A defendant also appealed against the trial court’s non-compoundable conviction on criminal conspiracy
Judiciary: The Office of the Attorney General (OAG) appealed to the High Court this week after the Chukha dzongkhag court altered the charges on the smuggling of seven kilogrammes of gold to “receivers” and “carriers” of smuggled goods against four men.
The lower court, however, handed down a non-compoundable prison term of two years and six months each to the defendants Chundu Wangchuk, 51, and Rinchen Dorji, 50, for receiving smuggled gold biscuits and attempted to transport it to Phuentsholing and for criminal conspiracy.
The grounds of appeal, according to OAG officials, was that transportation of seven kilogrammes of gold from a foreign land to one’s jurisdiction cannot be understood other than smuggling under the country’s law, which prohibits such goods to be smuggled into the country.
OAG officials said that Chundu Wangchuk and Rinchen Dorji from Haa formed a chain to carry the smuggled gold from China to Phuentsholing. They had committed the crime of smuggling as the gold had crossed borders from China.
“Hence, they should be liable for smuggling,” OAG officials said.
The verdict stated that the state prosecutor could not prove beyond reasonable doubt that the defendants had themselves crossed the border or bought the gold with their own money. “The court established evidences that the defendants were involved as carriers only,” it is stated in the verdict.
The OAG, however, argued that, who paid is not relevant to prove smuggling of prohibited goods.
Their accomplice, Kinley Tshering, 32, was also found guilty of the offence of criminal conspiracy and received half the penalty awarded to Chundu Wangchuk and Rinchen Dorji. Kinley Tshering also appealed to the High Court.
The OAG agrees on appeal made by Kinley Tshering, who is also from Haa, as there is no way to determine his liability for future conspiracy to smuggle gold in a similar manner.
The fourth accomplice, Rinzin, who brought the gold from the Tibet border to Haa, was also sentenced to one year and three months for aiding and abetting the crime. The verdict passed on September 7 stated that Rinzin was not aware about the content in the parcel wrapped in a white cloth. It was also mentioned in the internal conspiracy agreement that he should not know the content of the parcel.
The OAG argued that every man is responsible and has the duty to know whether what one is doing is legal or not. “A man carrying seven kilogrammes of gold and not knowing what he is carrying contradicts the responsibility of a reasonable man and his duty,” an official said. “Rinzin should have known the content of the parcel he claimed to have carried which had extraordinary weight to alarm him to check its content. Hence, ignorance of the goods that he carried from Chinese border into Bhutan is not a legally accepted ground”.
Officials said that there are enough statements to prove that he did avoid army posts to escape being caught with the smuggled gold.
The OAG charged the four of smuggling, criminal conspiracy, obstruction of lawful authority, hindrance of prosecution and failure to report a crime. As per an internal agreement signed between Chundu Wangchuk, Rinchen Dorji and Kinley Tshering on October 18, 2015, they agreed to be carriers of gold from the border to Phuentsholing and requested Rinzin to bring the gold from the border to Haa.
The prosecution submitted before the trial court that the defendants conspired to transport gold from the Chinese to Indian border through Phuentsholing.
Defendant Rinzin was carrying yak fodder to his herd near the Chinese border on November 11, 2015 when he received a call from Chundu Wangchuk asking him to collect a package. At the border Dawa, a Tibetan, handed him a cello-taped carton. Rinzin arrived in Haa after avoiding Royal Bhutan Army posts on the evening of November 15 and handed over the gold to Rinchen Dorji.
Rinchen Dorji then took the gold to Chuzom and handed it over to Chundu Wangchuk, who opened the package containing seven gold biscuits, weighing a kilogramme each. Chundu Wangchuk was supposed to take the gold from Chuzom to Phuentsholing.
Chundu Wangchuk, however, was arrested around midnight of November 15 after the police received an anonymous call informing that a man driving a Toyota Prado was carrying smuggled gold to Phuentsholing.
The Tsimasham police had barricaded the road with a security check point about 100 metres away from Tsimasham town towards Thimphu.
The police stopped a car with three people in it at around 11pm and asked them to hand over the key. However, they did not obey and snuck through the barricaded road. Police had to chase them until the road point that leads to Tashigatshel from the main highway. By the time they were caught, the gold had been tossed out of the car.
It was later in custody that they confessed to the crime. The police took them to locate the gold the next morning and recovered seven gold biscuits in a bag.
Rinzin and Rinchen Dorji were arrested on November 18 and 19 respectively while Kinley Tshering was arrested on November 27.
The defence attorney pleaded guilty before the trail court to only one count of offence – a traffic violation (in the case of Chundu Wangchuk), and not guilty of smuggling for the other three as none of the defendants had crossed any borders or bought the gold themselves and acted only as carriers.
Only 50g of gold can be freely imported as per regulations. Any more requires permission from the Royal Monetary Authority.