Case Summaries

Public Prosecutor v Gobi a/l Avedian Criminal Appeal No 20 of 2017

SUPREME COURT OF SINGAPORE

25 October 2018

Case summary

Public Prosecutor v Gobi a/l Avedian
Criminal Appeal No 20 of 2017

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

Outcome: CoA allowed the Public Prosecutor’s appeal, set aside the conviction and sentence by the High Court on the reduced charge and convicted the respondent on the original charge of importation of diamorphine under the Misuse of Drugs Act.

Background to the appeal

1 Criminal Appeal No 20 of 2017 was an appeal by the Public Prosecutor against the decision of the trial judge in Public Prosecutor v Gobi a/l Avedian [2017] SGHC 145.

Facts

2 The respondent, Gobi a/l Avedian, was charged with one count of importing 40.22g of diamorphine, a Class A controlled drug, which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“the Act”). The sole issue at 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 Act.

3 The respondent was arrested at the Woodlands Checkpoint with drugs found hidden in the motorcycle that he was riding. At the trial, the respondent claimed that he was assured by one Vinod, who instructed him to bring into Singapore, that the items were only “chocolate drugs” and that if he were caught with them, he would only be fined or given light punishment. The respondent initially refused to carry out the delivery but eventually did so because he needed money for his daughter’s operation. According to the respondent, he also asked a friend, Jega, about the “chocolate drugs” before transporting them into Singapore. The respondent informed Jega that the “chocolate drugs” were to be used in discos and Jega apparently told him that if that was so, the drugs were not very dangerous nor terrible. The respondent also admitted to delivering similar bundles of drugs into Singapore on eight or nine previous occasions before he was apprehended.

4 The trial judge found that the presumption was rebutted and exercised his power to convict the respondent on a reduced charge of attempting to import into Singapore a Class C controlled drug. The trial judge sentenced the respondent to 15 years’ imprisonment with effect from the date of arrest and to ten strokes of the cane for the reduced charge.

5 The Public Prosecutor appealed on the ground that the Judge erred in finding that the presumption was rebutted.

Decision on appeal

6 The Court of Appeal allowed the Prosecution’s appeal and convicted the respondent on the original charge of importing into Singapore a Class A controlled drug. The sole issue on appeal was similarly whether the presumption in s 18(2) of the Act had been rebutted. The Court of Appeal found that the respondent had not rebutted the presumption (at [31]).

7 The Court of Appeal noted that the presumption in s 18(2) operates to vest the respondent with knowledge of the nature of the drug which he is in possession of and to rebut this, the respondent must give an account of what he thought it was (at [32]). The Court of Appeal found that the respondent failed to do so. First, the Court of Appeal held that it was not enough for the respondent, who knew that he was transporting illegal drugs, to state merely that he did not know what sort of drugs they were or that he had never heard of diamorphine or heroin (at [35]). This was because if the respondent did not know what diamorphine was, he could not possibly claim that the drugs he was carrying were not diamorphine (at [35]). Second, the penalties that a particular type of drug attracts in law cannot be used as a proxy for identifying the drug itself (at [36]). The Court of Appeal also noted that if the respondent intended to refuse to carry drugs that attracted the death penalty, then it was incumbent on him to find out what sorts of drugs would lead to such a penalty and how he was to identify them. However, the respondent did not take such steps in this case (at [36]). Third, the Court of Appeal found that since the respondent did not know the name of the drugs that he was to carry, he could not possibly verify whether those drugs were dangerous in that they could lead to the death penalty or a long term of imprisonment (at [37]). In particular, the Court of Appeal pointed out that the inquiries made by the respondent as to how dangerous or serious the drugs were in relation to the penalties that they would attract would not have informed him about the nature of the drugs because he had no knowledge about whether diamorphine would attract a fine or a long imprisonment term or the death penalty (at [37]). For these reasons, it was held that the presumption of knowledge in s 18(2) of the Act was not rebutted (at [38]).

8 The Court of Appeal also had grave reservations about the respondent’s evidence. In relation to the respondent’s trust in Vinod, his supplier, the Court of Appeal stated that in determining whether the respondent believed subjectively the information supplied by Vinod, it would consider the knowledge of and the efforts made by the accused person to find out about the drugs that he was going to traffic in (at [39]). It was observed that Vinod did not give the respondent any information that would help the respondent to identify the drugs (at [40]) and there was little reason for the respondent to trust Vinod in any case (at [41]).

9 The Court of Appeal observed that there were several problems with the respondent’s evidence on the assurances given by his friend, Jega, to him (at [44]). First, the respondent did not mention these assurances in his statements to the police. Second, the respondent did not adduce any evidence concerning Jega’s knowledge or experience in drugs. Third, the respondent did not ask Jega any questions in relation to the nature of the drugs that would help the respondent to identify them.

10 The Court of Appeal also commented that any visual inspection by the respondent would not have helped him given his evidence that he knew very little about drugs (at [47]).

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 judgment.

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