The four men accused of smuggling seven kgs of Chinese gold have changed their pleas to guilty of all charges except smuggling.
At the evidence hearing at the Chukha District Court on July 11, their legal counsel Ugyen Dorji submitted the criminal conspiracy was only to transport and not smuggle.
Earlier, the defense had pleaded guilty only to traffic violation and submitted that there was no need to cross-examine with police and the defendants over claimed duress by police and retractions of their statements.
The Office of the Attorney General (OAG), the government’s prosecutor, has charged the four accused with criminal conspiracy, obstruction of lawful authority, hindrance of prosecution, smuggling and failure to report crime.
The accused are Rinzin, Rinchen Dorji, Kinley Tshering and Chundu Wangchuk, all from Haa dzongkhag.
Rinzin, a yak herder, claims to have been phoned by Chundu Wangchuk to pick a parcel from a Chinese national, Dawa, at the border and bring it to Haa. He is charged with smuggling and being fully complicit in the crime.
Rinchen Dorji had said he relayed the gold from Haa to Chunzom. He is charged with criminal conspiracy, smuggling and failure to report crime.
Chundu Wangchuk claims to have taken the gold from Chunzom for delivery to a Nepalese national, Atma Ram, at Phuentsholing. He is charged with criminal conspiracy, obstruction of lawful authority, hindrance of prosecution, smuggling and failure to report crime.
Kinley Tshering claims that he was to participate in the delivery of gold from the next consignment if this one was successful. He is charged with criminal conspiracy and failure to report crime.
Rinchen Dorji, Chundu Wangchuk and Kinley Tshering also said they had made security deposits of Nu. 2.5mn for each one kg gold biscuit and signed an internal agreement to “request Rinzin to bring” the parcel without him knowing its contents.
The OAG countered that the defense not requiring a cross examination with the police implied their statements were true in their original form. So the argument, based on the internal agreement, was overruled which meant Rinzin, in “hiding and dodging”, was committing the crime with fore knowledge.
A screenshot of Chundu Wangchuk’s mobile call log where an Indian number had called on November 16, 2015, the day after Chundu Wangchuk was arrested at Tsimasham with the gold, was presented at court as Atma Ram’s number.
The defense said there had been repeated calls, which went unanswered, as the phone was in police custody. This would show the existence of Atma Ram, whom the OAG has labelled a fictitious character, along with the Chinese Dawa, and also the vested interest of an investor in his goods.
“The statements throughout are consistent on the actions of the accused being that of carriers. And in the absence of proof of them crossing borders or investing their own money in buying the gold the most basic element of the legal definition of smuggling is unfulfilled,” said the defense. He added that the agreement preceding the act by a month also only mentioned transportation and this, in combination with statements of the payment of Nu. 60,000 for each kg of gold delivered, showed only the actions of carriers.
The defense also said the route that Rinzin took from the border to Haa had no army outposts and the phrase “hide and dodge” in his statement was a mistake made by the police in translation that had been changed within days after realising the error. The defense added that the burden of proof beyond reasonable doubt that his clients’ had smuggled the gold was placed on the prosecution by the criminal justice system.
However, the OAG said there was no room at all for gross misinterpretation of language adding that Rinzin, a fully sound person was, nevertheless, capable of understanding the phrase having studied upto class 10 and that the time lapse between the original statement where the phrase “hide and dodge” from the RBA and additional statement, which said his route led nowhere near the RBA outpost, was over four weeks.
On the internal agreement among the accused, the OAG said the circumstances were not subject to the agreement and the agreement in itself was not enough to dictate the defendants would stick to it.
The OAG also disputed a simple phone number’s sufficiency as proof of a character’s existence and said all the defense’s arguments and statement of facts were mere hearsay whereas the state had direct evidence in the form of the seven Chinese gold biscuits. As such the burden of proof of the existence of the border crossers, Dawa and Atma Ram, as the smugglers would shift on to the defense counsel, which so far hasn’t been proved beyond reasonable doubt.
The state prosecutor said the accused had the duty to declare the gold to the nearest customs office as they had neither an import license nor permission from the Royal Monetary Authority. This fact in itself constitutes the act of smuggling.
Gold is a restricted item. Anything in excess of 50 gsm requires an import license along with a permit from RMA. In absence of these documents, a person must declare at the nearest customs office.
The OAG sought permission to submit their closing arguments and was given a tentative date of July 26, 2016. It will be the last hearing before a judgment is passed.
The gold has been handed over to RMA by the RBP.