CONFESSION & ADMISSION Examples:

Definition : s.17 • “Yes I had an affair with the

deceased” admission
(1) An admission is a statement, oral or
documentary, which suggests any • “Yes I saw the deceased on the night
inference as to any fact in issue or in question” admission
relevant fact, and which is made by
• “ I am not disputing the existence of
any of the persons and under the
the contract , only that there is no
circumstances hereinafter mentioned.
breach.” admission
- civil/criminal
• “ I accept that I was driving the car at
(2) A confession is an admission made at the time of the incident.” confession
any time by a person accused of an
offence, stating or suggesting the • “ I stabbed X and then buried the
inference that he committed that knife in my garden” confession
offence.
- Criminal
Anandagoda v R
*Note : not every admission is a confession
but every confession is an admission. - Test is objective based on a
reasonable man reading the
Distinction between admission & confession: statement.
CONFESSION ADMISSION - Not every statement which
suggest any inference as to the
statement made by an usually relates to a fact in issue is a confession.
accused person which civil transaction and - If a person accused of an offence
is sought to be proved comprises all states expressly that he
against him in a statements committed the offence of which
criminal proceeding to amounting to
he is charged, clearly it is a
establish the admissions as defined
confession.
commission of an in section 18
offence by him
if deliberately and not conclusive proof
voluntarily made may of the matters ADMISSION
be accepted as admitted, but may
Can an admission /confession be tendered in
conclusive in itself of operate as an
the matters confessed estoppel. evidence?
always goes against may be used on behalf An admission is substantive evidence of the
the person making it of the person making fact admitted and is admissible as an exception
it under the to the hearsay rule.
Exceptions provided in
section 21.
The confession of one an admission by one of
of two or more several defendants in PP v DSAI
accused jointly tried a suit is no evidence - Held : Admissions are an exception
for the same offence against another
to the hearsay rule and can be
can be taken into defendant.
proved as against the person who
consideration against
the co-accused makes it.
(Section 30). *Logic : Not self serving must be true
*By virtue of s.21 both confessions and 17, 18 and 21 of the Evidence
admissions can be proved against the Ordinance, 1950.
maker.GR cannot be used on behalf of the
maker.
*Note : s.58 : don’t have to prove the things
*s.23 : letters without prejudice
admitted. Admission is not automatically be
conclusive. The ct has the discretion to ask you
to prove it.
Admission by whom:
*Note : not treated as conclusive
s.18(1) , (2) , (3):

1.party to proceedings
2.agents Exception: s.23 Without prejudice
3.Parties acting in a representative communications:
character
GR : In civil cases an admission can be proved
4.Person with proprietary/pecuniary
against maker. ( s.21 + s.58 )
interest
5.Persons from whom parties have Exception :s.23 in civil cases no admission is
derived their interest. relevant if made on the express condition that
it is not to be given in evidence or under
Note : PP V DSAI
circumstances where this condition can be
Accused is a party to a proceeding. implied by the court.

Where s.23 applies the admission cannot be

used in court.
Admission in civil cases:
s.23 will generally apply to without prejudice
• Note : s.17(1) + s.18 + s.21
communications
• Admissions can be proved against the
maker as an exception to hearsay.

Ma Clyde v Wong Ah Mei

- He held that the onus to explain

why the collision took place was
with the appellant and as the
appellant had chosen not to give
evidence, he gave judgment
against her. A-B Chew Investments v Lim Tjoen Kong
- A report made by the appellant to Summary Judgment-Striking out of affidavits
the police about the accident was on ground that they referred to 'without
admitted in evidence and on prejudice' negotiations - Whether defendant
appeal it was argued inter alia that can claim privilege attached to 'without
the evidence had been wrongly prejudice' negotiations - ss 17 & 23 Evidence
admitted. Act
- The report of the appellant in this
case was a first information report
and was admissible under sections Malayan Banking v Foo See Moi
2 CONDITIONS: • “ I carried the ammunition , I had no
choice they had threatened to kill my
a. parties must be in negotiations over a
family ”
dispute
Mixed statement (indicated that A had
b. there must be communications between
committed the offence and also set up
them with terms to settle the dispute.
a defence)

Boss Ramasamy v Penang Port

*mixed statement can be accepted as a
Although the correspondence was marked confession with conditions, need to admit
“W/P” it was not protected under s.23 as it was everything from the statement (whole) as
merely an opening shot and not a letter in the truth of content.
course of negotiations.
*the inculpatory that will be given more weight
than the exculpatory part.

Rush & Tompkins v GLC Note : purely exculpatory statements are not
admissible as a general rule.
Can be implied from facts even if W/P not
expressly stated. Note: s.17(1) + (2) : a confession

• a. oral/writing (How)

• b. can be made anytime (When)

CONFESSION • c. by A (Who)

Definition: s. 17(2)

Anandagoda v R Confessions can be made:

Its an exception to hearsay rule and can used (1) before /after arrest
against the maker ( DSAI , S.21).
(2) before /after police investigation
started
Logic : statement against
interest it must be true.
Can confessions made to third party (other
Note : confession must be
than PO/customs officer etc) be admitted?
not be purely exculpatory
- Refer s. 113 CPC
• It must implicate
- The confession made to other than
the maker (must be
Examples: the police investigation states can
inculpatory)
be admitted (not bind under 113
• “ I am innocent, I know nothing about CPC)
the drugs”

Exculpatory (not a confession)

PP v Mohd Khayry Ismail
• “ I planted the explosives”
- A was charged with the murder of
Purely inculpatory (confession) a CC’s owner.
 - A owed the owner a fortune and Exclusion of confession:
had threaten to kill him as the
s.21 allows for the admission of a confession ,
owner refused to lend him more
unless it is excluded by other provisions of law
credits.
- Killed the owner with a homemade
explosive and ran.
- Confessed to his 2 friends EA Other provisions
- 2 friends called to testify and the s. 24, 25, 26 CPC/DDA/CL
confessions are admitted and
accepted.
- S. 113 was not applied as it’s made R v Wong Ah Kin
before the arrest.
“The Evidence Ordinance defines an admission
and a confession, a confession being included
PP v Othman A. Aziz under the general definition of admissions. And
then under section 21 it makes admissions
- Murder charge. relevant. The effect of that is that all
- Murdered his gf cos she refused to confessions are relevant and can be proved
marry him. unless they are excluded by some other section
- Regretting it later of the Ordinance or by some other rule of law
- Confessed to the owner of the not perhaps contained in the Ordinance”.
restaurant where he works.
- Was advised to lodge a police
report and did. In short confessions are only admissible if:
- Confession was made bef the
arrest therefore, 113 not affected. • a. it is voluntary(S.24)

• b. proper procedures are

followed(S.25/26 & CPC/DDA etc)
Junaidi Bambang v PP

- Killed his family & wife

- Theres a suicide note which s. 24 Confession caused by inducement, threat
contains a confession of his killing or promise when irrelevant in criminal
- Tried to kill himself proceeding.

A confession made by an accused person is

irrelevant in a criminal proceeding if the
Admissibility of confession: making of the confession appears to the court
A confession under s.17(2) is admissible under to have been caused by any inducement,
s.21 as evidence of the truth of contents as threat or promise having reference to the
against the maker of the confession. charge against the accused person, proceeding
from a person in authority and sufficient in the
Note : s.17(2) & s.21 cannot be read in opinion of the court to give the accused
isolation but must be read together with other person grounds which would appear to him
provisions of EA as well as other legal reasonable for supposing that by making it he
provisions (CPC , DDA etc) would gain any advantage or avoid any evil of
a temporal nature in reference to the
proceeding against him.
Elements: TIP NOT TIP
1.“ You had better tell 1. “be sure to tell the
a. confession by an A
the truth” - PP V NAIKAN truth” –R v COURT
b. is irrelevant if caused by “TIP”
2.“You had better tell the 2.“You better tell the
c. having reference to the charge truth , it may be better truth”-PP v RAMASAMY
for you” -R v FENNELL
d. proceeding from a person in authority

e. To give A reasonable grounds to suppose 3.PP v Liik Ching Kwong- 3.“ Don’t run your soul
that by making the confession he would gain “You must tell the truth into sin, tell the truth”-R
an advantage or avoid an evil ( temporal) or else you will be v SLEEMAN
charged”
Effect: if s.24 is breached the confession is
inadmissible on grounds of involuntariness.

Note : if D alleges that confession is Q OF FACT

involuntary a trial within a trial (voir dire) Not possible to provide an exhaustive list.
must be held to determine the
voluntariness of the confession. The TIPO must have an impact on the mind of
the A.
Burden on P to prove BRD it is voluntary.
If no impact / causation. S.24 will not apply the
confession is voluntary and admissible.
Dato Mokhtar Hashim v PP

A confession is involuntary and inadmissible:

DPP v Ping Lin
a. TIP (Threat, inducement , promise)

b. Oppression
TIP Impact on A
- (TIPO)
- Oppression was judicially implied (Objective test: Q of fact) (Subjective)
in to s.24 and now widely
which it was held that it is not necessary before
accepted.
a statement is held to be inadmissible because
- TIPO is a Q of fact
it is not shown to have been voluntary, that it
should be thought or held that it was
TIP (Threat, inducement , promise) impropriety in the conduct of the person to
whom it is made and that what has to be
- Can be direct/indirect considered is whether a statement is shown to
- Express/ implied have been voluntary rather than one brought
- Words used is not the only factor about in one of the ways referred to.
- Mannerism
- Test: what impact it had on the
mind of the A.
- If it causes the A to make the
statement because he reasonably
believed he will gain an
advantage/ avoid an evil
involuntary
OPPRESSION Deokinanan v R

a person in authority is a person who has

control over the accused in the proceeding.
R v Priestley

- Something which saps the free will To relate with the oppressive circumstances, if the
accused made the statement when he is interrogate
by the police and after 5 hours interrogation without
R v Fulling any rest and refreshment, he made the statement to
- Exercise of authority in a escape from the situation because he believes that
burdensome, harsh or wrongful if he stays more in the interrogation, he would suffer
manner from it, therefore the voluntarily statement only
- Unjust/cruel treatment of an permanent for a period of time which is only
inferior temporal in nature.
- Imposition of a unreasonable or
unjust burden • No dispute that a PO will fall W/I the
def.

PP v Chan Choon Keong • If there is TIP from a person not in

authority s.24 will not apply.
Factors to be considered:

o Characteristics of A (age, sex, health &

personality) s. 25: (1) Subject to any express provision
o Period of time that he was questioned contained in any written law, no confession
o Length of custody made to a police officer who is below the rank
o Rest / refreshments of Inspector by a person accused of any
offence shall be proved as against that
person.
Dato Mokthar Hashim v PP

no prayer time , long and odd hours of Element:

interrogation.
1. Subject to any express provision in any
PP v CHAN CHOON KEONG written law (suggests that other express
provisions will prevail over s.25)
questioned whole night with his hands
handcuffed behind his back ,sleep on cement 2.GR : No confession made to a PO below the
floor w/o blanket , forced to eat chilli padi etc rank of Inspector can be proven against him.
PP v Kamde Raspani

Breach of lock up rules can amount to Pakala Narayana Swami v King Emperor
oppression
Applies to confessions made to PO not in the
course of investigation
*Can also be psychological ( handcuff,
female interrogated by a male officer)
etc.
s. 26: 1) Subject to any express provision The admissibility of confessions under
contained in any written law, no confession Evidence Act must now be read subject to
made by any person whilst he is in the custody s.113 CPC.
of a police officer, unless it is made in the
immediate presence of a Sessions Court Judge
or Magistrate, shall be proved as against that With the new amendment :
person.
A Confession/ any statement made by A can
no longer be admitted as against the accused if
made to PO in the course of investigation.
Elements:

• Applies to confessions made while in

police custody . Exceptions :
• To be admissible it must be made in 1. statements made in id parade
the presence of a Magistrate /Sessions 2. s.27
Court judge. 3. s.32(1)a, i &j
4. separate charge relating to the making
• In the custody of PO :state of being
of the statement
guarded and watched , to prevent
escape. ( Sambu v R ) NOTE: No more confessions for offences under
Penal Code which are subject to procedures
under CPC if made to a PO in the course of
s. 113 CPC: Admission of statements in investigations.
evidence.
Note :other Acts have not been amended yet.

S.37A DDA 1952,S.45 ANTI CORRUPTION ACT

1997& S.16 KIDNAPPING ACT1961

Confessions made in the course of

investigations are still technically admissible
for these acts if the procedure is satisfied and
it is voluntary.

Note : Evidence Act still not amended.

*refer S. 37B DDA: Admission of statement in

evidence

S. 37A DDA:

1.Charged with any offence under DDA

2.Any statement (confessions included)

3.Oral/ In writing

4. At any time (in the course of PI or Not)

5.Made to /in the hearing of any PO of /above

the rank of Insp or senior customs officer
6.Shall not withstanding anything contained in information amounts to a confession or not,
any written law as relates distinctly to the fact thereby
discovered may be proved.
7. Be admissible in evidence .
Section 27 allows information statement
Proviso :
made by an A to be tendered in evidence,
It shall not be admissible if : where it results in a discovery of facts.

a . Caused by TIP (O) ( same as s.24 ) Purpose : To assist the P ,as it allows an
b . If made after arrest – no caution was information statement from the A to be
administered admitted even if made involuntarily.

“It is my duty to warn you that you are not Why : wording “ information” as
obliged to say anything or to answer any opposed to “confession” suggest that
question, but anything you say, whether in s.27 is independent of s.24,25 &26.
answer to a question or not, may be given in Logic : the discovery of fact establishes
evidence” the truth of the information (therefore
Provided that a statement made by any it is reliable)
person before there is time to caution him
shall not be rendered inadmissible in evidence
merely by reason of no such caution having What benefit ?
been given if it has been given as soon as Knowledge of the crime / circumstances of
possible. the crime inference

SUMMARY: That you committed the crime

1. Confessions made to PO in the course
of PI for Penal code offences – OUT (
new s.113 CPC) Lends credence and strengthens the
Prosecution’s case.
2. Confessions made non police officer –
can still be admitted. Elements:

3. Confessions can still be admitted a. information

under other statutory provisions b. received from Accused in the
which have not been amended :S.37A custody of PO
DDA1952,S.45 ANTI CORRUPTION ACT
1997& S.16 KIDNAPPING ACT1961 c. fact must be discovered in
consequence of the information
4. AGC policy to longer tender
confessions made to PO d. fact must be relevant to the crime.

S. 27: (1) When any fact is deposed to as Note : it is an exception to s.24 ( statement
discovered in consequence of information need not be voluntary)
received from a person accused of any
Note: new s.113 CPC does not apply to s.27.
offence in the custody of a police officer, so
much of that information, whether the
Impact : s.27 statement can be admitted in Chong Soon Koy v PP
evidence against the A provided elements are
“It is submitted that the information supplied
satisfied.
by the accused was not admissible, since he
*information= tell them the things that they was arrested under s. 73(1) ISA and at the time
didn’t know yet he gave the statement he was not "a person
accused of any offence" within s. 27. There is
no merit in this argument, since these words
Wai Chan Leong v PP mean "a person accused at the time or
subsequently of any offence”.
- Element of imparting knowledge

Sambu v R
Can info be given w/o words?
In the custody of PO :state of being guarded
Whether by words/not is the Q of facts and watched , to prevent escape.

Jeyamuraly v PP Fact must be discovered in consequence of

Acts such as nodding/pointing in response to the information
a Q can amount to info under S. 27 There must be evidence to show that a fact was
discovered in consequence of the information
received.
Bala Anak Matik v PP
Wai Chan Leong v PP
Simply nodding not an info if w/o words
- (The fact is the consequence and the
information the cause of its discovery)
PP v Norzilan Yaacob - Fact : the object discovered, the place
the object the is found and the
- Q :“Apa kesan galian itu?” knowledge of the A as to this.
- A: “Kalau nak tahu ,gali sendiri”

Discovery
Wong Nam Loi v PP
The thing discovered must have the
- Pointed to refrigerator stated that if characteristic of being hidden: in a place of
there was anything illegal it was in the concealment even if it may be accessible to
fridge. others and could be discovered with difficulty
- Considered as info w/o the information: PP v Mohd Farid

*If police have prior knowledge of the thing

discovered /fact the section will not apply.
Received from Accused in custody:
PP v Liew Sam Seong
The information must have been received from
a person accused of an offence. Must be discovery and not recovery
In other words, the accused himself gave the
information
*recovery cannot be admitted, only discovery.
 Voluntariness is not a prerequisite to admit.

PP v Hashim Hanafi Cf: Md Desa

- Where the police knows the object is s.27 is subject to s.24.

hidden in a particular location but not
the exact place the information can fall
within s.27. Goi Ching Ang v. PP
- If A makes more than 1 statement only
the first will be admissible as a GR s.27 is not subject to s.24 , voluntariness is not
a prerequisite but court may at its discretion
exclude on grounds of unfairness / prejudice.

Information must relate to discovery

Under s.27 only those parts of the statement Francis Antonysamy v. PP

which relates to the discovery admissible. Krishna Rao Gurumurthi v. PP
S. 27 cannot be used as a back door to admit
inadmissible confessions.
*It is desirable that the information be
Those parts of the statement which do not recorded in writing contemporaneous to the
relate to the discovery must be severed. making of the statement. Can also be recorded
after discovery. Should use actual words of the
accused.
Pulukuri Kottaya v Emperor
Sum Kum Seng V PP
“I stabbed S with a spear. I hid the spear in a
yard in my village . I will show you the place.”
PP V Hashim Hanafi

Hashim v PP not mandatory for actual words to be used

although desirable.
“ I will show you where the iron pipe used in
the murder was thrown away.”
s. 30:

Krishna Rao Gurumurthi Confession for an A can be used against a Co-

A.
“ saya setuju tunjukkan barang kemas yang
kami ambil dari kedai emas itu.Saya ada ELEMENTS:
sembunikan dlm satu beg di tempat buang 1. A & CO –A must be tried jointly for the same
grenade di Ulu Kinta.” offence.

2. The confession itself must be proved

Lim Ah Oh V R (voluntariness & other procedural
requirements)
Wai Chan Leong V PP
3. Must affect both A & CO – A

4.Confession of a CO –A by itself w/o other

*s.27 is an exception to s.24 & s.113 independent evidence cannot be sufficient to
sustain a conviction. (Bhuboni Sahu V The King)