Case Note - THE DOCTRINE OF WILFUL BLINDNESS IN DRUG OFFENCES

• Citation: (2020) 32 SAcLJ 305
• Date: 01 December 2020
• Published date: 01 December 2020

Adili Chibuike Ejike v Public Prosecutor

[2019] 2 SLR 254

In Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254, the Court of Appeal clarified the operation of the wilful blindness doctrine in the context of knowing possession for drug offences. In particular, it affirmed wilful blindness as a doctrine of substantive rather than evidential law, which applies as a limited extension to the legal requirement of actual knowledge. The court then articulated a three-part test for the finding of wilful blindness in relation to knowledge as an ingredient of possession. However, it left open the content of the doctrine as applied to the element of knowledge in drug offences. This note agrees with the characterisation of the doctrine, proposes a reformulation of the three-part test, and analyses the operation of the doctrine in rebutting the presumption of knowledge under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

I. Introduction

1 The doctrine of wilful blindness has been most frequently employed here in the context of offences relating to controlled drugs under the Misuse of Drugs Act2 (“MDA”). According to the doctrine, an accused person who “[shuts] his eyes to an obvious means of knowledge” or “deliberately [refrains] from making inquiries, the results of which he

might not care to have” is deemed to have actual knowledge.3 In cases of drug offences, a clear admission, or proof of an actual situation of actual knowledge is rarely forthcoming.4 Thus, an accused person who, in circumstances of suspicion “firmly grounded and targeted on specific facts”, deliberately decides not to make further inquiries in order to avoid the truth he does not wish to know, is regarded in law as having been wilfully blind, which is the equivalent of having actual knowledge.5

2 These twin requirements of a threshold level of suspicion and a deliberate refusal to make inquiries (“two-part test”) have been variously applied in the contexts of whether an accused knew of the presence6 or quantity7 of drugs he was carrying, and whether he knew of the nature of the seized drugs.8 At the same time, the doctrine has been invoked in analysing whether an accused person has been able to rebut the presumption of knowledge of the nature of the controlled drug under s 18(2) of the MDA (“the s 18(2) presumption”). This is in two ways: first, it has been held that an accused person who was established to be wilfully blind would not be able to rebut the s 18(2) presumption.9 Second, where an accused “should have been reasonably suspicious” as to what was handed to him but did not “take the reasonable step of enquiring”, his conduct could amount to “wilful blindness” in a looser sense, with the result that the s 18(2) presumption cannot be rebutted.10

3 In Adili Chibuike Ejike v Public Prosecutor11 (“Adili Chibuike”), the Court of Appeal considered the question of an accused person's knowledge of the drugs found in his possession, which in turn rested on the “meaning and operation of … wilful blindness”.12 First, it held that the term should be properly used in the “extended sense” to describe a mental state which falls short of actual knowledge, but still satisfies the requirement of knowledge as it is the legal equivalent of actual

knowledge.13 Second, building on the above-mentioned two-part test,14 it held that in order to establish wilful blindness for knowing possession, there must additionally have been “reasonable means of inquiry available to the accused person, which, if taken, would have led him to discovery of the truth”.15 Third, it held that the presumption under s 18(1) of the MDA may not be used to establish wilful blindness.16 However, the Court of Appeal confined its holdings on the doctrine and its interaction with the statutory presumptions to the element of knowing possession, leaving the question of the operation of the doctrine with regard to the element of knowledge and the s 18(2) presumption to be considered in an appropriate case in the future.17

4 This article agrees that the characterisation of the doctrine as substantive rather than evidential law is a principled one, and will ensure greater consistency in its application going forward. However, it is submitted that the availability of a reasonable means of inquiry should not be a requirement in determining wilful blindness, for which reason this distinction has not been made in the reported cases previously. It is therefore argued that the test for wilful blindness in knowing possession should be the same two-part test as applied to the knowledge element, or alternatively reformulated to emphasise the subjective nature of mens rea. The reasonable availability of means to discover or confirm facts in question may instead be considered in analysing whether an accused had deliberately refused to make further inquiries, or if he had sufficiently inquired. It is argued that such an approach will be consistent with the supportive, or evidentiary role of objective facts in the court's assessment of the true subjective state of knowledge of the accused. Finally, the provisional views of the Court of Appeal on the operation of wilful blindness with respect to the knowledge element will be analysed.

II. Facts and background

5 In Adili Chibuike, the appellant, Adili Chibuike Ejike (“Adili”) had travelled from Singapore to Nigeria and two packets containing drugs were found in the inner lining of his luggage, a small suitcase.18 He was subsequently charged with importing two packets containing not less than 1,961g of methamphetamine.19 Adili, a Nigerian citizen, had

previously contacted an acquaintance for financial assistance in August 2011.20 The acquaintance had agreed to give Adili a sum of 200,000 to 300,000 naira (approximately US$1,324 to US$1,986) and later requested Adili's passport “to do something with”, but did not tell him what that was.21 Subsequently, Adili was instructed by another acquaintance to travel to Singapore with a piece of luggage, which he was to hand over to a contact in Singapore.22 He was then given the suitcase, his passport, a set of travel and other documents, and US$4,900 in cash.23

6 At trial, it was not disputed that Adili was in physical possession of the luggage bag containing the methamphetamine, and he was therefore presumed to be in possession of the methamphetamine pursuant to s 18(1) of the MDA.24 The Defence did not seek to challenge or rebut the presumption.25 The trial thus proceeded on the basis that the appellant was in possession of the methamphetamine.26 At the same time, it appeared to be common ground that the appellant did not in fact know that the case contained the two bundles of methamphetamine hidden within its inner lining, although the parties did not appear to have considered the legal significance of this fact.27 The trial thus focused on whether Adili had been able to rebut the presumption of knowledge under s 18(2) of the MDA.28 In this regard, Adili's evidence was that he was delivering the luggage bag for his friend and did not know of the drugs hidden in the bag.29 In response, the Prosecution sought to rely on the wilful blindness doctrine to counter Adili's effort to rebut the presumption.30

7 The trial judge disagreed with the Prosecution's use of the wilful blindness doctrine.31 He differentiated between two forms of knowledge, namely, actual knowledge and presumed knowledge.32 Furthermore, he stated that the doctrine applies to infer actual knowledge, whereas presumed knowledge is established when the conditions of s 18 of the MDA are satisfied.33 Thus, he observed that “where the Prosecution's case

is founded on presumed knowledge, it should not seek the assistance of wilful blindness”.34

8 Nevertheless, the trial judge held that the s 18(2) presumption was unrebutted. He found Adili an unreliable witness due to inconsistencies between his oral testimony and his investigation statements.35 The judge also rejected Adili's evidence that he believed the case contained only clothes and shoes.36 This was as, inter alia, he found that Adili did not in fact trust the two acquaintances, and knew that they had supplied him with false calling cards and a false vaccination certificate to enable him to make the delivery.37 Furthermore, Adili had been promised a substantial reward for delivering the case to an unknown person in Singapore.38

9 On Adili's appeal against his conviction and sentence, the Court of Appeal noted that while the Prosecution had relied on the statutory presumptions in ss 18(1) and 18(2) of the MDA, “some difficult questions” had arisen as to whether there are circumstances in which the presumptions may not be invoked, and the meaning and operation of “wilful blindness”.39 The Court of Appeal further established that the following elements must be proved by the Prosecution to make out the offence of importation under s 7 of the MDA: (a) the accused person was in possession of the drugs; (b) the accused person had knowledge of the nature of the drugs; and (c) the drugs were intentionally brought into

Singapore without prior authorisation.40 It considered that since Adili contended he did not know the drug bundles were hidden in the case, the central issue was whether he possessed those drugs.41

III. Decision of Court of Appeal

A. Wilful blindness properly describes a mental state short of actual knowledge

10 The Court of Appeal held, in line with earlier cases, that the element of possession also includes an inquiry into knowledge: an accused person must know of the existence of the thing in question that turns out to be a controlled drug.42 The Court of Appeal stated that this “knowledge” to establish the element of possession differs from “knowledge” as an element of the offence.43 The latter requires that an accused person knew the specific nature of the drug,44 namely the actual controlled drug found in the “thing” (such as the bag or...