Admission

Sec. 17(1): An admission is a statement which suggests any inference as to the fact in issue or
relevant fact.
-

The inference could be an inference of guilt, liability, non-guilt, or non-liability of a

person.

Sec. 18: A person whose statement may amount to an admission with the meaning of Sec. 17,
and is thus, relevant and admissible is:
-

A party to a proceeding (Sec. 18(1): The person can be a plaintiff or defendant to the
case.

An authorised agent (Sec. 18(1)): An agent representing a principal in a transaction by

virtue of the authority given to him, either expressly or impliedly by the principal.
- An admission made by an agent in the course of his business, and within the
scope of his authority, may then be admissible as against the principal.
- Teh Eok Kee v Tan Chiah Hock: Admissions by those in privity with the party are
admissible, and includes predecessors in title, referees and servants or agents
acting within the scope of their authority. However, an admission of an agent
is inadmissible unless the fact of his agency is proved (the fact that he had the
authority to make the statement).
- Whether or not an agent is authorised to make a statement is a question of
fact.
- Great Western Rail v Wills: A statement made by the station master (person in
charge of the railway station) to the plaintiffs that the defendant had forgotten
about the cattle which they were supposed to deliver was not admissible, as
he had no authority, as an agent of the defendant, to make the statement.
- Kirstall Brewery Co. v Furness Railway: When the plaintiff lost a parcel of
money, a statement by the station master to the police, which suggested that
one of the companys employees had committed theft, was admissible as
informing the police of what had happened was within the scope of his duty.

Parties in representative capacity (Sec. 18(2)): Statements made by trustees or

executors are admissible as long as they were made while in such capacity.

Parties who have proprietary or pecuniary interest (Sec. 18(3)): A person who derives
an interest in the case by virtue of the subject matter.

The effect of Sec. 18 is that any admission made by persons not listed is inadmissible, but the
admission of an independent third party, if relevant, can be admitted under Secs. 19 and 20.
-

Sec. 19: An admission made by a person who is not party to the suit, but whose liability
is necessary to prove as against any party to the suit. (Illustration to Sec. 19)
Sec. 20: An admission by a person, not party to the suit, but whom a party to the suit
has expressly referred for information. (Illustration to Sec. 20)

Sec. 21:
-

The general rule is that an admission is inadmissible if it is found to be favouring the

person who made it. Thus, a person cannot use his own admission to work in his
favour.
However, the provision provides three exceptions in which an admission can be
proved by or on behalf of the person making it:
- When the person making it is dead
- When the admission consists of a statement of
- State of mind
- Made at the time the state of mind exists
- Accompanied by conduct
- If it is relevant otherwise than as an admission

Sec. 22: An admission regarding contents of a document is inadmissible unless the original
document is produced or the party gives secondary evidence as to the contents of the
document.
Sec. 23: No admission is relevant if the parties have agreed through an express condition that
evidence of it should not be given.
-

Where the provision deals with settlement negotiations, any communication leading
up to a settlement will be inadmissible as evidence in court where it has been labelled
with the term without prejudice.
- Thus, where parties admit to a fault or liability in order to reach a settlement,
such an admission is protected from disclosure in court if they are made
without prejudice.

Literal approach: Any communication made without prejudice is inadmissible.

- Malayan Banking Bhd v Foo See Moi: Letters written without prejudice are
inadmissible as evidence of the negotiation. This is to help enlarge the scope
of negotiations so that a solution acceptable to both sides is easily reached.
- This privilege is only applicable when it concerns communication referring to
the settlement negotiations.
- Wong Nget Thau v Tay Chao Foo: Where there was no dispute at the
time of the letter, the correspondence could not be said to have been
written in the course of negotiations. Thus, the privilege did not apply.
- The privilege may be waived where both parties consent to the waiver (Dusun
Desaru Sdn Bhd v Wong Ah Yu)
-

An exception to the literal approach is that where the negotiations conducted

without prejudice lead to a settlement, the letters of the negotiations are
admissible as evidence of the terms of the agreement, provided that the
agreement has not been reduced to writing (incorporated in another
document) (Foo See Moi)

Genuine aimed settlement approach: If the negotiations were genuinely aimed at a

settlement, the communication made without prejudice may be admitted as
evidence if justice to the parties requires the court to do so.
- Lim Tjoen Kong v A-B Chew Investments Pty Ltd: The purpose of the rule is to
encourage litigants to settle their differences without fear of negotiations
being admitted as evidence if no settlement is reached. However, the rule is
not absolute and the court may resort to the without prejudice material
for a variety of reasons when justice of the case requires it. To not do so may
cause the withholding of evidence which may prove what is true.

Confession
Sec. 17(2): A confession is an admission made at any time by a person accused of an offence,
stating or suggesting the inference that he committed that offence.
-

To determine whether a statement is a confession, Anandagoda v R: The objective

test questions whether to the mind of the reasonable man reading the statement at
the time, in the circumstances in which it was made, it can be said to amount to a
statement that the accused committed the offence or which suggested the inference
that he committed the offence.
However, not all relevant confessions are admissible.

Sec. 113(1), Criminal Procedure Code: A confession made by an accused person to police
officers in the course of an investigation cannot be used against the accused.
-

The exceptions to this provision is where statements are made under:

- The Dangerous Drugs Act
- The Malaysian Anti-Corruption Commission Act
- The Kidnapping Act

However, confessions made by an accused to police officers outside the scope of a police
investigation can be used against the accused provided that they are admissible under
Secs. 24, 25, 26.
Sec. 24: A confession made by an accused is inadmissible if it was obtained by way of
inducement, threat or promise.
-

Veera Ibrahim v State of Maharashtra: In order for a confession to be inadmissible

under the provision, it must be established that:
The confession was obtained by reason of an inducement, threat or promise
- The confession must have been voluntarily made by the accused, and not
obtained through an inducement, threat or promise.
- Inducement: A statement or an act that helps bring about an action, or a
desired result, or was designed to encourage behaviour done through the
influence of persuasion.
- PP v Kamde Raspani: The accused who was assaulted, confessed to
avoid further assault.

Threat: When a person tells another that he will do something to the other,
if he does not follow what is asked of him.
- Aziz Muhamad Din v PP: The advice of a father telling his son to admit
to the charge was held to amount to a threat. The fact that the words
used were advisory in nature do not weaken their effect as even the
gentlest threat will taint a confession (make it inadmissible).

Promise: A verbal commitment by one person to another agreeing to do, or

not do, something in the future, which provides the other with hopeful feelings
about the future.
- R v Blackburn: A promise of pardon.
- R v Thompson: Tell me where the things are and I will be favourable
to you.

The inducement, threat or promise was made by a person in authority

- The inducement, threat or promise must have proceeded from a person in
authority. However, whether or not a person is a person in authority is a
question of fact.
- R v AB, person in authority: Persons ordinarily engaged in the arrest,
detention, examination or prosecution of the accused.
- The accused must have truly believed, at the time he made the statement, that
the person he dealt with had some degree of power over him.
-

Selvadurai v PP: Even a very slight inducement is sufficient to render

the confession inadmissible.
Md Desa Hashim v PP: The use of brotherly affection constituted
sufficient inducement where the police told the accused that his
brother who was arrested earlier would be released if the accused gave
a statement to the police.

An inducement, threat or promise may also be made by a person who is not

in authority, but in the presence of a person in authority who does not
oppose the making of it. In such situations, the person (not in authority) is
considered as the agent of the person in authority (R v AB)
- Aziz Muhamad Din v PP: Where the accuseds father advised his son to
confess (made a gentle threat) in the presence of police officers
(persons in authority) who did not take steps to oppose what was said
to the accused, the accuseds father is said to be an agent of the
persons in authority.

The inducement, threat or promise must have reference to the charge against the
accused
- Poh Kay Keong v PP: Reference to the charge is not limited to matters directly
relating to the charge as it suffices if the inducement threat or promise refers

to any matters which could have an effect on the accused in respect of the
charge.
Ong Hock & Anor v Rex: An inducement relating to rewards or retribution in
the afterlife, though it may have led to a confession, does not fall within the
ambit of Sec. 24.

The inducement, threat or promise must be sufficient to give the accused grounds
for supposing that by making the confession, he would gain an advantage, or avoid
any evil of a temporal nature.
- The accused must have honestly believed that he would gain an advantage or
avoid a negative outcome if he voluntarily confesses. This belief must
therefore be examined by looking into the expression used to induce the
making of the confession, which is thus, a question of fact in each case.

Where all the conditions have been established, it would prove that the confession
was not made voluntarily, thus rendering it inadmissible under Sec. 24.

Dato Mokhtar Hashim v PP: The classic test of the admissibility of an accuseds
confession should be applied in a manner which is part objective, part subjective (as
established in DPP v Ping Lin)
- The objective limb is satisfied if there is an inducement, threat or promise.
- The subjective limb is satisfied when the inducement, threat or promise
operates on the mind of the accused through hope of escape, or fear of
punishment connected with the charge.
- If the accused had already made up his mind to confess, the subjective
limb would not be satisfied.

Md Desa Hashim v PP in affirming the classic test: Confession is born of a free mind
and will, and is not tainted by any pressure or other vitiating elements.
Dato Mokhtar Hashim v PP: A confession must be made voluntarily in the sense that
it was not obtained by fear or prejudice or hope of advantage created by a person in
authority, or by oppression.
- This case establishes the inclusion of oppression under Sec. 24.

Oppression: A situation where a statement is obtained from the accused by causing

extreme discomforts such as denial of food, rest, or sleep (R v Priestly)
- Lim Kim Tat v PP: A statement was taken after questioning the accused for four
nights in a row, and the accused had not had sufficient sleep.
- Dato Mokhtar Hashim v PP: The accused was prevented from praying.
- Hasibullah Mohd Ghazali v PP: The accused was rudely awaken in the early
hours of the morning by an ambush of police officers. It was in his state of fear
and confusion that he then confessed to the charge.

Trial within a trial (voir dire)

-

If the voluntariness of a confession is, in any way, challenged, a trial within a trial
(voir dire) must be held to determine the involuntariness of the confession made.

Where the burden of proof in a criminal case is on the prosecution to prove beyond
reasonable doubt that the confession was voluntarily made (Dato Mokhtar Hashim),
the accused merely has to create suspicion in regards to the making or recording of
the confession (Juraimi Husin v PP).
The prosecutions failure to discharge the burden will allow a separate trial to be
held (voir dire) where evidence may then be tendered to either, support or rebut, the
presence of inducement, threat, promise, or oppression upon the accused in obtaining
the confession.
PP v Law Say Seck: A mere possibility that the confession was not made voluntarily is
insufficient to allow its rejection, but a probability would suffice to dictate its
rejection.
Lim Seng Chuan v PP: The rationale of a voir dire is to provide fairness to the accused.
The failure to hold a trial within a trial in a situation where the admissibility of the
confession is challenged is fatal.

Sec. 25: In order for a confession to be proved as against the accused, it must have been made
to a police officer who is above the rank of an Inspector.
Sec. 26: A confession obtained while the accused is in police custody regardless of the police
rank) is inadmissible, unless other written law provides for it, or if it was made in the
immediate presence of a Sessions Court judge or a magistrate.
-

Eng Sin v PP: Custody does not necessarily mean formal arrest, it is sufficient that the
accused cannot go as he wishes.
Sambu v R: A person is said to be in custody if he is in a state of being guarded, where
his movements are watched closely to prevent his escape.
PP v Haji Kassim: Following an attempted suicide, the accused was taken to the
hospital by a police officer. He then confessed to a doctor, but the confession was
inadmissible as he was still considered to be in police custody.
However, if the confession is made in the immediate presence of a Sessions Court
judge or magistrate, it is admissible despite the accused being in police custody.

Sec. 27: Any fact discovered as a result of information received from the accused of the
offence charged, the information, whether it amounts to a confession or not, may be proved.
-

In order for a statement to fall under the provision:

The information was received from the accused
- Choong Soon Koy v PP: A person charged of an offence must be the person to
have given the information that led to the discovery of fact.

The information was received while the accused was in police custody

A fact must be discovered in consequence of the information received

- Wai Chan Leong v PP: In order for the provision to apply, the fact must be the
consequence, while the information is the cause of its discovery.
- If there is discovery without any evidence of information, the provision would
not apply.
- Gurusamy v PP: The accused was brought by the police to a place, and by
following footprint tracks, they came to the spot where the stolen goods were
stacked. The discovery was inadmissible as the appellant never made any
statement or give information that led to the discovery of the stolen items.
-

The police cannot turn a recovery into a discovery. Thus, if the police had any
prior knowledge of the existence of the thing discovered, then the provision
would not apply.
PP v Lie Sam Seong: There was evidence that the police had prior knowledge
of the ammunition before the alleged discovery took place after information
was given by the accused, thus causing the provision to not be applicable.
If the police had prior knowledge of the fact, but had not identified the exact
and specific location, any subsequent information given by the accused
regarding the fact would be inadmissible.
PP v Basri Salihin: The accused was arrested at a bus stop and taken in for
questioning. He was then taken to a stall near the bus stop, where the police
recovered an envelope containing heroin in a wooden bin by the stall. The
envelope was said to be found as a consequence of information given by the
accused during question. However, he denied giving any information, and
alleged that the police had already known the existence of the drugs when
they asked him where they were during the questioning. Held: The accused
was then acquitted.
PP v Kanapathy Kupusamy: During question, the accused did not answer the
questions asked by the police. Instead he led the police party to a room where
the drugs were recovered. Held: The information was inadmissible as there
was no evidence of information being given by the accused that led to the
discovery of drugs.

Only the information that leads to the discovery of the fact is admissible
- Where a statement contains both a confession and information leading to the
discovery of a fact, only the part of the statement containing the information
is admissible under Sec. 27.
- Pulukuri Kottaya v Emperor: The accused confessed to the police, I stabbed
Sivayyah with a spear. I hide the spear in a yard in my village and I will show
the place. The court found that the first part of the statement is which speaks
about the guilt of the accused, is not admissible, whereas the second part
which led to the discovery of the spear is admissible under Sec. 27.

PP v Lee Kim Seng: Where the accused had confessed to unintentionally

committing murder and that he could show the police where it happened, the
police led the accused to the site, and a body was found. Held: Only the
information received that led to the discovery of the body was admissible
under Sec. 27.

For such reason, the actual words of the information given must be recorded.
Sum Kum Seng v PP: Where the accused was charged for being in control of
firearms, the prosecution relied on evidence that the appellant had admitted
burying the weapons somewhere and offered to show the place to the police.
The evidence was argued to be inadmissible as it was not the actual words
used by the appellant. Held: Although there is no strict necessity in law, both
the decisions referred to and common sense stress the desirability that the
actual words must be recorded somewhere.

Hasamuddin Talena v PP: During the interrogation, the accused made a

statement to the approximate effect (the words were inexact) that he could
lead the police to the place where certain drugs had been concealed. At the
scene, the accused made a second statement and pointed to where the drugs
were concealed. Held: Under Sec. 27, approximations (guesses) are not
permitted. Thus, the exact words spoken by the accused have to be proven.

Sec. 28: A confession is admissible if it is made after any inducement, threat, or promise has
been removed.
-

The presence of an inducement, threat or promise is said to exist, until and unless it is
removed through lapse of time or an intervening event. Thus, a confession becomes
relevant once the inducement, threat or promise is considered as having been fully
removed.
Abdullah Awang Bongkok v PP: The act of the Magistrate in carefully questioning the
accused as to whether his confession was obtained as a result of a promise made by a
police constable was able to completely remove the effect of the promise.

Sec. 29: If a confession was voluntarily made under Sec. 24, and is therefore relevant, it does
not become irrelevant merely on the basis that it was made under the circumstances of a
promise of secrecy, in consequence of deception, when the accused was drunk, or made in
answer to questions he did not have to answer.
-

This is in line with the rule that evidence, regardless of how it was obtained, is
admissible if it is found to be relevant. Similarly, if the confession is found to be
relevant and voluntarily made, it will be admissible.
R v Santokh Singh: Where it was alleged that a constable had made the accused drunk,
after which he then made a statement, the court found the statement to be
admissible, as a statement can only be rendered inadmissible if it is obtained through
hope or fear.

Sec. 30: Confession by a co-accused

-

There are three requirements that must be fulfilled in order for the provision to apply:
- Two or more accused must be jointly tried for the same offence
- One of the accused has made the confession implicating himself and the coaccused (not only blaming others, but also admitting his guilt)
- The confession must be admissible against the maker

Once the requirements are fulfilled, the court may then take into consideration the
confession against the co-accused.
Strong evidence against the co-accused is required before the confession implicating
the co-accused can be considered.
If the accused confesses with the intention to clear his name at the expense of
implicating the other in a joint trial, the confession will not be taken into consideration
against the co-accused.

Herchun Singh v PP: In applying Sec. 30 to a confession made:

- Evidence against the co-accused must be viewed independently from the
accuseds confession
- If the court is satisfied beyond reasonable doubt that the co-accused can be
convicted based on the evidence of the accused, the confession would not be
necessary
- Where there is a doubt as to whether the co-accused could be
convicted, the confession implicating the co-accused can be used.

The provision does not apply to situations where an accused is giving evidence
implicating the co-accused from a witness box.

Retracted confession
-

Yap Saw Keong v PP: An accused person can be convicted on his own confession, even
when it is retracted, if the court is satisfied of its truth.
A confession found to be relevant can still be admitted as evidence, despite it having
been retracted, if the court is satisfied that it was voluntarily made by the accused.