Gobi a/l Avedian v Public Prosecutor

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 19 October 2020
• Neutral Citation: [2020] SGCA 102
• Citation: [2020] SGCA 102
• Published date: 22 October 2020
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Defendant Counsel: Mohamed Faizal Mohamed Abdul Kadir SC, Chin Jincheng and Chong Kee En (Attorney-General's Chambers)
• Docket Number: Criminal Motion No 3 of 2020
• Hearing Date: 16 June 2020
• Date: 19 October 2020
• Subject Matter: Statutory offences,Criminal Procedure and Sentencing,Elements of crime,Misuse of Drugs Act (Cap 185, 2008 Rev Ed),Criminal Law,Review of concluded criminal appeals

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

In HC/CC 13/2017, the applicant in the present criminal motion, Gobi a/l Avedian (“the Applicant”), claimed trial to a capital charge of importing not less than 40.22g of diamorphine (“the Drugs”), an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). At his trial, the sole issue was whether he had rebutted the presumption of knowledge under s 18(2) of the MDA. The High Court judge (“the Judge”) accepted the Applicant’s defence that he believed the Drugs to be a mild form of “disco drugs” mixed with chocolate, rather than diamorphine, which is a controlled drug under Class A of the First Schedule to the MDA. In the circumstances, the Judge held that the Applicant had rebutted the s 18(2) presumption and acquitted him of the capital charge under s 7 of the MDA (“the capital charge”). However, the Judge found that on the basis of the Applicant’s own defence, he was guilty of an offence of attempting to import a controlled drug under Class C of the First Schedule to the MDA. The Judge therefore convicted the Applicant of a reduced non-capital charge in these terms (“the amended charge”) and sentenced him to 15 years’ imprisonment and ten strokes of the cane: see Public Prosecutor v Gobi a/l Avedian [2017] SGHC 145 (“Gobi (HC)”) at [11], [53], [54], [55] and [70].

In CA/CCA 20/2017 (“CCA 20/2017”), the Prosecution appealed against the Judge’s decision to acquit the Applicant of the capital charge. We allowed the Prosecution’s appeal because we disagreed with the Judge’s finding that the Applicant had rebutted the s 18(2) presumption: see Public Prosecutor v Gobi a/l Avedian [2019] 1 SLR 113 (“Gobi (CA)”) at [52]. On the issue of sentence, although we found that the Applicant could qualify to be considered for the alternative sentencing regime because his involvement was limited to the activities specified in s 33B(2)(a) of the MDA, the Public Prosecutor did not issue a certificate of substantive assistance. Accordingly, we imposed the mandatory death sentence.

On 25 February 2020, the Applicant filed the present criminal motion, CA/CM 3/2020 (“CM 3/2020”), pursuant to the newly enacted s 394I of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) for us to review our decision in CCA 20/2017. The Applicant had earlier obtained leave to make this application under s 394H of the CPC on 20 February 2020.

In CM 3/2020, the Applicant contends, among other things, that the continuing correctness of our decision in CCA 20/2017 has been called into question by our subsequent decision in Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (“Adili”). There, we held that wilful blindness cannot be the subject of the presumption of possession under s 18(1) of the MDA, and, further, that the doctrine of wilful blindness has no relevance to and so should not feature at all in considering whether the s 18(1) presumption has been rebutted. Instead, whether or not an accused person is wilfully blind in that context falls to be determined as part of a distinct inquiry that does not involve recourse to the presumption (see [42] below). The Applicant submits that our holdings in Adili in relation to the s 18(1) presumption ought to be extended to the s 18(2) presumption, which concerns the accused person’s knowledge of the nature of the drugs in his possession, as opposed to his knowledge of the presence of the thing in his possession that turns out to be drugs. On that basis, the Applicant contends that since the Prosecution’s case against him at the trial was, at its highest, one of wilful blindness to the nature of the Drugs, the Prosecution could not have invoked the s 18(2) presumption in the first place. In these circumstances, the Applicant contends that it was not correct for us to have considered in CCA 20/2017 whether the s 18(2) presumption had been rebutted. Instead, a separate inquiry to determine whether he was wilfully blind to the nature of the Drugs should have been undertaken. On the evidence, the Applicant submits that he was not wilfully blind in this regard and should therefore have been acquitted of the capital charge.

This review application presents us with the opportunity to consider, in the light of our decision in Adili, the law in respect of the s 18(2) presumption and the doctrine of wilful blindness in the context of the element of knowledge of the nature of the drugs. It also requires us to examine, in the light of the applicable legal position, just how the Prosecution’s case at the Applicant’s trial was run. We will first determine the applicable legal position and then ascertain the nature of the Prosecution’s case at the trial, before considering whether there was a change in the Prosecution’s case on appeal, and if so, whether the Applicant’s conviction on the capital charge remains safe in all the circumstances.

Background facts

The material facts have been sufficiently set out in Gobi (CA) ([2] supra) at [4]–[14] and it suffices for us to restate them briefly. In doing so, we largely use the account given by the Applicant at the trial, which was consistent with the contents of his statements to the Central Narcotics Bureau (“CNB”).

The Applicant is a Malaysian citizen who was working as a security guard in Singapore at the time of the offence. He lived in Johor Bahru and commuted to Singapore for work. Sometime in 2014, he approached his friend, “Guru”, for some suggestions or recommendations as to a part-time job because he needed funds for his daughter’s operation, which was scheduled for January 2015. Guru introduced the Applicant to one “Vinod”, who told the Applicant that he could earn some money by delivering drugs to Singapore. Vinod further told the Applicant that the drugs involved were mixed with chocolate and were to be used in discos, and that they were “ordinary” and “not serious”. The Applicant was assured that if he was apprehended, he would receive “just a fine or a small punishment”. Notwithstanding these assurances, the Applicant initially refused Vinod’s offer because he was “scared” and thought that delivering drugs for Vinod would be a “problem”.

As the date of his daughter’s operation approached, the Applicant became “desperate” because he had not managed to raise enough money. He decided to consult another friend, “Jega”. The Applicant informed Jega of what Vinod had told him about the drugs and asked Jega “if it would be a problem”. Jega informed him that such drugs were “not … very dangerous” and “should not be a problem”. According to the Applicant, he had no reason to disbelieve Jega given that Jega frequented discos and had no motive to lie to him. Jega did not know either Vinod or Guru.

On the basis of the separate assurances he had received from Vinod and Jega, the Applicant decided to accept Vinod’s offer and proceeded to deliver drugs for Vinod on eight or nine occasions (including the delivery which led to his arrest). He was paid RM500 for each delivery. On each occasion, the Applicant would collect the packets of drugs from Vinod’s brother. He would then wrap the packets of drugs with a black rubbish bag as instructed by Vinod. In the course of doing so, he observed that the drugs did indeed look like they had been mixed with chocolate. After wrapping the packets of drugs, the Applicant would place them in a storage compartment in his relative’s motorcycle which he used to travel to Singapore. After entering Singapore, he would hand over the drugs to the relevant individuals in accordance with Vinod’s instructions.

On 11 December 2014, the Applicant received and handled the Drugs in the manner described above. At about 7.50pm, he was stopped at Woodlands Checkpoint because he had been identified as a person of interest. Although the Applicant initially stated that he had nothing to declare, he later directed the CNB officers to the Drugs in the motorcycle. He was then placed under arrest.

The presumptions under s 18 of the MDA

It is well established that the following elements must be proved by the Prosecution in order to make out the offence of drug importation under s 7 of the MDA (see Adili ([4] supra) at [27]): the accused person was in possession of the drugs; the accused person had knowledge of the nature of the drugs; and the accused person intentionally brought the drugs into Singapore without prior authorisation.

To satisfy the first and second elements of possession and knowledge respectively, the Prosecution is generally entitled to rely on the presumptions provided for in s 18(1) and s 18(2) of the MDA, which read as follows:

Presumption of possession and knowledge of controlled drugs

18.—(1) Any person who is proved to have had in his possession or custody or under his control — (a) anything containing a controlled drug; (b) the keys of anything containing a controlled drug; (c) the keys of any place or premises or any part thereof in which a controlled drug is found; or (d) a document of title relating to a controlled drug or any other document intended for the delivery of a controlled drug,

shall, until the contrary is proved, be presumed to have had that drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

…

The legal effect of the s 18 presumptions is that they reverse the burden of proof such that it falls on the accused person to displace what has been presumed against him (see Adili at [99]). Where the presumptions apply and the accused person: (a) elects to remain silent and does not make his defence, or (b) elects to make his defence but calls no evidence or evidence that is not adequate to rebut the presumptions, he can be convicted of the relevant...