Iwuchukwu Amara Tochi and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 16 March 2006
• Neutral Citation: [2006] SGCA 10
• Docket Number: Criminal Appeal No 9 of 2005
• Date: 16 March 2006
• Published date: 20 March 2006
• Year: 2006
• Plaintiff Counsel: Chandra Mohan s/o K Nair (Tan Rajah & Cheah) and Patrick Tan Tse Chia (Patrick Tan & Associates)
• Citation: [2006] SGCA 10
• Defendant Counsel: Han Ming Kwang and Jason Chan (Deputy Public Prosecutor),N K Rajarh (N K Rajarh) and Thrumurgan s/o Ramapiram (Allister Lim & Thrumurgan)
• Court: Court of Appeal (Singapore)
• Subject Matter: Statutory offences,Appeal against conviction on charge of importing controlled drugs into Singapore,Criminal Law,Sections 7, 18 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Words and Phrases,"Abet",Misuse of Drugs Act,Whether appellant knowing he was importing drugs into Singapore,Sections 7, 12 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Whether "abet" under s 12 Misuse of Drugs Act to be given same meaning as "abet" under s 107 Penal Code,Section 12 Misuse of Drugs Act (Cap 185, 2001 Rev Ed), s 107 Penal Code (Cap 224, 1985 Rev Ed),Whether appellant intended recipient of drugs,Appeal against conviction on charge of conspiracy to import controlled drugs into Singapore under s 7 read with s 12 Misuse of Drugs Act

16 March 2006

Choo Han Teck J (delivering the judgment of the court):

1 Three persons appeared to be involved in a plan to import 727.02g of diamorphine into Singapore on 27 November 2004. All that was known of the first man, who was subsequently charged and convicted, and appeared before us as the first appellant, were from the findings of the trial judge. The factual findings, inferences aside, were that the first appellant was 18 years old and came from Nigeria. He left school at the age of 14 and played football for a living in Nigeria and Senegal. After Senegal, he planned to go to Dubai from Pakistan, but found himself stranded in Karachi, Pakistan. There, he befriended the third person in the conspiracy, a man known only as Smith; and it appeared that Smith helped the first appellant out of Pakistan through Kabul in Afghanistan and it was intended that he enter Dubai from Kabul. However, he was unable to enter Dubai. It also appeared that the first appellant had told the court that he was planning to come to Singapore to play football. No further personal account of the first appellant was noted, although the trial judge found that “a considerable amount of time was spent on many matters, for example, the bag from which the capsules were recovered from, and the [first appellant’s] travels after leaving Nigeria up to his arrival in Singapore” (see PP v Iwuchukwu Amara Tochi [2005] SGHC 233 at [37]). Hence, it was not known which football clubs he played for in Nigeria and Senegal, and which he hoped to play for in Singapore (however, he had testified that he had not made any arrangements with any club in Singapore but had hoped to approach the football federation for assistance). At one point after his arrest, the first appellant appeared to have said that his football manager was Smith. These would not be information that directly connected the first appellant to the offence of importing diamorphine into Singapore but would serve as corroborative evidence of the facts he supplied in his defence. It is not apparent from the judgment below where the first appellant came from and when he landed at Changi Airport although the court found that he was due to return to Dubai on 30 November.

2 The second person involved in the plan to import diamorphine into Singapore was the second appellant, a 33-year-old Nigerian who was named in the charge as “Okeke Nelson Malachy”. Part of his defence lay in rejecting the Prosecution’s case that he was known to the first appellant and also to Smith as “Marshal”. His account of himself was that he had come to Singapore to buy a used car to be shipped to South Africa for his use. No other details of this part were known or deemed relevant by the trial judge. The second appellant maintained that he did not know the first appellant and Smith. Smith, it transpired, was known only as a voice speaking through the mobile telephones of the first and second appellants. The account of the arrests of the appellants as found by the trial judge was as follows.

3 The first appellant was charged with the offence of importing a controlled drug into Singapore under s 7 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the Act”). The offence was stated to be committed on 27 November 2004. No time was specified. The trial judge found that the first appellant had arrived in Singapore at 1.45pm. The first appellant made enquiries for a room in the hotel at the transit area of the airport the following day. The time he made the enquiry was not noted in the judgment below. However, the court found that the supervisor at the booking station noted that the first appellant had been in the transit area for more than 24 hours and that she (the supervisor) duly notified the police in accordance with security procedures at the airport. The first appellant was then told that the police would arrive shortly to talk to him. He was found elsewhere in the transit area about 20 minutes later when the police arrived, and was taken back to the hotel. The first appellant was searched there. One of the items carried by him was a dark blue sling bag bearing the brand name “Converse”. The bag contained a red container bearing the brand name “Maltesers”, a pair of gloves, and a pair of shoes. 100 capsules were found inside the sling bag, as well as the Maltesers container, the gloves, and the shoes. Each of the 100 capsules containing diamorphine was found wrapped in layers of aluminium foil, plastic, and adhesive tape. When questioned by the police, the first appellant at first said that the capsules were chocolate, but when the question was repeated he said that they were African herbs that tasted like chocolate. He said that such herbs “gave strength” when eaten. He then swallowed a capsule, but that was subsequently retrieved from the first appellant at the hospital. The police suspected the content to be drugs when they cut open one of the capsules. The Central Narcotics Bureau (“CNB”) was then alerted and it took over the investigation.

4 The first appellant told the CNB officers that Smith had made arrangements for him (the first appellant) to bring the capsules into Singapore where he was to deliver them to a person named “Marshal”. In return, Marshal would hand him US$2,000. On the instructions of the CNB officers, the first appellant contacted Smith three times that evening by telephone. It was established at the trial that Smith’s number was registered as a telephone number in Pakistan. A trap for the second appellant was set and sprung after Smith told the first appellant that the second appellant was at the Coffee Bean café near the hotel in the transit area. Marshal was described as a dark man of big build, and when the second appellant who fit the description was spotted, he was arrested and brought to the hotel where the first appellant was asked if that was Marshal. The trial judge recorded that the first appellant “nodded in affirmation”. Several items were seized from the second appellant, among them a mobile telephone with the number 98657833. The Subscriber Identity Module card, popularly known as the “SIM card”, from that telephone was found to contain two identical messages sent from the same telephone number at which the first appellant had called Smith earlier on, namely 923335216217. The message read: “I have been expecting your call since what happen”. Two incoming calls, with an outgoing call in-between, to the second appellant’s telephone from the telephone bearing Smith’s telephone number were also traced to have been made at 10:58:43pm, 11:14:19pm and 11:17:37pm. A separate SIM card taken from the second appellant was...