Public Prosecutor v Hamidah Binte Awang and another

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 05 July 2019
• Neutral Citation: [2019] SGHC 161
• Court: High Court (Singapore)
• Docket Number: Criminal Motion No 4 of 2017 and No 22 of 2018
• Year: 2019
• Published date: 09 November 2019
• Hearing Date: 03 August 2018,05 July 2019,08 August 2018,04 April 2019,31 July 2018,07 August 2018,02 August 2018
• Plaintiff Counsel: Kristy Tan, Tan Wee Hao, Zhou Yihong and Uni Khng (Attorney-General's Chambers)
• Defendant Counsel: Eugene Thuraisingam, Suang Wijaya, Johannes Hadi (Eugene Thuraisingam LLP) and Jerrie Tan (K&L Gates Straits Law LLC)
• Subject Matter: Criminal procedure and sentencing,Fresh evidence,Statements,Evidence,Expert Evidence
• Citation: [2019] SGHC 161

Lee Seiu Kin J: Introduction

Ilechukwu Uchechukwu Chukwudi (“Ilechukwu”), a Nigerian national, faced a charge of drug trafficking under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). He was tried jointly with Hamidah Binte Awang (“Hamidah”) who was charged with attempting to export drugs under s 7 read with s 12 of the MDA.¹

On 5 November 2014, I acquitted Ilechukwu of the charge against him and convicted Hamidah of the charge against her.² Hamidah appealed against her sentence by way of Criminal Appeal No 33 of 2015, which was dismissed by the Court of Appeal on 13 September 2016.³ The current proceedings relate only to Ilechukwu.

Procedural history The charge

On 13 November 2011, Ilechukwu flew from Lagos, Nigeria to Singapore. At the Murtala Muhammed International Airport in Lagos, Nigeria, he checked in a black luggage bag (“the Black Luggage”) prior to his flight, which he retrieved from the luggage belt when he arrived at Changi Airport on the same day. Later that night, Ilechukwu met Hamidah and handed the Black Luggage to her. Hamidah placed the Black Luggage in her car. She subsequently drove to Woodlands Checkpoint, where her car was searched. The Black Luggage was retrieved from the car, cut open at the sides and drugs were discovered therein.

Ilechukwu was charged with trafficking not less than 1,963.3g of methamphetamine under s 5(1)(a) of the MDA.⁴

The acquittal by the High Court

Ilechukwu claimed trial. At the end of the trial, on 5 November 2014, I acquitted Ilechukwu of the charge against him. My written grounds of decision is reported in Public Prosecutor v Hamidah Binte Awang and another [2015] SGHC 4 (“HC (Acquittal)”).

In acquitting Ilechukwu, I accepted his defence that he had come to Singapore on business and that he did not know that the Black Luggage contained drugs. I found that Ilechukwu had rebutted the presumption of knowledge of the nature of the drugs under s 18(2) of the MDA and stated at [70] of HC (Acquittal):

On the evidence that I have before me, I found that Ilechukwu had rebutted the presumption of knowledge under s 18(2) of the MDA. The drugs were so well hidden that he could not have known about it unless he was told of it. His behaviour throughout, except at the time of arrest, had been consistent with a person who had no inkling of the presence of drugs in the Black Luggage. His explanation for his lies at the time of arrest was not unreasonable given the situation he found himself, including the fact that he was in a foreign land for the first time and unfamiliar with its laws and customs.

The CA conviction decision

The Prosecution appealed against the acquittal of Ilechukwu by way of Criminal Appeal No 10 of 2014 (“CCA 10/2014”). On 29 June 2015, the Court of Appeal allowed the appeal and convicted Ilechukwu of the charge brought against him. The Court of Appeal’s grounds of decision is reported in Public Prosecutor v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33 (“CA (Conviction)”).

The primary reason for the Court of Appeal’s decision to convict Ilechukwu was the lies and omissions he made in his statements to the Central Narcotics Bureau (“CNB”). The Court of Appeal found that there was no innocent explanation for those lies. The Court of Appeal stated at [61] and [88] of CA (Conviction): 61 [Ilechukwu’s] excuses for the lies were wholly unsatisfactory and unbelievable. It is clear to us that he had deliberately lied to distance himself from the drugs in the Black Luggage, the existence of which he knew. Quite simply, there is no acceptable explanation for the lies save for his realisation of his guilt. To suggest that [Ilechukwu] was justified to lie as a defensive move would be to turn reason and logic on its head.

…

88 What tipped the scales are the numerous lies and omissions made by [Ilechukwu] in his statements, for which there is no innocent explanation. … The lies were told by [Ilechukwu] obviously to distance himself from the Black Luggage and the Drugs concealed therein. CA/CM 4/2017 – the first criminal motion

The Court of Appeal ordered that the matter be remitted to me for sentencing. For the purposes of sentencing, both the Prosecution and Defence called for psychiatric reports on Ilechukwu on the issue of whether he should be sentenced to life imprisonment instead of the death penalty under s 33B(3)(b) of the MDA.

The Prosecution requested Dr Jaydip Sarkar (“Dr Sarkar”), then of the Institute of Mental Health (“IMH”), to provide a report on Ilechukwu. In his report, dated 6 March 2017, (“First Sarkar Report”), Dr Sarkar diagnosed Ilechukwu with post-traumatic stress disorder (“PTSD”) which arose as a result of a childhood trauma. Dr Sarkar opined that it was likely that PTSD prompted Ilechukwu to utter falsehoods in his statements to the CNB to save his life. Dr Sarkar opined at para 88 that: ⁵

[Ilechukwu] was suffering from a recognized mental disorder (PTSD with dissociative symptoms) at the time that his statements were taken by investigating officers. In my opinion presence of this disorder is likely to have led to an overestimation of [the] threat to his life which could have prompted him to utter unsophisticated and blatant falsehoods in order to save his life as outlined in paragraph 48.

Relying on the First Sarkar Report as fresh evidence of his innocence, Ilechukwu filed Criminal Motion No 4 of 2017 (“CA/CM 4/2017”) on 5 April 2017 requesting the Court of Appeal to rehear Criminal Appeal No 10 of 2014, ie, the Prosecution’s appeal against the acquittal of Ilechukwu.

On 2 August 2017, the Court of Appeal allowed CA/CM 4/2017 in part. The CA’s judgment for CA/CM 4/2017 is reported at Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2017] 2 SLR 741 (“CA (Criminal Motion 1)”). The Court of Appeal found that the First Sarkar Report was prima facie powerfully probative in respect of the issue of the reasons Ilechukwu lied in his statements to the CNB (“the False Statements Issue”). This was because Dr Sarkar’s opinion may explain why Ilechukwu continued to lie in the statements which he made to the CNB. The False Statements Issue was in turn the essential question in CCA 10/2014 (see [43] of CA (Criminal Motion 1)).

The Court of Appeal then remitted the matter to me to receive evidence from Dr Sarkar in relation to the First Sarkar Report as well as such other evidence on matters arising from the report. Specifically, the Court of Appeal directed at [50]–[51] of CA (Criminal Motion 1): 50 We therefore allow the Present Motion in part and order a review of this court’s decision in CA (Conviction) ([7] supra) because of the unique turn of events in this case, which make it a “truly exceptional” case of the kind envisaged by this court in Kho Jabing ([1] supra) at [65]. In so ordering, we are not making a finding that [Ilechukwu] does indeed suffer from PTSD or that he was affected by it when he made his statements to the CNB. We are likewise not implying that he is innocent. His guilt or innocence is a matter to be determined at the subsequent review of our decision in CA (Conviction). As indicated at [48] above, we are of the view that the proper course of action at the present stage is to remit the matter to the Judge for him to receive evidence from Dr Sarkar in relation to [Dr Sarkar’s 6 March 2017 report] as well as such other evidence on matters arising from this report as the Judge may allow either party to adduce. The Judge is then to make findings on: (a) whether [Ilechukwu] was suffering from PTSD; (b) the typical effects of PTSD on a sufferer; (c) if [Ilechukwu] was indeed suffering from PTSD: (i) the period of time during which PTSD affected him; (ii) the effects of PTSD on him during that period; and (iii) the extent to which PTSD affected him when he gave his statements to the CNB. 51 After the Judge has made his findings on the issues stated above, there shall be a further hearing where this court will review its decision in CA (Conviction). At that hearing, the parties are to address us on the correctness of the Judge’s findings on the aforesaid issues and their implications on our decision in CA (Conviction).

CA/CM 22/2018 – the second criminal motion

The further hearing to receive fresh evidence as directed by the Court of Appeal was conducted on 31 July 2018, 2–3 August 2018 and 7–8 August 2018.

At the conclusion of the further hearing, on 8 August 2018, counsel for Ilechukwu indicated to the court that he would be filing another criminal motion before the Court of Appeal on behalf of Ilechukwu.⁶ Hence, on 11 September 2018, Ilechukwu filed Criminal Motion 22 of 2018 (“CA/CM 22/2018”) in which he requested the Court of Appeal to revise the terms of the orders it had made in CA/CM 4/2017.⁷

CA/CM 22/2018 was heard on 23 January 2019 and allowed in part. The Court of Appeal added a further para (d) to the order it made in CA (Criminal Motion 1). The eventual order for determination by the High Court is as follows (with the addition italicised) (“Terms of Reference”): whether [Ilechukwu] was suffering from PTSD; the typical effects of PTSD on a sufferer; if [Ilechukwu] was indeed suffering from PTSD: the period of time during which PTSD affected him; the effects of PTSD on him during that period; and the extent to which PTSD affected him when he gave his statements to the CNB. if Ilechukwu was not suffering from PTSD, whether Ilechukwu was suffering from post-traumatic stress symptoms (“PTSS”). If he was suffering from PTSS: the precise symptoms should be identified; the period of time during which PTSS affected him; the effects of PTSS on him during that period; and the extent to which PTSS affected him when he gave his statement[s] to the CNB

The hearing

The evidence was heard on 31 July, 2, 3, 7, 8 August 2018. There were a total of nine witnesses for...