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Malaysian man sentenced to death for importing drugs escapes gallows for a second time

Malaysian man sentenced to death for importing drugs escapes gallows for a second time

File photo of the exterior of Singapore's Supreme Court.

SINGAPORE: A Malaysian man who was sentenced to death for bringing drugs into Singapore escaped the gallows for a second time on Monday (Oct 19) after the Court of Appeal set aside his conviction and found him guilty of a reduced charge of attempted drug importation.

Gobi Avedian, 32, was sentenced instead to 15 years' jail and 10 strokes of the cane, with the sentence backdated to the date of his remand.

In its decision, the court found that the prosecution had not proven beyond a reasonable doubt that Gobi - who claimed he did not know the bundles he was carrying contained heroin - had been "wilfully blind".

The decision came after Chief Justice Sundaresh Menon together with Appeal Judges Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong reviewed and overturned an earlier decision by the Court of Appeal.

CHOCOLATE DRUGS

Gobi, who was represented in the application by lawyer M Ravi, was a security guard living in Johor Bahru and commuting to work in Singapore at the time of the offence in 2014. 

Gobi was introduced to a person known only as Vinod, who told him he could earn money by delivering drugs mixed with chocolate to Singapore.

Vinod told Gobi that the drugs were to be used in discos and were "ordinary" and "not serious". He also assured Gobi that he would receive "just a fine or small punishment" if he was caught.

Court documents state that Gobi initially refused to carry out the delivery but eventually did so because he needed money for his daughter’s operation. 

He delivered the drugs from Malaysia to Singapore on eight or nine occasions, receiving 500 ringgit (S$163) for each delivery.

Gobi was caught on Dec 11, 2014 at Woodlands Checkpoint and subsequently handed a capital charge of importing 40.22g of heroin but a High Court judge acquitted him of the capital charge and reduced it to one of attempted drug importation in 2017.

In 2018, however, the prosecution appealed on the grounds that the High Court judge had "erred" in the decision, and the Court of Appeal convicted Gobi on the original capital charge.

WILFULLY BLIND AND ACTUAL KNOWLEDGE

On Monday, the Court of Appeal reversed the decision based on new findings of law handed down in the case of Adili Chibuike Ejike v Public Prosecutor in 2019.

Adili, a Nigerian man who was originally sentenced to death for importing about 2kg of drugs into Singapore, was spared the gallows upon appeal because he was found not to know of the presence of the drugs.

In order for the prosecution to prove the offence of drug importation, they have to prove that the accused was in possession of the drugs, that they had knowledge of the nature of the drugs and that they had intentionally brought the drugs into Singapore.

The court found that there was a seeming inconsistency between the prosecution's case at trial and its case on appeal regarding Gobi's knowledge of the nature of the drugs.

The prosecution's case at trial was one of wilful blindness, but its case on appeal was of actual knowledge. The court found that this change prejudiced Gobi.

As a legal concept, wilful blindness means a person is treated as having knowledge of the nature of the drugs if it can be shown that he suspected something was amiss, yet did not verify that suspicion out of fear of legal consequences, and had reasonable means of discovering the truth.

"The doctrine of wilful blindness is justified by the need to deal with accused persons who attempt to escape liability by deliberately avoiding actual knowledge," said Chief Justice Menon, who delivered the decision.

The court in Adili's case had newly highlighted the need to keep the concepts of actual knowledge and wilful blindness separate and distinct.

In order to establish that Gobi was wilfully blind to the nature of the drugs, the prosecution must prove beyond a reasonable doubt - among other factors - that Gobi had a clear, grounded and targeted suspicion that what he was told or led to believe about the nature of the drugs was untrue.

The court found that the prosecution had not proven this element. Gobi had received separate assurances from Vinod and a second person that the drugs were "disco drugs" and were "not ... very dangerous".

When Gobi inspected the drugs, he saw that they appeared to have been mixed with chocolate. The prosecution did not prove beyond a reasonable doubt that despite this, Gobi suspected that he had not been told about the true nature of the drugs.

The court therefore found Gobi was not wilfully blind to the nature of the drugs.

"In the circumstances, the applicant's conviction on the capital charge cannot stand, and we set aside that conviction," said Chief Justice Menon.

NOT CONTROVERSIAL FOR LEGAL POSITION TO CHANGE: COURT

The decision was due to three circumstances: That the prosecution's case at trial was that Gobi was wilfully blind to the nature of the drugs and not that he had actual knowledge of their nature; that the prosecution ran a different case on appeal that Gobi had actual knowledge of the drugs' nature; and that there was a change in legal position on the doctrine of wilful blindness.

"It is likely that if any of these three circumstances had been absent, the outcome in this criminal motion might well have been different," said Chief Justice Menon. 

"That the legal position may change from time to time, including as a result of case law development, is not controversial."

He added that it is "a reflection of the robustness of our legal framework that the court may in limited circumstances take into account subsequent changes in the legal position to reassess previously made decisions, even if they were correct at the time they were made". 

"That is precisely what has happened in this exceptional case," he said.

AGC REFUTES COMMENTS BY LAWYER

In a media release sent on Monday afternoon, the Attorney-General's Chambers (AGC) said it was aware of an interview by Gobi's lawyer M Ravi that had been uploaded on the Facebook page of The Online Citizen Asia.

The AGC said Mr Ravi alleged in the interview that the "Public Prosecutor was 'overzealous' in the prosecution of the Applicant at first instance".

"The insinuation is that the initial conviction of the Applicant by the Court of Appeal in PP v Gobi a/l Avedian [2019] 1 SLR 113 was wrong at the time it was decided and that the Public Prosecutor had acted improperly," said the AGC.

It added: "Any such insinuation is categorically false. The Court of Appeal in the decision issued today explicitly pointed out that its initial decision to convict the Applicant was 'correct at the time (it was) made' and that none of the arguments considered in the decision delivered today 'could have been made in view of the legal position as it was understood then'."

The AGC also took issue with what it said was a "baseless assertion" by Mr Ravi that "the application process and the statutory mechanism” put in place for the Court of Appeal to review such previous decisions is "oppressive".

"Contrary to Mr Ravi’s baseless assertion, as the Court of Appeal affirmed, such statutory framework 'is a reflection of the robustness of our legal framework that the Court may in limited circumstances take into account subsequent changes in the legal position to reassess previously made decisions'," said the AGC.

Source: CNA/ll

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