Note: This post is not about the rights and wrongs of the case per se (there are enough posts on the blogosphere about that already). Nor is it really about the (alleged) problems with the Singapore legal system, the mandatory death penalty, or philosophical issues to do with capital punishment. Nothing is settled by what you read below. I'm posting this merely on the assumption that fruitful discussion, criticism, disagreement, etc., is advanced, not retarded, by basing it upon better information.

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Extracted from Public Prosecutor v Iwuchukwu Amara Tochi and Another [2005] SGHC 233 (Decision Date: 22 Dec 2005)

Evaluation of the case against the first accused

42 There was no direct evidence that he knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out on his own.

43 On the other hand, the first accused did not have a consistent belief in the contents of the capsules. When he was first asked if the capsules were chocolate he affirmed that they were, and then said that they were herbs which tasted like chocolate, and then that they were African herbs for stomach problems, when by his own evidence Smith had not informed him of the origin of the herbs, their taste or use.

44 His position on the payment he was to receive for making the delivery was also unsatisfactory. When Sgt Tan interviewed him, Sgt Tan made a contemporaneous note of the promised US$2000. In his signed statement taken by ASP Goh, express reference was made to the US$2000. SSgt Yap also gave evidence that the sum of US$2000 was mentioned although SSgt Yap did not make a record of it in writing.

45 The first accused, however, denied in his defence that he had mentioned the figure and maintained that although he was promised a payment, no amount was mentioned. He had no plausible explanations for Sgt Tan's note and his own signed statement which made specific reference to US$2000. On the evidence before me, I accepted the Prosecution's assertion that the first accused was promised US$2000.

46 Why was the US$2000 an issue? It was because the large sum promised should have raised suspicion. The first accused's evidence was that Smith was not a rich man. He did not have enough money to buy an air ticket for himself to go from Dubai to Indonesia to visit his sick friend. There must be a reason for Smith to offer him the large sum of US$2000 to deliver the capsules of herbs when he was already funding his passages to Dubai and to Singapore. The first accused knew that Smith was a man who would break the law as Smith had arranged for false visas and endorsements to be entered into the first accused's passport to facilitate his travels. He must have realised that Smith was offering him much more than was reasonable for putting him through the minor inconvenience of meeting up with Marshal at the airport terminal and handing the capsules to him. He should have asked to be shown and be assured of the contents before agreeing to deliver them, and he could have used the ample opportunities he had when he was in possession of the capsules to check them himself, but he did nothing.

47 Counsel made much of the first accused's youth. The first accused was 18 years old at that time of arrest, but he was not a simple sheltered boy fresh out of his village. He had left school at the age of 14, and played football for a living in Nigeria and in Senegal. After returning home from Senegal, he was confident enough to go abroad again, and decided that he would not go back to Senegal, but would seek better prospects in Dubai instead. He was able to fend for himself when he was stranded in Pakistan and unable to travel on to Dubai. He was rich in life experiences for someone of 18 years.

48 I found that he had wilfully turned a blind eye on the contents of the capsules because he was tempted by the US$2000, which was a large sum to him. When Smith, who had befriended him and had appeared to help him get out of Pakistan, also offered him the US$2000, he did not want to ask any questions or check the capsules himself. Consequently, even if he may not have actual knowledge that he was carrying diamorphine, his ignorance did not exculpate him because it is well established that:

[I]gnorance is a defence only when there is no reason for suspicion and no right and opportunity of examination ...

- Yeo Choon Huat v PP [1998] 1 SLR 217 at [22] and his defence cannot stand. He was therefore found guilty and convicted on the charge he faced.

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Extracted from Iwuchukwu Amara Tochi and Another v Public Prosecutor [2006] 2 SLR 503; [2006] SGCA 10 (Decision Date: 16 Mar 2006)

5 The evidence that the first appellant was in possession of a bag containing drugs was not disputed. The evidence showed in detail the possession of the bag by the first appellant until the CNB officers took it from him after the police had detained him. Under s 18(1) of the Act, the first appellant was presumed to have the drugs in his possession. Under s 18(2) of the Act, the first appellant was presumed to know the nature of the drugs in his possession. The burden thus shifted to him to persuade the court on a balance of probabilities that he did not know that he was carrying drugs or that what he was carrying were drugs. The first appellant's defence was that he did not know that the capsules contained drugs. His explanation was that in his meeting with Smith, a person he described as not a wealthy man, he was asked by him to deliver the capsules to the second appellant who would then pay him US$2,000 for the delivery. It was apparent to us that the trial judge did not accept that the first appellant had rebutted the presumption of possession against him. We saw no reason to interfere with that decision. The court could have chosen to believe the first appellant but the inferential evidence supported the judge's rejection of the first appellant's story. In one instance, the first appellant had said that he was carrying chocolate but amended his answer, when the question was repeated, to say that he was carrying an African herb that tasted like chocolate. Furthermore, while we did not have the opportunity to assess the credibility of the first appellant, the trial judge had. The court below was better placed to determine whether the accused before it was one who could have believed that the 100 capsules of chocolate cost US$2,000 - that worked out mathematically to US$20 a capsule of "chocolate". The trial judge apparently did not, and we had no reason to disagree with that conclusion. Finally, the first appellant gave differing statements to the CNB after his arrest. It is not necessary to recite all the discrepancies and contradictions here as the trial judge had set them out in his grounds of decision. One would suffice. In the first statement, he had claimed that the drugs were not in his possession but were in a white plastic bag brought in by the police and were not in the white plastic bag that the police found in his possession. In his third statement, the first appellant stated that Smith had given him a plastic bag containing chocolates and sweets.

6 The presumption of knowledge was therefore not rebutted, and all that remained was to determine whether the act of importing the drugs was proved. However, a statement in the trial judge's grounds requires clarification. At para 48, the trial judge stated, in what appeared to us as an emphasis to his rejection of the first appellant's evidence:

I found he had wilfully turned a blind eye on the contents of the capsules because he was tempted by the US$2000, which was a large sum to him. ... Consequently, even if he may not have actual knowledge that he was carrying diamorphine, his ignorance did not exculpate him ... [emphasis added].

That passage creates an impression that there is a legal duty not to "turn a blind eye". It would thus create a wrong assumption that there was some sort of positive legal duty, meaning that the first appellant was bound in law to inspect and determine what he was carrying, and that consequentially, if he did not do so, he would be found liable on account of that failure or omission. The Act does not prescribe any such duty. All that the Act does (under s 18), is to provide the presumptions of possession and knowledge, and thus the duty of rebutting the presumptions lay with the accused. There could be various reasons why a court might not believe the accused person, or find that he had not rebutted the presumptions. The fact that he made no attempt to check what he was carrying could be one such reason. Whether the court would believe a denial of knowledge of the articles in the accused person's possession (made with or without explanation or reasons) would depend on the circumstances of the individual case. The trial judge then referred to Yeo Choon Huat v PP [1998] 1 SLR 217 at [22]:

[I]gnorance is a defence only when there is no reason for suspicion and no right and opportunity of examination ...

The above passage, however, was from the judgment in Ubaka v PP [1995] 1 SLR 267 and cited with approval by both the minority judgment in PP v Hla Win [1995] 2 SLR 424, as well as in the unanimous judgment in Yeo Choon Huat v PP. It is also pertinent that the same coram sat in both cases (Yeo Choon Huat v PP and PP v Hla Win). It will be gleaned from these cases that the true principle is that, ultimately, a failure to inspect may strongly disincline a court from believing an "absence of knowledge" defence. Therefore, to say, as in this case, that the first appellant thought it was chocolates was another way of saying he did not know that he was carrying drugs. Given the evidence, including the evidence that the first appellant did not inspect the articles when he could have done so (the turning of the blind eye), the court was entitled to find that the presumption had not been rebutted.