Muhammad bin Kadar and another v Public Prosecutor

1. V K Rajah JA (delivering the judgment of the court):

2. Introduction

3. [1]

   [1] This is an extraordinary case. Two brothers, Muhammad bin Kadar (“Muhammad”) and Ismil bin Kadar (“Ismil”) (collectively referred to as “the Appellants”), were charged with the brutal murder of a 69-year-old woman (“the Deceased”) in the High Court. They were convicted by the trial judge (“the Judge”), who gave his grounds in a 214-page judgment (see Public Prosecutor v Ismil bin Kadar and another [2009] SGHC 84) (“the Judgment”) that paid commendable attention to detail, and were sentenced to suffer capital punishment. The trial, one of the longest in the Singapore judiciary’s annals, took 94 days stretching over a period of more than two years from 20 March 2006 to 9 May 2008. One of the primary reasons for this lengthy period was the fact that not long after the trial commenced, both of Muhammad’s counsel discharged themselves (for reasons that will be revealed later in this judgment (see [123] below)) and new counsel had to be engaged.

4. [2]

   [2] At the start of the trial, the Prosecution unequivocally asserted that Ismil was the sole assailant. This initial position can be traced to statements that Ismil made on the day after he was arrested. The Prosecution accepted that Muhammad was not involved in the actual killing of the Deceased, but argued that by virtue of s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“Penal Code”), he was also legally responsible for the killing since he was present at the scene of the crime and shared a common intention with Ismil. But, after Muhammad dramatically testified to his sole involvement in the killing, the Prosecution did a startling volte-face in that it then emphatically contended that Muhammad alone had inflicted the fatal wounds. However, the Prosecution maintained that both the Appellants were equally liable for murder pursuant to s 34 of the Penal Code, as they shared a common intention to commit robbery. The Judge agreed with the Prosecution in this regard in convicting both the Appellants.

5. [3]

   [3] Unsurprisingly, the twists and turns did not end with the trial. Before us, when queried, the Prosecution changed its position yet again. This time, it conceded that the Judge had erred in that only Muhammad should be found liable for murder, and that Ismil should not be held to be equally liable as the evidence on record was insufficient to prove a common intention to cause the Deceased’s death. The Prosecution, however, submitted that Ismil should be found guilty of committing robbery with hurt since he was present at the scene of the crime and there was sufficient evidence to show that he shared a common intention with Muhammad to commit robbery. In maintaining that Ismil should be convicted, albeit for robbery with hurt, the Prosecution referred to statements in which he claimed to be the sole assailant. This, of course, raises a vexing conundrum – a veritable legal curate’s egg – in that it has to be decided whether the Prosecution can rely on the barest residue of evidence from statements that have already been seriously compromised. It should be added that absolutely no objective evidence was placed before the court that tied Ismil to the scene of the crime or the crime itself. Pertinently, the lead investigator acknowledged that more could have been done in the investigations to secure objective evidence (see [183] below).

6. [4]

   [4] Another unusual feature is that the Judge did not make a finding as to the identity of the actual assailant – whether it was Muhammad or Ismil. He stated that he was unable to do so. Yet, he concluded that by virtue of s 34 of the Penal Code, both should be held liable for murder as they had shared a common intention to rob. In arriving at this determination, he relied on the series of confessions made by the Appellants in their statements. All counsel before us (including Muhammad’s) unreservedly accepted that only Muhammad was responsible for the killing. Counsel for Ismil, however, went further, in that he forcefully maintained that Ismil was never even present at the scene of the crime and that false confessions in statements that had been made by Ismil during police investigations had caused a miscarriage of justice. Several manifest evidential inconsistencies in the said statements were also alluded to.

7. [5]

   [5] Aside from the aforementioned unusual aspects, another aspect of the proceedings that has left us disturbed would be the fact that the Prosecution failed to disclose statements made on 12 May 2005 and 5 September 2005 by the Deceased’s bedridden husband, Mr Loh Siew Kow (“Mr Loh”), until nearly 18 months after the trial had commenced. Mr Loh, who passed away due to cancer a few months after the trial began, was no ordinary witness. He was the only person – other than the Deceased and her assailant or assailants – present in the Deceased’s flat throughout the incident. In his detailed statements, he clearly and consistently stated that there was only one intruder. In addition to this lapse, the day before the trial was due to end, it somehow emerged that Mr Loh had made an even earlier statement to the investigators. This was made the day after the murder on 7 May 2005. In this statement, Mr Loh unambiguously stated that there was only one intruder and then proceeded to give a detailed description of that person. The Prosecution, when queried by us, acknowledged that with hindsight, the timely disclosure of Mr Loh’s evidence “may have been the … wiser decision”, though it insists it had no legal obligation to disclose those three statements.

8. [6]

   [6] The present appeal, in short, presents knotty issues of both fact and law for this court to resolve. As this is a fairly lengthy judgment, it makes sense to first outline what will be covered in schematic form:

9. Factual background

10. The dramatis personae

11. [7]

    [7] The Appellants are brothers who lived in a flat with their family at Block 185 Boon Lay Avenue #04-154, one floor below the Deceased’s flat which was #05-156. Muhammad was 29 years old at the time of his arrest. His highest educational qualification was Primary Seven (extended). At the time of his arrest, he was working as an odd-job general worker on a part-time basis. In terms of criminal history, he has had two stints in the Drug Rehabilitation Centre as well as a number of antecedents in property and drug offences. He started taking drugs at the age of 15. His history of drug abuse began with cannabis and then progressed to various other kinds of drugs, including heroin. From 2003, he started consuming Subutex in place of heroin. He began consuming Dormicum in 2004. Prior to his arrest, he had been consuming Dormicum on a daily basis. He was, in short, a chronic substance abuser.

12. [8]

    [8] Ismil was 37 years old at the time of his arrest. His highest educational qualification was Primary Six. At the time of his arrest, he was working as a general worker on a contract basis. He began consuming cannabis and sniffing glue at the age of 15, and continued this habit until the age of 17. He then stopped sniffing glue, and consumed cannabis and opium up till 2004, with various breaks because of time spent in remand either at Queenstown Remand Prison (“QRP”) or the Drug Rehabilitation Centre. Having been released from long-term detention in the Drug Rehabilitation Centre in 2003 – his fifth stint in the Drug Rehabilitation Centre – Ismil managed, for a short period, to cease regular substance abuse. From 2004 or 2005, and all the way up till his arrest, he consumed, inter alia, Subutex and Dormicum on a daily basis. Like his brother, he would easily fall within the description of a chronic substance abuser.

13. [9]

    [9] The Deceased lived with Mr Loh, a bedridden stroke patient, at Block 185 Boon Lay Avenue #05-156. They were both 69 years of age as at 6 May 2005. Due to Mr Loh’s poor health, he had to be fed by means of a nasogastric tube. A nurse, Madam Tan Bee Choo (“Mdm Tan”), visited Mr Loh three times a week to provide medical care. One of her duties was to change the nasogastric tube every two weeks.

14. The discovery of the death of the Deceased

15. [10]

    [10] On 6 May 2005, at around 8.00pm, the Deceased was found dead in her flat. The circumstances leading to the discovery of the Deceased’s death are as follows. Mdm Tan arrived at the Deceased’s flat at about 4.00pm that fateful day to follow up on an appointment that she had made earlier. She knocked on the door for about five minutes, but there was no response. She then used her mobile phone to call the residential line of the Deceased, and could hear the phone ringing, but again there was no response. Worried by this, she called the Deceased’s daughter, Madam Loh Yim Leng (“Catherine”), and informed her that the Deceased was not responding to her door knocks and phone calls. Catherine said that she would visit the Deceased’s flat after work. Catherine thereafter also tried calling the Deceased’s residential line repeatedly, but without success.

16. [11]

    [11] Catherine arrived at the Deceased’s flat at about 7.30pm. She knocked repeatedly, but there was no response. She then sought the assistance of the police. Two police officers, Sergeant Sim Pui Hong and Sergeant Lee Boon Howe, arrived on the scene at just after 8.00pm. They obtained Catherine’s permission to break open the door. When the door was opened, the Deceased was found lying still on the floor in a pool of blood in the living room next to the refrigerator. One of the two bedrooms in the house had been hurriedly ransacked, and Mr Loh was found in severe distress in the other bedroom. A bloody chopper was found on a rack near to where the Deceased was lying and a knife blade was found on the kitchen toilet floor. The floor, walls and door of the kitchen toilet and some of the living room furniture were splattered with blood. A paramedic later pronounced the Deceased dead at about 8.40pm.

17. [12]

    [12] In his autopsy report, Dr Lai Siang Hui (“Dr Lai”), a pathologist, provided the following summary of findings:

18. The arrest of the Appellants

19. [13]

    [13] The Appellants were not arrested immediately in connection with the killing. Although Ismil was arrested on that very same day, it was for reasons unrelated to the killing of the Deceased. At about 3.00pm on 6 May 2005, Mr Yoo Yee Weng (“Yee Weng”), who operated a mobile phone business at Boon Lay Shopping Centre, discovered that two mobile phones were missing from his shop. He informed his friend, Mr Tan Yi Long Jafred (“Jafred”), who also operated a mobile phone business at Boon Lay Shopping Centre, to look out for the phones in case anyone should try to sell them to him. At about 4.30pm, Jafred called Yee Weng to inform him that a male Malay – Ismil – was in his shop trying to sell a mobile phone to him. Yee Weng went over to Jafred’s shop and identified that phone as one of the two that had been taken from his shop. They then called the police, who arrived and arrested Ismil in Jafred’s shop. Ismil, who did not attempt to escape or resist arrest, was brought to Jurong Police Division Headquarters and remanded.

20. [14]

    [14] Although Ismil was initially remanded for theft, the police’s suspicion of him as a possible suspect in the murder was aroused after it was ascertained that he lived just one floor below the Deceased’s flat. As a result, the next morning, investigators proceeded to question Ismil on the killing of the Deceased. Ismil was observed to be tired and in a vulnerable physical and mental state at that point in time (see [160]–[165] below). Upon being interrogated, Ismil allegedly provided several statements in which he incriminated himself in the killing of the Deceased. In these statements, Ismil admitted that he had proceeded to the Deceased’s flat on the morning of 6 May 2005 to rob the Deceased as he was in need of money. After the Deceased raised her voice, he went into the kitchen and took a knife in an attempt to scare her. A struggle broke out between him and the Deceased, and he accidentally stabbed her.

21. [15]

    [15] It is noteworthy that the first statement provided by Ismil was given in rather unusual circumstances. On the morning of 7 May 2005, the day after he had been remanded, Ismil was brought to the Deceased’s flat at Block 185 Boon Lay Avenue. While Ismil was in a police car with two police officers at a carpark near Block 185, Senior Station Inspector Zainal Abidin bin Ismail (“SSI Zainal”), an officer who was asked to assist in the investigations, entered the car and asked the two officers to leave as he wanted to interview Ismil alone. Ismil initially said that he did not know anything about the murder of the Deceased. However, according to SSI Zainal, after further probing, Ismil voluntarily confessed to having attacked the Deceased alone. SSI Zainal also produced what he claimed to be a recording of the confession, viz, a piece of paper that stated:

22. [16]

    [16] Ismil was subsequently brought to a briefing room at Jurong West Neighbourhood Police Centre (“JWNPC”) where SSI Zainal had a second interview alone with him between 11.30am and 11.50am. During that interview, Ismil allegedly told SSI Zainal that he had gone to the Deceased’s flat to borrow some money and that he had taken a knife from her flat. Ismil also told him that there was an old man lying on a bed in the Deceased’s flat, and maintained that he had acted alone. This statement was recorded much later in the day, after lunch, by SSI Zainal in his field diary. The alleged confession in the police car was also recorded after lunch by SSI Zainal in his field diary (in addition to being written on the slip of paper). No warning was administered to Ismil before these statements were recorded. Further, the statements were neither read back to him nor signed by him.

23. [17]

    [17] It must be pointed out here that these statements implicated Ismil only, and did not implicate Muhammad at all. The early statements provided by Ismil made no reference to Muhammad being present at the scene of the crime. However, subsequent to Muhammad’s arrest and his confession that he was also present at the scene of the crime, the statements provided by Ismil began to allude to Muhammad’s presence at the scene of the crime and his participation in the robbery. In these latter statements, Ismil, nevertheless, continued to maintain that it was he alone who had stabbed the Deceased. Muhammad had merely agreed to join him in committing robbery.

24. [18]

    [18] The circumstances leading to the arrest of Muhammad are also germane. On 27 May 2005, the lead investigating officer for the killing of the Deceased, Station Inspector Raymond Tan (“the IO”), was suddenly informed by Dr Christopher Syn (“Dr Syn”), an analyst attached to the DNA Laboratory for Forensic Science at the Health Sciences Authority, that a black purse, which had been found lying on the ground outside of Block 185 on the night of 6 May 2005, contained the Deceased’s DNA and the DNA of a male person who was likely to be one of Ismil’s brothers. Muhammad was then asked to turn up at the Special Investigation Section (“the SIS”) of the Criminal Investigation Department (“the CID”) on 30 May 2005. On that day, the IO received confirmation from Dr Syn that it was indeed Muhammad’s DNA that had been found on the black purse.

25. [19]

    [19] Muhammad reported to the SIS’ office on 30 May 2005 and was interviewed from 10.40am onwards. By about 6.00pm, he made the first of several confessions regarding his role and that of Ismil in the killing on 6 May 2005. The statements that were provided by Muhammad were consistent with those that were subsequently provided by Ismil from 3 June 2005 onwards; amongst other things, they stated that Ismil alone had attacked and killed the Deceased. While Muhammad admitted to being present at the scene of the crime, his role was just to assist in the robbery.

26. [20]

    [20] The Appellants were initially charged with committing murder in furtherance of a common intention under s 302 read with s 34 of the Penal Code. This was later amended to a charge of committing murder in furtherance of a common intention to commit robbery under s 302 read with s 34 of the Penal Code.

27. The trial in the High Court

28. [21]

    [21] The trial commenced on 20 March 2006. The evidence that was adduced by the Prosecution and the Appellants has already been comprehensively summarised by the Judge in the Judgment. As such, in this section, we will, instead, broadly describe what transpired during the trial with reference to evidence that we feel should be highlighted in particular.

29. The trials-within-a-trial

30. [22]

    [22] The core of the Prosecution’s case against the Appellants consisted of the various statements that they had made to the police. The Appellants, however, launched a root-and-branch attack against the admissibility of a number of their statements (see [27] and [197] of the Judgment for a list of Ismil’s and Muhammad’s respective disputed statements). For this reason, the Judge had to conduct two trials-within-a-trial shortly after the trial commenced. The trials-within-a-trial took place between 27 March 2006 and 18 January 2007.

31. [23]

    [23] In the trial-within-a-trial on Ismil’s disputed statements, Ismil alleged, inter alia, that he had been suffering from withdrawal symptoms owing to his moderate to severe Dormicum addiction and that such symptoms included being in a state of confusion and/or being unable to cope with stressful situations. He also alleged that the police had subjected him to threats, inducements and oppressive circumstances. After having considered the evidence, which is summarised at [27]–[126] of the Judgment, the Judge accepted that Ismil was suffering from withdrawal symptoms from 7 May 2005 as a result of not having consumed drugs, but came to the conclusion that the symptoms were mild to, at most, moderate. These symptoms, therefore, did not affect the voluntariness of the statements that he gave (see the Judgment at [144]). The Judge also dismissed Ismil’s challenges to admissibility based on allegations of threats, inducements and oppressive circumstances. The Judge concluded, accordingly, that all of Ismil’s disputed statements were admissible (see, generally, the Judgment at [127]–[196]).

32. [24]

    [24] In the trial-within-a-trial on Muhammad’s disputed statements, Muhammad alleged, inter alia, that he had been suffering from withdrawal symptoms owing to his Dormicum addiction, and this resulted in him being in a state of confusion, being unable to cope with stressful situations and having his will sapped and overborne. He also alleged that the police had subjected him to threats, assault, inducements and suggestion. After having considered the evidence, which is summarised at [197]–[271] of the Judgment, the Judge held that it was likely that Muhammad was suffering from withdrawal symptoms, but not to the degree that would render him susceptible to threats, assault, inducements or suggestion (see the Judgment at [279]). As the Judge was not of the opinion that there was any threat, assault, inducement or oppressive circumstances, he held that all of Muhammad’s disputed statements were admissible (see, generally, the Judgment at [272]–[312]). Before us, the admissibility of these statements was not raised as an issue.

33. The main trial

34. [25]

    [25] The main trial continued after the trials-within-a-trial were completed. The evidence that was adduced as part of the main trial has been summarised at [313]–[420] of the Judgment. Many witnesses testified on behalf of the Prosecution, including the IO. The IO was cross-examined on, inter alia, Mr Loh’s statement of 5 September 2005. That statement had not been disclosed during the Preliminary Inquiry proceedings and was eventually only made available to counsel for the Appellants on 4 September 2007, nearly 18 months after the trial had commenced and some six months after the trials-within-a-trial had concluded. The material parts of the statement are as follows:

35. [26]

    [26] The IO testified that Mr Loh had also been asked to attend an identification parade. However, he identified not one but three male persons, none of whom were the Appellants, although the Appellants were in the line-up. Dr Francis Ngui (“Dr Ngui”), a practicing psychiatrist and consultant psychogeriatrician, examined Mr Loh on several occasions. Dr Ngui considered him fit to give evidence as at 5 September 2005, when he gave a statement to the police, but considered him unfit to give evidence three months later, on 12 December 2005. Mr Loh subsequently passed away on 15 October 2006.

36. [27]

    [27] At the close of the Prosecution’s case, both the Appellants were called upon to enter their defence. Muhammad elected to give evidence first. This resulted in what was described by the Judge as a “significant and dramatic twist to the case” (see the Judgment at [329]). Muhammad proceeded to take sole responsibility for the robbery and the murder of the Deceased. He also affirmed that Ismil was not present at the scene of the crime (see the Judgment at [329]). This was a fundamental departure from the statements that had been provided by both the Appellants, which the Judge had earlier ruled to be admissible. In its closing submissions, the Prosecution summarised Muhammad’s evidence on his sole liability as follows:

37. [28]

    [28] Muhammad’s main line of defence was that he was suffering from an abnormality of the mind, and was therefore entitled to invoke the defence of diminished responsibility. In support of this, Dr Calvin Fones Soon Leng (“Dr Fones”), a psychiatrist, was asked to give evidence. Dr Fones testified that it was likely that Muhammad was suffering from an abnormality of mind. He agreed that Muhammad did not suffer from paradoxical rage when he attacked the Deceased, but was of the view that Dormicum had affected Muhammad, having regard partly to the nature and extent of the injuries inflicted on the Deceased as well as partly to the fact that Muhammad could not recollect the extent to which he had attacked the Deceased. In Dr Fones’ written report, he stated:

38. [29]

    [29] To rebut Dr Fones’ evidence, the Prosecution adduced the evidence of Dr G Sathyadevan (“Dr Sathyadevan”), Senior Consultant Psychiatrist and Chief of the Department of Forensic Psychiatry at the Institute of Mental Health (“IMH”). Dr Sathyadevan had re-examined Muhammad on 17 and 29 January 2008 and produced a report dated 13 February 2008. In his report, Dr Sathyadevan stated that Muhammad has an IQ of 76. In Dr Sathyadevan’s opinion, Muhammad did not suffer from an abnormality of mind or a substantial impairment of judgment. Being high on Dormicum would not amount to an abnormality of mind unless there are psychiatric complications such as paradoxical rage or confusion. Muhammad’s actions had to be consistent with an abnormality of the mind. While Dormicum gave Muhammad boldness, he was in control of his mental faculties and actions.

39. [30]

    [30] Ismil also elected to give evidence. The main thrust of his case was that he was not at the scene of the crime. For completeness, we should also mention that on 3 January 2006, Ismil’s counsel filed a notice of alibi stating that Ismil was at home at the time of the murder. This was contrary to what he had said in his statements (see the Judgment at [348]). Notwithstanding the fact that the Judge had already ruled on the admissibility of the statements made by the Appellants, counsel for Ismil attempted to persuade the Judge to either review the admissibility of his statements or to give no weight to them due to his low IQ and personality coupled with the withdrawal symptoms he had been suffering at the relevant time (see the Judgment at [421]). Ismil’s witnesses included Dr Harold Peter Robers (“Dr Robers”), a clinical psychologist, and Dr Ung Eng Khean (“Dr Ung”), a senior consultant psychiatrist and psychotherapist with Adam Road Medical Centre.

40. [31]

    [31] Dr Robers had conducted an intelligence quotient (“IQ”) test known as the Performance Scale IQ of the Wechsler Adult Intelligence Scale, 3rd edition (“the WAIS-III”) and a Comprehensive Test of Nonverbal Intelligence (“the CTONI”) on Ismil on 22 September 2007. The result of the WAIS-III indicated that Ismil had an IQ of 73. This score was accepted by the Prosecution (see the Judgment at [382]). The report dated 24 September 2007 that Dr Robers produced contained the following summary:

41. [32]

    [32] Dr Ung testified that Ismil had been suffering from moderate to severe withdrawal symptoms, having regard to his answers to a questionnaire and oral responses during the interviews that he conducted. He added that even if Ismil had only been experiencing mild withdrawal symptoms, his other conclusions about the likelihood of a coerced false confession remained because of a confluence of factors, viz, Ismil’s low intelligence, personality and the stress he faced. He also stated that Ismil had said that his poor command of English was one of the reasons as to why he had not disclosed the full range of withdrawal symptoms or his innocence to Dr Cheong Hong Fai (“Dr Cheong”), the doctor who had conducted a medical examination of him, and to Dr Stephen Phang (“Dr Phang”), a consultant psychiatrist at the Institute of Mental Health (“IMH”) who had conducted a psychiatric examination of him. Dr Ung produced a report dated 18 March 2008, which contained the following summary of findings:

42. [33]

    [33] The Prosecution called a number of witnesses to rebut the evidence of Dr Robers and Dr Ung. Dr Rasaiah Munidasa Winslow (“Dr Winslow”) testified, amongst other things, that Ismil may have had mild physical withdrawal symptoms from Dormicum and/or Subutex during the recording of the statements. However, the withdrawal from drug use was unlikely to have had a significant effect on his ability to provide statements. This opinion was based, in part, on the consistency in the account provided by Ismil to the investigators and Ismil’s account of facts given to Dr Phang as to what transpired that fateful day. When he testified, Dr Winslow appeared to be less certain in his opinion:

43. [34]

    [34] Dr Phang, himself, testified for the Prosecution as well. He denied that there was any breakdown in communication between him and Ismil even though he had communicated with Ismil in English. To Dr Phang, Ismil did not come across as a credulous, weak-willed individual who had simply confessed because no one believed him. Dr Phang disagreed with Dr Robers that Ismil’s cognitive functioning was limited. While Dr Phang acknowledged that there would be some problems with cognitive functioning for persons who fall within such a low IQ range, this did not pose any problems with daily functioning. Neither did Ismil have deficient judgment nor a lack of occupational achievement. Dr Phang also disagreed with Dr Ung and Dr Robers that Ismil was vulnerable to suggestions and manipulations and with Dr Ung that it was likely that Ismil’s confessions were false. It would be apposite to observe, parenthetically, that it appears that Dr Phang was not made aware of the precise circumstances of Ismil’s initial confession and his physical condition (see, also, [168]–[170] below).

44. The decision of the High Court

45. [35]

    [35] The following could be regarded as a summary of the main reasons for the Judge’s conclusion that the Prosecution had proven beyond reasonable doubt that both the Appellants should be held to be equally liable for murder pursuant to s 302 read with s 34 of the Penal Code:

46. (a) Ismil’s withdrawal symptoms were mild to, at most, moderate (see the Judgment at [433]). Dr Ung was too willing to accept Ismil’s responses at face value (see the Judgment at [423]). For all the allegations of withdrawal symptoms, Ismil had already begun to outline his defence – that he had accidentally stabbed the Deceased – from the first time he gave a formal statement on 7 May 2005 and he had steered away from mentioning Muhammad’s presence at the scene of the crime initially, which suggested that his mind was not as affected by withdrawal symptoms as was suggested (see the Judgment at [426] and [427]). The emphasis on poor English was a distraction – it was not clear what Ismil wanted to say to Dr Cheong or Dr Phang on his withdrawal symptoms but could not due to his poor English (see the Judgment at [431]).

47. (b) The evidence of family members and fellow inmates did not suggest that Ismil had an acquiescent personality (see the Judgment at [437]). Dr Phang’s evidence was more persuasive than Dr Ung’s evidence of an acquiescent personality (see the Judgment at [438]). Ismil’s evidence that he could not understand questions was not convincing, and his latest position that he was not able to understand about half the contents of his statements indicated that he was street-smart and not acquiescent (see the Judgment at [439] and [441]).

48. (c) Although s 121(3) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) requires a statement of a person examined by a police officer to be signed, s 122(5) of the CPC allows any statement of an accused person, whether oral or in writing, to be admitted if the statement is made to a police officer of the rank of sergeant or above. Thus, the two statements Ismil made to SSI Zainal were admissible (see the Judgment at [454]).

49. (d) The details in the statements provided by Ismil, which suggested that it was likely that he was at the crime scene at the material time (see the Judgment at [462]), carried more weight than the discrepancies (see the Judgment at [463]). Additionally, the statements provided by Muhammad, which incriminated Ismil, were “damning” against Ismil (see the Judgment at [465]).

50. (e) Muhammad mentioning his sole involvement to his previous lawyers, his fellow inmates and his sisters was part of his “plan” to save Ismil (see the Judgment at [467]–[474]). Mr Loh’s statement of 5 September 2005 did not rule out the presence of more than one perpetrator (see the Judgment at [476]). It was also possible that Mr Loh could have missed seeing someone in the flat due to his position in the bedroom (see the Judgment at [477] and [478]).

51. (f) Although it could not be said that Muhammad was the assailant beyond reasonable doubt, it could be said that both the Appellants were involved, and that they were both at the scene of the crime at the material time (see the Judgment at [495]). The confessions of Ismil and the broad consistency in his statements, including his knowledge of some details and his statements on Muhammad’s role, as well as Muhammad’s confessions all placed Ismil at the scene of the crime at the material time (see the Judgment at [495]).

52. (g) A finding as to the identity of the sole assailant would not be required for the operation of s 34 of the Penal Code (see the Judgment at [498]–[499]). There was a plan between the Appellants to rob the Deceased (see the Judgment at [503]). Whether Muhammad or Ismil was the assailant, each must have known that it was likely that the Deceased would have to be killed to avoid any risk of identifying them, and each must have been aware of the attack on the Deceased (see the Judgment at [504]–[506]). Having regard to the law as laid out in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447, it could be concluded that (see the Judgment at [508]):

53. (h) Based on the psychiatric evidence, the defence of diminished responsibility would not be available to either of the Appellants, as they had not been suffering from an abnormality of mind (see the Judgment at [521]).

54. The present appeal

55. [36]

    [36] We first heard this appeal on 21 January 2011. The Prosecution’s position during that hearing was that both the Appellants were guilty of murder committed in furtherance of their common intention to commit robbery. Both Appellants, on the other hand, maintained that it was Muhammad alone who carried out both the robbery and killing. During the course of that hearing, it appeared to us that the Prosecution had not adequately considered various issues that were central to the appeal. We therefore adjourned the hearing to 15 April 2011, and directed the Prosecution to address the court on, inter alia, the following points:

56. (a) Was s 34 of the Penal Code applied correctly by the Judge?

57. (b) If there was only one assailant, what was the position of the other person, ie, the accomplice, in the light of Daniel Vijay s/o Katherasan and others v Public Prosecutor [2010] 4 SLR 1119 (“Daniel Vijay”)?

58. (c) Who was the real assailant in the Prosecution’s view?

59. [37]

    [37] The Prosecution was granted leave to file further written submissions to address the above points, and this was subsequently done on 4 March 2011. The Appellants were also granted leave to respond to the Prosecution’s further written submissions. Counsel for Ismil did so and filed written submissions on 18 March 2011. Counsel for Muhammad confirmed that they would not be filing any written submissions, and that Muhammad’s position was unchanged from the position that he had adopted at the hearing on 21 January 2011.

60. [38]

    [38] The Prosecution’s further written submissions and oral submissions at the hearing on 15 April 2011 revealed that the Prosecution had changed its position yet again. In this regard, the Prosecution, in essence, accepted that the Judge erred in convicting Ismil jointly of murder (see [3] above). However, the Prosecution, as mentioned earlier, submitted that Ismil should not be acquitted completely, but should still be found guilty of an offence, viz, robbery with hurt pursuant to s 394 read with s 34 of the Penal Code. Under this latest position of the Prosecution, Muhammad alone would be guilty of murder. The following is a summary of the final position of parties:

61. (a) Prosecution: Muhammad alone should be found guilty of murder, whereas Ismil should be found guilty of robbery with hurt pursuant to s 394 read with s 34 of the Penal Code;

62. (b) Muhammad: Muhammad was the sole participant in the crime, but he was not guilty of murder as he was entitled to rely on the defence of diminished responsibility; and

63. (c) Ismil: Ismil was not guilty of any offence as he was not present at the scene of the crime and was not involved in either the killing or the robbery.

64. [39]

    [39] In their submissions, both the Prosecution and counsel for the Appellants raised numerous issues of fact and law. In dealing with the issues of fact, we shall adopt the approach set out in ADF v Public Prosecutor and another appeal [2010] 1 SLR 874, where this court stated (at [16]):

65. [40]

    [40] Having said that, we will begin by considering certain pertinent issues of law, before considering the convictions of each of the Appellants in turn.

66. Preliminary legal issues

67. [41]

    [41] The applicable legislation governing criminal procedure for this case is the CPC. Where appropriate, reference will also be made to the Criminal Procedure Code (Act 15 of 2010) (the “CPC 2010”), which came into force on 2 January 2011. Given the several twists and turns in both the Defence’s and the Prosecution’s respective cases, there are four issues of law that we feel should be considered on a preliminary basis. They are:

68. (a) the admissibility of and discretion to exclude procedurally-flawed statements;

69. (b) the treatment of subsequent statements with similar content to an excluded statement;

70. (c) the court’s testing of the veracity of a disputed statement admitted into evidence; and

71. (d) the duty of the Prosecution to the court in relation to the disclosure of relevant material not favourable to the case that it seeks to present.

72. Admissibility and exclusion of procedurally-flawed statements

73. [42]

    [42] Statements recorded by the police from accused persons can be classified into two categories, viz, “long statements” or “investigation statements” under s 121 of the CPC (now s 22 of the CPC 2010) or “cautioned statements” under s 122(6) of the CPC (now s 23 of the CPC 2010) (see Criminal Procedure vol 2 (Tan Yock Lin) (LexisNexis, Looseleaf Ed, 1996, November 2010 Ed) at ch V, para 1905). The power under s 121 of the CPC to examine any person and reduce their statement into writing is one of the powers of investigation that a police officer may exercise in investigating a seizable offence (now an “arrestable offence” under the CPC 2010). Section 121 of the CPC provides:

74. As can be seen, s 121 of the CPC prescribes certain formal requirements for the taking of long statements. However, the section does not state the consequences of non-compliance with these requirements.

75. [43]

    [43] Cautioned statements are statements that are given in response to the notice in writing that is required pursuant to s 122(6) of the CPC (now s 23 of the CPC 2010) once a person is informed that he may be prosecuted for an offence or is charged with an offence. The notice informs the person, inter alia, that if there is any fact that he wishes to rely on in his defence, he should state it as doing so at trial for the first time may render it less likely to be believed. Any statement given by an accused person, whether pursuant to s 121 or s 122(6) of the CPC, to a police officer of or above the rank of sergeant would be admissible pursuant to s 122(5) of the CPC (now s 258 of the CPC 2010), which prescribes the requirement of voluntariness. Section 122(5) of the CPC states:

76. [44]

    [44] As a general rule, voluntary statements from an accused person recorded by a police sergeant (or more senior officer) pursuant to s 121 and/or s 122(6) would be admissible under s 122(5) even if the procedural requirements set out in ss 121 and 122(6) are not met. The Court of Criminal Appeal held in Vasavan Sathiadew & 2 Ors v Public Prosecutor [1992] SGCA 26 (“Sathiadew (CCA)”) that a breach of the signature requirement in s 121(3) would not render a statement inadmissible under s 122(5); it would only affect the weight to be attached to the statement by casting doubt on whether it was actually made. This determination in Sathiadew (CCA) was reached by parity of reasoning with Tsang Yuk Chung v Public Prosecutor [1990] 2 SLR(R) 39 (“Tsang Yuk Chung”), where the court held (at [17]–[20]) that a failure to follow the notice procedure in s 122(6) did not render a statement inadmissible under s 122(5), although it would affect the inferences which could be drawn under s 123(1) of the CPC (now s 261(1) of the CPC 2010) from a failure on the accused person’s part to state his defence upon being cautioned. The principle set out in these cases has been incorporated as Explanation 2(e) of s 258(3) of the CPC 2010.

77. [45]

    [45] If procedural breaches under s 121 or s 122(6) of the CPC of themselves would not render a statement inadmissible, it stands to reason that breaches of the Police General Orders that relate to the recording of statements would also not of themselves render statements inadmissible under s 122(5) of the CPC.

78. [46]

    [46] That having been said, in Public Prosecutor v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 (“Dahalan”), S Rajendran J held (at [26]–[27]) that he had the discretion to refuse to admit an accused person’s statement under s 122(5) of the CPC even if it was voluntarily made without threat, inducement or promise. He appeared to have concluded that he had such a discretion based on the fact that s 122(5) made statements “admissible” without mandating that they be “admitted”. He then proceeded to exercise this discretion to exclude the statement in the case before him – this despite making findings that the statement in question had been involuntarily given, which would therefore have obviated the need to consider any general discretion to exclude voluntary statements. In his view, at the time of recording, the accused had been suffering from severe effects of heroin and Erimin consumption such as to make his statement involuntary, applying the standard set by this court in Garnam Singh v Public Prosecutor [1994] 1 SLR(R) 1044 (“Garnam Singh”) at [31] (see Dahalan at [74]).

79. [47]

    [47] In Dahalan, a police sergeant, one Sergeant Lai Thong Fock (“Sgt Lai”), took a statement from the accused, a drug addict. The accused had consumed heroin and Erimin on the morning that the statement had been recorded. He was interviewed in English without being asked if he wished to speak in Malay. When interviewing the accused, Sgt Lai jotted down the answers in note form on a piece of paper. The statement was not read back to the accused, nor was the accused asked to sign on the paper. Just under four hours later, Sgt Lai wrote an expanded version of the statement in his pocket book, and destroyed the original piece of paper.

80. [48]

    [48] Rajendran J decided to exercise his discretion to exclude the statement based on the fact that (at [86]):

81. (a) the accused was under the effects of Erimin and heroin consumption during the recording (see also [74]–[77]);

82. (b) an interpreter was not made available despite the accused’s lack of proficiency in English (see also [78]); and

83. (c) Sgt Lai had disregarded the procedural requirements in s 121 of the CPC and the Police General Orders in the recording of the statements (see also [79]–[85]).

84. Regarding this last point, Rajendran J distinguished Fung Yuk Shing v Public Prosecutor [1993] 2 SLR(R) 771 (“Fung Yuk Shing”), where a similarly irregular statement was admitted. The written recording of the recording officer in Fung Yuk Shing had been found to be honest and accurate; in contrast the “professionalism of Sgt Lai or the accuracy of his memory or record” was questionable in view of, inter alia, his untruths in court and discrepancies between his evidence and that of another police officer (see Dahalan at [82]).

85. [49]

    [49] Rajendran J, however, acknowledged that mere non-compliance with s 121 or the Police General Orders would not automatically result in inadmissibility, having regard to Public Prosecutor v Mazlan bin Maidun and another [1992] 3 SLR(R) 968 (“Mazlan”) (see Dahalan at [84]). However, he then empathically declared (at [85]):

86. To put Rajendran J’s statement in its factual context, Sgt Lai initially claimed that as a plainclothes officer, he was not expected to carry his pocket book with him; he also did not take the trouble to go up to his office and take his pocket book (see Dahalan at [9]). However, when confronted by evidence that his practice was in direct violation of the relevant provisions in the Police General Orders, he merely claimed to have forgotten about those provisions (see Dahalan at [10]–[12]). By his above statement, Rajendran J seems to have meant that the court would refuse to admit statements taken in such “flagrant” violation of the procedural provisions if no reasonable explanation were offered, although he did not say so explicitly.

87. [50]

    [50] Rajendran J also referred to the case of Kong Weng Chong v Public Prosecutor [1993] 3 SLR(R) 453 (“Kong Weng Chong”) (see Dahalan at [83]). In that case, the Court of Criminal Appeal held (at [27]–[28]) that the grave procedural irregularities in a statement made by the accused meant that it “should not have been accepted” by the trial judge. These irregularities included the fact that the statement was not reduced into writing until about five weeks after it was made. The recording narcotics officers also admitted that important details had been left out of the statement in question, which was furthermore wholly inconsistent with a cautioned statement recorded from the accused on the same day. In Rajendran J’s view, the decision in Kong Weng Chong to reject the statement was an exercise of the discretion to exclude an irregular statement. In our view, however, it is not clear whether the court in Kong Weng Chong was exercising a discretion to exclude an irregular statement or whether it was admitting the statement but giving it no weight.

88. [51]

    [51] In determining whether a residual discretion exists to exclude voluntary statements made by an accused person, it is necessary to consider the observations of the court in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”). To summarise what was an in-depth discussion, the court observed (at [126]) that the principle relied on in certain cases that the court had a discretion to exclude evidence only on the ground that it was obtained in ways unfair to the accused was incompatible with the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”). That principle was ousted, in particular, by s 2(2) of the EA. However, the court further held (at [126]) that the key holding of the House of Lords in Regina v Sang [1980] 1 AC 402 (“Sang”) to the effect that there remained a discretion to exclude any evidence that had more prejudicial effect than probative value is “consistent with the EA and in accordance with the letter and spirit of s 2(2), and is therefore applicable in the Singapore context”.

89. [52]

    [52] Even before Phyllis Tan was decided, the existence of the Sang type of discretion had been endorsed by this court in Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR(R) 377 (“Rayney Wong”) in the following terms (at [27]):

90. In Jeffrey Pinsler SC, Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010) (“Evidence and the Litigation Process”) at ch 10 (which is a reproduction of the article by Jeffrey Pinsler SC, “Whether a Singapore Court has a Discretion to Exclude Evidence Admissible in Criminal Proceedings” (2010) 22 SAcLJ 335), this discretion is regarded as not only approved in Phyllis Tan, but as arising from an inherent jurisdiction of the court to prevent injustice at trial (see Evidence and the Litigation Process at paras 10.20 and 10.24).

91. [53]

    [53] For present purposes, it suffices for us to state that from the recent authorities cited above, it is clear 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 (for convenience, this discretion will be referred to hereafter as the “exclusionary discretion” where appropriate). In our view, the discretion exercised by Rajendran J in Dahalan was none other than this exclusionary discretion. This is evident from [74], [77], [78] and [82] of Dahalan, where Rajendran J’s discussion focused on the effect that certain conditions had on the evidential value of the statement’s content. In his view, the powerful effects of drugs on the accused’s mind, the lack of necessary language interpretation and the destruction of the original record of the statement coupled with Sgt Lai’s unreliability as a witness all combined to make it “unsafe” to admit the statement (see [86]). The approach of the court in Kong Weng Chong, in so far as it also focused on the poor probative value of the accused’s statement in the light of the facts surrounding its recording, should also be regarded as consistent with the existence and correct exercise of the exclusionary discretion.

92. [54]

    [54] Other examples of cases where the exclusionary discretion appears to have been exercised include Public Prosecutor v Vasavan Sathiadew and others [1989] 2 SLR(R) 357 (“Sathiadew (HC)”), Public Prosecutor v Syed Abdul Aziz Bin Syed Mohd Noor and Another [1992] SGHC 197 and Public Prosecutor v Hanafiah bin Bedullah [1993] SGHC 211, where statements of accused persons were not admitted due to the absence of language interpretation (or sufficiently competent language interpretation) at their recording. These exclusions were not disturbed on appeal (see Sathiadew (CCA), Syed Abdul Aziz and another v Public Prosecutor [1993] 3 SLR(R) 1 and Hanafiah bin Bedullah v Public Prosecutor [1994] 1 SLR(R) 101).

93. [55]

    [55] In our view, there is no reason why a discretion to exclude voluntary statements from accused persons should not exist where the prejudicial effect of the evidence exceeds its probative value. For one, where prejudicial effect exceeds the probative value, the very reliability of the statement sought to be admitted is questionable. It appears to us that this is an area of judicial discretion that Parliament has left to the courts. In this regard, we agree with Rajendran J’s perceptive interpretation of s 122(5) of the CPC in Dahalan (see [46] above). Probative value is, in other words, the crucial factor vis-à-vis admissibility or non-admissibility of statements from accused persons under the CPC. This is already the settled position under the EA, as evident from the following passage from Phyllis Tan at [127]:

94. [56]

    [56] Plainly, procedural irregularities may be a cause for a finding that a statement’s prejudicial effect outweighs its probative value. As stated in Halsbury’s Laws of Singapore vol 10 (LexisNexis, 2006 Reissue) at para 120.138:

95. It cannot be denied that the rules prescribed by the CPC for the recording of statements are in existence to provide a safeguard as to reliability. The same can be said in respect to the Police General Orders that pertain to the recording of statements. As stated in Dahalan by Rajendran J (at [84]):

96. In our view, Rajendran J was articulating a salutary principle. The Police General Orders, especially, set out basic but essential practices for police officers – including those who are investigating officers. When fully complied with, the Police General Orders 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 Police General Orders, would necessarily render such statements less reliable.

97. [57]

    [57] In our criminal justice system, accused persons are entitled, as a constitutional right, to have access to counsel – but this entitlement does not extend to immediate access (see Jasbir Singh and another v Public Prosecutor [1994] 1 SLR(R) 782 at [45]–[49]). Even after the accused engages counsel (assuming he does), there is no legal rule requiring the police to let counsel be present during subsequent interviews with the accused while investigations are being carried out. In fact, an adverse inference may be drawn against the accused under s 123(1) of the CPC for remaining silent at his interview on the ground that he wishes to take legal advice before answering a question (see Yap Giau Beng Terence v Public Prosecutor [1998] 2 SLR(R) 855 at [38]). Plainly, in Singapore, the law provides police officers with great freedom and latitude to exercise their comprehensive and potent powers of interrogation in the course of investigations. This means that the evidential reliability of any written statements taken from accused persons rests greatly on the conscientiousness with which the police investigators who conduct the process of examination and recording observe the prescribed safeguards.

98. [58]

    [58] It also appears to be the case that written statements taken by the police are often given more weight by finders of fact as compared to most other kinds of evidence. This is because formal statements taken by the police have the aura of reliability that comes from their being taken (as would be normally, and correctly, assumed) under a set of strict procedures strictly observed by a trustworthy officer well-trained in investigative techniques. This aura is further enhanced by the admissibility requirement in s 122(5) that the recording police officer must be of the rank of sergeant or above. It is, it may be said, statutorily assumed that such senior police officers are competent and will discharge their obligations conscientiously. All in all, it seems that public policy is in favour of trusting the integrity of the police, and this gives them a certain freedom to conduct their investigations more effectively and efficiently, statement-taking included. However, such an approach comes with certain inherent risks.

99. [59]

    [59] There is always a small but real possibility that an overzealous police officer who believes that a suspect is guilty will decide, perhaps half-consciously, that strict compliance with the procedural requirements for statement-taking may contribute to a factually guilty offender being let off. He may not go so far as to extract an incriminatory statement by threat, inducement or promise, or a statement that is otherwise involuntary. All that is required for a miscarriage of justice to occur is for such a police officer to record the statement with embellishments, adding nothing more than a few carefully-chosen words to the suspect’s own account. If the statement is not read back or signed soon after by the suspect (with proper interpretation where appropriate), there is no assurance that the statement faithfully reflects what he had actually disclosed. Alternatively, a police officer might simply be indolent, leaving the recording of the statement to well after the examination. His memory of the interview having faded, such an officer might fill in the gaps based on his own views about the suspect’s guilt. Such questionable statements could, standing alone, form the basis for wrongful convictions even for capital offences if an accused, disadvantaged by the lapse of time and memory, is unable to convince the court that he did not say what appears in writing to be his words. The salutary requirements of the CPC and the Police General Orders, especially those requiring statements to be promptly reduced to writing, immediately read back to their maker, and corrected if necessary and signed, are the only prescribed safeguards standing in the way of such an unacceptable possibility.

100. [60]

     [60] Police investigators are aware when they record statements that they are likely to be tendered as evidence before a court and that there is therefore an uncompromising need for accuracy and reliability. The objective of the relevant provisions in the CPC and the Police General Orders is to ensure that both these twin objectives are met in every investigation. For this reason, as well as what we have articulated earlier, we think that a court should take a firm approach in considering its exercise of the exclusionary discretion in relation to statements recorded by the police in violation of the relevant requirements of the CPC and the Police General Orders (or other applicable legal requirements). This means that the court should not be slow to exclude statements on the basis that the breach of the relevant provisions in the CPC and the Police General Orders has caused the prejudicial value of the statement to outweigh its probative value.

101. [61]

     [61] If the Prosecution seeks to admit a statement recorded in breach of the relevant provisions in the CPC and/or the Police General Orders, it will bear the burden of establishing that the probative value of the statement outweighs its prejudicial effect. The Prosecution can discharge this burden if, for instance, some reasonable explanation is given for the irregularity such that the court can find that the probative value of the statement exceeds its prejudicial effect.

102. [62]

     [62] Statements taken in deliberate or reckless non-compliance (or “flagrant” violation, to adopt the words of Rajendran J in Dahalan at [85]) 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. This would be because the bona fides of a recording police officer who deliberately breaches the requirements or knowingly disregards them would necessarily be more questionable. Further, such conduct should not be encouraged. The court should be wary of accepting any explanation by way of ignorance of the correct procedures, considering that s 122(5) imposes an admissibility requirement that the recording police officer is to be at least of the rank of sergeant (a rank implying a certain level of responsibility and competence). That having been said, the court should always evaluate probative value and prejudicial effect on the facts of each scenario.

103. [63]

     [63] Where there is a dispute of fact regarding whether the statement was indeed irregularly recorded, or where the Prosecution wishes to adduce evidence to explain an irregularity, a trial-within-a-trial should be held. This is in accordance with the general principle stated in Beh Chai Hock v Public Prosecutor [1996] 3 SLR(R) 112 (“Beh Chai Hock”) by Yong Pung How CJ (at [25]):

104. [64]

     [64] Because an objection to admission of a statement based on procedural irregularity in recording seems similar to an allegation that the statement was partly or wholly fabricated, the following hypothetical scenario described in Seeraj Ajodha v The State [1982] 1 AC 204 (“Ajodha”) at 222 by Lord Bridge of Harwich should be considered briefly:

105. In our view, where there is evidence of serious procedural irregularity that raises the issue of inadmissibility, a trial-within-a-trial ought to be held if there is a relevant dispute of fact to be resolved. However, where a statement has been seemingly recorded in accordance with procedure and the allegation is simply that part or all of it was fabricated without the maker’s knowledge, Lord Bridge’s views should apply and no trial-within-a-trial need be held. Courts should be careful to distinguish between these two situations with the assistance of counsel.

106. [65]

     [65] For completeness, we would caution defence counsel against burdening the court with unmeritorious technical defences. Only serious irregularities, meaning those that materially affect the evidential value of a voluntary statement, will suffice to cause the court to exercise the exclusionary discretion. Examples of irregularities that would not suffice can be drawn from the following cases:

107. (a) In Sathiadew (CCA), the statement of one of the appellants had been read back to him by the recording officer but the recording officer had failed to obtain his signature. That being the only omission, the Court of Criminal Appeal held that the trial court was entitled to admit the statement. We observe that the finding, essentially, was that the irregularity did not greatly impact the probative value of the statement on the facts.

108. (b) In Tsang Yuk Chung, the question raised was whether a statement would be inadmissible due only to a failure on the part of the recording police officer to give a notice to the maker in the form stated in s 122(6) of the CPC. The Court of Criminal Appeal held that the trial court was entitled to admit the statement, as, inter alia, the admission of the statement was favourable to the appellant’s case or, at least, did no damage to it. We observe that this meant that the prejudicial effect of the statement was low.

109. (c) In Mazlan, there was a failure to inform the maker of a statement of his right against self-incrimination under s 121(2) of the CPC. It was indicated by this court that such an irregularity, without more, was in fact irrelevant to both the admissibility and the evidential value of the statement.

110. (d) In Foong Seow Ngui and others v Public Prosecutor [1995] 3 SLR(R) 254 (“Foong Seow Ngui”), one objection raised was that the recording officer failed to indicate at the end of the statement that the statement had been read over to the accused and that the accused had been offered the opportunity to make corrections. In this regard, this court stated (at [44]):

111. [66]

     [66] In support of the decisions in Tsang Yuk Chung and Mazlan, we would further add that a failure to be cautioned under s 122(6) of the CPC or to be informed of rights under s 121(2) of the CPC may affect what a person chooses to say in his statement, but it does not affect the accuracy or reliability or voluntariness of what he actually says. Such failures therefore should not, of themselves, form grounds for exclusion of a statement under the exercise of the exclusionary discretion. In relation to the decision in Foong Seow Ngui, we would add that, strictly speaking, the inclusion of a clause in a statement that the requirements of s 121(3) of the CPC have been fulfilled is helpful but not essential under that provision. Even if the omission of such a clause is in fact an irregularity, if the substantive requirements of s 121(3) have been complied with, as it was in that case, the probative value of the statement would not be affected by such an omission.

112. [67]

     [67] It remains for us to clarify that even if a trial court has wrongly exercised (or omitted to exercise) the exclusionary discretion, an appellate court will not alter the decision of the trial court unless the improper exercise of the exclusionary discretion occasions a miscarriage of justice (see s 169 of the EA and s 396(c) of the CPC (now s 423(c) of the CPC 2010)). The decision of this court in Fung Yuk Shing should be considered in this regard. The recording police officer in that case had taken down the appellant’s statement on a piece of paper but did not show the paper to him or allow him to sign it. The next day, the officer transcribed the contents into his pocket book. The pocket book was produced and admitted at the trial but not the original piece of paper. This court stated that the admission of the pocket book entries did not “occasion the appellant such prejudice as to deprive him of a fair trial” (at [14]). The failure to produce the original paper had not prejudiced the appellant as the officer was made available for cross-examination and the trial judge had found his account of the interrogation to be credible. Furthermore, the trial judge did not ultimately rely on the contents of the pocket book as evidence against the appellant.

113. [68]

     [68] Before moving on to the next preliminary legal issue to be considered, we emphasise 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 officers of other enforcement agencies) or the Prosecution. The importance of distinguishing an evidential discretion from a disciplinary function was highlighted by the courts in Sang at 436 and Mazlan at [23] (see also Evidence and the Litigation Process at paras 5.38, 10.07 and 10.11). In the light of Rayney Wong and Phyllis Tan (see [52] and [55] above respectively), courts also should 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, a vigilant emphasis on the procedural requirements in the recording of statements can have a positive effect on the quality of such evidence generally. By making it clear that non-compliance with the required procedures could actually weaken the Prosecution’s case against an accused person, we hope to remove the incentive for such non-compliance on the part of police officers. This will help ensure that all evidence in the form of written statements coming before the court will be as reliable as possible.

114. Treatment of subsequent statements with similar content to an excluded statement

115. [69]

     [69] Given the principles laid down above, the question arises as to whether statements recorded subsequent to an excluded statement can be admitted and/or given weight, especially if they contain similar content. Such statements will be referred to as “subsequent statements” (or “subsequent statement”) for convenience where appropriate.

116. [70]

     [70] Section 28 of the EA, which was repealed and replaced by a similar provision in the CPC 2010, viz, s 258(4), previously provided for the admissibility of confessions that would be otherwise inadmissible due to what could be regarded as an inducement, threat or promise. Section 28 of the EA stated:

117. To our knowledge, the only case that has applied this section would be Public Prosecutor v Somporn Chinphakdee [1994] SGHC 209. One application of this section would be where a person makes two similar confessions in two statements, the first of which is caused by inducement, threat or promise but the second of which is made after the inducement, threat or promise is fully removed. In such cases, although the subsequent statement would be admissible, the fact that it is similar to an earlier statement should lead the court to be especially vigilant in inquiring whether the effect of the inducement, threat or promise was really removed.

118. [71]

     [71] In the context of voluntary statements being excluded due to their prejudicial effect being greater than their probative value as a result of serious procedural irregularity, different considerations should apply. For a subsequent statement that follows an involuntary statement, the question before the court is whether the subsequent statement is untainted by involuntariness. For a subsequent statement that follows a voluntary but irregularly recorded statement, the real concern is whether what the maker said in the subsequent statement was accurately represented in writing. If all the applicable procedural requirements are fully complied with and the subsequent statement is voluntary, admission should generally be allowed. However, where the subsequent statement contains similar content to a previous excluded statement, caution ought to be exercised. It may, for instance, be necessary for the court to satisfy itself that the fear of being inconsistent with the previous statement did not act as an inducement on the maker such as to render the subsequent statement involuntary.

119. [72]

     [72] Police work, of course, has to be acknowledged as being often unpleasant, stressful, complex and not infrequently punctuated by unpredictable developments. An accused person’s statement may inadvertently turn out to have been affected by serious irregularities in recording. Once this is discovered, a conscientious investigating officer need not call off the investigation. He may proceed to have a subsequent statement taken from the accused as long as he ensures that it is voluntary, and this will be admissible. In addition, he may proceed to find other material or witness evidence relevant to the case based on what was revealed by the accused person in the first statement. Under s 27 of the EA (which was repealed and replaced by a similar provision in the CPC 2010, viz, s 258(6)(c)), any fact discovered in consequence of information obtained through a statement may be proved, even if the statement in question may be inadmissible of itself (see the application of this section in Public Prosecutor v Chin Moi Moi [1994] 3 SLR(R) 924).

120. Testing the veracity of a disputed statement admitted into evidence

121. [73]

     [73] The issue of when and how a court should test the veracity of a statement that has been admitted into evidence but whose contents are disputed must also be briefly considered. Just like any other form of evidence, the truth of an admitted statement’s contents (and therefore the weight to be given to that statement) is to be evaluated on an ongoing basis throughout the trial. This should be done regardless of whether its truth is disputed by its maker, but especially if it is so disputed. The court and counsel should be bear in mind that even if a statement has, standing alone, more probative value than prejudicial effect (and is therefore admitted), this does not mean that its contents should, as a matter of course, be given some or any weight after being assessed alongside all the other evidence in the case. The standard tools available to the court can all be used for this assessment, including examination of internal consistency, corroborating evidence, contradictory evidence, evaluation of the credibility of the witnesses, and so on and so forth.

122. [74]

     [74] Confessions admitted into evidence that are partly or wholly retracted by the maker should be the subject of special care. This, as well as other general principles concerning retracted statements, was enunciated in Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45 (“Jagatheesan”), in the following passage (at [84]–[87]):

123. [75]

     [75] All that we need to emphasise for present purposes, however, is that courts should exercise particular caution when relying on uncorroborated confessions that have for good reason (or reasons) been withdrawn by their makers.

124. The Prosecution’s duty to the court in relation to disclosure of relevant material not favourable to the case it seeks to present

125. [76]

     [76] Before beginning any discussion on the Prosecution’s duties of disclosure in a criminal context, an important distinction needs to be made between (a) material which forms part of the Prosecution’s case and will be adduced as evidence at trial and (b) other material in the possession of the Prosecution which will not be relied on at trial. This latter category is commonly referred to as “unused material” (see, eg, Commonwealth Secretariat, “Prosecution Disclosure Obligations” (2008) 6(2) JCLLE 251 at para 14).

126. The Prosecution’s duty of disclosure under the CPC and the CPC 2010

127. [77]

     [77] Under the CPC, material that the Prosecution intends to rely on would, in practice, be disclosed to the defence as part of the Preliminary Inquiry proceedings for the case in question (see Chan Sek Keong, “Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading the Law and Lawyers into the New Millennium @ 2020 (Butterworths, 2000) at p 46). Preliminary inquiry proceedings, however, would only take place for cases prosecuted in the High Court.

128. [78]

     [78] Following the reforms in the CPC 2010, “criminal case disclosure” procedures were introduced for criminal matters in the Subordinate Courts (see Division 2 of Part IX of the CPC 2010). If an accused does not wish to plead guilty to a charge in the Subordinate Courts, a “criminal case disclosure conference” (or “CCDC” for short) will be held, with the Prosecution having to file and serve a “Case for the Prosecution” no later than two weeks from the CCDC (or the date to which the CCDC is adjourned to) (see s 161(2) of the CPC 2010). Section 162 of the CPC 2010 sets out the requirements for the Case for the Prosecution as follows:

129. [79]

     [79] Under the CPC 2010, for High Court trials, committal hearings have replaced preliminary inquiry proceedings with the new procedures being found in Division 2 of Part X. Under the new procedures, if an accused intends to plead guilty to a capital offence or wishes to claim trial, the Prosecution must file and serve its Case for the Prosecution not less than seven days before the date fixed at the CCDC for the committal hearing (see s 176(3)(b)). Section 176(4) of the CPC 2010 sets out the requirements for the Case for the Prosecution as follows:

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