Government to assess whether Misuse of Drugs Act requires amendments, lawyers say no

On Monday (8 July), Senior Parliamentary Secretary for Home Affair Mr Amrin Amin said in Parliament that the government is studying the observations made by the Court of Appeal about the concept of ‘wilful blindness’ and will present its view on whether it is necessary to make legislative amendments.

Mr Amrin added that the Government’s understanding of the law is “not in any way different” from the Court of Appeal’s in relation to the “key issue” of a case in question.

The case in question is that of 36-year old Nigerian, Adili Chibuike Ejika who was condemned to death two years ago for importing methamphetamine into Singapore but was later cleared of his charges by the Court of Appeal on 27 May.

When Mr Adili arrived in Singapore from Lagos in November 2011, his luggage was found to have contained two packets of crystalline substance in the lining. The substance was determined to be methamphetamine. Consequently, he was charged with drug trafficking.

During his trial, Mr Adili did not dispute that he possessed the luggage and drugs contained therein. However, he defence was that he did not know that the drugs were in the luggage in the first place. After a 2-year trial, the Nigerian was found guilty by Senior Judge Kan Ting Chiu.

However, on appeal, the Court set out guidelines and principles as to the doctrine of wilful blindness, i.e. where an accused person did not in fact know the true position, but sufficiently suspected what it was, and deliberately refused to investigate in order to avoid confirmation of his own suspicions.

On that note, the Court of Appeal applied the test to the facts of the case and found that Mr Adili was not wilfully blind as to the existence of the drugs, noting that even if he did open the luggage to look inside, he would have not known the drugs were in there since it was hidden in the lining. With that, Mr Adili walked free.

The government’s response

Now, in response to Mr Amrin’s statement in parliament about the government reviewing the Court of Appeal’s observations and possibly considering legislative amendments, MP Christopher De Souza asked whether there was even a need to review the provisions of the Misuse of Drugs Act in light of this judgement. He also asked how the presumptions in the Act will continue to function as a legal took in preventing drug trafficking in and through Singapore.

Replying, Mr Amrin noted that the key issue in Mr Adili’s case was whether or not the accused could rebut the presumptions that he knew the nature of the drugs in his suitcase. The Court of Appeal had highlighted that the prosecution had conceded that the accused didn’t know the drugs were in his luggage.

He said, “The presumption allows the court to conclude that the accused did know. But if the prosecution accepts that the accused did not know of that fact, then obviously the presumption cannot be relied upon.”

“This legal reasoning is neither novel nor new, and is not in any way different from the Government’s understanding of the law,” he added.

Lawyers question the need for a review

However, speaking to TODAY on the issue, a couple of lawyers pointed out that there is no real need to review the legislation.

Criminal law practitioner Mr Ramesh Tiwary said that Mr Adili’s case was peculiar, and something he hasn’t seen in his three decade of experience. Mr Tiwary, who is experienced in handling drug cases, emphasised that the Misuse of Drugs Act if ‘rife with presumptions’.

“Presumptions are not evidence…so I don’t think we need to load more presumptions into the (Act) when we are faced with capital punishment.

“You don’t want to hang somebody when you are not sure that a person actually should have known that there are drugs.”

Another lawyer, Mr Eugene Thuraisingam, echoed Mr Thiwary that the recent case shouldn’t prompt a review of the Act.

“It stands for a very simple proposition. If on the one hand, the prosecution makes an important concession in that they accepted that the person did not know there were drugs in the bag…they cannot then go on to rely on the presumption (that he did).”

This, Mr Thuraisingam said, was “logically inconsistent”. The issue with the prosecution conceding that Mr Adili didn’t know about the drugs.

Activist, politician, and lawyer Teo Soh Lung agreed on with the assessment of her peers. On her Facebook page, she questioned the rationale behind the government’s decision to possibly amend the legislation. She wrote, “Just because one person escapes the gallows our parliament wants to tinker with the law? What kind of leaders do we have? They like to hang people?”

International human rights lawyer from Carson Law Chambers Mr Ravi added, “We need to immediately recognise that the presumption of innocence is taken away from the accused by way of presumptions under the MDA. The accused persons are already prejudiced.”

“Wilful Blindness and Presumption of Knowledge under Section 18(2) of the MDA presents several odds that are irretrievably stacked against the accused. Many face the death penalty,” he continued.

The lawyer added that any amendments proposed to Section 18(2) by Parliament should reflect the positive outcome in the clarifications made by the Chief Justice on the application of the presumptions.

He elaborated, “The court of appeal has set an enlightened path for the legislature to walk through in considering any amendments if it wishes to make.”