Public Prosecutor v Gobi a/l Avedian

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 25 October 2018
• Neutral Citation: [2018] SGCA 72
• Plaintiff Counsel: Mohamed Faizal, Tan Zhongshan and Nicholas Wuan (Attorney-General's Chambers)
• Date: 25 October 2018
• Docket Number: Criminal Appeal No 20 of 2017
• Hearing Date: 02 May 2018
• Subject Matter: Criminal Law,Illegal importation of controlled drugs,Statutory offences,Misuse of Drugs Act
• Year: 2018
• Defendant Counsel: Shashi Nathan, Tania Chin and Jeremy Pereira (KhattarWong LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 72
• Published date: 30 October 2018

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

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).

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 Public Prosecutor v Gobi a/l Avedian [2017] SGHC 145 (“the GD”).¹

The Prosecution appealed on the ground that the Judge erred in finding that the presumption under s 18(2) of the MDA was rebutted. The Prosecution contended that the respondent ought to have been convicted on the original charge.

Facts Events leading up to the respondent agreeing to transport the drugs

The respondent is a Malaysian. He was 26 years old at the time of the incident. In 2011, he came to Singapore to work as a security guard earning between $1,400 and $1,850 each month. The respondent’s daughter had a growth in her jaw and needed several operations, with another operation scheduled after January 2015 which was expected to cost about RM50,000.² However, the respondent and his wife managed to save only about RM20,000.

According to the respondent, he approached his friend, “Guru”, for part-time job recommendations as he needed money for his daughter’s operation. Guru introduced the respondent to one Vinod. Guru and the respondent met Vinod at a restaurant. There, the respondent was asked to deliver some drugs into Singapore.³ He would be paid RM500 for each packet delivered. The respondent claimed that when he asked Vinod for more details about this delivery, Vinod assured him that “it is only chocolate drugs” and that “it is an ordinary drug”.⁴ The respondent also claimed that Vinod told him that if he was caught, he would either be fined or given light punishment. However, the respondent had “no idea about all this” and “thought it will be a problem” and refused to carry out the delivery.⁵ He explained in cross-examination that, “At first, I did not want to do because I was scared”.⁶ He then left the restaurant.

As the date of his daughter’s operation grew closer and the respondent still did not have enough money to pay for it, he “became desperate”.⁷ He decided to ask a friend, Jega, about the “chocolate drugs”. Jega and the respondent had met in Singapore when the respondent was working as a security guard in the casino in Sentosa. The respondent claimed to have grown close to Jega as they were both working in Singapore. The respondent explained that he did not have many friends in Johor Bahru. Among his friends in Johor Bahru, Jega was the only one who went to clubs and discos.⁸ The respondent therefore asked Jega about the “chocolate drugs”. In particular, the respondent asked Jega “what are chocolate drugs” and mentioned to him that they would be used in discos.⁹ According to the respondent, Jega replied that “if it is to be used in discos, it is not a very dangerous drug and that it is not a terrible drug”.¹⁰

The respondent claimed that he believed Jega because Jega frequented discos and there was no reason why Jega would lie to him about this since Jega did not know Guru or Vinod. The respondent then thought to himself that since Vinod had told him that the drugs would be mixed with chocolate, “it will not be a problem as it is mixed with food”.¹¹ Moreover, the respondent recalled that Vinod had told him that if he were to be caught at the Singapore checkpoint, he would “either be fined or be given light punishment”.¹² Since the punishment would be a fine, the respondent thought it was not a big matter. The respondent also thought that since Guru was present at the meeting with Vinod and Guru was the respondent’s friend, Vinod would not lie in front of Guru. This was also because they knew that the respondent was asking about the delivery because of his financial problems. The respondent claimed that he agreed to transport the drugs for Vinod for the above reasons.

The first delivery of drugs into Singapore

The respondent admitted that he had delivered similar bundles of drugs into Singapore on eight or nine previous occasions on his relative’s motorcycle.¹³ The first occasion took place a few days after 22 October 2014. On the first occasion, Vinod called the respondent and informed him that Vinod’s brother would pass the respondent the “chocolates”. The respondent then took the motorcycle and waited at the meeting point near his home. Vinod’s younger brother arrived and passed the respondent one packet of drugs on the first occasion.¹⁴ Vinod’s younger brother also gave the respondent ideas on how the packet could be smuggled into Singapore and suggested that it be placed at the back of the motorcycle.¹⁵ The respondent brought the packet back, removed the newspaper wrapping and wrapped the bundle in a black rubbish bag.¹⁶ In the process of doing so, the respondent noticed that the drugs looked like chocolate as they were “in the colour of chocolate”. The respondent thought that this was consistent with what he was told the drugs were mixed with.¹⁷ He did not know what drug it was and also did not know that the drug carried the death penalty in Singapore.¹⁸

The respondent then placed the wrapped packet inside the motorcycle and travelled into Singapore for work. After arriving in Singapore, he was instructed by either Vinod or Guru to go to Admiralty Station.¹⁹ Upon reaching Admiralty Station, the respondent called Vinod and was told to pass the packet to a man with a hunchback.²⁰ The respondent did as instructed.

The arrest

On the day of arrest on 11 December 2014, the respondent received and handled the drugs as described above. Before entering Singapore, the respondent picked up his friend, Chandra, so that they could travel together to Singapore for work. At the Woodlands Checkpoint, the respondent was stopped by Immigration and Checkpoint Authority officers because he had been classified as a person of interest prior to his arrival in Singapore. A team of Central Narcotics Bureau (“CNB”) officers were notified and upon their arrival, the respondent and Chandra were escorted into a nearby empty garage for a strip search by the CNB officers. Nothing incriminating was found on the two individuals’ bodies.

CNB officer W/SSgt Ritar Diayalah (“W/SSgt Ritar”) then asked the respondent in Tamil if he had any contraband items in the motorcycle to declare and he answered in the negative.²¹ A search was conducted on the motorcycle. Halfway through the search, when a CNB officer was attempting to remove the motorcycle’s seat, the respondent admitted suddenly to W/SSgt Ritar in Tamil that there were ‘things’ hidden in the motorcycle. He claimed that he did not know what those ‘things’ were but referred to them as ‘chocolate’ (in English).²² Upon further questioning, the respondent said he knew ‘chocolate’ meant drugs and was not a reference to sweets. The respondent then directed the CNB officers’ attention to the rear compartment beneath the seat of the motorcycle. The CNB officers found a screwdriver in the motorcycle and used it to unscrew a small flap covering the inner compartment of the motorcycle.²³ In the presence of the respondent and Chandra, the CNB officers found two black bundles inside the motorcycle. The two black bundles were marked ‘A1’ and ‘A2’ respectively.

The black packaging of the first bundle, A1, was cut open by an officer from the CNB Forensic Response Team (“FORT”) and a clear plastic packet containing brown granular substance was revealed. This clear plastic...