Issue

The issue is whether the statement made by Castello during the investigation process
which was recorded under the Criminal Procedure Code by admitting that he brought Mona to
Durian Tunggal but denied killing Mona is admissible as evidence in Court.

Law

According to Section 17(1) of Evidence Act 1950 (EA 1950),1 it provides that an
admission is a documentary or oral statement which suggests any inference as to any relevant
fact or fact in issue which is made by a party to a case which adversely affects his own
interest.
According to Section 18(1), (2) and (3) of EA 1950,2 it states that an admission can
only be made by a party to proceedings, agents of any party to proceedings and parties acting
in a representative character. In PP v Dsai, 3 it was held that an accused falls under the
category of party to a proceeding.
According to Section 21 of EA 1950, 4 admissions may be proved as against the
person who makes them or his representative in interest. However, it is not allowed to be
proved by or on behalf of the maker of such admission or by his representative in interest.
In R V Sharp,5 the Court held that a statement made to a police officer out of court by
a Defendant which consists of both self-exculpatory parts and admission must be taken as a
whole in constituting evidence of the truth of the facts it asserted and in determining where
the truth lies.
In Chan Kin Choi v PP,6 the Court held that both the inculpatory and exculpatory
parts of a mixed statement made by the accused to the police officer have to be considered. It
is a matter for the trial judge to decide what weight is to be put on exculpatory part of the
statement. It was also held that for the purpose of assessment of truth, the trial judge is
allowed to test the evidentiary value of the exculpatory statements against the other evidence
tendered before the Court.

1
Evidence Act 1950, s 17 (1)
2
Evidence Act 1950, s 18 (1), (2) & (3)
3
PP v Dsai (No.3) [1999]
4
Evidence Act 1950, s 21
5
R V Sharp [1988] 1 WLR 7
6
Chan Kin Choi v PP [1991] 1 MLJ 260
 In Chin Ted Lit v PP,7 it was held that the accused's cautioned statement which is
partly exculpatory and partly inculpatory is a mixed statement. The Court held that applying
the principle in R v Sharp, the statement must be taken as a whole in deciding where the truth
lies.
In Section 112(1) of Criminal Procedure Code (CPC),8 a police officer making a
police investigation under this Chapter may do an oral examination on any person supposed to
be acquainted with the facts and circumstances of the case. Any statement made by such
person so examined must be reduced into writing form. In Abdul Ghani Jusoh [1981] 1
MLJ 25,9 the Court held that the statement in Section 112 refers to those statements made by
a witness or an accused to the police officer in the course of investigation. In Section 113(1)
of CPC, 10 statement made by any person to a police officer in the course of a police
investigation made under this Chapter shall not be used as evidence unless it falls under the
exception provided in this section. In Section 113(3) of CPC,11 it provides that a statement
made by the accused in course of a police investigation may be admitted in evidence in
support of his defence during the course of the trial.
Application
Applying Section 17(1) and Section 18(1) of EA 1950, such statement made by
Castello is an oral statement which suggests any inference as to any relevant fact or fact in
issue which is made by Castello who is a party to the present case proceedings which
adversely affects his own interest. Applying PP v Dsai, Castello who is an accused in the
present case falls under the category of a party to a proceeding as required under Section 18(1)
of EA 1950. Therefore, it is clear that such statement made by Castello is an admission
recognized under EA 1950. Applying Section 21 of EA 1950, such admission made by
Castello may be proved as against him, but it is not allowed to be proved by or on behalf of
him.
It is important to note that, such admission made by Castello does not consist of purely
exculpatory statements which is by general rule inadmissible. However, it is a mixed
statement comprises of partly inculpatory and partly exculpatory statements. The question
before the Court is whether such mixed statement can be admissible as evidence in Court.
7
Chin Ted Lit v PP [1994] 1 CLJ 362
8
Criminal Procedure Code, s 112 (1)
9
Abdul Ghani Jusoh [1981] 1 MLJ 25
10
Criminal Procedure Code, s 113 (1)
11
Criminal Procedure Code, s 113 (3)
 In answering the question above, applying R V Sharp, Chan Kin Choi v PP, and
Chin Ted Lit v PP, such statement in form of admission made by Castello during the
investigation process which was recorded under the Criminal Procedure Code by admitting
that he brought Mona to Durian Tunggal but denied killing Mona consists of both exculpatory
parts and inculpatory parts. Such mixed statement must be taken as a whole by the Court in
determining where the truth lies. It is a matter for the judge to decide what weight is to be put
on exculpatory part of the statement made by Castello in which he denied that he killed Mona.
The judge in the present case is allowed to test the evidentiary value of the exculpatory
statements made by Castello against the other evidence tendered before the Court. Therefore,
the admission made by Castello which consists of inculpatory part and exculpatory part must
be admissible as a whole by the Court as evidence in determining the truth of the facts such
statement asserted.
Applying Section 112(1) of CPC and Abdul Ghani Jusoh v PP, a police officer
making a police investigation under Chapter XIII of CPC is allowed to do an oral examination
on Castello as the accused who is supposed to be acquainted with the facts and circumstances
of the case and all statements obtained must be reduced into writing form. Applying Section
113(1) of CPC, statement made by Castello to a police officer in the course of a police
investigation made under Chapter XIII of CPC shall not be used as evidence unless it falls
under the exception provided in this section. Applying Section 113(3) of CPC, it provides
that such statement made by Castello in course of a police investigation which was recorded
under the Criminal Procedure Code can only be admitted in evidence in support of Castello’s
defence during the course of the trial. Therefore, the prosecution is not allowed to rely on
such statement made by Castello as evidence since it does not falls under the exception
provided under Section 113 of CPC.
Conclusion
In conclusion, such statement made by Castello in course of a police investigation may
be admissible as evidence under EA 1950 as admission by virtue of its Section 17(1).
However, since the fact shows that it is recorded under CPC, therefore Section 113(1) & (3)
of CPC applies. Hence, it is inadmissible as evidence under by virtue of Section 113 of CPC
because it was sought to be relied on by the prosecution to support their case, and not by
Castello as accused in support of defence during the course of the trial.