Land: Questioning the basis of the laws applied in the judgment of Chang Ugyen Land fraud case by the Thimphu district court, the Office of the Attorney General (OAG) appealed to the High Court yesterday.
OAG’s prosecutor Tashi Gyalpo said that his submissions were ‘based on the question of laws’ as the government was aggrieved by the decision of the trial court’s compoundable sentence of two years and six months.
Tashi Gyalpo argued that although OAG charged the former Royal Advisory Councillor and Chang Gup, Chang Ugyen under provisions of Thrimzhung Chenmo as the crime was committed in 1987, the court should have applied the Penal Code of Bhutan provisions in issuing the sentence.
The reason being Thrimzhung Chenmo’s provisions allow courts wide-ranging discretion and the punishment ranges from three months to six years. The purpose of enacting the Penal Code, among others, was to reduce the discretionary power of the courts.
“So the prosectuion is of the view that the Penal Code should be applied in giving the sentence to the convict,” he said.As per section 298 of the Penal Code of Bhutan, the minimum punishment for a felony of fourth degree is between three to five years.
Another ground of appeal was that the lower court verdict does not follow the law of proportionality, meaning that the sentence is not proportionate to the gravity of crime.
He said that the prosecution had proven that the former gup had increased his land holding in Omkha by three acres and seven acres in Lubding both in Thimphu thromde and benefited from that.
The OAG lawyer said the seven acres at Lubding at the current market rate of Nu 150,000 a decimal amounts to Nu 105M, and Omkha’s amounts to Nu 60M. Together, it’s a huge amount and deserves a longer sentence.
He said the crime is so grave that using lenity or lex mitior is not in the interest of justice.
“Even if the court were to apply the principle of lenity, considering the lighter punishment in the Penal Code of Bhutan, the defendant should have been given a sentence between three to five years,” he said.
One of four reasons to appeal was that while the OAG charged the accused on two distinct issues, the court issued a single sentence. The former gup was charged for tampering of thram to increase land at Lubding to seven acres, and tampering of thram to increase land at Omkha to three acres.
“These are two distinct charges and with great offence,” Tashi Gyalpo said. He argued that the defendant should serve the sentence consecutively and not concurrently as in the district court’s verdict.
In a verbal response, the defence attorney Ugyen Dorji said that it should have been his client to appeal to the high court.
“The prosecution could never prove that the thrams were tampered by my client or on his words beyond reasonable doubt in the court,” he said.
He said his client received the sentence on the fact that he benefited from the increase in the land acreage and based on circumstantial evidence. The grounds of appeal too did not really merit the case’s registration in the higher courts.
“We accepted the district court’s verdict and decided not to appeal because it would simply stretch the issue and harass my client,” he said.
Last year in the district court, the OAG charged that the former royal advisory councillor, Chang Ugyen, manipulated his thram and increased his land holding size to 3.02 acres in Omkha, and registered seven acres in Lubding, during his tenure as a gup from 1987 to 1989.
Tashi Gyalpo then argued that thrams prior to 1979 clearly state the land size in Omkha as 0.02 decimal, and do not reflect any land holding in Lubding. The defendant was convicted in a civil law suit in 2008 by the High Court and made to replace the land.
“The lands were replaced and case closed, so there’s no ground of appeal in that,” Ugyen Dorji said. He will submit his rebuttal on August 3.
By Tshering Palden