
relating to the subject out of which the libel arose and forming part of the correspondence in which it is
contained are relevant facts though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to A. The goods were delivered to
several intermediate persons successively. Each delivery is a relevant fact.
A transaction is defined in Art 3 of Stephens Digest as a group of facts so connected together as to be
referred to by a single legal name, such as a crime, a contract, a wrong or any other subject of inquiry
which may be in issue.

What is the appropriate construction of s.6?


The Singapore courts appear to have adopted 3 different approaches to the doctrine of res gestae.
Old common law approach strict contemporaneity with the facts in issue
In Mohamed Allapitchay v. R [1958] MLJ 197, a stallholder at the Telok Ayer Market cried out at 3.45am:
Mohamed has stabbed me, awaking the other stallholders in the process. The victime was then seen
chasing 3 persons before collapsing. Certain stallholders, who had been involved in the chase, stopped to
help him. They asked the victim who had stabbed him and he replied: Mohamed stabbed me and Hassan
and Haja Mohideen were with him.
Whyatt CJ held (without considering s.6) that the statements were not res gestae because they did not form
part of the transaction. Whyatt CJ explained that the evidence [did] not establish that [the victims] cry
Mohamed has stabbed me was part of the thing being done. On the contrary, the three persons who it is
said committed this crime were running away from the scene of the crime as fast as they could when the
cry was heard. The thing had been done. Referring to the words of Cockburn CJ in R v. Bedingfield
(1879) 14 Cox CC 341, Whyatt CJ held that the cry of the victim was not part of anything done, or
something said while something was being done, but something said after something done. Accordingly
the Court was of the opinion that this statement was not part of the res gestae.

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Ratten/Andrews/apparently Chi Tin Hui approach possibility of concoction and fabrication


The common law criterion now is no longer strict contemporaneity with the facts in issue, but whether the
circumstances give rise to the possibility of concoction and fabrication. In Ratten v. R [1972] AC 378,
Lord Wilberforce stated the test as such:
The possibility of concoction, or fabrication, where it exists, is an entirely valid reason for
exclusion, and is probably the real test which judges in fact apply this should be recognised
and applied directly as the relevant test. As regards statements made after the event it must be for
the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in
circumstances of spontaneity or involvement in the event that the possibility of concoction can
be disregarded [I]f the drama, leading up to the climax, has commenced and assumed such
intensity and pressure that the utterance can safely be regarded as a true reflection of what was
unrolling or actually happening, it ought to be received.
The Ratten restatement was received by the HL in R v. Andrews [1987] AC 281, where the accused was
convicted of aggravated burglary and manslaughter. He and 1 other were alleged to have entered the
deceaseds flat and attacked him with knives. The victim, who later died, managed, within a few minutes of
the attack, to proceed downstairs to the flat below to ask for assistance. Within minutes, the police arrived
and he informed them as to the identity of the assailants.
The HL determined that there statements were admissible as res gestae to prove their content on the basis
of the trial judges view that there was no possibility of concoction or fabrication of the identification in the
circumstances, which their Lordships accepted.
Lord Ackner, in summarising the application of the res gestae doctrine, held that the primary question is
whether the possibility of concoction or distortion be disregarded, which requires the circumstances in
which the particular statement was made to be considered. The likelihood of conconction or distortion is
minimal where the utterance was an instinctive reaction to that event, thus giving no real opportunity
for reasoned reflection. The inference that the reaction was instinctive would be stronger where the event
was so unusual or startling or dramatic as to dominate the thoughts of the victim. In order for the
statement to be sufficiently "spontaneous", it must be so closely associated with the event which has
excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the
event. In other words, the event, which provided the trigger mechanism for the statement, must remain
operative. The fact that the statement was made in answer to a question is but one factor to consider in this
respect. As to the possibility of error in the facts narrated in the statement, this goes to the weight to be
attached to and not to the admissibility of the statement.
In Chi Tin Hui v. PP [1994] SGCA 18, SGCA appeared to have endorsed the more flexible approach in
Ratten and Andrews. The CNB laid a trap for the accused when he delivered heroin to one of his contacts.
The accused was arrested the accused when he rang the doorbell. At the time of the arrest, the accused was
in possession of a parcel. The CNB officer testified that he asked the accused a series of questions
regarding the parcel. Initially, the accused answered that it was a gift. After further pressing, he confessed
that it contained 59 sachets of heroin. The issue before the SGCA was whether the questions and answers
were part of the res gestae.
Without making reference to the English authorities, Karthigesu JA held that the trial judge had rightly
discarded any possibility of concoction by [the CNB officer]. Karthigesu JA added that the accuseds oral
statements formed part of the transaction of transporting the drugs.
The decision may be difficult to reconcile with the strict context of s.6 as the transportation of the drugs,
and therefore the transaction, ended as soon as the accused was arrested and handcuffed. Furthermore, if it
is accepted that the SGCA in effect applied the Ratten test, it was, if anything, a misapplication of the test,
simply because the statement was made by the accused, whereas the court focused on concoction of the
part of the CNB officer. As a matter of concept, it would perhaps have been more appropriate for the
statements of the accused to be admitted as a confession to knowledge and possession pursuant to ss.17 and
21 EA.

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Broad application of s.6 in Don Promphinit


In Don Promphinit v. PP [1994] SGCA 93, Yong CJ held that evidence of the accuseds drug-related
activities (including negotiations and aborted transactions 9) during the 3 months preceding the offence with
which he was charged constituted the transaction and, accordingly, was admissible pursuant to s.6:
In our opinion, those events were intricately connected with the facts in issue and presented a
complete picture of the circumstances in which the offence was committed.
Conceivably, even though there was no discussion of the legal principles in that case, the case could stand
for the proposition that any evidence which precedes the facts in issue will be admissible pursuant to s.6 if
it leads to the commission of the offence. This would be an extension of the meaning of transaction in
s.6. The preceding activities connection to the facts in issue (the actual act of drug trafficking) in this case
is weak at best, as the facts in issue can be fully appreciated as a distinct occurrence.

Res gestae a fuzzy doctrine


As Cross (Australian ed) aptly puts it:
It is probably best to recognise the expression res gestae for what it is according to usage to date a blanket phrase... It is not a subject on which extreme precision is either possible or desirable...
The doctrine [lacks] a theoretical and principled foundation.

Note that hearsay was not an issue in this case.

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Confessions & Admissions


Confessions in the Criminal Context
Definitions
Statutory Provisions
Evidence Act
Admission and confession defined
17.(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.
(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.
In the context of criminal proceedings, an admission or confession is admissible by virtue of s.258(1) CPC
2010:
Admissibility of accuseds statements
258.(1) Subject to subsections (2) and (3), where any person is charged with an offence, any statement
made by the person, whether it is oral or in writing, made at any time, whether before or after the person is
charged and whether or not in the course of any investigation carried out by any law enforcement agency, is
admissible in evidence at his trial; and if that person tenders himself as a witness, any such statement may
be used in cross-examination and for the purpose of impeaching his credit.
The admissibility of admissions and confessions in criminal cases are, however, subject to the provision
restricting the rank of the police officer that the statement is made to as well as the voluntariness test in
ss.258(2) and (3) CPC 2010 respectively.

Definition of confession
In Anandagoda v. R [1962] MLJ 289, Lord Guest held that 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
circumstances 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 It is
not permissible to look at other facts which may not be known at the time or which may emerge in
evidence at trial. But equally it is irrelevant to consider whether the accused intended to make a confession.
If the facts in the statement added together suggest the inference that the accused is guilty of the offence
then it is nonetheless a confession although the accused at the same time protests his innocence 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?
In other words, to amount to a confession, the statement must sufficiently connect the accused, whether
expressly or impliedly, and whether of a plenary or unplenary nature, to the offence: Chai Chien Wei
Kelvin [1998] SGCA 64.

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Hence, a confession may be constituted on the basis of inference. In Sim Cheng Hui v. PP [1998] SGCA
17, the accused made a statement after his arrest to the effect that the drugs which he was found to be in
possession of belonged to him.
Yong CJ held that the statement clearly implicated him in the offence of drug trafficking. Although the
accused did not expressly admit to the offence of drug trafficking, Yong CJ felt that this was immaterial, as
the facts that the accused was found to be in possession of such a large amount of drugs must allow the
inference to be drawn that he was trafficking those drugs. Yong CJ also noted to be pertinent the fact that
the accused had not said that the drugs were for his own consumption, and therefore it could be inferred
taking into account all the circumstances of the case that he possessed the drugs for the sole purpose of
trafficking them.

Rank of the Police Officer Must Not be Below the Rank of Sergeant
Criminal Procedure Code 2010
Admissibility of accuseds statements
258. (2) Where a statement referred to in subsection (1) is made by any person to a police officer, no
such statement shall be used in evidence if it is made to a police officer below the rank of sergeant.

General Principles of Admissibility: Voluntariness & Oppression


Statutory provisions that set out the voluntariness test
Criminal Procedure Code 2010
Admissibility of accuseds statements
258.(3) The court shall refuse to admit the statement of an accused or allow it to be used in the manner
referred to in subsection (1) if the making of the statement appears to the court to have been caused by any
inducement, threat or promise having reference to the charge against the accused, proceeding from a
person in authority and sufficient, in the opinion of the court, to give the accused grounds which would
appear to him reasonable for supposing that by making the statement he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings against him.
Explanation 1 If a statement is obtained from an accused by a person in authority who had acted in such
a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement, and
the court is of the opinion that such acts gave the accused grounds which would appear to the accused
reasonable for supposing that by making the statement, he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him, such acts will amount to a threat, inducement
or promise, as the case may be, which will render the statement inadmissible.
Explanation 2 If a statement is otherwise admissible, it will not be rendered inadmissible merely
because it was made in any of the following circumstances:
(a) under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose
of obtaining it;
(b) when the accused was intoxicated;
(c) in answer to questions which the accused need not have answered whatever may have been the form of
those questions;
(d) where the accused was not warned that he was not bound to make the statement and that evidence of it
might be given against him; or
(e) where the recording officer or the interpreter of an accuseds statement recorded under section 22 or 23
did not fully comply with that section.

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The 2 limbs of voluntariness


In Chai Chien Wei Kelvin v. PP, Yong CJ explained that [t]he test of voluntariness is applied in a manner
which is partly objective and partly subjective. The objective limb is satisfied if there is a threat,
inducement or promise, and the subjective limb when the threat, inducement or promise operates on the
mind of the particular accused through hope of escape or fear of punishment connected with the charge.
Subsequently, Chao JA reiterated the objective and subjective components of voluntariness in Lim Thian
Lai v. PP [2005] SGCA 50.
Woo J added in PP v. Ismil bin Kadar [2009] SGHC 84 that [i]t is a question of fact to be determined in
the circumstances of each case whether a statement or conduct by someone else, usually a police officer,
constitutes an inducement, threat or promise which operated on the mind of an accused person and caused
him to give his statement.

Sufficiency of inducement
In Sharom bin Ahmad v. PP [2000] SGCA 36, one of the accused (facing a capital charge of drug
trafficking) alleged that he gave the statement after the inspector (together with an interpreter) threatened to
arrest his wife, but at the same time promised to let him see her if he gave a statement. An inducement to
lower the charge to a non-capital one was also allegedly made, and a further threat of indefinite detention if
the accused did not give a statement that would tally with the co-accuseds account.
Yong CJ held that [t]he remark on arresting [the accuseds] wife, if made at all, could amount to a threat
sufficient to vitiate the confession ... As for the inducement to see the wife, this by itself was unlikely to be
a sufficient inducement that would render the statement involuntary, especially if the accused was facing a
capital charge. Yong CJ referred to Yeo See How v. PP [1996] SGCA 39, where the SGCA found that
given the nature of the capital charge that the accused was facing, it was incredible that he would have
made the statement merely to obtain cigarettes and visits by his family members, and held that it was
unbelievable and that it made no sense that the accuseds free will would be so easily weakened by his
desire to see his wife that he would rather give a statement that would eventually bring him more harm than
any advantage.
In other words, trivial inducements would not, according to the court, give accused persons reasonable
grounds for making statements, especially if they were facing serious or capital charges. The difficulty
with the decision, and the objective limb of the voluntariness test in general, is that who is to know what
could have influenced an accused person, sometimes faced with robust questioning in a hostile,
unfriendly environment, into making a statement just to obtain some relief, especially those suffering from
ailments or drug withdrawal symptoms, or those who in the face of hostile questioning desperately want to
see just a familiar face like that of his spouse or friend? A strict application would appear to lead to the
conclusion that investigation officers can promise meals, meetings with girlfriends or other family

members to accused persons facing serious charges with impunity, as trial judges would invariably
find that it would not be reasonable to succumb to such inducements, threats or promises and
confess in view of the gravity of the charge.

Inducement, promise or threat must have caused the statement to be made


In Lim Thian Lai v. PP [2005] SGCA 50, the investigating officer allegedly told the accused, who the trial
court described as no babe in the woods, that if he were to admit to the crime, the charge would be
reduced from murder to manslaughter, and he would serve only a few years imprisonment. In his evidence,
the accused had said that he did not trust policemen.
Chao JA summarized the position as to the legal effect of words such as you had better tell me the truth
as such:
Judicial attitudes towards the legal effect of the words you had better tell the truth or any
equivalent expression have shifted over the years. While such utterances have previously been

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treated as necessarily establishing a threat or an inducement, the current view is that the import of
such words should be assessed in the context of the individual case This must be correct. The
effect of such words if uttered must, in the final analysis, be assessed according to the part
objective and part subjective test propounded in Chai Chien Wei Kelvin and Gulam bin Notan
Mohd Shariff Jamalddin and Another v. PP.
As the accused had said that he did not trust policemen, the subjective component was not satisfied and
therefore, he could not claim that he relied on the promise made by the police officer.

Self-perceived inducement, promise or threat


Self perceived inducements, threats or promises do not per se make a confession involuntary. In Lu Lai
Heng v. PP [1994] SGCA 54, the accused was under the impression that his mother could be in trouble
because the drugs were found in her room, and was worried that she could get into trouble. When it was his
understanding that the police would let his mother go free in a day or 2 if he admitted that he owned the
drugs, he signed the confession statement.
Yong CJ held that a self-perceived inducement could not in law amount to an inducement or promise within
the meaning of s.24 EA [repealed, now purely governed by s.258(3) CPC 2010]. The evidence, according
to Yong CJ, was quite clear that the police did not hold out to the accused that his mother would not be
arrested or would be set free in a day or 2 if he admitted that the drugs found in her room were in fact his.
This was, as he said himself in his evidence, his own perceived impression. Accordingly, on the evidence,
no such inducement or promise proceeded from the police.
To view it in another way, self-perceived inducements, threats or promises do not satisfy the objective limb
of voluntariness, notwithstanding that the subjective limb may have been satisfied. It is arguable, though,
that if the principle concern is reliability, then a perceived inducement, threat or promise certainly impacts
on reliability in the same way as a real one.

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
On a literal reading, if the evil sought to be avoided pursuant to the inducement, promise or threat was not
of a temporal (i.e. non-spiritual) nature, then the confession will remain voluntary. Thus, a threat saying
that God will punish you if you do not tell the truth will not render the confession involuntary.
In Osman bin Din v. PP [1995] SGCA 25, Yong CJ held that it was necessary for the accused to have
reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature
by giving the contested statements. How his Honour came to the conclusion that the accused had no
reasonable grounds for supposing that he would gain any advantage or avoid any evil of a temporal nature
by giving the statements was, however, unclear. Yong CJ merely held that [a]lthough those words were
coupled with further statements to the effect that the appellant would be beaten up and sent to the gallows
and verbal abuses which supposedly caused the appellant to shed tears, it was not sufficient to give the
[accused] any reasonable grounds for supposing that he would gain any advantage or avoid any evil of a
temporal nature by giving the statements.
In Poh Kay Keong v. PP [1995] SGCA 84, the accused was charged for the possession of drugs for the
purpose of trafficking. The police officer said to the accused that he would charge his brother and sister-inlaw and recommend that their HDB flat be confiscated. He had also made a representation to the accused
that he would not face the death penalty since the accuseds key could not open the door to the flat where
the drugs in question were found and as such, he should give a good statement and the investigating
office would know what to do.
Yong CJ employed a purposive construction of s.24 and held that the advantage or evil has reference
to the proceedings against an accused person if it was gained or avoided (as the case may be) by the making
of a statement (a confession in the present case) relevant or relating to the charge brought against the
accused. Accordingly, Yong CJ found that the first statement was an inducement or threat. As for the second

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statement, Yong CJ held that it was plainly an inducement which had reference to the charge against the
accused and was calculated to influence his mind with respect to his escape from the charge brought
against him.
Poh Kay Keong was distinguish in Ismail bin Abdul Rahman v. PP [2004] SGCA 7, where Yong CJ held
that the difference between the alleged inducements in Poh Kay Keong and the present case was the degree
of assurance (discernible to the reasonable man) allegedly given to the respective accuseds by the police
officers involved, viz, in Poh Kay Keong the accused was told that he would not hang, whereas in the
present case, the accused was told that the officer would try to get the appellant a lighter sentence. As
such, the Court saw it more appropriate to adopt the approach in Osman bin Din to hold that the accused
would have had no reasonable grounds for supposing that he would gain any advantage or avoid any evil of
a temporal nature by giving the statements, failing on the objective limb of the voluntariness test. Thus,
whether the accused had subjectively thought that an advantage would have resulted from telling the
truth did not arise.

Having reference to the charge


Read literally, s.258(3) CPC 2010 requires that any inducement, threat or promise which does not refer to
the charge irrespective of its effect on the accuseds mind will be considered voluntary.
However, in Poh Kay Keong, Yong CJ held that s.24 EA should be given a purposive construction, such
that an inducement, threat or promise has reference to the charge against the accused person if it was made
to obtain a confession relevant or relating to the charge in question. In other words, an inducement which
does not directly relate to the charge may nevertheless render a confession involuntary if it concerns any
matter which could have an impact on the accused in respect of the charge.
CJ Yong subsequently followed his approach Poh Kay Keong in Syed Yasser Arafat bin Shaik Mohamed
v. PP [2000] SGCA 16, holding that it is not a requirement that the inducement must relate or have
reference to the charge in order to exclude a confession made as a result of that inducement ... A threat
made against family members could be sufficient to vitiate a confession.
Had the police in Lu Lai Heng actually said to the accused what he perceived, it would fall squarely within
the principle laid down in Poh Kay Keong and Syed Yasser Arafat.

Proceeding from a person in authority


While it is quite clear that the police and other law enforcement authorities fall within the definition of
person in authority, it is less clear in respect of other related staff like interpreters assisting in police
investigations.
In Deokinan v. R [1969] AC 20, the PC defined the phrase as encompassing anyone who has authority or
control over the accused or over the proceedings or the prosecution against him.
The PCs definition was endorsed by the SGHC in PP v. Lim Boon Hiong [2010] SGHC 205, where the
accused alleged that the interpreter had told him that he would only get 5 years imprisonment and 5 strokes
of cane if he made admissions in his statement. The CNB officer conducting the interview was present in
the room during the material time. It was contended that an interpreter could constructively be a person
in authority, if he proffered an inducement or promise in the presence and to the knowledge of a person in
authority, unless the latter took steps to dissociate himself from the inducement or promise.
Chong J held that if the inducement or promise was made by the interpreter in a one-on-one conversation
with the accused (when the accused is aware that he is merely an interpreter), there can be no doubt that
admissions made by the accused following the inducement emanating solely from the interpreter, who
would not be regarded as a person in authority, would still be admissible. Such an inducement,
according to Chong J, would effectively be made by an interpreter or any other person not in authority on
a frolic of his own, and would not in law exclude a confession thereby obtained. On the other hand,

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whether the position is different where the inducement or promise was made by the interpreter in the
presence of an investigating officer who has actual authority over the accused depends on a number of
elements which must be considered and balanced, such as the actions of the person in actual authority,
the viewpoint of an objective observer and the subjective perspective of the accused. In his Honours view,
an interpreter could in principle be regarded as a person in constructive authority if his inducement or
promise to the accused was made in the presence of a person in actual authority provided the accused
subjectively believed, on reasonable grounds, that the person in actual authority heard the
inducement or promise made by the interpreter and took no step to dissociate himself from it; whereas,
where the accused has no reasonable grounds to believe, or does not even believe, that the person in actual
authority heard the inducement or promise, then the interpreter cannot be clothed with constructive
authority, for the accused is not relying on any actual authority at all, but is relying instead on his own
subjective viewpoint and beliefs.
Chin, Confessions and Statements Made by Accused Persons Revisited (2012) 24 SAcLJ 60: Whether
an interpreter should be regarded as a person in authority or not should not depend on the chance of
whether the person in actual authority happens to be around at the time the inducement, threat or promise
is made. It is easy to manipulate such situations.
On a more general level, why are we not concerned with inducements, threats or promises from persons not
in authority? The requirement of a person in authority seems to assume that persons not in authority have
no capacity to issue convincing inducements, threats or promises. On a deeper level, what seems to be
suggested is that the underpinning of the admissibility provisions concerning confessions is dominated by
propriety of official behaviour, rather than by reliability and privilege against self-incrimination.
One other situation that was not covered in the judgment may arise, viz, if the accused, for whatever reason,
did not believe that the person offering an inducement, threat or promise is a person in authority, even
though he may actually be one within the description. The issue here is that subjectively, the accused did
not believe that that person was one in authority, but objectively, he was in fact one. If the view is
taken that the authority of the person validates and gives content to the inducement, threat or promise, then
it is arguable that the subjective beliefs of the accused should prevail, such that he did not give the
confession involuntarily and it should accordingly be admissible.

Oppression
Criminal Procedure Code 2010
Admissibility of accuseds statements
258.
Explanation 1 If a statement is obtained from an accused by a person in authority who had acted in such
a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement,
and the court is of the opinion that such acts gave the accused grounds which would appear to the accused
reasonable for supposing that by making the statement, he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceedings against him, such acts will amount to a
threat, inducement or promise, as the case may be, which will render the statement inadmissible.

The phrase acted in such a manner that his acts tend to sap and have in fact sapped the free will of the
maker of the statement in Explanation 1 imports the common law definition of oppression as laid
down by Edmund Davies LJ in R v. Prager [1972] 1 WLR 260 (applying Sach Js dicta in R v. Priestly
(1967) 51 Cr App R 1) and endorsed locally in Chai Chien Wei Kelvin v. PP and Seow Choon Meng v.
PP [1994] SGCA 67).
Mere discomfort insufficient
Mere discomfort, however, is insufficient to constitute oppression. In Yeo See How v. PP [1996] SGCA 39,
Chao J held that there is no necessity for interrogators to remove all discomfort. Some discomfort is to
be expected the issue is whether such discomfort is of such a great extent that it causes the making of an

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involuntary statement. In Yeo See How, the discomforts that the accused complained of, viz, that he felt
cold, that he was not given medicine for his gastric pain, and that he was hungry, were held to be clearly
not great and therefore did not affect the voluntariness of the statement.
On the other hand, in PP v. Lim Kian Tat [1990] SGHC 22, the accuseds statement was taken on the 4th
night of a continuous 18-hour interrogation, during which he had a break of 1 hour. The accused did not
have any adequate sleep over the course of the 4 nights.
Lai J held that the statement was inadmissible for oppression. In coming to its decision, Lai J, even though
his Honour expressed his awareness of the prohibition against inquiring into the truthfulness or otherwise
of statements in a voir dire, made the inference from the inconsistency between the confession and the
forensic evidence that there was in fact oppression involved.
No sweeping stand that every failure to offer sustenance constitutes oppression
Yong CJ held in Chai Chien Wei Kelvin (following Fung Yuk Shing v. PP [1993] SGCA 61) that it is not
realistic to take the sweeping stand that every failure to offer an accused sustenance constitutes a threat or
an inducement of such gravity as to render any statement made involuntary. On the facts, the court did not
consider that the omission to give the accuse any food and drink for a period of about 7 hours was so
serious that his will might have been overborne.
The accused in Fung Yuk Shing was similarly deprived of food and drink for 7 hours, but Yong CJ also
took into account the fact that the accused had eaten a meal on board the plane prior to his arrest at the
airport, that he did not ask for a meal nor complain of hunger pangs, and that neither medical examinations
conducted that day suggested that the accused was in a state of collapse or even in a physically weakened
state due to hunger and thirst.
Similarly in PP v. Tan Boon Tat [1990] SGHC 124, the accused alleged that as a result of not being given
any food or drink for about 9.5 hours, he was very tired and hungry and was in a daze and a state of
confusion when the statement was given. Thean J accepted that the accused at the material time was tired,
hungry and thirsty, as well as under great stress, and that it was highly inconsiderate of the officers
concerned. However, Thean J, having regard to the testimony of the doctor who examined the accused after
the statement was made, was of the opinion that the accused was not in such a state of shock, exhaustion
or fatigue that he had no will to resist making any statement which he did not wish to make.

Evaluation of the oppression test under the CPC 2010


Although the inclusion of oppression in the CPC 2010 streamlines the common law with the
legislative framework, the wording of Explanation 1 gives rise to several problems:
(1) The statement must be obtained from the accused by the person in authority who acted in an
oppressive manner towards him. This seems to be an unduly strict requirement: if the acts of oppression are
carried out by another (such as another officer or a lock-up guard), and the statement is later taken not by
him but by yet another investigation officer, literally, the statement is outside the scope of Explanation 1,
whether or not the accused was in fact oppressed. That is not the common law position that is supposed
to be codified by the provision; it does not require the link between the oppressor and the person in
authority who eventually takes the statement. Thus, a purposive interpretation is necessitated to give effect
to the common law position.
(2) Second, there is the link to the so-called test of voluntariness in the second part of Explanation 1,
where the court has to form an opinion that the oppressive acts would give the accused reason to give a
statement to avoid a temporal evil or gain an advantage. Only if such acts fit the description, that they
would amount to a threat, inducement or promise, as the case may be, will they render the statement
inadmissible. However, it is a trite proposition at common law that oppression is seen as a separate ground
for invalidating confessions in situations where there is just illegitimate pressure without inducements,
threats or promise. The better approach would have been to add the phrase, or oppression to the main
body of s.258(3) at the end, with Explanation 1 defining what oppression entails.
(3) Third, from a logical standpoint, the voluntariness component does not sit well with the oppression
component, since it necessitates the assumption that an accused who had his free will sapped was
nevertheless capable of reason, such that when he acceded to making a statement, he chose to avoid the

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evil. Common sense informs one that if the accuseds free will had been completely sapped, he would not
have had an operating mind capable of reason much less choice. The effect of the new definition under the
CPC 2010 is therefore to raise the threshold required to satisfy oppression to such an extent that there
might as well not be a ground for oppression, since it would be eminently difficult for an accused to
establish oppression. In contrast, the common law approach in R v. Priesly is more justified and therefore
preferable as it focuses on the condition of the accused, i.e., free will sapped and therefore confession
inadmissible.

Deception
Criminal Procedure Code 2010
Admissibility of accuseds statements
258.
Explanation 2 If a statement is otherwise admissible, it will not be rendered inadmissible merely
because it was made in any of the following circumstances:
(a) under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of
obtaining it;
In PP v. Ismil bin Kadar [2009] SGHC 84, Woo J held that the fact that the police told the suspect falsely
that his fingerprints were found in the flat in which the victim was murdered was deception under s.29 EA
[repealed, now Explanation 2 of s.258 CPC 2010] and not an inducement under s.24 EA [repealed, now
s.258(3) CPC 2010], as such a statement did not give the accused any grounds for supposing that he would
gain an advantage by making the confession. Accordingly, the statement was admissible.
In PP v. Mazlan bin Maidun [1992] SGCA 90, the interpreter had told the accused that he was bound to
state truly the facts and circumstances with which he was acquainted concerning the case, but not that he
was entitled to refrain from stating anything which might expose him to a criminal charge. Yong CJ drew a
distinction between factual misrepresentation and a positive misrepresentation of the law, and held that
s.29 EA only applied to the former, i.e., a misrepresentation of the law would not be deception and
therefore render the statement involuntary. The reason, according to Yong CJ, is that, in the context of the
facts of the case, the failure to inform a person of his rights in circumstances where a positive duty has
arisen to give such information may amount to an inducement within the meaning of the proviso to
[s.258(3) CPC 2010], because it would be reasonable to assume that such an omission might have caused
that person to say what he might not otherwise have said.
The SGCAs distinction between factual misrepresentation and a positive misrepresentation of the law in
its attempt to interpret the meaning of deception is not very convincing. If the principal concern is that
the accused might have [said] what he might not otherwise have said, then whether the deception is
legal or factual would not matter, as the underlying principle is the privilege against self-incrimination 10,
which underlies both factual and legal misrepresentation.

Influence of narcotics vitiating voluntariness of statement


The accused may be under the influence of drugs or may be suffering from withdrawal symptoms at the
time of giving the statement such that the voluntariness of the statement may be impugned.
However, Karthigesu JA held in Gurnam Singh v. PP [1994] SGCA 55 that in order for the effects of
withdrawal from drugs to affect the drug users medical and psychological condition to render any
statement he makes to be involuntary, [the accused] must be in a state of near delirium, that is to say, that
his mind did not go with the statements he was making. Karthigesu JA, in coming to the conclusion that
the accused was not in such a state, accepted the trial judges finding that the withdrawal symptoms that the
10

Although it should be noted that the SGCA also held elsewhere in the judgment that the privilege was
not a fundamental rule of natural justice and that the police have no duty to inform the accused of his
privilege embodied in s.121(2), which appears to be internally contradictory.

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accused suffered following his arrest was not a severe case and that he had recovered 1 day prior to making
his statements.
Doubt has, however, been casted over the ratio in Gurnam Singh by the dicta of Woo J in PP v. Ismil bin
Kadir, where his Honour suggested that a drug abusers mind may not go with his statements even if he
was not in a state of near delirium. Thus, a drug abuser may not be nearly delirious but still be in a state of
drowsiness or confusion such as to make it unsafe to admit his statement made in such circumstances.
As a matter of stare decisis, the ratio in Gurnam Singh still prevails. Without making a judgment as to the
merits of Woo Js views, much will depend on the facts of each case, such as the type of substance abused,
the level of addiction of the accused, the time between the statement being taken and the accused being
allegedly under the influence of the drugs etc.

Time lapse between confession and inducement, threat or promise


Criminal Procedure Code 2010
Admissibility of accuseds statements
258. (4) If the statement referred to in subsection (3) is made after the impression caused by any such
inducement, threat or promise referred to in that subsection has, in the opinion of the court, been fully
removed, it shall be admissible.
Thus, the effect of an inducement, threat or promise can dissipate with time such that the confession
would no longer be involuntary. In R v. Smith [1959] 2 QB 35, a soldier, who was part of a group of
soldiers who had been threatened by their sergeant-major with extra parade duty unless a confession was
forthcoming from one of them, and who did confess, was no held to be no longer under the influence of the
threat when he confessed to investigating officers a day later. However, in PP v. Naikan [1961] MLJ 147,
the accused confessed to his estate manager and 2 hours later to a magistrate. It was held that the
inducement in respect of the first confession continued to operate in relation to the second confession.
While the length of time is no doubt a factor to consider, this is not determinative. Much will depend on
the circumstances of the case.

Evidence Against Co-accused


Statutory provision
Criminal Procedure Code 2010
Admissibility of accuseds statements
258.(5) When more persons than one are being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some other of such 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.
Explanation Offence as used in this section includes the abetment of or attempt to commit the offence.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said B and I murdered C. The court
may consider the effect of this confession as against B.
(b) A is on trial for the murder of C. There is evidence to show that C was murdered by A and B and that B
said A and I murdered C. This statement may not be taken into consideration by the court against A as B
is not being jointly tried.
(7) In this section, confession, in relation to any person who is tried for an offence, means any statement
made at any time by him stating or suggesting the inference that he committed that offence.

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Section 258(5) CPC 2010 only applies:


(1) to confessions (as defined in s.258(7) CPC 2010 as well as s.17(2) EA), and such confession must
implicate both the maker and the co-accused;
(2) where 2 or more persons are jointly tried, i.e., it does not apply where they are tried separately;
(3) where the persons jointly tried are charged for the same offence, which, per the Explanation to
s.258(5) CPC 2010, includes abetment.

Take into consideration can the confession form the sole basis of the co-accuseds
conviction?
The old position on this issue is propounded in Ramachandran v. PP [1993] SGCA 47, where Rajendran J
(along with Khoo J and Yong CJ) held that the confession of a co-accused can only play a supportive role in
a criminal prosecution and cannot by itself form the basis of a conviction.
The position has since been amended by Chin Seow Noi v. PP [1993] SGCA 87, where the Yong CJ (along
with Karthigesu JA and Goh J) held that it is trite law that an accused person may be convicted solely on
the basis of his confession. He point out that there was nothing in s.30 EA [s.258(5) CPC 2010] or in the
EA itself which would point ineluctably to the conclusion that there must exist "independent" evidence
against the accused before the confession of his co-accused can be used against him. The natural
interpretation of s.30 EA, according to Yong CJ, is that it allows the conviction of an accused person to be
sustained solely on the basis of a confession by his co-accused, provided, of course, that the evidence
emanating from that confession satisfies the court beyond reasonable doubt of the accused's guilt. In
his Honours opinion, a narrower construction would emasculate s.30 EA. Addressing the issue of
reliability, Yong CJ expressed confidence in the ability of the courts to assess the evidentiary value of a coaccuseds confession against the accused and assign an appropriate weight accordingly.
Following Chin Seow Noi, it would be conceivable that a co-accused may be convicted solely on the basis
of a confession that was constituted on the basis of inference. Thus in Sim Cheng Hui, after holding that it
could be inferred from the circumstances that the statement of the co-accused amounted to a confession, the
SGCA went on to hold that the statement became part of the evidence against the co-accused, and although
the accuseds statement did not expressly point the guilty finger at the co-accused, the circumstances
allowed for the inference that the co-accused was also guilty.
The authoritativeness of Chin Seow Noi has, however, been undermined by statements made by a
differently constituted SGCA in Lee Chez Kee. VK Rajah JA expressed the concern that given the laws
seeming concern with the unreliability of a co-accuseds confession in situations apart from s.30 (to the
extent of making such confessions inadmissible against another accused), it does seem a bit out of the
ordinary for a co-accuseds confession admitted under s.30 to be attributed so much weight to the extent of
it being able to secure a conviction on its own. VK Rajah JA then went on to suggest that Chin Seow Noi
may need to be reconsidered in the future.
Perhaps a rational approach would be to assign weight in accordance to the stage at which the confession
was made. Custodial confessions, by virtue of the conditions of police custody and interrogation,
necessarily carries a higher risk of false confessions and therefore a higher risk of being tainted with
unreliability. On the other hand, pre-investigation statements are less susceptible, at least in most instances,
to false confessions and, accordingly, unreliability.

Doctrine of Confirmation by Subsequent Facts


Criminal Procedure Code 2010
258.(6) Notwithstanding any other provision in this section

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(c) when any fact or thing is discovered in consequence of information received from a person accused
of any offence in the custody of any officer of a law enforcement agency, so much of such information
as relates distinctly to the fact or thing thereby discovered may be proved.
In PP v. Chin Moi Moi [1994] SGHC 279, Yong CJ considered the rationale for the provision to be that the
statement has to be reliable if the statement or a part of it can subsequently be confirmed by the discovery
of a material fact. In order to invoke s.27 EA [repealed, now s.258(6)(c) CPC 2010], Yong CJ emphasized
that it is essential to prove that a fact was discovered in consequence of the information received from the
accused. The information must be such as has caused discovery of a fact, i.e., the fact must be the
consequence and the information the cause of its discovery If there is no link between the information
and the fact discovered, such information would not be admissible.
The section does not allow confessions generally and is limited to that part of the information as is strictly
pertinent. As Yong CJ stated in Chin Moi Moi, s.27 is not a backdoor avenue for the admission of
statements made by an accused person to the police, bypassing [s.258(6) CPC 2010] [T]he section was
not to let in confessions generally and no more than that which showed how the fact which was
discovered was connected with the accused was admissible.
Thus, by way of illustration, if an accused confessed that he killed his wife and added that he hid the knife
in the roof of his house, and the knife was subsequently found by the police in the place where the accused
claimed it was hidden, the inadmissibility of the confession, if it were to be for whatever reason, would be
qualified by s.258(6)(c) CPC 2010 to the extent that the accuseds statement as to the whereabouts of the
knife will be admissible.
One potential problem with s.258(6) CPC 2010 seems to be that even statements obtained via torture or
inhumane treatment are admissible if a fact or thing is subsequently discovered in consequence of the
involuntary statement. The effect of this is to indicate that the courts are willing to condone torture, which
undermines the integrity principle.

Evidential Value (Weight) of Confessions


Mixed statements
Section 258(1) CPC 2010 does not make any distinction between inculpatory and exculpatory statements.
In Chan Kim Choi v. PP [1991] SGCA 2, the accused made a statement to the police saying that he had
stabbed the deceased after the deceased had assaulted him. The accused argued that the exculpatory facts
(the assault by the deceased) amounted to substantive evidence which the court could accept as true.
Referring to certain English authorities on exculpatory statement, Lai J held that both the inculpatory and
exculpatory parts of a mixed statement must be considered in determining where the truth lies, although,
in view of the fact that the incriminating parts were likely to be true, more weight might be assigned to
it that to the inculpatory parts.
Chan Kim Choi was endorsed in Tang Tuck Wah v. PP [1991] SGHC 194, where Sinnathuray J held that
the trial judge was entitled, on the whole of the evidence before him, to treat the inculpatory parts of the
[accuseds] statement as containing matters of truth, and to reject his explanations he gave favourable to
himself.

Retracted confession
In Lim Thian Lai v. PP, Chao JA held that it is settled law that an accused can be convicted solely on his
confession even though that statement is subsequently retracted. But before convicting a person on this
basis, the court must be satisfied that his confession is voluntary, true and reliable.

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It has also been held by the SGCA in Panya Martmontree v. PP [1995] SGCA 59 that a retracted
confession of a co-accused implicating the accused in the offence may be relied upon to establish the
accused's guilt.
In Jagatheesan s/o Krishnasamy v. PP [2006] SGHC 129 (cited with approval by VK Rajah JA in
Muhammad bin Kadar v. PP [2011] SGCA 32), VK Rajah J, as he then was, held that by parity of
reasoning, with Lim Thian Lai v. PP and Panya Martmontree, the fact that a witness (in this case, an
accomplice) may have retracted his statement inculpating the accused does not, ipso facto, render the
statement of little evidential weight. The evidential weight to be assigned to the retracted statement should
be assiduously and scrupulously assessed by the courts, but in general, his Honour opined, it is neither
productive nor meaningful to treat retracted statements as a separate class of evidence attracting its own
peculiar rules of analysis. Instead, retracted statements should be regarded as an instance of
inconsistency in the witness's testimony, and whether the fact that a witness has retracted his statement
should be allowed to cast about the credibility of that witness and the veracity of his statement depends on
whether a reasonable and reliable explanation can be furnished for the retraction. If the explanation for
the retraction is unsatisfactory, then this may cast doubt on the entire evidence of that witness. However,
uncorroborated confessions that have for good reason (or reasons) been withdrawn by their makers should
be treated with particular caution.
If the explanation for retraction was that the statement was given involuntarily but such an explanation it
had been established by the trial judge that the statement was in fact voluntarily given, and where another
good reason for retraction is not proffered, the court might take the starting point to be that the EIC
should, prima facie, be treated as less reliable than the retracted statements (per Yong CJ in Lau Song
Seng v. PP [1972] SGCA 56).
It is odd that the starting point is that the EIC should be treated as being less reliable than the retracted
statements. The starting point should, instead, be neutral, since after all, the credibility of the witnesss EIC
can be tested under cross-examination.

Procedural Irregularity in Taking Statements


Statutory provisions
Criminal Procedure Code 2010
Power to examine witnesses
22.(1) In conducting an investigation under this Part, a police officer may examine orally any person
who appears to be acquainted with any of the facts and circumstances of the case
(a) whether before or after that person or anyone else is charged with an offence in connection with the
case; and
(b) whether or not that person is to be called as a witness in any inquiry, trial, or other proceeding under this
Code in connection with the case.
(2) The person examined shall be bound to state truly what he knows of the facts and circumstances of
the case, except that he need not say anything that might expose him to a criminal charge, penalty or
forfeiture.
(3) A statement made by any person examined under this section must
(a) be in writing;
(b) be read over to him;
(c) if he does not understand English, be interpreted for him in a language that he understands; and
(d) be signed by him.
Cautioned statements
23.(1) If, during an investigation, a person (referred to in this section as the accused) is charged with an
offence or informed by a police officer or any other person charged with the duty of investigating offences
or charging offenders that he may be prosecuted for an offence, he must be served with and have read to

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him a notice in writing as follows:


You have been charged with [or informed that you may be prosecuted for]
(set out the charge).
Do you want to say anything about the charge that was just read to you? If you keep quiet now about any
fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge
may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be
better for you to mention such fact or matter now. If you wish to do so, what you say will be written down,
read back to you for any mistakes to be corrected and then signed by you..
(2) If an accused, after the notice under subsection (1) is read to him
(a) remains silent; or
(b) says or does anything which intimates his refusal to give a statement,
the fact of his remaining silent or his refusal to give a statement or his other action must be recorded.
(3) A statement made by an accused after the notice under subsection (1) is read to him must
(a) be in writing;
(b) be read over to him;
(c) if he does not understand English, be interpreted for him in a language that he understands; and
(d) be signed by him.
(4) No statement made by an accused in answer to a notice read to him under subsection (1) shall be
construed as a statement caused by any threat, inducement or promise as is described in section 258(3), if it
is otherwise voluntary.
(5) A copy of a statement recorded under this section must be given to the accused at the end of the
recording of such statement.
Admissibility of accuseds statements
258.
Explanation 2 If a statement is otherwise admissible, it will not be rendered inadmissible merely
because it was made in any of the following circumstances:
(d) where the accused was not warned that he was not bound to make the statement and that evidence of it
might be given against him; or
(e) where the recording officer or the interpreter of an accuseds statement recorded under section 22 or 23
did not fully comply with that section.

Does failure to comply with the procedures in ss.22 or 23 affect admissibility?


Generally
Prima facie, failure to comply with the procedures set out in ss.22 or 23 does not per se affect admissibility
by virtue of Explanation 2(e) to s.258 CPC 2010. However, in PP v. Tan Kiam Peng [2007] SGHC 207,
VK Rajah J, as he then was, held, in respect of a failure to reduce the statement in writing, that the failure
to follow the procedural safeguards explicitly articulated in [s.122(5) CPC 2010] may, in some
circumstances, diminish in the courts eyes the veracity or accuracy of the statements purportedly made
by an accused, i.e., the procedural irregularities may affect the weight of the evidence.
VK Rajah JA took a stronger stand in Muhammad bin Kadar, where he held that where there are serious
breaches of s.22 or 23 which compromise in a material way the reliability of the statement(s), the court has
an exclusionary discretion to exclude the statement(s). The burden was on the Prosecution to convince the
court that the probative value of a statement which had been compromised by the manifest irregularities
that took place when it was supposedly recorded was higher than their prejudicial effect against their
maker. Statements taken in deliberate or reckless non-compliance would require especially cogent
explanations.
Warning the accused of his right to silence
Failure to warn an accused that he is not bound to say anything and that if he chose to, the evidence might
be used against it also does not affect the admissibility of the statement by virtue of Explanation 2(d) to

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s.258 CPC 2010. It was held in Mazlan bin Maidun that the police has no duty to inform the accused of his
privilege under s.121(2), viz, that he need not say anything that might expose him to a criminal charge, but
where the accused is also told that he is bound to state truly what he knows of the facts and circumstances
of the case without also telling him of his privilege, the statement may be excluded as being a legal
misrepresentation which does not fall within Explanation 2(a) of s.258 CPC 2010.
Serving and reading of notice and charge
Prior to the amendments, the requirement was that the notice in writing had to be served on and explained
to the accused. Under the current CPC 2010, s.23 requires only that the notice in writing be read to the
accused.
In Tsang Yuk Ching v. PP [1990] SGCA 10, Wee CJ, interpreting the phrase explain to, held that the
requirement is satisfied if an accused person is told in general terms what the charge and warning
mean. Since accused persons differ in background, what form the explanation should take must ultimately
depend on the facts of each case.
Literally read, the officer would have discharged the procedural requirement simply by reading word for
word that which is written on the notice. It is odd, though, that the requirement is no longer that of
explain. Surely the accused should at least understand what he is being charged with in order to defend
himself? In any case, the statement in Tsang Yuk Ching will probably not be inadmissible under CPC 2010
because of Explanation 2(e).

General Discretion to Exclude Confessions


VK Rajah JA (together with Chong J and Kan J) noted in Muhammad bin Kadar that the SGHC held in
Phyllis Tan that the key holding of the HL in R v. Sang, viz, that there remained a discretion to exclude any
evidence that had more prejudicial effect than probative value, was consistent with the EA and in
accordance with the letter and spirit of s.2(2) EA, and [was] therefore applicable in the Singapore context.
According to VJ Rajah JA, it was very clear from the judgment in Phyllis Tan that a common law
discretion to exclude voluntary statements that would otherwise be admissible exists where the prejudicial
effect of the evidence exceeds its probative value, and there is no reason why this discretion may not be
exercised in respect of voluntary statements from accused persons. Plainly, procedural irregularities may be
a cause for a finding that a statement's prejudicial effect outweighs its probative value. His Honour also
opined that this was precisely the discretion exercised by Rajendran J in PP v. Dahalan bin Ladaewa
[1995] SGHC 126, which was evident from the focus of the discussion on the effect that certain conditions
had on the evidential value of the statement's content.

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Right of Silence
Silence when Questioned/Confronted by Persons other than the Police
Criminal Procedure Code 2010
Inferences from accuseds silence
261.(2) Subsection (1) does not
(a) prejudice the admissibility in criminal proceedings of evidence of the silence or other reaction of the
accused in the face of anything said in his presence relating to the conduct for which he is charged, in so far
as evidence of this would be admissible apart from that subsection; or
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which
could be drawn apart from that subsection.
The common law position is propounded in Parkes v. The Queen [1976] 1 WLR 1251, where Lord
Diplock held that if a charge is made against a person in that person's presence it is reasonable to expect
that he or she will immediately deny it, and the absence of such a denial is some evidence of an
admission on the part of the person charged, and of the truth of the charge. Undoubtedly, when persons
are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses
no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the
charge to be true."
Parkes was followed in Tan Khee Koon v. PP [1995] SGHC 236, where Yong CJ held that s.123(3) CPC
[now s.261(2) CPC 2010] leaves the position as it stands at common law, where the effect of silence is
dependent upon the status of the accuser with respect to the accused. It is only if the relationship is
equal that the silence may be taken as evidence of the allegation. Yong CJ found on the facts that as the
complainant was not superior to the appellant, and was actually in an inferior position, the inference from
silence was possibly that the allegations were true. Yong CJ nevertheless qualified his holding by saying
that such inferences are very much dependent on the circumstances.
Usually, where it is reasonable to expect an answer or a denial but the accused does not proffer one, it
suggests that the accused accepts the truth of the accusation, and accordingly, in such circumstances, the
fact of silence can be used against the accused.

Silence When Questioned by the Police


Criminal Procedure Code 2010
Power to examine witnesses
22.(2) The person examined shall be bound to state truly what he knows of the facts and
circumstances of the case, except that he need not say anything that might expose him to a criminal
charge, penalty or forfeiture.
The s.22 CPC 2010 statement is also known as the long statement.

Whether an accused needs to be told of his right to remain silent


In PP v. Mazlan bin Maidun [1992] SGCA 90, the accused was only told that he was bound to state
truly but was not told of his right against self-incrimination.
Yong CJ held that (1) a suspect or an accused need not be expressly informed of a right to remain silent
whenever any statement is recorded from him pursuant to [s.22(2) CPC 2010]; (2) a failure to so inform
him is not a breach of his constitutional rights under Art 9(1) of the Constitution; and (3) any statement
recorded from a suspect or an accused under [s.22(1) CPC 2010] is not rendered inadmissible merely by

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the fact that the suspect or accused was not informed of his right to remain silent. [S.22 CPC 2010] was not
an admissibility provision, and admissibility was governed instead by [s.258(3) CPC 2010]. In the
circumstances, the misrepresentation of law amounted to an inducement to make the statement which
therefore rendered the statement inadmissible.
In Ong Seng Hwee v. PP [1999] SGHC 208, Yong CJ disbelieved the accuseds allegation that he was told
that he was bound to state the truth but was not informed of his right to remain silent. Yong CJ went on to
hold that even if his allegation was true, and that the caution administered in fact amounted to an
inducement, it was not shown that it had caused the making of the statement, i.e., even if the objective limb
was satisfied, the subjective limb was not. To come to this conclusion, Yong CJ noted that after the accused
was told that he was bound to tell the truth, he continued to protest his innocence for half an hour.

Can an adverse inference be drawn from accuseds non-disclosure of fact in his s.22
CPC 2010 statement?
Lim Lye Huat Benny v. PP [1995] SGCA 80, the accused was charged with drug trafficking. His defence
at trial, which he did not mention both in his [s.22 CPC 2010] (long) (which was given one day after the
s.23 CPC 2010 statement) and [s.23 CPC 2010] (short) statements, was that he thought he was delivering
counterfeit money. The reason proffered for the omission was that the accused was too tired and hungry and
that all he wanted to do was to rest. The reason was rejected and the trial judge drew an adverse inference
against the accused.
On appeal, Thean JA held that the trial judge was entitled to draw an adverse inference against the accused
in respect of the long statement, but that there was a plausible explanation for the omission in respect of the
short statement, viz, that the short statement was recorded at an unearthly time and that at that time, the
accused was too tired and hungry to think of his defence.
The SGCA has recently clarified that an exculpatory fact that was omitted will require cogent reasons to
justify the omission, and failure to proffer such a reason or reasons would justify the drawing of an adverse
inference. In Kwek Seow Hock v. PP [2011] SGCA 12, the accused was charged with drug trafficking. At
trial, the accused testified that half amount of drugs he was caught with was for his personal consumption
(which would have brought the amount below the capital punishment threshold), but the trial judge drew an
adverse inference against him on the basis that he had omitted to mention this fact in his long statement and
that he had not separated the portion that he claimed was for his personal consumption from the portion that
was purportedly for trafficking purposes. The trial judge, however, declined to draw an adverse inference
against the accused in respect of the omission when giving the cautioned statement. On appeal, the accused
contended that the trial judge had erred in law in drawing an adverse inference against him.
Chan CJ upheld the trial judges decision to not draw an adverse inference in respect of the short statement
and to draw an adverse inference in respect of the long statement. Chan CJ pointed out that [s.22 CPC
2010] (long statement) entitled an accused person to remain silent in so far as self-incrimination is
concerned, and because of this privilege against self-incrimination when making a long statement, no
adverse inference, in general, may be drawn against the accused for failing to state any fact or circumstance
which may incriminate him in any way. If, however, the fact or circumstance that is withheld will
exculpate the accused from an offence, a court may justifiably infer that it is an afterthought and
untrue, unless the court is persuaded that there are good reasons for the omission to mention that
exculpatory fact or circumstance.
Section 22(2) CPC 2010 says that the accused need not say anything that might expose him to a criminal
charge, penalty or forfeiture. One way to look at Kwek Seow Hock is that by saying that a portion of the
heroin was for the purposes of consumption, the accused would be to exposing himself to a criminal charge
for consumption, which, under s.22(2) CPC 2010, he was not bound to do. In other words, instead of
looking at the omission as an exculpatory statement, it could be seen as an inculpatory statement, which he
was not bound to state.
Further, it is arguably inappropriate for the court to draw an adverse inference against the accused pursuant
to an omission to mention a fact in the long statement. The premise of the adverse inference under s.261(1)

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CPC 2010 is that the accused had been warned of the consequences of not mentioning material facts. While
such a warning is giving pursuant to the cautioned statement, no such warning is given in relation to the
long statement. It is, however, not invariably the case that the long statement is given before the short
statement. As a matter of fact, the long statement is usually taken over several sessions. Thus, it could be
contended, on the other hand, that adverse inferences can be drawn against any long statements that were
given subsequent to the short statement, if it is also at the same time accepted that the s.23 procedure is not
self-contained such that the caution and corresponding inferences may not ever be extended to s.22
statements.

Silence Upon Being Charged or Officially Informed Under s.23(1) CPC 2010
Criminal Procedure Code 2010
Cautioned statements
23.(1) If, during an investigation, a person (referred to in this section as the accused) is charged with an
offence or informed by a police officer or any other person charged with the duty of investigating offences
or charging offenders that he may be prosecuted for an offence, he must be served with and have read to
him a notice in writing as follows:
You have been charged with [or informed that you may be prosecuted for]
(set out the charge).
Do you want to say anything about the charge that was just read to you? If you keep quiet now about any
fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the
judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it
may be better for you to mention such fact or matter now. If you wish to do so, what you say will be
written down, read back to you for any mistakes to be corrected and then signed by you..
(2) If an accused, after the notice under subsection (1) is read to him
(a) remains silent; or
(b) says or does anything which intimates his refusal to give a statement,
the fact of his remaining silent or his refusal to give a statement or his other action must be recorded.
(3) A statement made by an accused after the notice under subsection (1) is read to him must
(a) be in writing;
(b) be read over to him;
(c) if he does not understand English, be interpreted for him in a language that he understands; and
(d) be signed by him.
(4) No statement made by an accused in answer to a notice read to him under subsection (1) shall be
construed as a statement caused by any threat, inducement or promise as is described in section 258(3), if it
is otherwise voluntary.
(5) A copy of a statement recorded under this section must be given to the accused at the end of the
recording of such statement.
Inferences from accuseds silence
261.(1) Where in any criminal proceeding evidence is given that the accused on being charged with an
offence, or informed by a police officer or any other person charged with the duty of investigating offences
that he may be prosecuted for an offence, failed to mention any fact which he subsequently relies on in his
defence, being a fact which in the circumstances existing at the time he could reasonably have been
expected to mention when so questioned, charged or informed, as the case may be, the court may in
determining
(a) whether to commit the accused for trial;
(b) whether there is a case to answer; and
(c) whether the accused is guilty of the offence charged,
draw such inferences from the failure as appear proper; and the failure may, on the basis of those
inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the
accused in relation to which the failure is material.
(2) Subsection (1) does not
(a) prejudice the admissibility in criminal proceedings of evidence of the silence or other reaction of the

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accused in the face of anything said in his presence relating to the conduct for which he is charged, in so far
as evidence of this would be admissible apart from that subsection; or
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which
could be drawn apart from that subsection.

Whether an adverse inference can be drawn when the accused chose to be silent
because he wanted to consult a lawyer
In Yap Giau Beng Terence v. PP [1998] SGHC 232, the accused was charged with corruptly offering
gratification to 2 witnesses to an accident he had caused as an inducement for forbearing to report him to
the police for running away from the accident scene. His defence was that he had thought that one of the
witnesses was one of the victims and he had wanted to offer he compensation, and later asked her to
negotiate with the other victims on his behalf. His explanation for the omission to mention this in his
cautioned statement was that he wanted to consult his lawyer first as he did not want to say the wrong
things.
Yong CJ held the explanation to be completely unacceptable, as it would render s.123 [s.261 CPC 2010],
which purpose was to compel the accused to outline the main aspects of his defence immediately upon
being charged so as to guard against the accused raising defences at trial which are merely afterthoughts,
otiose. Yong CJ was of the view that it must have been evident to the accused, even without the benefit of
consulting a lawyer, that the facts he raised at trial in his defence afforded a legitimate explanation for the
offer of money he allegedly made, and that it would have been in his interest to mention them. These were
thus facts which the accused could reasonably have been expected to mention upon being charged, and the
trial judge was perfectly entitled to draw an adverse inference against the appellant under [s.261 CPC 2010]
for failing to mention them.

When will an adverse inference be drawn from an accuseds failure to mention certain
facts in his cautioned statement?
Adverse inference drawn
In Lau Lee Peng v. PP [2000] SGCA 13, counsel for the accused contended that the accused, being a
fishmonger of low intellect, could have failed to mention the allegations of provocation in his statements
because he did not understand the importance of doing so at the relevant time.
Chao JA held that the explanation was plainly unsustainable as the caution administered was simple
enough. Chao JA also rejected the contention that the accused was of low intellect, noting that he was
clever enough to think of a fictitious person to bear the brunt of the blame for the killing during the
police questioning.
In PP v. Azman bin Abdullah [1998] SGHC 161, the Prosecution appealed on the basis that the trial judge
had erred in failing to draw an adverse inference from the failure of the accused to mention his defence in
his cautioned statement.
Yong CJ held that the language of [s.261 CPC 2010] makes it clear that the court has a discretion whether
an adverse inference is appropriate in all the circumstances of the case. It is not the law that an adverse
inference must be drawn whenever an accused elected not to say anything in his [s.23 CPC 2010]
statement. In his Honours view, as the district judge had exercised his discretion judiciously in not
drawing an adverse inference (the district judge had found that the statement had not been given
voluntarily), there was no cause for any interference.
Adverse inference not drawn
Lim Lye Huat Benny, Thean JA agreed with the trial judge that there was a plausible explanation for the
omission in respect of the short statement, viz, that the short statement was recorded at an unearthly time
and that at that time, the accused was too tired and hungry to think of his defence.

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Inference to be drawn from a failure to explain notice under s.23 CPC 2010
The old s.23 CPC 2010 requires the notice to be explained to the accused when taking the cautioned
statement, and in Tsang Yuk Chung v. PP [1990] SGCA 10, it was held that the failure to explain the
notice to the accused may affect the courts approach towards drawing the appropriate inferences. If the
non-compliance is serious enough, the court will not draw any inferences at all from the failure of the
accused to mention certain facts.
In the present scheme of CPC 2010, however, it is only required that the notice be read to the accused.

Silence at Trial Upon Being Called to Enter a Defence


Criminal Procedure Code 2010
Procedure at trial
230.(1) The following procedure must be complied with at the trial in all courts:
(j) if after considering the evidence referred to in paragraph (e), the court is of the view that there is some
evidence which is not inherently incredible and which satisfies each and every element of the charge
as framed by the prosecutor or as altered or framed by the court, the court must call on the accused to give
his defence;
(m) before the accused calls any evidence in his defence, the court must inform the accused that he will be
called upon by the court to give evidence in his own defence and what the effect will be if, when so called
on, he refuses to give evidence on oath or affirmation; and the court may inform the accused in the
following terms:
I find that the prosecution has made out a case against you on the charge(s) on which you are being tried.
There is some evidence, not inherently incredible, that satisfies each and every element of the charge(s).
Accordingly, I call upon you to give evidence in your own defence.
You have two courses open to you. First, if you elect to give evidence you must give it from the witness
box, on oath or affirmation, and be liable to cross-examination. Second, if you elect not to give evidence in
the witness box, that is to say, remain silent, then I must tell you that the court in deciding whether you are
guilty or not, may draw such inferences as appear proper from your refusal to give evidence, including
inferences that may be adverse to you.
Let me also say, whichever course you take, it is open to you to call other evidence in your own defence.
You may confer with your counsel on the course you wish to take.
I now call upon you to give evidence in your own defence. How do you elect?;
Accused not to give evidence except on oath or affirmation
291.(1) In all criminal proceedings except a committal hearing, the accused may not give evidence
except on oath or affirmation, and if he does so, he is liable to cross-examination.
(2) An accused who is not represented by an advocate has the right to address the court without being
sworn or affirmed in circumstances where, if he were so represented, the advocate could address the court
on his behalf.
(3) If an accused
(a) after being called by the court to give evidence or after he or the advocate representing him has
informed the court that he will give evidence, refuses to be sworn or affirmed; or
(b) having been sworn or affirmed, without good cause refuses to answer any question,
the court, in deciding whether the accused is guilty of the offence, may draw such inferences from the
refusal as appear proper.
(4) This section does not compel the accused to give evidence on his own behalf, and he will not be
guilty of contempt of court if he refuses to be sworn or affirmed in the circumstances of subsection (3)(a).
(5) For the purposes of this section, an accused who, having been sworn or affirmed, refuses to answer a
question shall be taken to do so without good cause unless
(a) he is entitled to refuse to answer by section 122(4) of the Evidence Act (Cap. 97) or another written law
or on the ground of privilege; or

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(b) the court excuses him from answering it.


(6) Subsection (3) does not apply to an accused if it appears to the court that his physical or mental
condition makes it undesirable for him to be called on to give evidence.

Relevant principles on drawing inferences under s.291 CPC 2010


In Haw Tua Tau v PP [1981] 3 WLR 395, the PC held that the proper inferences to be drawn from an
accused's refusal to give evidence depend upon the circumstances of the particular case, and is a
question to be decided by applying ordinary commonsense. The PC observed that [s.291 CPC 2010]
makes it clear that the accused has a legal right to refuse to give evidence at his trial [and therefore] no
legal sanctions can be imposed upon him if he chooses to remain silent. It is only if he elects to give
evidence that he exposes himself to the risk of being compelled, under threat of legal sanctions, to answer
questions put in cross-examination which, if answered truthfully, might tend to show that he was guilty of
the offence with which he was charged.
Thus, the accuseds silence may not be used as a make-weight to fill in any gaps in the Prosecutions case,
as Chao JA held in Took Leng How v. PP [2006] SGCA 3.
However, if aspects of the evidence taken alone of in combination with other facts clearly call for an
explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to
give any explanation may as a matter of common sense allow the drawing of an inference that there is no
explanation and that the accused is guilty (per Yong CJ in Chai Chien Wei Kelvin v. PP [1998] SGCA 64,
citing Lotd Stynns judgement in Murray v. Director of PP [1994] 1 WLR 1 with approval).

Section 291(6) CPC 2010 exception from drawing of inferences for the physically or
mentally unfit
Section 291(6) CPC 2010 expressly prohibits the drawing of inferences where it appears to the court that
the accuseds physical or mental condition makes it undesirable for him to be called upon to give evidence.
In Took Leng How, the Defence contended that no inference should be drawn as the accused was alleged to
have suffered, and was purportedly still suffering at the time of the trial, from schizophrenia.
Chao JA, however, held on the evidence and the trial judges finding that the accused was mentally fit, and
thus the trial judge was entitled to draw adverse inferences as he deemed appropriate in the circumstances
against the accused.

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Illegally or Improperly Obtained Evidence


General Discretion to Exclude for Procedural Irregularity
Although procedural non-compliance does not affect admissibility, it may yet affect:
(1) exclusionary discretion of the court (PP v. Dahalan bin Ladaewa and Muhammad bin Kadar v.
PP); and if it is admitted:
(2) weight:
PP v. Tan Kiam Peng [2006] SGHC 207: the failure to follow the procedural safeguards
explicitly articulated in [s.22 CPC 2010] may, in some circumstances, diminish in the
courts eyes the veracity or accuracy of the statements purportedly made by an accused.
VK Rajah JA (together with Chong J and Kan J) noted in Muhammad bin Kadar that the SGHC held in
Law Society of Singapore v. Tan Guat Neo Phyllis [2007] SGHC 207 that the key holding of the HL in R
v. Sang, viz, that there remained a discretion to exclude any evidence that had more prejudicial effect than
probative value, was consistent with the EA and in accordance with the letter and spirit of s.2(2) EA, and
[was] therefore applicable in the Singapore context. According to VJ Rajah JA, it was very clear from the
judgment in Phyllis Tan that a common law discretion to exclude voluntary statements that would
otherwise be admissible exists where the prejudicial effect of the evidence exceeds its probative value,
and there is no reason why this discretion may not be exercised in respect of voluntary statements from
accused persons. Plainly, procedural irregularities may be a cause for a finding that a statement's prejudicial
effect outweighs its probative value. His Honour also opined that this was precisely the discretion exercised
by Rajendran J in PP v. Dahalan bin Ladaewa [1995] SGHC 126, which was evident from the focus of the
discussion on the effect that certain conditions had on the evidential value of the statement's content.

Entrapment
What is entrapment?
In Wong Keng Leong Rayney v. Law Society of Singapore [2007] SGCA 42, Chan CJ defined
entrapment as involving the luring or instigating the defendant to commit an offence which otherwise, in
ordinary circumstances, he would not have committed, in order to prosecute him.
In Law Society of Singapore v. Tan Guat Neo Phyllis [2007] SGHC 207, Chan CJ further elaborated on
the definition of entrapment:
Entrapment involves unlawful conduct by the state or its agents in instigating, cajoling or
pressuring the defendant into committing an offence which he wouldnt otherwise have done.
[T]he evidence is then used to prosecute the defendant for the offence which he was instigated to
commit. This is distinguished from merely providing the defendant with an opportunity to
commit the offence.
In this connection, Chan CJ classified How Poh Sun as a classic case of an accused being given an
opportunity to commit the offence, as opposed to being instigated to commit the offence, and therefore was
not a case of entrapment.
Chan CJ also did not classify Wong Keng Leong Rayney as a case of entrapment, as the private
investigator had merely given an opportunity to the appellant to offer her a referral fee; she had not
caused him to make the offer, and/or, subsequently, to pay the referral fee.[T]he appellant did what he
did voluntarily, and [he] would have done the same thing if any other estate agent had approached
him with a genuine offer of referral work.

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The law on entrapment/illegally obtained evidence pre-R v. Sang


Cheng Swee Tiang v. PP [1964] 1 MLJ 291 was the first case reported locally concerning the common law
discretion to exclude evidence obtained by entrapment. The accused was charged with assisting in the
carrying on of a public lottery. 2 police officers had entered the accuseds shop for the express purpose of
entrapping the accused into accepting a stake, which he did. One of the issues on appeal was whether a trial
court had the discretion to exclude evidence improperly obtained.
The majority (Wee CJ and Chua J) referred to the judgment of Goddard CJ in the PC case of Kuruma
Kaniu v. The Queen [1955] AC 197, which had held that the judge always has a discretion to disallow
evidence if the strict rules of admissibility would operate unfairly against the accused. The majority also
referred to Callis v. Gunn [1964] QB 495, in which Lord Parker CJ held that the strict rules of
admissibility would operate unfairly against the accused if the evidence had been obtained in an
oppressive manner or against the wishes of the accused. The majority concluded that it was undisputed
law that there is a judicial discretion to exclude relevant evidence if its reception would operate unfairly
against the accused.
On the other hand, Ambrose J in his dissenting speech did not accept that such a discretion could exist in
the absence of an empowering provision in the EA. However, his Honour observed that even if the court
had such a discretion, it would not have been correct to exercise it in the circumstances of the case.

The law on entrapment/illegally obtained evidence following R v. Sang


The issue for consideration in R v. Sang [1980] AC 402 was whether the courts had the discretion to
exclude evidence obtained by an undercover agent.
Lord Diplocks holding can be divided into 3 general propositions:
(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion
its prejudicial effect outweighs its probative value
(2) Save with regard to admission and confessions, and generally with regard to evidence obtained
from the accused after the commission of the offence, the trial judge has no discretion to refuse
to admit relevant admissible evidence merely on the ground that it was obtained by improper
or unfair means.
(3) It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result
of the activities of an agent provocateur.
The approaches of R v. Sang and Cheng Swee Tiang differ in that the former only allows evidence to be
excluded as a result of unfairness at trial, whereas the latter allowed evidence to be excluded as a result of
impropriety in the process of obtaining evidence.
R v. Sang was first considered in Ajmer Singh v. PP [1986] SGHC 39, which concerned illegally obtained
evidence but no entrapment was involved. The accused was convicted of riding a scooter whilst incapable
of having proper control of the vehicle as a result of intoxication. At the trial, the doctor gave evidence that
the accused showed symptoms of intoxication and that the blood specimen taken from him indicated a
certain blood alcohol level above the prescribed limit. The accused argued on appeal that the evidence of
the blood sample should not have been admitted as it was taken in breach of the procedures laid down by
the Road Traffic Act, which, inter alia, required his consent.
Chan J, as he then was, decided that it was not necessary to determine whether or not the accused give his
consent. Nevertheless, his Honour proceeded to comment on the assumption that no consent had been
given, and held, on the authority of Sang, that the illegally obtained evidence was admissible as its
probative value far outweighed its prejudicial effect.
In How Poh Sun v. PP [1991] SGCA 22, the accused was arrested, charged with and convicted of a capital
drug trafficking charge following an operation set up by the CNB using another offender (Goh) who was
prepared to co-operate. Goh had contacted the accused and told him that a buyer wanted a large quantity of
heroine. The accused canvassed the defence that his prosecution for a capital offence was unfair since, if
the narcotics police had raided his home (which address they had), they would have found only the drugs in

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the flat and he would then have been charged only with the lesser offence of unlawful possession of a
smaller quantity of heroin.
Yong CJ rejected the argument and held, in accordance with the HLs observations in R v. Sang that the
defences of agent provocateur and entrapment did not exist in English law, that entrapment was not a
defence under Singapore law.

Apparent extension of the scope of R v. Sang


In SM Summit Holdings Ltd v. PP [1997] SGHC 255, Yong CJ appeared to have extended the scope of the
Sang discretion by drawing a distinction between illegally obtained evidence by a law enforcement officer
and by a private investigator.
In SM Summit Holdings, a private investigator (at the behest of the Pf) had procured Summit Holdings
(who was suspected of copyright and trademark infringements) to infringe copyright and trademarks so that
a complaint could be made, and consequentially search warrants obtained, against Summit Holdings. The
private investigator had deposed in his statutory declaration showing how he had procured the party to
replicate 8 stampers which contained allegedly copyright infringing programmes.
Yong CJ held that the court had a discretion to exclude evidence that involved illegal conduct which
precedes the crime and was designed to bring about the very commission of the offence. In this
connection, his Honour drew a distinction between the case where police conduct has merely induced the
accused person to commit the offence which he has committed (as in Sang) and the case where the illegal
police conduct itself constitutes an essential ingredient of the charged offence. Yong CJ also
emphasized that different tests applied for law enforcement officers and private investigators. In the former,
it is a case where the public interest in the conviction and the punishment of those guilty of a crime is likely
to prevail over other considerations, and the exclusion of evidence would in fact undermine judicial
integrity in allowing such alleged offenders to get away, whereas in the latter, the illegality and the threat to
the rule of law which it involves assume a particularly malignant aspect. As such, Yong CJ held that the
integrity of the administration of criminal justice required that such evidence be excluded.
In SM Summit Holdings, the improperly obtained evidence was sought to be used in the context of
justifying a search warrant. An argument for abuse of the courts process could perhaps be mounted since
in Phyllis Tan, Chan CJ held that the judicial process in criminal cases was established for the very purpose
of putting an accused on trial for the commission of an offence, and as such, the invocation of the court's
process for the very purpose for which it was established could not be an abuse of its process.

The law on entrapment/illegally obtained evidence following Phyllis Tan


In Wong Keng Leong Rayney, Chan CJ declared that the term unfairness in the context of the Sang
principle is not concerned with the process of obtaining evidence, but with the effect of the evidence at
trial. However, as the parties did not address the court on the admissibility provisions in the EA and the
related policy considerations, Chan CJ determined that it was more convenient for the court of 3 judges to
decide on the matter in Phyllis Tan.
In Phyllis Tan, certain lawyers had hired a private investigator to obtain evidence that the respondents law
practice had been involved in touting for conveyancing work. The private investigator proceeded to
represent herself as a real estate agent who might want to engage the respondent to act for her client in the
purchase of a property and they eventually met. The private investigator made audio and video recordings
of a telephone discussion and meeting respectively with the respondent (without their knowledge). After
that meeting, the private investigator made a complaint against the respondent to the Law Society in
connection with the respondents offer to pay a referral fee for procuring conveyancing work.
The SGHC, presided over by Chan CJ, Phang JA and Ang J, observed that the given overarching principle
in the EA is that all relevant evidence is admissible unless specifically expressed to be inadmissible, and
against this backdrop, Cheng Swee Tiang and How Poh Sun are inconsistent with the EA insofar as they
sanction the exclusion of relevant evidence on the ground of unfairness to the accused. In this respect, the
court was of the opinion that Ambroses dissenting judgment in Cheng Swee Tiang was correct in pointing

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out that there was no fairness exception in relation to entrapment. In any event, the court continued, the
fairness exception has no practical effect in entrapment cases since, by definition, the probative value of
such evidence must be greater than the prejudicial effect in proving the guilt of the accused. For this reason,
the court explained, the Sang formulation is, in practical terms, consistent with the EA and in accordance
with the letter and spirit of s.2(2) EA, and is therefore applicable in the Singapore context.
The court concluded that there is no discretion to exclude illegally obtained evidence (including
entrapment evidence) by reason of the provisions of the EA

Prosecution based on evidence obtained by entrapment as an abuse of process


Phyllis Tan also stands for the related proposition that a prosecution based on entrapment or illegally
obtained evidence is not an abuse of process as long as it has been brought for the bona fide prosecution of
criminals. In coming to his decision, Chan CJ considered the English and Australian approaches in
Loosely and Ridgeway respectively.
In Looseley, the HL considered state entrapment as an abuse of executive power, and thus, prosecuting an
accused on evidence thereby obtained was an abuse of process and would bring the administration of
justice into disrepute, which the court would not tolerate.
In contrast, Ridgeway held that such a prosecution could not be an abuse of process for the reason that the
judicial process in criminal cases was established for the very purpose of putting an accused on trial for the
commission of an offence. The invocation of the court's process for the very purpose for which it was
established could not be an abuse of its process.
Chan CJ agreed with the approach in Ridgeway as a matter of legal logic, and accordingly held that the
court may not exclude evidence or stay the proceedings on the basis of the evidence being obtained by
entrapment.
Chan CJ also added that even if a prosecution founded upon entrapment evidence was an abuse of process,
the court has no jurisdiction to stay a prosecution because of the separation of powers under the
Constitution. However, the court has, in an appropriate case, the power within its own judicial sphere to
declare a prosecution unconstitutional for breach of constitutional power, or for infringement of
constitutional rights and protections.
In the same vein, Tay J held in Mohamed Emran bin Mohamed Ali v. PP [2008] SGHC 103, a case where
the accused contended that the non-prosecution of the state agent who had incited and instigated him to
traffic drugs was an infringement of his Art 12 rights, that the failure to prosecute the state agent did not
contravene the accuseds rights under Art 12. There was an intelligible differentiation between entrapped
drug traffickers and state agents provocateurs, viz, the former class of persons belonged to one that had
demonstrated both the mens rea and actus reus to promote the drug trade, whereas the latter group, on the
other hand, had the sanction of the State and their operative mens rea was to curb and curtail the drug
trade rather than to promote it.
Tay J also observed that there is a perfectly rational nexus between entrapment operations and the socially
desirable and laudable objective of containing the drug trade, viz, such operations are necessary to flush out
suppliers of drugs and serve as an important deterrent against the traffic in drugs as they introduce a clear
and present risk of instant arrest into the equation for drug traffickers.
It is hard to see why the constitutional separation of prosecutorial and judicial power should rule out a
discretion to stay proceedings on the ground of abuse of process. The fragmentary model of governance
that the SGHC seemed to have endorsed would subvert the very check and balance that separation of
powers was designed to institute. Furthermore, if our system is based on the Westminster model, and
presumably the government of the UK still is, then it appears that the Court might have inadvertently
implied that the HL in Loosely had violated a fundamental tenet of the Westminster model.

Aftermath of Phyllis Tan is there a discretion or not?


In Muhammad bin Kadar [2011] SGCA 32, the 1st statement was allegedly made to SSI Zainal alone in a
police car. Z had told his 2 colleagues to leave the car so that he could speak to Ismil (brother of
Muhammad) alone. Z recorded the confession (that Ismil had slashed the victim) on a slip of paper. This

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was not recorded in Zs field diary, which he did not carry with him as he was required to do under the
Police General Orders. His reason for this was that he was not on field duty and merely assisting in the
investigations. Z recorded the 1st statement in his field diary after lunch but substituted the word slashed
for stabbed. The 2nd statement was made at the Jurong Police Division Headquarters on the same day. Z
interviewed Ismil alone again at but did not put the content of the interview into writing until after lunch.
Other procedural irregularities that were raised were (1) no warning was administered to Ismil before
taking the statement; (2) neither statement was read back to him and he was not given the opportunity to
correct either statement; and (3) neither statement was signed by him. Zs explanation for these
irregularities were that he wanted to refer Ismil to another officer to record a proper statement.
VK Rajah JA11 (together with Chong J and Kan J) noted that the SGHC held in Phyllis Tan that the key
holding of the HL in R v. Sang, viz, that there remained a discretion to exclude any evidence that had more
prejudicial effect than probative value, was consistent with the EA and in accordance with the letter and
spirit of s.2(2) EA, and [was] therefore applicable in the Singapore context. According to VJ Rajah JA, it
was very clear from the judgment in Phyllis Tan that a common law discretion to exclude voluntary
statements that would otherwise be admissible exists where the prejudicial effect of the evidence exceeds
its probative value, and there is no reason why this discretion may not be exercised in respect of voluntary
statements from accused persons.
VK Rajah then went on to state that procedural irregularities may be a cause for a finding that a
statement's prejudicial effect outweighs its probative value [T]he rules prescribed by the CPC for
the recording of statements are in existence to provide a safeguard as to reliability The [PGO],
especially, set out basic but essential practices for police officers. When fully complied with, the [PGO]
thus help ensure that statements are reliably recorded. It follows as a logical conclusion that a serious
breach of procedural rules, whether prescribed by the CPC or the [PGO], would necessarily render such
statements less reliable. Accordingly, if the Prosecution sought to admit a statement recorded in breach of
the relevant provisions in the CPC and/or the [PGO], it would bear the burden of establishing that the
probative value of the statement outweighed its prejudicial effect. The Prosecution can discharge this
burden if, for instance, some reasonable explanation is given for the irregularity, however, statements
taken in deliberate or reckless non-compliance in relation to procedural requirements will generally
require more cogent explanation from the Prosecution to discharge its burden, as compared to where the
irregularities are merely careless or arising from some pressing operational necessity.
VK Rajah JA, however, qualified the rule by stating that the court should be careful to avoid basing the
exercise of the exclusionary discretion primarily on a desire to discipline the wrongful behaviour of police
officers or the Prosecution. It is important, he remarked, to distinguish an evidential discretion from a
disciplinary function. Courts should also refrain from excluding evidence based only on facts indicating
unfairness in the way the evidence was obtained (as opposed to unfairness in the sense of contributing
to a wrong outcome at trial).
That being said, his Honour opined that a vigilant emphasis on the procedural requirements in the recording
of statements can have a positive effect on the quality of such evidence generally. Making it clear that noncompliance with the required procedures could actually weaken the Prosecution's case against an accused
person would have the effect of removing the incentive for such non-compliance on the part of police
officers, so as to help ensure that all evidence in the form of written statements coming before the court will
be as reliable as possible.
Turning to the facts of the case, VK Rajah JA held that both statements should have been excluded by the
trial judge in the exercise of discretion as they were obtained in deliberate non-compliance with the
procedural requirements [s.22(3) CPC 2010] rather than mere carelessness or operational necessity. This
was in view of the fact that the Prosecution was not able to give any plausible (let alone persuasive) reason
as to why SSI Zainal, a seasoned investigator with 28 years of experience, failed to observe the basic
requirements of [s.22(3) CPC 2010]. The burden was on the Prosecution to convince the court that the
probative value of each of the 2 statements, which had been compromised by the manifest irregularities that
took place when each of them was supposedly recorded, was higher than their prejudicial effect against
their maker. As the breaches of the CPC and the PGO also appeared to be deliberate, the explanation given
needed to be especially cogent, and the Prosecution had been unable to discharge the burden.
11

Perhaps his Honour felt left out of the Phyllis Tan party and therefore decided to add his gloss on the
matter in an entirely differently constituted court.

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Opinion
Lay Opinion
Statutory Provisions
Evidence Act
Statement of opinion
32B.(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a
relevant matter on which he is not qualified to give expert evidence, if made by way of conveying relevant
facts personally perceived by him, is admissible as evidence of what he perceived.
Opinion as to handwriting when relevant
49. When the court has to form an opinion as to the person by whom any document was written or signed,
the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed, that it was or was not written or signed by that person, is a relevant fact.
Explanation A person is said to be acquainted with the handwriting of another person when he has seen
that person write, or when he has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that person, or when, in the ordinary
course of business, documents purporting to be written by that person have been habitually submitted to
him.
Illustration
The question is whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Singapore, who has written letters addressed to A and received letters purporting to be
written by him. C is Bs clerk, whose duty it was to examine and file Bs correspondence. D is Bs broker, to
whom B habitually submitted the letters purporting to be written by A, for the purpose of advising him
thereon.
The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant,
though neither B, C nor D ever saw A write.
Opinion as to existence of right or custom when relevant
50. When the court has to form an opinion as to the existence of any general custom or right, the opinions
as to the existence of such custom or right of persons who would be likely to know of its existence, if it
existed, are relevant.
Explanation General custom or right includes customs or rights common to any considerable class of
persons.
Illustration
The right of the inhabitants of a particular kampong to use the water of a particular well is a general right
within the meaning of this section.
Opinion as to usages, tenets, etc., when relevant
51. When the court has to form an opinion as to
(a) the usages and tenets of any body of men or family;
(b) the constitution and government of any religious or charitable foundation; or
(c) the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon are relevant facts.
Opinion on relationship when relevant

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52.(1) When the court has to form an opinion as to the relationship of one person to another, the opinion
expressed by conduct as to the existence of such relationship of any person who as a member of the family
or otherwise has special means of knowledge on the subject is a relevant fact.
(2) Such opinion shall not be sufficient to prove a marriage in prosecutions under section 494 or 495 of the
Penal Code (Cap. 224).
Illustrations
(a) The question is whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife is relevant.
(b) The question is whether A was a legitimate son of B.
The fact that A was always treated as such by members of the family is relevant.
Grounds of opinion when relevant
53. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are
also relevant.
Illustration
An expert may give an account of experiments performed by him for the purpose of forming his opinion.

Opinion which assists the court by conveying relevant facts personally perceived by the
witness ultimate issue doctrine
Statement of opinion
32B.(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a
relevant matter on which he is not qualified to give expert evidence, if made by way of conveying relevant
facts personally perceived by him, is admissible as evidence of what he perceived.
In R v. Davies [1962] 1 WLR 1111, the accused was charged for drink driving. The Prosecution called a
witness, another driver, to give evidence about the facts he had observed and also opinion evidence about
the accused's condition. The Defence contended that the witness should be allowed to speak only about the
facts he had observed, because the condition of the driver was a question for the court.
The court agreed with the defence that the condition of the driver was a question for the court, holding that
while a witness could quite properly state his general impression whether or not the driver of a vehicle was
intoxicated by describing the facts relied on, he was not, merely because he was a driver himself, in the
expert witness category, and thus it was improper to ask him his opinion of the driver's fitness or unfitness
to drive.
The same approach was taken in the Irish case of Sherrard v. Jacob [1965] NI 151, where the accused was
charged with driving motor car while under such a degree of intoxication that he did not have proper
control of the vehicle. The prosecution witnesses gave evidence that the accused was drunk based on
following facts: eyes were glazed and red, he was staggering, he reeked of alcohol, his speech was slurred
etc.
The majority held that the witnesses could testify as to the accuseds intoxication but not to the unfitness to
drive.
Lord MacDermott dissented, holding instead that the evidence of unfitness to drive was part and parcel of
the witnesss perception, and should therefore be admissible.
A different approach was however taken by the Supreme Court of Canada in Graat v. R [1982] 144 DLR
(3d) 267. The accused was charged with the offence of driving a motor car while his ability to drive was
impaired by alcohol. The police witnesses gave opinion evidence of drivers intoxication (based on the
accuseds manner of driving the car, that he smelled of alcohol, his staggered walk, instability and
bloodshot eyes), as well as his unfitness to drive.
The Supreme Court rejected the ultimate issue doctrine on the basis that the trier of fact had discretion to
admit certain types of opinion evidence where the distinction between opinion and fact are not clear, and
unanimously held that the opinion as to the accuseds unfitness to drive was admissible.

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Special means of knowledge under s.51 EA


Opinion as to usages, tenets, etc., when relevant
51. When the court has to form an opinion as to
(a) the usages and tenets of any body of men or family;
(b) the constitution and government of any religious or charitable foundation; or
(c) the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon are relevant facts.
Leong Wing Kong v. PP [1994] SGCA 37, the accused testified that the heroin he was caught with was for
personal consumption, but a CNB officer with more than 20 years of experience testified that if the accused
was right, he would have in effect been consuming 73 pieces of 1-inch straws per day, which was a
significantly higher amount that what a hardcore addict would consume. The accused contended that the
CNB officer was not an expert and accordingly, his evidence was hearsay and inadmissible.
Yong CJ held that as the CNB officer had more than 20 years of experience working with the law
enforcement division of CNB and that the had access to information about the drug scene in Singapore in
the course of his work, he therefore had sufficient work experience to be considered an expert in the matter
on which he gave evidence. Accordingly, the CNB officer had the special means of knowledge within the
meaning of s.51 EA and his opinion evidence was therefore admissible.

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Opinion
Expert Opinion
Statutory Provisions
Evidence Act
Opinions of experts
47.(1) Subject to subsection (4), when the court is likely to derive assistance from an opinion upon a
point of scientific, technical or other specialized knowledge, the opinions of experts upon that point are
relevant facts.
(2) An expert is a person with such scientific, technical or other specialized knowledge based on training,
study or experience.
(3) The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates
to a matter of common knowledge.
(4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of the
view that it would not be in the interests of justice to treat it as relevant.
Illustrations
(a) The question is whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died
are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind,
incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether symptoms exhibited by A commonly show unsoundness
of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature
of the acts which they do or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is whether a certain document was written by A. Another document is produced which is
proved or admitted to have been written by A.
The opinions of experts on the question whether the 2 documents were written by the same person or by
different persons are relevant.
Facts bearing upon opinions of experts
48. Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts
when such opinions are relevant.
Illustrations
(a) The question is whether A was poisoned by a certain poison.
The fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts
affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is whether an obstruction to a harbour is caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects but where there were no such sea-walls
began to be obstructed at about the same time is relevant.
Grounds of opinion when relevant
53. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based
are also relevant.
Illustration
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
Oral evidence must be direct

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62.(1) Oral evidence must in all cases whatever be direct


(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the
person who holds that opinion on those grounds.

Explanatory Statement for new s.47 EA


Section 47 is reenacted to extend the scope of admission of expert evidence to points of scientific,
technical or other specialised knowledge generally. The new s.47(2) abolishes the common knowledge
rule and is modelled after s.25(2)(b) of the New Zealand Evidence Act 2006. Under the common
knowledge rule, opinions of experts on matters of common knowledge and experience are strictly not
relevant and therefore not admissible. The express abolition of the rule is accompanied by the judicial
discretion in s.47(4) to exclude expert opinion evidence where it is not in the interests of justice to treat it as
relevant. This discretion is similar to that in the new s.32(3).

Definition of an Expert
Opinions of experts
47.(2) An expert is a person with such scientific, technical or other specialized knowledge based on
training, study or experience.

Qualifications of Expert
It is not necessary for the witness to be professionally qualified in order to be considered an expert, so long
as he has sufficient experience concerning the matters. In PP v. Muhamed bin Sulaiman [1982] MLJ 320,
the accused was charged with murder. The only evidence connecting the accused to the murder was the
evidence of a chemist that the bullet recovered from the body of the deceased was fired from the rifle
issued to the accused. The trial judge held the chemists evidence to be inadmissible due to, inter alia, there
being inadequate evidence of his competency as an expert in fire arms and in the identification of the rifle
from which the bullet had been fired.
On appeal, the Federal Court of KL held that the trial judge had erred in treating the chemist as a nonexpert. The chemist, by virtue of his education, scientific qualification and practical experience gained in
the department of Chemistry at the University of Malay, had sufficient experience and practical
experience so as to acquire the necessary skill and knowledge, and could therefore be regarded as an
expert for the purpose of determining whether or not the bullet had been fired through the accuseds rifle.
However, the experience must relate specifically to the matters in issue in order to justify a witness giving
expert testimony. In PP v. Chong Wei Kian [1990] 3 MLJ 165, the accused was charged for drug
trafficking. A chemist of 18 years from the Johor Bahru Chemistry Department testified that the substance
found on the accused was heroin.
The Federal Court of KL held that the chemist was not an expert witness as, apart form the fact that he had
been a chemist for 18 years, no other evidence was tendered to show his qualification and experience in the
field of assessing the nature and weight of drugs.

Need for Expert


2 different approaches for traffic accident related cases
There may be cases where an issue may arise in respect of whether an expert opinion is even required for
the particular subject matter of the case. In Ong Chan Tow v. R [1963] MLJ 160, the accused had been
convicted of causing the death of a motorist in a traffic accident. The accused called a motor engineer, who
was also an insurance assessor, to give expert evidence based on a view of the accident scene 2 months

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after the incident, and a study of the photographs and the plan of the scene. He had also seen the damaged
car, a wheel track on the grass verge as well as other marks. On the basis of these facts, he gave his opinion
that the motorist was driving too fast and could have avoided the bus.
Winslow J held that the issue before the court was whether the accused had failed to stop at the Halt sign,
which was a matter that could be determined by the court without the assistance of expert evidence. As to
the skid marks, broken glass and other debris at the scene, Winslow J held that these were clearly matters
for the court and such an expert should not be asked to give his conclusions on matters which are
eminently matters for the court to decide otherwise he would tend to arrogate to himself the functions of the
court. The motoring expert is there to help the Court on technical and mechanical matters, not to draw
inferences which even a layman can equally well draw.
On the other hand, the SGHC came to a different conclusion regarding the traffic accident in PP v. Tubbs,
Julia Elisabeth [2001] SGHC 212. A group of pedestrians including a mother, her son and a toddler,
attempted to cross a road while standing on the road divider and were knocked down by a car driven by the
accused. At the trial, expert evidence was heavily relied on as there were no independent eyewitnesses. The
expert witnesses agreed that: (a) the accused was driving at a speed of about 50km/h, (b) the group would
take approximately 2 seconds to move from the road divider to the area of impact, and (c) the reaction time
of a driver under the circumstances was between 1.5 and 2 seconds; but disagreed on whether the fatalities
could have been avoided.
Yong CJ did not consider that the normal perception and reaction time of a drive was a matter within the
ordinary human experience for which the court could come to its own conclusions, nor one which was
easily explicable by recourse to common sense. As such, the assistance of expert testimony was necessary
in the circumstances. Yong CJ also noted that the experts' view on the perception and reaction time under
the circumstances had not been challenged, and since it was based on sound grounds and supported by the
basic facts, the court can do little else but to accept the evidence.
Phang JC attempted to steer a middle path between the 2 approaches in Khoo Bee Keong v. Ang Chun
Hong [2005] SGHC 128, where he commented that one must be careful not to allow [accident
reconstruction] techniques to overwhelm the very valuable resources of plain intellect, logic and
common sense Nevertheless, parties ought to be open to new and better techniques of reconstruction
where the circumstances and resources warrant it.
In light of the new s.47(1) and (3) EA, the fact that the matter is of common knowledge and experience no
longer renders an expert opinion admissible, and as long as the court is likely to derive assistance from the
expert opinion, it will be relevant.

Expert opinion to assist in considering the probability of an accuseds veracity


In Lowery v. R [1974] AC 85, L and K were both charged with the murder of a girl, and both of them
alleged that the other was the perpetrator. L claimed that he was fearful of K and couldnt prevent K from
killing the girl whereas K claimed he did not fully appreciate what was going on as he was on drugs, and
was powerless to stop L. In support of his case, K called a psychologist who had interviewed and
conducted personality tests on both L and K. The psychologist testified that K was an immature,
emotionally, shallow youth, who seemed likely to be led and dominated by more aggressive and dominant
men whereas L had a strong aggressive drive with weak controls over the expression of those aggressive
impulses.
The PC decided that the expert opinion was scientific evidence as to the respective personalities of the two
accused as, and to the extent, revealed by certain well-known tests. Thus, the evidence was relevant insofar
as it helped in considering which side of the story was more probable.
In light of the new s.47(1) and (3) EA, such evidence, notwithstanding R v. Turner (below), is likely to be
admissible, but is at the same time likely to be excluded pursuant to the discretion in s.47(4) EA.

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Expect opinion not required for ordinary human experiences


Lowery was distinguished by the English CA in R v. Turner [1975] QB 834 as a case which was decided
on its special facts, and which did not stand as authority for the proposition that in all cases psychologists
and psychiatrists can be called to prove the probability of the accuseds veracity. In Turner, the accused
was convicted of the murder of his girlfriend by bludgeoning her to death. He appealed on the ground that
the trial judge had not allowed a psychiatrist to give evidence supporting his defence of provocation.
The English CA upheld the trial judges decision on the basis that mental illness was not in issue. Lawton
LJ held that it was knowledge common to all that both men and women who are deeply in love can, and
sometimes do, have outbursts of blind rage when discovering unexpected wantonness on the part of their
loved ones... Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any
mental illness are likely to react to the stresses and strains of life.
Turner was cited locally in Chou Kooi Pang v. PP [1998] SGCA 48 as authority for the proposition that an
expert should not give evidence if the court is able to come to its own conclusion without assistance. The
accused in Chou Kooi Pang was convicted for drug trafficking. A psychologist was called to give evidence
of his low IQ in support of his defence that he did not know or suspect that he was carrying drugs.
Applying Turner, Yong CJ held that expert opinion is only admissible to furnish the court with scientific
information which is likely to be outside the experience and knowledge of a judge. If, on the proven facts, a
judge can form his own conclusions without help, the opinion of an expert is unnecessary. As the court
could itself conclude whether the accused knew or suspected that he was carrying drugs, there was no need
for the opinion of the psychiatrist on that matter.

Ultimate Issue
May the expert give his opinion on the very issue that the court has to decide?
In DPP v. A and BC Chewing Gum [1968] QB 159, psychiatrists sought to testify that certain allegedly
obscene cards sold to children together with packets of bubble gum could not have had the effect of
depraving or corrupting the children. The lower court refused to hear the evidence on the basis that it
infringed the ultimate issue rule.
On appeal, the English CA held that the evidence of the psychiatrists was not the very issue to be decided
by the court. There were, according to Lord Parker CJ, 2 issues before the court. Firstly, what sort of effect
would these cards singly or together have upon children; and no doubt children of different ages; what
would it lead them to do? Secondly, was what they were led to do a sign of corruption or depravity? It was
perfectly proper to call a psychiatrist to answer the first issue but not the second.
Similarly, in R v. Stockwell (1993) 97 Cr App Rep 260, the accused was charged for robbery. There was
evidence of the robbery in the form of a video security film, but it was not entirely clear that the accused
was the person depicted in the film. The Prosecution called an expert in photo identification to testify that
the accused was the person in the film. The accused contended that the experts testimony should not be
allowed as it infringed the ultimate issue rule.
Citing A and BC Chewing Gum, the English CA held that if there was indeed a rule prohibiting experts
from giving an opinion on an ultimate issue, it has long been more honoured in the breach than the
observance. In other words, an expert is now permitted to give his opinion on what has been called the
ultimate issue, but the judge should make it clear to the jury that they are not bound by the experts
opinion, and that the issue is for them to decide.
The rule laid down in R v. Stockwell applies a fortiori where the judge is the trier of fact.

Reliability of Expert Evidence

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The courts determination that expert evidence is necessary does not however mean that it will necessarily
be accepted. It may be rejected if it is unsound or illogical or if it is contradicted by other evidence
presented in the case. However, as the SGCA held in Saeng-Un Udom v. PP [2001] SGCA 38, while the
court must not blindly accept the evidence merely because there is no definite opinion to the contrary, the
court will normally accept an unchallenged expert opinion if its is based on a sound foundation and is not
otherwise objectionable.
In Saeng-Un Udom, the accused was charged with murder by striking the victim with a metal rod. The
expert for the Prosecution, who was the only expert witness called, testified that death was caused by an
instrument with a sharp edge, not a rod. In convicting the accused, the SGHC rejected this opinion and
substituted its own view that the accused had used a metal rod.
Thean JA held that the where the court is confronted with expert opinion which was unopposed and
based on sound grounds and supported by the basic facts, it can do little but to accept the evidence.
His Honour admonished that it was not for the court to draw its own inferences in such circumstances, and
accordingly, the accused was acquitted as the opinion raised a reasonable doubt.
VJ Rajah J, as he then was, also commented in Sakthivel Punithavathi v. PP [2007] SGHC 54, even
though in that case there were conflicting expert evidence from both parties, that it is axiomatic that a
judge is not entitled to substitute his own views for those of an uncontradicted Be that as it may, a court
must not on the other hand unquestioningly accept unchallenged evidence. Evidence must invariably be
sifted, weighed and evaluated in the context of the factual matrix and in particular, the objective facts. An
experts opinion should not fly in the face of proven extrinsic facts relevant to the matter. In reality,
substantially the same rules apply to the evaluation of expert testimony as they would to other categories of
witness testimony. Content credibility, evidence of partiality, coherence and a need to analyse the evidence
in the context of established facts remain vital considerations; demeanour, however, more often than not
recedes into the background as a yardstick.
In any case, the new s.47(4) EA now confers on the court a discretion to exclude in the interests of justice
an otherwise relevant opinion.
Opinions of experts
47.(4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of
the view that it would not be in the interests of justice to treat it as relevant.

Conflicting Expert Testimony


In Singapore Finance Ltd v. Lim Kah Ngam (Singapore) Pte Ltd [1984] SGHC 11, the Pfs claimed
against the Dfs for damage caused to the Pfs buildings. Conflicting expert evidence were adduced by both
sides to prove different versions of how extensive cracks on a building came about.
Lai J revealed that his approach in evaluating the evidence was to examine the scientific grounds and bases
which they relied upon. Where the opinion of an expert was based on reports of facts and empirical
observations, the court had to be satisfied, on the balance of probabilities, whether those facts existed and
whether any inferences drawn from those facts were sound or not.
In reaching its conclusion, the court will analyse the grounds of the opinion to determine its soundness.
Thus in Tengku Jonaris Badlishah v. PP [1999] SGCA 21, the accused, who was charged with murder,
raised the defence of diminished responsibility on the ground that he was suffering from depression and
cannabis intoxication at the material time. His expert testified to this effect. The Prosecutions expert
witness, however, contended that the accused was not suffering from any abnormality of the mind.
Yong CJ held that the trial judge was entitled to elect between the evidence of these two expert witnesses,
in accordance with the approach laid down in McLean v Weir [1973] 3 CCLT 87 and approved in
Muhammad Jefrry bin Safii v PP [1996] SGCA 44. Yong CJ was of the view that the trial judge had
carefully and dispassionately assessed the respective theories of the two experts, and had accordingly
reached a clear conclusion in fact.

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The SGCA in Muhammad Jefrry bin Safii v PP [1996] SGCA 44 pointed out that the experts
qualifications are of secondary importance in determining whether the expert testimony was persuasive
or not. What was germane, instead, was the knowledge and familiarity of the expert with the
particular subject matter.
However, in Sakthivel Punithavathi, VK Rajah J, as he then was, opined that in the context of medical
evidence, an expert with greater relevant clinical experience may, although not invariably the case, often
prove to be more credible and reliable on hands-on issues for the purposes of deciding between
conflicting testimonies. In Sakthivel Punithavathi, the accused was accused of using a chopper to cause
serious injuries to the last 3 fingers of the right hand of the victim. The Prosecutions 2 medical experts had
testified that the victims injuries were not typical of self-inflicted injuries, basing their conclusions on,
inter alia, the direction of lacerations and the fact that the injuries were on the victims dominant hand.
They had also confirmed that the injuries must have been caused by a number of blows (instead of a single
blow). The Defences medical expert, however, opined that the victims injuries were consistent with selfinflicted injuries with the presence of classic hesitation cuts of varying degrees. He had also indicated,
inter alia, that it was unlikely the victim would have willingly and passively been cut multiple times and
that given the injuries sustained, the implement used and the size of the accused, it was not possible for the
accused to have held the victims hand and cut her.
VK Rajah J, as he then was, held that where there is conflicting evidence between experts, it will not be
the sheer number of experts articulating a particular opinion or view that matters, but rather the
consistency and logic of the preferred evidence that is paramount. Generally speaking, the court should
also scrutinise the credentials and relevant experience of the experts in their professed and
acknowledged areas of expertise. Not all experts are of equal authority and/or reliability. In so far as
medical evidence is concerned, an expert with greater relevant clinical experience may often prove to be
more credible and reliable on hands-on issues although this is not an inevitable rule of thumb. Having
said that, there is no precise pecking order or hierarchy relating to expert evidence. Experts may
sometimes be abundantly eminent while lacking credibility in a particular matter.
On the facts, the Prosecutions medical experts, who were considerably less experienced and thorough than
the Defences expert, could not convincingly account for the superficial cuts on the victims fingers. Their
relatively limited experience with hand injuries coupled with references to suicide cases was neither
impressive nor persuasive. It appeared from the subtext of the trial judges grounds of decision that she was
unduly impressed by the Prosecutions reliance on 2 medical experts, in contradistinction to the sole expert
the Defence had recourse to. It also appeared to his Honour that the trial judge had failed to accord proper
significance either to the Defences experts substantial clinical experience or to his standing as an expert.

Grounds of Opinion
Statutory Provision
Evidence Act
Statement of opinion
32B.(1) Subject to this section, section 32 applies to statements of opinion as they apply to statement of
fact.
(2) A statement of opinion shall only be admissible under section 32(1) if that statement would be
admissible in those proceedings if made through direct oral evidence.
(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a relevant
matter on which he is not qualified to give expert evidence, if made by way of conveying relevant facts
personally perceived by him, is admissible as evidence of what he perceived.
Grounds of opinion when relevant
53. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are
also relevant.

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Illustration
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
Oral evidence must be direct
62.(1) Oral evidence must in all cases whatever be direct
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the
person who holds that opinion on those grounds.
(2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which
such opinions are held may be proved by the production of such treatise if the author is dead or cannot be
found or has become incapable of giving evidence or cannot be called as a witness without an amount
of delay or expense which the court regards as unreasonable.
In AD v. AE [2005] SGHC 30, Choo J that a DNA report that was tendered by someone else other than the
doctor who prepared it was inadmissible as the court was only presented with a report from a laboratory on
the DNA results and a note under the letterhead of a doctor.
Similarly in Khoo Bee Kiong, reliance was placed on the expert witnesss sworn affidavit, which could not
be tested in cross-examination.
Notwithstanding the foregoing, in light of the amendments to the hearsay opinion (the new s.32B(2)), AD
v. AE is no longer good law. Under the present scheme, the opinion evidence would be admissible if the
person who expressed the opinion was entitled to give such opinion evidence in court.
Section 62(2) EA also allows treatises to be admissible in court without the need to call the author as a
witness for the prescribed reasons.

Ethical Perspectives
Khoo Bee Kiong, per Phang JC at [82] [85] and [87]:
[82] There are also other more general yet no less intractable difficulties with regard to expert
evidence generally. One has been hinted at, but is in fact an extremely pressing problem and ought
therefore to be mentioned. It would surprise no one. It relates to the alleged bias on the part of the
expert concerned. It would surprise no one simply because, apart from court-appointed experts,
every expert is appointed (and remunerated) by the party who has engaged his or her services. It is
true that the expert concerned has, in the final analysis, an overriding duty to objective justice and
to the court (see, for example, the oft-cited observations by Lord Wilberforce in the House of
Lords decision of Whitehouse v Jordan [1981] 1 WLR 246 at 256257). The principle just
mentioned is now embodied, in the local context, in O 40A r 2 of the Rules of Court, as follows:
Experts duty to the Court (O. 40A, r. 2)
2.(1) It is the duty of an expert to assist the Court on the matters within his expertise.
(2)
This duty overrides any obligation to the person from whom he has received
instructions or by whom he is paid.
[emphasis added]
Reference may be made, in addition, to O 40A r 3(2)(h) as well as the views of V K Rajah JC (as
he then was) in the Singapore High Court decision of Vita Health Laboratories Pte Ltd v Pang
Seng Meng [2004] 4 SLR 162 at [79][90].
[83] All this is only to be expected as [e]xpert witnesses are in a privileged position; indeed only
experts are permitted to give an opinion in evidence [emphasis in original] (per Cazalet J in the
English decision of Re J (Child Abuse: Expert Evidence) [1991] FCR 193 at 226. To this end, the
duties of experts have been set out in detail in many cases. Perhaps one of the most detailed
formulations is that by Cresswell J in the English High Court decision of The Ikarian Reefer
[1993] 2 Lloyds Rep 68 at 8182, which was endorsed (with one modification) on appeal: see per

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Stuart-Smith LJ, delivering the judgment of the English Court of Appeal in The Ikarian Reefer
[1995] 1 Lloyds Rep 455 at 496. Indeed, Cresswell Js formulation has been described as [t]he
most important enunciation of the duties and responsibilities of expert witnesses (see Freckelton
& Selby, The Law of Expert Evidence ([68] supra) at p 594).
[84] However, one cannot be faulted for taking the views just expressed, with respect to an
experts duty to the court and to justice, with the proverbial pinch of salt, especially when one
views this proposition through the lenses of practical reality. Not surprisingly, therefore, this
datum difficulty is almost always referred to in the literature and the case law which it cites (see,
for example, Jeffrey Pinsler, Experts Duty to be Truthful in the Light of the Rules of Court
(2004) 16 SAcLJ 407 and, by the same author, Evidence, Advocacy and the Litigation Process
([68] supra) at p 650; Sir John Woodroffe & Syed Amir Alis Law of Evidence, vol 2 ([68] supra),
especially at pp 23542355; and Anthony Kenny, The Expert in Court (1983) 99 LQR 197 at
214). It has also been pointed out that the Court may be induced to believe the expert who has
succeeded in putting forward his views in the most persuasive and plausible manner (see H A
Hammelmann, Expert Evidence (1947) 10 MLR 32 at 34). This poses no real difficulty if the
expert concerned has, in fact, a persuasive case. However, where he or she does not, the intensity
surrounding problems of bias (already undesirable in themselves) is driven home in spades.
[85] The real and effective solution to the difficulties centring on the alleged bias of experts
probably lies in the sphere of the extra-legal and this, in itself, reflects, once again, the almost
natural intractability that especially characterises the law relating to expert evidence.
[87] All the issues canvassed above - and more besides - point to the fact that the area of expert
evidence generally is in need of re-examination. Fortunately, none of the issues raised had any
impact on the resolution of the present proceedings. This was due, as already mentioned, to the
fact that the case was a relatively straightforward one, where the expert evidence proffered was not
(unfortunately) particularly helpful ... However, Singapore is not the only jurisdiction where a
review might be necessary. Significantly, the New South Wales Law Reform Commission's Issues
Paper entitled Expert witnesses (IP 25, November 2004) refers (at para 1.2) to the 'world-wide
reassessment and change relating to the management of court business generally and expert
witnesses in particular' [emphasis added].
Mhlbauer AG v. Manufacturing Integration Technology Ltd [2010] SGCA 6 at [45]:
[45] The issue of the need for review in this area of the law referred to in the last paragraph of the
passage quoted in the preceding paragraph was also alluded to by counsel for the Appellant, Dr
Lai. Dr Lai emphasised that the issue in relation to the possible (or even probable) bias of experts
is an especially significant one in patent cases and suggested that a new system involving impartial
assessors might be a possible solution. The special difficulties just mentioned might well be the
case, given the very nature of the inquiry in such cases, in which the court also often does not
possess the requisite technical expertise. However, it is obviously also significant with respect to
all other areas of the law as well. In the meantime, however, it may well be wise and prudent for
the parties concerned in future cases (especially of this nature) to apply to the court to appoint an
impartial and objective expert (whose views they would agree to abide by) pursuant to O 40 r 1 of
the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (which permits the court to appoint one or more
independent experts on the application of any party which, under O 40 r 1(2) "shall, if possible, be
a person agreed between the parties and, failing agreement, shall be nominated by the Court"). It
should, however, also be noted that this same Rule also permits the court to appoint one or more
independent experts "on its own motion", although, in the nature of things (particularly in patent
disputes), this particular avenue will probably prove to be less than practical.

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Novel Science
Novel science concern the realm of knowledge that are not fully accepted by mainstream scientific
community, such as astrology, feng shui, alternative therapy, fringe science etc.
In Fyre v. US, 293 F 1013 (1923), an expert witness was called to testify that the accused had taken a
systolic blood pressure deception test, and to further testify as to the results of the test.
The CA of District of Columbia held that expert testimony deduced from a well-recognized scientific
principle or discovery must be sufficiently established to have gained general acceptance in the
particular field in which it belongs for it to be admissible.
On the facts, the court held that the systolic blood pressure deception test had not yet gained such standing
and scientific recognition among physiological and psychological authorities as would justify the courts in
admitting expert testimony deduced from the discovery, development, and experiments thus far made.
In 1975, 52 years after Frye, the Federal Rules of Evidence came into force governing the reception of
evidence in the Federal Courts. Rule 702, which governs the reception of expert evidence, provided as
follows:
Rule 702. Testimony by Experts
If scientific, technical or other specialised knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or
education, may testify thereto in the form of an opinion or otherwise.
In Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993), the expert called by the Pf, who
were borne deformed allegedly as a result of his mother ingesting a drug manufactured by the Df, testified
that the drug had caused the deformities. However, the majority of the scientific field does not agree that
the drug causes limb deformities and the FDA continues to approve of its use in pregnant women.
The US Supreme Court held that the rigid general acceptance test propounded in Frye was in conflict
with the Federal Rules of Evidence which put the focus on whether the evidence had a sound scientific
foundation and whether it would assist a tribunal of fact to understand the evidence or to determine a fact in
issue. The Court therefore held that the Federal Rules had established reliability and relevance as the only
two criteria to determine if expert evidence should be admitted and left no room for general acceptance
as a threshold question. The Court interpreted the phrase scientific knowledge in Rule 702 as requiring
the evidence to satisfy the prerequisite of evidentiary reliability and as importing the requirement that the
evidence be supported by appropriate validation by the methods and procedures used in science. The Court
emphasised that the focus of the inquiry into reliability should be on the principles adduced and
methodology utilised not on the actual conclusions reached by the expert. The word assist in Rule 702
was said to create a helpfulness standard which goes primarily to the requirement of relevance. Rule
702s helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition
to admissibility. This test goes beyond mere logical relevance required by Rule 401. Scientific evidence is
required to pass a heightened relevancy test because the Supreme Court was of the view that even if
evidence is shown to be scientifically valid, it must also be shown to be scientifically relevant, or fit, for
the purpose for which it is adduced. It must be established that the experts reasoning or methodology, even
if scientifically valid, is scientifically probative of the particular fact or facts to which it is directed. The
Supreme Court then went on to suggest some non-definitive guidelines to determine reliability of scientific
knowledge. The four non exhaustive guidelines suggested were:
(1) Whether the claims can and have been tested;
(2)
Whether the theory or technique has been subjected to peer review and publication;
(3)
The known or potential rate of error and the existence and maintenance of standards
controlling the techniques operation;
(4) Whether there has been general acceptance within a relevant scientific community.
Having set out the new guidelines, the Supreme Court concluded by holding that even if evidence is
admitted under the new guidelines, Rule 403 will act as a safeguard to exclude the relevant evidence if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.

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As a result of Daubert, general acceptance by a relevant scientific community has now been relegated to
being merely one factor in a non-exhaustive list of factors to be taken into account in determining
admissibility. It is no longer the sole and exclusive criterion as it was under Frye. The gate-keeping
responsibility has been shifted from the scientific community to the judge.
Comparing the Frye approach with the Daubert approach
The Frye approach has the following advantages:
(a) It sidesteps the task of judicial assessment of scientific validity by deferring to the general opinion of
the relevant expert community.
(b) It is a relatively quick method of determining admissibility of novel scientific evidence. Trials are not
prolonged and juridical resources are conserved by not having to deal with complicated threshold
questions.
(c) The high threshold requirement of establishing general acceptance provides a greater assurance of
reliability for the evidence.
(d) The test is relatively brightline and promotes consistency of decision- making.
The Frye approach, however, has certain disadvantages:
(a) The Frye test applies only to novel scientific evidence whereas Daubert provides assistance in
evaluating the admissibility of all scientific evidence. The application of the Frye test therefore means that
a field of scientific expertise, once it has been recognised and is no longer considered novel, ceases to be
subject to ongoing scrutiny. The Frye test therefore fails to recognise that what may have been reliable
science at one time may cease to be so.
(b) Acceptance in the scientific community is a nebulous concept. It is difficult to determine what should
constitute the relevant community.
(c) It is difficult to ascertain the views of a completely unbiased and impartial majority of practitioners in a
particular field whose financial viability is not intimately connected to the technique or theory in question.
(d) The Frye test makes no attempt to evaluate the contents or methods used in the scientific knowledge
adduced and merely focuses on which methods have been accepted and recognised by the majority of the
profession (extrinsic evaluation). The absence of an empirical testing requirement may result in the
reception of unreliable evidence.
(e) Reliable and helpful scientific methodologies or techniques may be excluded merely because they are
too recent or because they only represent the views of a minority in the field.
Advantages of the Daubert approach:
(a) The Daubert test goes directly to the nub of the issue to determine whether as a matter of fact a
technique or theory has sufficiently evidentiary reliability to be received in court by evaluating the content
and methods used in the scientific knowledge adduced (internal inspection).
(b) The Daubert test permits more relevant and reliable expert evidence to go before the court.
(c) Opinion evidence resulting from the application of a field of expertise will not be excluded merely
because that field is new and cannot yet be said to be generally accepted.
Disadvantages of the Daubert approach:
(a) It places too great an onus on judges who are expected to act as amateur scientists in evaluating the
underlying essence of scientific knowledge and to apply difficult epistemological concepts such as
falsifiability to decide what are merely threshold questions.
(b) Judges will require special training to cope with the task of assessing scientific methodologies.
(c) More judicial time will be consumed in applying the test and will in turn result in more costs to the
parties.
(d) The concept of falsifiability, which is the key test of scientific validity propounded in Daubert, is an
adequate, but not always necessary, criterion to distinguish between good and junk science. Although a
rigid application of this criterion may rightly exclude some unreliable types of syndrome evidence, it may
also result in the exclusion of orthodox forensic practices that cannot meet falsifiability criteria for example
fingerprints, ballistics, bite-marks and handwriting.
(e) It is biased in favour of hard sciences. Syndrome evidence is usually adduced by experts in social and

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behavioural sciences and cannot be tested or falsified in the strict sense because these soft sciences deal
with the psychology of human beings.
(f) The guideline of falsification by empirical testing or rate of error was formulated specifically to test
scientific evidence and is not appropriate for evaluating other forms of specialised knowledge.
(g) The test is very general in nature and the non-exhaustive factors set out do not give the courts much
guidance in its application.
The approach in Singapore
Under the amended s.47(1) EA, novel science will fall within the ambit of the phrase specialized
knowledge, which was included to avoid any argument that the fields of expertise on which expert
evidence is admissible are closed, and is therefore likely to be prima facie admitted where it is of
assistance to the court. In determining whether the evidence is of assistance, the court may observe the
Daubert guidelines, or alternatively, the court may only have regard to the factors elucidated in Daubert in
deciding how much weight to assign to the evidence. The court also reserves the discretion to exclude the
evidence under s.47(4) EA.

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Legal Professional Privilege


Statutory Provisions
Evidence Act
Application of Parts I, II and III
2.(1) Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits
presented to any court or officer nor to proceedings before an arbitrator.
Professional communications
128.(1) No advocate or solicitor shall at any time be permitted, unless with his clients express consent,
to disclose any communication made to him in the course and for the purpose of his employment as such
advocate or solicitor by or on behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the course and for the purpose of such
employment.
(2) Nothing in this section shall protect from disclosure
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any
crime or fraud has been committed since the commencement of his employment.
(3) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact
by or on behalf of his client.
Explanation The obligation stated in this section continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, a solicitor: I have committed forgery and I wish you to defend me.
As the defence of a man known to be guilty is not a criminal purpose this communication is protected from
disclosure.
(b) A, a client, says to B, a solicitor: I wish to obtain possession of property by the use of a forged deed on
which I request you to sue.
This communication being made in furtherance of a criminal purpose is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, a solicitor, to defend him. In the course of the
proceedings B observes that an entry has been made in As account-book, charging A with the sum said to
have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed
since the commencement of the proceedings, it is not protected from disclosure.
Communications with legal counsel in entity
128A.(1) A legal counsel in an entity shall not at any time be permitted, except with the entitys express
consent, to disclose any communication made to him in the course and for the purpose of his employment
as such legal counsel, or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his employment as such legal counsel, or to disclose any
legal advice given by him to the entity, or to any officer or employee of the entity, in the course and for the
purpose of such employment.
(2) Nothing in subsection (1) shall protect from disclosure
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any legal counsel in an entity in the course of his employment as such legal
counsel showing that any crime or fraud had been committed since the commencement of his employment
as such legal counsel;
(c) any such communication made to the legal counsel which was not made for the purpose of seeking legal
advice; or
(d) any document which the legal counsel was acquainted with otherwise than in the course of and for the

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purpose of seeking legal advice.


(3) For the purposes of subsection (2)(b), it is immaterial whether the attention of the legal counsel was or
was not directed to the fact by or on behalf of the entity.
(4) Where a legal counsel is employed by a public agency and is required as part of his duties of
employment or appointment to provide legal advice or assistance in connection with the application of the
law or any form of resolution of legal dispute to another public agency or agencies, subsection (1) shall
apply in relation to the legal counsel and the second-mentioned public agency or agencies as if the legal
counsel were also employed by the second-mentioned public agency or agencies.
(6) For the purposes of subsection (5), public agency includes
(a) the Government, including any ministry, department, agency, or Organ of State or instrumentality of the
Government;
(b) any board, commission, committee or similar body, whether corporate or incorporate, established under
a public Act for a public function (referred to in this subsection as a statutory body);
(c) any other board, commission, committee or similar body appointed by the Government, or by a
statutory body, for a public purpose.
Section 128 to apply to interpreters, etc.
129. Sections 128 and 128A shall apply to interpreters and other persons who work under the supervision
of legal professional advisers.
Privilege not waived by volunteering evidence
130.(1) If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be
deemed to have consented thereby to such disclosure as is mentioned in section 128 or 128A;
(2) If any party to a suit or proceeding calls any such advocate or solicitor as a witness, that party shall be
deemed to have consented to such disclosure as is mentioned in section 128 only if that party questions
the advocate or solicitor on matters which but for the question the advocate or solicitor would not be at
liberty to disclose.
(3) If any party to a suit or proceeding calls any legal counsel in an entity as a witness, that party shall be
deemed to have consented to such disclosure as is mentioned in section 128A only if that party questions
the legal counsel on matters which but for the question the legal counsel would not be at liberty to disclose.
Confidential communications with legal advisers
131.(1) No one shall be compelled to disclose to the court any confidential communication which has
taken place between him and his legal professional adviser unless he offers himself as a witness, in which
case he may be compelled to disclose any such communications as may appear to the court necessary to be
known in order to explain any evidence which he has given, but no others.
(2) In subsection (1) and section 129, legal professional adviser means
(a) an advocate or solicitor; or
(b) in the case of any communication which has taken place between any officer or employee of an entity
and a legal counsel employed, or deemed under section 128A(4) or (5) to be employed, by the entity in the
course and for the purpose of seeking his legal advice as such legal counsel, that legal counsel.

Sphere of Legal Professional Privileges Applicability


Application of Parts I, II and III
2.(1) Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits
presented to any court or officer nor to proceedings before an arbitrator.

Does the privilege apply to other types of quasi-judicial proceedings?


In Yap Sing Lee v. MCST No 1267 [2011] SGHC 24, Belinda Ang J held that legal advice privilege is no
longer regarded as merely a rule of evidence, restricted to judicial or quasi-judicial proceedings, but is
now considered a substantive legal right that may be claimed outside these areas.

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Legal Advice Privilege


Rationale
Lord Brougham said in Greenough v. Gaskell (1833) 1 My & K 98 that the rule arises out of regard to
the interests of justice, which cannot be [upheld], and, to the administration of justice, which can not go on,
without the aid of men skilled in jurisprudence [and] in the practice of the Courts If the privilege did not
exist at all, every one would be thrown upon his own legal resources; deprived of all professional
assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor
half his case.
Similarly, Lord Taylor held in R v. Derby Magistrates Court [1996] 1 AC 487 that [t]he principle which
runs through all these cases, and many other cases is that a man must be able to consult his lawyer in
confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his
lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much
more than an ordinary rule of evidence. It is a fundamental condition upon which the whole
administration of justice rests Legal professional privilege is concerned with the interaction between two
aspects of the public interest in the administration of justice. The public interest in the efficient working of
the legal system requires that people should be able to obtain professional legal advice on their rights and
liabilities and obligations. This is desirable for the orderly conduct of everyday affairs. Similarly, people
should be able to seek legal advice and assistance in connection with the proper conduct of court
proceedings. To this end communications between clients and lawyers must be uninhibited. But, in practice,
candour cannot be expected if disclosure of the contents of communications between client and lawyer may
be compelled, to a client's prejudice and contrary to his wishes. That is one aspect of the public interest. It
takes the form of according to the client a right, or privilege as it is unhelpfully called, to withhold
disclosure of the contents of client-lawyer communications. In the ordinary course the client has an interest
in asserting this right, in so far as disclosure would or might prejudice him. The other aspect of the public
interest is that all relevant material should be available to courts when deciding cases. Courts should not
have to reach decisions in ignorance of the contents of documents or other material which, if disclosed,
might well affect the outcome. All this is familiar ground, well traversed in many authorities over several
centuries. The law has been established for at least 150 years, since the time of Lord Brougham L.C. in
1833 in Greenough v. Gaskell, 1 M. & K. 98: subject to recognised exceptions, communications seeking
professional legal advice, whether or not in connection with pending court proceedings, are absolutely and
permanently privileged from disclosure even though, in consequence, the communications will not be
available in court proceedings in which they might be important evidence.
Chan CJ confirmed the rationale for the privilege in the SGCA case of Skandinaviska Enskilda Banken
AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR(R) 367, stating that legal advice
privilege recognizes that the justice system depends for its vitality on full, free and frank communication
between those who need legal advice and those who are best able to provide it. Society has entrusted to
lawyers the task of advancing their clients cases with the skill and expertise available only to those who are
trained in the law. They alone can discharge these duties effectively, but only if those who depend on them
for counsel may consult with them in confidence. The resulting confidential relationship between solicitor
and client is a necessary and essential condition of the effective administration of justice.

Communication Between Lawyer and Client


Scope of communication
In Balabel v. Air India [1988] 2 All ER 246, Taylor LJ held that the test is whether the communication
or other document was made confidentially for the purposes of legal advice. According to Taylor LJ,
these purposes had to be construed broadly. The scope of the privilege rule is not limited to
communications between client and solicitor which request and convey legal advice. It also applies to those

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communications which do not specifically seek and convey legal advice but which are part of the
necessary exchange of information whose object is the giving of legal advice as and when appropriate, and
must include advice as to what should prudently and sensibly be done in the relevant legal context .
The fundamental condition of legal advice privilege is that the communication must relate in some way
to legal advice.

Requirement of confidentiality
Phang JA held in Scandinaviska that the privilege only protects confidential communications, and
although s.128 does not refer to the confidentiality of the communication from the client to the lawyer,
whilst s.131 refers to such a quality with respect to any communication passing between him and his
lawyer, it is implicit that the nature of the business or enterprise involved in a client obtaining legal advice
from a lawyer must have the element or quality of confidentiality in the communication to the lawyer or
the advice given to the lawyer.

Presentational advice
Three Rivers v. Bank of England (No. 6) [2005] AC 610 arose against the backdrop of the spectacular
collapse of BCCI, which led to massive losses to depositors. An inquiry was commissioned by the
Chancellor to carry out a public inquiry on BoE, who was under a statutory responsibility to maintain
supervisory oversight over BCCI. In turn, BoE appointed 3 of its own officials (Bingham Inquiry Unit) to
deal with all communications with the solicitors. BoE appointed Freshfields to advise it on how to present
evidence to the inquiry. After the BIUs report was published, BoE faced lawsuits by depositors who had
suffered losses, and the lawyers representing the depositors demanded disclosure of the communications
between BoE and its lawyers. The HL was asked to consider whether the scope of legal advice privilege
extended to presentational advice with which a lawyer might be requested to furnish his client.
The HL held that the communications between BoE and its lawyers were privileged, since the issue of
whether BoE had properly performed its duties of supervision involved potential legal action for breach
of its duties under public law, and presentational advice was necessary for the purpose of enhancing
[BoEs] prospects of persuading the inquiry that it had complied with its duties. In other words, there was
a sufficient legal context. In coming to its conclusion, the HL endorsed Taylor LJs statement in Balabel
that legal advice is not confined to telling the client the law; it must include advice as to what should
prudently and sensibly be done in the relevant legal context.
Lord Scott gave the following guidelines in a case where it is not obvious that communications have taken
place in the relevant legal context:
There is, in my opinion, no way of avoiding difficulty in deciding in marginal case whether the
seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant
legal context so as to attract legal advice privilege. In cases of doubt the judge called upon to make
the decision should ask whether the advice relates to the rights, liabilities, obligations or
remedies of the client either under private law or under public law. If it does not, then, in my
opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge
should ask himself whether the communication falls within the policy underlying the
justification for legal advice privilege in our law. Is the occasion on which the communication
takes place and is the purpose for which it takes place such as to make it reasonable to expect the
privilege to apply? The criterion must, in my opinion, be an objective one.
Lord Roger, inter alios, agreed, pointing out that BoE was not seeking Freshfields assistance as bankers,
accountants, rhetoricians or anything else: it was seeking their comments and assistance as lawyers
professing expertise in the field. The HL also suggested that privilege applies to advice given to
participants in all courts, tribunals and inquiries, including inquests and planning inquiries 12.

12

In this connection, see Yap Sing Lee v. MCST No. 1267 above.

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By or on behalf of who is the client?


Under the EA, the word client is not defined. Neither is it defined by the Interpretation Act. There is
apparently a lacuna as to what the word means when a corporate body seeks legal advice. A broad
definition of client will spread the coverage of privilege widely, leading to loss of corporate transparency
and accountability, which in turn affects the ability of a non-corporate party to pursue litigation against a
corporate party.
In Three Rivers v. Bank of England (No. 5) [2003] QB 1556, the depositors and liquidators sought
discovery of the documents prepared by BIU in connection with the inquiry, in particular the internal
documents prepared by the employees of BoE on the instructions of and for BIU.
The English CA, adopting a narrow definition of client for the purposes of attaching the common law
privilege, rejected BoEs claim of legal privilege. There were 2 key points that was made in coming to this
decision. First, it was held that BIU was the client in question and the employees of BoE who had created
the various documents were 3rd parties to the solicitor-client relationship between BIU and Freshfields.
Secondly, it held that legal professional privilege only applies to communications passing between a client
and its legal adviser and documents evidencing such communications, but not documents communicated to
a client or his solicitor for advice to be taken upon.
The English CA adopted a narrow definition of client for the purposes of attaching the common law
privilege. It held that, in the case of a corporate client, legal advice privilege would not attach to
communications to the legal adviser by either employees who were not part of the directing mind and
will of the client or by others who were not the client. The result was that the privilege did not attach to
memoranda supplied by employees for the purpose of being sent to the clients solicitor.
The applicability of Three Rivers (No. 5) to these provisions came up for discussion in the SGCA case of
Skandinaviska. An employee of APB had used APBs name to obtain and use credit and loan facilities
from several banks. The employee was subsequently charged and convicted of several cheating charges.
After APB discovered the fraud, a special committee was set up and this committee appointed PWC and
D&N to investigate into the fraud. Draft reports were prepared by PWC although a final report was never
issued. The banks which sued APB sought discovery of the PWC draft reports. APB asserted privilege
both litigation and legal professional privilege.
Phang JA held that Three Rivers (No. 5) should be read in the context of the courts finding that the BIU
(and no one else) was authorised to communicate with the banks solicitors. In so far as s.128 of the EA is
concerned, the company cannot itself make the communication to its solicitors: only individuals can do so,
and those individuals would be those authorised to do so, expressly or impliedly. The words by or on
behalf of his client in this particular provision embody, statutorily, the proposition just mentioned.
Accordingly, [there was no] inconsistency between Three Rivers (No. 5) and s.128 of the EA.
In other words, Phang JAs view was that if an employee was not authorised to communicate with the
companys solicitors for the purpose of obtaining legal advice, then that employees communication
would not be protected by legal advice privilege.
The difference between Three Rivers (No. 5) and Skandinaviska is in that in the former, BIU, having been
authorized to communicate with BoEs legal advisers, became the directing mind and thus the client for
the purposes of seeking of legal advice, whereas in the latter, the SGCA adopted a wider definition of
client, holding that the directing mind or client is the Board of Directors, and the persons authorised to
communicate with the legal advisers would be communicating with him by or on behalf of the client (i.e.,
the Board of Directors). In short, the English CA adopted the specific directing mind test, whereas the
SGCA adopted the general directing mind test.
In favour of the definition adopted in Skandinaviska, 4 arguments can be made:
First, a narrow definition could result in a loss of candour in communications between employees or
corporate officers who are not part of the client group of persons. It could eliminate candour in situations
where candour should be encouraged; as where diverse members of the corporate entity would be
proactively seeking to defuse potentially litigious situations, for example, conducting a review of a

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potentially defective product or running an environmental assessment check in a situation where no


customer has complained.
Secondly, a narrow definition will raise a plethora of questions. For instance, the issues that remain
unanswered with respect to the definition in Three Rivers (No. 5) are numerous. Among them are these:
how can this client group be identified short of an express authorisation by the Board of Directors? When
can members outside of this client group provide information or should the client group be the only
ones responsible for all collation of data and communications?
Thirdly, the consequences of a narrow definition would be especially stark in large corporate organisations,
especially transnational organisations where it is necessary, by sure dint of size, for organisations to
designate and entrust the collation of data to delegated individuals or managers in each country. Yet, this
economically beneficial approach to the collation of data is challenged by the narrow definition espoused in
Three Rivers (No. 5) since prudence would require that the client group of employees obtain all the
relevant information themselves instead of delegating this duty downwards.
Fourthly, it is unfair to restrict the ability of a corporate entity to investigate allegations of fraud or
negligence by requiring the corporate entity to constantly guard against its own employees being compelled
into disclosing sensitive or inconvenient information.

Third party communication and legal advice privilege


Under the EA, it is unclear whether the extension of legal advice privilege to 3rd party communications can
be justified by a liberal interpretation of the existing terms of ss.128 and 128A EA.
The approaches to 3rd party communications differ in the UK and in Australia. The English position, as laid
out by the English CA in Three Rivers (No. 5), is that legal advice privilege can only be claimed for
communications passing between a lawyer and his client made in confidence for the purpose (which need
not be the dominant purpose) of obtaining legal advice or assistance.
In contrast, the Australian position is laid out in Pratt Holdings Pty Ltd v. Commissioner of Taxation
[2004] FCAFC 122, where, on the advice of the solicitor, the company procured a report on the companys
financial situation from an accountant. The report was forwarded to the solicitor. The Australian Federal
Court held that legal advice privilege is capable of extending to non-agent, third party authored
documentary communications if it was made to the client for the dominant purpose of obtaining legal
advice. According to Finn J, there were clear policy reasons that support extending the privilege to such 3rd
party authored documentary communications:
Whether a natural person or a corporation, a party seeking to obtain legal advice may not have
the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at
all such communication to its legal adviser as is necessary to obtain the legal advice required.
Such is commonplace today where advice is sought on complex and technical matters. To deny
that person the ability to utilize the services of a third party to remedy his or her own inability or
inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third
party, is to disadvantage that person relative to another who is able adequately to make the
desired communication to a legal adviser by relying upon his or her own knowledge, resources,
etc. For the law to provide such an incentive not to utilise the services of third parties in such
circumstances is to undercut the privilege itself. It would not facilitate access to effective legal
advice nor would it facilitate effective communication with legal advisers for the purpose of
obtaining legal advice.
In Skandinaviska, Phang JA expressed strong endorsement by way of obiter dicta of the approach in the
Pratt Holdings over the approach in Three Rivers (No. 5). According to Phang JA, the reasoning of in
Pratt Holdings appears sound and provides a sensible and a workable basis for balancing the need for
complete confidentiality in a solicitor and client relationship with the need for disclosure of information
which is not communicated for the purpose of obtaining legal advice. The approach in Pratt Holdings is
principled, logically coherent and yet practical.
Pratt Holdings raises an issue in respect of statutory integrity and compliance with ss.128(1) and
128A(1) EA. The words by or on behalf of his client embody the English approach of requiring the third

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party to be a channel of communication or conduit on behalf of the client. To encompass a situation


whereby the 3rd party provides separate information in a capacity independent of the client would require a
stretch of the statutory language. In Pratt Holdings, the report was written by an accounting firm and sent
by the accounting firm to the client. Even on a liberal reading of on behalf of in the first limb of s.128(1),
it is difficult to see how the report was in itself a communication by the accounting firm on behalf of the
client to the lawyer. It is perhaps more appropriate to rely on the second limb of s.128. This limb extends
legal advice privilege to any document with which [the advocate or solicitor] has become acquainted in
the course and for the purpose of his professional employment. This phrase is very wide, and if read
literally, could potentially cover a 3rd party report of the type seen in Pratt Holdings. However, the danger
of an uncalibrated extension of legal advice privilege to 3rd party communications may encourage corporate
misconduct and increase the zone of secrecy in opposition to open discovery rules, for e.g., a client could
cloak all pre-existing incriminating documents with the privilege by the simple expediency of forwarding
them to his or her lawyer for safekeeping.

Exceptions to Privilege
Statutory Provisions
Professional communications
128.(2) Nothing in this section shall protect from disclosure
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any
crime or fraud has been committed since the commencement of his employment.
Illustrations
(a) A, a client, says to B, a solicitor: I have committed forgery and I wish you to defend me.
As the defence of a man known to be guilty is not a criminal purpose this communication is protected from
disclosure.
(b) A, a client, says to B, a solicitor: I wish to obtain possession of property by the use of a forged deed on
which I request you to sue.
This communication being made in furtherance of a criminal purpose is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, a solicitor, to defend him. In the course of the
proceedings B observes that an entry has been made in As account-book, charging A with the sum said to
have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed
since the commencement of the proceedings, it is not protected from disclosure.
Communications with legal counsel in entity
128A.(2) Nothing in subsection (1) shall protect from disclosure
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any legal counsel in an entity in the course of his employment as such legal
counsel showing that any crime or fraud had been committed since the commencement of his employment
as such legal counsel;
(c) any such communication made to the legal counsel which was not made for the purpose of seeking legal
advice; or
(d) any document which the legal counsel was acquainted with otherwise than in the course of and for the
purpose of seeking legal advice.

Communications made in furtherance of an illegal purpose


The main issue here is the interpretation of the word illegal. A literal interpretation might suggest that the
provision only qualifies the privilege in respect of communications made for a criminal purpose. If that is
the case, any communication made for a non-criminal purpose is protected by privilege notwithstanding the

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degree of impropriety which might be involved. On the other hand, it could also be construed to include
any conduct that would make it unconscionable to uphold the privilege.
In Barclays Bank v. Eustice [1995] 1 WLR 1238, Schiemann LJ considered that advice sought or given for
the purpose of effecting iniquity is not privileged, and public policy would require that such
communications be discoverable. As to the iniquity required to deprive the client of the privilege,
Schiemann LJ accepted that it could involve all forms of fraud and dishonesty such as fraudulent breach of
trust, fraudulent conspiracy, trickery and sham contrivances. Accordingly, communications between the Df
and his legal adviser for the purpose of entering transactions at an undervalue in order to prejudice the
interests of the creditor-bank were held to be not protected by privilege.

What about illegality of a third party?


In Francis & Francis (a firm) v. Central Criminal Court [1988] 3 All ER 775, the police were
investigating the affairs of a suspect whom they believed to be trafficking drugs and who used the proceeds
to purchase properties for members of his family. One such beneficiary was G, a client of a law firm. The
police obtained an ex parte order for the production by the solicitors of all the files in their possession
relating to Gs financial transactions. The solicitors argued that the material was privileged.
Lloyd LJ held that since the solicitors had conceded that criminal purposes meant any criminal purpose, it
logically followed that the criminal purpose could be that of a 3rd party. Accordingly, the materials were not
privileged notwithstanding that G was neither privy to nor aware of the illegality.

Fraud observed by the advocate or solicitor


Gelatissimo Ventures (S) Pte Ltd v. Singapore Flyer Pte Ltd [2010] SGHC 235 concerned an application
by the Pfs to strike out certain passages in an affidavit filed by the Df, which referred to a privileged
communication between the Pfs and their solicitor. The Pfs had initially applied for pre-action discovery
against the Df. In response, the Df filed an affidavit alleging that the Pfs were seeking to abuse the court
process by obtaining information with the ulterior motive of disclosing it to the media. In support of this
contention, an email communication from the Pfs lawyer to the Pf was attached to the affidavit. In the
email communication, the lawyer advised the Pf on the Dfs reply to the pre-action discovery request and
indicated a clear intention to reveal information to the press. The email had been passed to the Df by a
person who had previously been a Pf (in which capacity he received the email) but who had withdrawn
from the action. The Pfs then filed an application seeking to expunge the parts of the affidavit which
referred to the email.
Lai J held that the historical development of litigation privilege and its underlying policy considerations
were such that it did not make any sense for the fraud exception not to apply to it. Accordingly, the
fraud exception applied to both legal advice and litigation privilege.
In respect of the ambit of the fraud exception, Lai J held that the balancing approach adopted in Canada and
Australia was best suited for resolving the question of the extent to which legal privilege should give way
to other countervailing public policy considerations. Her Honour defined fraud at its core to include all
forms of criminal and civil fraud. Such fraud, according to Lai J, required no balancing exercise, as no
privilege can arise in respect of documents and communications made in furtherance of such nefarious
purposes.
On the other hand, fraud at its penumbra required the court to consider whether the purpose for which
the legal advice was given was sufficiently iniquitous, and whether the policy considerations that
militated against such iniquity were sufficiently important to justify the lifting of legal privilege.
After conducting a survey of the common law authorities, Lai J considered the following criteria as being
relevant to the balancing process: (1) the person who claims the privilege may lose his right even if he has
not acted dishonestly; (2) the degree of his culpability is an important factor; (3) the court must evaluate
claim to privilege against the public policy considerations (including the consequences of the claimants
iniquitous conduct if his claim to privilege is upheld; (4) prima facie, the claimant will have a stronger
claim to privilege if his communication is protected by both legal advice and litigation privilege; (5) the
claim to privilege will generally be stronger when the conduct of the claimant was itself an issue in the
proceedings rather than being a separate and distinct factor; and (6) the party opposing the privilege must

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adduce at least some prima facie evidence (although he need not prove his case on a balance of
probabilities) concerning the claimants improper conduct.

Waiver
Statutory Provisions
Application of Parts I, II and III
2.(1) Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits
presented to any court or officer nor to proceedings before an arbitrator.
Professional communications
128.(1) unless with his clients express consent
Communications with legal counsel in entity
128A.(1) except with the entitys express consent
Privilege not waived by volunteering evidence
130.(1) If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be
deemed to have consented thereby to such disclosure as is mentioned in section 128 or 128A;
(2) If any party to a suit or proceeding calls any such advocate or solicitor as a witness, that party shall be
deemed to have consented to such disclosure as is mentioned in section 128 only if that party questions the
advocate or solicitor on matters which but for the question the advocate or solicitor would not be at liberty
to disclose.
(3) If any party to a suit or proceeding calls any legal counsel in an entity as a witness, that party shall be
deemed to have consented to such disclosure as is mentioned in section 128A only if that party questions
the legal counsel on matters which but for the question the legal counsel would not be at liberty to disclose.

Implied waiver
Implied waiver may arise under s.130 if the client calls his lawyer as a witness and questions him on any
matter protected by privilege.
The client may also waive his privilege when, pursuant to s.131, he voluntarily gives evidence as a witness,
as under those circumstances, he may be compelled to disclose any such communications as may appear
to the court necessary to be known in order to explain any evidence which he has given, but no others.
In case law, Kan J acknowledged in Tentat Singapore Pte Ltd v. Multiple Granite Pte Ltd [2009] SGHC
136 the common law principle that a party may impliedly waive his privilege if the facts clearly establish
this intention.

Waiver in the course of discovery


O 24 r 19 of the Rules of Court provide that [w]here a party inadvertently allows a privileged document
to be inspected, the party who inspected it may use it or its contents only if the leave of the Court to do so
is first obtained.
Inadvertence, however, does not extend to fraud or mistake, such that inspection of a privileged document
procured by fraud or given by mistake will not be considered a waiver. In Ser Kim Koi v. Fulton William
Merrell [2008] SGHC 23, Prakash J held that even after inspection, if there has been fraud or it is clear
that inspection of a privileged document was given by mistake, the party who saw it may be injuncted from
making use of the knowledge gained from that document.

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Use of Privileged Information by a 3rd Party and Available Remedies


The common law position
Under common law, conflicting authorities exist in respect of the use of privileged information by a 3rd
party. In Calcraft v. Guest [1890] 1 QB 759, the English CA laid down the rule that if another party has
possession of a copy of a privileged document, he will be able to adduce it if it is relevant. Accordingly, the
Df in that case was permitted to present copies of privileged documents pertaining to legal proceedings
brought by Pfs predecessor in title more than a century before the current action.
Subsequently in Lord Ashburton v. Pape [1913] 2 Ch 439, Cozens-Hardy MR sought to interpret the rule
in Calcraft as such:
[T]he rules of evidence as explained in Calcraft v. Guest merely amounts to this, that if a litigant
wants to prove a particular document which by reason of privilege or some circumstances he
cannot furnish by the production of the original, he may produce a copy as secondary evidence
although that copy has been obtained by improper means, and even, it may be, by criminal means.
The Court in such an action is not really trying the circumstances under which the document was
produced. That is not an issue in the case But that does not seem to me to have any bearing
upon a case where the whole subject-matter of the action is the right to retain the originals
or copies of certain documents which are privileged.
Similarly, Kennedy LJ held:
[T]he principle laid down in Calcraft v. Guest must be followed, yet, at the same time, if before
the occasion of the trial when a copy may be used, although a copy improperly obtained, the
owner of the original can successfully promote proceedings against the person who has
improperly obtained the copy to stop his using it, the owner is none the less entitled to
protection, because, if the question had arisen in the course of a trial before such proceedings, the
holder of the copy would not have been prevented from using it on account of the illegitimacy of
its origin.
The issue arose again in Webster v. James Chapman & Co [1989] 3 All ER 939. In this case, Webster was
injured in an industrial accident, and he commissioned consulting engineers to report on the system of
work. When his solicitors received the engineers report, his solicitors instructed the engineers to consider
their adverse conclusions. By mistake, a copy of the report was sent to the employers solicitors, who
refused to return it or to undertake not to use it. Webster then brought an action for the return of the report,
and to restrain the use of it.
Although the evidence over which privilege was claimed was not secondary evidence, Scott J, as he then
was, considered Calcraft and Lord Ashburton and concluded that:
Calcraft v. Guest and Lord Ashburton v. Pape are examples of two independent and freestanding principles of jurisprudence. The former case related to privileged documents and to
the scope of the protection provided by legal privilege. The latter case related to confidential
documents and to the protection that equity will provide to that category of documents. I think it
is important to notice the different principles on which protection of confidential documents on
the one hand and privileged documents on the other hand are based Once a privileged
document or a copy of a privileged document passes into the hands of some other party to the
action, prima facie the benefit of the privilege is lost: the party who has obtained the document
has in his hands evidence which, pursuant to the principle in Calcraft v. Guest, can be used at the
trial. But it will almost invariably be the case that the privileged document will also be a
confidential document and, as such, eligible for protection against unauthorised disclosure or
use.

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Finally, in Goddard v. Nationwide Building Society [1987] QB 670, May LJ found that the application of
the rules in Calcraft and Lord Ashburton depends on the stage of use of the privileged information:
If a litigant has in his possession copies of documents to which legal
professional privilege attaches he may nevertheless use such copies as
secondary evidence in his litigation: however, if he has not yet used the
documents in that way, the mere fact that he intends to do so is no
answer to a claim against him by the person in whom the privilege is
vested for delivery up of the copies or to restrain him from disclosing or
making any use of any information contained in them.
According to Nourse LJ, [t]he crucial point is that the party who desires the protection must seek it before
the other party has adduced the confidential communication in evidence or otherwise relied on it at trial.

Preliminary observation
At this juncture, some preliminary observations may be made. Firstly, the cases have mostly dealt with
secondary documents, but it is submitted that the same principles should apply a fortiori to primary
documents. Neither Lindley MR nor Parke B explained in Calcraft v. Guest how privilege is lost through
the process of copying. Since the privilege subsists in the content of the information, the same principles
should apply to primary documents. Secondly, the cases dealt primarily with legal advice privilege. In
Goddard, reference was made to legal professional privilege in general even though the facts of the case
gave rise to legal advice privilege (Pf and Df used same solicitor who sent Df a copy of an attendance not
which recorded, inter alia, earlier conversations which he had with the Pf regarding the purchase of the
house via a mortgage from Df). It is submitted that the same principles should also apply to litigation
privilege.

The position in Singapore


The position in Singapore as it stands is set out in Tentat and Gelatissimo. Tentat concerned an email
communication attached to the affidavit of the holding companys former officer, THH, who obtained a
copy of it in his capacity as such. THH was also a shareholder and director of the Df. The Pf applied for a
declaration that the email communication was privileged, and for the Df to be restrained from using it in
separate proceedings brought by a company related to the Pf against the same the Df.
Kan J, adopting May LJs pronouncement in Goddard, held that a 3rd party in possession of a copy of a
privileged document is entitled to adduce it in evidence, subject to the right of the person claiming
privilege to apply to restrain its use prior to it becoming a part of the record in any court proceedings
or being released into the public domain.
On the facts of Tentat, even though THH had referred to the email communication in his affidavit, it had
yet to be presented as evidence at the hearing of the application. Accordingly, the use of the privileged
email communication was restrained.
In Gelatissimo, Lai J went one step further by stating that Kan J had rejected the principles stated in
Calcraft in favour of a more protective attitude towards privileged documents.
Similarly applying Goddard v. Nationwide Building Society, Lai J went on to hold that a party seeking to
adduce secondary evidence of privileged documents could be restrained from doing so where the document
had not yet become a part of the record in any court proceedings or had otherwise been released into the
public domain.
It is noteworthy that Lai Js interpretation of Kan Js treatment of Calcraft is somewhat doubtful, since it
was quite clear that Kan J, as well as May LJ in Goddard (which his Honour apparently endorsed), limited
the application of Calcraft to cases where there was no timely objection by the party claiming privilege.
At this juncture, the principles that can be extracted from the common law authorities are as such:

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The principle in Calcraft will be applicable where the document or communication over which
privilege is claimed will be applicable if it has already been adduced as evidence at trial. Thus, if a
party to litigation has in his possession copies of documents or communications to which legal
professional privilege attaches, he will be able to adduce such copies as secondary evidence in his
litigation.
However, a party who seeks the protection can apply to court to restrain the use or disclosure of
the document or communication if the document or communication has not become a part of the
record in any court proceedings or been released into the public domain.

Are the common law principles consistent with the EA?


Sections 128 and 128A prohibit the disclosing of privileged communications while s.131 grants the
privilege holder the right not to reveal them. The EA does not impose restrictions on persons who come
into possession of privileged documents ss.128, 128A and 129 only prohibit advocate and solicitors, legal
counsels, as well as their employees, clerks and interpreters from disclosing privileged communications.
Employing the statutory interpretation canon of expressio unios est exclusio alterius, persons who do not
come within these provisions would be free to disclose them unless they are restrained from doing so under
separate principles of law. Accordingly, the common law is not inconsistent with the EA.

Is the courts jurisdiction to grant relief a legal or an equitable one?


Legal professional privilege is a right which justifies protection. Accordingly, the use or disclosure of the
privileged information will be granted as of right. As Nourse J said in Goddard, [t]here is no discretion in
the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the
communication, the justice of admitting or excluding it or the like. The injunction is granted in aid of the
privilege which, unless and until it is waived, is absolute. Nourse LJs formulation is somewhat qualified
and appears to be an extreme version of the maxim equity follows the law. In some ways, it appears that
Nourse LJs formulation is that the remedy is grounded in a semi-legal and semi-equitable jurisdiction,
although this interpretation would be highly unorthodox.
On the other hand, Scott J held in Webster that once a privileged document or a copy of it passed into the
hands of another party to the action, prima facie the benefit of the privilege is lost. However, if the
privileged document was also a confidential document, it will be eligible for protection against
unauthorised disclosure or use by the court in the exercise of its discretion. In this connection, his Honour
said:
I would, with the greatest of respect, find some difficulty in [the] proposition as stated by Nourse
LJ There is never any question of an absolute right to have confidential information
protected.
As to how the court will decide whether to exercise its discretion, Scott J held that [t]he court must, in
each case where protection of confidential information is sought, balance on the one hand the legitimate
interests of the plaintiff in seeking to keep the confidential information suppressed and on the other hand
the legitimate interests of the defendant in seeking to make use of the information Whether the
unauthorised use of confidential information or of confidential documents will be restrained is essentially
discretionary and must be dependent on the particular circumstances of the particular case. The
privileged nature of the document in question is bound to be a highly material factor but would not
exclude from the scales other material factors.
Locally, Tentat and Gelatissimo both did not address the issue of the balancing operation and the conditions
for granting the injunction, nor did both judges make any reference to the courts equitable jurisdiction to
restrain the use of the privileged information. Lai J, however, noted in Gelatissimo at [16] that privilege
and confidentiality are two separate legal doctrines that entail different legal consequences.

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It is submitted that whether the remedy is grounded in law or equity depends on the nature of the
relationship between privilege and confidentiality. If a clear line is drawn between both doctrines, then the
rule is that privilege is lost once document has come into the possession of another, and the only basis for
restraining the improper use or disclosure of the document is the courts equitable jurisdiction to restrain a
breach of confidence. The preferable view would be that the injunction is granted in aid of the privilege
(per Nourse LJ in Goddard), i.e., equitable doctrine is being used to support the privilege rule. This entails
that the privilege is only lost to the extent that the document is in the possession of the 3 rd party, and that
legal privilege is reinstated once the document is back in the hands of the party claiming the privilege, and
that equity aids the reinstatement of the privilege by restraining the party seeking to use it from using or
disclosing it, and by requiring the return or destruction or the document. In this connection, as held by
Nourse LJ, there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its
view of the materiality of the communication.

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Legal Professional Privilege


Litigation Privilege
Rationale
Phang JA said in Skandinaviska that litigation privilege is not directed at, still less, restricted to
communications between solicitor and client. It contemplates, as well, communications between a
solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties.
Its object is to ensure the efficacy of the adversarial process and not to promote the solicitorclient
relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare
their contending positions in private, without adversarial interference and fear of premature
disclosure.

Does s.128/128A Recognise Litigation Privilege?


In Skandinaviska, Phang JA ruled that litigation privilege exists by virtue of the common law. Since
s.131 of the Act clearly envisages the concept of litigation privilege, there is no inconsistency between
the common law and the statutory provisions. Accordingly, s.2(2) of the Act would apply to confirm the
applicability of litigation privilege at common law in the local context as there is no inconsistency
between litigation privilege at common law and ss.128 and 131 read together.
Subsequently in Gelatissimo, Belinda Ang J seemed to have misunderstood Phang JAs pronouncement in
Skandinaviska, interpreting the SGCA to have held instead that litigation privilege exists in s.131 of the
EA by virtue of the common law.
It is unclear that the Phang JA meant to treat s.131 as the source of litigation privilege in Singapore. It is
submitted, instead, that his Honour merely observed that s.131 envisages the concept of litigation
privilege. While s.131 clearly envisages that the privilege may be claimed in court, and therefore in the
context of litigation, the privilege it provides for is legal advice privilege rather than litigation privilege:
s.131 covers only communication between lawyer and client (and not 3rd party communication) and it does
not require that the communication be made for the dominant purpose of litigation. Accordingly, the better
view of the ruling by the Phang JA is that the common law on litigation privilege applies in Singapore by
virtue of s.2(2) of the EA and not that the source of litigation privilege is s.131.

Principles and Application


In the HL decision of Waugh v. British Railways Board [1980] AC 521, it was held that if the dominant
purpose for which legal advice had been sought and obtained was for anticipation or contemplation of
litigation, then the advice concerned would be protected by litigation privilege.
The dominant purpose test in Waugh was endorsed by the SGHC in Wee Keng Hong Mark v. ABN Amro
Bank NV [1997] SGHC 10. In that case, a bank commissioned a report in response to allegations that it
had breached its duty.
Rubin J held that the dominant purpose test was not satisfied as litigation was only one of the purposes.
Similarly in Brinks Inc v. SIA Ltd [1997] SGHC 306, SIA commissioned a report in response to a claim
against it for loss of goods. Selvam J held that the dominant purpose test was not satisfied as litigation was
only one of the purposes in contemplation.

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Waugh was formally received into Singapore law by the SGCA in Skandinaviska. Firstly, Phang JA
followed Wheeler v. Le Merchant (1881) 17 Ch D 675 and held that the critical difference between legal
advice privilege and litigation privilege is that the latter applies to every communication, whether
confidential or otherwise so long as it is for the purpose of litigation. It also applies to communications
from third parties whether or not they were made as agent of the client. Secondly, citing Waugh, Phang
JA held that there were 2 basic and closely related principles in respect of litigation privilege, viz, (1)
litigation must have been contemplated as having been reasonably in prospect; and (2) the dominant
purpose for which legal advice had been sought and obtained was for anticipation or contemplation of
litigation. As to the first principle, the test is that of reasonable prospect of litigation, which does not
mean that the chance of litigation must be higher than 50%. As to the second principle, assuming that
litigation was contemplated as having been reasonably in prospect, it must also be established that the
dominant purpose for which legal advice had been sought and obtained was for anticipation or
contemplation of litigation before litigation privilege can be raise successfully.

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