Ilechukwu Uchechukwu Chukwudi v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 17 September 2020
• Neutral Citation: [2020] SGCA 90
• Docket Number: Criminal Motion No 4 of 2017
• Date: 17 September 2020
• Published date: 01 October 2020
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya and Johannes Hadi (Eugene Thuraisingam LLP) and Jerrie Tan (K&L Gates Straits Law LLC)
• Defendant Counsel: Kristy Tan, Uni Khng and Zhou Yihong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 12 June 2020
• Subject Matter: Misuse of Drugs Act,Evidence,Statutory Offences,Criminal Law,Adverse inferences,Previous acquittals or convictions,Criminal Procedure and Sentencing

Chao Hick Tin SJ (delivering the judgment of the majority comprising Sundaresh Menon CJ, Andrew Phang Boon Leong JA, Judith Prakash JA and himself): Introduction

In this application, Ilechukwu Uchechukwu Chukwudi (“the Applicant”) seeks to set aside his conviction by the Court of Appeal in Public Prosecutor v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33. The Applicant was charged with trafficking of not less than 1,963.3g of methamphetamine that was found in a black trolley bag which he had brought from Nigeria into Singapore and had handed over to one Hamidah Binte Awang (“Hamidah”). The trafficking charge under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) reads as follows:

That you, ILECHUKWU UCHECHUKWU CHUKWUDI,

on the 13th day of November 2011, sometime between 10.16 p.m.and 11.34 p.m., along River Valley Road, Singapore, did traffic in a ‘Class A’ controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed), to wit, by giving to one Hamidah Binte Awang (NRIC No. [redacted]) a trolley bag which contained two packets containing 2,496 grams of crystalline substance, which was analysed and found to contain not less than 1,963.3 grams of methamphetamine, without any authorization under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(l)(a) and punishable under section 33 of the said Act, and further upon your conviction under section 5(1) of the said Act, you may alternatively be liable to be punished under section 33B of the said Act. [emphasis in bold in original]

At the end of a joint trial of the Applicant and Hamidah, the trial judge (“the Judge”) acquitted the Applicant but convicted Hamidah on a separate charge. The Prosecution appealed against the Judge’s decision acquitting the Applicant. The Court of Appeal reversed the acquittal and convicted the Applicant on the trafficking charge. Pivotal to the decision of the Court of Appeal were the numerous lies and omissions made by the Applicant in his statements to the Central Narcotics Bureau (CNB), for which there did not appear at the time to be any innocent explanation.

In a decidedly fortuitous turn of events, when the matter was remitted to the Judge for sentencing, material evidence came to light that the Applicant suffered from post-traumatic stress disorder (“PTSD”) with dissociative symptoms. This evidence arose from the examination of the Applicant by Dr Jaydip Sarkar (“Dr Sarkar”), a psychiatrist with the Institute of Mental Health (IMH), who at that point was slated to be the Prosecution’s witness for the sentencing phase. According to Dr Sarkar, the Applicant’s PTSD arose as a result of a childhood trauma in his hometown in Wukari, Nigeria, when the Applicant was nearly killed and had witnessed the killing of others. In his report, Dr Sarkar took the position that the Applicant’s PTSD symptoms were triggered after he was informed that he was facing the death penalty associated with the trafficking charge, and this condition might have resulted in an “overestimation of threat to his life which could have prompted him to utter unsophisticated and blatant falsehoods in order to save his life”.¹ For this reason, the Court of Appeal granted the criminal motion filed by the Applicant to reopen the Court of Appeal’s earlier conviction. No finding was made by the Court of Appeal on Dr Sarkar’s assessment of the Applicant and the matter was remitted to the Judge for him to receive further expert evidence on PTSD. The Judge has since rendered his findings, which will be examined in the course of this judgment. It is in the light of those findings that we now review the Court of Appeal’s earlier decision.

Facts

The Applicant arrived in Singapore from Lagos, Nigeria, on 13 November 2011. According to the Applicant, he ran a business selling second-hand electronic goods in Nigeria and the purpose of the visit to Singapore was to purchase used laptops for sale back home. As part of this plan, the Applicant was introduced by a childhood friend by the name of Izuchukwu to one Kingsley, who purportedly had relevant business contacts in Singapore who could assist the Applicant.

At the trial, the Applicant told the court that on 12 November 2012, the day of his departure from Nigeria, he only took a black laptop bag to the airport in Lagos. There, he met Izuchukwu and Kingsley. Kingsley handed to the Applicant a black luggage trolley bag (“the Black Luggage”) which he requested the Applicant to pass on to a contact in Singapore, who in turn would help the Applicant with his sourcing of second-hand electronic goods. The Applicant was informed that the Black Luggage contained clothes belonging to the said contact. On inspection, the Applicant found only clothes in the Black Luggage and nothing seemed amiss. The Applicant’s evidence was that the Black Luggage underwent a physical check and X-ray scan at the airport in Lagos. It was subsequently checked in by the airline for the flight to Singapore. All of foregoing took place without any incident.

On his arrival in Singapore on 13 November 2011, the Applicant proceeded to the immigration checkpoint at Changi Airport, and he was detained for questioning. During this time, the Applicant received several SMS messages from a Nigerian number asking whether he had cleared immigration and about his location. The Applicant’s evidence was that the messages were from Izuchukwu, who worked as a travel agent and had helped the Applicant with his travel arrangements to Singapore. One of the messages was “Have u seen him?” and “[phone number redacted] call him plz”. The Applicant’s evidence was that those messages referred to another Nigerian national who Izuchukwu had also arranged a visa for, and who was supposed to be at the airport with the Applicant.² Eventually, the Applicant did meet another Nigerian national by the name of Adili and they were placed in the same room by the authorities. Another message from Izuchukwu asked the Applicant to inform the checkpoint authorities to contact “ESP” if there were any issues. ESP refers to ESP Lines (S) Pte Ltd, a Singapore freight forwarding company which had assisted in making the arrangements for the Applicant and Adili to visit Singapore.

After the Applicant cleared immigration, he collected the Black Luggage from the baggage claim counter. The Black Luggage was then subjected to both an X-ray scan and physical check, which again yielded nothing. Thereafter, the Applicant left the airport with both the Black Luggage and his laptop bag.

The Applicant proceeded to take a taxi to Kim Tian Hotel in Geylang, where he was supposed to stay. On his arrival however, Kingsley called the Applicant and told him to go to Hotel 81 in Chinatown (“Hotel 81”) instead. The Applicant complied. CCTV footage at Hotel 81 showed that the Applicant arrived there at about 8.36 pm. After speaking to the receptionist in the lobby, the Applicant realised that he did not have enough Singapore dollars to pay for his stay at the hotel. He deposited the Black Luggage at the hotel lobby and went out to look for a moneychanger. The CCTV footage showed that he returned about 12 minutes later. The Applicant then paid for one night’s stay at the hotel because he was supposed to meet Kingsley’s contact for the sourcing of used electronic goods the next day.

That same night, the Applicant received a call from Kingsley’s contact informing him that a woman would collect the Black Luggage from him. This led to a meeting between the Applicant and Hamidah at Clarke Quay. The CCTV footage showed that the Applicant left Hotel 81 with the Black Luggage at around 10.16 pm.³ The Applicant took a taxi from the hotel and alighted at a bus stop in Clarke Quay. As Hamidah had difficulty locating the Applicant, the Applicant approached a Caucasian male who was standing near the bus stop, to ask him to give directions to Hamidah over the phone. The Applicant’s evidence is that when he walked towards the Caucasian male, he left the Black Luggage at the interior of the bus stop.

When Hamidah finally arrived at the bus stop, she alighted from her car and introduced herself to the Applicant. According to the Applicant, Hamidah introduced herself as “Maria”. After handing over the Black Luggage to Hamidah, the latter invited the Applicant to get into the car. They chatted and upon Hamidah’s inquiry, the Applicant told Hamidah that he had not eaten anything since his arrival in Singapore. Hence, Hamidah offered to take the Applicant to an African restaurant and he agreed. As it turned out, the restaurant was closed and Hamidah offered the Applicant some drinks from the boot of her car instead. Sometime during their journey in the car, the Applicant accidentally dropped his mobile phone into Hamidah’s drink. Eventually, Hamidah dropped the Applicant off at a taxi stand in Clarke Quay and he returned to Hotel 81. The CCTV footage at Hotel 81 showed him going up to his room without the Black Luggage at 11.34 pm.

At around 11.55 pm on 13 November 2011, Hamidah was stopped at the Woodlands Checkpoint. The Black Luggage was retrieved from her car and was cut open at the sides. The controlled drugs in question, which were found to contain not less than 1963.3g of methamphetamine, were recovered from the Black Luggage. Hamidah was arrested. The next morning, on 14 November 2011, the Applicant was arrested in his room at Hotel 81.

Various statements were obtained from the Applicant: the statement recorded at 1pm on 14 November 2011 shortly after his arrest (“the First Statement”); the cautioned statement recorded at 9.41pm on 14 November 2011 (“the Cautioned Statement”); and the long statements taken between 21 and 24 November 2011 (“the Long Statements”). As alluded to above at [2], the Applicant told a series of lies and omitted material facts in his statements to the...