Public Prosecutor v Iwuchukwu Amara Tochi and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 22 December 2005
• Neutral Citation: [2005] SGHC 233
• Court: High Court (Singapore)
• Published date: 23 December 2005
• Year: 2005
• Plaintiff Counsel: Amarjit Singh and Chong Li Min (Deputy Public Prosecutor)
• Defendant Counsel: Chandra Mohan s/o K Nair (Tan Rajah and Cheah) and Patrick Tan Tse Chia (Patrick Tan and Associates),N K Rajarh (N K Rajarh) and Thrumurgan s/o Ramapiram (Allister Lim and Thrumurgan)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Importing controlled drugs,Presumption of knowledge of nature of drugs,Accused arrested at airport with diamorphine in bag,Requisite knowledge of contents of capsules,Wilful blindness as to contents no defence,Sections 7, 33 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Conspiracy to import controlled drugs,Abetment of importation,No presumption of knowledge raised,Whether knowledge of contents of capsules could be inferred,Sections 7, 12, 33 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)
• Citation: [2005] SGHC 233

22 December 2005

Kan Ting Chiu J:

1 There are two accused persons and two charges in this case. The first accused, Iwuchukwu Amara Tochi, was charged that he:

on the 27th day of November 2004, at Changi Airport Terminal 2 Transit Lounge, Singapore, did import into Singapore a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, 100 capsules containing not less than 727.02 grams of diamorphine, without any authorisation under the said Act or the regulations made thereunder, and [he had] thereby committed an offence under section 7 of the Misuse of Drugs Act and punishable under section 33 of the said Act.

2 The second accused, Okeke Nelson Malachy, was charged that he:

on or about the 27th day of November 2004, in Singapore and elsewhere, did engage with one Iwuchukwu Amara Tochi (Nigerian Passport No: A1622328) and one “Smith” in a conspiracy to do a certain thing, to wit, to import into Singapore a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Chapter 185, namely, 100 capsules containing not less than 727.02 grams of diamorphine, and in pursuance of the said conspiracy and in order to the doing of that thing, the said Iwuchukwu Amara Tochi without any authorisation under the said Act or the regulations made thereunder imported the said drug into Singapore on the 27th day of November 2004 to be handed to [him], and [he had] thereby abetted the commission of the offence of importing the said controlled drug into Singapore by the said Iwuchukwu Amara Tochi and thereby committed an offence under section 7 read with section 12 of the Misuse of Drugs Act and punishable under section 33 of the said Act.

3 The person referred to as Smith was not apprehended. From the evidence, he was in Pakistan.

The arrests

4 On 27 November 2004, at about 1.45pm, the first accused, a Nigerian national, flew into Singapore Changi Airport from Dubai. On 28 November, he went to the Ambassador Transit Hotel (“the hotel”) at Terminal 2 and asked for a room but none was available. When a room became available, the supervisor of the hotel noticed that he had been in the transit area for more than 24 hours and was due to return to Dubai on 30 November. In compliance with set procedures, she informed the airport police about the first accused. The airport police did not respond immediately but subsequently despatched three officers to interview the first accused.

5 The first accused was told that the police were coming to interview him before he could check in. When he was told that, he went away from the reception area of the hotel to the other areas of the transit area.

6 When the officers arrived about 20 minutes later, they introduced themselves and brought him back to the reception area of the hotel where they questioned him. He told them that he had come from Dubai and that he had come to Singapore to get trials with football clubs in Singapore. He admitted that no arrangements had been made with any club, and that he intended to approach the football federation for assistance. He also told the officers that he did not enter Singapore because he was told that he needed to have $2000 to enter, and he did not have the money. He had expected his father to send him the money, but his father did not send it.

7 The officers decided to conduct a search, which was carried out at the shower counter to the rear of the reception area. The first accused brought with him to the counter area a dark blue Converse sling bag (“the blue bag”) and a white “Dubai Duty Free” plastic bag (“the white plastic bag”).

8 The officers said that many items were discovered when they searched the blue bag. The most significant of the items were a red bucket-shaped “Maltesers” container, a pair of gloves and a pair of shoes. The 100 capsules which are the subject matter of the charges were found in the blue bag and in the Maltesers container, the gloves and the shoes. The capsules were securely wrapped in layers of aluminium foil, adhesive tape and plastic covering the core of powdery substance containing diamorphine.

9 When the first accused was asked if the capsules were chocolate he confirmed they were. When he was asked again if they were chocolate, he said they were actually herbs from Africa which tasted like chocolate, which gave strength when eaten, and he swallowed one capsule on his own. (He was later warded in hospital and induced to purge the capsule intact.)

10 The officers decided to cut open a capsule. When they suspected that the contents were drugs, they stopped the search and the Central Narcotics Bureau (“CNB”) was notified. At the same time, the first accused and his bags were moved from the shower counter to Room 302 (“the hotel room”) of the hotel.

11 While he was at the hotel room, another police officer, Sergeant Tan Chun Siong (“Sgt Tan”) came to see him to investigate him for overstaying. The first accused told him that he hoped to play football for a team in Singapore. He also told Sgt Tan that he was in the transit area to wait for an African national by the name of Marshal, and that he was to deliver the African herbs to Marshal at about 8.00pm in the transit area that day, and Marshal, who would be arriving from Indonesia, would hand US$2000 to him. He explained to Sgt Tan that this was arranged by his soccer manager whom he knew as Smith. Sgt Tan made contemporaneous jottings of the interview, including the words “Smith”, “Marshal” and “2000 US”.

12 Subsequently, when officers from the CNB arrived at the hotel room they opened one capsule which contents tested positive for controlled drugs.

13 Assistant Superintendent of Police Gary Chan Gin Choong (“ASP Chan”) of the CNB went to the hotel room. He questioned the first accused about the capsules, and was told that they were herbs from Africa for stomach problems. This was recorded in writing, and signed by the first accused.

14 Another CNB officer, Assistant Superintendent of Police Goh Boon Pin (“ASP Goh”) arrived at about 9.55pm and recorded a statement from the first accused in which he again stated that he would receive US$2000 for delivering the capsules. Another officer, Staff Sergeant Alan Yap Keng Chuan (“SSgt Yap”) also stated that the first accused had referred to the US$2000 payment, although he did not make any note of it at that time.

15 The first accused told the officers that someone known as Smith had arranged for him to bring the capsules into Singapore, and he was to deliver them to another person known as Marshal, who would pay him US$2000. He was instructed to telephone Smith with the telephone in the hotel room. Three calls were made. The first was made at about 8.42pm. After speaking in a language the officers did not understand (which was Igbo according to the first accused), he told the officers he had asked Smith about the delivery and collection and Smith told him that Marshal’s flight was delayed and told him to call back later. At about 10.16pm, the first accused called Smith again. After the call, he informed the officers that Smith had instructed him to meet Marshal at a café near the hotel. The first accused also said that Marshal was a black man of big build, and that he could recognise him by his appearance and voice. At about 10.47pm, a third call was made by the first accused to Smith, and the first accused was informed that Marshal was at the Coffee Bean outlet near the hotel.

16 The Prosecution produced the call records from the hotel’s telephone system, which showed that three calls were made from the hotel room on 28 November 2004 to Smith’s telephone number 005923335216217 disclosed by the first accused, which was established to be a telephone number in Pakistan.

17 After he was arrested, the first accused’s mobile phone was examined by Assistant Superintendent of Police Stanley Seah (“ASP Seah”) and was found to have Smith’s telephone number on its “dialled numbers” registry and “received numbers” registry.

18 Officers were deployed to look for Marshal, and they spotted a man fitting his description moving about in the transit area. Staff Sergeant Aaron Ler Puay Soon (“SSgt Ler”) used his own initiative to take two video clips with his mobile telephone of the person who eventually made his way to The Coffee Bean & Tea Leaf café in the transit area.

19 Another officer, Staff Sergeant Francis Heng Kia Chye (“SSgt Heng”) was instructed by ASP Chan to take photographs of the person. SSgt Heng took three shots of him with a digital camera. The first accused was shown the shots, and confirmed that the person in the shots was Marshal. Subsequently when the second accused was brought into the hotel room, the first accused was asked whether that was Marshal and he nodded in affirmation.

The items seized from the second accused

20 After the second accused was placed under arrest, his personal property was examined and seized. He was found to be travelling on a forged South African passport. Amongst the property, the following were relied on by the Prosecution as evidence in support of its case against him:

(a) one Subscriber Identity Module (“SIM”) card recovered from mobile phone number 98657833 the second accused was carrying;

(b) an application form for the purchase of that SIM card;

(c) five other SIM cards recovered from his wallet;

(d) a small telephone booklet recovered from the wallet; and

(e) a laundry receipt recovered from the wallet.

21 The SIM card in the mobile phone was sent to the Technology Crime Forensic Branch, Criminal Investigation Department, and was examined by Staff Sergeant Kelvin Yuen Khoong Wai (“SSgt Yuen”) who found amongst the deleted messages two identical messages received on 28 November 2004 at 7:27:24pm and 7:27:44pm, both sent from telephone number 923335216217 (Smith’s telephone number): “I have been expecting ur call since what happen”.

22 In the call tracing records of the mobile phone number...