By Tan Shi Hui Elena, Loo Tze Ting Dorothy Ann, Lim Min Li Amanda and Tan Pei Wei.
Section 261 of the Criminal Procedure Code gives the Courts the ability to draw adverse inferences from an accused’s failure to mention any fact that he may later rely on for his defence, after he has either been charged or informed that he may be prosecuted for an offence. Such inferences are then “capable of amounting to… corroboration of any evidence given against the accused”.
The prejudicial effect of s 261 stems from the drawing of an adverse inference when the accused person is unfamiliar with the law. To achieve a more holistic understanding of s 261, this article will explore the rationale behind its enactment and analyse the impediments to fairness that have eventuated as a result of its implementation. It is humbly submitted that s 261 is in need of reform in order to better achieve transparency and clarify the lay misconception of what s 261 entails.
Background to s 261
The merits of s 261 were articulated by then-Minister of Law Mr E W Barker in the Criminal Procedure Code (Amendment) Bill of 1975. Mr Barker stated that the non-existence of s 261 would lead to hardened criminals taking advantage of their right to remain silent and to impede police investigations.” In his view, it would have the negative impact of allowing criminals who purposefully hamper police investigations to be eventually acquitted on formalistic grounds. This wariness against procedural abuse by accused persons was mirrored by Yong Pung How CJ (as he then was) in Yap Giau Beng Terence v Public Prosecutor, where the learned judge held that the “whole purpose of [s 261] is to compel the accused to outline the main aspects of his defence immediately upon being charged so as to guard against the accused raising defences at trial which are merely afterthoughts.”
However, it is noteworthy that s 261 has its detractors. Specifically, Mr. N Govindasamy hotly contested the implementation of s 261 in the 1975 Criminal Procedure Code (Amendment) Bill. He pointed out that the provision effectively forces the accused to “make up his mind immediately what line of defence he is going to take during trial” and to “inform the interrogator the facts he is going to rely on for his defence … before he has an opportunity to consult legal counsel”. This concern is exacerbated by the relative power imbalance between officers of the law and accused persons, which will only be more pronounced when according these officers the ability to use an accused’s lack of understanding against him.
The Limited Role of Reasonableness
Beyond the relative power imbalance between investigating officers and accused persons, the standard of reasonableness which the Courts use to determine whether adverse inferences should be drawn from an accused person’s silence regarding his defence is also limited in protecting the position of legally ignorant accused persons.
Including an element of reasonableness allows the Court to consider the totality of circumstances that may impact the accused’s ability to exercise discretion as to the disclosure of his defence. This is prima facie intended to be a purposeful step towards mitigating substantive injustice, as was evinced in cases like Kwek Seow Hock v Public Prosecutor and Lim Lye Huat Benny v Public Prosecutor where the courts considered how cautioned statements were recorded “at an unearthly time where the accused had been too hungry and tired to think of his defence”, and how “the accused was suffering from withdrawal symptoms and probably had not rested or been fed” to conclude that the accused’s silence should not be construed against him given his impaired decision-making abilities.
However, the effectiveness of the reasonableness test in achieving substantive justice is premised upon the inherently false presumption that accused persons, even under circumstances in which their judgments are not impaired, are able to determine what facts would later be material to their defence. Although it is easy for a judge to discern the potential importance of facts in relation to a defence, the tendency to weigh with golden scales what an accused person should have done must be avoided, particularly since the average person lacks the legal knowledge necessary to inform their judgment as to which facts would be considered ‘material’ and hence must be disclosed.
Furthermore, the assumption that defences raised by the accused at trial are less legitimate because of a prior failure to disclose them in cautioned statements is not a fair one to make. Such a presumption fails to take into account how accused persons could be afraid of disclosing material facts under the circumstances of interrogation for fear of exacerbating a high-pressure situation or inducing the imposition of additional liability, which they may consider more detrimental than a potentially adverse inference being drawn later in court. Even if the presumption holds and an accused’s silence indicates a measure of falsity in the defence, it would be in the interests of fair procedure that the prosecution should definitively prove the illegitimacy of such a defence, rather than to accord the courts such latitude in dismissing it. Even in a judicial system which prioritises crime control, emphasis should not merely be that guilty persons be convicted, but also that they be convicted only after being found, in a definitive way, to be guilty.
Undue Extension to s 22
Admittedly, safeguards against procedural abuse by the police do exist. There are express provisions which provide that statements taken where the requisite notice is not served or read to the accused are inadmissible in court as evidence. However, this procedural safeguard is inconsistently applied, as evidenced in several local cases. In Tsang Yuk Chung v Public Prosecutor, the defence counsel argued that the investigating officer who recorded the accused’s statement had not complied with the requirements of s 23, in that he had not explained the charge and the statutorily prescribed warning to the appellant. Though the court found that the officer had complied with the provisions on the facts, it went on to elaborate that non-compliance would not have rendered the statement inadmissible in any case. Rather, non-compliance would only factor into the court’s consideration of what adverse inferences, if any, should be drawn from the failure of the accused to mention key facts. In essence, this pronouncement renders the safeguard offered by the provision ineffective, given that situations may arise wherein a statement could be admissible and adverse inferences drawn from an accused’s silence in such a statement, despite the accused’s lack of awareness of such ramifications. In Muhammad bin Kadar v Public Prosecutor, the court similarly held that “breach of [criminal] procedure has no effect on admissibility unless it also engages the voluntariness rule”, evincing arguably undue flexibility towards the admissibility of evidence at trial.
Furthermore, the requirement of a warning is rendered ineffectual given that the Court of Appeal has extended the court’s right to draw adverse inferences to pre-charge questioning under s 22 of the Criminal Procedure Code as well.
This was seen in the cases of Lim Lye Huat Benny and Kwek Seow Hock where the defences that the appellants raised at trial were rejected partly because the trial judges drew adverse inferences against them for omitting their defences in statements given under s 22 (i.e. during pre-charge questioning). This conflicts with the explicit stipulation in s 261 that an adverse inference should only be drawn where the accused fails to mention a matter relevant to his defence “on being charged with an offence, or informed… that he may be prosecuted for an offence.” These cases demonstrate how the police might evade having to warn an accused person of the consequences of his silence as required under s 23(1), simply by questioning the accused under s 22, which does not require the provision of such a warning. This practice was not only condoned by the Court of Appeal in the aforementioned cases; it was also explicitly made legal in 2010 when s 22 was amended to indicate its applicability even after “that person [being questioned] or anyone else is charged with an offence in connection with the case.”
These decisions could perhaps be understood as cases where the accused had already been sufficiently warned of the consequences of their silence since the taking of their cautioned statements preceded those made under s 22. However, it is submitted that fresh warnings should be given to the accused before any statement is made to ensure that the accused person is made cognizant of possible ramifications of remaining silent. It is undoubtedly unfair to draw an adverse inference against the accused without warning him of the consequences; indeed, one of the arguments for s 23 in 1976 was that the accused would not be “unfairly [prejudiced]… he will be informed of the consequences of remaining silent and therefore the risks”. Although statements may possibly be taken in such short succession that repeating the warning contained in s 23(1) would be redundant, requiring the issuance of a fresh warning would be far better than attempting the inherently arbitrary exercise of delimiting how much time can transpire between statements before requiring a fresh warning.
Whilst it may have been that the appellants in the two aforementioned cases had already been charged, the Court of Appeal in Kwek Seow Hock did not restrict the drawing of an adverse inference as such. Instead, they held that an adverse inference can be drawn as long as the accused did not adduce evidence of his defence when he “believes he is not guilty of an offence he might be charged with” (emphasis added). Although the Court of Appeal was not making a definitive pronouncement of the law, we submit that this statement could potentially be construed as lending itself to a wider range of circumstances than those provided for in s 261, i.e. when the accused has been charged or informed that he may be prosecuted for an offence. The undesirability of this extension of s 261 to pre-charge questioning is reflected by the numerous objections it faced in 1976 when the Select Committee sought to include it in the Criminal Procedure Code (Amendment) Bill. The clause was finally amended to exclude such an extension because the Committee “appreciated” that suspects “[could] not be expected to state facts on which he intends to rely in his defence in court if he does not know on what charge he will be tried eventually”. It is submitted that such an extension is greatly unwelcome as it imposes a burden on the accused far heavier than any layperson can handle.
Ultimately, much uncertainty is imbued into pre-trial proceedings through the retention of s 261. Although mitigating measures such as the reasonableness test and express restrictions on the ambit of the courts to apply this discretion exist, they are ultimately inadequate in alleviating concerns of undue leverage against the relatively powerless and uneducated accused. As such, this article concludes that s 261, should it be retained, must have the contradictory or inherently problematic areas surrounding it clarified by way of legislative or judicial reform.
Appendix A: Relevant Provisions Discussed
- Power to examine witnesses
(1) In conducting an investigation under this Part, a police officer may examine orally any person who appears to be acquainted with any of the facts and circumstances of the case —
- whether before or after that person or anyone else is charged with an offence in connection with the case; and
- whether or not that person is to be called as a witness in any inquiry, trial, or other proceeding under this Code in connection with the case.
(2) The person examined shall be bound to state truly what he knows of the facts and circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture.
(3) A statement made by any person examined under this section must —
- be in writing;
- be read over to him;
- if he does not understand English, be interpreted for him in a language that he understands; and
- be signed by him.
- Cautioned statements
(1) If, during an investigation, a person (referred to in this section as the accused) is charged with an offence or informed by a police officer or any other person charged with the duty of investigating offences or charging offenders that he may be prosecuted for an offence, he must be served with and have read to him a notice in writing as follows:
“You have been charged with [or informed that you may be prosecuted for] — (set out the charge). Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”.
(2) If an accused, after the notice under subsection (1) is read to him —
- remains silent; or
- says or does anything which intimates his refusal to give a statement, the fact of his remaining silent or his refusal to give a statement or his other action must be recorded.
(3) A statement made by an accused after the notice under subsection (1) is read to him must —
- be in writing;
- be read over to him;
- if he does not understand English, be interpreted for him in a language that he understands; and
- be signed by him.
(4) No statement made by an accused in answer to a notice read to him under subsection (1) shall be construed as a statement caused by any threat, inducement or promise as is described in section 258(3), if it is otherwise voluntary.
(5) A copy of a statement recorded under this section must be given to the accused at the end of the recording of such statement.
- Inferences from accused’s silence
(1) Where in any criminal proceeding evidence is given that the accused on being charged with an offence, or informed by a police officer or any other person charged with the duty of investigating offences that he may be prosecuted for an offence, failed to mention any fact which he subsequently relies on in his defence, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, the court may in determining —
- whether to commit the accused for trial;
- whether there is a case to answer; and
- whether the accused is guilty of the offence charged, draw such inferences from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(2) Subsection (1) does not —
- prejudice the admissibility in criminal proceedings of evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct for which he is charged, in so far as evidence of this would be admissible apart from that subsection; or
- preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from that subsection.
 This provision was re-numbered in 2012; it was previously s 123 in the 1985 Rev Ed.
  SGHC 232;  2 SLR(R) 855.
  SGCA 12;  3 SLR 157.
  SGCA 80;  3 SLR(R) 689.
 Kwek Seow Hock, .
 Lim Lye Huat Benny, .
 Report of the Select Committee on the Criminal Procedure Code (Amendment) Bill (1976) Appendix II, at p A14.
 CPC (Cap 68, 2012 Rev Ed Sing), s 23.
  3 MLJ 264.
 CPC (Cap 68, 1985 Rev Ed Sing), s 122(6), which is substantially similar to s 23(1).
  SGCA 32;  3 SLR 1205.
 Previously s 121 in the CPC (Cap 68, 1985 Rev Ed Sing).
 In Kwek Seow Hock the cautioned statement was taken on 20 July 2007 whereas his (now) s 22 statements were taken on 25 July 2007. In Lim, the cautioned statement was taken on 18 February 1995 whereas the s 22 statements were taken on 21 February 1995.
 Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010) at p 175.
 Report of the Select Committee on the Criminal Procedure Code (Amendment) Bill (1976) Appendix II, at p A2
 Ibid., at .
 Report of the Select Committee on the Criminal Procedure Code (Amendment) Bill (1976) Appendix II, at p D2.