SILENCE IS GOLDEN:
When Does This Hold True During Investigations?

July 2020

Introduction

In Singapore, there is a statutory right against self-incrimination. A person being investigated need not say anything that may expose him to a criminal charge, penalty or forfeiture. However, at the same time, a person should state a defence as soon as possible, such as at the point in time of investigations, otherwise an adverse inference may be drawn from raising a defence at a later stage.

In this article, we discuss the law on the right against self-incrimination and the law on when an adverse inference may be drawn against a person staying silent. We also provide a list of practical considerations when a person is being investigated in deciding whether to remain silent.

DON’T SPEAK:
Right Against Self-Incrimination

The right not to self-incriminate refers to the right to remain silent during an investigation when the answer required might expose a person to criminal sanctions.

Statutory Right Under Section 22 of the Criminal Procedure Code

In Singapore, the statutory right not to self-incriminate stems from Section 22 of the Criminal Procedure Code (Chapter 68) (the “CPC”), which states, inter alia, that:

“Power to examine witnesses

(1) In conducting an investigation under this Part, a police officer, or a forensic specialist acting in the course of his duty as such in accordance with the written authorisation of the Commissioner under the Police Force Act (Cap. 235) and the lawful directions of the police officer or law enforcement officer he assists, may examine orally any person who appears to be acquainted with any of the facts and circumstances of the case —
(a) whether before or after that person or anyone else is charged with an offence in connection with the case; and
(b) whether or not that person is to be called as a witness in any inquiry, trial, or other proceeding under this Code in connection with the case.

(2) The person examined shall be bound to state truly what he knows of the facts and circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture.”

(Emphasis added)

Based on a plain reading, Section 22 of the CPC gives a person under investigation the right to refuse to provide answers that might expose him to criminal sanctions (Public Prosecutor v Wham Kwok Han Jolovan [2019] SGMC 21 at [24]).

Everybody Talks: Limits of the Right Against Self-Incrimination

This right against self-incrimination is limited to providing answers that have a tendency to incriminate the person being asked, and does not allow the person to refuse to answer general questions to the extent that the answers could not have incriminated him in any way (Public Prosecutor v Yan Jun [2019] SGMC 17 at [49]).

A person does not have a right to be informed of his right to remain silent, but if the police tells him that he is bound to answer truthfully everything he knows, it affects the voluntariness of the statement, and renders the statement inadmissible (See PP v Mazlan bin Maidun [1992] 3 SLR(R) 968, [1992] SGCA 90 at [37]). However, practically, it would be difficult to mount a challenge on the voluntariness of a statement alone by alleging that the police officer had told a person that he is bound to answer truthfully everything he knows.

Having said that, if a person has willingly chosen to make a self-incriminatory statement, it does not violate the right against self-incrimination to require that he signs the statement (Wham Kwok Han Jolovan v Public Prosecutor [2020] 3 SLR 1180 at [64]). Therefore, once a person makes a statement, there is no basis for a person to refuse to sign the statement merely because he subsequently realises that the contents of his statement is against his interest (Public Prosecutor v Ng Chye Huay [2017] SGMC 42 at [89]).

Do You Say It Best (Or Not) When You Say Nothing At All?

When a person has elected to stay silent, the courts have the power to draw adverser inference against the person if his defence is raised belatedly.

Court’s power to draw an adverse inference under Section 261 of the CPC

Pursuant to section 23 of the CPC, at the time of being charged, when the accused is giving a “cautioned statement” to the police, the accused is warned that if the accused fails to mention any fact or matter in the accused’s defence at the time of recording the statement, the judge may be less likely to accept that fact or matter which is subsequently revealed at trial. This means that, at the time of being charged, the accused should make sure that any exculpating circumstances and evidence are not omitted in the statement to police.

Under Section 261 of the CPC, it is expressly stated that the court has the power to draw inference from the silence or other reaction of the accused, apart from the power to draw adverse inference from the accused’s failure to mention any exculpating circumstances in a cautioned statement.

Nonetheless, in Kwek Seow Hock v Public Prosecutor [2011] 3 SLR 157, the Singapore Court of Appeal found that generally no adverse inference may be drawn against a person for failing to mention any incriminating facts or circumstances, while the failure to mention exculpatory facts and circumstances can be a ground for the court to find the exculpatory facts and circumstances less plausible. This means that, the refusal to provide incriminating answers, in itself, is not a ground for the court to draw an adverse inference, but the same does not apply to exculpating circumstances.

Practical Considerations In Deciding Whether To Remain Silent

In deciding whether to remain silent when questioned by the police, a person should first consider whether the answer is incriminating or exculpating, and can consider adopting the following guidelines:

(a) Should the answer be exculpating, i.e. relates to a defence or a mitigating circumstance, the person should make sure that it is highlighted to the police’s attention at the earliest stage possible.

(b) Should the answer be incriminating, i.e. where the answer may increase the culpability of the person and/or expose him to criminal sanctions, the person has a right to remain silent. Nevertheless, the person should consider if remaining silent is in his interest, taking into account the amount of evidence available to the court to draw its conclusions from. If the evidence available is so overbearing that the court will inevitably conclude an incriminating fact against the person, the person might be in a better position to be cooperative and provide an answer accordingly at an earlier stage.

(c) When the situation is more intricate, such that the person is unsure if an answer will be incriminating or exculpating, the person should keep in mind his right not to self-incriminate and be careful and considerate as to the amount of information volunteered to the police.

(d) In any event, the person should keep in mind that giving false statements to the police is an offence under the Penal Code (Chapter 224), and should avoid doing so at all times.

Authors

Tito Isaac
Managing Partner
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[email protected]

Chong Yi Mei
Senior Associate
Dispute Resolution
+65 6730 6017
[email protected]aw.com

Hariz Lee
Senior Associate
Dispute Resolution
+65 6730 6008
[email protected]

Ning Jie
Associate
Dispute Resolution
+65 6730 6084
[email protected]

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