Apex court overturns earlier ruling to convict Nigerian of drug trafficking after considering fresh psychiatric evidence

In 4-1 split decision, apex court rules its earlier decision to be "demonstrably wrong" and corrects a miscarriage of justice for the first time

After a 9-year ordeal in prison with the realistic prospects of facing the death penalty, 35-year-old Nigerian Ilechukwu Uchechukwu Chukwudi will now walk out of prison a free and innocent man, ruled the Court of Appeal on Thursday (17th September) morning in a 4-1 split decision.

Ilechukwu and his legal team from Eugene Thuraisingam LLP made legal history 3 years ago when they successfully persuaded the Court of Appeal to reopen a concluded criminal appeal for the first time, as new psychiatric evidence surfaced after the appeal concerning Ilechukwu’s drug charge had been decided.

Today, they made history once again when they successfully persuaded the majority of the apex court to correct a “demonstrably wrong” decision of its own doing (not to mention where sentence has not yet been passed), as Ilechukwu had been acquitted by the trial judge at first instance but convicted upon the Prosecution’s appeal.

About the case:

Ilechukwu arrived in Singapore on 13th November 2011, and had passed a luggage bag to one Hamidah binte Awang at a bus stop in Clarke Quay, which was eventually found to contain 1,963.3g of methamphetamine. The next morning, officers of the Central Narcotic Bureau arrested Ilechukwu in his hotel.

Ilechukwu told a number of lies in his various statements to the officers, which included a contemporaneous statement recorded in a pocket diary (“the pocketbook statement”), a cautioned statement and a long statement. At the trial, Justice Lee Seiu Kin found that notwithstanding the lies, Ilechukwu had successfully rebutted the presumption of knowledge as to the nature of the drugs in the luggage, under section 18(2) of the Misuse of Drugs Act.

A three-judge Court of Appeal comprising Judges of Appeal Chao Hick Tin (now Senior Judge), Andrew Phang and Tay Yong Kwang, in reversing the acquittal and finding Ilechukwu guilty of drug trafficking upon the Prosecution’s appeal in 2015, held that there were no innocent explanation for Ilechukwu’s lies which “tipped the scales”, that Justice Lee had erred in not drawing an adverse inference against Ilechukwu, and therefore the presumption had not been rebutted. The matter was then sent back to the trial judge for sentencing.

In the course of procuring psychiatric evidence for the purpose of Ilechukwu’s defence of diminished responsibility during sentencing, Mr Eugene Thuraisingam, who represented Ilechukwu from his trial right up to the review hearing, filed an application to the Court of Appeal for the Prosecution’s appeal to be reopened and reheard, relying on a psychiatric report issued by Dr Jaydip Sarkar, who was the Prosecution’s expert witness at the material time, which suggested an innocent explanation for Ilechukwu’s lies.

The Court of Appeal allowed the application in part in August 2017, as Dr Sarkar’s report satisfy the requirements under the Kho Jabing test for reopening of concluded criminal appeals, and ordered that further psychiatric evidence to be received and explored further by the High Court, following which there will be a further hearing for the Court of Appeal to review its own decision.

Justice Lee, after hearing evidence from various psychiatric experts and submissions from counsel, found that Ilechukwu suffered from post-traumatic stress disorder following the massacre which occurred in his hometown Wukari at five years of age, and that while Ilechukwu did not suffer a fresh episode of PTSD upon arrest in 2011, he did suffer from certain post-traumatic stress symptoms (PTSS) during the recording of each of the three statements in which he lied. However, no findings were made by the judge as to how these symptoms had indirectly caused Ilechukwu to lie in his statements.

The Court of Appeal then heard the review application proper in June this year with Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash joining the initial panel of three, and judgment was reserved then.

The rulings and comments made by the majority and minority judges:

In a 150-page combined written judgment, the Court of Appeal was unanimous in holding that Ilechukwu did suffer from PTSD during his childhood and was suffering from PTSS during the recording of each of his statements in which he lied, notwithstanding the Prosecution’s submissions attacking the experts’ evidence and Justice Lee’s findings.

However, the majority was of the view that “there is now a plausible innocent explanation that accounts for [Ilechukwu]’s lies and omissions in his statements”, and it would be unsafe to draw any adverse inference against Ilechukwu as “it is plausible that [Ilechukwu]’s lies and omissions in his statements were the result of his PTSS rather than a realisation of guilt”, explained Justice Chao, who also delivered the written judgments in Ilechukwu’s case on each of the two previous occasions.

Turning to whether the presumption of possession under section 18(1) of the Misuse of Drugs Act had been rebutted, the majority held that it was more probable than not that Ilechukwu did not know of the presence of drugs in the luggage, which had evaded detection despite being checked multiple times. They observed that Ilechukwu had maintained consistently that he came to Singapore for a business purpose and was asked to help pass the Black Luggage, unwittingly being deceived into transporting drugs on their behalf to various contacts in Singapore.

Justice Chao also summarised the position of each judge in the coram in these terms:

“In the premises, without the adverse inferences based on the Applicant’s lies, the remaining evidence is consistent with him not having knowledge that there were drugs in the Black Luggage. [Justice Lee] had believed his claim of ignorance. For both [Justice Andrew Phang] and myself, who were in the coram which delivered the decision in [the Prosecution’s appeal], if the evidence adduced in [the remitted hearing] had been before us then, we would not have held that the lies and omissions in the statements of the Applicant tipped the balance and caused us to overturn the acquittal of the Judge. There would have been nothing that tipped the balance and the acquittal [by Justice Lee] would have been allowed to stand. The Chief Justice and [Justice Judith Prakash] who join this enlarged coram to hear this case are also of that view. The third member of the coram which decided [in the Prosecution’s appeal], [Justice Tay Yong Kwang], is of a different view.”

Justice Tay, in his dissenting judgment, observed that the burden is on the Defence to prove that there were other innocent motives for an accused person’s lies and not just out of realisation of guilt, as if it were otherwise, “it would be imposing on the Prosecution the impossible task of proving multiple negatives in having to show that none of the innumerable reasons why an accused person might lie applied to the particular case”. The majority judgment, however, did not make any definitive ruling on this issue despite the court having received further submissions from both parties prior to the review hearing.

Justice Tay was of the view that Ilechukwu’s lies, notwithstanding his PTSS, were motivated by realisation of guilt, as he found it “illogical” for Ilechukwu to have lied across each of his statements; but even if otherwise, the presumption of possession of the drugs had not been rebutted.

Justice Tay further described Ilechukwu’s defence as having “started out by postulating a highly doubtful hypothesis, sought to convince the court to accept it as truth or at least as injecting doubt into the Prosecution’s case and then strove to construct on that questionable foundation an illusory tower of credence to cover the multitude of untruths lying underneath”, though he also expressed his sympathy for Ilechukwu’s traumatic experience back in Wukari.

Ilechukwu’s legal team, which included Ms Jerrie Tan, Mr Suang Wijaya and Mr Johannes Hadi, issued a statement following the judgment:

“It has been a long and hard-fought pro bono case, involving specialist psychiatric evidence and issues of cross-cultural sensitivities. Had it not been for the fortuitous production of the IMH report, our client would have been sentenced to death or life imprisonment. We are delighted that justice has prevailed to acquit our client this morning.”

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