Bread. September 2006
The case of Iwuchukwu Amara Tochi
Singapore's law against drug-trafficking has two stiffeners. The first is
that if a person is found with 15 grams or more of diamorphine, then the
court will presume that he is trafficking, and not just possessing it for
his own consumption. It will be up to the defendant to refute that
presumption; the prosecution does not have to prove it.
The second is the fact that if found guilty, the judge has no choice but to sentence the accused to hang. The law specifies the sentence and the judge has no discretion.
Critics have said that these features of our law may lead to something less than best possible justice.
The case of Iwuchukwu Amara Tochi (right) is an interesting one and I believe it will help readers understand better the issues at stake. In this essay, I'd like readers to imagine that Singapore has a jury system, and that they are members of a jury.
I will recount for you the facts of the case. The facts in the body of this text have been taken from the High Court's judgment, so they are matters of public record. Supplementary comments or information, e.g. from Tochi's second lawyer, M Ravi, are in the side bar, so you may choose to believe or not.
On 27 November 2004, at about 1.45 pm, Iwuchukwu Amara Tochi arrived at Changi Airport on a flight from Dubai. He remained in the transit lounge of Terminal 2 for more than a day. Then he approached the Transit Hotel for a room. At first, he was told there was no room available, but when one became free, the hotel contacted him again.
Following standard procedure, the hotel staff checked his passport and noticed that he had been in the transit area for more than 24 hours already, and that he was scheduled to fly back to Dubai on 30 November.
In compliance with set procedures, the staffer informed the airport police about her observation. It took a while for the airport police to respond, but eventually 3 officers arrived.
Meanwhile, the staffer told Tochi that she was calling the police, and Tochi left the hotel reception for elsewhere in the transit area. When the police arrived about 20 minutes later, the officers approached him.
Tochi told them that he had come from Dubai and that he had come to Singapore to get trials with football clubs in Singapore. He admitted that no arrangements had been made with any club, and that he intended to approach the football federation for assistance.
So why was he wasting time in the transit lounge?
He also told the officers that he did not enter Singapore because he had been informed that he needed to have $2000 to enter, and he did not have the money.
(He would later deny that he ever mentioned the amount of US$2,000. However a number of police officers would testify that he did.)
At the same time, the officers searched his two bags, one white, the other blue. They found 100 capsules stuffed into a red bucket-shaped "Maltesers" container, a pair of gloves and a pair of shoes. The capsules were securely wrapped in layers of aluminium foil, adhesive tape and plastic.
The officers asked Tochi whether these were
chocolate ("Maltesers" being a brand of chocolate) and Tochi
replied that they were. On repeating the question, Tochi said they were
actually herbs from Africa that tasted like chocolate, which gave strength
when eaten. He swallowed one capsule on his own. (He was later warded in
hospital and induced to purge the capsule intact.)
The officers decided to cut open a capsule, inside which was a powdery substance. Suspecting that the contents were drugs, they stopped the search and the Central Narcotics Bureau (CNB) was notified. At the same time, the police moved Tochi to room 302 of the hotel.
In the room, he was interviewed by Sergeant Tan Chun Siong to whom Tochi repeated that he hoped to play football for a team in Singapore. He also told Sgt Tan that he was in the transit area to wait for an African national by the name of Marshal, and that he was to deliver the African herbs to Marshal at about 8.00 pm in the transit area that day. Marshal was expected to arrive from Indonesia and would be paying him US$2,000. Tochi explained to Sgt Tan that this had been arranged by his soccer manager whom he knew as Smith. Sgt Tan made contemporaneous jottings of the interview, including the words "Smith", "Marshal" and "2000 US".
Then the officers from the CNB arrived, and they opened one capsule, which contents tested positive for controlled drugs.
Assistant Superintendent of Police Gary Chan Gin Choong of the CNB questioned Tochi, and was told that they were herbs from Africa for stomach problems. This was recorded in writing, and signed by the accused.
Once again, Tochi explained that someone known as Smith had arranged for him to bring the capsules into Singapore, and he was to deliver them to another person known as Marshal, who would pay him US$2000. He was instructed to telephone Smith with the telephone in the hotel room.
A total of three calls were made. The first was made at about 8.42 pm. Tochi spoke to the other party in Igbo, a language the officers did not understand, but after the call, he told the officers he had asked Smith about the delivery and collection and Smith told him that Marshal’s flight had been delayed. Tochi was to call back later for more information.
At about 10.16pm, the second call was made. After the call, Tochi informed the officers that Smith had instructed him to meet Marshal at a café near the hotel. Marshal was expected to be a black man of big build, and that Tochi could recognise him by his appearance and voice.
The third call to Smith was placed at about 10.47 pm. This time, Smith told Tochi that Marshal was at the Coffee Bean outlet near the transit hotel. The prosecution produced for the court the call records from the hotel’s telephone system, which showed that three calls were made from the hotel room on 28 November 2004 to a telephone number in Pakistan, 005923335216217, said to be Smith's number.
Tochi's mobile phone was also examined by Assistant Superintendent of Police Stanley Seah and was found to have the same telephone number on its "dialled numbers" registry and "received numbers" registry.
Officers were deployed to look for Marshal,
and when spotted, an officer took video clips of him on his mobile phone.
Another officer took 3 photographs of Marshal with a digital camera. These
pictures were shown to Tochi who confirmed that the person in them was
Marshal was then brought into the hotel room and Tochi once again identified him as the person the capsules were meant for.
Statements made after the arrest
Four investigation statements were made by Tochi. The first and second, dated 1 and 2 December, differed in some ways from the third and fourth, dated 7 and 17 February respectively. The difference, as explained in the third statement, was due to advice from officers of the Nigerian High Commission who had visited Tochi, to tell the truth.
Justice Kan Ting Chiu said that the implication was that where the contents of the first two statements and the contents of the last two statements differed, the versions in the last two statements were true.
In the first statement, Tochi stated that he came into Singapore from Dubai with a container of Maltesers chocolates in his white plastic bag. However, he claimed that the police officers who interviewed him brought with them another white plastic bag, and that the capsules were contained in that bag, and that he swallowed one of the capsules at the insistence of the police officers.
In the second statement, he said that he called Smith from the hotel room when the police instructed him to do so, but that during the call, he told Smith that he was with the police. He also said that he made another call to Smith when the police brought a black man into the hotel room whom he had not seen before.
In his third statement (7
February 2005), he said that he went to Pakistan with the intention of
travelling on to Dubai to play football there. After he arrived at Karachi
he found that he could not get to Dubai from Pakistan. He remained in
Karachi, where he subsequently met Smith. He told Smith of his intention
to go to Dubai, and Smith agreed to help him. He travelled with Smith from
Karachi to Kabul, Afghanistan and then to Dubai airport, but was unable to
enter Dubai. At the airport, Smith asked him to deliver something in a bag
to his friend, Marshal, in Singapore, who was sick. Smith showed him a
photograph of Marshal and told him that Marshal would give him money to
enter Singapore. Smith also gave him a white plastic bag containing
chocolates and sweets.
Continuing, Tochi said that on arrival at Changi, he did not see Marshal. So he called Smith at telephone number 03335216217, and was told to wait. While he was at the terminal, he opened his bag and the capsules spilled out, and he placed them in his gloves, socks, and the chocolate box where the police found them later. When the police questioned him about the capsules, he swallowed one of them.
After he was brought to the hotel room, he called Smith to make arrangements to meet Marshal so that the officers could arrest Marshal. The officers showed him a digital photograph which he recognised to be Marshal from the photograph that he had seen previously, and Marshal was brought into the room.
In the fourth statement (17 February 2005) Tochi provided more background. Smith had told him (Tochi) that he (Smith) had intended to go to Indonesia to hand the capsules to Marshal, but as Tochi was going to Singapore, Marshal could come to Singapore to take delivery of the herbs instead. There was also to be a book on herbs to be handed over. Smith showed Tochi two photographs of Marshal, one of him alone, and the other of him with Smith.
In the fourth statement too, Tochi recalled that when he did not see Marshal at Changi Terminal 2, he called Smith and Smith told him that Marshal had missed his flight. Tochi was instructed to check into the transit hotel.
Justice Kan noted that the above evidence showed that Tochi was in possession of the capsules and he knew he was in possession of them. He was also aware that he was to deliver them to Marshal in return for payment of US$2,000.
The prosecution told the court that the capsules contained 727.02 grams of diamorphine. Since the total exceeded 15 grams, the prosecution was going to rely on the presumption that Tochi was trafficking. That is to say, they do not have to prove he was trafficking; it was for the defence to rebut the presumption.
Tochi's defence was that he did not know that the capsules contained diamorphine and that he believed Smith that the capsules were herbs intended for Marshal who was sick.
His counsel, Chandra Mohan and Patrick Tan Tse Chia, highlighted the fact that he was an 18-year-old from a rural village from Nigeria who had wanted to further his football career. He came to know Smith in Pakistan, who offered to help him go to Dubai and when that failed, to go to Singapore, to play football.
Throughout the investigations, Tochi had maintained that he thought the capsules contained herbs, and had even swallowed one capsule which contained a potentially lethal quantity of diamorphine.
Counsel also emphasised that although the first accused had about 20 minutes from the time he was told that the police were coming to interview him to the time they came, and he had the opportunity to dispose of the capsules, he did not do it, nor did he make any serious attempt at concealing them.
Defence submitted that all this was consistent only with Tochi's belief that the capsules were herbs, and there was no fear of detection or need to resort to concealment.
In summing up the evidence, Justice Kan noted that "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."
"On the other hand, [Tochi] 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."
Furthermore, at US$2,000, Tochi "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."
Justice Kan also pointed out that Smith was capable of breaking the law, and Tochi knew that. Tochi was aware that "Smith had arranged for false visas and endorsements to be entered into [Tochi's] passport to facilitate his travels."
As for his youth, the judge said "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."So while the judge accepted that Tochi might not have known that the capsules contained drugs, he ought to have known. He "did not want to ask any questions or check the capsules himself." Tempted by the large sum of money, "he had wilfully turned a blind eye on the contents of the capsules."
"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 ignorance is a defence only when there is no reason for suspicion and no right and opportunity of examination."
The judge's final conclusion was: Tochi should have known. Therefore he was guilty.
* * * * *
Presumed guilty until shown innocent
In the first, let's assume we're operating under the existing law where the prosecution does not have to prove that Tochi had intent to traffick, nor even to prove that he knew they were drugs. It is up to Tochi to satisfy us that he can rebut that presumption. To what degree? As explained by the Court of Appeal, he has 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."
So, as a member of the jury, are you so persuaded?
If you are so persuaded then the presumption is rebutted and you can find Tochi not guilty. If you aren't so persuaded then the presumption that he is guilty must stand. What is your verdict?
In the second scenario, let's assume we're operating under the axiom of "innocent until proven guilty". It's for the prosecution to prove that Tochi knew he was trafficking in drugs, and to prove it "beyond reasonable doubt". As a member of the jury, did the prosecution prove it to you? Guilty or not guilty?
If your verdict in scenario 1 differs from scenario 2, then you should think about why Singapore has chosen the principle (of presumption of guilt) in scenario 1 rather than scenario 2, and whether that choice serves the cause of justice.
If your verdict in both 1 and 2 differs from the trial judge's, then you have a whole lot more to think about. About what we mean when we say "justice" in Singapore.
And even if you say, like the judge did, that Tochi was probably guilty, is "probably" good enough to justify an absolute, irreversible, violent sentence -- death by hanging?
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