Ubaka v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 16 September 1994
• Neutral Citation: [1994] SGCA 111
• Docket Number: Criminal Appeal No 9 of 1994
• Date: 16 September 1994
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: N Ganesan (N Ganesan & Associates) and Ho Meng Hee (Ho Meng Hee & Co)
• Citation: [1994] SGCA 111
• Defendant Counsel: Christine Lee (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Presumptions of possession and knowledge,Whether appellant successfully rebutted presumptions,Drugs in bags retrieved from the in-flight spur area,ss 7 & 18 Misuse of Drugs Act (Cap 185),Criminal Law,Statutory offences,Importing controlled drugs,(follow title of statute: eg misuse of drugs act)

The appellant was charged and convicted of importing into Singapore, on 8 July 1993, not less than 8,968g of diamorphine contrary to s 7 and punishable under s 33 of the Misuse of Drugs Act (Cap 185). He was duly sentenced to death. We heard his appeal against conviction on 15 August 1994 and dismissed it. We now give our reasons.

The facts are not controversial. The appellant arrived at Terminal 2 of Changi Airport on 8 July 1993 at about 5.18pm on Swissair flight SR 182 from Bangkok and was due to leave Singapore at 9.05pm the same day on Swissair flight SR 183 for Zurich via Bangkok and thence to Lagos, Nigeria. As he disembarked from flight SR 182 and whilst he made the arrangements to transfer to flight SR 183 at the Transfer Counter F he was observed by two narcotics officers who kept him under surveillance. Later two other narcotics officers, Staff Sergeant Wong Wah Yan (S/Sgt Wong) and Narcotics Officer Douglas Yap (NO Yap), who had been alerted by the narcotics officers who had kept the appellant under surveillance, stopped him for questioning. The appellant produced to them his Swissair ticket for his flight to Lagos via Bangkok and Zurich, his boarding pass and a Republic of Niger passport in the name of `Saleh Mustafa Mai`. The appellant was then taken to the Central Narcotics Bureau (CNB) office in Terminal 2 for further questioning. In the CNB office Narcotics Officer Xavier Dawes (NO Dawes) searched the appellant`s brown briefcase but found nothing incriminating in it. However, on searching the appellant`s person, a Nigerian passport was found in an envelope recovered from the appellant`s inner jacket packet. The Nigerian passport was in the appellant`s true name, Chris Chinenye Ubaka. This passport showed that he had arrived in Hong Kong on 25 June 1993 and had departed from Hong Kong on 8 July 1993.

The appellant was then asked whether he had any checked-in luggage to which the appellant said that he had a security item, namely, a knife. However, he had two baggage tags attached to his airline ticket. Two pieces of baggage were retrieved from the baggage area of Terminal 2 in the appellant`s presence and they consisted of a brown sling bag and a black travelling bag with Bangkok International Airport security checked bands. The security item was also retrieved which was an orange security checked envelope. The appellant confirmed that the two bags and the envelope referred to above were his. The bags and the envelope were searched.

The brown sling bag had two compartments separated by a central divider. When the two compartments were filled with clothing the central divider was hardly noticeable, but once the clothing was removed a bulge was seen in the central divider. Upon making a slit at the bulge in the central divider a white powdery substance trickled out. When S/Sgt Wong asked the appellant what the white powdery substance was, he replied that a man gave him the two bags in Bangkok or words to that effect.

S/Sgt Wong immediately sent for the investigating officer, Inspector Francis Jeyaraje (Insp Jeyaraje) and continued with the search of the black travelling bag which was opened by a key produced by the appellant. Once the black bag was emptied of its contents, bulges were seen at the side linings. When asked what these bulges were the appellant replied `same thing`.

The appellant and the two bags were taken to the CNB office in Terminal 2 to await Insp Jeyaraje. When Insp Jeyaraje arrived the central divider of the brown sling bag and the side linings of the black travelling bag were cut open in the presence of the appellant. A brown paper package was recovered from the brown sling bag and two brown paper packages with outer black PVC wrappings were recovered from the black travelling bag. All three packages were later sent to the Department of Scientific Services for analysis and were found to contain a total of 8,968g of diamorphine.

Insp Jeyaraje recorded a statement pursuant to s 122(6) of the Criminal Procedure Code (Cap 68) from the appellant at CNB Headquarters, where the appellant had been taken to, at about 1.40am on 9 July 1993. The appellant was proficient in English. No interpreter was used. In the s 122(6) statement, the appellant said `I did not commit the offence and I do not wish to say anything more. I was not coming into Singapore.` Its voluntariness was not challenged and it was admitted into evidence. Insp Jeyaraje also recorded three statements under s 121 of the Criminal Procedure Code. These statements were admitted into evidence at the request of the defence. Their voluntariness was also not challenged but when the appellant gave evidence he retracted certain portions of them saying that they were `not entirely correct`.

A submission of `no case` was not made by defence counsel at the close of the prosecution`s case. It is now settled by decisions of this court that the word `import` in s 7 of the Misuse of Drugs Act has the same meaning given to that word by s 2 of the Interpretation Act (Cap 1) which means `to bring or cause to be brought into Singapore by land, sea or air.` See 1 and .2 Furthermore, this court held in 3 that an accused person has possession of a bag even though it would have normally remained in the in-flight area of the airport throughout the whole length of his transit in Singapore and he could not ordinarily have retrieved it. Accordingly, the presumption under s 18(1) and (2) of the Misuse of Drugs Act operated.

The appellant gave evidence on his behalf. He said that he was an unsuccessful businessman in Nigeria and had been in financial difficulties for some time. In March 1993, he met a business friend known as Joseph Udo in Lagos. The appellant claimed in his oral testimony to have known this Joseph Udo for about eight years. He told Joseph Udo of his financial problems and Joseph Udo told him that he could seek work abroad if he had some money. However, as the appellant said he had none, Joseph Udo said that there was nothing that could be done. Nonetheless, the appellant, having few friends in Lagos, continued to keep in touch with Joseph Udo.

After the appellant had visited Joseph Udo a few times, Joseph Udo told him that his brother, Mike Udo, was working in Bangkok doing odd jobs, and suggested that the appellant might wish to go to Bangkok to work with Mike Udo. Joseph Udo told the appellant that he would pay for the trip, and the appellant could return the money to him later. The appellant agreed, and handed over his Nigerian passport and two photographs to Joseph Udo so that the latter could get a visa for Thailand for him.

About a week later, the appellant met Joseph Udo again, who told him that he had been unsuccessful in obtaining a visa for Thailand from the Thai Embassy in Nigeria with a Nigerian passport. He suggested that the appellant use the passport of another country and the appellant agreed as he was desperate. After another week, the appellant and Joseph Udo met once again, and Joseph Udo handed over a Republic of Niger passport bearing the appellant`s photograph. This passport named the appellant as `Saleh Mustafa Mai`. When...