PP v Gobi a/l Avedian

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeSundaresh Menon CJ,Judith Prakash JA,Tay Yong Kwang JA
Judgment Date25 October 2018
Docket NumberCriminal Appeal No 20 of 2017

[2018] SGCA 72

Court of Appeal

Sundaresh Menon CJ, Judith Prakash JA and Tay Yong Kwang JA

Criminal Appeal No 20 of 2017

Public Prosecutor
and
Gobi a/l Avedian

Mohamed Faizal, Tan ZhongshanandNicholas Wuan(Attorney-General's Chambers) for the appellant;

Shashi Nathan, Tania ChinandJeremy Pereira (KhattarWong LLP) for the respondent.

Case(s) referred to

Khor Soon Lee v PP [2011] 3 SLR 201 (refd)

Nagaenthran a/l K Dharmalingam v PP [2011] 4 SLR 1156 (refd)

Obeng Comfort v PP [2017] 1 SLR 633 (refd)

PP v Phuthita Somchit [2011] 3 SLR 719 (refd)

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 23, 141(2)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 7, 12, 18(2), 33B

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Respondent claiming he believed that drugs were not serious or dangerous — Whether presumption in s 18(2) was rebutted — Sections 7 and 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Respondent claiming he believed that he would only be fined or given light sentence if arrested — Whether presumption in s 18(2) was rebutted — Sections 7 and 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Respondent facing one charge of importing controlled drugs — Respondent claiming he knew that bundles contained drugs but did not know that they contained diamorphine specifically — Whether presumption in s 18(2) was rebutted — Sections 7 and 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Facts

The respondent, Gobi a/l Avedian, was charged with one count of importing 40.22g of diamorphine, a Class A controlled drug, which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“the Act”). He was arrested at the Woodlands Checkpoint with drugs found hidden in the motorcycle that he was riding. According to the respondent, his friend Guru had introduced him to one Vinod, who instructed him to bring the drugs into Singapore. The respondent was allegedly assured by Vinod that the items were “chocolate drugs” and that if he were caught with them, he would only be fined or given light punishment. The respondent claimed that he had initially refused to carry out the delivery but eventually agreed to do so because he needed money for his daughter's operation. He claimed to have also asked another friend, Jega, about the “chocolate drugs” before transporting them into Singapore. The respondent informed Jega that the “chocolate drugs” were to be used in discos and Jega apparently told him that if so, the drugs were not very dangerous nor terrible. The respondent also admitted to delivering similar bundles of drugs into Singapore on eight or nine previous occasions before he was apprehended.

The sole issue at the trial below was whether the respondent had rebutted the presumption of knowledge under s 18(2) of the Act. The trial judge found the respondent's evidence to be consistent from the time of arrest and throughout the trial and accepted that the appellant did not know that the packets contained diamorphine. The presumption in s 18(2) of the Act was found to be rebutted. The trial judge exercised his power to convict the respondent on a reduced charge of attempting to import into Singapore a Class C controlled drug. The trial judge sentenced the respondent to 15 years' imprisonment with effect from the date of arrest and to ten strokes of the cane for the reduced charge.

The Prosecution appealed on the ground that the Judge erred in finding that the presumption was rebutted. On appeal, the Prosecution argued that the circumstances of the task were highly suspicious and there were weaknesses and inconsistencies in the respondent's evidence.

Held, allowing the appeal:

(1) The presumption in s 18(2) of the Act operated to vest an accused person with knowledge of the nature of the drug which he was in possession of. In order to rebut this, the respondent had to give an account of what he thought the items were. The respondent's belief that the drugs were not serious drugs that would have only occasioned a fine or a light sentence if he were caught with them was insufficient to rebut the presumption of knowledge in s 18(2): at [31] and [32].

(2) The penalties that a particular type of drug attracts in law could not be used as a proxy for identifying the drug itself. If the respondent's professed intention was to refuse to carry drugs that attracted the death penalty, then it was incumbent on him to find out what sorts of drugs would lead to such a penalty and how he was to identify them. In the present case, the respondent did not bother to find out more despite knowing that he would be transporting illegal drugs. The inquiries made by the respondent would not have informed him about the nature of the drugs. The respondent did not know what type of drugs would fit into each category and had also never heard of diamorphine or heroin. He would therefore have no knowledge as to whether diamorphine would attract a fine or a long imprisonment or the death penalty: at [34], [36] and [37].

(3) In determining whether an accused person believed subjectively the information given by the drugs supplier about the drugs, the court would consider the knowledge of and the efforts made by him to find out about the drugs he was going to traffic in. Unique circumstances justifying a very high level of trust had to be shown by the accused person before the court would be persuaded that he was entitled to rely solely or mainly on the information given by the drugs supplier. In the present case, Vinod's assurances could not do very much to help the respondent to rebut the presumption of knowledge because Vinod did not give the respondent any information that would help him to identify the drugs and there was in any case little reason for the respondent to trust Vinod: at [39] to [41].

(4) There were several problems with the respondent's evidence on the assurances given to him by Jega. First, it was strange that the respondent did not mention these assurances in any of his statements to the police. Second, the respondent did not adduce any evidence concerning Jega's knowledge or experience in drugs. According to the respondent, he had thought that Jega would know about drugs because he had gone to discos before. However, Jega's familiarity with discos did not equate to familiarity with drugs. Third, the respondent did not ask Jega any questions in relation to the nature of the drugs that would help him to identify them: at [44] to [46].

[Observation: In respect of the reduced charge, there was a high degree of artificiality in stating that the respondent “believed” that he was importing a Class C drug under the Act when he did not mention a single drug name or even drug classes throughout his testimony. A drug described by the respondent as not dangerous or not serious could also be a Class A or B drug of a quantity which did not attract the death penalty: at [50].]

25 October 2018

Judgment reserved.

Tay Yong Kwang JA (delivering the judgment of the court):

Introduction

1 The respondent was charged with one count of importing not less than 40.22g of diamorphine, an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The charge (“the original charge”) reads as follows:

That you, GOBI A/L AVEDIAN, on 11 December 2014, at about 7.50 pm, at Woodlands Checkpoint, No.: 21 Woodlands Crossing, Singapore, on a motorcycle bearing Malaysian registration number JQL 3650, did import into Singapore a controlled drug listed in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, by having in your possession for the purpose of trafficking, two packets containing a total of not less than 905.8 [grams] of granular substance which was analysed and found to contain a total of not less than 40.22 grams of diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 7 of the Misuse of Drugs Act, (Cap 185, 2008 Rev Ed) and punishable under s 33(1) of the Misuse of Drugs Act, (Cap 185, 2008 Rev Ed).

2 The respondent claimed trial and the sole issue in the trial below was whether the respondent had rebutted the presumption of knowledge of the nature of the drug under s 18(2) of the MDA. The trial judge (“the Judge”) found that the presumption was rebutted and exercised his power under s 141(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to convict the respondent on an amended charge of attempting to import into Singapore a Class C controlled drug (“the reduced charge”). The reduced charge reads:

That you, GOBI A/L AVEDIAN, on 11 December 2014, at about 7.50 pm, at Woodlands Checkpoint, No.: 21 Woodlands Crossing, Singapore, on a motorcycle bearing Malaysian registration number JQL 3650, did attempt to import into Singapore a controlled drug under Class ‘C’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), without any authorisation under the said Act or the Regulations made thereunder, to wit, by having in your possession for the purpose of importation, two packets containing a total of not less than 40.22 grams of diamorphine, which you believed was a controlled drug under Class ‘C’ of the First Schedule of the said Act, and you have thereby committed an offence under s 7 read with s 12 of the Misuse of Drugs Act, (Cap 185, 2008 Rev Ed) and punishable under s 33(1) of the Misuse of Drugs Act, (Cap 185, 2008 Rev Ed).

Based on the reduced charge, the Judge sentenced the respondent to 15 years' imprisonment with effect from the date of arrest on 11 December 2014 and to ten strokes of the cane. The Judge's decision can be found in PP v...

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1 cases
  • Gobi a/l Avedian v PP
    • Singapore
    • Court of Three Judges (Singapore)
    • 19 October 2020
    ...could not have invoked the s 18(2) presumption. [Editorial note: The decision from which this application arose is reported at [2019] 1 SLR 113.] Held, allowing the application, setting aside the Applicant's conviction on the capital charge and reinstating the conviction on the amended char......

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