(a) Should a statement under section 22(4) of the Criminal Procedure Code 2010 (Cap 68) (“CPC”), which is recorded in English where the person giving the statement is speaking in a language other than English, be interpreted and read over to the person verbatim in a language he understands or will an “explanation” of the statement to the person in a language he understands be sufficient for the purpose of section 22(4) of the CPC?

(b) Should the Investigating Officer examining a witness in order to record a statement be required to: (a) record the statement word for word rather than in an edited narrative form, and/or (b) arrange for an interpreter to interpret and read over the statement to the person being examined rather than the Investigating Officer being examiner, recorder and interpreter?

(c) What weight should be given to a statement, in particular, parts which are alleged to be admissions and used for the purposes of conviction, when the examination by the Investigating Officer is reduced into a written statement in a narrative form, rather than verbatim, and/or not interpreted and read over verbatim by a person other than the examiner?

(a) Where the terms and conditions of a transaction (such as invoice financing of the banks) do not require a document to be furnished (a transport document such as a Bill of Lading) as a precondition for disbursement of monies or handing over of property, can there be deception by the submission of a wrong but unnecessary (transport) document?

(b) Whether the element of “dishonestly induces any person to deliver any property” in section 420 of the Penal Code is satisfied when a misrepresentation in a contractual document submitted by a customer without an intention to cause wrongful gain or wrongful loss and the document was not relied upon by and/or did not cause that person allegedly induced to deliver property.

(c) Arising from (a) and (b), does the fact that the banks rely only on the customer’s contractual warranties and external independent security to disburse the loans, imply that the banks cannot be said to have been induced by other non-material and non-essential documents, to deliver property within the meaning of section 420 of the Penal Code?

(b) Should the Investigating Officer examining a witness in order to record a statement be required to: (a) record the statement word-for-word rather than in an edited narrative form a question-and-answer format with the follow-on questions being not recorded and the answers recorded in a singular fashion and/or (b) arrange for an interpreter to interpret and read over the statement to the person being examined rather than the Investigating Officer being examiner, recorder and interpreter?

(c) What weight should be given to a statement, in particular, parts which are alleged to be admissions and used for the purposes of conviction, when the examination by the Investigating Officer is reduced into a written statement in narrative form in question and answer format with follow-on questions being unrecorded and the answers recorded in a singular fashion, rather than verbatim, and/or not interpreted and read over verbatim by a person other than the examiner?

[deletion marks and underlined text in original]

59 There is always a small but real possibility that an overzealous police officer who believes that a suspect is guilty will decide, perhaps half-consciously, that strict compliance with the procedural requirements for statement-taking may contribute to a factually guilty offender being let off. He may not go so far as to extract an incriminatory statement by threat, inducement or promise, or a statement that is otherwise involuntary. All that is required for a miscarriage of justice to occur is for such a police officer to record the statement with embellishments, adding nothing more than a few carefully-chosen words to the suspect’s own account. If the statement is not read back or signed soon after by the suspect (with proper interpretation where appropriate), there is no assurance that the statement faithfully reflects what he had actually disclosed. Alternatively, a police officer might simply be indolent, leaving the recording of the statement to well after the examination. His memory of the interview having faded, such an officer might fill in the gaps based on his own views about the suspect’s guilt. Such questionable statements could, standing alone, form the basis for wrongful convictions even for capital offences if an accused, disadvantaged by the lapse of time and memory, is unable to convince the court that he did not say what appears in writing to be his words. The salutary requirements of the CPC and the Police General Orders, especially those requiring statements to be promptly reduced to writing, immediately read back to their maker, and corrected if necessary and signed, are the only prescribed safeguards standing in the way of such an unacceptable possibility.

60 Police investigators are aware when they record statements that they are likely to be tendered as evidence before a court and that there is therefore an uncompromising need for accuracy and reliability. The objective of the relevant provisions in the CPC and the Police General Orders is to ensure that both these twin objectives are met in every investigation. For this reason, as well as what we have articulated earlier, we think that a court should take a firm approach in considering its exercise of the exclusionary discretion in relation to statements recorded by the police in violation of the relevant requirements of the CPC and the Police General Orders (or other applicable legal requirements). This means that the court should not be slow to exclude statements on the basis that the breach of the relevant provisions in the CPC and the Police General Orders has caused the prejudicial effect of the statement to outweigh its probative value.

[emphasis in original]

49. It is acknowledged that the Court’s exclusionary discretion will not operate in every circumstance where there is non-compliance. This Court’s decision in Kadar set out the application of the court’s discretion to exclude unreliable statements which are otherwise admissible in evidence. Only serious irregularities which “materially affect the evidential value of a voluntary statement will suffice to cause the court to exercise the exclusionary discretion”.

[emphasis added]

… As a matter of principle, the courts must determine whether there is sufficient generality embedded within a proposition posed by the question which is more than just descriptive but also contains normative force for it to qualify as a question of law; a question which has, at its heart, a proposition which is descriptive and specific to the case at hand is merely a question of fact. …

[emphasis added]

While not disputing the voluntariness of any of the four statements, the Defence challenged the accuracy of the s 22 statements and urged the Court not to rely on them. Essentially, the allegations of the Defence centred on claims that the recorder, ASP Yue, had inserted portions in the statements that were not said by the accused, or excluded things that the accused had said, or mis-recorded the questions and/or the accused’s answers, and also apparently had a pre-conceived notion that there was a scheme to cheat the banks.

[emphasis added]

Central to the DJ’s finding that the appellant possessed the requisite mens rea (ie, guilty knowledge) were the statements recorded from the appellant under s 22 of the CPC. In these proceedings, the appellant’s attempts to impugn the statements can be summarised into the following bases:

(a) That the statements were inaccurate as the interviews with the appellant were in Mandarin, but the statements were recorded in English. In addition, that there were gaps and procedural deficiencies in the statements;

(b) That the DJ had misconstrued the statements.

[emphasis added]

Mr Lim Biow Chuan and Mr Hri Kumar asked if it will be more appropriate for an independent interpreter, instead of the IO, to read the accused person's statements back to him after the statements have been recorded. The Police have found it difficult in the past to require the presence of an independent interpreter in every case. The Police are now reviewing these aspects as part of a review which I have just referred to earlier on how investigations are conducted.

[emphasis added]

(3A) Where a statement made by an accused in answer to a notice read to the accused under subsection (1) is recorded in writing, the statement must —

(a) be read over to the accused;

(b) if the accused does not understand English, be interpreted for the accused in a language that the accused understands; and

(c) be signed by the accused.

121 At least as far as the first s 122(6) statement was concerned, which was the only one in which the appellant said anything other than to deny the charge, this was translated into Hokkien for the appellant by his own admission, a fact which was consistent with PW7’s evidence. The evidence given by PW8 was that he assisted in the making of the first three statements but not the other three as he was called off to do something else. The appellant alleged the other s 122(6) statements were not translated, but this need not be regarded as material as it appeared that, even given the appellant’s limited knowledge of English, he would have understood the statements, which were very simple.

122 In respect of the long statement, it appeared at trial that no translation was provided at any time during the interview. The questions posed to the appellant when PW7 took his long statement were not in fact translated to him. When the interpreting officer, PW9, was asked whether he heard what had transpired between the appellant and PW7, his reply was “Yes, but not exactly”. However, PW7 stated that the statement was translated to the appellant before he signed it although the appellant alleged that it was not.

123 A further irregularity was that although the appellant signed the statement, his residential and business addresses were wrong, suggesting the statement might not have been translated to him. PW9 attempted to explain this by saying that he did not translate the first paragraph as he expected the appellant to be familiar with his personal particulars.

124 The questions before the court were therefore, where an appellant claims not to understand English very well: (a) what is the effect of the interview for the long statement being conducted in English without interpretation; (b) what is the effect if the interview was conducted in English without interpretation but the statement translated to him in a language he understands before he signed it; and (c) what is the effect if the interview was conducted in English without interpretation and the statement was not translated to him at all?

125 I am of the view that, unless the accused person’s understanding of English is so poor that he cannot understand what is being asked of him or cannot communicate with the interviewer, there is nothing wrong with the interview being conducted in English so long as the statement is translated to him and he is given an opportunity to amend or make additions to it. He may then do so in whatever tongue he is comfortable with, and the translator should dictate this to the recording officer. Unless there is bad faith on the part of the translator or recording officer, for example in refusing to incorporate the accused’s amendments or in falsely recording what the accused wished to add, the statement must be good and valid as it has been adopted by the accused. If, however, the statement is not translated to him at all, then it cannot be his statement as the risk of him having adopted as his own something he did not understand is too great to warrant admission of the statement.

[emphasis added]

Question 1: Whether a recording officer has an obligation to record a statement word-for-word when exercising powers under s 22 of the Criminal Procedure Code.

Question 2: Whether the statement has to be recorded in a question-and-answer format.

Question 3: Whether the recording officer can paraphrase the statement.

Question 4: Whether the recording officer has the discretion to decide what to include and exclude from the statement.

Question 5: Whether the person giving the statement can rely on the right against self-incrimination under s 22(2) of the CPC in refusing to sign the statement.

Question 6: Whether a person can legally refuse to sign a statement that is not recorded word-for-word.

Question 7: Whether a refusal to sign a statement that is not recorded word-for-word is an offence under s 180 of the PC.

… In so far as these four questions are concerned, we find that they are not questions of law of public interest as it is well-established that the recording officers can paraphrase statements – indeed, there would, inevitably, be a need to do so when translating statements given in other languages into English. Moreover, statements recorded pursuant to s 22 of the CPC are meant to serve an investigative purpose and there is no need to include matters that are irrelevant. Finally, it bears mention that the s 22 statements are read back to the person giving the statement, and an opportunity to amend the statement is afforded. There is therefore a safeguard that is built into the framework of s 22 of the CPC.

[emphasis added in italics and bold italics]

145. The Applicant submits that the evidence does not show that the banks were induced or deceived by the incorrect BLs submitted with the applications to enter any of the 6 (or 578 other) individual contracts. There was simply no reliance on the bill of lading by the banks since the banks were never at risk. The banks were content to enter each individual contract because they had Intraluck’s warranties, backed up by more than adequate security. Whatever the document checkers and relationship managers might have thought when they gave evidence at the trial below, the banks as a legally well-advised institution, were never relying on the bills of lading or transport documents in its decision to disburse the Invoice Financing loans. All that they relied on were Intraluck’s warranties and the security of the Applicant’s guarantee.

[emphasis added]

279.—(1) Subject to this Code and any other written law relating to the admissibility of evidence, where any party objects to the admissibility of any statement made by that party or any other evidence which the other party to the case intends to tender at any stage of the trial, the court must determine it separately at an ancillary hearing before continuing with the trial.

…

The prosecution seeks to admit a statement of the accused, who denies that he made it. No ancillary hearing is necessary as this does not relate to the voluntariness of the statement.

[emphasis added]

However, illus (a) to s 279(1) of the CPC shows that when it is suggested that a tape recording sought to be admitted has been tampered with, an ancillary hearing must first be held to determine if the tape had in fact been tampered with. A tape recording is one of the possible modes which may be utilised to record an accused’s statement. Nonetheless, in reality, most accused statements (if not all of them) are not tape recorded, but are instead signed written statements obtained from the accused. Be that as it may, by way of an analogy with illus (a), if the accused disputes that: (a) his written statement sought to be admitted by the Prosecution has been wrongly or erroneously translated or recorded; or (b) the written statement as recorded is not his statement but a statement that, unknown to him at the time of penning down his signatures on various parts of the statement, has been fabricated by the recording officer, then an ancillary hearing must be held to determine if the statement has in fact been so tampered with. In other words, an ancillary hearing must be held to ascertain the accuracy and/or authenticity of the recorded statement that is purported to be the accused’s statement. If what is recorded as a written statement is determined during the ancillary hearing to be inaccurate or fabricated, then it should not be admitted into evidence.

[emphasis added in italics and bold italics]

Before considering the accuracy and admissibility of the statements, I make a few observations about the calling of an ancillary hearing when the accuracy, but not the admissibility of a statement is challenged during the course of a criminal proceeding.

[emphasis added]

In my view, s 279(1) of the CPC thus addresses this procedural problem by requiring an ancillary hearing to be held to determine any disputed issues concerning the accuracy and/or authenticity of the statements recorded from the accused before the case for the Prosecution is completed. In this regard, I note that illus (d) to s 279(1) of the CPC merely states that “[n]o ancillary hearing is necessary” [emphasis added] when the challenge does not relate to the voluntariness of the statement. While it is not necessary, I find that it would be good practice to call for an ancillary hearing to determine the accuracy and/or authenticity of any statement, in particular as the liberty of the accused may very well depend on whether those parts of the statement disputed by the accused as being accurate or authentic are admitted and relied on by the Prosecution after their admission.

[emphasis in italics in original; emphasis added in bold italics and bold underlined italics]

… At the conclusion of the Prosecution’s case …, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding ‘that no case against the accused has been made out which if unrebutted would warrant his conviction’, within the meaning of s 188(1). Where he has not so found, he must call upon the accused to enter upon his defence …

[emphasis added]

409. If the relevant court dismisses a criminal motion and is of the opinion that the motion was frivolous or vexatious or otherwise an abuse of the process of the relevant court, it may, either on the application of the respondent or on its own motion, order the applicant of the criminal motion to pay the respondent costs on an indemnity basis or otherwise fixed by the relevant court.

We therefore find it appropriate to state unequivocally that the bringing of such unmeritorious applications will not be countenanced and that this court will, henceforth, not hesitate to award costs against applicants who attempt “back-door” appeals by recourse to s 397. There will be no excuse for applicants who choose to waste valuable court time as well as the time of lawyers for the other party and (more importantly) make light of a statutory provision that is intended to be invoked in only exceptional circumstances in the public interest.

[emphasis in original]