10.
1 Admission & Confession Law 4110 Evidence 1
admission is the species (categories) and
confession is the sub-species (sub-categories)”.
- “ Shortly stated, a confession is a statement made by
an accused admitting its guilt. What does the
CONFESSION
MADE TO THE
POLICE expression statement mean? The dictionary
meaning of the word statement is the act of stating,
reciting or presenting verbally or on paper. The
term statement therefore includes both oral and
DISCOVERY
written statements. Is it also necessary ingredient
VOLOUNTARY
STATEMENT of the term that it shall be communicated to another?
ADMISSION
The dictionary meaning of the term does not
& warrant any such extension”.
CONFESSION
• Admission and confession are exceptions to the
hearsay rule. The Evidence Act places them in the
category or relevant evidence presumably on the
ground that, as they are declarations against the
CONFESSION WITHOUT interest of the person making them, they are
probably true.
AGAINTS PREJUDICE
CO-ACCUSED COMMUNICATION
• The probative value of an admission or a confession
does not depend upon its communication to another,
though, just like any other piece of evidence, it can be
admitted in evidence only on proof. This proof in the
Admission & Confession (Section 17 – 31 of EA 1950) case of oral admission or confession can be offered
Definition only by witnesses who heard the admission or
• S.17(1) EA - an admission is a statement oral or confession, as the case may be.
documentary which suggests any inference as to any • The following illustration pertaining to a written
fact in issue or relevant fact and which is made by any confession brings out the said idea; A kills B; enters in
of the persons and under the circumstances his diary that he killed him, puts it in his drawer and
hereinafter mentioned. absconds. When he places his act on record, he does
• S.17(2) EA - defines a confession as an admission not communicate to another; indeed, he does not have
made at any time by a person accused of an offence, any intention of communicating it to a third party.
stating or suggesting the inference that he committed Even so, at the trial the said statement of the accused
that offence. can certainly be proved as a confession made by him. If
that be so in the aces of a statement in writing, there
• Meaning of the word “statement” in the section cannot be any difference in principle in the case of an
• Basically, the word statement refers to something that oral statement. Both must stand on the same footing”.
is stated. It need not be communicated to anyone.
• (The appellant was heard of muttering to himself that • What is admission?
he had finished the deceased) • Section 17 (1) relates to informal admission whilst
section 58 of the Act deals with the formal
Sahoo v State of UP AIR 1966 SC 40 that: admissions.
Per Subba Rao J : • Section 18 to 20 relate to the circumstances in which
- “A scrutiny of the provisions of sections 17 to 30 of statements made by different categories of persons
the Evidence Act discloses, as one learned author may amount to admissions.
puts it, that statement is a genus (kind/type), • Section 21 relates to the relevancy of admissions.
1
• Section 22 and 23 provide exceptions to the
admissibility of admissions. The effect of admissions is
governed by section 31 of the Act.
• According to section 17 (1) an admission is a
statement of fact, whether oral or documentary,
made by a party to a case which adversely affects
his own interest.
• The essentials of an admission under section 17 (1)
appear to be as follows:
1. It must be a statement.
2. It may be either oral or contained in document e.g.
letters, dispositions, affidavits, plaints, written
statements, deeds and others.
3. It should suggest an inference as to fact in issue or
relevant fact.
4. It may be one of the persons mentioned in the Act
(See section 18, 19 and 20 of EA)
5. It is to be made under the circumstances provided in
the Act (See sections 20 to 23 of the Act).
• What is admission?
• In the case of MA Clyde v Wong Ah Mei (1970) 2 MLJ
163
- The respondent had claimed damages in respect of
the death of one Soon Ah as a result of his being
knocked down by a car driven by the appellant.
- The learned trial judge found in favour of the
respondent, as he held that the bicycle on which the
deceased was riding was knocked down from
behind by the appellant's car.
- He held that the onus to explain why the collision
took place was with the appellant and as the
appellant had chosen not to give evidence, he gave
judgment against her.
- A report made by the appellant to the police about
the accident was admitted in evidence and on appeal
it was argued inter alia that the evidence had been
wrongly admitted.
- Held, dismissing the appeal: (3) the report of
the appellant in this case was a first information
report and was admissible under sections 17, 18
and 21 of the Evidence Ordinance, 1950.
10.1 Admission & Confession
Categories
of
admission
Formal Informal
admission (S.58) admission (S.17(1))
• What is confession?
• S.17 (2) defines a confession.
• S.24, 25 and 26 of the Act set out the circumstances
under which confessions are to be excluded.
• S.28 and 29 describe the situations in which a
confession becomes relevant despite section 24.
• S.27 of the Act relates to facts discovered in
consequence of information received. The confession
of a co-accused is governed by section 30.
• According to Sir James Stephen’s, there are two
categories of statement which can amount to
confessions.
1. a plenary confession which refers to a full and
direct acknowledgement of guilt. For example, “I
killed Ricky”.
2. Second, non-plenary confession which is not full ad
direct acknowledgement of guilt but is an
incriminating statement, for example “I am the
owner of the gun which caused the death”.
• Our s.17 (2) of EA 1950 contains two categories of the
confession namely:
1. the plenary confession and
2. Non-plenary confession.
• Our definition then can be split into two parts i.e.
1. A confession is an admission made at any time by a
person accused of an offence
a) Stating that he committed that offence (Plenary
confession) and
b) Suggesting that he committed that offense
(Non-plenary confession). Plenary means
“complete”, “full”, or “entirely”.
Law 4110 Evidence 1
• Distinction between admissions and confessions
• In R v Wong Ah Kin, Burton Ag CJ observed that:
• “The Evidence Ordinance defines an admission and a
confession, a confession being included under the
general definition of admissions. And then under section
21 it makes admissions relevant. The effect of that is
that all confessions are relevant and can be proved
unless they are excluded by some other section of the
Ordinance or by some other rule of law not perhaps
contained in the Ordinance”.
• A confession is a statement made by an accused
person which is sought to be proved against him in a
criminal proceeding to establish the commission of an
offence by him; while an admission usually relates to a
civil transaction and comprises all statements
amounting to admissions as defined in section 18.
• A confession if deliberately and voluntarily made may
be accepted as conclusive in itself of the matters
confessed; an admission is not conclusive proof of the
matters admitted, but may operate as an estoppel.
• A confession always goes against the person making it;
an admission may be used on behalf of the person
making it under the Exceptions provided in section 21.
• The confession of one of two or more accused jointly
tried for the same offence can be taken into
consideration against the co-accused (Section 30). But
an admission by one of several defendants in a suit is
no evidence against another defendant.
• Meaning of confession:
• The Anandagoda Objective Test
• As stated earlier, our section 17 (2) of EA 1950
contains two categories of the confession namely the
plenary confession and non-plenary confession. Our
definition then can be split into two parts i.e.
• A confession is an admission made at any time by a
person accused of an offence:
a) Stating that he committed that offence (Plenary
confession) and
b) Suggesting that he committed that offense (Non-
plenary confession).
• In so far as (a) is concerned, there is no difficulty. If a
person accused of an offence states expressly that he
2
committed the offence of which he is charged, clearly it
is a confession.
• In so far as (b) is concerned, Indian authorities do not
seem to accept it. The Privy Council in Pakala
Narayana Swami v E AIR 1939 PC 47 did not accept
the (b) part of the definition of confession. It stated
that:
“Moreover a confession must either admit in terms the
offence, or at any rate substantially all the facts which
constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating
fact is not of itself a confession”.
• However, any doubt about the inferential aspect of the
statement constituting a confession in the (b) part of
the definition was laid to rest by the Privy Council in
the Sri Lankan case of :
Anandagoda v The Queen [1962] 1 MLJ 289
- where the appellant with two others were tried
together with conspiracy to murder and with the
murder of the deceased, One Adeline, by running her
over with a car.
- The appellant was found guilty of murder.
- The facts are as follows late at night on March 14,
1959, the dead body of a woman was discovered
lying at Timbiriwewa near the 27th mile-post on the
road between Puttalam and Anuradhapura.
- A post-mortem examination conducted on March 16,
1959, revealed that the woman was between 20 and
25 years of age, that she had been about seven
months advanced in pregnancy, and that her body
bore numerous injuries consistent with her having
been run over by a motor-car.
- The case for the prosecution was that the dead body
was that of Adeline Vitharana, that her death had
been caused by a motorcar being deliberately driven
over her dead body at least twice, that the
consequent injuries were the cause of her death.
- Besides what appeared to be strong evidence, the
prosecution adduced evidence by a police officer
who said that the appellant made certain admissions
to him while in his charge at the police station on
March 22, 1959.
- On appeal the appellant submitted that the above
statements were wrongly admitted in evidence
because they gave rise to an inference or inferences
10.1 Admission & Confession
prejudicial to the appellant, or suggested the
inference that he committed the offence of which he
was found guilty, and therefore constituted a
confession within the meaning of section 17 (2) of
the Ceylon Evidence Ordinance (Which is pari
material with the Malaysian Evidence Act 1950).
- Held, dismissing the appeal: the test whether a
statement is a confession is an objective one,
whether to the mind of a reasonable person-reading
the statement at the time and in the circumstance in
which it was made it can be said to amount to a
statement that the accused committed the offence or
which suggested the inference that he committed
the offence.
- The statement must be looked at as a whole and it
must be considered on its own terms without
reference to extrinsic facts. The appropriate test in
deciding whether a particular statement is a
confession is whether the words of admission in the
context expressly or substantially admit guilt or do
they taken together in the context inferentially
admit guilt?
• Reception of the Anandagoda objective test by
the Malaysian Federal Court
• The Federal Court in Lemanit v PP [1965] 2 MLJ 26
- where in this case, the appellant was convicted of
the offence of using an arm, to wit by causing a
bomb to explode with intent to cause physical
injury to persons and property.
- The evidence established an intent to injure
property but did not establish a clear intent to
injure persons.
- The prosecution relied on a confession made by
the appellant and recorded by a magistrate. One
of the principal grounds of appeal was that the
statement was not a confession and should not
have been admitted in evidence.
- Held:
1. the failure to prove both the intents that is the
intent to cause physical injury to person and
property is not fatal to a conviction under section
4 of the Arms Offences Ordinance as proof of
either intent would suffice and no substantial
miscarriage of justice could be said to have
Law 4110 Evidence 1
occurred in this respect as far as the trial judge's
direction to the jury was concerned;
2. the statement made by the appellant in this case
was clearly inculpatory and therefore the
statement was rightly recorded and admitted in
evidence as a confession. (Inculpatory evidence is
a legal term used to describe evidence that shows,
or tends to show, a person's involvement in an act,
or evidence that can establish guilt).
• Reception of the Anandagoda objective test by the
Malaysian Federal Court & Singapore Cases
• The Anandagoda objective test was again followed in
Abdul Khalid Bin Abdul Hamid [1995] 1 MLJ 692.
• A Series of Singapore cases which have a similar
provision as the Malaysian provision i.e. section 17 (2)
of the Evidence Act, further confirmed this test.
• In Suradet v PP [1993] 3 SLR 265, the court held that
the words “suggesting the inference that he committed
the offence” in section 17 (2) of the Singaporean
Evidence Act clearly demands a wider interpretation
than that placed by the Indian Supreme Court in
Pakala Narayana Swami v E.
• In Tong Chee Kong v PP [1998] 2 SLR 843 it was
held that for a statement to amount to a confession, it
need not be of a plenary or unqualified nature; it can
also be of non-plenary nature so long as the statement
connected the accused in some way with the offense.
• A statement that does not amount to a confession can
be used as an admission.
• The Privy Council in a appeal from India held in
Ghulam Hussain v R [1950] LR 77 IA 65 state that a
statement made under section 164 of the Code of
Criminal procedure (similar to our section 115
Criminal Procedure Code) which does not amount to a
confession can be used against the maker as an
admission. This question has been raised in courts in
India and it has been answered in the affirmative.
• See Golam Mohammad Khan v The King Emperor
[1924] ILR 4 Pat 327, Abdul Rahim v The King
Emperor [1925] AIR Cal 926 and Muhammad Bakhsh v
King Emperor [1941] AIR Sind 129.
3
• An admission is substantive evidence of the fact
admitted and is admissible as an exception to the
hearsay rule. Per Augustine Paul J in PP v Dato’ Seri
Anwar Bin Ibrahim (No.3) [1999] 2 MLJ 1 states:
- “A party's own statements are in all cases
admissible against himself (see Slatterie v Pooley 6
M & W 664). Thus, s 21 provides, inter alia, that
admission are relevant and may be proved as
against the person who makes them. An admission is
treated as an exception to the hearsay rule and thus
admissible. As Sarkar on Evidence (14th Ed) Vol I
says at p 309: The ordinary idea of hearsay is what
is heard out of court from a non-witness, and
admissions are therefore generally treated as
exceptions to the hearsay rule”.
• The statement must either be accepted or rejected
as a whole.
• In Pika Bewa v Emperor (1912) ILR 39 Cal 855
Holmwood and Sharfuddin JJ. held that:
- “where the only evidence of an offence is a statement
by the accused and it is relied on by the prosecution as
evidence thereof it must be taken as a whole, and
nothing must be read into it which is not contained
therein. As they said, "it is all the evidence we have;
and when the accused's own statement is to be relied
upon, it must be taken as a whole”.
• An admission must be based on personnel
knowledge.
• Per Lord Hodson in Compt of Customs v Western
Letric [1965] 3 All ER 599 states:
- “The appellant accordingly seeks to restore the
conviction of the respondents because of their
admission that the origin of the goods has been
wrongly declared. Their Lordships are of the opinion
that the conviction ought not to be allowed to rest
on the admission alone. If a man admits something
of which he knows nothing it is of no real evidential
value. In this case, the admission made by the
respondents’ agent was an admission made on
reading the marks and labels on the goods and was
of no more evidential value than those marks and
labels themselves”.
10.1 Admission & Confession
• The Evidential value of an admission was explained
by Desai J in Ramji Dayawala v Invest Import AIR
1981 SC 2085 states that :
- “Admission, unless explained, furnishes the best
evidence”.
• Issue: Can plead of guilty (admission) be admitted
as piece of evidence against the accused.
- In Noor Mohamed v Palanivelu [1956] 1 MLJ 114,
- the plaintiff, suing through his next friend, brought
this action for damages against the defendants for
personal injuries sustained by him while he was
riding on a bicycle along Batu Road after his day's,
work at the Customs Office at Kuala Lumpur.
- He collided with a lorry and fell off his bicycle. The
vehicle was driven by the first defendant, a learner
driver, at whose side sat R. an instructor, at a school
for learner drivers owned by the 2nd defendant.
- The first defendant was a registered pupil at the
school.
- The plaintiff as a result of that accident sustained
injuries though no serious disfigurement but during
his period of incapacitation he did not suffer any
financial loss.
- The plaintiff alleged that the first defendant
overtook him from the rear swerved to the left
across his path and without giving a signal stopped
suddenly. of the trial”.
- The plaintiff swerved to the right to avoid knocking
into the back of the lorry and in so doing he hit the
rear right side of the lorry, lost his balance and
another motor vehicle which was following knocked
him.
- The plaintiff was corroborated by P.W. 3, the driver
of the following motor vehicle. The first defendant
and R., the instructor, however, denied negligence.
- The first defendant however had pleaded guilty to a
charge of inconsiderate driving before a Magistrate -
- for which he was convicted.
- Held: the plea of guilty to the inconsiderate driving
was admissible as against the first defendant. Plead
of guilty is relevant under section 17 (1), 18, and
21 of EA 1950. But as for the verdict it is not
admissible as it is not relevant.
- See Hollington v Hewthorn & Co (1943) 1 KB 587,
where at p. 600, Goddard L.J. said: “In the present
Law 4110 Evidence 1
case, had the defendant before the magistrates
pleaded guilty or made some admission in giving
evidence that would have supported the plaintiff's
case, this could have been proved, but not the result
Confession: The issue voluntary
• S.24 of EA 1950 provides for a confession caused by
inducement, threat or promise when irrelevant in
criminal proceeding where it states that:
“A confession made by an accused person is irrelevant
in a criminal proceeding if the making of the
confession appears to the court to have been caused by
any inducement, threat or promise having reference to
the charge against the accused person, proceeding
from a person in authority and sufficient in the opinion
of the court to give the accused person grounds which
would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any
evil of a temporal nature in reference to the
proceeding against him”
• A confession is irrelevant if it does not satisfy the
requirements enumerated in the section.
• Per Sarkaria J in Veera Ibrahim v Maharashtra
[1976] 3 SCR 672 states:
• “To attract the prohibition enacted in section 24,
Evidence Act, these facts must be established:
a. that the statement in question is a confession;
b. that such confession has been made by an accused
person;
c. that it has been made to a person in authority;
d. that the confession has been obtained by reason of
any inducement, threat or promise proceeding from
a person in authority;
e. such inducement, threat or promise, must have
reference to the charge against the accused person;
and
f. the inducement, threat or promise must in the
opinion of the court be sufficient to give the accused
person grounds, which would appear to him
reasonable, for supposing that by making it he
would gain any advantage or avoid any evil of a
temporal nature in reference to the proceeding
against him.
4
• Accused’s statement must be voluntary
• In the celebrated case of Dato’ Mokhtar Hashim v PP
[1983] 2 MLJ 232, Abdoolcader FJ said that:
“No statement by an accused is admissible in evidence
against him unless it is shown by the prosecution to
have been a voluntary statement [Ibrahim v R [1914]
AC 599, 609 per Lord Sumner)].
• This test was accepted by the House of Lords as the
correct approach in Director of Public Prosecutions
v Ping Lin [1975] 3 All ER 175, [1976] AC 574 in
which the House said that is not necessary before a
statement is held to be inadmissible because it is not
shown to have been voluntary, that it should be
thought or held that there was impropriety in the
conduct of the person to whom the statement was
made, and that what has to be considered is whether a
statement is shown to have been voluntary rather than
one brought about in one of the ways referred to.
• It appears from the decision in Ping Lin (ante) that
the classic test of the admissibility of an accused's
confession that the prosecution must establish beyond
reasonable doubt that it was voluntary, in the sense
that it was not obtained from him either by fear or
prejudice or hope of advantage created by a person in
authority, or by oppression, should be applied in a
manner which is part objective, part subjective.
• In the Privy Council in Wong Kam-Ming v The Queen
[1980] AC 247 PC Lord Hailsham of St. Marylebone
said (at page 261):
“...any civilized system of criminal jurisprudence must
accord to the judiciary some means of excluding
confessions or admissions obtained by improper
methods.
• This is not only because of the potential unreliability of
such statements, but also, and perhaps mainly, because
in a civilized society it is vital that persons in custody
or charged with offences should not be subjected to ill-
treatment or improper pressure in order to extract
confessions.
• It is therefore of very great importance that the courts
should continue to insist that before extra-judicial
statements can be admitted in evidence the
prosecution must be made to prove beyond reasonable
doubt that the statement was not obtained in a manner
10.1 Admission & Confession
which should be reprobated and was therefore in the
truest sense voluntary”.
• In R v Wilson [1981] 1 NZLR 316 the New Zealand
Court of Appeal held that confessions obtained by
overbearing the will of a person in custody by tactics
amounting to compulsion should not be received in
evidence and that whether a case is of that kind is a
question of fact and degree. The defendant in that case
had been subjected to prolonged interrogation in the
confinement of a small room which was unfair and
oppressive and it was held that there was accordingly
oppression and the means employed must be regarded
as themselves involving a miscarriage of justice.
• Sharma J, in the useful case of PP v Law Say Seck
[1971] 1 MLJ 199 where is it decided that it is left to
the court entirely to form its own opinion as to
whether an inducement, threat or promise held out in
any particular case was sufficient to lead the person to
suppose that he would gain an advantage of a temporal
nature.
• In doing so the mind of the person making the
statement has to be judged rather than that of the
person in authority. In scrutinizing a case of this kind
the court has to perform a threefold function: It has to
determine the sufficiency of inducement, threat or
promise; it has to clothe itself with the mentality of the
accused to see whether the grounds would appear to
the accused reasonable for a supposition mentioned in
section 24 of the Evidence Ordinance; lastly
it has to judge as a court if the confession appears to
have been caused in consequence of any inducement,
threat or promise.
• See also Md Desa Bin Hashim v PP [1996] 1 AMR 59
• In Aziz Muhamad Din v PP [1997] 1 CLJ Supp 523:
“Thus what is important is the effect that the
inducement, threat or promise has on the accused”.
• In this respect Brennan J in speaking for the Federal
Court of Australia in Collins v R (1980) 31 ALR 257
said at p 307:
“ So the admissibility of the confession as a matter of
law (as distinguished from discretion, later to be
discussed) is not determined by reference to the
propriety or otherwise of the conduct of the police
officers in the case, but by reference to the effect of
Law 4110 Evidence 1
their conduct in all the circumstances upon the will of
the confessionalist. The conduct of police before and
during an interrogation fashions the circumstances in
which confessions are made and it is necessary to refer
to those circumstances in determining whether a
confession is voluntary.
• “The principle, focusing upon the will of the person
confessing, must be applied according to the age,
background and psychological condition of each
confessionalist and the circumstances in which the
confession is made. Voluntariness is not an issue to
be determined by reference to some hypothetical
standard; it requires a careful assessment of the effect
of the actual circumstances of a case upon the will of
the particular accused.
• It is therefore clear that the inducement, threat or
promise must have 'caused' the person to make the
statement.
• In the Indian Supreme Court case of Pyare Lal v State
of Rajasthan AIR 1963 SC 1094 Subba Rao J said that
to determine involuntariness the mere existence of the
threat, inducement or promise is not enough.
• As Sharma J said in PP v Law Say Seck & Ors [1971] 1
MLJ 199 one should be able to say that without it the
person would not have made a statement. It follows
that an inducement, threat or promise per se is
insufficient to render the confession inadmissible.
• In the light of the foregoing an accused is obliged to
testify in the trial within the trial in order to effectively
challenge the admissibility of his statement.
• Lord Edmund – Davies in Wong Kam-Ming v R [1979]
1 All ER 939 states:
“As already been observed, an accused seeking to
challenge the admissibility of a confession may for all
practical purposes be obliged to testify in the voir dire
if his challenge is to have any chance of succeeding”.
• See also R v Brophy [1981] 2 All ER 705
• From the case of Hasibullah Bin Mohd Ghazali v PP
[1993] 3 MLJ 321:
(a) in deciding the issue of admissibility of a
confession made by an accused person, the onus
is not on the accused to show involuntariness but
5
on the prosecution to prove beyond any
reasonable doubt that the confession was
voluntary. The judge in this case had reversed the
onus and disregarded the requirement that the
prosecution must prove beyond any reasonable
doubt that the confession was voluntary;
(b) in deciding whether or not a statement made by
an accused person was obtained from him by fear
of prejudice or hope of advantage exercised or
held out by a person in authority, the cardinal
point is not so much the state of mind of the police
officer but that of the accused.
• In Ibrahim v R [1914] AC 599,
- The appellant, a private in the Indian Army, was
convicted of the murder of a native officer. Shortly
after the murder the commanding officer went to
see the appellant, who was in custody, and said to
him: "Why have you done such a senseless act?" The
appellant replied: "Some three or four days he has
been abusing me; without a doubt I killed him." No
threat or inducement was offered to the appellant
before he made this statement. At the trial evidence
of this conversation was admitted.
- Held: without deciding whether or not the answer
made by a person in custody to a question put to
him by a person with authority over him was
admissible in evidence, the general circumstances of
the case were such, and the preponderance of
unquestioned evidence so great, that it was unlikely
that the jury were substantially influenced by the
disputed evidence, and there was, therefore, no
substantial miscarriage of justice as would justify
interference by the Board.
• In DPP v Ping Lin [1975] 3 All ER 175
- Police officers discovered the appellant smoking
heroin in his flat in the company of two friends.
Substantial quantities of Chinese heroin were found
in the flat.
- The appellant and his two friends were taken into
custody. On the following day, after a caution had
been administered, the appellant was questioned by
a detective superintendent.
- At first the appellant maintained that he was not a
dealer but only a smoker of the drug. He admitted
10.1 Admission & Confession
that he had obtained the heroin from 'a man in
Gerrard Street'.
- The appellant then said: 'You let me go, and I find
you man plenty heroin.' The superintendent replied:
'That can't be done', and continued his interrogation
of the appellant.
- The superintendent suggested to the appellant that
he had habitually dealt with drugs in a big way. The
appellant then admitted in effect that he was a
dealer on a retail scale by saying: 'Yes. All right. But I
don't sell much.' He added: 'Let me out, and I'll get
you a man with a big packet.' The superintendent
again said 'That can't be done'. The appellant then
said: 'If I help police, can you help me?'
- The superintendent replied: 'I can make no deal
with you', but then added: 'If you show the judge
that you have helped the police to trace bigger drug
people, I am sure he will bear it in mind when he
sentences you.'
- The appellant then disclosed the name of his
supplier of heroin who was subsequently arrested
by the police.
- The appellant and two others were charged with
conspiring with one another and with other persons
to contravene the Misuse of Drugs Act 1971.
- At the appellant's trial, objection was taken to the
admissibility of the appellant's verbal statements to
the superintendent on the ground that they had
been induced by reason of the superintendent's
remark concerning the view which a judge might
take when he came to sentence the appellant.
- The trial judge ruled that the statements were
voluntary and should be admitted. The appellant
was convicted and appealed.
- Held - In all the circumstances of the instant case,
and particularly in view of the fact that the appellant
had made his confession to retail trading before any
possible inducement had been made to him, it could
not be said that the judge had erred in principle and
the appeal would therefore be dismissed.
• PP v Scott Allen Hazlett [2005] 4 MLJ 564
- where four accused were jointly charged, and tried
under s 302 of the Penal Code for the murder of an
elderly woman, one Mdm Seow Saw Poh @ Siew
Siaw Poh, on the night of 27 December 1998 at Jalan
Law 4110 Evidence 1
Tebrau 1, Ukay Heights, Hulu Kelang, District of
Gombak, Selangor.
- They were originally tried before Kang Hwee Gee J
on 17 January 2000. The learned judge heard the
case only partially.
- Subsequently, the first accused died while under
remand in prison. With the consent of the
prosecution and the defence, the case against the
remaining three accused was ordered be heard de
novo (from the beginning).
- The prosecution, in its endeavour to establish a
prima facie case of the offence of murder against all
the three accused, relied mainly on the evidence of
the prosecution’s key witness, one Haikal Shah bin
Muhammad Kamal (‘PW3 ’), who claimed to be an
eye-witness as well as an accomplice to the alleged
crime.
- The defence sought to impeach the credit of PW3.
There were also issues on the voluntariness of the
oral cautioned statement of the first and second
accused. The prosecution sought to adduce the
oral cautioned statement of the second accused
through a woman police (PW14).
- Held: the prosecution failed to establish a prima
facie case: The prosecution had failed to establish
that prima facie the oral statement of the second
accussed was voluntary.
- First, in the present case, once it appeared to PW14
in the course of the interrogation that the second
accused had imparted or about to impart(convey)
information crucial for the purpose of prosecution
or further investigation, PW14 should have made
arrangements for the accused to be brought before
another police officer, competent to record a
cautioned statement, who was uninvolved in the
investigation of the case. In the present case, this
was not done although PW14 had ample
opportunity to do so.
- Second, there was ample time to take down a
written cautioned statement, yet no reason given as
to why the oral cautioned statement was not
reduced into writing.
- Third, for the purpose of body examination to
ensure that the second accused had not been
physically abused, PW14 being a female officer
should not have asked the second accused to remove
6
his shirt, and should not have personally carried out
the body examination. Such an examination was
inappropriate and oppressive. It was high handed
and amounted to disrespecting a person’s modesty.
The second accused being a male such body
examination should have been carried out by a male
police officer.
Cases where expressions used were held to have an
involuntary effect:
1. R v Thompson (1783) 1 Leach 291:
- “Tell me where the things are and I will be favorable
to you”.
2. R v Blackburn (1852) 6 Cox CC 333:
- “ A promise of pardon”.
3. R v Richards (1832) 5 C & P 318:
- “If you do not tell me all about it, I will send for a
constable”.
4. R v Thomas (1836) 7 C & P 345:
- “It will be better for you to split and not suffer for all
of them”.
5. R v Fennell (1881) 7 QBD 147:
- “You had better tell the truth; it may be better for
you”.
6. R v Kingston (1830) 4 C & P 587:
- “You had better tell all you know”.
7. R v Barker (1941) 28 Cr App R 52:
- “Offer of non-prosecution”
8. R v Gills (1866) 11 Cox CC 69:
- “Immunity from prosecution”.
9. R v Luckhurst (1853) 23 LJMC 18:
- “If you don’t tell me, I will give in charge of the
police till you do tell me”.
10. PP v Naikan [1961] MLJ 147:
- “You had better tell the truth”.
10.1 Admission & Confession
11. R v Court (1876) 7 C & P 486:
- “Be sure to tell the truth”.
12. R v Reave and Hancock (1872) LR 1 CCR 362:
- “You had better, as good boys, tell the truth”.
13. R v Reason (1872) 12 Cox CC 228:
- “I must know more about it”.
14. R v Sleeman (1853) 6 Cox CC 245:
- “Don’t run your soul into more sin, but tell the
truth”.
15. PP v Ramasamy [1991] 1 MLJ 75:
- “You better tell the truth”.
The issue of oppression
• Oppression has gained momentum as an
additional factor to render a confession as
involuntary.
• It can be traced to the pen of Abdoolcader FJ in Dato’
Mokhtar Bin Hashim v PP [1983] 2 MLJ 232 where
his Lordship said at page 273:
“It appears from the decision in Ping Lin (ante) that
the classic test of the admissibility of an accused's
confession that the prosecution must establish beyond
reasonable doubt that it was voluntary, in the sense
that it was not obtained from him either by fear or
prejudice or hope of advantage created by a person in
authority, or by oppression, should be applied in a
manner which is part objective, part subjective”.
• Per Faiza Thamby Chik JC in PP v Chan Choon
Keong [1989] 2 MLJ 427 states:
“The other point is whether the cautioned statement
was obtained under oppressive circumstances. The
relevant facts to be looked at and considered to show
what are called 'oppressive circumstances' negativing
voluntariness are:
1. characteristics of the accused;
2. period of time during which he was questioned;
3. length of time during which he was in custody;
4. whether or not he was given opportunities of rest
and refreshment. I find these 'wrongful manners of
exercise of authority' by the recording officer and
other officers as improper, following R v Fulling
Law 4110 Evidence 1
[1987] 2 All ER 65 where it was stated at p 69:
'This in turn leads us to believe that 'oppression' ...
should be given its ordinary dictionary meaning.
• “The Oxford English Dictionary had its third
definition of the word 'oppression' and runs as follows
Exercise of authority or power in a burdensome, harsh
or wrongful manner. Unjust or cruel treatment of
subjects, inferiors, etc. The imposition of unreasonable
or unjust burden.
• As it was said in R v Priestley (1966) 50 Cr App R
183 'oppression means something which leads to sap
(undermine) and has sapped that free will which must
exist before a confession is voluntary”.
• In PP v Chong Boo See [1988] 3 MLJ 292, Edgar
Joseph Jr J said that the test of oppression would
depend upon subjective considerations such as his age,
health, sex and personality.
• Abdoolcader FJ said in Dato’ Mokhtar Bin Hashim v
PP [1983] 2 MLJ 232 that
“As to the long and odd hours of interrogation stated in
the station diaries this would appear to be suggestive
of oppression within the definition by Sachs J in R v
Priestly which was adopted in R v Prager”.
• PP v Tan Gong Wai [1985] 1 MLJ 355, the accused
was allowed no sleep or refreshments from the time he
was brought into the customs office at 8.00pm on 18
April 1981 until his cautioned statement was recorded
from 5.15am to 7.20am on 19 April. Edgar Joseph Jr J
said that this amounted to oppression.
• In PP v Chan Choon Keong [1989] 2 MLJ 427, the
accused was interrogated from 21 to 24 December
1984, and at one time even between 12.45am and
1.00am. He was questions for a whole night with his
hands handcuffed behind his back. The statement was
recorded from 11.45 am to 2.15 pm. In rejecting the
statement as being involuntary, Faiza Thamby Chik
said that the least the recording officer could have
done was to stop recording the statement at lunch
time and continue after lunch.
7
• In PP v Kamde Bin Raspani [1988] 3 MLJ 289,
Zakaria Yatim J rejected the cautioned statement for
the reason that the interrogations were carried out
after 6.30 pm in violation of rule 20 of the Police
(Lock-Up) Rules 1953 which states “Prisoners shall be
locked up for the night by 6.30 pm and shall rise and
be dressed by 6.30 am”. (See also PP v Lee Chee Meng
[1991] 1 MLJ 227).
• Handcuffing of an accused while he is making a
statement has been held in some cases to amount to
oppression.
• (See PP v Mohd Bin Wan The [1989] 2 CLJ 652, PP v
Abdul Rahim Bin Ibrahim Penang Criminal Trial No 47
(58)-15-86, unreported, and PP v Mohd Fuzi Bin Wan
The [1989] 2 CLJ 652)
• Section 28 provides that Confession made after
removal of impression caused by inducement,
threat or promise relevant.
• S.28(1) If such a confession as is referred to in
section 24 is made after the impression caused by
any such inducement, threat or promise has, in the
opinion of the court, been fully removed, it is
relevant.
Principle and scope
• This section must be read with s.24 of the Act. A
confession as is referred to in the latter section will
become relevant if made after the impression caused
by any such threat, inducement or promise has been
fully removed.
• Once the existence of an inducement, threat or
promise has been established there is a presumption
of its continuance. The onus is then on the prosecution
to prove that the impression caused by the said
inducement, threat or promise was fully removed
when the confession was made.
• Per Chaturvedi J in Bhagirath v State of MP AIR 1959
states:
• “Now, there is no doubt that, after their arrest, all the
appellants were beaten and there was also some
inducement given. When once the existence of
improper inducement, threat or promise has been
10.1 Admission & Confession
established so as to bring the case within the
provisions of section 24, there is a presumption of its
continuance, and the prosecution has to prove that the
impression caused by the original inducement, threat
or promise was fully removed when the prisoner made
the confession”.
Application of the section
a. A case where no attempt was made by the
prosecution to prove that the impression caused
by the inducement had been removed.
• In Lim Sing Hiaw v PP [1965] 1 MLJ 85,
- The appellant was tried and convicted for unlawful
control of a firearm in contravention of section 57(1)
of the Internal Security Act, 1960, and for consorting
with armed persons in contravention of section 58(1)
of the same Act and was sentenced to death.
- On appeal it was argued inter alia: (iv) the
confession of the accused should not have been
admitted in evidence.
- It appeared that prior to the making of the
statement to the police, the accused had been
questioned by the Special Branch and according to
him he had given a statement as he was threatened
that if he did not do so he would be taken into the
jungle and shot.
- Held: (4) the appellant's subsequent statement
was wrongly admitted because there was no
evidence to show that the original threat or
premises made to the appellant to make the
previous statement had been dissipated (abandoned)
(5) considering the admissible evidence in this case
the appeal must be dismissed because although the
statement had been wrongly admitted there had
been no substantial miscarriage of justice.
b. A case where the impression caused by a promise
was held to have been removed as shown by the
answer given by the accused to the questions
asked by the Magistrate.
• In Abdullah Bin Awang Bongkok v PP [1956] MLJ
90, the appellant in this case was convicted of murder
and sentenced to death. The only point which was
argued was whether the confession made by the
Law 4110 Evidence 1
appellant to a Magistrate should have been admitted in
evidence.
• Held: (1) the answers to the further questions put to
the appellant by the Magistrate made it plain beyond
any doubt that the statement was made freely and
voluntarily and was properly admitted in evidence
under s.24 of the Evidence Ordinance.
• Section 29 provides “Confession otherwise relevant
not to become irrelevant because of promise of secrecy,
etc.” (Pengakuan salah yang selainnya relevan tidak
boleh menjadi tak relevan oleh sebab janji akan
merahsiakannya, dsb).
• S.29(1) If such a confession as is referred to in section
24 is otherwise relevant, it does not become irrelevant
merely because it was made under a promise of
secrecy, or in consequence of a deception practiced on
the accused person for the purpose of obtaining it, or
when he was drunk, or because it was made in answer
to questions which he need not have answered,
whatever may have been the form of those questions,
or because he was not warned that he was not bound
to make a confession and that evidence of it might be
given against him.
Promise
of
secrecy
No
Drunk
warning
Section
29
Unnecessary
Deception
answer
8
• Principle and scope
• This section should also be read with section 24 of the
Act. It operates as a general rule of inclusion (addition)
and states that if such confession as is referred to in
section 24 is otherwise relevant, it does not become
irrelevant merely because:
a. under a promise of secrecy
• If a confession is obtained from a person with a
promise that it would be kept a secret, it thereby
does not become irrelevant.
• See R v Thompson [1836] 7 C & P 345
b. In consequence of a deception practiced on the
accused person for the purpose of obtaining it.
• This part of the section must be read with the rule
that illegally obtained evidence is admissible. The
court is not concerned with how the evidence was
obtained.
• However, in such cases the court always has
discretion to disallow evidence if the strict rules of
admissibility would operate unfairly against the
accused. Per Chong Siew Fai CJ in Goi Ching Ang v
PP [1999] 1 MLJ 507 states:
- “Fairness requires fair trial which, in turn, needs
fair procedure. Fair process requires that the
legitimate interests of both the prosecution and
the defence are adequately provided for.
- While the police ought to be given a reasonable
opportunity to question suspects and accused
persons, in its investigation, the accused must also
be reasonably protected from the danger of
extraction of unreliable statements and of
statements (even if reliable) by some improper
means.
- Evidence obtained in an oppressive manner by
force or against the wishes of an accused person
or by trick or by conduct of which the police ought
not to take advantage, would operate unfairly
against the accused and should in the discretion of
the court be rejected for admission”.
10.1 Admission & Confession
c. When he was drunk. Although a confession made by
a person when he was drunk is admissible the weight
to be attached to it is another matter.
• The weight of a confesssion may be affected by the
circumstances under which it was made as in the
case of R v Spilsbury 7 Car & P 187, where it was
alleged that a constable had made the accused drunk
and that the latter then made a statement. Coleridge,
J. observed:
• "A statement made by a prisoner while drunk is not
therefore inadmissible as evidence and to render a
statement inadmissible it must be obtained by hope
or fear. This is a matter of observation for me upon
the weight which ought to attach to this statement
when it is considered by the jury.“
• See also R v Santokh Singh [1933] MLJ 178.
d. Because it was made in answer to questions which
he need not have answered, whatever may have
been the form of those questions.
• Suffian LP in Datuk Haji Harun Bin Haji Idris
states “Section 29 of the Evidence Act which clearly
provides that if a confession is otherwise admissible,
i.e. because the court is satisfied that it was made
voluntarily, it does not become inadmissible simply
because it was "made in answer to questions which
he need not have answered, whatever may have
been the form of those questions."
• See State of Bombay v Kathi Kalu AIR 1961 SC
1808.
• This should not, however, be taken as an open
invitation to the authorities to apply pressure to
extort confessions from suspects as from the words
"appears to the Court" in proviso (a) to subsection
(1) of section 15 of the Act and in section 24 of the
Evidence Act, it is quite clear that before admitting a
statement the court will require sufficient proof that
it was made voluntarily.
e. Because he was not warned that he was not bound
to make a confession and that evidence of it might
be given against him.
• It must be noted that section 24 of the Act to which
this section relates does not require any form of
warning to be given. Be that as it may, the question
whether an accused person was warned may
Law 4110 Evidence 1
become relevant to enable the court to decide
whether the confession was voluntary. A statement
by an accused person is not admissible in evidence
against him unless it is shown by the prosecution to
have been a voluntary statement in the sense that it
was not extorted by fear of prejudice or induced by
hope of advantage held put by a person in authority.
• See R v Voisin [1918] 1 KB 531 & Soudreau v The
King [1949] SCr 262.
Confession made to the police
• S.25 provides for Confession to police officer below
the rank of inspector not to be proved.
• S.25 (1) Subject to any express provision contained in
any written law, no confession made to a police officer
who is below the rank of Inspector by a person
accused of any offence shall be proved as against that
person.
Principle and scope
• Meaning of the word police officer in the section was
explained by Per Burton ag CJ in the R v Wong Ah Kin
[1935] MLJ 169 “Now, it is perfectly clear to my
mind that when the Evidence Ordinance says
'Police' it means police…The words 'police officer'
must be construed strictly to mean that he is a
member of the Police Force and nothing else”. In
this case, a statement made to An Assistant Protector
of Chinese was held to be admissible on the ground
that he was not a police officer within the meaning of
this section.
• In Man Woo v R [1951] MLJ 20 where this was a
chandu case. At the hearing the question was raised as
to the interpretation of s. 25 of the Evidence Ordinance.
In the present case a statement was made to a Senior
Customs Officer. It is true that in a sense the activities
of all Government officers engaged in enforcing the
law are police duties. It is nevertheless, in my opinion,
entirely contrary to the ordinary use of language to
describe officers so engaged as Police officers. Further,
the addition of the words "below the rank of
Inspector" can only have reference to that body
ordinarily known as the "Police" and which is
governed by the Police Ordinance
9
• Per Sharma J in Chua Beow Huat v PP [1970] 2 MLJ
29 states “I am consequently of the view that a
customs officer is not a "police officer" within the
meaning of s. 25 of the Evidence Ordinance”.
• In Public Prosecutor V. Tay Yam Peng [1951] 1 LNS
67 the Court of Appeal followed Man Woo V. Rex [1951]
1 LNS 50 and held that the words "police officer" in s.
26 of the Evidence Ordinance were to be given their
ordinary everyday meaning and that following that
test a chandu officer was not a police officer within the
meaning of s. 26 of the Evidence Ordinance”.
• Section 2 of the Police Act 1967 (Act 344) defines
him as a member of the Royal Malaysian Force.
• In PP v Tay Yam Peng [1951] MLJ 144, the Court of
Appeal hold that a Chandu Officer is a not a police
officer.
• Per Abdul Aziz J in Koh Jok Sim v PP [1966] 2 MLJ 50
states “It is fairly well settled that s. 113 of the
Criminal Procedure Code and ss. 25 and 26 of the
Evidence Ordinance do not apply to excise officers and
there is nothing in law to prevent the answers given to
an excise officer by a person subsequently accused of
an offence from being used in evidence subject to the
important proviso that the Court is satisfied that the
answers were voluntarily given”.
• Similar decision was made by Wan Suleiman F.J. in
Abdul Ghani bin Jusoh & Anor v Public Prosecutor
[1981] 1 MLJ 25 and Barret v PP [1982] 2 MLJ 284
relating to a statement of an accused person recorded
by a Probationary Police Inspector. A Probationary
Police Inspector is regarded as a person below the
rank of an Inspector.
Application of the section
a. A report containing a confession made to a police
officer below the rank of an inspector will be
excluded.
• See PA Anselam v PP [1941] MLJ 157 where in the
present case it was an admission of a fact which
would tend to prove the guilt of the accused, and
amounted to a confession. Having been made to a
10.1 Admission & Confession
police officer below the rank of Inspector it is
excluded by section 25 of the Evidence Enactment.
b. In order to render a statement admissible there must
be evidence to show that the officer to whom it was
made was not below the rank of inspector.
• In Yee Ya Mang v PP [1972] 1 MLJ 120 where the
appellant was charged under section 9(a) of the Arms
Act, 1960 for having in his possession a pistol and
three rounds of ammunition, without an arms license
or an arms permit.
• The pistol and the three rounds of ammunition were
not found in the house occupied by the appellant but at
a spot in a rubber estate pointed out by the appellant.
• In the course of police investigation the appellant said
that he had a revolver. Subsequently he took the police
officer to the spot where the revolver was found.
• The spot pointed out by the appellant was a pit,
covered by pieces of wood, underneath which was
found a plastic bag. Inside this plastic bag was a
stocking containing the subject matter of the charge.
About an hour earlier the appellant had taken the
police to a different spot in another rubber estate from
where a toy pistol was recovered.
• Held: (1) the confession made by the appellant was
inadmissible under section 25 of the Evidence
Ordinance as there was no evidence to show that the
police officer to whom it was made was not below the
rank of inspector.
Confession made to the police while in custody
• S.26 provides for the Confession by accused while in
custody of police not to be proved against him.
• S.26 (1) Subject to any express provision contained in
any written law, no confession made by any person
whilst he is in the custody of a police officer, unless it
is made in the immediate presence of a Sessions Court
Judge or Magistrate, shall be proved as against that
person.
Principle and scope
• Whilst section 25 of the Act relates to a confession
made to a police officer, this section is concerned with
a confession made by anyone to a third person while
he is in the custody of a police officer. In order to be
Law 4110 Evidence 1
admissible it must be have been made in the
immediate presence of a sessions court or magistrate.
This section also applies to all categories of police
officers.
• In Lee Yew Seng v PP [1967] 1 MLJ 215 the
appellants were charged with robbing a goldsmith's
shop. There was ample evidence at the trial to show
that the appellants took active part in the robbery but
at the trial a confession made by the first appellant
while he was in the custody of the police was admitted
in evidence. The appellants were convicted and they
appealed.
• Held: the confession was inadmissible. Ong Hock Thye
FJ states “Such a confession was manifestly
inadmissible and ought to have been excluded. Its
maker was in the custody of a police officer and
section 26 of the Evidence Ordinance clearly provides
that whilst in such custody, no confession made by any
person, unless made in the immediate presence of a
president of the sessions court or magistrate, shall be
proved against such person. Here, the evidence clearly
showed that the first appellant was in the company
and custody of the officer commanding the police
district when he made his confession”.
Meaning of the word custody
• In Sambu v R [1947] MLJ 16 where it was held,
(1) that the accused's statement to the police officer
that he had taken the cloth from Godown 14 was
improperly admitted in evidence, contrary to Section
26 of the Evidence Ordinance, as it was a confession
made by him while he was in the custody of a police
officer. Brown J states “There is nothing technical
about being in custody.
• A person is in custody when he is in a state of being
guarded and watched to prevent his escape. In order
to answer the question of whether the appellant was
in custody at the time when he is alleged to have made
the statement it is only necessary to consider what
would have happened if, at that time, he had tried to
run away”.
(See also PP v Salamah Bte Abdullah [1947] MLJ
178).
10
Confessions made to a magistrate
• Under this section, a confession made to a magistrate
is admissible.
• In Chong Teng v PP [1960] MLJ 153, Held: (1) the
statement in question amounted to a confession and
by reason of section 26 of the Evidence Ordinance a
confession made by a person while in custody is only
admissible if it is made in the immediate presence of a
Sessions Court President or a Magistrate.
• In Muka Bin Musa v PP [1964] 30 MLJ 275, Held: in
the absence at the trial of any evidence to cast doubt
upon the correctness of the appellant's statement it
could not be said that there was any possibility of such
substantial misinterpretation as to destroy the force of
the confession. (Appeal dismissed).
• It is also not objectionable for a police officer to inform
a person of his right to make a confession before a
magistrate.
• Per Ong CJ in Yap Chai Chai v PP [1973] 1 MLJ 219
states:
“for the mere fact that this appellant was informed by
a senior police officer of the proper way to set about
making his confession by doing so before a magistrate
was by itself not intrinsic evidence of coercion,
inducement, threat or promise, which this appellant
had expressly denied as motivating his decision”.
Application of the section
a. A confession made by a person to a doctor when he is
in the custody of the police is inadmissible under this
section. See Eng Sin v PP [1974] 2 MLJ 168
b. Failure to object to the admissibility of an inadmissible
confession does not render it admissible.
See Packiam v PP [1972] 1 MLJ 247 & Wong Kok
Keong v R [1955] MLJ 13 at p 16 at page 16.
c. The effect of the improper admission of a confession. It
would depend on whether there was other evidence to
justify a conviction.
See Lee Yew Seng v PP [1967] 1 MLJ 215.
10.1 Admission & Confession Law 4110 Evidence 1 11

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