For the second time within a few days, a 5-judge Court of Appeal will be reviewing its earlier decision made by three of its members in a capital case, this time in the case of 32-year-old Malaysian Gobi a/l Avedian. In both cases, the first being the case of 35-year-old Nigerian Ilechukwu Uchechukwu Chukwudi, the accused persons were acquitted by the High Court of their capital charges, but the acquittals were reversed by the Court of Appeal.
If successful, Gobi would be the first person in Singapore’s legal history to escape the death sentence despite having exhausted his ordinary course of legal remedies (including a petition for clemency); not to mention being the first case where a single Court of Appeal judge granted an application to reopen a concluded criminal appeal without hearing oral arguments (though being the third criminal case reopened overall).
A husband and a father of two, Gobi was asked to transport controlled drugs by one Vinod into Singapore on a commission basis, as he could not afford to pay his daughter’s hospital bills with his meagre salary as a security guard. Based on representations from Vinod and one Jega, Gobi believed those drugs were “chocolate drugs” which were used in discos that does not amount to serious controlled drugs.
Gobi was arrested at Woodlands Checkpoint when entering Singapore with drugs on 11th December 2014, and subsequently charged with importing 40.22g of diamorphine (heroin). The Prosecution’s case against Gobi at trial and on appeal was a major point of contention during the review hearing on Tuesday (16th June). Justice Lee Seiu Kin eventually acquitted Gobi of the capital charge and convicted him on a lesser charge of trafficking in a “Class C” controlled drug instead.
Upon the Prosecution’s appeal, the Court of Appeal reversed the acquittal and convicted Gobi as charged, and sentenced him to death as he did not fulfill the requirements for alternative sentencing in October 2018. He then petitioned to the President for clemency, which was reported to have been rejected in July last year.
Mr M Ravi, who was subseuqently instructed to take over conduct of Gobi’s case among other death-row inmates, filed an application to reopen Gobi’s concluded appeal in January this year.
He relied on two new legal arguments, which included the Court of Appeal’s pronouncement in Adili Chibuike Ejike v Public Prosecutor, dated 27st May 2019, to argue that the Court of Appeal had erred in departing from established precedents and wrongly presumed that Gobi was wilfully blind as to the nature of the drugs. As against this, Deputy Chief Prosecutor-cum-Senior Counsel Mohamed Faizal, who led the Prosecution during the appeal and review hearing, had argued that Gobi’s application was an abuse of process.
Judge of Appeal Tay Yong Kwang, who wrote the judgment of the initial three-judge apex court including Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash to allow the Prosecution’s appeal, decided to summarily grant Gobi’s application to reopen his concluded criminal appeal on 20th February, as a single judge without hearing oral arguments, pursuant to new provisions in the Criminal Procedure Code relating to review of concluded cases which came into effect on 31st October 2018.
This paved the way for a 5-judge Court of Appeal – with the initial trio now flanked by Judges of Appeal Andrew Phang and Steven Chong – to review the facts of Gobi’s case once again based on a new, different legal approach, as Mr Ravi and Mr Faizal had agreed on the position that the holding in Adili‘s case, that the presumptions of possession and knowledge under section 18 of the Misuse of Drugs Act could not be used to presume wilful blindness, is correct.
The focus of the review hearing now boils down to whether the Prosecution’s case against Gobi at trial was that: a) Gobi had actual knowledge of the nature of the drugs, or b) Gobi was wilfully blind as to the nature of the drugs. While Mr Faizal had contended that premise (a) was the correct position, Mr Ravi referred to their closing submissions at trial that Gobi “had not done enough to find out the precise nature of the drugs” as an implicit acceptance by the Prosecution that Gobi did not have such actual knowledge.
CJ Menon, Justice Phang and Justice Chong also noted that the Prosecution had, in response to Justice Lee’s query on one occasion whether their case was that Gobi should not have believed Vinod or Jega, or that Gobi did not actually believe them, expressedly stated that it was the former, further lending weight to their case being one of wilful blindness.
Prior to the review hearing, the Court of Appeal had also asked for further submissions as to how the doctrine of wilful blindness operate in the context of the question of the accused person’s knowledge of the nature of the drugs, an issue which was left open in the Adili‘s case. Mr Faizal’s position was as follows:
(i) Firstly, the defendant must know or have a clear, grounded and targeted suspicion that the item he possesses is an illicit item;
(ii) Secondly, the defendant must have failed to adequately allay such suspicions so as to avoid such negative legal consequences as might arise in connection with his knowing the nature of the item.
Mr Ravi, on the other hand, argued that the requirements in Adili should apply unattenuated in the context of knowledge, reasoning that if otherwise, a defendant “would be guilty of importing that dangerous drug, whatever drug it turned out to be and whatever penalties followed, even though it may be accepted that the defendant didn’t actually know it was a dangerous drug in his possession and that he didn’t even suspect he was importing a dangerous drug”.
Mr Ravi also took issue with the second requirement of “adequacy” as prescribing an objective standard when the Court of Appeal had, in previous drug trafficking cases, “rejected the assertion that the steps taken by a defendant to verify the nature of the drug are measured by some objective standard of sufficiency”.
In their written submissions, the parties also addressed the court on the appropriate remedies in the event Gobi’s conviction on the capital charge and the death sentence was set aside, as none of the Class C drugs in the MDA corresponded to what Gobi believed he was carrying, but there was nevertheless some evidence to show that at the very least, Gobi intended to import a drug under the First Schedule of the MDA.
Mr Ravi asked for Justice Lee’s decision to convict Gobi of trafficking in ‘Class C’ controlled drugs, and his sentence of 15 years imprisonment and 10 strokes of the cane, to be restored, pointing to the following factors:
a) There was one ‘Class C’ drug in the MDA frequently used in nightclubs, being nimetazepam (or “Erimin-5”);
b) The Court of Appeal has the broad power to make any order as it thinks just, including those that the trial court might have made.
c) If Gobi had originally been charged with attempting to import a Class C drug, having regard to the law on “attempted drug offences”, it would not have mattered if he couldn’t name which one it was and he would have certainly pleaded guilty based on the evidence.
Mr Ravi strenuously argued that the error was committed when the Court of Appeal allowed the Prosecution’s appeal and not by the trial court; remitting the matter amounted to “trying the Applicant a second time for an offence of which he was acquitted at trial, and which should have been upheld on appeal”. Mr Faizal, on the other hand, also took the position that the matter should not be remitted, but is nevertheless agreeable to remitting the matter to the trial judge or for the original conviction and sentence to be restored.
The Court of Appeal has reserved judgment and will give its decision on a date to be fixed.