SINGAPORE – In an “exceptional case”, a Malaysian drug runner escaped the gallows for the second time on Monday (Oct 19), after a five-judge Court of Appeal reversed a 2018 decision to convict him on a capital charge.
Gobi Avedian, 32, was instead given 15 years’ jail and 10 strokes of the cane, the original sentence imposed on him by the High Court in 2017.
The decision on Monday turned on the change in legal position in a 2019 case – involving Nigerian Adili Chibuike Ejike – in which the apex court had ruled that the legal concepts of actual knowledge and wilful blindness were “separate and distinct”.
Wilful blindness is a legal term for the mental state of a person who suspects the truth but deliberately refuses to investigate further.
Gobi was originally charged with the importation of 40.22g of heroin after he was caught with the drugs at Woodlands Checkpoint on Dec 11, 2014.
The former security guard said he turned to transporting drugs because he needed money to pay for his daughter’s medical fees.
He first avoided the death penalty in 2017 after a High Court judge accepted his account that he believed he was carrying a mild form of “disco drugs” mixed with chocolate, rather than heroin.
Justice Lee Seiu Kin instead convicted Gobi on a reduced charge of attempted importation of a Class C drug, and sentenced him to 15 years’ jail and 10 strokes of the cane.
The prosecution then appealed, pushing for the original capital charge.
In 2018, a three-judge apex court allowed the appeal and handed down the death penalty after if found that Gobi had failed to rebut the presumption of knowledge, under Section 18(1) of the Misuse of Drugs Act (MDA).
In 2019, in the Adili case, the Court of Appeal held that the legal doctrine of wilful blindness is not relevant in considering whether the presumption of possession under Section 18(2) of the MDA has been rebutted.
In February 2020, Gobi filed an application for the court to review its decision in 2018 to convict him on the capital charge.
His lawyer, Mr M. Ravi, questioned the correctness of that decision in the light of the subsequent decision in Adili’s case.
Mr Ravi argued that the ruling in Adili’s case should be extended to the presumption of knowledge of the nature of drugs he was carrying.
The lawyer argued that since the prosecution’s case against Gobi at the trial was one of wilful blindness, the prosecution could not have invoked the presumption in the first place.
On Monday, the court, led by Chief Justice Sundaresh Menon, accepted that Gobi’s case should be reopened.
“There are legal arguments based on the changes in the law that arose from our decision in Adili on which we may conclude that there has been a miscarriage of justice… if our decision on conviction in that appeal is reconsidered in the light of those changes in the law,” said the court.
The court held that Gobi’s failure to rebut the presumption of knowledge could no longer form the basis of his conviction on the capital charge.
The court also found that Gobi was not wilfully blind to the nature of the drugs.
It noted that Gobi had made certain inquiries into the nature of the drugs but was assured that the drugs were “not serious”.
It set aside Gobi’s conviction on the capital charge and reinstated his initial conviction by the High Court.
“On the applicant’s own case, he knew that the drugs were illegal and would attract penal consequences,” said the court.
The court is faced with two options: the first is to convict Gobi of attempting to import a drug that falls into a category that does not attract the death penalty; the second would be to not convict him of any amended charge at all.
“In our judgment, the former option ought to be taken, given that the applicant has, on his own defence, admitted to engaging in some form of activity that would, at the minimum, involve importing a Class C drug.”
By : SELINA LUMTHE – STRAITS TIMES