Three Observations Arising from the Court of Appeal’s Decision in PP v Gobi a/l Avedian [2018] SGCA 72
In PP v Gobi a/l Avedian [2018] SGCA 72, the Singapore Court of Appeal reversed the trial judge’s decision, finding that the accused had not rebutted the presumption of knowledge under s 18(2) of the Misuse of Drugs Act. In doing so, the Court of Appeal observed that it would be extremely difficult for an accused person to rebut the presumption of knowledge on the basis that he believed that the drugs he possessed were drugs that did not attract the death penalty. This short article examines those observations and concludes that the Court of Appeal may have set too high a threshold.
Introduction
Can an accused rebut the presumption of knowledge under section 18(2) of the Misuse of Drugs Act (the MDA) by claiming that he thought he possessed a mild controlled drug which does not attract the death penalty?
This was the question presented before the Court in PP v Gobi a/l Avedian [2017] SGHC 145 (Gobi (HC)) and then on appeal in PP v Gobi a/l Avedian [2018] SGCA 72 (Gobi (CA)). The High Court accepted that this was possible in principle and that on the facts, the accused, Gobi a/l Avedian (Gobi), did believe that he was in possession of “chocolate drugs”. The High Court thus exercised its statutory discretion to reframe the charge as one which did not attract a capital sentence. The Court of Appeal disagreed entirely, appearing to hold that this was not possible in principle, but then also opining that on the facts, the evidence was not strong enough to support the High Court’s finding.
This commentary suggests that the standard set by the Court of Appeal may be too high.
Facts
In brief, the facts are these. Gobi’s daughter was to undergo an operation but he had no money to pay for it. Gobi thus approached a friend, “Guru”, hoping to earn money from a job. Guru referred Gobi to one “Vinod”, who asked Gobi to deliver drugs on his behalf. Vinod assured Gobi that the drugs were “chocolate drugs”, which he said were drugs used in discos mixed with chocolates, which did not attract capital punishment.
Gobi initially refused but later caved when his daughter’s operation loomed and money was scarce. But before taking the job, Gobi checked with a friend who worked in a disco – one “Jega” – as to whether there were drugs known as “disco drugs”. Jega assured Gobi that such drugs were not “dangerous”. Gobi then took the job.
Eventually it turned out that the drugs delivered contained diamorphine in amounts that attracted the death penalty. In his statements to the police, Gobi maintained throughout that he thought the drugs were “chocolate drugs”. All the police officers who interviewed him also admitted that neither they nor Gobi used the words “diamorphine”, “heroin” or any equivalent street names throughout the interview process, save for one Tamil interpreter who claimed that she used the English word “heroin” when she translated the charge to Gobi. Gobi disputed this account.
The High Court’s Decision
Lee Seiu Kin J accepted Gobi’s account that he thought the drugs he transported were “chocolate drugs”, in other words, a form of “mild controlled drug” that did not attract the death penalty (see Gobi (HC) at [2]). Lee J relied primarily on the consistency of Gobi’s position that he had only trafficked “chocolate drugs” and that the police officers who interviewed him also accepted that this was his position throughout. Lee J gave little weight to the evidence of the Tamil interpreter, as she had initially testified to the same effect in cross-examination. It was only in re-examination that she said that she had used the word “heroin” to Gobi whilst reading the charge to him.
The Prosecution made an alternative submission in the High Court. The Prosecution submitted that even if Gobi could show that he did not have actual knowledge that the drugs were diamorphine, this was not enough to rebut the presumption of knowledge. The Prosecution argued that Gobi needed to go further and show that he lacked wilful blindness, and that in the present case, he could not show this because in the Prosecution’s submission, the circumstances gave Gobi reason to doubt the assurances of Vinod and Jega, and Gobi should have inquired further as to the nature of the drugs but did not.
Lee J appeared to accept that this was correct in principle but found that on the facts, Gobi had done enough. Lee J accepted Gobi’s evidence that he had no reason to doubt Vinod’s assurances given that Vinod had been upfront about the nature of the drugs, and that Gobi had independently verified the veracity of the statement by checking with Jega and, when re-packaging the drugs, had peeled off the initial wrapping and had seen that the drugs were brown in colour, which corroborated his belief that the drugs were mixed with chocolate.
The Court of Appeal’s Decision
On appeal, the Court of Appeal disagreed with the High Court entirely, convicting him on the original charge (at [52]). The Court appeared to have given three distinct reasons why it reached this conclusion.
The first reason, while not entirely clear, appears to be that as a general rule, an accused person cannot rebut the presumption of knowledge by pleading that he thought that the drug he possessed contained drugs which attract something less than the death penalty. This is because the penalties that a particular type of drug attracts in law cannot be used as a proxy for identifying the drug itself (at [36]). That the Court had laid down such a general rule is supported by the Court’s observations at [51] of the decision. It is helpful to reproduce that paragraph in full:
51 This highlights the difficulty of permitting punishments under the law to be used as proxies for drug types and is something that is not permitted in the MDA. An accused person certainly cannot rebut the presumption of knowledge in s 18(2) by substituting knowledge of the nature of the drug with knowledge of the punishments provided in law because the presumption in s 18(2) operates to vest the accused with knowledge of the nature of the drug which he is in possession of, and to rebut this, he must give an account of what he thought it was (Obeng [Comfort v PP [2017] 1 SLR 633] at [39]).
The second reason given is more fact-sensitive. The Court noted that even if such a plea could succeed in theory, the accused would have to show that he knew what sort of drugs attracted the death penalty and then he had taken steps to ensure that he did not possess the said drugs. But in the present case, since Gobi’s evidence was that he had never heard of diamorphine, he could not have taken sufficient steps to ensure that he did not possess diamorphine, which attracted the death penalty (at [37]). This plea was thus unavailable to Gobi.
The third reason, also a factual one, was that even if the plea was in principle open to Gobi, he did not adduce enough evidence to rebut the presumption. He had no reason to trust Vinod or Jega (at [41]–[45]), his visual inspection was not sufficient since seeing that the drugs were brown would not have helped him identify which drugs were mixed with chocolate (at [47]), and his testimony was not sufficiently consistent since it was contradicted by the evidence of the Tamil interpreter, which the Court of Appeal accepted (at [49]).
Observations
Three observations may be made about the Court of Appeal’s decision, which correspond to the three findings that the Court made.
The first observation is that if the Court had meant to lay down a general rule that the presumption of knowledge can never be rebutted by an accused claiming that he thought he possessed mild controlled drugs, this may be setting too high a barrier for accused persons.
The starting point is that section 18(2) of the MDA presumes that the accused has knowledge of the actual controlled drug that he is found in possession of, rather than simply a controlled drug that attracts the death penalty (Nagaenthran a/l K Dharmalingam v PP [2011] 4 SLR 1156 (Nagaenthran) at [24]). Thus, in order to rebut the presumption, the accused needs to show that he did not know that he was in possession of the actual drug in question. In other words, the accused must prove a negative: the “material issue” is “not the existence of the accused’s knowledge of the controlled drug, but the non-existence of such knowledge on his part” (Nagaenthran at [23], emphasis in original).
Because it is inherently difficult to prove a negative (see Harven a/l Segar v PP [2017] 1 SLR 771 (Harven) at [2]), “as a matter of common sense and practical application”, the Court will in most cases require the accused to state what he thought he believed in and it would not suffice for the accused to simply assert that he did not know what he was carrying save that he did not know or think that it was drugs (Obeng Comfort v PP [2017] 1 SLR 633 (Obeng) at [39]). The reasoning here is that a bald denial of knowledge does not suffice to prove the negative; the most likely way of proving the negative is to establish a positive state of affairs that directly contradicts what is presumed.
However, it should be remembered that the ultimate inquiry is still to prove a negative state of mind. Proving a contrary positive case, while helpful in most cases, should not be elevated to the extent of replacing or superseding the requirements of the statute. Unfortunately, adopting a general rule that the presumption can never be rebutted by an accused who believed that the drugs did not attract the death penalty would do just that. The Court of Appeal in Gobi (CA) interpreted such a defence to be the accused saying, in effect, nothing more than “[t]he law presumes that I know the illegal drug is diamorphine but I do not know what diamorphine is” (at [35]) – a bare denial that would not suffice to rebut the presumption.
It is submitted, however, that an accused who makes (and proves) such a defence is saying more than that. He is saying that “the law presumes that I know the illegal drug is diamorphine, and while I do not know what diamorphine is and cannot identify it by its name, I do reasonably believe that the drugs I am carrying do not attract the death penalty, and thus, because diamorphine in the quantity that I am found in possession of carries the death penalty, I could not have believed that I was carrying the said diamorphine”. This is different from a bare denial by the accused that he did not know he was carrying drugs, because he would have to show that he believed that the drugs he was in possession of did not carry the death penalty. So although in such a situation the observation in Obeng would not be satisfied because the accused would not have proved positively what exactly it is that he thought he was carrying, it is submitted that this is still enough to satisfy the test laid down in Nagaenthran.
To illustrate the point, consider the situation of an accused person who is not acquainted with the drug trade and thus does not know about the names or effects of drugs. He is asked to deliver a package of drugs which, unbeknownst to him, contains diamorphine in a quantity that attracts the death penalty. Not knowing anything about drugs, it would have meant nothing to him to inquire about the names and effects of the drugs he is asked to transport. Instead, he asks about the only thing that he understands: the consequences of being arrested. He is assured that the drugs carry no more than a light penalty. Assuming that he does enough to satisfy himself that this is true, what is his state of mind at this point in time? It is submitted that such an accused person’s state of mind would be that he is carrying a package of drugs which may contain one (or a mix of) a range of drugs, but he does not know precisely which, because he is not acquainted with the names or effects of the drugs. Nevertheless, he does believe that the drugs carry only a light punishment. Following Nagaenthran, this should suffice to rebut the presumption of knowledge because it could not have been in his mind that he was carrying the actual quantities of diamorphine, because that would attract the death penalty.
Against this, it may be argued that allowing such a defence in principle would mean that the presumption of knowledge is “all bark and no bite”. This was also the observation made by the Court in Gobi (CA) at [35]. It is submitted that this may be overstating the concern. Such an accused would not go unpunished; the Court can exercise its discretion to amend the charge to one that does not involve capital punishment, as the High Court did in Gobi (HC). In fact, this would arguably better balance the two relevant concerns: that on the one hand the accused deserves some punishment, but on the other hand the task of rebutting the presumption should not be made “so onerous that it becomes virtually impossible to discharge” (see Harven at [2]).
It is acknowledged, of course, that this portion of the Court’s judgment was unclear, so it may have been that the Court did not intend to lay down such a general rule.
The second observation, which follows from the first, is that even if the Court had intended to say that such a plea is available in principle to an accused person but not to one in Gobi’s position, it is also difficult to see why this is the case. Here, the Court’s reasoning is that since Gobi (or a similarly-placed accused) had so little knowledge of the drug industry, he could not have rebutted the presumption by saying that he thought he possessed drugs which did not attract the death penalty, since he would have no clue as to which drugs attracted which penalties (see Gobi (CA)at [34]). But this does not necessarily follow. Even if an accused person does not have knowledge about the drug trade as a whole, he can still believe and be satisfied that the drugs in front of him do not attract the death penalty if the circumstances in which he acquired the belief were not suspicious, or that the circumstances were suspicious and he took steps to allay his concerns, and not necessarily based on knowing the truth of the belief itself.
Indeed, following the Court’s reasoning to its logical conclusion would mean that accused persons would be, in substance, penalised for not being involved enough in the drug trade such that they had insufficient knowledge about drugs. This would, ironically, encourage accused persons to be more acquainted with and involved in the drug trade. Furthermore, this reasoning may not sit easily with the reasoning in Obeng. There, the Court was at pains to de-emphasise the importance of the names and effects of the drug by stating that an accused cannot rebut the presumption “by merely claiming that he did not know the proper name of the drug” and that the law “does not require him to know the scientific or the chemical name of the drug or the effects that the drug could bring about” (at [39]). The reasoning in Gobi (CA) would, contrary to this reasoning, re-emphasise the importance of the names and effects of the drug.
The third and final observation pertains to the Court’s conclusion that even if Gobi could potentially have availed himself of such a plea, the evidence was insufficient to show that he had rebutted the presumption. It will be recalled that in coming to this conclusion, the Court relied primarily on suspicious circumstances, reasoning that Gobi had no reason to trust Vinod or Jega and that he did not do enough to allay what should have been his concerns about the nature of the drug.
Although not stated in such terms, this is the language of wilful blindness. The question that then arises is whether, and to what extent, the concept of wilful blindness should feature in the presumption of knowledge under s 18(2).
This question is not new and has been answered in the affirmative by the Court of Appeal in its previous decisions. In Tan Kiam Peng v PP [2008] 1 SLR(R) 1, the Court explained that wilful blindness was within the ambit of s 18(2) because it is equivalent to actual knowledge and the presence of wilful blindness means that the presumption of knowledge is not rebutted (at [123]–[124]). The Court of Appeal in Nagaenthran later affirmed Tan Kiam Peng on the basis that wilful blindness is encapsulated within the notion of knowledge in s 18(2), reasoning that wilful blindness is merely an indirect way to prove actual knowledge by using an inference of knowledge on the basis that in the circumstances of the case, the inference of knowledge is irresistible and is the only rational inference available on the facts (at [30]).
While this question appears to be settled, these cases did not consider a further angle to this issue. It is arguable that unlike actual knowledge, wilful blindness is inherently incapable of being presumed. This is because while actual knowledge is a state of mind, wilful blindness is not. It is in fact premised on one not having actual knowledge because it deals with a situation where an accused does not wish to acquire actual knowledge and thus deliberately avoids taking steps to do so even in situations where he should have tried. It is this level of moral culpability that results in the Court treating him – by virtue of a legal fiction – as equally culpable as one who actually knows. This legal fiction suffices in most instances because the usual question in criminal law is the extent to which an accused should be held responsible for a criminal act, and the concepts of actual and constructive knowledge, wilful blindness, recklessness and negligence assist the Court in identifying various levels of moral culpability as regards the question of the accused’s state of mind. In the specific instance of a presumption, however, which operates by way of assuming that the accused has a certain state of mind, it may be that there simply cannot be a presumption of wilful blindness because it would have to assume the non-existence of a state of mind rather than the existence thereof.
Conclusion
Gobi (HC) and Gobi (CA) raise interesting questions about the nature of a defence that an accused may run in order to rebut the presumption of knowledge. Such pleas are only likely to grow in number. In fact, more nuanced defences are likely to be developed in the near future. A future court may wish to take the opportunity to address some of these issues.
