Wrongfully Obtained

Evidence
1. RECAP

HERES WHAT YOU MISSED LAST WEEK

o If evidence is logically irrelevant inadmissible
o If evidence is relevant but caught under a hearsay rule must be inadmissible (theres no
discretion to include)
o If evidence is relevant and not caught by an exclusionary rule admissible
What if evidence is wrongfully obtained?
The general rule is that it doesnt matter how you get it, even if you steal it, it would still be admissible
(R v Leatham)
o But thats not always the case an exception is a confession obtained involuntarily, which is
strictly inadmissible
o Also evidence obtained by torture to convict a person on evidence procured by torture strikes
at the very heart of a fair trial (A v Home Dept)
Essentially, the fact that evidence is obtained wrongly doesnt make it inadmissible but court has a
general discretion, and there are specific exceptions

Why does the court have a general exclusionary discretion?

Not in EA s 2(2) says any rule of evidence inconsistent with the EA is not applicable
o S 32(3), s 47(4) general discretion for HSE and expert opinion, but its not general
o So can we turn to the CL, via s 2(2)?
c/f CPC s 6: wrt to any matter of criminal procedure not covered by CPC or any other law, court
may adopt any procedure as the justice of the case requires no one has ever argued that this
is where CL discretion comes from tbh

Rationales for discretion

Redmayne reading the illegal manner in which the evidence was obtained may put the reliability of
the evidence in question
o In Muhd Bin Kadar, CoA used reliability rationale the fact that the evidence was wrongfully
obtained is relevant insofar as it would affect the reliability of the evidence
o Of course its not just unreliable its wrong, its not just the case that we can do whatever we
want as long as the evidence is reliable, the legitimacy of the judicial process isnt just based on
reliability
o Court would be complicit in the illegality if such evidence would be admissible a trial is also
broadly about securing the legitimacy of the conviction, it must be conducted with fairness &
integrity
Disciplinary rationale
o This is easily rebuttable excluding evidence doesnt punish the officer, disciplinary
proceedings do

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 o VK Rajah at [68] of Kadar seems to indicate its not the primary rationale, but its somewhere
there
C/f deterrence rationale deters future conduct of the same sort
o Police have no incentive to use such methods if they know the evidence wouldnt be admissible
Protective rationale
Legitimacy/judicial integrity rationale
o Compromises the integrity of courts if they act on the fruits of manifestly inacceptable practices
by law enforcement officers criminal justice would lose its moral authority if the system that
enforces the law doesnt obey the law
o Yong CJ in SM Summit: this cuts both way, the system also loses integrity when we let people
of for trivial breaches

A. Framework for Admissibility + Exclusion

[1] Is the evidence logically relevant?

o Given that in the EA, logical relevancy is ipso facto equated with admissibility, look at the
general relevancy sections under s 6 11
If the evidence is logically relevant prima facie admissible
If the evidence is logically irrelevant inadmissible
[2] Is the evidence caught under any exclusionary rules?
o Even if the evidence is prima facie admissible, it is inadmissible if caught under any exclusionary
rule. No discretion is involved.
o Exclusionary rules, for which exceptions are provided for under specific sections of the EA &
CPC are:
Similar fact rule;
Character evidence rule;
Hearsay rule;
Opinion rule;
Failure of voluntariness test under s 258(3) of the CPC
[3] Evidence is logically relevant & not excluded as a matter of law, but can it be excluded as a matter
of discretion?
o Exclusions in the interests of justice for hearsay (s 32(3)) & opinion (s 47(4))
Exclude specific types of evidence
o Exclusions as a matter of Common Law discretion
Arguably no explicit provision in the EA or CPC that provides for a discretionary
exclusion of wrongfully obtained evidence
Types of exclusionary discretion
Improperly obtained evidence Procedural irregularities
Evidence obtained by entrapment
Illegally obtained evidence
Scope of the exclusionary discretion
Narrow concerns unfairness based on a wrong outcome attained at trial
Broad encompasses unfairness in the pre-trial collecting process

2. ILLEGALLY OBTAINED EVIDENCE

The evidence of _____ was obtained illegally because _______.

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 However, X may not use this illegality as a substantive defence because he did in fact possess the
requisite mens rea and actus reus (Sang, followed in How Poh Sun)
Nonetheless, an issue arises as to whether the court has a discretion to exclude such illegally obtained
evidence

A. Law

It was first established in Cheng Swee Tiang that a court has the discretion to exclude illegally obtained
evidence if its reception would operate unfairly against A taking into account the interest of the
individual to be protected from illegal invasions of his liberties by the authorities [and] the interest
of the state to secure that evidence bearing upon the commission of crime and necessary to enable
justice to be done
Cheng Swee Tiang v PP [1964] MLJ 291 (HC of three judges)
Facts Undercover officer was sent to a provision shop. Officer asked for an illegal lottery ticket.
Shopkeeper was charged with running an illegal lottery.
The issue was whether the court had discretion to exclude the evidence.
o By the time of the appeal the AG decided not to support the prosecution.
o But the three-member High Court (not CA) nevertheless offered its views on the
matter.
/held/ Majority: Wee CJ & Chua J
Following dicta from common law cases such as Kuruma, it is undisputed law that while
evidence unlawfully obtained is admissible if relevant, there is a judicial discretion to ignore
such evidence if its reception would operate unfairly against A
o HOWEVER: Rejected the further proposition that in the exercise of its discretion and
as a matter of public policy the court will normally, though not necessarily, exclude
evidence obtained by law enforcement officers by consciously unlawful means.
Rather, advocated a case by case approach that considered two opposing interests:
[1] The interest of the individual to be protected from illegal invasions of his
liberties by the authorities;
[2] The interest of the State to secure that evidence bearing upon the
commission of the crim & necessary to enable justice to be done shall not be
withheld from the courts on any merely technical ground
Majority treated this as an entrapment case (but its doubtful whether it is)
o Found that while the courts have consistently and in no uncertain language criticised
the use of agent provocateurs, whether they be law enforcement officers or not, the
courts have also consistently admitted evidence obtained by such persons provided
its admissibility does not operate unfairly against an accused.
o Test: Whether the admission of the evidence would operate unfairly against A at
trial
o Court may also take into account not just the effect of admitting the evidence, but also
the unfairness in the manner in which evidence was taken before trial. Cited cases:
E.g. In Kuruma, where admission of a piece of evidence had been obtained
from A by a trick
Callis v Gunn, if there was any suggestion of it having been obtained
oppressively, by false representations, by a trick, by bribes, anything of
the sort
Minority: Ambrose J
The Kuruma discretion, which is a new development in the common law does not apply in SG
because of EA
Phyllis Tans evaluation
o Found that Wee CJ in Cheng was only concerned with the concept of fairness as the

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 sole basis for determining whether or not evidence obtained by entrapment
should be admissible.
Gave no guidance on how court should determine the fairness of preferring
one interest or another
o Also approved Ambrose J
o S observation that discretion to exclude has no place in Singapore was approved.

Subsequently, in How Poh Sun, the court followed this English position in R v Sang such that
o (1) A judge in a criminal trial always has a discretion to refuse to admit evidence if in his opinion,
its prejudicial effect outweighs its probative value;
o (2) Save with regard to (a) admissions & confessions and (b) generally with regard to evidence
obtained from A after the commission of the offence, he has no discretion to refuse to admit
relevant admissible evidence on the ground that it was obtained by improper or unfair means.
The court is not concerned with how it was obtained.
o (3) No ground for exercise of discretion to exclude that evidence because it was obtained as a
result of the activities of an agent provocateur

How Poh Sun v PP [1991] 2 SLR(R) 270

Facts A was arrested, charged with, and convicted of a capital drug trafficking charge following an
operation set up by the CNB using another offender, Goh, who was prepared to co-operate
with the narcotics police
o Goh contacted A and told him that a buyer wanted a large quantity of goods (i.e.
heroin)
o Would-be purchaser actually a narcotics officer
/held/ CoA, held that this was a classic case of A being given an opportunity to commit the
offence, as opposed to being instigating to commit the offence, since A had gone to meet
Goh for the sole purpose of selling the drugs
Citing Lord Diplock in Sang, entrapment is not a defence of a criminal charge, and the law in
SG on admissibility of illegally obtained evidence is as stated in Sang all relevant evidence,
including entrapment evidence, is admissible unless its prejudicial value outweighs its
probative value
o Court not concerned with how the evidence is obtained its not for the court to
discipline the police the role of the court is to ensure that A has a fair trial according
to the law
Judge is concerned with not how the evidence sought to be adduced by P
has been obtained, but with how it is used by P at trial
If the evidence really was obtained illegally, there will be a remedy in civil law,
and if it was obtained legally but in breach of the rules of conduct for the
police, then this is a matter appropriate for the disciplinary authority to deal
with
o As much as the judge may dislike the way in which a piece of evidence was obtained
before proceedings commenced, if it is admissible evidence probative of As guilt, it is
no part of the judicial function to exclude it for this reason

In the later decision, the HC in SM Summit distinguished Sang and held that if the commission of the
offence was brought about by an illegal act on the part of the agent provocateur, any evidence so
obtained in relation to the commission of the offence should be excluded.

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 o Yong CJ in Summit drew a distinction between cases where police conduct has merely
induced A to commit the offence which he has committed, and a case where illegal police
conduct itself constitutes an essential element of the charged offence (entrapment)
o In situation [1] public interest in conviction & punishment of A is likely to prevail over
other considerations, and the exclusion of evidence would in fact undermine judicial integrity
in allowing the acquittal of a guilty person
o In [2] the illegality & threat to the rule of law which it involves assume a particularly malignant
aspect, and the integrity of the administration of criminal justice would require such
evidence to be exclude.
o Summit test: whether there was illegality preceding the crime which was designed to bring
about the commission of the crime

SM Summit Holdings Ltd v PP [1997] 3 SLR(R) 138

Facts Involved a petition for criminal revision brought by Summit CD & its parent company to set aside
3 search warrants issued under the CPC in order to recover a large quantity of business records
seized under the warrants
o Required Summit to show that BSA obtained the warrants w/o any reasonable cause for
suspecting that there was in their premises any article or document infringing the
copyright & TMs of BSAs principals
o Evidence relied upon by BSA in support of the copyright warrant was obtained through
the private investigator JC
o JC engaged by BSA to obtain evidence that Summit was engaging in pirating master CDs
containing copyrighted software belonging to BSAs principals
JC approached TSY (an asst manager of Summit Holdings) to ask him to replicate the master CDs
which he brought with him
o Four CDs which were counterfeits containing programs belonging to BSAs principals
o TSY agreed to do it for $4,000
o After BSA received the replicates and originals, they applied for & obtained the search
warrants
/held/ Yong CJ noted that this was not the usual case of entrapment where a law enforcement officer
who is out to trap a seller of counterfeit products pretends to be a genuine purchaser & purchases
a counterfeit product
o What PI did was to bring right counterfeit masters & ask the petitioners to replicate them
o Clear case where illegality preceded the crime and was designed to bring about the
commission of crime
o C/f Sang, where the police conduct has merely induced the person to commit the offence
which he has committed, this is a case where the illegal police conduct itself constitutes
an essential ingredient of the charged offence
o Sang is not of universal application in all cases of illegally obtained evidence,
distinguishable because:
Sang concerned the admissibility of evidence, but this is an issue of whether the
party is entitled to retain evidence;
Sang involved illegality on the part of the police but this involves an illegality on
the part of PI
In the case of the police, law has to recognise that it cannot unduly
hamper the police in their investigations, and certain crimes can only be
detected by the use of some sort of deception (at [50])
The same doesnt apply to PIs no public interest in the members of the
public undertaking such conduct
The present case is not the typical case of illegality in the obtaining the evidence of a crime

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 already committed but a case where the illegality procured the very offence.
o There is a distinction between the case where police conduct has merely induced the
accused person to commit the offence which he has committed (as in Sang) and the
case where the illegal police conduct (here, the illegal conduct of the PI itself constitutes
an essential ingredient of the charged offence.
o Different tests apply for the two categories.
In the former category, it is a case where the public interest in the conviction and
punishment of those guilty of crime is likely to prevail over other considerations,
and the exclusion of evidence would in fact undermine judicial integrity in
allowing such alleged offenders get away
In the latter category, the illegality and the threat to the rule of law which it
involves assume a particularly malignant aspect.
HC also rejected the Australian balancing test of Ridgeway and Bunning v Cress:
o In the Canadian and the Australian approaches, the rationale is founded on the need for
the courts to protect the integrity of their processes as well as the need to exercise
judicial control over the police
o However, opined that both of these approaches are completely unworkable in practice.
While they attempt to identify the policies, they stop short at articulating clearly which
way the discretion ought to be exercised.
o Criticised that without a clear principled approach, the use of discretion can practically
justify any result which the trial judge wishes to reach, and would be a fertile source of
grounds of appeal.
In the present case, the discretion should be exercised to exclude the evidence:
o The actual making of the counterfeit CDs had been organised by the PI for the purpose of
obtaining the conviction of the person to whom they were supplied.
o In addition, there was no allegation that [the assistant general manager of the company
with whom the private investigator dealt] actually knew that the masters were infringing
copies. The integrity of the administration of criminal justice would require that
such evidence be excluded.
Present case is HC at [41]: In such a case the illegality is only in relation to the means of proof of
the offence already committed, because JC brought counterfeit masters and asked Summit to
replicate them
o Clear case where illegality preceded the crime & was designed to bring about
commission of the crime
o C/f Sang, where the police conduct has merely induced the person to commit the offence
which he has committed, this is a case where the illegal police conduct itself constitutes
an essential ingredient of the charged offence
In Sang type of cases, the public interest in conviction & punishment of those guilty of crime is
likely to prevail over other considerations, and exclusion of evidence would in fact undermine
judicial integrity in allowing such alleged offenders to get away
However, in this type of cases, the illegality & threat to the rule of law which it involves assumes a
particularly malignant aspect
o Not only were the counterfeit masters supplied, the actual making of the counterfeit CDs
were organised by the PI (which already infringes the copyright of the programmes) for
the purpose of obtaining the conviction of the person to whom they were supplied
o Additionally, no allegation that TSY, acting behalf of Summit, actually knew the masters
were infringing copies
CoA in Phyllis Tan found Summit problematic for the following reasons:
o In respect of the finding that JC organised the actual replication of the masters, the fact
was that JC did not have to instigate, persuade, or cajole Summit to replicate the Masters
Summit did so on a commercial basis in the ordinary course of business
o In respect of the finding that JCs illegality preceded the charged offence, the fact was
that JC committed no offence in purchasing the original counterfeits, or in getting Summit

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 to make the replicas because he did so with BCAs consent therefore no relevant
preceding offence
o In respect of the finding that Summit committed an offence in replicating the masters,
there was no such offence since BSA clearly consented to BSA making the copies since
consent is a question of fact and the fact that BSA wanted JC to entrap Summit did not
change the fact of consent
o Therefore, the ruling of law in Summit was wholly unnecessary, since no preceding or
subsequent offence has been committed by any party on the facts of the case
o Also, the approach in Summit means that however trivial the preceding unlawful act may
be in comparison with the charged offence, the evidence thereby obtained will be
inadmissible.
It is undesirable to treat all preceding illegal conduct as sufficient to exclude
evidence thereby obtained
In adopting a black-and-white approach to the issue, Summit does not provide
the necessary flexibility that would enable the courts to resolve the competing
public interests.
o If a test under Singapore law were necessary to determine whether or not entrapment or
illegally obtained evidence, the proper test would be a balancing test identified in
Ridgeway. [however, the HC went on to deduce that there is no discretion to exclude
entrapment evidence in Singapore because of the EA]

HHL Evaluation
o Court firmly rejected the disciplinary rationale & pointed out that judicial integrity cuts
both ways
It is not the business of the court to discipline the police. While the court
should not condone illegality on the part of law enforcement officers, the
exclusion of evidence is completely inappropriate in a trial. By saying that, I do
not under-estimate the importance of judicial integrity. Judicial integrity is
important since the public would lose respect for the court as a dispenser of
justice if it is seen to condone illegality, but judicial integrity is undermined
when the public perceives that factually guilty people are getting away with
serious crimes because of a trivial breach of legislation.

Rayney Wong then in dicta suggested an expanded reading of SM Summit such that unlawfully
obtained evidence should be excluded without explicitly considering the balancing approach of PE>PV.
Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR(R) 377 (CA; High Court decision reported in
[2006] 4 SLR(R) 934)
Facts Instructing solicitors hired a PI to obtain evidence that Respondents firm had been engaging in
touting convenyancing work
o PI firm engaged Jenny Lee to run the operation she represented herself as a real estate
agent who may want to engage the respondent in her purchase of property
o Made recordings of their conversations when Jenny informed Rayney Wong that the
sale was aborted and paid him $500 for preliminary work done, he gave her $150 out of
that $500 as reimbursement for her expenses
/held/ HC: Rajah J
At [61]: Summit in effect carves out another exception to Sang, where the illegal methods of an
investigation precedes & forms part of the illegal conduct for which A is being charged.
o Exception: the agent provocateur himself engages in prior illegal conduct in order to
procure the offence for which A is charged.
o Whether Summit intended to leave open the possibility that there could be other
situations where it may hold that it has the discretion to exclude evidence depending on
how it was obtained is debatable

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 Noted developments in England:
o Rajah J opined at [64] that if he were unfettered by any authority, (he) would be
persuaded that there will be particularly egregious instances of misconduct where the
courts should reject evidence that has been procured in a manner that might be
inimically repellent to the integrity of the administration of justice. This will protect
those who should not be convicted contrary to the publics sense of justice. In seeking to
cut evidential Gordian knots, the ends cannot be inevitably and invariably held to
justify the means. To do so can only result in indelible scars to the administration and
perception of justice. Public confidence in the principled administration of justice must
inevitably be the paramount consideration.
At [65]: should different approaches be taken in private entrapment and state entrapment?
o HC said that in principle, no.
o The consequences of entrapment are the same whether or not the state is involved, citing
Ashworth for the view that [w]e should surely not welcome a society in which private
investigators and journalists are free to employ deception on whatever scale, and in
whatever circumstances, they please.
However, held that the DC was right to admit the evidence of the secret tapes:
o The ruling in SM Summit applies only in respect of prior illegal conduct (and not mere
ethical impropriety) undertaken by an agent provocateur; it does not apply to mere
ethical impropriety. The only hope for Rayney was to bring the case under the new
exception under SM Summit because the PIs conduct was not illegal
o On the facts of the case, A was not instigated or coaxed by Jenny into agreeing to pay
the referral fee the operative cause of his payment of the referral fee was not that he
was led to believe that the transaction was real (?), but because he was predisposed or
ready & willing to pay for any referral work no entrapment

CA: Chan CJ
Relationship between entrapment & illegally/improperly obtained evidence:
o Entrapment is a much narrower category
o At [27]: It involves luring or instigating A to commit an offence which otherwise, in
ordinary circumstances, he would not have committed, in order to prosecute him
o Invariably entails unlawful conduct by an agent provocateur, in the form of abetment of an
offence by instigation or intentionally aiding A to commit the offence
o Looseley:
Per Lord Nicholls: state-directed entrapment is the process whereby the state
through its agents lure[s] its citizens into committing acts forbidden by the law
and then seek[s] to prosecute them for doing so.
Per Lord Hoffmann: Entrapment occurs when an agent of the state usually a law
enforcement officer or a controlled informer causes someone to commit an
offence in order that he should be prosecuted.
o Present case is not an entrapment case PI had merely given J the opportunity to offer
her a referral fee. She had not caused him to make the offer and subsequently pay the
referral fee, he acted voluntarily and would have done the same thing if any other estate
agent had approached him with a genuine offer of referral work
At [40]: PIs conduct also not illegal Summit doesnt apply
Kuruma, Cheng Swee Tiang & Sang dont apply here either they stand for the
principle that improperly obtained evidence is admissible unless it operates
unfairly against A, unfairness in this context not regarding how the evidence
was obtained but with its prejudicial effect
At [40]: At most, Js conduct was in some loose sense unfair, however, CoA held
that there is no principle stating that evidence that has been procured improperly
or unfairly in order to prosecute offenders but which is not procured unlawfully
is inadmissible in evidence, except where there would be unfairness in terms

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 of prejudicial effect exceeding probative value (limb 1 of Sang)
Deferred discussion of evidentiary issues to Phyllis Tan

In Phyllis Tan, HC reviewed the law in this area, and concluded that the court has no discretion to
categorically exclude illegally obtained but relevant evidence. This is because s 138 of the EA requires
that the court admit all relevant evidence, and an exclusionary discretion is inconsistent with the EA,
and cannot be given effect to by virtue of s 2(2).
Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239
Facts Instructing solicitors hired a PI to obtain evidence that Respondents firm had been engaging in
touting convenyancing work
o PI firm engaged Jenny Lee to run the operation she represented herself as a real estate
agent who may want to engage the respondent in her purchase of property
o Recorded their phone conversation on audio recording and made a video recording of
that meeting
o Jenny then made a complaint with LawSoc in connection with Phyllis Tans offer to pay a
referral fee for procuring convenyancing work
/held/ Its not clear so is there probative/prejudicial? Because if you take the EA stuff to logical
conclusion then there should be no discretion at all.
Court held that it did not have to decide this question of law since:
o PI did not act illegally, and her conduct did not amount to entrapment
o Following Rayney Wong, the law of entrapment does not apply in disciplinary
proceedings, as primacy must be given to the need to uphold ethical standards of the
legal profession
o So the views in Phyllis are all dicta, but there is a strong bench and CoA in Rayney referred
to Phyllis
Court offered the following views:
o [1] Court has no discretion to exclude illegally obtained evidence (including entrapment
evidence) by reason of the provisions of the EA;
However, the court also took the view that Sang is consistent with the EA
o [2] Prosecution founded on entrapment evidence is not an abuse of process;
o [3] The court may not stay a prosecution even of it is an abuse of prosecutorial discretion
because of the separation of powers under the Constitution; and
o [4] The court has, in an appropriate case, the power within its own judicial sphere to
declare a prosecution unconstitutional for breach of constitutional power (which, in the
case of the prosecutorial power, would have to be a very exceptional case given that it is
a constitutional power) or for infringement of constitutional rights and protections, e.g. if P
prosecutes A but condones police conduct by not prosecuting the police officers

Criticism of the Summit test:

At [113]: Firstly, every case of entrapment involves a preceding offence (abetment) which brings
about a subsequent offence (the charged offence)
o However, not all preceding breaches of law by law enforcement agents amount to an
abuse of process
o It is, in final analysis, a question of balancing the gravity of the preceding offence &
that of the subsequent offence
Secondly, by rejecting the balancing approach to determine which competing public interest
should prevail in the circumstances of each case, Summit rests solely on its own facts
o The approach would mean that however trivial the preceding unlawful act may be in
comparison with the charged offence, the evidence thereby procured of the commission
of the charged offence is just inadmissible
o Even though criminal conduct spans a large number & spectrum of offences in terms of

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 both harm to society & culpability, which would make it undesirable & inappropriate to
treat all preceding illegal conduct as sufficient to exclude the evidence thereby
obtained
o In fact, focusing solely on unlawful conduct w/o reference to its nature or seriousness &
ignoring the gravity of the charged offence fails to give sufficient weight to the public
interest in convicting the guilty.
o The very existence of competing or conflicting public interests requires the court to
choose whether, in a particular case, one interest outweighs the other
Court opined that if a test in SG is necessary to determine whether or not entrapment or illegally
obtained evidence should be excluded, the appropriate test is a balancing test taking account the
Ridgeway and Looseley factors
o Ridgeway
(a) Whether there was a deliberate disregard of the law;
(b) The cogency of the evidence where the illegality was not deliberate;
(c) [The] ease with which the law might have been complied with in procuring the
evidence in question;
(d) The nature of the offence;
(e) The policy of Parliament as appears from the enactment of the statute
constituting the offence
o Looseley
(a) Causing and providing an opportunity for the commission of the offence;
(b) Reasonable suspicion of crime and proper supervision of crime detection
activities;
(c) The nature of the offence;
(d) The defendants predisposition to commit the offence; and
(e) Active and passive conduct on the part of law enforcement officers.

Entrapment Evidence & the EA

Starting point is that if a fact is relevant, evidence to establish that fact is admissible. The court is
given no discretion to exclude evidence which establishes a relevant fact, but is bound to admit
the evidence (s 138 of the EA)
o Entrapment evidence is therefore admissible under the EA to prove that Df committed the
charged offence and the court has no discretion to exclude
o Next question whether local case law has dealt with entrapment or illegally obtained
evidence in a way consistent with the EA
However, the court also took the view that Sang is consistent with the EA. Cited How Poh Sun
which applied the Sang principle without any qualification illegally obtained evidence is not to
be excluded merely because it was illegally obtained, it can only be excluded if its prejudicial
effect outweighed its probative effect
o At [126]: CoA opined that Ambrose J in Cheng Swee Tiang was correct in pointing out
that there was no such exception in our EA in relation to entrapment evidence
o In any event, fairness exception doesnt have any effect on entrapment evidence by
definition, the probative value is greater than prejudicial value in proving guilt of A (I
mean its basically the whole offence)
o At [126]: The exception is not for entrapment evidence, but for illegally obtained
evidence where prejudicial value > probative value (Sang), which is in accordance
with the letter & spirit of EA, and therefore applicable in SG
o Summit is therefore inconsistent with the EA on the holding that the court has the power
to exclude the PIs evidence on the ground that PIs illegal conduct preceded & was
designed to bring about the charged offence
At [127]: May also be pertinent to note that under EA, the only kind of incriminating evidence that
is expressly denied admissibility is admissions & confessions made involuntarily by A to a person

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 in authority (s 24)
o Even a confession obtained in consequence of a deception practiced on A or when he
was drunk is similarly relevant & admissible (s 29)
Relevant evidence in s 29 may be unfair to A, but are admissible because of their
probative value
This is the overarching principle of the EA, and insofar as Cheng Swee Tiang
recognises a discretion to exclude relevant evidence on the ground of unfairness
to A, such a proposition is not entirely consonant with the provisions of the EA
Vikrams Evaluation of Phyllis
According to some parts of Phyllis Tan, judges do not have any such discretion.
o However, Phyllis Tan mentions that Sang is consistent with the EA. This is troubling
because the Sang discretion is broader than the admissibility provisions in the EA.
For example, the second limb of Sang permits a judge to exclude evidence
obtained from the accused after the commission of the offence if it is analogous
to an admission or confession obtained involuntarily. S. 24 of the EA, in contrast,
only applies a test of voluntariness to confessions (and not admissions not
amounting to confessions).
o So insofar as Phyllis Tan has considered that Sang is consistent with the EA, courts still
have some discretion.
It should be noted also that Phyllis Tan has highlighted the existence of a non-evidential route to
preventing misconduct. Phyllis Tan has affirmed that the court has the power of judicial review
over the Public Prosecutors powers. If the PP exercises his prosecutorial powers in bad faith or in
a manner that infringes the Dfs constitutional liberties (such as art 12), the court may review the
PPs actions. This means that if the PP prosecutes the Df and fails to prosecute police officers who
acted illegally in procuring the evidence, the court may review the PPs actions.

However, the CoA in Kadar noted that Phyllis had accepted the key holding in Sang, that the court has
the discretion to exclude any evidence that had more prejudicial effect than probative value, was
consistent with the EA and s 2(2)
CoA in Kadar also further justified the basis of this exclusionary discretion on the basis of:
o 1) Common law precedents, where such a discretion has previously been exercised in cases
including Dahalan and Kong Weng Chong, (at [54]-[55]);
o 2) Based on principle, because the reliability of a statement whereby its prejudicial effect
exceeds its probative value would be questionable, and that probative value is the touchstone
of admissibility under the CPC (at [55]); and
o 3) Based on parliamentary intent, which the CA interpreted to mean that this area of judicial
discretion is left for the courts.
Muhammad bin Kadar v PP [2011] 3 SLR 1205
Facts 1ST App (Muhammad) & his brother, the 2nd App (Ismil) were charged with the murder of V in HC
received more than 110 incised & stab wounds and died from severe blood loss
o Ismil was arrested on the day of the killing for an unrelated offence, but was later
interrogated in connection with the killing
o Before recording the 1st statement, SSI Zainal told the two officers accompanying 2A in a
police car to leave so that he could interview him alone
During interview, 2A allegedly confessed to killing V alone
Made the same confession (allegedly) in his 2nd statement
No warning was administered before either recording, neither statement read
back to him, and he was not given the opportunity to make corrections or

11
 sign either statement
/held/ At [42]: Statements recorded by the police from As can be classified into two categories:
o Long statements under s 22 of the CPC 2010, police have the power to examine any
person & reduce their statement into writing as a power of investigation that they may
exercise in investigating a seizable offence
S 22 prescribes certain formal requirements for taking long statements, but does
not state the consequences of non-compliance with these requirements
o Cautioned statements under s 23 of the CPC, in response to a notice in writing that is
required pursuant to s 23, a statement is given once a person is informed that he may be
prosecuted for an offence, or is charged for an offence
Notice informs A 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
o Statements are admissible pursuant to (s 258(1) s 258(3)) of the CPC
At [44]: voluntary statements from A would be admissible under s 258(1) s 258(3) even if
procedural requirements set out s 22 & 23 are not met
o E.g. in Sathiadew, where court held that a breach of the signature requirement of s 22
would not render a statement inadmissible under s 258, but would only affect the weight
of the statement by casting doubt on whether it was actually made
o E.g. Tsang Yuk Chung, where a failure to follow the notice procedure of s 23 did not
render a statement inadmissible under s 258(3), but would affect the adverse inferences
that could be drawn under s 261(1) from a failure to state defence upon being cautioned
At [45]: Therefore, procedural breaches of s 22 & 23 themselves would not render a statement
inadmissible, so it stands that breaches of PGO that relate to the recording of statements would
also not themselves render statements inadmissible under s 258(3)
o Cited Rajendran J in Dahalan, when he held that he did have a discretion to refuse to
admit As statement under s 258(1) of the CPC even if voluntarily made without ITP
Based on the fact that s 258(1) made statements admissible w/o mandating that
they be admitted
He then exercised this discretion to exclude the statement even though he had
already made findings that the statement was inadmissible due to being
involuntarily given, which obviated any need to consider the general discretion
to exclude voluntary statements found that A had been suffering severe effects
of heroin & erimin consumption, such as to make his statement involuntary,
applying the standard set in Garnam Singh
o However, Rajendran J acknowledged that mere non-compliance with s 121 o PGO would
not automatically result in inadmissibility, but in this case, the violations were flagrant,
and P had no reasonable explanation for such violations
At [53], on summary of cases of Phyllis Tan and Rayney Wong, Court held that it was 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. this is the
exclusionary discretion the court has, and this is what Rajendran J applied in Dahalan, considering
his focus on the effect that conditions such as the drugs, the lack of necessary language
interpretation, and the destruction of the original record of the statement that made it unsafe to
admit
o Explanation at [55]: where prejudicial effect exceeds probative value, the very reliability of
the statement sought to be admitted is questionable
o This is an area of judicial discretion that Parliament has left the courts, as seen in the
wording of s 258(1) (cited Dahalan) in approval
o Additionally, it is clear in the CPC that probative value is the crucial factor vis--vis
admissibility or non-admissibility of statements under the CPC, this is already the
settled position of the EA per Phyllis Tan, at EA s 29, even a confession obtained in
consequence of deception practiced on A or when he is drunk is similarly relevant &

12
 admissible, which may be said to be unfair to A. However, this kind of evidence is
admissible because of their probative value. This is the overarching principle of the EA.
At [56]: procedural irregularities may be a cause of finding that a statements prejudicial effect
outweighs probative value
o Cannot be denied that the rules prescribed by the CPC for recording statements and the
PGOs exist to provide a safeguard as to reliability
o When fully complied with, PGOs thus help ensure that statements are reliably recorded
o Therefore follows that a serious breach of procedural rules (whether CPC or PGO
rules) renders the statements less reliable
In our system, A is entitled, as a constitutional right, access to counsel, but the
entitlement doesnt extend to immediate access (Jasbir Singh)
Even after A engages counsel, there is no legal rule requiring the police to let
counsel be present during subsequent interviews while investigations are carried
out in fact, court can draw AI if A insists on remaining silent at interview on the
ground that he wishes to take legal advice before answering the question (Yap
Terence)
Therefore, its plain that the law offers the police great freedom & latitude to
exercise their comprehensive & potent powers of interrogation in the course
of investigations evidential reliability of the written statements therefore rest
greatly on the conscientiousness with which the police investigators
conducting the examination & recording observe the prescribed safeguards
(at [57])
o Also appears to be the case that written statements are given more weight c/f other types
of evidence because as formal statements taken by the police, they have an aura of
reliability that comes from their being taken under a set of strict procedures strictly
observed by a trustworthy officer well-trained in investigation techniques
Aura is further enhanced by the admissibility requirement that the recording
officer must be of the rank of sergeant or higher statutorily assumed that such
senior officers are competent and will discharge obligations conscientiously
o In essence, the public policy is in favour of trusting the integrity f the police, which gives
them certain freedom to conduct their investigations more effectively & efficiently, which
does come with inherent risks
At [59]: e.g. an officer which may not go as far as to ITP a statement, but may
record the statement with embellishments, and if the suspect doesnt get to
read or sign the statement, then theres no assurance that the statement faithfully
reflects what he disclosed
Or e.g. a statement taken by an indolent officer who only records it well after the
examination, and fills in the gaps based on his own views of suspects guilt
The only safeguards standing in the way of such situations are the salutary
requirements of the CPC and PGO, especially those requiring statements to be
promptly reduced to writing, immediately read back to the maker, corrected in
necessary, and signed these safeguards ensure that the uncompromising need
for accuracy and reliability for such statements is met, considering the
statements are likely to be tendered as evidence before a court - if prejudice
>probative value, court should not be slow to exclude statements
At [61]: therefore if the court is looking to admit a statement recorded in breach of CPC and/or
PGO, it bears the burden of establishing that probative value > prejudicial effect
o Burden discharged by giving a reasonable explanation for why probative value >
prejudicial effect
o So a statement such as Dahalan, where violation was flagrant generally requires a more
cogent explanation to discharge the burden, c/f cases where irregularities are merely
careless or arising from an operational necessity
Because the bona fides of an officer who deliberately breaches the requirements,

13
 or knowingly disregards them would necessarily be more questionable
Also, such conduct should not be encouraged (!!!) court should be wary when
accepting explanations of ignorance of correct procedures
But really its a case-to-case thing evaluate the probative value & prejudicial
effect in each scenario
At same time, CoA at [65] also cautioned D against burdening the court with unmeritorious
technical defences only serious irregularities, which are those that materially affect the
evidential value of a voluntary statement, will suffice to cause the court to exercise exclusionary
discretion
o Sathiadew statement was read back to A, but recording officer failed to obtain his
signature omission generally did not impact probative value of statement
o Tsang Yuk Chung police officer failed to give notice stated in s 23 -> prejudicial
effect in this case was low, since the statement didnt damage As case
o Mazlan court failed to inform suspect of his right against self-incrimination under s
22(2) did not have prejudicial value
o Foong Seow Ngui officer failed to indicate at the end of the statement that the
statement had been read to A and A was offered opportunity to mae corrections
did not have prejudicial value, because the mere absence of such a clause doesnt
affect admissibility if the requirements (reading + opportunity) were fulfilled
o Fung Yuk Shing found that officer had taken own As statement but didnt show it to
him or let him sign. Pocket book was admitted as evidence, but not the original piece
of paper the statement was taken on. However, the court found the officer to be a
credible witness on xx, so prejudicial effect of evidence not high
o In fact, at [66]: the failure to inform A of caution under s 23 or s 22(2) may affect what
A chooses to say, but not the reliability of what he actually says this shouldnt
form the grounds of exclusion without anything else
At [68]: Court cautioned against the exclusionary discretion being used to discipline the wrongful
behaviour of police officers
o Important to distinguish an evidential discretion from a disciplinary function (cited Sang
and Mazlan)
o Court should also refrain from excluding evidence based only on facts indicating evidence
was obtained in an unfair manner (citing Phyllis Tan and Rayney Wong)
o That said, a vigilant emphasis on procedural requirements on recording statements
can have a +ve effect on quality of such evidence generally court should also make
clear that non-compliance with such procedures weakens Prosecutions case, and
hopes to remove the incentive for officers not to comply

B. Application (for Prosecution)

P may wish to argue that Kadar is restricted to its facts, and the Sang discretion should only be
applicable to statements made under s 22 & 23 of the CPC.
o Therefore, there is no discretion to exclude illegally obtained evidence in the present case.
o Furthermore, even if the discretion is applicable, the probative value of (the illegally obtained
evidence) will outweigh its prejudicial effect
Application
o This is because the illegally obtained evidence as with the present case clearly demonstrates
the accuseds mens rea and actus reus and thus has very high probative value, whereas its
prejudicial effect to the accused at trial is close to none.
Unless its a statement taken under s 22 & 23: E.g. in cases like Kadar, the prejudicial
effect arises from the aura of reliability police statements have because there are

14
 rigorous standards in place that the police must abide by when taking a statement,
thereby safeguarding the process. In cases of procedural irregularity, prejudice arises
because too much weight may be placed on the statement despite the irregularity
o Additionally considerations of pre-trial process would also be contrary to the separation of
powers (Lord Scarman in Sang)
o Thus, the Kadar/Sang discretion even if applicable would not be successful in the present case

C. Application (for X)

While P may argue that Kadar is restricted to its facts, and that Limb 1 of the Sang discretion is only
applicable to statements made under s 22 & 23 of the CPC. However, X can argue that Kadar was
instead reading Phyllis as affirming Sang in its broad proposition, that under Limb 1, courts have a
general discretion to exclude evidence if its prejudicial effect outweighs its probative value. Thus, the
Kadar/Sang discretion is also applicable to illegally obtained evidence.
However, on the issue of whether the probative value of (evidence) outweighs its prejudicial effect, the
court in Phyllis noted that the probative value in illegally obtained evidence will always outweigh its
prejudicial effect. On the facts of the case

3. EVIDENCE OBTAINED THROUGH ENTRAPMENT

Since (evidence) was obtained through luring or instigating A to commit an offence which otherwise,
in ordinary circumstances, he would not have committed, in order to prosecute him and which entails
unlawful conduct by an agent provocateur, in the form of abetment of an offence by instigation or
intentionally aiding A to commit the offence (Rayney at [27]), the evidence was obtained via
entrapment
o Would not apply to disciplinary proceedings (Rayney, Phyllis)
Therefore the issue is whether the court has the discretion to exclude such evidecnce

A. Law

Based on the weight of the authorities of Sang, Summit, Phyllis and Kadar, there is no discretion to
exclude evidence on the grounds that it has been obtained via entrapment, as that would be
tantamount to recognising entrapment as a substantive defence at criminal law, which does not exist
o Rayney at HC has also clarified that there is no distinction in principle between state-directed &
private entrapment
At [65]: no different approaches for private entrapment and state entrapment. The
consequences of entrapment are the same whether or not the state is involved, citing
Ashworth for the view that [w]e should surely not welcome a society in which private
investigators and journalists are free to employ deception on whatever scale, and in
whatever circumstances, they please.
o As such, the only discretion that exists is the Sang discretion which Kadar noted that Phyllis had
accepted, that the court has the discretion to exclude any evidence that had more prejudicial
effect than probative value.
Per CoA in Kadar, the court refrains 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, since the court is more
concerned with the reliability of the evidence (at [68])

15
 o While the antiquated HC case of Cheng Swee Tian did suggest that the court may exclude
illegally obtained evidence if its admissibility would operate unfairly against A, on analysis of
whether the interest of A to be protected from illegal invasions of his liberties by the authorities
should outweigh the interest of the state so as to ensure that the interest of the state in to
secure that evidence bearing upon the commission of the crime, the discretion is problematic
because:
How this balance between state & individual interests should be struck;
What the scope of operate unfairly entails;
What is the basis of the incorporation of this discretion into the EA
o Therefore, Cheng Swee Tians test arguably should not be accepted by modern courts

B. Application

There is no discretion to exclude evidence on the grounds that it has been obtained via
entrapment, as that would be tantamount to recognising entrapment as a substantive defence at
criminal law, which does not exist.
o As seen in Kadar, the court refrains 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, since the court is more concerned with the
reliability of the evidence (at [68])
Therefore, the issue is whether the evidence can be excluded on the basis that it was illegally
obtained

4. IMPROPERLY OBTAINED EVIDENCE (PROCEDURAL IRREGULARITIES)

On the facts of the case, the s 22/s 23 statement did not comply with procedural requirements
because_____________________.
As such, two issues arise:
o Does the non-compliance make the statements inadmissible under s 258?
o If not, does the court nevertheless have the discretion to exclude such procedurally-flawed
evidence

A. Issue 1: Admissibility

On the first issue, a mere non-compliance with CPC/PGO procedure does not render the statement
inadmissible if its satisfies the voluntariness requirement in s 258(3) of the CPC (Kadar at [45]). This is
also set out in Explanation 2(e) of s 258(3)
o See previous muggers on voluntariness test.

B. Issue 2: Discretion to Exclude

Per the CoA in Kadar, CoA held that the court has a residual discretion to exclude statements where
the prejudicial effect of the evidence exceeds the probative value at trial (affirming the holding in
Phyllis Tan at [53])
o Procedural irregularities may be a cause of finding that a statements prejudicial effect
outweighs probative value (Phyllis Tan at [56])

16
 o Therefore, courts may apply its exclusionary discretion where statements were recorded in
breach of procedural requirements such as those in s 121(3) (now s 22) or the relevant PGOS.
However, only serious irregularities materially affecting the reliability of the voluntary statement
will trigger the courts discretion (Kadar at [65])
o The burden is on P to explain the procedural non-compliance and to show that the statements
nonetheless have sufficient probative value (Kadar at [147])
o Statements taken in deliberate or reckless non-compliance in relation to procedural
requirements will generally require a more cogent explanation from P to dischared this
burden, as compared to where the irregularities are merely careless, or arising from a pressing
operational necessity (Kadar at [62]

Cases
Sathiadew statement was read back to A, but recording officer failed to obtain his signature
omission generally did not impact probative value of statement
Tsang Yuk Chung police officer failed to give notice stated in s 23 -> prejudicial effect in this case
was low, since the statement didnt damage As case
Mazlan court failed to inform suspect of his right against self-incrimination under s 22(2) did not
have prejudicial value
Foong Seow Ngui officer failed to indicate at the end of the statement that the statement had been
read to A and A was offered opportunity to mae corrections did not have prejudicial value, because
the mere absence of such a clause doesnt affect admissibility if the requirements (reading +
opportunity) were fulfilled
Fung Yuk Shing found that officer had taken own As statement but didnt show it to him or let him
sign. Pocket book was admitted as evidence, but not the original piece of paper the statement was
taken on. However, the court found the officer to be a credible witness on xx, so prejudicial effect of
evidence not high
c/f Kadar
o Breach of s 22 statement procedure (not read back to him, not signed)
o Breach of Police General Order (wrote on piece of paper, entered into diary only after lunch)
o Major Discrepancy between original recording and field diary entry (substituted the word
stabbed for slash)
o CA held that irregularity serious enough to compromise reliability in a material way. PV < PE.
c/f Dahalan
o Court considered that the combination of the powerful effects of drugs on As mind, the lack of
necessary language interpretation, and the destruction of the original record of the statement
coupled with Sgt Lais unreliability as a witness, made the evidence unsafe to be admitted
o Kadar interpreted Dahalan as a case where flagrant violations of the procedure combined with
the effect of drugs on A caused the statement to have a greater prejudicial effect than
probative value.
c/f Kong Weng Chong
o Court focused on the poor probative value of the accuseds statement in light of the facts
surrounding its recording, such as the fact that the statement was not reduced into writing until
about five weeks after it was made and that important details had been left out of the
statement in question, and excluded it.

17
PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 (upheld on appeal [1995] SGCA 87)
Facts A and his accomplice was charged with trafficking in more than 15g of diamorphine
One Sgt Lai was tasked with interviewing them and recording their answers in his pocket book
o However, he merely jotted their answers down on a piece of paper before writing out
an expanded version of the contents in his pocket book
Sgt Lai told the court that he interviewed A in English, and that A could
understand English, so he did not ask A whether he wished to speak Malay
Sgt Lai also claimed that he jotted down what A said in note form on the paper,
and before he left the station that evening, wrote an expanded account of what
he noted in his pocket book, and then destroyed the piece of paper
Agreed during the first voir dire that he knew the interview was an important
assignment since A would face the death penalty, but in spite of this knowledge,
failed to record a proper statement from A, have it read back to him, and then
have A signed it, or at least note the statement in his pocket book
Claimed that this was because he was in the vicinity just prior to the
interview, and did not take the trouble of going to the office to get his
pocket book because plainclothes officers were not expected to carry
pocket books around
Left the pocket book in his office drawer, and would make entries only
when he was free
o P subsequently sought to adduce evidence of the conversation between Sgt Lai & A
wanted to admit the contents of the pocketbook as evidence
Sgt Lai recorded that A said he intended to sell the sachets of powdery
substance for $150 a sachet
/held/ Court found it difficult to believe Sgt Lais claims as to how pocket books were to be entered
o While it may be acceptable not to take notes at all, or just jot down notes on paper
where an officer is on surveillance duty, court doubted that this was accepted practice
for a formal interview with A, and that it was also accepted practice to destroy the
notes after transcribing the contents into his pocket book
o In fact, this is clearly not what the Police General orders (PGO) are obligatory to
keep pocket books on them at all time
Also directed to make entries in the pocket book whenever possible at the
time of occurrence, and any notes made on pieces of paper had to be copied
in the pocket book ASAP, with the original retained as an exhibit in case of
need (O4)
Where occurrences recorded were likely to be subject of legal proceedings,
should be recorded in fullest possible detail, including actual words of
relevant statements (O7)
Where pocket book is used to record statement, must be done in compliance
with s 121(3) (now s 22) of CPC
o When confronted with these provisions, Sgt Lai admitted that he knew of these
provisions, but failed to follow them because he had forgotten about them
Court also did not believe that A used the word intended
o Sgt Lai insisted he did, but changed his mind during questioning and testified that A
had in fact said he wanted to sell the drugs, and he was just not careful when he
made that record in the pocket book
o Agreed with the court that he changed his testimony when he realised that A didnt
know enough English to have used the word intended
At [26]: Court opined that on the words of s 258(1), where it appeared that there was an ITP,
the court is obliged to reject the statement, it has no discretion to admit the statement
o However, in situations not covered by s 258(1), a discretion to admit evidence could
be said to exist because the provision reads that a statement made an accused
person shall be admissible, not shall be admitted

18
 o Court opined that on plain construction, the provision reads that where the proviso
does not apply (i.e. where the statement is voluntary), the court is vested with a
discretion to admit or reject such statements
At [79]: On the facts of the case, Sgt Lai had had ample time to read the statement back to A
and ask A to confirm its accuracy, and get A to sign it, as per s 22
o However, he flagrantly disregarded the provisions of s 22 and the provisions of the
PGO
o He had also expanded what was said by A and used words that were not uttered by
A like intended and sachets of powdery substance
o While P relied on the case of Fung Yuk Shing to argue that disregard of the PGO and s
22 are irrelevant considerations to the admissibility of a statement, curt disagreed
the case doesnt stand for the position that the police have carte blanche to ignore s
22 and the directions carefully spelt out in the PGO on keeping pocket books.
o All that the case says is that on the facts of hat case, TJ cannot be faulted for
admitting the statement as TJ was satisfied, in spite of the irregularities present,
the officer was a credible witness, and the entries in his pocket book were honest
& accurate
On the facts of the case, this dude clearly isnt
o He asserted that he wasnt required to have his pocket book with him or required to
transcribe his notes from the statement in the pocket book, which were blatant
untruths
o Only admitted that he was aware of the PGOs contents when confronted with the
PGO
o Should have complied with s 22 and read back As statement, had him sign it there
was also clearly no need to transcribe and then destroy the piece of paper (?)
While it is settled law by now that an oral statement would not be rendered inadmissible
merely because of a non-compliance with the mandatory provisions of s 22 (citing Mazlan
at [84]), there is good reason why the legislature in s 22 spelt out the manner in which
statements are meant to be recorded, and why the Commissioner of Police specified in lucid
detail the manner in which pocket books are to be kept
o The fact that s 258(1) provides that oral statements are admissible in evidence
should not be treated as licence for the police to ignore the PGO and s 22 and
render these safeguards meaningless
o In this case, considering how flagrant the violations of these provisions are, it is
incumbent on P to either offer some reasonable explanation for the violation or desist
from attempting to adduce statements taken in disregard of these provisions as
evidence before the court
o While its fair to say that Sgt Lai probably didnt, at the time of the interview, consider
that P would adduce this evidence at trial, its important for a prosecutor to consider
carefully the circumstances under which a statement was made, and only seek to
adduce the statement as evidence if the circumstances warrant so.

Lim Thian Lai v PP [2006] 1 SLR(R) 319

Facts A was charged with murder of V by shooting him in the back of the head
o A made a number of statements to the police while he was in custody
o Argued that the statements were given involuntarily and inadmissible because he was
threatened & induced into making the statements
o Also argued that they had failed to issue a warning to him under s 121 (now s 22), and
that he had poor command of the English language
/held/ At [17], cited TJs judgment with approval:
o Settled law that As statement will not be rendered inadmissible on the basis that s 121
has not been literally adhered to

19
 o S 121 does not address the issue of admissibility of statements made in the course of
police investigations purely imposes an obligation on the person questioned to tell
the truth subject to the proviso permitting him to maintain his silence on matters that
may be personally incriminating

PP v Tan Kiam Peng [2007] 1 SLR(R) 522 at [44], [45] (appeal dismissed in Tan Kiam Peng v Public Prosecutor
[2008] 1 SLR(R) 1)
Facts A was placed under arrest at the Woodlands checkpoint when he attempted to import ten
packets which contained 145g of heroin
One of his grounds of argument was that there were several procedural irregularities in respect
of statements purportedly taken by investigating officers disputed that he ever
acknowledged that he was carrying heroin
/held/ At [44], cited Vasavan:
o A failure to sign a statement does not support the inference that the inspector was
lying and that A made no statement at all
o Once A becomes an accused person, the statement is admissible, whether or not it
was recorded, whether or not it was read back, as long as it was voluntary
At [45]:Acknowledged that a failure to follow procedural safeguards explicitly articulated in s
121 (s 22) may in some circumstances diminish in the courts eyes the veracity or accuracy
of the statement purportedly made by A
o Cited Halsbury: While admissibility of evidence is unaffected by breach of procedure,
the weight of the evidence may be affected by the increased risk of insincerity,
embellishment and indoctrination occasioned by the breach. Ex hypothesi, the fact
that the person being interrogated was not informed about the purposes of the
investigations cannot affect admissibility but the weight of any statement made
may be diminished if the person interrogated was speaking at cross-purposes as a
result of confusion or misunderstanding as to the purport of the inter

C. Concluding Paragraph

Where there was minimal procedural irregularity

On the facts of the case the (procedural irregularity) arguably did not materially affect the reliability of
the statements because
o Kadar at [65] cautioned defence against burdening the court with unmeritorious technical
defences only serious irregularities, which are those that materially affect the evidential
value of a voluntary statement, will suffice to cause the court to exercise exclusionary
discretion
o The court is similarly unlikely to find prejudicial effect outweighs the probative value in this
case. On the facts of the case
However, procedural irregularity may diminish the weigh accorded to the admitted statement due to
the increased risk of insincerity, embellishment and indoctrination occasioned by the breach for
procedure (Halsbury, cited by Tan Kiam Peng at [45]). This in turn would diminish the weight of any
inferences drawn from the statement, adverse or otherwise.

Where severe procedural irregularity

On the facts of the case the (procedural irregularity) arguably materially affected the reliability of the
statements because.

20
 As a result, the statement should be excluded as its prejudicial effect outweighs its probative value
since

5. ILLEGALLY OBTAINED EVIDENCE IN A CIVIL CONTEXT

Here, the (IOE) was obtained improperly via (method).

In the present case, the law of confidence will likely/unlikely apply to restrain Pf from adducing the
aforementioned evidence
In the alternative, there is an inherent discretion in the context of civil proceedings stemming from the
same power exercised in Kadar
o This was acknowledged in ANB at [90], where the court acknowledged that different societal
and policy reasons as well as arguments may apply vis--vis the inherent discretion of the
court to exclude evidence as between criminal and civil proceedings
While the discussion regarding discretion is dicta in ANB, the HC decision nevertheless
stated its position concerning principles governing the courts discretion to exclude
evidence in civil proceedings, and CoA considered it necessary to respond with
tentative observations:
o Per ANB(CA), a balance must be struck between the evidences significance to issues at trial
(i.e. probative value) and its impact on the fairness of the trial, legal entitlements of party
against whom evidence is sought to be adduced (e.g. rights in confidential info), conduct of the
parties, and importantly, the interests of the administration of justice (particularly whether
the degree of impropriety in the method the evidence is obtained is such that admitting it
compromises integrity of the judicial process)
Prejudicial > probative may not be entirely appropriate here, because the concerns are
different, and the options for the parties are also different
In fact, Pinsler suggests that fairness in a civil context =/= prejudice in a criminal contact
Fairness is any consideration affecting the courts ability to try a case justly
e.g. if a party tries to introduce evidence at a late stage of the proceedings
Should be considered along with other countervailing factors alleged
improprieties of the wife in infringing the husbands proprietary rights over his
computer and confidentiality right over his info, or whether the evidence could
be obtained through the regular discovery, and whether, as the wife alleged,
the evidence proved that the husband was falsifying info
o If court decides not exercise discretion must then look at what sanction to impose on the
taker of the evidence for the improper manner in which the evidence was obtained and his
failure to engage ordinary rules of procedure
Possible that cost orders reflect the courts disapproval of such conduct because the
interests of the administration of justice must include both fair adjudication and a
deterrence of improper conduct of parties while conducting litigation

Cases

ANB v ANC [2015] 5 SLR 522 (especially [27] onwards)

Facts Husband alleged that wife, who had left the matrimonial home, had returned to the padlocked
premises while he was overseas, removed, and improperly hacked his computer
o He also claims that she then engaged a PI to make copies of the files in his hard drive
and passed the files to her legal representatives to use in divorce proceedings
o Husband therefore took action for breach of confidence & applied for an ex parte
interim injunction preventing her from using the info improperly accessed from his
computer

21
/held/ HC at [51]: principles governing the discretion to exclude evidence in criminal proceedings
apply in civil cases, but would not be exercised in most civil cases (rather, the mechanism of
weight attribution would be engaged)
o Because the presumption of innocence is paramount in a criminal trial and the court
should be wary of evidence that may taint the outcome of proceedings
o However, in civil proceedings, the prejudicial effect assumes a far lighter weight & role
when put in the balance against probative value
CoA disagreed on this point does not necessarily mean that exclusionary discretion would be
exercised with less rigidity such that most evidence would not be excluded in civil
proceedings:
o May be the case that the probative/prejudicial balancing exercise cannot apply to civil
proceedings, and a different balancing exercise should be conducted
o Phyllis and Kadar are cases concerning propriety of the conduct of PIs and Police
Officers, different from cases such as ANB, which concerned the propriety of wifes
conduct and protection of husbands proprietary rights, and whether protecting them
is in public interest
o Phyllis and Kadar are cases where the evidence could not be attained any other way
in this case, the wife could have just sought discovery
Therefore Phang JA opined that civil cases have different countervailing factors e.g. the need
to protect potential proprietary interests & public interest in promoting the obtaining of
evidence by way of legally prescribed methods

Per ANB(HC) at [51]: principles governing the discretion to exclude evidence in criminal proceedings
apply in civil cases, however, the court acknowledged that such a discretion would not be exercised
in most civil cases (rather, the mechanism of weight attribution would be engaged)
oBecause the presumption of innocence is paramount in a criminal trial and the court should be
wary of evidence that may taint the outcome of proceedings
o However, in civil proceedings, the prejudicial effect assumes a far lighter weight & role when
put in the balance against probative value
CoA disagreed on this point does not necessarily mean that exclusionary discretion would be
exercised with less rigidity such that most evidence would not be excluded in civil proceedings:
o May be the case that the probative/prejudicial balancing exercise cannot apply to civil
proceedings, and a different balancing exercise should be conducted
Phyllis and Kadar are cases concerning propriety of the conduct of PIs and Police
Officers, different from cases such as ANB, which concerned the propriety of wifes
conduct and protection of husbands proprietary rights, and whether protecting them is
in public interest
Phyllis and Kadar are cases where the evidence could not be attained any other way
in this case, the wife could have just sought discovery
Therefore Phang JA opined that civil cases have different countervailing factors e.g.
the need to protect potential proprietary interests & public interest in promoting
the obtaining of evidence by way of legally prescribed methods
o Principles for civil cases?
Since the exclusionary discretion stems from the courts inherent power to prevent
injustice & abuse of process, primary concern of the court is maintaining the integrity
of its system of adjudication

6. READINGS

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 (Non-Justice) Pinsler
It is settled that there is a judicially developed discretion to exclude admissible evidence in criminal
cases if the probative value of the evidence is outweighed by its prejudicial effect at trial (Kadar)
o In Kadar, although the statements were admissible under the CPC, the circumstances in which
they were recorded by the police & other incidents rendered them unreliable
o CoA concluded that HC ought to have exercised its discretion & excluded the statements on
the basis that their prejudicial effect outweighed their probative value characterised this
power to reject otherwise admissible evidence as an exclusionary discretion based on the CL
(Sang), and court also referred to its inherent power to prevent injustice
o More significantly, if we look at Kadar, COA didnt consider themselves as developing a new
law, but felt they were applying the principle as endorsed in Phyllis Tan, despite the cases
between Phyllis and Kadar that regarded Phyllis as rejecting the notion of a discretion to
exclude evidence in the face of the omission of such a principle in the EA
o Pinsler thinks it depends on how you read Phyllis its possible to even argue that Chan CJ was
merely saying that Sang is consistent with the EA because evidence obtained by entrapment
would always be more probative than prejudicial
o Especially considering Chan CJs judgment apparently favoured Australian & English cases
which developed a separate balancing test for determining how to respondent to
improperly obtained evidence (regardless of the effect of impropriety on the reliability of
the evidence at trial)
o Impression given by Chan CJ is that if he had decided that he could exercise a power to
exclude evidence independently & unrestricted by the EA, he might have applied the balancing
test as was seen in Ridgeway and Looseley
Approach involves the balancing if two competing interests of the administration of
justice:
[1] Judicial access to all relevant evidence; and
[2] Rejection of relevant evidence which has been obtained in a manner which
compromises the integrity of the judicial process
If Concern [2] > [1], court may exclude the evidence after taking all germane factors
into account
Really there is sufficient authority already to mount the argument that the court does have a discretion
to exclude evidence when the manner in which it has been obtained compromises the integrity of the
administration of justice
o Argument is made on the basis of Chan CJs inclination towards Ridgeway and Looseley, and
the acknowledgement by the CoA in Kadar of a discretion to exclude evidence that is
independent of the EA, as well as the observations by CoA in ANB
Similarly at the 2nd Reading of the Evidence (Amendment) Bill in 2012, the Minister of Law stated that
the court has a general power to exclude improperly obtained evidence pursuant to its inherent
jurisdiction, and did not make any distinction between criminal & civil cases
ANB
o With regard to civil cases, there is now apparently no doubt that the manner in which a party
obtains evidence may be a significant factor taken into account by the court to determine
whether it should exercise its discretion to exclude
o Addressed in ANB v ANC case on the law of breach of confidence, but HC decision
nevertheless stated its position concerning principles governing the courts discretion to exclude
evidence in civil proceedings, and CoA considered it necessary to respond with tentative
observations until a full & final judicial pronouncement could be made
HC at [51]: principles governing the discretion to exclude evidence in criminal
proceedings apply in civil cases, but would not be exercised in most civil cases (rather,
the mechanism of weight attribution would be engaged)
Because the presumption of innocence is paramount in a criminal trial and the
court should be war of evidence that may taint the outcome of proceedings
However, in civil proceedings, the prejudicial effect assumes a far lighter weight

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 & role when put in the balance against probative value
CoA disagreed on this point does not necessarily mean that exclusionary discretion
would be exercised with less rigidity such that most evidence would not be excluded in
civil proceedings:
May be the case that the probative/prejudicial balancing exercise cannot apply
to civil proceedings, and a different balancing exercise should be conducted
Phyllis and Kadar are cases concerning propriety of the conduct of PIs and
Police Officers, different from cases such as ANB, which concerned the
propriety of wifes conduct and protection of husbands proprietary rights, and
whether protecting them is in public interest
Phyllis and Kadar are cases where the evidence could not be attained any other
way in this case, the wife could have just sought discovery
Therefore Phang JA opined that civil cases have different countervailing factors e.g.
the need to protect potential proprietary interests & public interest in promoting the
obtaining of evidence by way of legally prescribed methods
o Principles for civil cases?
Since the exclusionary discretion stems from the courts inherent power to prevent
injustice & abuse of process, primary concern of the court is maintaining the integrity
of its system of adjudication
Balance therefore between its significance to issues at trial (i.e. probative value) and its
impact on the fairness of the trial, legal entitlements of party against whom evidence is
sought to be adduced (e.g. rights in confidential info), conduct of the parties, and
importantly, the interests of the administration of justice (particularly whether the
degree of impropriety in the method the evidence is obtained is such that admitting it
compromises integrity of the judicial process)
Prejudicial > probative may not be entirely appropriate here, because the concerns are
different, and the options for the parties are also different
In fact, Pinsler suggests that fairness in a civil context =/= prejudice in a criminal contact
Fairness is any consideration affecting the courts ability to try a case justly
e.g. if a party tries to introduce evidence at a late stage of the proceedings
Should be considered along with other countervailing factors alleged improprieties of
the wife in infringing the husbands proprietary rights over his computer and
confidentiality right over his info, or whether the evidence could be obtained through
the regular discovery, and whether, as the wife alleged, the evidence proved that the
husband was falsifying info
If court decides not exercise discretion must then look at what sanction to impose on
the wife for her improper manner in which the evidence was obtained and her failure to
engage ordinary rules of procedure
Possible that cost orders reflect the courts disapproval of such conduct
because the interests of the administration of justice must include both fair
adjudication and a deterrence of improper conduct of parties while conducting
litigation

Implications in the criminal sphere
In ANB, it was acknowledged that there is an inherent discretion in the context of civil proceedings
stemming from the same power exercised in Kadar
o At 90: Different societal and policy reasons as well as arguments may apply vis--vis the
inherent discretion of the court to exclude evidence as between criminal and civil
proceedings
o This can be construed as justifying an overall inherent discretion that may be exercised by a
court in accordance to appropriate principles applicable to the varying considerations in
criminal & civil cases
o Main concern in ANB is the effect of the manner of obtaining evidence on rule of law no

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 reason why the fundamental rule that one who lives in a civilized society must abide by the rule
of law should exist in civil, and not criminal cases
C/f in Phyllis, Chan CJs holding that there is no discretion to exclude evidence
obtained by entrapment because probative value > prejudicial effect doesnt take into
account the integrity of the administration of justice
E.g. A case where X is enticed to come to SG for a short holiday from his native
Malaysia to a gathering of his owl friends, and is offered a gift of a packet of
diamorphine by one friend X fails to dispose of it, and is charged with possession
This wouldnt be excluded according to Phyllis even though the conduct of the
authorities is arguably more harmful to public interest than Xs possession
o Argument has been made that Kadar is concerned with the reliability of the statement, and
endorsed the prejudicial effect/probative value test in relation to the reliability of evidence at
trial, and the case itself doesnt prohibit the wider application of the test to the manner of
obtaining evidence, regardless of its effect at trial (who cares if its reliable we have
STANDARDS)
Rajah JA in Rayney similarly opined that if he had not been unfettered by any
authority, [he] would [have been] persuaded that there will be particularly egregious
instances of misconduct where the courts should reject evidence that has been
procured in a manner that might be inimically repellent to the integrity of the
administration of justice.
However, probative/prejudicial test is not a helpful standard to apply when our only
concern is the manner the evidence was obtained
o However, in Phyllis, Chan CJ clearly opined that the courts have no discretion to exclude
illegally obtained evidence on the provisions of the EA
And also cited Ridgeway, a case where the illegal actions of the Australian Federal
Police caused A to commit offence of importing prohibited drugs conduct of the
police constituted a vital element of the offence since the heroin was imported
unlawfully by a Malaysian officer as part of an operation involving controlled
importation and delivery for purpose of arresting A in Australia
HC had to balance the following public interests whether in the circumstances
of the case, public policy considerations favoured exclusion of the evidence of
As offence (namely the public interest in maintaining the integrity of the courts
& ensuring observance of the law and minimum standards of propriety
observed by those entrusted with the powers of law enforcement) and
outweighed the obvious public interest in conviction & punishment
Excluded the evidence where the illegal police conduct was actually itself the
principal offence to which the charged offence is ancillary, or when the police
conduct constitutes an essential ingredient of the charged offence, the police
illegality & the threat to the rule of law which it involves assumes a particularly
malignant aspect
Looseley was a case where an undercover police instigated A to supply him heroin, and
then applied for stay of proceedings on the argument that a prosecution based on
entrapment evidence is an abuse of process
o Clear from Chan CJ that not every instance of police impropriety justifies an exclusion at [65],
this is just one factor which is brought into balance
At [68] cited Hoffmann in Looseley once the court considers the unlawful police
conduct as having crossed the line into the sphere of impropriety & unacceptability
constituting an affront to the conscience of the public court must act by staying
proceedings c/f Ridgeway, which responded by excluding the evidence since it found a
stay inappropriate in view of the separation of powers in Australias constitutional
system, and also that invoking a courts jurisdiction to try an offender for an offence is
precisely what the process is intended for
Chan CJ at [112] agreed with the HC at Ridgeway and also observed that the factors

25
 referred to in both Ridgeway and Looseley would be appropriate for a SG court to take
into account if a balancing test is applied
The standing of Summit criticised in Phyllis for its factual findings, reasoning, legal conclusions
o Yong CJ in Summit drew a distinction between cases where police conduct has merely induced
A to commit the offence which he has committed, and a case where illegal police conduct itself
constitutes an essential element of the charged offence
In situation [1] public interest in conviction & punishment of A is likely to prevail over
other considerations, and the exclusion of evidence would in fact undermine judicial
integrity in allowing the acquittal of a guilty person
In [2] the illegality & threat to the rile of law which it involves assume a particularly
malignant aspect, and the integrity of the administration of criminal justice would
require such evidence to be excluded
o Yong CJ rejected the balancing tests could not be applied, and the disciplinary approach
which Yong CJ considered to have been engaged in Ridgeway could not be justified his
approach was simply to consider the preceding unlawful conduct of the PI, w/o any
reference to the charged offence
This would exclude all entrapment evidence every case of entrapment involves a
preceding offence (abetment) which brings about a subsequent offence (charged
offence), but it cannot be the case that all preceding breaches of law render the
evidence procured of the commission of the charged offence inadmissible (at [113])
o Pinsler argues that it may be said that Chan CJs observations in Phyllis provides a basis for the
court to exclude improperly obtained evidence if the balancing test is tilted in favour of the
administration of justice
So its not the case that the discretion is exercised simply because the police acted
unlawfully in procuring evidence
Must be based on the administration of justice balance the gravity of polices offence
& the subsequent offence that A is charged with
Overall consideration is whether the conduct of the law enforcement officer was
so seriously improper as to bring the administration of justice into disrepute (at
[47])
Law applies equally to all should not take into account whether officer was a
police officer or a PI
Phyllis > Summit more recent, comprehensive, intended to definitively
declare principles governing the discretion to exclude evidence (even if just
dicta), subsequent cases of Kadar & ANB regard Phyllis as primary authority
Violet Thread
There is a thread of authorities that justify a discretion to exclude admissible evidence irrespective of
probative value procured in a manner so offensive to the integrity of the administration of justice that it
should not be relied upon
o Kadar arguably is concerned with unfairness resulting from admission of unreliable statements
at trial, but the judgment doesnt close the door to the exclusion of evidence in circumstances
warranted by the interests of administration of justice
o This was also supported by the Minister of Law the court has an inherent jurisdiction to
exclude evidence, and it is for the courts to determine how to exercise it
o ANB as well emphasised the importance of the courts inherent discretion to protect legal rights
& preserve the authority of legal infrastructure in a civilized society according to the Rule of Law
o Cheng opined that it was undisputed law that there is a judicial discretion to exclude relevant
evidence if the reception would operate unfairly against A, taking into account the interest
of the individual to be protected from illegal invasions of his liberties by the authorities [and]
the interest of the state to secure that evidence bearing upon the commission of crime and
necessary to enable justice to be done
Cheng was criticised for being inconsistent with the EA in Phyllis, but its citation in
Chan Chi Pun as the governing authority regarding the principles governing the

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 discretion to exclude evidence has not been doubted
o Rayney at [64]: [T]here will be particularly egregious instances of misconduct where the courts
should reject evidence that has been procured in a manner that might be inimically
repellent to the integrity of the administration of justice. This will protect those who should
not be convicted contrary to the publics sense of justice.
o Kadar strongly opines that the failure of law enforcement officers to meet the standards
required of them hinders the interests of the administration of justice
o In ANB, CoA indicates that a court may need to exercise its discretion more robustly, or at
least more vigorously than the HC contemplated because of the variety of countervailing
factors which may arise and the need to protect potential proprietary interests, and the
public interest in promoting legitimacy in the method of obtaining evidence
Pinsler therefore thinks that it should be possible to revisit Ridgeway and Loosely, and formulate a new
balancing test that takes into account the interests of A judged on the basis of reliability (as per Kadar)
as well as the interests of the administration of justice where evidence has been obtained in a manner
that offends integrity of the judicial process.

Prof TYLs arguments: Sing a Song of Sang

TYL argues that the EA provides for a built-in discretion: ss. 14, 15 and 9.
o Sections 14 and 15, which are provisions concerned with the admissibility of SFE, seem to
require particular relevancy and not general relevancy. This may be seen from the words is
in issue or relevant in s 14 and the words When there is a question in s. 15.
These words suggest that the judge has some discretion in assessing whether the SFE
is sufficiently relevant or sufficiently in question for it to be admissible.
o S. 9, which is concerned with facts necessary to explain or introduce relevant facts, also allows
for flexibility in its use of the words which support or rebut an inference and insofar as they
are necessary for that purpose. The words support or rebut and inference are sufficiently
ambiguous to give the judge discretion in considering when evidence would be admissible
under s. 9.
o TYLs reading is sustainable. Unfortunately, no court has adopted TYLs suggestion.

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