Case Summaries

Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2020] SGCA 90

SUPREME COURT OF SINGAPORE

17 September 2020

Case summary

Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2020] SGCA 90
Criminal Motion No 4 of 2017

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Decision of the majority of the Court of Appeal comprising Sundaresh Menon CJ, Andrew Phang Boon Leong JA, Judith Prakash JA and Chao Hick Tin SJ (delivered by Chao Hick Tin SJ):

Outcome: CoA by 4:1 majority sets aside its previous conviction of Ilechukwu Uchechukwu Chukwudi on a drug trafficking charge.

Pertinent and significant points of the decision:

The court’s power to draw adverse inferences, whether from lies or omissions, is a discretionary one based on the specific facts and all the evidence in each case: at [151]-[156].

Background to the application

1 Ilechukwu Uchechukwu Chukwudi (“the Applicant”) was charged under s 5(1)( a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), with trafficking of not less than 1,963.3g of methamphetamine found in a black luggage (“the Black Luggage”) which he had brought from Nigeria into Singapore and had handed over to one Hamidah Binte Awang (“Hamidah”) on 13 November 2011.

2 In 2015, at the end of a joint trial of the Applicant and Hamidah, the High Court judge (the “Judge”) acquitted the Applicant. The Prosecution appealed against the Judge’s decision acquitting the Applicant. The Court of Appeal reversed the acquittal and convicted the Applicant on the trafficking charge in Public Prosecutor v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33 (“CA (Conviction)”). Critically, what tipped the scales in the appeal were the numerous lies and omissions made by the Applicant in his statements to the Central Narcotics Bureau (CNB), for which there did not appear at the time to be any innocent explanation. For instance, in his oral evidence at trial, the Applicant claimed that one “Kingsley”, introduced to him by a friend of his, “Izuchukwu”, had told him to pass the Black Luggage to a contact in Singapore.

3 Following the decision in CA (Conviction), when the matter was remitted to the Judge for sentencing, fresh and material evidence came to light that the Applicant suffered from post-traumatic stress disorder (“PTSD”) with dissociative symptoms. This evidence arose from the examination of the Applicant by Dr Jaydip Sarkar, a psychiatrist with the Institute of Mental Health (IMH), who was slated to be the Prosecution’s witness. According to Dr Sarkar, the Applicant’s PTSD arose as a result of a childhood trauma in his hometown in Wukari, Nigeria, when the Applicant was nearly killed and had witnessed the killing of others.

4 In Dr Sarkar’s opinion, the Applicant’s PTSD symptoms were triggered after he was informed that he was facing the death penalty associated with the trafficking charge, and this condition might have resulted in an “overestimation of threat to his life which could have prompted him to utter unsophisticated and blatant falsehoods in order to save his life”. For this reason, the Court of Appeal in 2017 granted the criminal motion filed by the Applicant to reopen its earlier conviction. No finding was made by the Court of Appeal as to Dr Sarkar’s assessment of the Applicant. The matter was remitted to the Judge for him to receive further expert evidence on PTSD based on the terms of reference issued by the Court of Appeal.

5 The Judge made three main findings in Public Prosecutor v Hamidah Binte Awang and another [2019] SGHC 161 (“HC (Remitted)”) in the light of the expert evidence adduced at the remitted hearing:

(a) The Applicant suffered from PTSD as a child after witnessing the Wukari massacre when he was about five years old and continued to suffer from it until some indefinite time before he arrived in Singapore on 13 November 2011.

(b) However, the Applicant was not suffering from PTSD after his arrest on 14 November 2011 when the various statements were taken. This was because neither the arrest nor the Applicant being informed that the charge attracted the death penalty was sufficient to constitute a traumatic event.

(c) The Applicant suffered from various post-traumatic stress symptoms (“PTSS”) during the statement-taking process.

The majority’s decision

6 The central question in this application is whether the decision in CA (Conviction) is in fact demonstrably wrong. This entailed an examination of the following questions (at [50] and [52]):

(a) Was the Judge correct to find that the Applicant suffered from PTSD during his childhood?

(b) Was the Judge correct to find that the Applicant did not experience a traumatic event in 2011 for the purpose of Criterion A of the DSM-5 PTSD Criteria?

(c) Was the Judge correct to find that the Applicant suffered from PTSS in 2011 and if so, how were they connected to his lies and omissions?

7 On the evidence it was clear that the Applicant suffered from PTSD during his childhood as a result of the Wukari incident: at [61]- [65].

8 The majority of the Court of Appeal also found that the Applicant’s arrest and his being informed of the death penalty associated with the trafficking charge each constituted a traumatic event in the circumstances. This is attributable to the sensitisation effect, which all the expert witnesses agreed was operating on the Applicant. This sensitisation effect essentially meant that since the Applicant was found to have suffered from PTSD as a child, he was at a higher risk of developing PTSD subsequently. The finding that the two events were traumatic is also borne out by the Applicant’s testimony given at the first-instance trial in 2014, long before any issue relating to the Applicant’s PTSD was raised: at [82]-[124].

9 The majority agreed with the Judge that the Applicant suffered from various PTSS during the recording of his statements to the CNB: at [126]-[134].

10 Contrary to the Judge’s findings, there was a credible connection between the Applicant’s condition in 2011 and his lies and omissions in his statements. As the majority of the expert witnesses testified, the Applicant’s condition led to an overestimation of the threat to his life which could have prompted him to utter unsophisticated and blatant falsehoods to save his own life. In other words, the PTSS caused the Applicant to harbour irrational or illogical notions of his circumstances including that he was in danger even though he might have been innocent. These misconceived conceptions in turn supplied a plausible explanation for his lies because, conceivably, the Applicant was eager to save his own life and foolishly thought that by telling lies this objective could be achieved. While an ordinary person without similar psychiatric ailments like the Applicant may also experience fear under the same circumstances, the present case is fundamentally different because the Applicant’s response was not simply a case of difference in the degree of fear experienced but rested on an epistemically distinct basis – that is, a gross misapprehension of the situation brought about by his history of PTSD and his PTSS: at [138]-[146].

11 In respect of the decision in CA (Conviction), the Court of Appeal had drawn adverse inferences against the Applicant as a result of his numerous lies and omissions, for which there was no innocent explanation. In the light of the fresh evidence and findings above, it cannot be said with any reasonable degree of confidence that the Applicant’s lies and omissions were only attributable to a realisation of his guilt. It follows that no adverse inference can now be drawn against the Applicant in this regard. Consequently, it is also no longer appropriate to rely on the Applicant’s lies and omissions to impugn his creditworthiness: at [157]-[168].

12 Since no weight can be given to the Applicant’s lies and omissions, the majority found that on the remaining evidence, the Applicant had rebutted the presumption of possession under s 18(1) of the MDA on the balance of probabilities. As the Judge had found in his first-instance acquittal decision, the totality of the circumstances, including the Applicant’s conduct and demeanour around the time of the alleged offence, was more consistent with a lack of knowledge on his part of the drugs in the Black Luggage: at [171]-[181].

13 Therefore, the decision in CA (Conviction) is demonstrably wrong in the light of the fresh evidence, which arose out of exceptional circumstances, ie, an opinion proffered by the Prosecution’s psychiatrist instead of the Applicant’s own appointed psychiatrist. The Court of Appeal’s conviction in 2015 is hereby set aside. Accordingly, the majority affirmed the order of the High Court acquitting the Applicant of the trafficking charge: at [182]- [184].

Decision of the minority of the Court of Appeal (delivered by Tay Yong Kwang JA):

14 The central question was whether the motive for the Applicant’s lies was his realisation of guilt and fear of the truth: at [232]. Proceeding on the basis of the Judge’s findings of PTSS at the various points in time, the many lies told by the Applicant in his statements were found to be Lucas lies (ie, lies which could be used as corroborative evidence of guilt). These pointed clearly and cogently to his guilty mind concerning the drugs concealed in the Black Luggage: at [230] and [273].

15 In the statement recorded from him approximately two hours after his arrest (“the First Statement”), the Applicant consciously and deliberately lied when he claimed that he had only brought one luggage, namely, a laptop bag into Singapore and further lied in court to explain away the lie in the First Statement: at [248]-[254]. The Judge rightly did not accept the Applicant’s submissions on how his “intense psychological distress” caused him to lie. If he had been frightened and shocked when his room was raided suddenly by the officers, he could have explained at the trial that he had lied in the First Statement because he had been so overwhelmed by the officers’ actions that they evoked in his mind the Wukari incident: at [251] and [252]. It was implausible, given his allegedly naïve trust in Izuchukwu and Kingsley, that his first thoughts after arrest would have been that there was something illegal about the Black Luggage and therefore that the only safe course was for him to lie and deny any connection with it when questioned by law enforcement officers: at [253] .The edifice of lies was such that the experts’ evidence, to the limited extent they addressed the link between intense psychological distress and lying on the facts of the present case, should be viewed with circumspection. This distress did not provide an innocent explanation for the lie in the First Statement: at [256].

16 In the cautioned statement recorded from the Applicant (“the Cautioned Statement”), the Applicant claimed he had not given “anything to anybody”, among other lies: at [257]. The reasons the Applicant gave for the lies were rejected. For example, contrary to Dr Sarkar’s assertion that the Applicant had been focused on protecting himself, the Applicant had told Dr Christopher Cheok that when the charge was read to him, he made up his mind to tell the truth and he only changed his mind thereafter. Further, if he had indeed thought that the death penalty was a certainty as he claimed, it was unclear how lying could have provided any protection. He had also been warned before the statement was recorded that it might be better for him to mention any facts in his defence: at [260] and [261]. Despite his claim that he had been confused, it was clear the Applicant had been able to distinguish between facts that would have linked him to the Black Luggage and facts which were quite innocuous: at [263]. The persistent efforts to say nothing about the Black Luggage or that he had met someone in Singapore were very telling and pointed clearly to a guilty mind which was acutely aware of the drugs in the Black Luggage: at [262].

17 The Applicant also told several untruths in the statements recorded from him some seven to ten days after his arrest (“the Long Statements”), which were again calculated to avoid any reference to the Black Luggage or individuals that would have connected him to it: at [264]. The various PTSS suffered by the Applicant did not provide an explanation for the lies and omissions: at [269] and [270]. Even if the Applicant did not trust the investigating officer, it was illogical for this to have resulted in his persistent efforts to dissociate himself from the Black Luggage especially if he did not know at the time that the charge was linked to it and after he had been cautioned that he should not hold back anything in stating his defence. It was not sheer coincidence that the individuals the Applicant falsely denied knowing were also subsequently arrested for drug offences involving methamphetamine: at [270] and [271]. It would have been evident by the time of the Long Statements that he was in the hands of law enforcement officers and not in a situation or place which remotely resembled the circumstances of the Wukari massacre. Any fear or anxiety he felt then would have been reasonably expected of anyone in remand for a serious offence: at [272].

18 Even if the lies and omissions were not corroborative evidence of the Applicant’s guilt, he would not have rebutted the presumption in s 18(1) MDA. The Applicant told many deliberate lies on highly material issues on separate occasions and continued to lie both in the 2014 trial and the remitted hearing, despite the lack of evidence that he was suffering from PTSD or PTSS during the two hearings. As such, any PTSD or PTSS would not have provided a remotely satisfactory answer to the edifice of lies constructed by the Applicant: at [273]. His defence was in the final analysis a highly unlikely account from a totally unreliable and untruthful source: at [274]. The defence was a case of hypothesis built upon hypothesis built upon hypothesis in order to try to explain away a continuous and consistent stream of very focused lies: at [275]. The Prosecution’s case had been proved beyond reasonable doubt and the application to set aside the Applicant’s conviction should be dismissed: at [276].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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