Review of Misuse of Drugs Act

Adili Chibuike Ejike was charged with importing almost 2 kg of methamphetamine, commonly known as "Ice" into Singapore. A person will be guilty of importing under section 7 of the Misuse of Drugs Act (MDA), if: (a) he is in possession of the drugs; (b) knew of their presence and their nature; and (c) brought the drugs into Singapore without prior authorisation.

In practice, it can be difficult to prove a person's state of mind. To address this, the MDA builds in presumptions. When these presumptions apply, a person charged with importing prohibited drugs can be presumed to know of their presence, as well as their nature. It is then for the accused to give sufficient evidence to rebut the presumptions.

There is also the legal concept of "wilful blindness". Under the law, a person will be treated as having knowledge of a fact, if it can be shown that he: (a) suspected something was amiss; (b) yet, did not verify his suspicion out of fear of legal consequences; and (c) he had reasonable means of discovering the truth.

Adili was arrested at Changi Airport in November 2011 after flying in from Nigeria. Two packets containing close to 2 kg of Ice were found concealed in the inner lining of his suitcase. Adili claimed that an acquaintance in Nigeria had told him to pass the suitcase to an unknown person in Singapore and he was given about US$5,000 for his travel expenses. He claimed that he do not know what the suitcase contained, why he had to deliver it and he did not ask those questions of his acquaintance. The one issue was whether Adili could rebut the presumption that he knew the nature of the drugs in his suitcase. The Court of Appeal noted that the prosecution in their cross-examination of Adili and in their arguments in addressing this issue, had conceded that Adili did not actually know of the presence of the drugs.

Members will appreciate, once the prosecution accepts that the accused did not know of the presence of the drugs, then the presumption cannot apply. The presumption allows the Court to conclude that the accused did know. But if the prosecution accepts that the accused did not know of that fact, then obviously the presumption cannot be relied upon. This legal reasoning is neither novel nor new, and is not in any way different from the Government’s understanding of the law. There are other observations made by the Court of Appeal on wilful blindness. We are studying those observations carefully and will set out the Government's views in due course, and whether any legislative amendments are necessary.

Mr Speaker, my understanding is that the presumptions in the MDA continue to be key legal tools to combat the trafficking of drugs – that is, the supply of drugs, into Singapore. I have asked the Senior Parliamentary Secretary to confirm whether my understanding is still valid and correct. And, if it is valid and correct – that is, that the presumptions continue to be legal and muscular tools – then, arising out of this decision, can the accused now claim a defence that he had no knowledge just by virtue of the drugs being well-concealed? I certainly hope that an accused should not be able to avail himself of such a defence.

Our drug laws have been effective and remain so. We have presumptions under the MDA because it can be difficult to prove a person's state of mind as it is something that is intangible and cannot be seen. The presumptions under the MDA impose a legal burden on accused persons to rebut the presumed facts on a balance of probabilities. The presumptions were introduced precisely to address the difficulty of proving an accused person's subjective state of knowledge. This has been our policy intent, right from the beginning. The fact alone that the drugs were well-hidden would not cause the presumptions to be rebutted. Instead, the outcome of each case depends on a holistic assessment of all its unique facts and circumstances as well as the evidence. Our Courts in the past have carefully scrutinised such claims to assess if they are credible such that the presumption is rebutted. And I am confident that they will continue to do so.

Moreover, when the presumptions apply, the accused persons bear the onus of persuading the Court that such claims are credible and should be believed. The outcome of each case depends on its unique facts and circumstances as well as the evidence, and Adili's case turns on its facts. One point worth noting is the robustness of our criminal justice system. If the prosecution fails to discharge its burden of proof, an accused person will be acquitted.