Explainer: How does giving wrong and false evidence in court differ, and when is action taken?

SINGAPORE — Karl Liew Kai Lung, the son of former Changi Airport Group chairman Liew Mun Leong, has been sentenced to two weeks' jail for lying to a judge in a case over the family's domestic worker Parti Liyani.  

Liew pleaded guilty to a charge of giving false information, with intent to cause a public servant to use his lawful power to injure another person under Section 182 of the Penal Code. Liew said that she had stolen his clothes when the clothes were not his. 

The giving of sound evidence is the cornerstone of the criminal justice system. Giving false evidence strikes at the very heart of a criminal trial, since it undermines its fundamental premise — that the judge will be able to decide, fairly and impartially, based on the best available evidence. 

It may be surprising to some, then, that prosecutions for the giving of false evidence are relatively rare, even though judges often find witnesses unreliable or incorrect during a trial. 

WRONG EVIDENCE NOT NECESSARILY FALSE EVIDENCE

It is not necessarily the case that when a witness gives wrong evidence, he is lying.

The witness could simply have observed the incident incorrectly, or his memory might be wrong, or he might have poor communication skills in court.

In such situations, the witness is doing his best to give good evidence, and may even believe he is telling the truth, but his evidence may be found by the judge to be objectively false. 

This is not an offence. No one can be expected to have perfect knowledge and perfect recall.

In most cases where the judge disbelieves a witness, the judge will also find that the witness had no malice in what he said — merely that the evidence given was unreliable, whether because of internal inconsistencies or contradictions with other, external pieces of evidence. 

It is only an offence to knowingly or intentionally give false evidence. This amounts to a perversion of the justice process. In the 1937 case of Raj Kishor Rai v Rex, Chief Justice Terrell said: 

"Now it is open to the prosecution to prove that any particular statement is false to the knowledge or in the belief of the accused, or is a statement which he does not believe to be true, but in such a case a heavy burden is placed upon the prosecution, as it has to be proved not only that the statement was in fact untrue, but that there was knowledge or belief by the accused that the statement was false."

This is why prosecutions for the giving of false evidence are rare, while instances of judges finding evidence to be untrue are common. Most people tell the truth, or what they believe to be the truth, most of the time. It is a rare witness who sets out intentionally to give false evidence.

THE IMPORTANCE OF BURDEN OF PROOF

The main issue for the prosecution is the burden of proof. The prosecution needs to prove beyond reasonable doubt that the witness knowingly or intentionally gave false evidence. This is a high standard of proof to meet. 

For example, Dr Yeo Sow Nam was accused of molesting one of his patients and prosecuted for outrage of modesty. The case collapsed when the complainant apparently admitted to lying in court, under cross examination by Dr Yeo’s defence lawyer. 

However, the Attorney-General’s Chambers later said that it would not be prosecuting the complainant, because in its assessment, there was no evidence that the complainant had fabricated her account of the material facts of the case. 

It is these evidential difficulties that make prosecutions for false evidence relatively rare.

First, it may not be clear whether the witness was lying. Second, even if the prosecution thinks that the witness was lying, it may not have enough evidence to prove it beyond reasonable doubt. As Chief Justice Terrell said: 

"When a single statement only is in issue, it is extremely difficult to prove both the falsity of the statement and knowledge or belief on the part of the accused. The falsity of the statement may be capable of direct proof, but the criminal intention can only be proved by surrounding circumstances, which point irresistibly to the conclusion that the accused had the necessary knowledge or belief." 

POTENTIAL REMEDIES FOR GIVING OF FALSE EVIDENCE

In addition to Section 182 of the Penal Code, there are a variety of offences that a witness can be charged with in such a situation. 

The giving of false evidence is a form of perversion of the justice process and should be viewed in that context. 

First, a witness may simply refuse to answer questions asked by a police officer, even when he is legally bound to do so.

This is an offence under Section 179 of the Penal Code. An example of this is serial protester Yan Jun, who was sentenced to eight weeks’ jail in 2019 for refusing to give a statement to a police officer investigating one of his earlier illegal protests. 

Second, a witness may say or do various things to obstruct the course of justice. This includes giving false evidence, destroying evidence, or otherwise interfering with the course of an investigation. This is an offence under Section 204A of the Penal Code. 

Third, a witness may give false evidence in a judicial proceeding, that is, lie under oath before a judge.

This is the more serious offence under Section 193 of the Penal Code than merely giving false information to a public servant under Section 182, and carries a maximum imprisonment term of seven years’ jail.

It is unclear why the prosecution did not charge Liew under Section 193 instead of Section 182 — however, since it is a matter of prosecutorial discretion, it was entitled to choose the appropriate charge. 

The above examples are non-exhaustive and there are many variations of these offences, set out in the Penal Code. The choice of the appropriate charge is a matter of prosecutorial discretion. 

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and is a lawyer at RHTLaw Asia. He was a deputy public prosecutor at the Attorney-General's Chambers.