Court of Appeal · Decided 27 May 2019

Adili Chibuike Ejike v Public Prosecutor

[2019] SGCA 38Case no. Criminal Appeal No 18 of 2017

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Introduction
[1] Criminal Appeal No 18 of 2017 is brought by Adili Chibuike Ejike (“the Appellant”) against his conviction and sentence for importing not less than 1,961g of methamphetamine into Singapore, an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”).
[2] The Appellant had travelled to Singapore from Nigeria. At Customs, his luggage, specifically, a small suitcase, was examined and found to contain two packages wrapped in tape. These packages were later found to be the methamphetamine which was the subject matter of the charge brought against him. The Appellant contested the charge. At the trial, he did not appear to dispute the fact that he was in possession of the methamphetamine but focused instead on attempting to rebut the presumption of knowledge under s 18(2) of the MDA. The Appellant claimed that an acquaintance in Nigeria had agreed to give him some financial assistance if he delivered the case together with some money to an unspecified person in Singapore, and he further maintained that at all times, he did not know that the packages of methamphetamine were in the case.
[3] After a trial, the High Court judge (“the Judge”) convicted the Appellant. As the Public Prosecutor did not issue a Certificate of Substantive Assistance under s 33B(2)(b) of the MDA, the Judge imposed the mandatory death sentence: see Public Prosecutor v Adili Chibuike Ejike [2017] SGHC 106 (“the GD”).
[4] The principal issues in this case revolve around just what the Appellant did or did not know. The Prosecution relied on the statutory presumptions in ss 18(1) and 18(2) of the MDA. But because of the way in which the Prosecution and the Defence ran their respective cases at the trial, some difficult questions have arisen as to whether there are circumstances in which these presumptions may not be invoked, and as to the meaning and operation of the related concept of wilful blindness. In this judgment, we address these issues. Before doing so, we first recount the salient facts.
Facts
Events leading to the Appellant’s arrest
[5] The Appellant is a Nigerian citizen from the village of Oraifite in Nigeria. He was 28 years old at the time of the offence. Prior to coming to Singapore, he had worked in Nigeria for a supplier of fan belts for motor vehicles. He later set up his own business trading in fan belts in March 2010 but this failed within a year or so, and thereafter, he remained unemployed until the time of his arrest. His highest education level is Standard 6 at the primary level and he gave all his investigation statements as well as his evidence at the trial in the Ibo language through an interpreter.
[6] The broad sequence of events leading to the Appellant’s arrest is not disputed. The Appellant applied for a passport for the first time in 2011 and it was issued on 19 April 2011. Sometime in August 2011, while in Nigeria, the Appellant contacted a childhood friend by the name of Chiedu Onwuku (“Chiedu”) for financial assistance. Chiedu agreed that he would give the Appellant a sum of between 200,000 and 300,000 naira (“Na”) (approximately equivalent to between US$1,324 and US$1,986). Chiedu told the Appellant to contact him in October 2011 to arrange the payment. Sometime between August and October 2011, Chiedu visited the Appellant at his village and asked for and took the Appellant’s passport “to do something with”, but did not tell him what that was. When the Appellant later called Chiedu in October, Chiedu told the Appellant to meet him in Lagos, Nigeria. The Appellant accordingly travelled to Lagos.
[7] There, on 10 November 2011, the Appellant met with another childhood friend, one Izuchukwu Ibekwe (“Izuchukwu”) (who, it appears, was also working with Chiedu). Izuchukwu instructed the Appellant to travel to Singapore on 12 November 2011 with a piece of luggage, which he was to hand over to someone in Singapore. On 12 November 2011, the Appellant went to Izuchukwu’s home, where Izuchukwu handed the Appellant a brown trolley case, his passport, a set of travel and other documents and US$4,900 in cash. The Appellant was told that the contact details of the person to whom he was to deliver the case were written on the back of his e-Visa. On the reverse side of his e-Visa was written “ESP [XXXXXXXX]”. ESP apparently refers to ESP Lines (S) Pte Ltd (“ESP”), a Singapore company run by one Kervinn Leng Seng Yau (“Kervinn Leng”) (the GD at [16]). It seems that unbeknownst to the Appellant, Kervinn Leng had sponsored his e-Visa and [XXXXXXXX] was Kervinn Leng’s handphone number.
[8] Izuchukwu and Chiedu then drove the Appellant and another male Nigerian, who was not known to the Appellant, to the airport. Izuchukwu and Chiedu dropped the Appellant and the other Nigerian man off at the airport and left. The Appellant and the other Nigerian man then each went their own way in the airport.
[9] On 12 November 2011, the Appellant took a flight from Lagos to Singapore via Doha, Qatar. He arrived at Changi Airport Terminal 3 on 13 November 2011 at about 4.25pm. The other Nigerian man evidently also took the same flight and disembarked in Singapore. He is not otherwise relevant to the Appellant’s conviction or to the present appeal.
[10] After passing through the Immigration checkpoint without incident, the Appellant was stopped at Customs as he was about to exit the Arrival Hall. His case was put through an X-ray machine and an image of darker density was observed on one side of the case. The case was then physically searched but nothing incriminating was found. It was therefore brought to the Immigration and Checkpoints Authority (“ICA”) Baggage Office for further inspection. The inner lining of one side of the bag was first cut and a packet wrapped in brown masking tape was found inside; the inner lining of the other side was then cut, revealing another packet wrapped in brown tape. A small cut was made on one of the packets and it was found to contain a white crystalline substance. The Appellant was placed under arrest for importing a controlled drug at about 8.25pm.
[11] Among the Appellant’s other belongings were found:
(a) two calling cards, one labelled “Ejyke Investment Ltd” and the other, “Ejidon International Ltd”, both of which bore the Appellant’s name and photograph and purported to identify him as a director; and
(b) a vaccination certificate.
These documents were false: the Appellant had never been involved with either of these companies, and he had also never been vaccinated.
The Appellant’s statements
[12] The Appellant was subsequently charged with importing two packets containing not less than 1,961g of methamphetamine. His cautioned statement read:
At first blush, this might seem to imply that the Appellant was aware that the drug packets were concealed within the case since he did not disavow knowledge of the presence of “those substance” in the case, but merely denied knowing precisely what that substance was. However, the contents of the Appellant’s cautioned statement – and, in particular, his apparent admission that he knew he had “those substance” in his possession – could not be taken at face value in the light of the evidence given at the trial by the interpreter that the Appellant did in fact say that he had no idea what was inside the case. Given that evidence of the interpreter, we do not think that what the Appellant said in his cautioned statement can be taken as an admission that he was aware of the existence of the drugs that were hidden within the suitcase.
[13] The Appellant also gave six long statements. All were admitted in evidence without objection. In these statements, consistent with our view on the correct understanding of his cautioned statement, the Appellant said that he did not pack the case himself, did not know what the case contained or why he had to deliver it, did not think about its contents, and had never asked these questions of Chiedu or Izuchukwu. In addition, he also made the following claims:
(a) He did not trust Izuchukwu and Chiedu.
(b) Izuchukwu told him to deliver the case to somebody in Singapore. After clearing Immigration and Customs, he was supposed to take a taxi to his hotel, and the person who was to collect the case would then come to the hotel. He said, “I could not remember which hotel I was supposed to go to. I also did not know how to contact the person. I also did not know the name of the person who would collect the case at the hotel.”
(c) The sum of US$4,900 was for him to spend on food, travelling expenses and accommodation during his time in Singapore “as and when necessary”. He thought that if there was any remaining balance after his trip, he would have to return it to Chiedu. He expressly denied that this sum of money was to be passed to anybody in Singapore.
The Prosecution’s case
[14] The Prosecution relied on the presumption of possession under s 18(1) and the presumption of knowledge under s 18(2) of the MDA. It submitted that the Appellant had failed to rebut the presumption of knowledge because he was wilfully blind. In particular, it submitted that:
[16] The Prosecution submitted that the circumstances surrounding the entire incident were such as to arouse suspicion that the case which the Appellant was to deliver contained something illegal. These circumstances were as follows:
(b) Chiedu and Izuchukwu expended money and effort to facilitate the delivery. Their actions included: (i) going to the Appellant’s village to collect his passport from him before October 2011; (ii) booking a return flight for the Appellant; (iii) paying for four nights of accommodation for the Appellant’s stay in Singapore; (iv) providing the Appellant with US$4,900 to spend on his trip; and (v) supplying the Appellant with fictitious calling cards and a false vaccination certificate.
(c) The sum of US$4,900 given to the Appellant to spend in Singapore and the sum of Na 200,000–300,000 that he was promised in exchange for making the trip were hefty sums compared to his average daily wage of US$18 as a trader of fan belts.
(d) Chiedu and Izuchukwu had given the Appellant scant information about his task. In any case, the Appellant did not trust Chiedu and Izuchukwu.
The Prosecution further submitted that the Appellant’s nervousness during the immigration checks at Changi Airport showed that his suspicions had in fact been aroused.
[17] Despite these suspicious circumstances, the Appellant did not take reasonable steps to ascertain the contents of the case. In particular, the Appellant did not ask Chiedu or Izuchukwu what the case contained and did not physically check the case (which had been left unlocked) despite having multiple opportunities to do so. These suspicions, combined with the Appellant’s failure to take reasonable steps, constituted wilful blindness, with the result that the presumption of knowledge remained unrebutted.
[18] Finally, in response to the psychological reports tendered by the Defence (see [21] below), the Prosecution tendered reports prepared by Associate Consultant Dr Charles Mak (“Dr Mak”) and Senior Clinical Psychologist Mr Goh Zhengqin (“Mr Goh”) from the Institute of Mental Health (“IMH”), in which it was stated that the Appellant was not intellectually disabled. At the trial, the oral evidence led by the Defence from its expert psychologist, Mr James Tan Yen (“Mr Tan”), appeared to be directed to the question of whether, despite his allegedly deficient cognitive ability, the Appellant would subjectively have found the circumstances suspicious. However, none of the reports tendered by the Prosecution or the Defence directly addressed this point; instead, the focus of the reports was simply on ascertaining whether the Appellant suffered from any intellectual disability. Regrettably, therefore, the point could not be and was not fully explored at the trial.
The Appellant’s defence
[19] The Appellant’s testimony at the trial differed in some respects from what he had said in his investigation statements:
(a) As to why he applied for a passport, he testified that he had applied for a passport in or before April 2011 because Izuchukwu had asked him to do so, so that he would be in a position to travel overseas on an errand for him, whereas in his statements, he said that he had done so just because the Nigerian Government had encouraged its citizens to do so.
(b) On whether or not he trusted Chiedu and Izuchukwu, his oral testimony was that he trusted them and that it did not occur to him that the trip might be dangerous, but in his statements, he said that he did not trust them completely.
(c) On whether he had knowledge of the contents of the case, he claimed on the stand that when Izuchukwu passed him the case, Izuchukwu opened the case, and both showed and told him that it only contained clothes and shoes, whereas in his statements, he said that he had no knowledge of the contents of the case.
(d) On what he was to do with the sum of US$4,900 in his possession, the Appellant’s oral testimony was that the money was to be handed to someone from ESP, and would be used for three purposes: (i) for ESP to pay for his meals and accommodation; (ii) as part payment for ESP’s clearing fee; and (iii) for ESP to buy goods for him to bring back to Nigeria for Izuchukwu to sell. (This was corroborated by two text messages sent to the Appellant’s phone after he arrived in Singapore, from a number the Appellant identified as Izuchukwu’s, which instructed the Appellant to “cal esp and give him d money that I gave u to give him cus he nid it 2 ship my guds 2mrow” and threatened to arrest the Appellant’s brother and parents “until they provide u or my money”.) However, in his statements, the Appellant denied that the money was to be passed to anyone.
[20] The Defence submitted that the inconsistencies between the Appellant’s investigation statements and his evidence at the trial were attributable to a lapse in memory. However, in his oral evidence, the Appellant did not cite a lapse in memory among his various explanations for these inconsistencies. Rather, he attributed these variously to the inaccurate recording of his statements (to explain the inconsistencies regarding why he applied for a passport), fear of reprisal by Izuchukwu (to explain the inconsistency regarding the purpose for which he had the sum of US$4,900) and his feeling fearful and uncomfortable when he gave his statements (to explain the inconsistencies regarding his knowledge of the contents of the case and his trust in Chiedu and Izuchukwu). As regards this last point, we note that the Appellant’s allegations that the statements were recorded while he was “very cold”, “shivering”, “crying and confused” were not pursued with the statement recorders, and that the Appellant did not object to the statements being admitted. As the Judge noted at [14] of the GD, Defence counsel did not put it either to the interpreter or to the officer recording the statements that these had not been accurately recorded, and the Defence’s closing submissions did not contest the accuracy of the statements. In any case, none of these points were pursued by the Appellant on appeal.
[21] The Defence also tendered three psychological reports prepared by Mr Tan, who opined that the Appellant was performing in the Mild Mental Retardation range of cognitive ability. The Defence submitted on the basis of these reports that the Appellant was “prone to be made use of” and “manipulated by others … in whom he trusts [sic]”, “a simpleton and of low intellect” and “had probably been made used [sic] of by his 2 Nigerian friends as an unwitting drug courier”. The Defence did not submit that the Appellant’s mild mental retardation constituted an abnormality of mind for the purposes of s 33B(3)(b) of the MDA, or that it rendered him incapable of knowing the nature of the drugs in his possession. Rather, the point being advanced by the Defence, as we have noted above, appeared to be that the Appellant, being mildly retarded, would not naturally have been suspicious of the circumstances in which he took delivery of the case, although this was regrettably not developed or pursued in the course of the evidence.
Decision Below
[22] It was not disputed at the trial that the Appellant was in possession of the case containing the methamphetamine, and that he was therefore presumed to be in possession of the methamphetamine pursuant to s 18(1) of the MDA. However, the Defence did not then seek to challenge or rebut the presumption. The trial therefore proceeded on the basis that the Appellant was in possession of the methamphetamine. At the same time, it appeared to be common ground between the Prosecution and the Defence that the Appellant did not in fact know that the case contained the two bundles of methamphetamine hidden within its inner lining. The legal significance of this fact appeared to have escaped both parties. Because of this, the trial focused on whether the Appellant had been able to rebut the presumption of knowledge under s 18(2).
[23] The Judge found the Appellant to be an unreliable witness in the light of the inconsistencies between his oral testimony and his investigation statements set out at [19] above (the GD at [19]–[22] and [35]).
[24] In particular, the Judge rejected the Appellant’s evidence that he believed that the case contained only clothes and shoes. The Judge’s reasons may be summarised as follows (the GD at [11], [34] and [41]):
(a) It was “noteworthy” that the Appellant’s reaction, upon being told by the ICA officers of the drugs in the suitcase, was to cry, instead of immediately expressing that he was surprised, that he was unaware of the concealed packets or that he did not know that they were drugs.
(b) The Appellant’s reference to a “substance” in his cautioned statement indicated that he knew that the case contained more than just clothes and shoes. We digress to reiterate that having regard to the interpreter’s evidence, this conclusion seems to us to have been untenable.
(c) The Judge found that the Appellant did not in fact trust Izuchukwu and Chiedu. Indeed, he had reason not to, as he knew that they had supplied him with false calling cards and a false vaccination certificate (see [11] above) and this had been done to enable him to make the delivery.
(d) The Appellant had been promised a substantial reward for delivering the case to an unknown person in Singapore.
[25] As for the three psychological reports tendered by the Defence, the Judge doubted the soundness of Mr Tan’s assessment for the following reasons (the GD at [37]–[39]):
(a) It was limited by the absence of information on the Appellant’s adaptive functioning in his hometown, his performance at school and his IQ score before he attained the age of 18.
(b) It was not based on the criteria set out in the Diagnostic and Statistical Manual of Mental Disorders.
(c) The criteria used by Mr Tan to assess the Appellant’s cognitive abilities and state were not shown to be used or recognised as adequate by his peers.
(d) Dr Mak and Mr Goh from the IMH had assessed the Appellant and had found that he did not have any intellectual disability.
The Judge therefore found that although the Appellant might be of below-average intelligence, his cognitive functioning was not impaired (the GD at [40]).
[26] Having rejected the Appellant’s defence, the Judge convicted the Appellant. As the Public Prosecutor did not issue a Certificate of Substantive Assistance, the alternative sentencing regime under s 33B of the MDA was not an available option. The Judge therefore sentenced the Appellant to the mandatory death penalty.
Issues in the appeal
[27] The following elements must be proved by the Prosecution to make out the offence of importation under s 7 of the MDA: (a) the accused person was in possession of the drugs; (b) the accused person had knowledge of the nature of the drugs; and (c) the drugs were intentionally brought into Singapore without prior authorisation.
[28] As has been mentioned at [22] above, the parties approached the trial on the basis that the Appellant was presumed to be in possession of the drugs by virtue of s 18(1) of the MDA, and that this, in turn, triggered the presumption that the Appellant knew the nature of the drugs that he was in possession of by virtue of s 18(2) of the MDA. The Judge therefore focused on whether the latter presumption had been rebutted (see the GD at [25], [29] and [31]–[41]). However, we doubted the correctness of this approach for two reasons.
(a) First, the concession by the Defence that the Appellant had been in possession of the drugs appeared to be inconsistent with the case it advanced that the Appellant did not know that the two bundles containing the drugs were hidden in the case. This is a fact of profound legal significance because, as we explain at [34] below, the Appellant must know of the presence of a thing before he can be said in a legal sense to “possess” it. If the drugs had been hidden in the case without his knowledge, he could not be said to have been in possession of the drugs even if he was in possession of the case that was later found to contain the drugs. Thus, although the Defence accepted that the Appellant was in possession of the drugs, it had evidently misunderstood the legal concept of possession as entailing only the fact of physical custody. Possession also entails awareness that the thing (which is subsequently found to be a drug) is in one’s possession, custody or control and this was fundamentally inconsistent with the substance of the case that the Defence had advanced at the trial.
(b) Second, the Prosecution itself accepted that the Appellant did not in fact know that the drugs were in his physical custody. In those circumstances, we doubted whether the Prosecution was even able to rely on the presumption of possession in s 18(1) of the MDA at all. When we expressed this concern to the Prosecution at the hearing, the Prosecution stated that its case was that the Appellant had been wilfully blind. As we explain below, that is a separate matter altogether.
[29] In the premises, the focus ought really to have been on whether the Appellant was in fact and as a matter of law in possession of the two drug bundles. To that end, at the hearing of this appeal on 18 October 2018, we directed that the parties file further submissions addressing us on the following issues:
(a) Can the Prosecution invoke the presumption of possession in s 18(1) of the MDA when the Prosecution’s case has been advanced on the basis that the Appellant did not know that the items found to be drugs were in his possession?
(b) If the Prosecution’s case is one of wilful blindness, is that a case that can be mounted on the basis of a presumption? In other words, can the Appellant be presumed to be wilfully blind pursuant to s 18 of the MDA?
[30] Based on the submissions that were filed, we frame the issues in this appeal as follows:
(a) Issue 1: Did the Appellant have the drugs “in his possession” within the meaning of s 18(1) of the MDA? In particular:
(i) Issue 1(a): To establish the fact of possession, is it sufficient that: (A) the Appellant knew that the things that turned out to be drugs were in his possession, custody or control; or must it be established that (B) the Appellant also knew the precise nature of those things?
(ii) Issue 1(b): What are the elements of wilful blindness, and can the doctrine of wilful blindness be applied at all in the context of the presumption of possession in s 18(1) of the MDA?
(iii) Issue 1(c): Can the Prosecution rely on the presumption of possession in s 18(1) where it has accepted that the Appellant did not actually know that the bundles of drugs were present in the case? If so, had the presumption of possession been rebutted on the evidence?
(b) Issue 2: If the Prosecution may not rely on the presumption of possession where it has accepted that the Appellant had not actually known that the drugs were in the suitcase, has the Prosecution proved possession beyond reasonable doubt by showing that the Appellant was wilfully blind to the presence of the drugs there?
(c) Issue 3: If the Appellant was proved or presumed to possess the drugs, and was presumed to know the nature of the drugs pursuant to s 18(2) of the MDA, had the presumption of knowledge under s 18(2) been rebutted on the evidence?
On the materials before us, it was not necessary for us to consider or deal with the issue of the Appellant’s mental state in respect of the matters touched on at [18] and [21] above for reasons that will become evident.
Issue 1(a): Proving the fact of possession
[32] As a starting point, it must be emphasised that the elements of “possession” and “knowledge” (as ingredients of the offence of importation) are separate and distinct elements and in analysing each of them, care should be taken to ensure that they are not conflated. When dealing with the element of knowledge, the inquiry is whether the accused person knew the specific nature of the drugs in question. On the other hand, when dealing with the element of possession, there is also embedded within it an inquiry into knowledge but one that is much narrower: it is limited to establishing whether the accused person knew of the existence of the thing in question that turns out to be a drug. We made this clear in Zainal bin Hamad v Public Prosecutor and another appeal [2018] 2 SLR 1119 (“Zainal bin Hamad”) (at [12]):
[34] It therefore follows that when proving the fact of possession as an ingredient of the offence of importation, the Prosecution is not required to prove that the accused person knew the precise nature of the thing in question; all that is required at that stage of the inquiry is proof that the accused person knew that the thing that turns out to be a controlled drug was in fact in his possession, custody or control. Thus, an accused person will not be found to be in possession of drugs (even if they were within his physical custody) if they were planted on him without his knowledge. This was the case in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (“Warner”) (see Zainal bin Hamad at [14]). The distinction may be expressed in terms of inadvertent possession on the one hand, which would not amount to possession in the legal sense, and knowing possession, which would. At this stage of the inquiry, knowing possession means only knowledge on the part of the accused person that the thing that turns out to be a drug is in his possession, control or custody. Whether the accused person knew that the thing that turns out to be a controlled drug was in fact the specific drug in question is an inquiry which arises when considering the separate question of knowledge rather than that of possession (Zainal bin Hamad at [13]):
[35] We emphasise that the foregoing analysis pertains to establishing the fact of “possession” where that fact is an ingredient of the offence of importation or trafficking, as the case may be. When spoken of in this sense, possession may be established either by proof of knowing rather than inadvertent physical possession of the thing, or by invoking the presumption under s 18(1) which is then not rebutted. A somewhat different analysis would apply when establishing the mens rea for the offence of possession under s 8(a) of the MDA. It is well-established that the mens rea for offences under the MDA (such as trafficking under s 5 and importation under s 7) is not just knowledge of the existence of the thing which is later found to be a drug, but also knowledge of the specific nature of the drug (see, for instance, Zainal bin Hamad (in the context of trafficking) and Public Prosecutor v Gobi a/l Avedian [2019] 1 SLR 113 (in the context of importation)). In our judgment, the same applies in respect of the offence of possession under s 8(a) of the MDA. Possession is not a strict liability offence that is established simply by proof of the fact of possession. On the contrary, it too has a mens rea element, which is knowledge of the nature of the drugs that the accused person is in possession of. Thus, to make out the offence of possession, the Prosecution would have to establish the fact of possession in the sense we have described above; and in addition, it must establish the mens rea, meaning knowledge of the nature of the drugs. As is the case with trafficking or importation, the mens rea may either be proved beyond reasonable doubt or be established by invoking the presumption of knowledge under s 18(2) to the extent that this is not successfully rebutted.
[36] We note that two decisions of the High Court – Public Prosecutor v Rozman bin Jusoh [1994] SGHC 251 (“Rozman”) and Shan Kai Weng v Public Prosecutor [2004] 1 SLR(R) 57 (“Shan Kai Weng”) – suggest, contrary to what we have just said, that in relation to the offence of possession under s 8(a) of the MDA, it is not necessary that the accused person must know of the specific nature of the drug in question, and that the requisite mens rea is only that the accused person is aware of the existence of the thing which later turns out to be the drug.
[37] In Rozman, the first accused person had been charged with trafficking in cannabis. The Prosecution set out to prove the elements of possession and knowledge, while relying on the presumption of trafficking in s 17 of the MDA to make out its case that he had the drugs in his possession for the purpose of trafficking. The judge found that the s 17 presumption had been rebutted on the facts, and amended the trafficking charges to charges of possession under s 8(a) of the MDA, which the first accused person was then convicted of. Discussing the mens rea of the offence of possession under s 8(a), the judge referred to the decision of the House of Lords in Warner, and observed that while the offence of possession did have a mens rea component, this was a “minimal” requirement, and that “the scheme of the MDA envisaged that under s 8(a), so long as the accused person had known that he was in possession of the proscribed substance, he would be guilty of possession” (Rozman at [136]–[139]).
[39] In Shan Kai Weng, the appellant had pleaded guilty to a charge of unlawful possession of one tablet of nimetazepam. The appellant then sought, by way of criminal revision, to retract his plea on the ground, among other things, that he did not understand the nature of his plea because he was unaware that knowledge that the tablet was a controlled drug was an ingredient of the offence. The court rejected this argument, and found that the appellant could not have been unaware that he was pleading guilty to a charge of possession of a controlled drug because this was set out very clearly in the charge and the statement of facts, which he had indicated he understood. It was clear, on this ground alone, that the appellant had no basis on which to retract his earlier plea of guilt, and the court’s decision not to allow the appellant to retract his plea was therefore defensible. However, the court went further, and suggested that yet another ground on which the appellant’s argument might be rejected was that his supposed lack of knowledge was in any case irrelevant because the mens rea of the offence required only that the accused person knew of the existence of the tablet (at [24]):
This second, additional ground for denying the retraction of the appellant’s plea runs contrary to what we have stated above, which is that the mens rea of the offence of possession requires knowledge of the specific nature of the drug, unlike the position where one is concerned only with establishing the fact of possession, and we overrule Shan Kai Weng to the extent that it suggests otherwise.
[40] To summarise, while there is an element of knowledge that is embedded within the fact of possession under the MDA, this is distinct from the mens rea of the offence of possession under s 8(a) of the MDA. The former requires only that the Prosecution establish that the accused person knew that he had physical possession, custody or control of the thing that later turned out to be a drug. This is a necessary part of proving the fact of possession because, as a matter of law, a person who does not even know that the thing in question, whatever its nature might eventually turn out to be, is within his possession, control or custody cannot be said to be in possession of it. This fact may be proved beyond reasonable doubt on the evidence, or presumed pursuant to s 18(1) of the MDA. Section 18(1), which is the presumption of possession, is but an evidential tool which has the effect of reversing the burden of proof such that where it is relied on, it becomes the accused person who must establish that he was not in possession of the drugs, either by establishing that in truth, he was never in possession of or never had custody of or control over the container, keys or document referred to in s 18(1); or by establishing that he was never aware that the thing which was later found to be a drug was in his custody: see Sim Teck Ho at [13], Zainal bin Hamad at [11]–[12] and [21] and Obeng Comfort at [34]–[35]. If the Prosecution does not invoke the presumption of possession, then it must prove that the accused person knew that he was in possession of the thing that turned out to be a drug. It is only after the fact of possession is proved (or presumed and unrebutted) that the element of knowledge becomes relevant – an inquiry which, as discussed above, is an entirely separate inquiry focused on whether the accused person knew the specific nature of the drug.
Issue 1(b): Elements of wilful blindness; wilful blindness and the s 18(1) presumption
[41] Having clarified that the fact of possession under the MDA requires that the accused person not only be in possession, custody or control of the thing in question but also know that he is, we turn to consider what is meant by “knowledge” in this context. The starting point is the ordinary meaning of knowledge – which is actual knowledge. However, as we noted in Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1 (“Tan Kiam Peng”), the courts have also recognised that the requirement of knowledge may be satisfied where it is proved that the accused person had been wilfully blind to the fact in question, wilful blindness being the legal equivalent of actual knowledge (at [104]–[106]). We therefore begin by clarifying just what the doctrine of wilful blindness entails, and whether and how it features in the analysis of the statutory presumptions.
[42] We preface this discussion by observing that the analysis of these two questions – that is, the operation of the doctrine of wilful blindness, and the interplay between wilful blindness and the rebuttal of the statutory presumptions – may be different where the fact in question is knowing possession or knowledge of the existence of the thing in one’s possession, control or custody (which may be presumed under s 18(1)) and where the fact in question is knowledge of the nature of the drug (which may be presumed under s 18(2)). The latter question only arises after it has been established that the accused person has possession of the thing, and knows this. This seems to us to be a material and significant difference which might well have a bearing on the way in which the issues that we will deal with here are resolved when dealing with each of these elements of possession and of knowledge of the nature of the drugs. We emphasise that because of the view which we take on the merits of the appeal on the question of possession, this judgment is concerned only with the element of knowing possession, and that our holdings on the operation of the doctrine of wilful blindness and its interaction with the statutory presumptions are confined to that context. We are cognisant that these issues have previously arisen in the context of the element of knowledge of the nature of the drug (see, for example, Masoud Rahimi bin Mehrzad v Public Prosecutor and another appeal [2017] 1 SLR 257 (“Masoud”) and Tan Kiam Peng). As we elaborate at [67]–[69] below, to the extent that our holdings in the present appeal in relation to the element of knowing possession and s 18(1) of the MDA might appear to vary from what was said on these issues in the context of s 18(2) of the MDA in Masoud and Tan Kiam Peng, we note that those observations were made in relation to a different question. We accordingly leave open the question whether there is in fact any inconsistency between what we hold here in this context (meaning in the context of possession and the presumption under s 18(1) of the MDA) and what we have said previously in a slightly different context (meaning in the context of the element of knowledge and the presumption under s 18(2)) for resolution in a subsequent case when the issue is centrally raised in the latter context and it can then be resolved in the light of the present judgment.
[43] We turn to consider and discuss the substantive issues in the light of these prefatory observations.
The doctrine of wilful blindness
[44] A survey of the case law on wilful blindness demonstrates that the term “wilful blindness” has been used in two distinct senses. Both of these senses rest on the premise that the accused person subjectively suspects something and then deliberately chooses not to make further inquiries that would prove that which is suspected. But, beyond this, there are subtle, albeit important differences between them.
[45] The first may be described as the evidential sense of the term. In this sense, the accused person’s suspicion and deliberate refusal to inquire are treated as evidence which, together with all the other relevant evidence, might sustain a factual finding or inference that the accused person had actual knowledge of the fact in question. When wilful blindness is referred to in this sense, it is in truth nothing more than a convenient shorthand for an inference that the accused person actually knew that which he is accused of knowing. Thus, in Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 at [30] (which was cited in the GD at [26]), wilful blindness was described as “lawyer-speak” for “actual knowledge that is inferred from the circumstances of the case” because “the inference of knowledge is irresistible and is the only rational inference available on the facts” [emphasis in original] (see also Public Prosecutor v Mas Swan bin Adnan and another [2011] SGHC 107 at [55]; Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [76]; Obeng Comfort at [41]; and Public Prosecutor v Zainudin bin Mohamed and another [2017] 3 SLR 317 at [93]). What all these cases have in common is that they treat the accused person’s deliberate refusal to investigate a suspicious state of affairs as evidence that he did not merely suspect, but actually knew the truth of the matter. As we explained in Iwuchukwu Amara Tochi and another v Public Prosecutor [2006] 2 SLR(R) 503 at [6] (cited in Tan Kiam Peng at [123]):
[48] We elaborate. An accused person may be said to be wilfully blind in this extended sense to the existence (in his possession, control or custody) of the thing later discovered to be a drug if, even though he might not have known with certainty that the thing existed, he nonetheless harboured a suspicion that he did have the thing in his physical possession, and yet deliberately refused to inquire because he did not want to have his suspicions confirmed (Public Prosecutor v Hla Win [1995] 2 SLR(R) 104 at [14]). The reason why this may, in law, be treated as the legal equivalent of actual knowledge is that the fact in question was not brought home to the accused person due to his own deliberate decision to turn a blind eye or to look away so as to avoid having actual knowledge and that he did this for the purpose of avoiding the legal consequences of such actual knowledge.
[49] The doctrine of wilful blindness in this sense exists as a very narrow qualification to the requirement of actual knowledge, a qualification necessitated by the need to deal with accused persons who attempt to avoid liability by carefully skirting actual knowledge. Such attempts must be defeated because they undermine the administration of justice, and the most effective way to frustrate, discourage and penalise such attempts is to affix the accused person with the very knowledge that he has sought deliberately to avoid. The very limited and circumscribed nature of the doctrine of wilful blindness was succinctly explained in the following terms by Prof Glanville Williams in Criminal Law: The General Part (London: Sweet & Maxwell, 1961) at p 159:
[50] The distinction between the two senses of wilful blindness is that in the former, the court is satisfied that on the whole, the accused person did in fact know; whereas in the latter, the court considers, in Prof Williams’ words, that “it can almost be said” [emphasis added] that the accused person actually knew the fact in question. For the rest of this discussion, we use the term “wilful blindness” to denote only the extended conception. The evidential conception is, as discussed, more accurately described simply as a finding or inference of actual knowledge simpliciter rather than as a finding that the accused person had been wilfully blind; the court’s finding or inference in such situations is that the accused person actually knew the truth of the matter, and not that he was blind to it. In this regard, it is important to bear in mind that just because the accused person did not look (or “turned a blind eye”) does not necessarily mean therefore that he did not actually know and may therefore be said to be wilfully “blind”. On the contrary, it could very well be that he did not look precisely because he already knew (in his “secret mind”, by other means) and therefore did not need to look. If this is what is meant – that the accused person actually knew despite not having looked – describing such an accused person as wilfully blind would be apt to confuse since, as was discussed above, wilful blindness in its true, extended sense refers to a state of knowledge which falls short of actual knowledge simpliciter. We therefore encourage prosecutors, Defence counsel and the courts not to use the term “wilful blindness” unless they mean a state of knowledge falling short of actual knowledge.
Elements of wilful blindness
[51] Bearing the foregoing in mind, and especially having regard to Prof Williams’ salutary reminder of the need to carefully circumscribe the doctrine of wilful blindness lest it tread impermissibly into the potentially much wider realm of constructive knowledge, we hold that for an accused person to be found to be wilfully blind, the following requirements must be proved:
(a) the accused person must have had a clear, grounded and targeted suspicion of the fact to which he is said to have been wilfully blind;
(b) there must have been reasonable means of inquiry available to the accused person, which, if taken, would have led him to discovery of the truth, at least in the context of the fact of possession; and
(c) the accused person must have deliberately refused to pursue the reasonable means of inquiry available so as to avoid such negative legal consequences as might arise in connection with his knowing that fact.
[52] We discuss each element in turn. Before we do so, we observe that the first and third elements have been quite extensively dealt with in the case law, although these bear emphasising and restating, which we do here. However, it is the contours of the second element which are raised for our consideration for the first time in this appeal. We reiterate here a point that may be especially relevant to this second element of the doctrine of wilful blindness: the concept of wilful blindness can only be applied in the context of the accused person’s knowledge of a specific fact, whether that be knowledge as to the existence, within his possession, custody or control, of the thing which is later found to be a drug, or knowledge of the nature of the drug. The knowledge in question in each of these instances is different. In this case, we are dealing with knowledge in the context of proving the fact of possession. It seems to us that the test for wilful blindness, in particular, the second element that we have referred to at [51(b)] above, might vary if the specific fact in issue were different, meaning if the fact in question were knowledge of the nature of the drug. We elaborate on this below.
Clear, grounded and targeted suspicion
[53] We deal first with the requirement of suspicion. In Tan Kiam Peng, we stated at [125] that suspicion is a “central as well as integral part of the entire doctrine of wilful blindness”. Two points are pertinent. First, the accused person must have personally suspected the fact in question. This serves to distinguish the wilfully blind accused person from the negligent accused person, who might subjectively have thought nothing of circumstances that a reasonable person would have found suspicious. Wilful blindness, therefore, is concerned with the accused person’s subjective state of mind. It does not refer simply to him failing to investigate in circumstances where a reasonable person would have; rather, he must have personally suspected the truth and (as shall be seen below) deliberately chosen not to investigate his suspicions. Any reference to what a reasonable person would have done would be relevant only as “one of the evidential tools for the court to assess the accused person’s subjective state of mind” (see Masoud at [56]–[59]).
[54] The second point concerns the degree of suspicion required. In Tan Kiam Peng, we held that the suspicion must be “firmly grounded and targeted on specific facts”; mere “untargeted or speculative suspicion” is insufficient. These were phrases borrowed from the judgment of Lord Scott in Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469 (“Manifest Shipping”) at [116] (cited in Tan Kiam Peng at [113]), whose words of caution against unduly lowering the threshold for a finding of wilful blindness are worth setting out in full:
[55] Ultimately, in our judgment, it is essential that the level of suspicion must have been such as to lead the accused person to investigate further, and this would necessarily entail that the facts in question must be facts “in whose existence the individual has good reason to believe” [emphasis added]. This, of course, is a matter which would depend heavily on the precise facts before the court (Tan Kiam Peng at [125]).
Availability of reasonable means of inquiry
[56] The next requirement is that there must have been reasonable and efficacious means of inquiry available to the accused person. This, in a sense, is allied to the third element (namely, a deliberate refusal to inquire) since the accused person’s failure to inquire should not be held against him if there were no such means of inquiry available to him. For this reason, it must, in our view, be established that: (a) there were means of inquiry reasonably available to the accused person; and (b) if taken, those means of inquiry would have led him to the truth he sought to avoid, at least in relation to the fact of possession.
[57] The first point is that the means of inquiry must have been reasonably available. Whether or not a particular means of inquiry was reasonably available to the accused person is a fact-sensitive question to be determined by the court on the facts of each case. In this regard, we would observe that the means of inquiry that the accused person is expected to take should generally be reliable, appropriate in the circumstances (including the extent to which his suspicions had been raised) and capable of leading him to the truth within a reasonable period of time.
[58] The second point is that it must be shown that the means of inquiry that the court thinks should have been pursued in the circumstances would, if taken, have led the accused person to discover the truth. As we have noted, the doctrine of wilful blindness requires that the essential reason the accused person did not end up with actual knowledge was that he chose to look away. In other words, the true facts must have been readily available to anyone disposed to discover them. This must entail that had the accused person looked, he would have uncovered those facts. We do not think it right to impute to an accused person, by reason of his refusal to inquire, knowledge of things that would not have been evident even to one who had undertaken those inquiries – one cannot be said to be wilfully blind to a fact when that fact was, in the circumstances, not reasonably discoverable.
Deliberate refusal to inquire to avoid legal liability
[60] In other words, the court must be satisfied that the refusal to inquire was borne out of a motive to avoid the legal liability which attaches to knowledge of the fact that the accused person blinded himself to, and not out of, for instance, indolence, negligence or embarrassment. On this point, given the difficulty of proving an accused person’s mental state, the inquiry into whether he deliberately refused to inquire so as to avoid knowledge will frequently be a matter of inference (see Tan Kiam Peng at [126]).
[61] In some cases, an accused person may have taken some steps to investigate the nature of the item in his possession. Whether he may nonetheless be said to have been wilfully blind depends on the reasonableness and adequacy of the steps taken. As observed in Tan Kiam Peng at [129], the accused person may rebut a finding of wilful blindness “by demonstrating that he or she took reasonable steps to investigate by making further inquiries that were appropriate to the circumstances”. Where the accused person is given a wrapped package, for example, and is told that it contains counterfeit currency, he should usually at least ask to view the contents of the package. “Even a query by the accused person coupled with a false assurance would … be generally insufficient to obviate a finding of wilful blindness” (at [129]). Whether the steps taken are reasonable and adequate will, we reiterate, depend on all the relevant facts of each case.
[62] Last, we return to a point that we have already alluded to. The doctrine may apply slightly differently in practice depending on whether one is dealing with the question of the fact of possession or of the fact of knowledge of the nature of the drugs. When dealing with the fact and element of possession, the fact in question is typically knowledge that the thing (which turns out to be a drug) is within the possession, custody or control of the accused person. However, where the question of knowledge is concerned, the fact in question is knowledge of the precise nature of that thing. By this latter stage of the analysis, the accused person will already have been found, either as a matter of the evidence or as a result of an unrebutted presumption, to be in possession, custody or control of the thing in question and to know that he is in possession of it. As such, when dealing with the element of knowledge (as opposed to possession), it would generally not be sufficient for the accused person simply to say that he did not know what he was carrying, or worse, that he had been indifferent to what he was carrying. It seems to us that this is a material difference. We have said at [42] above that we leave this question open because it is not necessary for us to arrive at a conclusive view on this to resolve the present appeal. However, at least provisionally, it seems to us that the accused person will likely be found to have been wilfully blind to the nature of the drug if his suspicions were aroused but he nonetheless deliberately decided not to check. The question whether the accused person had the means to scientifically verify the precise scientific name or formulation of the particular drug simply should not arise because, as we have said, by the time this stage of the inquiry is reached, the accused person will already be found to know that he is in possession of the thing that turns out to be a drug. In such circumstances, provided his suspicions are sufficiently aroused, it seems to us that the accused person may be found to be wilfully blind to the nature of the drug if the court is satisfied that he did not make further inquiries because he either did not want to know the truth or was indifferent to the true nature of what he was in possession of. We leave it at that for now pending detailed analysis on a future occasion.
Wilful blindness and the s 18(1) presumption
[63] Having set out the elements of wilful blindness, we turn to consider whether and how the doctrine of wilful blindness may be applied in the analysis of the statutory presumptions under s 18 of the MDA.
[64] As we have noted, the following must be established to make out the offence of importation under s 7 of the MDA: (a) possession of the drugs; (b) knowledge of the nature of the drugs; and (c) intentional bringing of the drugs into Singapore without prior authorisation. For present purposes, it is elements (a) and (b) which are in issue, although we observe that where an accused person is able to show that he did not even know he had custody or possession of the drugs, element (c) would also not be made out inasmuch as it cannot then be said that the drugs were intentionally brought into Singapore. Element (a) requires that the accused person must have known of the existence, within his possession, control or custody, of the thing which is later found to be a drug, and element (b) requires that the accused person must have known the precise nature of the drug. These two aspects of knowledge may be proved beyond reasonable doubt on the evidence, or established by recourse to the presumptions under s 18(1) and s 18(2) of the MDA to the extent that the presumptions are not successfully rebutted. If the Prosecution does not wish to rely on the presumptions, it may set out to prove either actual possession and knowledge or the legal equivalent thereof (meaning wilful blindness as set out at [47]–[51] above), and it must do so beyond reasonable doubt. At the trial below, the Prosecution’s case was mounted on the basis of the presumptions, and it is to this and their interaction with the doctrine of wilful blindness that we now turn.
The presumptions in s 18
[65] Section 18 provides as follows:
[67] We accordingly hold that the knowledge presumed under s 18(1) refers exclusively to actual knowledge and does not encompass knowledge which the accused person is said to be wilfully blind to. As we have noted at [42] above, we recognise that this conclusion might appear to vary from our prior observations in Tan Kiam Peng and Masoud where we suggested that the s 18(2) presumption does encompass the doctrine of wilful blindness:
Tan Kiam Peng at [139]:
Masoud at [50] and [55]:
[68] It might be possible to reconcile these passages with the analysis at [66] above on the basis of the common thread running through them: that is, the doctrine of wilful blindness may still be relevant, at least in the context of the presumption of knowledge under s 18(2), in analysing whether the presumptions have been rebutted. This would be so on the basis that wilful blindness is the legal equivalent of actual knowledge. That being the case, it would follow that an accused person would be unable to rebut the presumption of actual knowledge of a particular fact if he can be shown to have been wilfully blind to that fact since he would have been affixed with the legal equivalent of actual knowledge. On that view, it would be open to the Prosecution, where it has invoked the presumptions (whether of possession or of knowledge), to rely on facts that establish wilful blindness to maintain that even if the accused person were able to establish that he did not actually know the relevant fact in question, the presumptions should not be found, in the circumstances, to have been rebutted because otherwise, it would enable him to cheat the due administration of justice.
[69] We think there may well be difficulties even with this view and it may be that a reconsideration of these passages from Tan Kiam Peng and Masoud (which we have quoted at [67] above) would be necessary. That having been said, however, it is not necessary for us to deal with this issue in the context of the s 18(2) presumption definitively in the light of our findings that first, it is not open to the Prosecution to invoke the s 18(1) presumption at all in the present case (see [81] below), and second, there is no basis on the facts to find that the Appellant had been wilfully blind (at [91] below). We therefore leave this question to be considered in an appropriate case.
[70] To summarise, we hold that the Prosecution may rely on the doctrine of wilful blindness to prove an element of knowledge – either of the existence of the drug or of the nature of the drug. This must be proved beyond reasonable doubt.
[71] As to the question of whether the doctrine of wilful blindness may be relevant in the analysis of the s 18 presumptions, we hold that the Prosecution may not rely on the presumption under s 18(1) to presume that the accused person was wilfully blind to the presence of the drug within his possession, custody or control. Nor in our judgment, does the doctrine of wilful blindness have any relevance in the analysis of whether the presumption under s 18(1) has been rebutted. Rather, when dealing with the fact of possession, the Prosecution may rely on the presumption or seek to prove that the accused person had actual knowledge that the thing which turns out to be a controlled drug was within his possession, custody or control; or it may seek, in the alternative, to prove beyond reasonable doubt that the accused person was wilfully blind to this fact and so should be taken to have had actual knowledge of it. If the Prosecution relies on the s 18(1) presumption, the accused person may rebut the presumption by establishing the contrary of that which is presumed against him, that is, by showing that he did not actually know that the drugs were in his possession. He might do so by, for example, persuading the court that the drugs were slipped into his bag or planted in his house without his knowledge (see Obeng Comfort at [35]), or that he was wholly unaware that the vehicle he was driving had been pre-packed with drugs (see Gopu Jaya Raman v Public Prosecutor [2018] 1 SLR 499, albeit in the closely analogous context of the presumption under s 21 of the MDA).
[72] As already mentioned, we confine these holdings to the context of the s 18(1) presumption of knowing possession. As to the interaction of the doctrine of wilful blindness with the presumption under s 18(2), we leave this question to be reconsidered in an appropriate case.
Issue 1(c): Whether the Prosecution could rely on the presumption in s 18(1) and, if so, whether it was rebutted
Whether the Prosecution could rely on the presumption
[73] As we have noted above at [28], it became apparent to us that the focus in this case, given the way both the Prosecution and the Defence approached the matter, ought not to have been on the element of knowledge (of the nature of the drugs), but rather, on the anterior element of possession. Therefore, the key question in the appeal is whether the Appellant was in knowing possession of the drugs, and in this regard, the Prosecution seeks to rely on the statutory presumption in s 18(1) to presume that fact – in other words, that the Appellant knew of the existence of the bundles in the case.
[74] However, and as was noted at [28(b)] above, we doubted whether the Prosecution could seek to presume the fact that the Appellant actually knew of the existence of the bundles when its case, both below and on appeal, appears to have been that the Appellant did not actually know. In this regard, the Prosecution clarified in its further submissions in this appeal that its case was that the Appellant had been wilfully blind to the existence of the drugs in the case. This is crucial because, as the Prosecution itself explained, this implicitly entails that the Appellant did not actually know of the existence of the drugs in the case (meaning that the Appellant did not have actual knowledge of the presence of the drugs in the case):
[75] This was consistent with the Prosecution’s position at the trial below, which was that the Appellant “did not know what the luggage contained, or why he had to deliver the luggage” [emphasis added]. It relied in particular on his statement that:
[76] During cross-examination, the Prosecution also put it to the Appellant that Izuchukwu had not told him what the contents of the case were; that Izuchukwu had not opened the case in his presence to show him its contents; and that he in fact did not know what was inside the case. The Prosecution submitted that the Appellant did not ask Chiedu or Izuchukwu about the contents of the case not because he was “[naïve] as to the illicit nature of the transaction”, but “because he was motivated by the financial reward of N200,000 – 300,000”. The Prosecution also pointed out that the Appellant did not attempt to physically inspect the contents of the case despite having multiple opportunities to do so and despite the fact that the case was unlocked:

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Adili Chibuike Ejike v Public Prosecutor

Grounds of decision

Introduction

Facts

Events leading to the Appellant’s arrest

The Appellant’s statements

The Prosecution’s case

The Appellant’s defence

Decision Below

Issues in the appeal

Issue 1(a): Proving the fact of possession

Issue 1(b): Elements of wilful blindness; wilful blindness and the s 18(1) presumption

The doctrine of wilful blindness

Elements of wilful blindness

Clear, grounded and targeted suspicion

Availability of reasonable means of inquiry

Deliberate refusal to inquire to avoid legal liability

Wilful blindness and the s 18(1) presumption

The presumptions in s 18

Issue 1(c): Whether the Prosecution could rely on the presumption in s 18(1) and, if so, whether it was rebutted

Whether the Prosecution could rely on the presumption