“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” These are the famous opening sentences of the Miranda warning, a list of rights read out to a person in the United States of America (USA) upon their arrest. This is a derivative of the American citizens’ constitutional right to remain silent.
However, is such a right afforded in Singapore? In this article, we seek to shed some light on these rights.
Setting the Context
This article deals with the right to silence of i) a suspect (a person whom the police have reasonable grounds to believe is guilty of a criminal offence), or ii) an accused person (a person who has been formally charged in court with a criminal offence) under Singapore’s jurisdiction – i.e. whether such a right exists, and if so, the extent to which this right extends. At this juncture, we ought to adopt a broad approach, as a vantage point, to defining the phrase “right to silence”; taking it to refer to a suspect’s or accused person’s ability to not say anything during the criminal investigation.
Traditionally, the right to silence has been put in place to prevent one from committing self-incrimination. However, in Singapore, this right is not considered a Constitutional right under the principles of natural justice, as explained by the Court of Appeal in the case of Public Prosecutor v Mazlan Bin Maidun.
The right to silence is a loaded term, and has two main implications. First, it provides a privilege against self-incrimination. This means that a suspect or accused person does not need to say anything, which they believe will implicate him in the Court of law. Second, failure to disclose facts that may prove a suspect or accused person’s innocence during police interrogation cannot be adversely inferred when introduced during the hearing. This means that if a suspect or accused person does not reveal information that may later be used to prove his innocence in court during police investigations and questioning, their initial silence cannot disadvantage them during the trial if they admit it as new evidence before the Court.
The right to silence is “governed” by Sections 22, 23, and 261 of the Criminal Procedure Code 2010 (CPC 2010). We will begin by breaking down these sections into simpler, bite-sized pieces of information, and proceed to explain this information in greater detail.
Sections 22, 23, and 261 refer to three aspects of the Criminal Process. Firstly, s22 governs the process of orally examining suspects and accused persons. Secondly, s23 governs the recording of cautioned statements during the investigation. Thirdly, s261 governs the court’s ability to draw inferences from one’s silence during the investigation.
Section 22 – Oral Examination
Section 22 of CPC 2010 is a wide-net rule which applies to witnesses, suspects, and accused persons. It invests in the Singapore Police Force (SPF) the authority to conduct oral investigations on anyone who is suspected to possess some knowledge of the facts and circumstances surrounding the case at hand. This applies to anybody, regardless of whether one has been placed under police arrest. Section 22(2) is the most relevant portion, and is explained via the two-stage method below:
Explanation
- If you have been called in for investigation, you must state what you truly know about the facts and circumstances of the case.
- However, you are not required to disclose anything which you feel might incriminate you, i.e. allow the court to conclude that you are guilty of an offence.
Previously, it was unclear whether the authorities could draw adverse inferences based on one’s statement under Section 22. This was shown in the Court of Appeal hearing of Lim Lye Huat Benny v Public Prosecutor, where the court did not draw adverse inferences based on the accused’s Section 22 statement, but did so based on his Section 23 statement. However, the court did not specifically rule out the possibility of drawing adverse inferences based on Section 22 statements. In the later Court of Appeal case of Kwek Seow Hock v Public Prosecutor, it was held that the Court may draw an adverse inference under Section 22(2) on the person’s failure to mention a fact that may prove his innocence in the statement given to the police during the investigation process. The rationale behind this was, if the information the person had withheld during police investigations was in his defence to prove their innocence, the Court may consider it an afterthought when it is admitted as a statement during trial. It is considered that there is no valid reason for silence on this matter during questioning.
Information for Accused People – Sections 23 and 261
During an investigation, the authorities might inform you that they wish to charge you with an offence. When you are being charged, the police must read out the following warning before you make a statement known as the cautioned statement.
It is worth noting that the authorities must provide you the following warning:
“You have been charged with [or informed that you may be prosecuted for] — (set out the charge).
Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore, it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”
Previously, once the police had charged the accused person under Section 23, they were not allowed to question them as if they were any ordinary person under Section 22. However, this was amended in 2010, where police are allowed to question the accused person under Section 22 despite being charged under Section 23.
Do take note that once the police have charged you under Section 23, they do not need to re-caution you of the risk of an adverse inference if they are questioning you under Section 22.
Explanation
- The bolded portion is the most crucial. It urges one to be forthcoming as soon as possible, about matters which would be used to help in one’s defence – i.e. to prove one’s innocence.
- If you choose to reveal this only during the court hearing, and not in the cautioned statement, the Judge will be less likely to believe your claim.
- Since the Judge will be less likely to believe your claim, your case will be less likely to succeed.
Analysis
This indicates strongly against the existence of a right to silence in Singapore. If one were to keep quiet during the investigation, and only reveal a fact during trial, one faces a greater likelihood of losing the case. However, this analysis is applicable primarily to scenarios where one “withholds” a fact from the Cautioned Statement, and reveals it only during the court trial.
Section 261(1) – Explanation
This portion gives the Judge the authority to believe an accused person less if they raise a fact during the trial in their defence, which they did not reveal in their cautioned statement.
However, this is subject to an assessment of whether the fact in question which the accused person could objectively have been reasonably expected to raise.
In the Court of Appeal case of Lau Lee Peng v Public Prosecutor, the court held that Another pertinent factor would be whether any challenge has been raised by the accused concerning the adequacy of the explanation given to him.
As such, it can be seen that just because an accused withheld a fact in their cautioned statement, it does not necessitate that the court may draw an adverse inference against him. Instead, the court must make an analysis of whether the accused had a reasonable reason for omitting to provide the fact in his cautioned statement.
Section 261(2) – Explanation
This portion gives the Judge the authority to draw adverse inferences from an accused person’s silence during criminal proceedings. Such inferences can extend to the guilt of the accused person.
For instance, in the High Court case of Public Prosecutor v Chee Cheong Hin Constance, the court held that the effect of an adverse inference against an accused person is that once it is drawn it can be employed to support or corroborate aspects of the Prosecution’s case. However, the accused’s silence alone is usually insufficient to prove guilt, and must therefore be analysed in relation to other evidence, facts, and circumstances before the Prosecution can prove the accused’s guilt. Such circumstances include, among others, the accused’s mental state, and whether the accused had an alibi at the material time.
Right of Silence – Exists, but is not substantial
In conclusion, it appears that one possesses the right to silence in Singapore. Section 22 of CPC 2010 allows one to not say anything which would be self-incriminatory. However, this right to silence is arguably available only to a small extent, since it is qualified by Sections 23 and 261. Subject to certain requirements, the Judge is free to draw adverse inferences against an accused person if the accused remains silent throughout the entire process, or if the accused raises a fact in defence after the initial investigation process.
Frequently Asked Questions
Q: I am not a suspect, but a witness to an offence. Will I be protected by the right to silence?
A: Yes, you will be protected by the right to silence. However, the police is not under any obligation to inform you of this right. Therefore, when you are being questioned by the police it is essential to remember you have the right to remain silent if you believe information you disclose to them might incriminate you.
Q: What should I do if I believe I have given the police a statement that may be used against me?
A: Unfortunately, if you have given a statement to the police under their questioning or investigation, you will not be able to take back what you said. Your statement can be used in Court if they see fit. Your best option would be to contact legal assistance or request for legal assistance immediately after you suspect you have said something self-incriminating.
Q: When I was under questioning, the police did not inform me of my right to silence when I was charged with an offence under Section 23. Will the Court still draw an adverse inference against my non-disclosure?
A: No, in this circumstance they will not adversely infer guilt from non-disclosure of information during the interrogation. It would be unfair for the Court to adversely infer the silence when you have had no fair warning from the police when under investigation. It was held in Kwek Seow Hock v Public Prosecutor that in these circumstances adverse inference will not be exercised.
Q: I was not warned about my privilege against self-incrimination when I was charged with an offence. Will this make my statement inadmissible during the trial?
A: Unfortunately, your statement can still be used during trial. However, the weight given to the statement will be assessed by the Judge depending on your circumstances and the procedure taken by the police during questioning. This analysis by the Court will establish how and to what extent your statement will be valid in the trial.
Q: Do I have the right to a lawyer or legal advice?
A: Countries such as USA, UK and parts of Europe require the police to inform the suspect or accused person who is being questioned about their fundamental right to legal advice or a lawyer. The lawyer assigned to the accused or chosen by the accused is also required to actively participate during the interrogation.
However, this is starkly different to the law in Singapore. It is stated in Article 9(3) of the Convention that a person charged with a crime can have access to a lawyer that they can choose and be defended by. However, there is no right for the accused person to be informed of this Constitutional right by the police in Singapore. The rationale behind this is that although Article 9(3) is a constitutional right, informing the accused person of this right would be a further right, additional to the one listed in the Constitution.
Q: When can I have access to legal advice or a lawyer?
A: The police are not required to give you access to a lawyer or legal advice immediately after you are charged with a crime although you may be entitled to it. Your access to a lawyer must merely be within a “reasonable time after arrest”. In Jasbir Singh v Public Prosecutor a period of 2 weeks was considered a reasonable time to delay the accused person’s access to legal advice. In Public Prosecutor v Leong Siew Chor it was held a period of 19 days was considered reasonable.
If you are in this situation, do not expect the police to inform you of your right to legal counsel. Your statement will also be taken and introduced into court despite your lack of legal knowledge because you did not have access to legal counsel
Have a question on the right to be silent?
If you have any questions about the right to be silent, you may request a quote with Devaraj Viveganandam. You may also get a Quick Consult with other lawyers with similar expertise. With Quick Consult, for a transparent, flat fee, the lawyers will call you back on the phone within 1-2 days to answer your questions and give you legal advice from a transparent, flat fee of $49.
This article was written by Devaraj Viveganandam from I.R.B Law LLP and Benedict Koh Yen Hin from the Asian Law Students’ Association.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
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