Criminal Procedure, Evidence and Sentencing

Citation(2002) 3 SAL Ann Rev 189
AuthorLEE LIT CHENG LLB (NUS), State Counsel/Deputy Public Prosecutor, Attorney-General’s Chambers
Date01 December 2002
Publication Date01 December 2002
Admissibility of statements

11.1 Any statement made by an accused to a police officer above the rank of Sergeant is admissible under s 122(5) of the Criminal Procedure Code (Cap 68, 1985 Ed) (“CPC”) as long as it is voluntarily given. It has been established in cases such as Chai Chien Wei Kelvin v PP[1999] 1 SLR 25, Sim Ah Cheoh v PP[1991] SLR 150 and Tan Siew Chay v PP[1993] 2 SLR 14 that officers of the Central Narcotics Bureau (“CNB”) are not police officers and therefore the admissibility of accused”s statements recorded by CNB officers is governed by s 24 of the Evidence Act (Cap 97, 1997 Ed).

11.2 Unlike s 122(5) of the CPC, s 24 of the Evidence Act only refers to confessions. Based on this distinction, the High Court in Cheng Siah Johnson v PP[2002] 2 SLR 481 held that the appellant”s long statements and cautioned statements recorded by a CNB officer were not admissible under s 24 of the Evidence Act because they were not confessions. The appellant, who was convicted of a charge of consumption of Ketamine, had argued that the district judge failed to give any or sufficient weight to the fact that the appellant had in his cautioned statement declared his innocence. The issue of admissibility of the appellant”s statements was not raised by either party to the appeal and arguments on it were not canvassed before the High Court.

11.3 The High Court”s decision in Cheng Siah Johnson v PP clearly brings out an anomaly in the law relating to admissibility of statements, in that a statement recorded by a police officer is admissible whether or not it inculpates the maker while a statement recorded by an investigation officer from another law enforcement agency who is not a police officer is admissible only if it amounts to a confession. There is no logical reason to distinguish between statements recorded by the police and statements recorded by other non-police investigation officers. For the purpose of this discussion, I will use CNB officers to represent all other non-police investigation officers.

11.4 In particular, the finding that an accused”s cautioned statement recorded by a CNB officer is inadmissible if it is not a confession is disconcerting. What is commonly known as a “cautioned statement” is a

statement recorded under s 122(6) of the CPC. When a person is to be charged with an offence, he must be informed of the charge and be given an opportunity to give a statement containing facts that he intends to rely on in his defence. Section 122(8) makes it clear that a cautioned statement may be recorded by a police officer or an investigation officer of other law enforcement agencies, such as a CNB officer. Pursuant to s 123(1), the failure to mention any fact that the accused intends to rely on in his defence may result in the court drawing an adverse inference in determining whether the accused is guilty of the offence charged. However, if a statement which is not a confession is recorded by a CNB officer, it will not be admissible according to the decision in Cheng Siah Johnson v PP. How then can the court apply s 123(1) of the CPC to draw the appropriate adverse inference? It may be argued that even if the cautioned statement itself is not admissible under s 24 of the Evidence Act, the fact that the accused failed to mention his defence in his cautioned statement is a relevant fact that can still be admitted by virtue of s 11(b) of the Evidence Act.

11.5 Other problems result from the dichotomy in the admissibility of statements recorded by police officers and statements recorded by CNB officers. One of them is in the area of impeachment. Section 147 of the Evidence Act allows a witness (including an accused) to be cross-examined on previous statements made by him which contradict his testimony in court. Section 147(3) provides for the admissibility of the previous inconsistent statements if they are proved to have been given by him. If the previous inconsistent statements were recorded by police officers, then s 122(5) of the CPC applies and the statements may only be admitted if they were voluntarily made. It can be seen from the wording of s 122(5) of the CPC that it governs the admissibility of all police statements of accused persons. However, the same cannot be said of s 24 of the Evidence Act. The decision in Cheng Siah Johnson v PP is in line with the wording of s 24 of the Evidence Act, ie it only deals with the admissibility of confessions. In other words, s 24 of the Evidence Act does not govern the admissibility of statements made by an accused to a CNB officer if they are not confessions. Following this line of argument, one can then say that an accused”s statement which does not amount to a confession that is recorded by a CNB officer is therefore admissible under s 147(3) of the Evidence Act without the need to prove that it is voluntarily made. The voluntariness of the statement is only relevant to determine the weight to be attached to the statement as spelt out in s 147(6) of the Evidence Act. It is hoped that Parliament will intervene to unify and make consistent the provisions governing the admission of statements recorded by police and non-police officers.

The charge
Amendment of charges

11.6 An appellate court has the power to amend a charge and convict an accused on the amended charge: Garmaz s/o Pakhar v PP[1996] 1 SLR 401. The High Court, in exercise of its revisionary jurisdiction, has the same powers by reason of s 268(1) of the CPC. It was said in Er Joo Nguang v PP[2000] 2 SLR 645 (at [57]) that:

“[T]he power to amend the charge will be exercised where the record of facts and the record of evidence support the amended charge, and where such amendment does not affect the substance of the evidence given in the lower court. Such power must be exercised judiciously and the court will ensure that the accused is not prejudiced in any way.”

11.7 This power has been exercised by the courts on many occasions. For instance, the High Court in Ong Tiong Poh v PP[1998] 2 SLR 853 amended the particulars of a charge by adding in the element of delivery of property which had been omitted in the charge under s 420 of the Penal Code (Cap 224, 1985 Ed) that the appellant was convicted of in the lower court. In Loo Weng Fatt v PP[2001] 3 SLR 313, the High Court hearing the appeal amended a charge under s 420 read with s 34 of the Penal Code to one under s 420 read with s 109 of the Penal Code after finding that the evidence did not show a common intention between the parties but disclosed an offence of abetment instead. In another case of PP v Koon Seng Construction Pte Ltd[1996] 1 SLR 573 where the respondent had pleaded guilty in the lower court to a charge under a different section from the one which both the Prosecution and the Defence had intended to proceed under, the High Court allowed the amendment of the charge to one under the intended section and convicted the respondent on the amended charge. In Er Joo Nguang v PP, the High Court, in exercise of its appellate jurisdiction, amended a charge of abetting another to commit criminal breach of trust to one of cheating as there was insufficient evidence to show the existence of a conspiracy.

11.8 In PP v Henry John William[2002] 1 SLR 290, the High Court was faced with a situation where the appellant had pleaded guilty to two charges relating to non-existent offences under the Films Act (Cap 107, 1998 Ed) in the District Court. The first charge stated that the appellant had in his possession obscene films for the purpose of attempting to distribute them in contravention of s 29(3) of the Films Act. The second charge stated that the appellant had carried on a business of attempting to distribute films...

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