High Court overturns District Court verdict and convicts defendants of smuggling 7 kg gold

On Wednesday, 16 November 2016, the High Court passed its verdict on the 7 kg Chinese gold smuggling case, altering the charges and sentences awarded by the Chukha District Court in September. Chundu Wangchuk and Rinchen Dorji were found guilty of smuggling and sentenced to five non-compoundable years in prison. Smuggling receives value based sentencing and the 7kgs of gold were valued at a little over Nu 18mn, making their crime a third degree felony (5-9 years).

They were also convicted of criminal conspiracy along with Kinley Tshering and sentenced to two and a half years’ jail time (half the sentence of the crime they conspired to commit).  Chundu Wangchuk and Rinchen Dorji would have to pay Nu.112,500 in lieu of imprisonment while Kinley has to pay Nu.98,500 as the court judged that he had not taken an active role in carrying out the actual crime. Kinley Tshering is the only one who will not face imprisonment, provided he pays the penalty.

The District Court’s conviction of Rinzin, the yak herder who was asked by Chundu Wangchuk over the phone to collect “a parcel” from the border and claimed to have no knowledge of the content, for aiding and abetting was upheld and will serve two and a half years’ non-compoundable months in prison.

He and Kinley Tshering had been sentenced to 15 months for the same charges by the district court as the crime was considered to only be the receipt of smuggled goods and not smuggling itself.

Chundu Wangchuk, who was caught by Tsimasham Police after he broke through the police barricade and attempted to hide the gold in November last year, was also sentenced to one year each for obstruction of lawful authority and hindrance of prosecution. He can pay a penalty of Nu.45,000 for each year in lieu of imprisonment. If the penalties are not paid, he will have to serve a total of nine years six months in prison and five years if he does pay.

The Chukha District Court had convicted Chundu Wangchuk and Rinchen Dorji of receiving smuggled goods and criminal conspiracy sentencing them to two and a half years in prison. Rinzin and Kinley Tshering were convicted respectively of aiding and abetting and criminal conspiracy of receiving smuggled goods. Chundu Wangchuk had also been convicted of obstruction and hindrance but the sentences had been concurrent.

The District Court verdict had reasoned that the intent was to act as carriers from the Chinese border to the Indian border and not to smuggle, also mentioning the illegal agreement between Chundu Wangchuk, Rinchen Dorji and Kinley Tshering which read that they would act as carriers of the gold. It further stated that the prosecutor could not prove beyond reasonable doubt that the accused had crossed the border to pick up the gold or that the defendants had made investments of any sort in acquiring the gold.

However the High Court referenced the Evidence Act 2005 36(j) and deemed the illegal agreement as inadmissible by its very nature in a court of law. It also read that besides the statements of the defendants there was no proof of the existence of the Chinese national Dawa nor of the Nepalese Atma Ram.

It also read that section 279 of the penal code was fully satisfied. The section defines smuggling as secretly and illegally imports or exports the restricted and prohibited goods or substances including animal parts.

Chundu Wangchuk had been arrested near midnight 15 November 2015 after he had broken through a police barricade at Tsimasham and then hidden the seven gold biscuits (each weighing one kg) with Chinese inscriptions and serial numbers. The gold was recovered the next day and his accomplices Rinchen Dorji, Kinley Tshering and Rinzin were arrested following police interrogation.

Their statements read that Chundu Wangchuk had called the yak herder Rinzin to collect a parcel for him from the Chinese border. Rinchen Dorji received it in Haa and then handed it over to Chundu Wangchuk in Chunzom. He was caught by the Tsimasham Police after they received an anonymous tip off.

The defendants have until November 30 to appeal to the Supreme Court.

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