State v Khan - Summing Up [2015] FJHC 647; HAC01 of 2015 (9 September 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 01 OF 2015

BETWEEN:

STATE

AND:

1. MOHAMMED SHAHEED KHAN
2. ETHAN KAI

Counsel : Ms. S. Kiran with Ms. Fatiaki for Prosecution
Mr. Iqbal Khan with Ms. Baleilevuka for 1st Accused
Mr. J. Peluso with Mr. A. Ravindra-Singh & Ms. Subeska for 2nd Accused

Date of Hearing : 01st – 07th August 2015; 10th August 2015; 12th – 13th August 2015; 17th – 21st August 2015; 24th – 27th August 2015; 31st August 2015.

Date of Legal Submissions : 01st September 2015
Date of Closing Submissions : 04th September 2015
Date of Summing Up : 09th September 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution it to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
8. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recallsing the facts about which he or she has testified.
   
9. You have seen how the witnesses presented in the witness box when answering questions. Bear in mind that many witnesses are not used to giving evidence and may find the different environment distracting. You should take into account consideration such as, the likelihood of the witness's account, whether the evidence of a particular witness seem reliable when compared to other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, the opportunity, the witness had to see, hear, or know the things that the testified about. Another point you may consider is whether the witness said something different at an earlier time? These are only few general considerations which I assume will assist you in your deliberations. It is, as I have said, up to you to assess the evidence and decide what weight, if any, you give to a witness's evidence or to an exhibit.
   

Burden and Standard of Proof

10. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing.
    
11. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
12. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means, that the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

Information

13. The first accused person is charged with one count of Unlawful Importation of Illicit Drugs, contrary to Section 4(1) of the Illicit Drugs Control Act, 2004 (hereinafter referred as The Act). The particulars of the offence are that;
    

"Mohammed Shaheed Khan between the 26th day of June 2014 and 21st day of December 2014 at Lautoka in the Western Division, imported 29.9 Kilograms of illicit drugs namely Heroin without lawful authority".

14. Section 4(1) of the Illicit Drugs Control Act states that;
    

"Any person who without lawful authority (proof of which lies upon that person) imports or exports an illicit drug commits an offence and is liable upon conviction to a fine not exceeding $ 1,000,000 or to imprisonment for life or both".

15. Section 4 (2) of the Illicit Drugs Control Act stipulates that the evidential burden to prove the lawful authority lies upon the accused person.
    
16. In view of Section 4 (1) of the Act, the main elements of the offence of unlawful importation of illicit drug are;
    
    1. A person,
    2. Imports,
    3. Illicit Drugs,
       4. Without lawful Authority,
          
17. In respect of the first element, the prosecution is required to prove beyond reasonable doubt that the person who imports the illicit drug is the first accused person. The term "import" has been defined under Section 2 of the Act, as;
    

"Import means to bring or cause to be brought, into Fiji Islands and is a continuing process including any stage thereof until any item reaches the intended recipient".

18. According to the interpretation stipulated under Section 2 of the Act, the term of "import" could constitute either bringing or causing to be brought any illicit drugs into Fiji Islands or doing anything in relation to that illicit drugs at any stage thereof until it reaches the intended recipient.
    
19. The term "import" also connotes that the person who involved in such activity had the knowledge or the belief that he brought or caused to be brought any illicit drugs.
    
20. Pursuant to Section 2 of the Act, the illicit drugs have been listed under schedule 1 of the Act. According to schedule I of the Act, Heroin has been listed as an illicit drugs.
    
21. If the prosecution established beyond reasonable doubt, that the person has imported an illicit drug, then the accused is required to prove that he has a lawful authority to import such drugs into the country. This burden of proof on the accused person is called as an evidential burden. This does not mean that the legal burden of the prosecution to prove the charge against the accused beyond reasonable doubt, which I have explained above, has shifted to the accused person. It is and will remain with the prosecution throughout the trial. The evidential burden on the accused to prove that he had a lawful authority is a lessor burden than the legal burden rested on the prosecution.
    
22. Accordingly, the prosecution is required to prove beyond reasonable doubt that the first accused person has imported 29.9 kilograms of illicit drugs namely Heroin and the first accused had the knowledge or belief that what he had imported is an illicit drug.
    
23. I now turn onto the charge of the second accused person, Mr. Ethan Kai. He is charged with one count of Unlawful Importation of Illicit Drugs contrary to Section 5 (b) of the Illicit Drugs Control Act, 2004. The particulars of the offence are that;
    

"Ethan Kai, between the 26th of June 2014 and 21st of December 2014 at Lautoka in the Western Division, without lawful authority engaged in dealing with Mohammed Shaheed Khan for the import of 29.9 kilograms of illicit drugs namely Heroin".

24. Section 5 (b) of the Illicit Drugs Control Act states that;
    

"Any person who without lawful authority -

Engages in any dealings with any other person for the ........import of an illicit drugs, commits an offence and is liable on conviction to a fine not exceeding $ 1,000,000 or imprisonment for life or both".

25. Accordingly, the main elements of the offence of unlawful importation of illicit drugs under Section 5 (b) of the Act are;
    
    1. A person,
    2. Engages in dealing with any other person,
    3. For import,
    4. Illicit Drugs,
    5. Without lawful authority,
       
26. Apart from the second element which is "engages in dealing with any other person", the remaining elements are founded on the same definitions and the principles which I have explained above with regard to the first count. In order to prove the element of "engages in dealing with any other person" the prosecution is required to present evidence that the accused has involved with another person in any open or covered interaction in order to import an illicit drug into the country.
    
27. Accordingly, it is the onus of the prosecution to prove beyond reasonable doubt that Ethan Kai has engaged in dealing with Mohammed Shaheed Khan to import 29.9 kilograms of illicit drugs namely "Heroin". If the prosecution establishes that Ethan Kai has imported illicit drugs as stated above, beyond reasonable doubt, then the evidential burden will shift on the accused person to prove that he had a lawful authority to import such illicit drugs.
    

Agreed Facts

28. I now kindly draw your attention to the four sets of agreed facts, which are before you. You are allowed to consider these four sets of agreed facts as proven facts beyond reasonable doubt against the two accused person by the prosecution.
    
29. The prosecution and the first accused person agreed that Mr. Mohammed Shaheed Khan is the Director of Khan's Enterpirses Limited at Navutu Sub Division, Lautoka. The prosecution, the first accused person and the second accused person tendered following statements in evidence by consent,
    
    1. The statement of Vikashini Lata,
    2. The statement of Courtney Derrick,
    3. The statement of Sgt Edmond Oswold,
    4. The statement of Miliana Werebauninona, the Principle Scientific Officer,
    5. The certificate of Analysis dated 22nd of December 2014,
    6. The certificate of Instrumental Analysis dated 17th of June 2015,
       
30. The prosecution and the first accused person by consent further tendered in evidence the CCTV footages of the Total Service Station located at Navutu Sub Division Lautoka for the 17th and 18th of December and the caution interview of the first accused person.
    
31. The prosecution, the first accused person and the second accused person agreed in evidence that the first accused and the second accused knew each other by the time of the 20th of December 2014.
    
32. The prosecution and the second accused person agreed in evidence that Ethan Kai of 12 Mernagh St, Ashcroft, New South Wales, 2168, Australia checked in at Sofitel Hotel between 12th of December and 20th of December 2014. They further agreed in evidence that;
    
    1. Ethan Kai went to AIMS rental car located at 3, Shortlane Street, Namaka,

Nadi on the 12th of December and on the 18th of December 2014,

2. Ethan kai went to Bob's Hook Line and Sinkers located at main street

Nadi on the 16th and 19th of December 2014,

3. Ethan Kai went to Vinod Patel & Co Ltd, located at Nadi town on 15th of

December and 18th of December 2014.

4. Ethan Kai was interviewed under caution by Cpl Nilesh Kumar at Sabeto

Police Station from 22nd of December till 28th of December 2014. The said interview was witnessed by Cpl Veimosoi,

5. Ethan Kai was charged by Sgt Nagata Batidegei at Sabeto Police Station on

The 28th of December 2014,

33. The prosecution and the second accused person further agreed by consent to tender in evidence following CCTC footages in evidence;
    
    1. AIMS rental a car office located at 3, Shortland Street, Namaka, footages

for the 18th and 20th of December 2014,

2. Vinod Patel Nadi Branch, footages for the 15th and 19th of December

2014,

3. Sofitel Fiji Resort and Spa, footages for room 308 for 2011hrs to 0046hrs

on 14th of December 2014, 0445hrs to 2220hrs on 14th of December 2014

and 1600hrs to 2205 hrs on 19th of December 2014.

Summary of Evidence

34. I now turn onto summaries the evidence presented by the prosecution and the defence during the course of this hearing.
    
35. The first witness of the prosecution is S.P. Abdul Khan. He is a Deputy Director of the Intelligent Bureau. He has served 22 years in the Fiji Police Force. He oversees the operation of Fiji Police Force Intelligence Bureau, in relation to national security and transnational crimes.
    
36. At this point, you may recall that S.P. Abdul Khan in his evidence stated that he received some information and mentioned about Ethan Kai. Please disregard that portion of evidence in your consideration since the prosecution withdrew that portion of evidence.
    
37. Upon receiving some information, S.P. Abdul Khan has launched a covert operation with the officers of the Transnational Crime Unit. He explained to the officers about the nature of this covert operation. During this covert operation they have conducted surveillance on the targeted persons. The officers who were involved in this covert operation reported directly to him either in the form of classified verbal or written reports. He then reported directly to the Chief Intelligence and Investigation officer and the Commissioner of Police. Apart from those reports, he has received some surveillance photographs on the targeted persons taken by the officers who conducted the surveillance. Out of them he identified six photographs of two targeted persons of interest meeting up near the Total Service Station at Navutu subdivision near Lautoka on the 17th and 18th of December 2014.
    
38. S.P. Khan further stated that having obtained all the surveillance and intelligence gathering, he had a reasonable ground to believe that there was an importation of illicit drugs made into the country. Then all reports together with some surveillance photographs were handed over to the Investigating Office I.P. Ayiaz.
    
39. In the cross examination by the learned counsel for the first accused person, S.P. Khan stated that he learnt from the investigation officers, that the first accused person has cooperated with the Police when he was interviewed. He further stated that the sources of information are protected under Section 28 of the Illicit Drug Control Act.
    
40. The second witness of the prosecution is Mr. Alexio Sela, who is an Acting Senior Immigration Officer in the Department of Iation. He was based in the the Nadi International Air Port in December 2014. He recalls that he provided the Police with the travel history details of one Ethan Kai and Mohammed Khan, including the arrival card of Ethan Kai. He identified the travel history detail report of the Ethan Kai and then explained the travel dates that Ethan Kain made into and out of the county. He stated that according to the report, Mr. Ethan Kai has arrived to Fiji on 12th of December 2014 from Hong Kong.
    
41. Mr. Sela then explained the details entered by Ethan Kai in his arrival card. He stated that Ethan Kai would have left Hong Kong on 11th of December 2014 and that is the reason for stating the date as 11th of December 2014 on the back of his arrival card.
    
42. The third witness of the prosecution is Mr. Ashok Prasad. He is the National Sales Manager of Pacific Agencies, a shipping agent company. They ar agents for a liner iner shipping company, namely SWIRE shippings. He explained the nature of their shipping business. He stated that the Bill of Lading contains the name of the shipper and theiver. He explained the nate nature of the involvement of third party agents in sending cargo in a bill of lading. The party who booked the cargo provides the details in the Bill of Lading.
    
43. Mr. Prasad then explained the purpose of Master Bill of Lading. It is required when the cargo is coordinated through a 3rd party. The third party negotiates the Master Bill of Lading, which contains only the details of the 3rd party. The third party is known as freight forwarders. The House Bill of Lading contains the details of the actual shipper or the consignor and the actual consignee.
    
44. He recalls that CID officers came to his office on the 7th of January 2015 and he provided them the Bill of Lading, Shipping manifest, shipping schedule and arrival notice. He tendered these four documents as the exhibits of prosecution. Mr. Prasad stated that according to the Bill of Lading, the shipper is MSI Logistic Limited, a freight forwarding company based in Thailand. The consignee is also a local freight forwarding company, All Freight Logistic Limited. According to the Bill of Lading, the goods were in-transit from Lao to Fiji via Thailand. The cargo contained four wooden cases. It is a 20 ft container. The vessel that brought the cargo was NGAKIN 14215. Having referred to the shipping schedule, Mr. Prasad stated that the cargo was loaded in Bangkok, Thailand on 14th of November and was expected to reach in Lautoka on 13th – 15th of December 2014.
    
45. According to the Bill of Lading, the container number is TGHU0623796 and the seal number is TB11173017. Mr. Prasad explained the purpose of the seal number. He stated that the supplier or whoever packs the cargo places the seal. The ocean freight had already paid by the supplier at the port of load, which is Bangkok, Thailand. Upon arrival of the cargo, Pacific Agencies has sent an arrival notice including the local charges of the cargo to the local consignee, that is All Freight Logistic Ltd.
    
46. Mr. Prasad explained the legal effect of the Bill of Lading. It is the source document. The consignee must produce the original of the Bill of Lading before he accept and take the custody of the cargo upon its arrival at the designated destination. It is the main document to prove the ownership of the cargo.
    
47. During his cross examination, Mr. Prasad explained that the four wooden cases were in a 1 x 20 ft container. It contained three used motorcycles and 28 used tyres and wheels. He stated that these were the items that were supposed to be inside the container.
    
48. The learned counsel for the second accused did not cross examine this witness.
    
49. The fourth witness of the prosecution is Mr. Edwin Murti, who is the Regional Manager (West) of All Freight Logistics (AFL). The main business of AFL is freight forwarding. He recalls that CID officers came and asked for the information about a shipment, which he provided to them. It was a shipment for which they have acted as an agent for MSI Logistic in Bangkok, Thailand. They were instructed by their agent in Thailand to deliver the said container to the actual consignee. Mr. Murti stated that they received the Master Bill of Lading, House Bill of Lading and a debit note from MSI.
    
50. Mr. Murti explained that the Master Bill of Lading informed them that they have a shipment, coming through their agent MSI Logistic. The House Bill of Lading stated the actual consignor and the consignee of the goods. AFL could inform the actual consignee about the arrival of cargo from the information in the House Bill of Lading. He stated that according to the House Bill of Lading, the actual consignee is Khans, of Navutu Industrial Sub Division, P.O.Box D770, Lautoka. The actual shipper is Ms. Nipakone Sengphilom of Wattay Yai Village, Luangprabang Road, Sikhottabong District, Vientnane, Lao P.D.R. He further stated that the cargo was in transit from Loa to Fiji via Bangkok. The freight had been pre-paid by the shipper. He identified the container number and the seal number in the Bill of Lading. The AFL has charged the consignee US $ 557. He tendered the Master Bill of Lading, House Bill of Lading and the tax invoice issued by AFL as exhibits of prosecution.
    
51. Mr. Murti stated in his evidence that he dealt with the consignee once in June 2014 too, as he received a consignment from the same consignor. They received the same set of documents as of this present consignment, the Master Bill of Lading, House Bill of Lading and debit notice. The previous consignment contained a used jet sky. He tendered the Master Bill of Lading, House Bill of Lading and Tax invoice in respect of the previous consignment as part of the exhibits of prosecution.
    
52. During his cross examination by the counsel for the first accused person, Mr. Murti stated that the name of the previous consignee is Khan Enterprises Limited and the name of present consignee is Khans. However, both consignments have the same address and same phone contacts. Both consignments have transited from Lao via Bangkok and Singapore to Lautoka.
    
53. In respect of the present consignment, Mr. Murti stated that they are only the freight forwarders. Hence they do not see the inside of the container physically as it was packed by the shipper. Upon its arrival into Fiji, the cargo goes through the custom clearance process, which is handled by the custom clearance agents. AFL does not physically clear the cargo unless it is packed by them.
    
Mr. Murti further explained that the only way the consignee could get the rmation of the contents in the cargo is from the shipper orer or the consignor. Otherwise, he is not in a position to find out what actually inside the cargo is until it arrives and is checked. However, all the containers coming into Fiji are not going through custom clearance. The containers only marked by the Custom for inspection will go through the clearance.

55. During the cross examination by the learned counsel of the second accused, Mr. Murti stated that the cargo has come from Lao, but could not confirm whether it came to Bangkok by sea or by land routes. He admitted that Lao is a landlocked country. He stated that the cargo was loaded into a vessel named NOROLION 013S in Bangkok, which brought the cargo to Singapore. It was then loaded to NGANKIN 1421S in Singapore and sailed to Lautoka. Referring the Bill of Lading, he confirmed that the cargo was transited from Lao to Fiji via Nongkhai/ Bangkok, Thailand.
    
56. Mr. Murti in his cross examination stated that the shipper would have provided the details in Bill of Lading and packed the item into the container.
    
57. The fifth witness of the prosecution is Mr. Seamus Chang, who is the Corporate Security and Anti Money Laundering officer of Vodafone Fiji Limited. He stated in his evidence that Cpl Nilesh from CID headquarters requested him to provide call records and details of registration of phone numbers in relation to this case. He was asked to provide ownership details of 4 numbers. They are, 8650131 registered to Ethan Kai, 9483574, a corporate number, registered to Khan's Enterprises Ltd, 9764538, registered to Ulamila Delaibau, and 9483547 registered to Khan's Enterprises Ltd. He was further asked to provide call records of phone numbers of 8650131, 9483574 and 9764538.
    
58. In respect of the customer registration details, he conducted a search on the first name, last name and the date of birth. He tendered the report of the search result as prosecution's exhibit No 13. He has found five numbers registered under Ethan Kai, which are recorded in the first box of the P/E 13. He further found the phone number 8357773 registered under Mohammed Shaheed Khan.
    
59. Mr. Chang, then tendered a report which he made in respect of the call details of 9217259 and 8650131 as prosecution's exhibit No 14 and call details of 9926224 as prosecution's exhibit 15. He stated that 9926224 was registered under Khan's Enterprises Ltd. He explained that the call could only be recorded in their data base on two instances. The first instance is when the receiving party answers the call. The second instance is when the call goes to the answering machine. Then only the billing of the respective calls are initiated.
60. He assumed that, if he is correct, ID number type 1 is for passport and ID type 3 is for driving licence. In view of his assumption, he stated that ID number registered under 8357773, could be a passport number. He was cross examined by the learned counsel of the first accused on this issue. However, he stated that it was only his assumption, but could not confirm whether the ID type 1 is a passport or some other form of identification.
    
61. During the cross examination of the learned counsel for the second accused, Mr. Chang stated that search on computer data sometimes could make errors only if wrong information was fed in to the search. In respect of the first box in the prosecution's exhibit No 13, he stated that apart from the last number, four other numbers have no clear identification. He also did not rule out the possibility that these five SIM card numbers may have been previously registered under someone else. However, he stated that he could not agree the suggestion that other 4 numbers are unknown and have question marks. He explained that the customer is required to provide the ID at the registration. Accordingly, at the point of registration, these details would have been entered into the system. Mr Chang further stated that is possibly that anyone could have come in and provided these details at the registration in respect of first four numbers in the box. He further clarified that such incidents take place very rarely.
    
62. The sixth witness of the prosecution is Mr. Paula Daunitutu, who is the Manifest Officer at the Pacific Agencies. He recalls that Mr. Semiti Tukana, a clearing agent from Pal Freight came to his office with a Bill of Lading to endorse it for the custom clearance on the 16th of December 2014. He then endorsed the said Bill of Lading and stated the freight for custom purpose is USD 1987. The amount has already been entered into the system by their Suva office. He tendered the endorsed Bill of Lading as prosecution's exhibit No 16.
    
63. During his cross examination, Mr. Daunitutu stated that as per the Bill of Lading the consignment contained three used motor bikes and used tyres and wheels. He stated the owner of these items is the consignee as stated in the Bill of Lading.
    
64. The sevwitness of the prosecution is Mr. Semiti Tukana, who owns awns a freight company under the name of Pal's Freight Custom and Logistic. His main businesses are carting of containers and pine. Halls that Mr. Shaheed Khan Khan, the first accused person called him and asked him to come and pick some documents in order to get a container released from the wharf on 15th of December 2014.dentified the first accusedcused person as Mr. Khan. He then visited Mr. Khan and picked the Bill of Lading, invoices and C45 Form.
    
65. Mr. Tukana stated that he is not a licensed custom agent. He has a side lifter truck and is known to Mr. Khan through his logging business. Therefore, he was given this job by the first accused to get the container cleared. He identified the Bill of Lading in his evidence and stated that he was given an invoice in a foreign language.
    
In respect of C45 Form, Mr. Tukana stated that, it is a customs declaration form required to be complet the importer. It states thes the nature and the manner of ownership of the goods in the consignment. The first part of the C45 Form was filled by the wife of Mr. Khan, but then onwards it was filled by Mr. Tukana. He filled the form with the information given by Mr. Khan. Mr. Khan has stated him that he has ordered the goods through phone and the payment will be made via TT. He was further informed by Mr. Khan that the goods are for his personal use. He was told by Mr. Khan that he will use three motor bikes for his personal use. Mr. Khan has then signed the C45 Form. He has explained Mr. Khan about the form and the information that he has to fill in the form. According to Mr. Tukana, Mr Khan properly understood them. He tendered the C45 Form, invoices in foreign language as prosecution's exhibits.

67. Mr. Tukana received the English version of the invoice from Mr.Khan on the 16th of December 2014. This invoice was for the motorbikes and tyres. He gave these documents to one of his staff to deliver it to Western Customs Ltd for the preparation of custom entry. Custom entry is a program where the details of goods are entered into a system and the system then calculates the duty and VAT charges for the goods.
    
68. Mr. Tukana had received calls from Mr. Khan continuously inquiring the release of the container during the period from15th of December to 18th of December 2014. Apart from the phone calls, Mr. Khan has sent him e.mails in this regard. He confirmed the container contains used motor bikes. They were two wheel bikes as per his e.mails. Mr. Tukana wanted these information for the clarification of the weight and the width of the container. Mr. Khan had given him another invoice, which contained the details of three motor bikes written in English language.
    
69. Mr. Tukana explained that normally a 20 Feet container could contain more that 6 to 10 tons, but this particular container had only 1759 kg.
    
70. He was informed by the Western Custom Ltd that the custom entry has been declined on the 18th of December 2014. He wanted them to provide him a copy of the decline, which he could hand over to Mr. Khan. Subsequently, Mr. Khan wanted to have a meeting with the custom, and had asked the Western Custom Ltd to organise it. Accordingly, Mr. Khan had a meeting with Custom on 19th of December 2014 at 2p.m.
    
71. During his cross examination by the learned counsel of the first accused person, Mr. Tukana stated that he is known to Mr. Khan for more than 12 months and had visited his office several times. He did not know that Mr. Khan is computer illiterate. He further stated that since the details were given by Mr. Khan, there was no need for him to read back what wrote in C45 Form.
    
72. Mr. Tukuna stated that Mr. Khan told him that he was fed up with the clearance process and wanted to surrender it when he heard the custom entry was declined.
    
73. The eight witness of the prosecution is Jitender Singh, who is an Authorised Custom clerk at Western Custom Brokers Lautoka Limited. His scope of work covers preparing of Single Administrative Document (SAD), making lodgment with the Custom, making payment and duties when the entries are assessed. SAD is a custom document and it is needed for every shipment of import or export. In order to prepare the SAD, they need the Bill of Lading, commercial invoice, packing list, if available, and the custom C45 Form.
    
74. He recalls that he received documents from Semiti Tukana on 18th of December 2014, including the Bill of Lading, Commercial Invoice and C45 Form. It was his duty to clear the consignment on behalf of Semiti Tukana. Having verified the documents, he found the commercial invoice was in a foreign language. He asked Semiti Tukana to provide a commercial invoice in English Language. Accordingly, Semiti Tukana provided him an English version of the commercial invoice.
    
75. Although, all the necessary documents for the preparation of SAD were obtained, they were still not sure whether the bikes mentioned in the Bill of Lading were quad bikes or motor bikes. Duties are differently calculated for quad bikes ator bikes. In t In this regard, Semiti Tukana forwarded them an email sent by Mr. Khan, who is the actual consignee of this goods. He then prepared SAD with thements. In his evidence, he explained in detail the contentstents in the SAD. He further explained that the valuation was calculated according to the information stated in the documents.
    
76. Mr. Singh then lodged the SAD at the Fiji Customs Authority for processing on the 18th of December 2014. He went back to the Fiji Customs Authority after lunch and found that the custom entry which he lodged has been rejected. The rejection was founded on three grounds and was stated on the back of SAD.
    
77. He was asked by Semti Tukana to arrange a meeting for Mr. Khan with the Custom, when he informed Semti about the rejection. He then arranged a meeting for Mr. Khan with Mr. Krishna Chandra, the Manager Revenue at Fiji Custom on the 19th of December 2014 at 2p.m. He was also present when Mr.Khan met the Manager, Revenue of the Fiji Customs as scheduled. The Manager advised him to provide two more additional documents, the original commercial invoice and the documents confirming the purchase of the items, apart from the three grounds stated on the back of SAD. Mr. Khan was looking for his options, and the Manager advised him to provide those additional documents on following Monday. The meeting lasted for about 20 to 30 minutes.
    
78. Mr. Singh stated that Mr.Khan was fed up and wanted to surrender the goods, but the Manager advised him not to do so and provide the necessary documents on Monday. He stated that during their inquiry about the bikes, they found they were motor bikes. He further informed that according to the email sent him by Mr. Khan, they were two wheel motorbikes. If the consignee did not get what he ordered in the Bill of Lading, he has the options of, either paying extra and obtaining it or surrendering it back to the Customs Authority.
    
79. The ninth witness of the prosecution is Mr. Krishna Chandra, who is the Manager, Revenue of the Fiji Revenue and Customs Authority at the Lautoka Port. He extensively explained the Custom's process of clearance of goods. He stated that it was the system or the discretion of the particular custom officer to select goods for physical inspections. He then explained the nature and the effect of C45 Form. It is a legal document that contains two parts. Part B is for the goods from a sale between an importer or a buyer and the supplier or the shipper. The importer has to fill part B of C45 Form declaring the nature of the goods, the vessel and the mode of payment.
    
80. Mr. Chandra then explained the effect of Bill of Lading. He stated that it is a legally binding document between the exporter, the shipping agent and the importer. It contains all the details of the goods, which should be matched with the commercial invoice. According to Mr. Chandra, the process of surrendering of goods takes place very rarely and if so, only on exceptional circumstances. It is normally the last option of the importer.
    
81. Mr.Chandra could recall that he had a meeting with Mr. Khan and custom agent Mr. Jitendra Singh in respect of the rejection of Mr.Khan's custom clearance entry. Three of them physically went through the relevant documents. There were three grounds of rejection stated by Preethi Prasad, the Custom Officer on the back of the SAD. Mr. Chanrda having considered the documents, added two more grounds for the rejection.
    
82. In respect of the first and fourth grounds of rejection, the importer was asked to provide a very legitimate invoice containing all the details relating to the goods pursuant to regulation 108 of the Custom Regulations. The invoice which was presented with the declaration was not very descriptive and not clear. In respect of the second ground, the size of the tyre is needed to clarify the actual nature of the goods in the container. According to the third and fifth grounds it was needed to clarify the source of the goods.
    
83. When he was informed about these requirements, Mr. Khan tried to contact the supplier, but failed to contact him over the phone. He then asked Mr. Chandra, whether it is a possibility for the Custom to go and open the container and check what is inside. He stated that the tyres belonged to him and the motorbikes were for the supplier. Mr. Chandra has told him that it is not a proper procedure to open and check the container unless the custom is satisfied with the required documents. Mr. Chandra has explained Mr. Khan about another option available for him. That is, pursuant to Section 33 of the Custom Act, the importer could pay a deposit or a surety and get the goods released.
    
84. At that point, Mr. Khan wanted to pay the deposit and get the goods cleared. Mr. Chandra explained him that he is still required to provide those required documents for this option too. He inquired from Mr. Chandra that what would happen, if he did not clear the container. Mr. Chandra explained him the procedure of that aspect as well. Mr. Khan then had a discussion with the custom agent, which Mr. Chandra did not pay attention. Mr. Chandra recalls, that Mr. Khan at no point made a request of surrendering the goods.
    
85. During his cross examination, Mr. Chandra stated that he did not make any notes of this meetings as it was a regular event. Such notes are not required to make. He made his statement to the Police on 28th of December 2014 in respect of this investigation. He explained the composition of the C45 Form. Part A of the form is related to the goods which are not subjected to sale and part B is for the goods that are subjected to sale. He stated that in this instant case, the Importer has stated in C45 form that the payment will be made to the Supplier in 30 days of the receiving of goods. Accordingly, the applicable part is part B of the C45 form.
    
86. Mr. Chandra stated that Mr. Khan, requested him to open and check the container, but was not aware that Mr. Khan was getting frustrated. Mr. Khan only made one call to the Supplier, but could not reach him as the receiver's phone was diverted. Mr. Chandra stated that he was giving evidence from his memory of the event, and is sure of what he is telling. He stated that he mentioned the sizes of the tyres as 12 to 15 but actually they were 13 to 15. Hther stated that Mr. Khan Khan could or could not have told that he wanted to surrender the goods, but Mr. Chandra has told him to get the documents during the weekend and come back on Monday.
    
87. Mr. Chandra stated that he did not hear what Mr. Khan and custom agent discussed during the meeting. The meeting lasted for about seven or maximum of ten minutes. He did not agree with the suggestion of the learned counsel of the second accused that his recollection of what happened at the meeting is weak.
    
88. In the re-examination, Mr. Chandra stated that it is a normal procedure of not taking down notes of the meetings of this nature. They only endorse the major grounds of rejection on the back of the SAD.
    
89. The tenth witness of the prosecution is Mrs Shareen Lata. She works as a Teller at the Exchange and Finance, a money exchange company which carries on Western Union money transaction. Ms. Lata stated that she received a call from Mr. Shaheed Khan, who is a friend of her for last five years, and said that he was coming to receive money at her branch at Namaka, Nadi on 3rd of July 2014. Mr. Khan gave her the money control number, which the sender gives to the receiver in order to obtain money. She then obtained his driving licence for identification. She filled the receiver's detail form for him as she knew his details. Mr. Khan singed it. He told her the money was a Eid gift from a friend, but later changed it and told her it is personal.
    
90. According to the receive's form, the sender is Ethan Kai and it was sent from Vanuatu. She tendered the receiver's detail form, copy of the driving licence of Mr. Khan and receives form as prosecution's exhibits. The total amount sent to Mr. Khan by Mr. Ethan Kai was $7,000.
    
91. The eleventh witness of the prosecution is Mr. Nilesh Prakash, who is the Branch Manager of Exchange and Finance, Namaka, Nadi. He recalls that he handed over three documents to the Police on 21st of December 2014. They are the receiver's detail form, Copy of a driving license, and the receive form. He stated Shareen Lata processed this transaction with the customer.
    
92. The twelfth prosecution witness is Ashnil Yogendra Deo. He is the Manager of Bob's Line and Sinker shop in Nadi. He recalls, on 16th of December 2014, one Chinese man came to his shop and bought two dry bags. He sold him the two dry bags for $ 50 each. The dry bags are waterproof and could put accessories inside of it as it won't be able to get wet. He recorded the sale in his computer system and cash registry. He entered only one sale of bag and other one was entered on 18th of December 2014 as he wanted to cover his daily targets. He tendered the two receipts for the sale of two dry bags as prosecution's exhibits. He stated that the dry bags had the barcode. He saw the dry bags again, when the police brought them back to his shop. He has identified them with their barcode, which is 11088. He identified them while giving evidence in court as well.
    
93. The same Chinese person came to his shop again on 19th of December 2014. He came and asked him for a strong knife that can cut tyres. He had first chose a knife, which Mr. Deo found is not strong. The Chinese person then told him that he wanted a strong knife that can cut tyres. Mr. Deo saw him a set of knives namely Jarvis Walker Razor Sharpen. It was $59.95. The Chinese person bought the said set of knives. It took about 10 to 15 minutes for this transaction. The sale was entered into the system and cash registry. The barcode for the box of knives is 245. He identified the said knives with its barcode.
    
94. Mr. Deo gave the police CCTV footages of the shop for the 16th and 19th of December 2014. Mr. Deo identified the Chinese person in the CCTV video footages for 16th and 19th of December 2014. Having identified the Chinese person in the video footages, Mr. Deo identified the second accused as the Chinese person who bought two dry bags on 16th of December 2014 and set of knives on 19th of December 2014 from his shop. The dry bags, knives set and the copies of the CCTV footages were tendered as prosecution's exhibits.
    
95. During his cross examination by the learned counsel of the second accused person, Mr. Deo stated that his shop is mainly selling fishing equipments. He stated that knives that he sold to the Chinese person were the hardest and biggest one they got in their shop. The dagger knife and the filleting knives they had in the shop are not strong and sharp to what he requested.
    
96. Mr. Deo stated that according to the video footages, not only him, but other staff also dealt with the second accused. He made his statement to the Police on 26th December 2014. He made his statement in the Shop. The Police came to his shop on 26th and checked the CCTV footages, receipts for the transactions and recorded his statement.
    
97. Mr. Deo stated that what happened on 16th and 19th of December 2014 were normal and a usual business transaction. He stated that he may not have a full recollection of everything that was took place on those two days. It was on the 26th of December 2014, that he had to first recall the events that took place with this Chinese customer. That was the day he made his statement to the police. However, he denied that he had some prior discussions with the Police, when he made his statement on the event that took place on the 16th and 19th of December 2014. The Police came to his shop with the sold items and asked him about those items. They told him about the nature of investigation. He stated that he has some difficulties of remembering every conversation he had with the police. He denied that the Police came with prepared statement for him. He gave his statement in the shop. One Police officer was recording it in the computer while the other officer was standing in front of him. He read his statement on the computer and also read it when he was given the printed copy of it. He then signed it. He testified that he was shown the video footages by the Police before he made his statement. Prior to seeing these footages, he just had a memory of the guy who bought the two dry bags and knives set. He could not remember the conversation he had with the second accused. However, when he was shown the footages, he remembered the Chinese person and some parts of the conversation he had with him.
    
98. It took about 10 to 15 minutes for him to recall the conversation he had with the second accused, when he was making his statement to the Police. He did not talk or had any discussions with the Police, nor they helped him in recalling of the incident and conversation he had with the second accused person. He was just looking at his shop and recalled the conversation he had with the second accused person. He stated that he remembered that the second accused asked him for a strong knife that can cut tyres. He denied that the Police proposed him about the strong knife. He stated that when he was told about the knife, he could recall that this particular customer coming inside and first touching a less strong knife. The second accused then asked Mr. Deo to show him a strong knife that can cut tyres. He specifically stated that the Police did not help him remembering the conversation that he had with the second accused about a strong knife that can cut tyres. The second accused spoke in English with him and he had no difficulties in understanding English. He stated that he did not misunderstand what the second accused asked about a strong knife that can cut tyres. He repeatedly stated that it was the second accused, not any other customer, who asked him for a strong knife that can cut tyres. It was the only knife he sold on the 19th of December 2014. He stated that he was not mistaken or confused about the conversation of the second accused asking him for a strong knife that can cut tyres.
    
99. Mr. Deo explained the incident of cutting of a paper which was recorded on the CCTV footage on 19th of December 2014. He was showing and demonstrating the second accused that the knife he initially picked up was very sharp but not strong to cut tyres. Mr. Deo further stated that the second accused did not ask him for a knife for fishing.
    
100. Mr. Deo stated that according to his understanding, it took about an hour to record his statement. He could not actually make any comment on the time recorded in his statement. He stated that it took about 10 to 15 minutes for him to remember the conversation he had with the second accused person during the recording of his statement. Once the statement was recorded, he read it on the computer screen. The Police officer then took the print out of it, which he read again. He then signed the statement in the presence of two police officers, one was the recording officer and other officer was observing it.
     
101. The witness agreed with the learned counsel of the second accused person that some of the knives in the box have marks. He stated that it could be marks of food or rust. He stated that the barcode of the knife box was in tact when the Police brought it back to his shop.
     
102. Mr. Deo stated that he entered one sale of dry bag into the system and the cash registry on 16th of December and the second sale on 18th of December 2014. He explained that it has been a practice of the sales staff in order to meet their daily target of $ 1000. They keep additional sales in a separate section of the cash registry without entering it into the system, if they have already reached their daily target. The said money will be calculated on another date, if they failed to reach their daily target.
     
103. Mr. Deo explained that he kept the said $50 for the second sale of the bag with a hand written note of the barcode of it in the petty cash section of the cash registry. He put the money and the note into a ANZ money bag and kept it there. He differentiated the float money and the petty cash in the cash registry in his evidence. Float money is $ 400, which is always kept among the money received from sales. At the end of the day, all the money received from the sale will be accounted and kept in a locker, only leaving $ 400 as float money. The money that the staff keep to meet their target on another day, as Mr. Deo did in respect of the second sale, would not be accounted until it is entered properly.
     
104. During the extensive cross examination by the learned counsel of the second accused person, Mr. Deo stated that he did not enter the second sale on 26th of December 2014 and manipulatively made it as entered on 18th. He stated that he entered the second sale on 18th of December 2014.
     
105. The learned counsel of the second accused person again cross examined the witness about the knives and the conversation the witness had with the second accused person. Mr. Deo once again stated that the second accused asked him for a strong knife that can cut tyres, and not a filleting knife. He explained that the dagger knife is only used for diving. It is used mostly for banging on the head of the fish or gutting. When he explained it to the second accused, he showed no interest for the dagger knife.
     
106. The thirteenth witness of the prosecution is Mr. Ravinesh Chand. He is a sales and Marketing officer at the AIMS rental car. He recalls that he received a call on his Manager's mobile phone [phone] from Ethan Kai, asking for a rental car on the 12th of December 2014. Ethan Kai called him from a mobile phone number 9217259. He then went to the Air Port and picked Ethan Kai. Mr. Chand took him to their yard for him to choose a vehicle. Mr. Kai got a white RV4 vehicle bearing registration number LR1705. He paid US $1200 as for the security. He signed the agreement and provided his Australian driving licence. Mr. Chand tendered the copy of the rental car agreement and a copy of the driving licence of Mr. Kai as prosecution's exhibits.
     
107. Mr. Chand stated that Mr. Kai gave his mobile contact on the rental agreement as 9217259. The number of the driving licence is 12845204. He first took the vehicle till 18th of December, but later extended it for another two days. The extension of the agreement was also done on the same agreement. He changed his rental vehicle to Registration No LR 1631. Mr. Chand identified Ethan Kai on the CCTV footages of the AMIS rental car office for 18th and 20th of December 2014. He identified the second accused as Ethan Kai who came and rented a vehicle from his office in open court.
     
108. Mr. Chand was not cross examined by the learned counsel of the first accused person. The learned counsel for the second accused person only asked few questions during the cross examination. He asked about the driving licence of Ethan Kai for which Mr. Chand answered that the company checked the details of it and was satisfied to rent him a vehicle.
     
109. The fourteenth witness of the prosecution is Mr. Imran Ali. He is the Branch Manager of Vinod Patel, Nadi. He stated that he can recall that he was approached by some police officers on 24th of December 2014. He was shown some items and inquired about them. Having clarified with the department, he stated that he then confirmed the Police that the items shown to him are the products sold by his shop. He then provided them two tax invoices, which stated the details of sales of those items. He further arranged their IT department to provide the police necessary CCTV footages in order to identify the person who bought those items. He has provided CCTV footages for 15th and 19th of December 2014.
     
110. Mr. Ali identified the two invoices and tendered them as exhibits of prosecution. One invoice was for the 15th of December 2014 and other one was for the 19th of December 2014. He identified the first three items stated in the tax invoice dated 19th of December 2014. Only one item, the Nicholson Hacksaw had the product code. Other items only have the international bar code. Mr. Ali explained that when the international bar code is scanned at the cashier, it will automatically pick the produce code. However, he stated that he needs to check them again to be more accurate. He tendered those four items, the Nicholson Hacksaw, Evacut Hass Flexx Hand blade 24t, Evacut Hass Flex Hand blade, 18t, and RR cutting Pliers as prosecution exhibits and Performer Hand Saw as MFI. Having identified those items and tax invoices, Mr. Ali stated in his evidence that these items were sold from his shop. He then identified the two CCTV footages as the video footages of his shop for the 15th and 19th of December 2014 respectively.
     
111. During his cross examination, Mr. Ali stated that the product codes are general ones and he needs to check other numbers indicated with the products in tax invoices to accurately confirm about the items. He further stated that he was not present, when these items were scanned at the cashier. He said that he checked the stock movement with the product code and then found the items have been sold. However, he stated that he could not specifically stated that his branch sold these items. There are 12 branches of Vinod Patel shops and these items could possibly be sold by one of them including Nadi branch.
     
112. In respect of the Handsaw frame and two handsaw blades, he demonstrated in the court that the two blades can be fixed into the frame after adjusting the frame with its screw.
     
113. The Fifteenth witness of the prosecution is Mr. Ravinesh Prasad, who is the Security Manager of the Sofitel Fiji Resort and Spa. He stated in his evidence that he could recall that officers of CID approached him with a search warrant on 26th of December 2014. They wanted to uplift documents pertaining to the guest who occupied room No 308. The name of the guest is Ethan Kai.
     
114. Mr. Prasad has provided the lock interrogation report, registration card for the room No 308 for the period of 12th of December 2014 to 20th of December 2014 and CCTV footages.
     
115. The lock interrogation report contains the number of times the guest has entered into the room using the swipe-in key card. He explained the procedure of obtaining the details of lock interrogation report. The report covers the period between 12th of December to 20th of December 2014. He then outlined the entries made into the room 308 on the 19th of December 2014.
     
116. In respect of the registration card, Mr. Prasad stated that upon arrival to the hotel, every guest of the hotel has to fill the registration card. It contains the details of the guest's name and address. It is a confirmation that a guest has occupied in a particular room in the hotel. He recognised the registration card for room No 308 and explained the details entered in by the guest Ethan Kai. He explained the reason for having two numbers in the column for room number in the registration card. Mr. Kai initially checked in for a period of 12th to 18th of December 2014. However, he has extended it till 20th of December 2014. He has given an address in Australia as his address in the registration card.
     
117. Mr. Prasad identified the CCTV footages for room No 308 for the 19th of December 2014. He stated that there is a difference of time in the CCTV footage and lock interrogation. He explained that this difference has been existing from time of the installation of two devices. If they tried to correct the time of these two devices, they will lose the data in them. He stated that this defect is due to the setting of different times in the CCTV and lock interrogation at the installation. The time difference between these two devices is only 8 minutes.
     
118. During the cross examination by the learned counsel for the second accused person, Mr. Prasad stated that he has no any formal training in computer programmes, but has obtained the knowledge of it through his experience. He has been in the field of hotel security since 2000 and rose to the post of Manager, Security from the post of security officer. He said that he found the difference of times between the CCTV and Lock interrogation through his own investigation after commencing his work on 8th of December 2014. He stated that he was not working with Sofitel when the systems were installed. The Hotel has 275 rooms and has approximately 400 employees and nearly 130 CCTV cameras around the hotel.
     
119. Mr. Prasad stated that he could not confirm or comment if the room 308 and 309 are inter connected. He further stated that he even could not confirm that it is possible that the room 308 and 309 are inter connected. He further stated that the person who left the room No 308 in the CCTV footage had either a purse or a cap in his hand.However, he could not accurately see that person was carrying anything in his hand when he was returning to the room.
     
120. The sixteenth witness of the prosecution is Sargent Jemesa Leve. He is attached to Cyber Crime Unit. He is an electronic and mobile phone evidence analyst. Sgt Leve stated his qualification and experience in this field of data analysis. He stated that he could recall that IP Aiyaz gave him three mobile phone numbers, 9217259, 8650131, 9926224 for analysis. He was given call charge records of those numbers.
     
121. Sgt Leve explained that one of the call charge records, which he was given by IP Aiyaz, is related to phone number 9926224, which has been marked as prosecution's exhibit 15. The second call charge record contains two numbers, one is 9217259 and other one is 8650131. The second call charge record has been marked and tendered as prosecution's exhibit 14.
     
122. The two numbers 9217259 and 8650131,were used in phone analysis software to portray call relationships by Sgt Leve. He made two link charts based on the result he obtained from the software analysis. In respect of 9926224, he did not make any link chart, but only established that the number 9926224 has called to number 8686777 seventeen times on the 18th of December 2014 and 7 times on the 19th of December 2014. He subsequently found that the number 8686777 is belong to Semiti Tukana. According to the ownership details supplied by the Vodafone Fiji Lts, he found that the number 9217259 and 8650131 belong to Ethan Kai and the number 9926224 belongs to Mohammed Shaheed Khan.
     
123. The first link chart is founded on the call details of 9217259. The first link chart marked and tendered as prosecution's exhibit No 49. According to the link chart, number 9217259 has called two times on 9999933, one time on 8020413, two times on 9993433, one time on 61455365955, one time on 8562055554000, one time on 856207788292, one time on 8562058858881. According to his findings, Sgt Leve stated that he found 9999933 belongs to AIMS rental car in Namaka. It is used by one Mohammed Akmad. The number 8562058858881 is the number of the consignor as stated in the Bill of Lading. He stated that he found the number of the consignor from the House Bill of Lading, that was provided to him by the investigation team. During his investigation, he found that this number belongs to Laos, Peoples' Democratic Republic. The country code of Laos is 856.
     
124. The second call link chart is for the number 8650131. The second call link chart is tendered and marked as prosecution's exhibit No 50. This chart is for the period of 12th of December to 18th of December 2014. According to the second link chart, Mr. Ethan Kai has called twenty-two times on number 9926224 during the period of 12th to 18th of December 2014. Three times on 12th of December 2014, three times on 14th of December, one time on 15th of December, five times on 16th of December, eight times on 17th of December and two times on 18th of December 2014.
     
125. During the cross examination by the learned counsel of the first accused, Sgt Leve stated that he has no documentary information stating that Mohammad Shaheed Khan is the owner of 9926224. He further stated that according to prosecution exhibit 15, this number has been registered under Khan's enterprises. He stated that his analysis is based on the information provided by the Vodafone Fiji Ltd and Investigation officer.
     
126. Sgt Leve has not seen Ethan Kai using these two numbers, 9217259 and 8650131, but the information given to him stated that the two numbers have been registered under Ethan Kai.
     
127. Sgt Leve was extensively cross examined by the learned counsel for the second accused person regarding the customer registration form of 9765438 and the ownership detail report. He stated that according to the customer registration form shown to him by the learned counsel for the second accused person, he could confirm that the last number on the first box of the ownership detail record has a valid identification number. However, he is not in a position to confirm that other four numbers in the same box, which have been registered under Ethan Kai have valid identification. He stated that he does not want to reconsider his opinion on the ground of his inability to confirm that other four numbers of the ownership detail report has valid identification numbers. He only stated that he could not confirm the valid identification for those numbers, but his evidence on call link chart are based on the reports given to him by the Vodafone Fiji Ltd.
     
128. Sgt Leve in his re examination stated that he could find two numbers in the driving licence of Ethan Kai. The first number is the driving licence number and the second is the card number.
     
129. The seventeenth witness of the prosecution is Inspector Dharmendra Dutt, the Crime Officer of the Border Police Unit at Nadi International Air Port. He was based in Lautoka Police Station during the month of December 2014.
     
130. IP Dutt recalls that he received a call to go Kahn's yard at Navutu while he was patrolling around 10 a.m. to 11 a.m. Upon arrival to Khan's yard, he was informed by Mr. Shaheed Khan about a bag. He was then taken to the place of the bag by Mr. Khan. He then uplifted the bag, which was left on the track of a bulldozer. He found some empty plastic containers and some other items inside the bag. He did not take the contents out of the bag and check it. He then took the bag to the Lautoka Police Station and handed it over to Cpl Daniel.
     
131. He described that the Khan's yard is a fenced place, where some vehicles are parked inside it. At the back of the yard, there were some old bulldozers which he believed were not used. The bag was found at the back of the yard on a track of a bulldozer. He found the bag 50 to 100 meters from the entrance of the yard. Apart from the plastic containers, he has found a ducking tape and one white plastic bag with the name tag of Vinod Patel on it.
     
132. I.P. Dutt identified the black bag in the court. He further stated that he saw many containers inside the bag and one duck tape as it was on the top of the containers. He could not recall the colour and the size of the duck tape. He did not take the duck tape out of the bag. He stated that the duck tape shown to him by the learned counsel for the prosecution is same as of the one he saw inside the bag.
     
133. I.P. Dutt could recall that he met Mr. Khan in the morning of that day at the Lautoka Police Station before he visited the Khan's yard. Mr. Khan was in the Police Station to report that a suspicious vehicle was going around his yard over a few days. I.P. Dutt later found that the vehicle is FU 871, and belonged to Fiji Revenue and Custom Authority. The said vehicle had been used by the CID officers from Suva.
     
134. IP Dutt stated during the cross examination by the learned counsel for the second accused, that the bag was not actually inside Khan's yard, but at the back of the yard. It was an open area which had no fencing at the back of the yard. He was accompanied to the place of the bag by Mr. Khan. He stated that he found the bag on the track of a bulldozer. He was taken to the bulldozer by Mr. Khan, where he found it. He unzipped the bag. He stated that the bag he saw in the court room is the same bag he found at Khan's yard. He did not mention any distinguishing features of the bag, but stated that it is still fresh in his memory as he later found that the bag was needed for a drug operation. He received a call in the same evening inquiring about the bag which he found at the Khan's yard. Until then the bag was considered as lost and found property. I.P. Dutt explained that the Police has procedure about the lost and found items. Once it is received to the Police Station, it is exhibited. However, he said that he was not present at the time the bag was exhibited. He further stated that he has not seen the bag after it was handed over to Cpl Daniel until he saw it in court. He has not taken any photographs of the bag at the time he found it, nor labelled it at the scene or at the police station. However, he stated that he is confident of identifying the bag as the same bag he uplifted from the Khan's yard.
     
135. In respect of the contents in the bag, I.P. Dutt stated that he opened the bag and found some plastic containers inside it. However, he did not know how many of them were inside the bag. The duck tape was right on top of the containers together with one plastic bag. The plastic bag had a name of Vinod Patel on it. He saw the writing on the plastic bag at the time he opened the bag. He stated that he did not make any note of his findings, other than the statement he made to the police on 22nd of December 2014, that was two days after he found the bag at Khan's yard. He has not seen the bag since he handed it over to Cpl Daniel on the 20th of December 2014 at the Lautoka Police Station.
     
136. I.P. Dutt explained the difference found in his hand written statement and the typed version of his statement. He stated that in his hand written statement he intended to state "some empty containers". However, instead of that it has written as "one empty containers". It has been typed as "one empty container" in the typed copy of his statement. He further explained that he has stated in his statement that he found few other items in order to mention other items that he saw inside the bag. He has not mentioned that he found "plastic containers" but only stated empty containers.
     
137. The eighteenth witness of the prosecution is Mr. Jone Savou, who was the Officer in Charge of the Lautoka wharf. He explained the procedure of receiving and releasing of goods coming through the vessels to the Lautoka wharf. It is the responsibility of the shipping company or the shipping agent to provide the custom the principle manifest in an electronic format before the arrival of the vessel to Lautoka. They have to provide the hard copy of the manifest, once the vessel is arrived. The Custom them stamps and endorses the manifest which normally contains three copies. One copy goes to the Custom Authority, one goes to Bio Security Authority, and the third one goes to the Shipping line concerned. The custom brokers are then required to collect all the relevant documents in order to prepare the custom entry on behalf of the shipping agent. The custom entry is the document use to clear goods or consignment, which is required under the Custom Regulations. The custom entry is normally called as Single Administration Document (SAD). The Custom Authority will process the SAD once it is lodged by the custom broker. The system will flag the entry according to the information provided in it.
     
138. Mr. Savau recalls that he was instructed by his Superior in Suva on 21st of December 2014, to arrange a team of the custom officers and prepare for an operation with the police at the Lautoka wharf. He then formed a team and was at Lautoka wharf at 8.00 a.m. The police team arrived at 1.00 p.m. The custom's team constituted custom officers namely, Waseroma Kalouniviti, Viliame Vakamoce, Miriama and Lisi. The Police team was consisted of I.P. Aiyaz, Sgt Epi, Cpl Nilesh and Cpl Amani.
     
139. The Police team handed him over the search warrant together with custom entry and Bill of Lading. There were some members from Transnational Crime Unit as well. They all had a briefing in order to plan the operation and role of each members during the operation. Mr. Savou, Mr. Waseroma and I.P. Aiyaz formed a team, which entrusted with initial opening of the container and other consignments. The rest were to do the recording and photographing and also assist in the searching. They kept a forklift standby for the operation. During the briefing, he was informed by TCU officers, that they were actually looking for counter-banned goods inside the container. Mr. Savou advised one of his officers to seal the identified container with the custom seal for security purposes and identification. It is a white colour seal.
     
140. Mr. Savou stated that he broke the custom seal and the supplier seal after identifying the relevant container with the details provided by the police. He identified the custom seal and the number on it. He tendered the broken custom seal as prosecution's exhibit No 51. Mr. Savou explained the purpose of the seal of the shipping company. It is for the security purpose. He stated that the seal he found in the container was the same one mentioned in the Bill of Lading. The seal number stated in the Bill of Lading is TB 11173017. The container number is TGHU0623796. He stated that he found these two numbers on the container. He was not able to properly identify the number of the seal as it was a bit rusty and also without his reading glass, when he was shown the seal of the container during the course of the evidence. He gave the both seals to IP Aiyaz after removing them. He then opened the container.
     
141. Having opened the container, he then asked to remove the first wooden box with forklift. Mr. Savou and two other officers who were designated in opening of the container, opened the wooden box. Accordingly, he found 28 tyres with rims and two more tyres as surplus. They then tried to remove the tyres from rims to search the cavities and space, but failed to do so. At one point, Mr. Mohammed Shaheed Khan, who was stated as the owner of the consignment also tried to remove the tyres, as he claimed that he is a technician. His name is in the SAD as the owner/consignee. They then checked the second wooden box and found a quad bike with no identification mark on it. The team searched the bike for any identification, but could not find any on it. They checked the third wooden box and found another quad bike which also had no identification number or mark on it. They searched the bike, but found nothing. They then moved to the last and fourth wooden box, where they found another quad bike that had an identification number as stated in the SAD. They found nothing in the third quad bike. He stated that SAD has two identification numbers for the first two bikes, but they were not actually on the bikes. He identified the commercial invoice provided by the owner with the SAD. He stated the identification numbers in the commercial invoice for the bikes matched with the numbers as stated in the SAD.
     
142. Mr. Savou, then stated that they then took the 30 tyres with rims to a tyre centre in the town to check them. He was accompanied by IP Aiyaz, Cpl Amani, custom officer Waseroma and Mohammed Shaheed Khan to the tyre centre. Three custom officer, Villiame, Lisi and Miriama with Sgt Epi and Cpl Nileash were left with the container at the wharf. Having removed the rims from the tyres, they found nothing inside it. They then brought them back to the wharf.
     
143. The team then decided to cut open the tyres of the three quad bikes. IP Aiyaz cut the tyres in the presence of Mr. Savou and the team. They found nothing inside the tyres of the first two quad bikes. However, he found 4 packs of plastics, containing some substances inside the first tyre of the third quad bike. He found seven of same kind of packets inside the second tyre, seven more inside the third tyre and six packets inside the fourth tyre. All the packets were given to IP Aiyaz as they found. He conducted a field test and later found that they all tested positive for heroin. The model of the third quad bike is Polaris. It was packed in the fourth wooden box and placed at the back of the container after other three wooden boxes.
     
144. Mr. Savou handed over all the parcels found inside the tyres of the third quad bikes, two seals, and the tired quad bike to the police team. Those items were entered into a cart note for handover. Two remaining bikes were later taken over by the Police. The container still remains in the wharf.
     
145. During the cross examination by the learned counsel of the first accused person, Mr. Savou stated that the first accused has committed himself by declaring him as the owner of the goods in the C45 Form. Though he has not paid the custom duty, he is the owner of the goods as he has declared it.
     
146. Mr, Savou, stated that the items supposed to be contained in the container were one used Yamaha motorcycle, one used ATV13A1 motorcycle, one used ATV13A motorcycle and 28 used tyres with wheels. He further stated that the commercial invoice, which has been marked as prosecution exhibit 23, has different models of motor bikes than those mentioned in the Bill of Lading. He testified that all these documents have mentioned about motorcycles but not quad bikes. When he was asked by the learned counsel, whether the first accused liable for something which he has not ordered, Mr. Savou stated that he cannot comment on the liability. He stated that he could not comment if the first accused received something which he has not ordered. It was a matter between the importer and the shipper.
     
147. In respect of the seal, Mr. Savou restated that he broke the two seals. The shipper's seal was not soft as it took sometime for him to break it. He stated the first accused person was present when he broke the two seals. Mr. Savou continuously denied that bolts and nuts in the container were rusted and stated that he did not identify any rusted part of the container during the search. He stated that the container has some rust after inspection of it, but maintained his position that he did not notice any rust on the day of the examination. He stated that he could observe that some bolts and nuts looked rusty when he was shown a photograph of the container, which was taken a day after the search. However, he reaffirmed that the container was in a good condition when it was opened by him with other officers.
     
148. Mr. Savou further stated that he has never experienced an incident where a container was opened without breaking or damaging the seal. When he was shown two video demonstrations, he conceded that a container could open, but again stated that when he opened, he did not notice such damages or changes in the nuts or bolts of the container.
     
149. Mr. Savau said that the first accused helped them in removing tyres from the rims, but failed. However, he was not involved in removing of rims at the tyre centre as all of them were done by the owner of the tyre centre. First accused offered his help when the tyres of the quad bikes were cut and opened, but the Police asked him to stand away.
     
150. Mr. Savou stated that he did not leave the site of search while they were examining the container and the wooden box. He went to the tyre centre with IP Aiyaz, Cpl Amani and Waiseroma with the tyres, while leaving the other items found from the container at the shed of the wharf. He further stated that all the doors in the big shed were closed on that day as it was a Sunday. Only one entrance was opened for them to take the consignment into the shed. He said that he has not mentioned about the closed doors in his statement to the Police. He stated that he could not recall the exact time of going to tyre centre when he was cross examined by the learned counsel of the second accused. But stated that he can only say that it was afternoon.
     
151. The witness disagreed with the time shown on the photographs which he tendered as prosecution exhibit 52. The time shown in the photographs were early morning, but the actual search took place in the afternoon. He further stated that he has not mentioned in his statement to the Police, that he opened the seal and the container. He also stated that he has not mentioned that the first accused was present at the time of opening of the container in his statement. Mr. Savou was cross examined about the amendments made on his statement. He stated that he made those amendments in a blue colour pen and put his initials in front of each amendment. He could not explain how some of the amendments appeared in black colour in the statement.
     
152. The nineteenth witness of the prosecution is Waseroma Kalouniviti. He is a Custom Officer and works at the Lautoka Wharf. He was part of the team of custom officers who conducted the search in Lautoka wharf on the 21st of December 2014 with the Police team lead by IP Aiyaz. His team was led by Officer - in - Charge Jone Savou. The operation started around 1.40 p.m. with the briefing. He was part of the team entrusted with handling of evidence. Jone Savou and IP Aiyaz were the other members of the team. They first made the verification and identification of the container with its seal numbers. He stated that he found the two seals were in tact. He was present when Mr. Savou broke the seals and opened the container. He stated that the first accused, whom he identified as the consignee of the container was also presenct at the time of opening of the container.
     
153. Mr. Waseroma was actually involved in dismantling of the wooden carts that were found inside the container. He was given the Bill of Lading for his reference when they opened and inspected the container. He explained the weight and the measurement of the consignment as stated in the Bill of Lading. He explained that the actual capacity of the container is normally stated on the container. He has found four wooden carts inside the container, each one marked with numbers. They have uploaded the carts, one after another. They used crowbars, hammers and pinch bars to dismantle the carts. He was assisted by Jone Savou, IP Aiyaz and one Tevita Bukalidi, one of the custom officers who was presented at the wharf as standby.
     
154. They have found 28 tyres with rims inside the first wooden cart. The tyres were in different sizes and they were sorted out according to their sizes. They tried to demential the tyres from the rims, but failed to do so. At one point, the first accused also tried to remove the tyres from the rims, he too failed.
     
155. The witness stated that he could not clearly recall the exact sequence of the events that took place during the search. He stated that he could not recall whether they checked the remaining three wooden carts before they left to the tyre centre. He was part of the team of IP Aiyaz, Jone Savou, Mr. Shaheed Khan, which took the tyres to the tyre centre. He stated that some other officers were also present there. While they left to the tyre centre, remaining wooden carts were left inside the warehouse. At the tyre centre, all the tyres were dislodged from their respective rims. Upon checking all the tyres, they found nothing inside it. The team then brought the tyres back to the wharf.
     
156. At the wharf, the team recommenced the search of other three wooden carts. They found three quad bikes inside the three wooden carts. All the three bikes were checked by the team that included Mr. Waseroma, but found nothing. He identified the respective photos in the prosecution exhibit 52. They then decided to rupture the tyres of the three quad bikes and check inside them. According to the witness, they have found nothing inside the tyres of first two quad bikes.
     
157. Mr Waseroma stated that he and his team found 4 parcels of plastic wrapping in a brick shape size inside the first tyre of the third quad bike. Six more such parcels were found inside the second tyre, and seven of such parcels were found in each of the third and fourth tyres. IP Aiyaz was allowed to handle the parcels found in order to preserve the evidence. He placed them on the evidence table and sorted them into four groups and conducted a field test to tested the substance found inside those parcels.
     
158. He stated that once the parcels found inside the tyres of the third quad bike, they issued a detention note. A cart note was also made in order to hand over the consignment to the police. He then put the custom seal on the container and locked it with a padlock. He stated that the container still remains in the wharf.
     
159. When Mr. Waseroma was cross examined by the learned counsel for the first accused, he stated that according to his recollection of memory the first accused person was present at the opening of the container and also through out the search. He stated that he has not mentioned about the presence of the first accused person in his statement given to the police. He testified that the first accused also tried to remove the rims from the tyres and also assisted them at the tyre centre.
     
160. He stated that he has no photographic memory of the event that took place during the search. Mr. Waseroma stated that there is no mention about the opening of the container by Mr. Jone Savou in his statement. It has only been stated that the container was properly sealed before opening. He explained that he may possibly have mistaken of not stating that Mr. Jone Savou broke the seal in his statement. Mr. Waseroma could not properly identify all the people who were in the photographs marked as prosecution exhibit 52. He identified few of them. According to his evidence, few dock workers were present during the search as they wanted to use the Port Authority's equipment for the movement and opening of the container and the wooden carts. He could not recall the exact number of such workers who were present during the search. He stated that it was a Sunday and the inside the shed was busy as people were moving during the search. He pointed out that it was not an easy task to cut the tyres with a cutter as used by IP Aiyaz. He further stated that IP Aiyaz was wearing gloves while he was cutting the tyres and handling of the parcels found inside the tyres of the third quad bike. When he was asked about the testing of the parcel by the learned counsel of the second accused person, he stated that he saw the field testing on the parcels found inside the all four tyres was conducted by IP Aiyaz.
     
161. The twentieth witness of the prosecution is Cpl Sekove Vuniwaqa. He is attached to the Transnational Crime Unit under the Intelligence Branch of the Fiji Police. He joined the Fiji Police in 2001. He has undergone a number of local and foreign training on Police intelligence and police surveillance.
     
162. Cpl Sekove recalls that his team was briefed by their Operation Commander, SP Abdul Khan and was tasked them to conduct a surveillance operation on an Asian national and his local partner. His team contained eight officers. The said Asian national was scheduled to arrive in Nadi International Airport on the 12th of December 2014. He was waiting at the Exist end of Nadi International Airport on the 12th of December 2014 and his other colleagues were posted at the primary line in the Airport. He then received a call from his colleague and he observed the said person of interest with the same description given to him by his colleague. The person of interest headed towards the car park of the airport and boarded into a rental car bearing registration No LR 1705. He then headed outside the airport and draw towards Denarau and went to Sofitel Fiji Resort and Spa.
     
163. The Person of Interest checked into room No 308 of the Sofitel Hotel. Cpl Vuniwaqa has managed to obtain the personal details of the person of interest from the hotel, including his name. Cpl Vuniwaqa with his colleagues had been monitoring the person of interest at the Hotel until 14th of December 2014. Cpl Vuniwaqa stated that he received a call from one of his colleagues on 14th of December 2014. He then waited for the person of interest at Namaka, Nadi. He observed him driving towards the car park of the Nadi International Airport. He followed the person of interest and observed that the person of interest walking across the road and getting into another vehicle which was parked at the other side of the car park. He has observed that the vehicle registration number of the said vehicle as KEL. The person of interest had a conversation with the driver of the said vehicle. It lasted for about 15 to 20 minutes. Subsequently, the person of interest had gone back to his vehicle and drove it towards Nadi town. Cpl Vuniwaqa then followed the vehicle KEL, which came towards Lautoka. He observed the registration number of the vehicle driven by the person of interest. It was LR 1705.
     
164. Cpl Vuniwaqa later found that the vehicle registration KEL is registered under Khan's Enterprise Limited. He has obtained these details from the Land Transport Authority. Khan's Enterprise Limited is based at Navutu, Lautoka. He was then asked to monitor the person of interest and his contacts from the Total Service Station, Navutu, Lautoka.
     
165. On the 17th of December 2014, Cpl Vuniwaqa received some information that the person of interest was driving towards Lautoka. He came to the Total Service station at about 1.p.m. and was waiting there. He observed that the vehicle bearing LR1705 coming into the service station and parking it at the left hand side of the service station. The vehicle was parked about 15 meters away from the place, where the witness parked his vehicle. He observed that after a while, an Indo Fijian person walking past the service station and boarding to vehicle No LR 1705. He sat on the passenger seat of the vehicle LR1705. He saw the Indo Fijian person was coming from the yard behind the service station, which is the yard of Khan's Enterprises Ltd. They had a conversation for about 15 to 20 minutes and then the Indo Fijian person walked towards the service station, where he bought a bottle of juice. He has then gone back to his yard. The person of interest then drove back towards Nadi. Cpl Vuniwaqa was inside his vehicle and monitored them from there.
     
166. Two or three hours later on the same day, Cpl Vuniwaqa received a call again and went back to Total Service Station. The person of interest came back to the service station in LR 1705 and parked in front of his vehicle. The same Indo Fijian person came out from his yard and walked towards LR 1705. He then boarded and sat on the front passenger seat. After about 5 minutes time, both of them got down from LR 1705 and walked behind the Total Service Station. Cpl Vuniwaqa managed to get some photographs of them at that time. They came back after about 15 to 20 minutes to LR1705. The Indo Fijian person then walked back to his yard and person of interest drove back towards Nadi.
     
167. Cpl Vuniwaqa again received a call from one of his colleague around 12.30 p.m. on 18th of December 2014. He accordingly went to the Total service station and parked his vehicle at the side of the car wash. That is the left hand side of the Total service station. He waited there for about one to two hours. He then saw a vehicle registration No LR 1631 was driven into the service station and parked there. The person of interest was the driver of the said LR 1631. After few minutes, he saw the same Indo Fijian person walking up to the vehicle with some papers in his hand. He boarded and sat on the front passenger seat of LR 1631. He was inside the said vehicle for about 10 to 15 minutes and then walked back to his yard. The person of interest then drove back towards the side of Nadi. Cpl Vuniwaqa said that he monitored them closely and managed to take photographs of them. He handed those photographs to his Operation Commander SP Abdul Khan. Cpl Vuniwaqa identified those photos which he took at the Total service station. He tendered six photographs which he took at the Total Service station as prosecution's exhibit 53.
     
168. Having identified the photographs and the time in it, Cpl Vuniwaqa stated that the Indo Fijian person stayed in the LR1631 with the person of interest for about an hour on the 18th of December 2014. He has then walked back to his yard with no documents in his hand. On the same day, Cpl Vuniwaqa received another call from one of his colleagues. He once again went back to the Total service station at about 7p.m. He saw vehicle LR1631 driven back to the Total Service Station and was parked there. In a few minutes, the same Indo Fijian person came and got into vehicle LR1631. They were in a conversation for sometime. The Indo Fijian person then walked back to his yard and the person of interest drove back towards the direction of Nadi. Cpl Vunwaqv observed and monitored them from about 10 to 15 meters away from them.
     
169. Cpl Vuniwaqa received a call again on the 19th of December 2014. He then drove his vehicle towards the Fiji Electricity Authority's car park at Navutu. It is situated opposite the yard of s of the Khan's Enterprises Ltd and Total Service Station. It is on the other side of the King's Highway. He came to the car park around 9p.m. and parked his car near the entrance of the car park. After about 10 minutes, vehicle LR 1631 was driven into the car park and was parked about 20 meters away from where Cpl Vuniwaqa parked his vehicle. Vehicle LR1631 was parked under flood light. The person of interest then got off from the vehicle LR1631 and opened the back door of the vehicle and got a bag. He then walked towards the main Highway, carrying the said bag. He crossed the road, leaped over the drain and followed the fence of Khan's enterprise Ltd and disappeared. The person of interest reappeared in about 15 to 20 minutes and came towards the FEA car park. He got into his vehicle and drove back towards Nadi. He was not carrying the bag on his way back to the car park.
     
170. Cpl Vuniwaqa stated that there was one flood light at FEA car park. He found two other street lights along the drive way to the Kings Highway. Khan's yard also had flood lights and they were facing the main road. Cpl Vuniwaqa had seen the person of interest several times prior to this incident as he has been following and monitoring him since 12th of December 2014 from the Nadi International Airport. The person of interest is a slim built person and had straight hair. He was about 5 ft tall.
     
171. During the cross examination by the learned counsel for the first accused, Cpl Vuniwaqa stated that the Total service Station is open for 24 hours for the public and everyone could see what one does behind the Total Service Station.
     
172. Cpl Vuniwaqa stated in his cross examination by the learned counsel for the second accused, that he was alone at the FEA car park. He drew a rough sketch plan of the FEA car park and pointed out the place where he parked his vehicle and the place where the person of interest parked his vehicle. In the sketch plan he further pointed out the direction the person of interest walked. He explained that he had to hide himself inside his car, when the person of interest walked passing him. However, he stated that he clearly saw the person of interest when he got off from his vehicle and took the bag. The person of interest parked his vehicle just beside the flood light in the car park. Apart from his vehicle and the vehicle of the person of interest, there was another vehicle parked in the car park.
     
173. Cpl Vuniwaqa explained the reason for making two statements. He stated that the first statement was only focused on the events of his observation at the FEA. His second statement covers all of his surveillance duties. He testified that the time he observed the person of interest driving into the FEA car park was after 8.p.m. He further testified that he had no log book with him but he made his notes of his observation. He explained that he entered his observations into his log book once he returned from his surveillance duties. He has to destroy the notes as it is the procedure for undercover operations.
     
174. Cpl Vuniwaqa stated that he did not take any photographs of the person of interest or his vehicle at FEA car park as he did not want to expose himself or the operation. He felt that it was risk to take such photographs at that point of time. He explained that the officers who carries out such under cover operation take photos only if they are satisfied that there is no risk of exposing themselves or the operation. Cpl Vuniwaqa stated that the light post at the car park was working and had sufficient lighting for him to identify the person of interest. He pointed out the place of light pole when he was referred to a photograph of the FEA car park by the learned counsel for the second accused.
     
175. The prosecution recalled Mr. Edwin Murti, who is the fourth witness of the prosecution. He stated in his evidence that he had correspondences via e-mails with his counterpart agent in Bangkok, Thailand in respect of this shipment. He stated that he started this e-mail correspondence with the MSI Logistic Ltd, after the Police visited his office on 24th of December 2014. He stated that he corresponded with MSI Logistic on the ground of protecting the company's business interest. He further stated that the General Manager of MSI Logistic Ltd, wrote him in one of the e.mail correspondences that the consignment was stuffed into wooden carts by their partner in Laos and confirmed them that the shipper is a reliable person. The Laos partner of MSI Logistic is VTS Logistic (Lao) Co. Ltd. Mr. Murti further stated that the General Manager of MSI inquired of him about the seal on the container.
     
176. The twenty-first witness of the prosecution is Inspector Terotuma. He is the officer - in-charge of crime scene office of Lautoka Police Station and oversees the Western Division. He recalls that IP Daven handed over a black bag for him to photograph and hand it over to the exhibit room. He then photographed the bag in his office and kept it there on Saturday and Sunday as the exhibit room was closed and locked during the weekend. He stated that his office is open and police officers in the police station has access to it. Cpl. Daniel was present when IP Daven handed him over the bag. He has asked Cpl Josateki Seuseu to photograph the contents in the bag and return it to the officer to be exhibited. He did not open the bag or check what was inside. He could not recall the size of the bag.
     
177. IP Terotuma was instructed to be a part of the team of the police officers from CID and take photographs of the search operation they conducted at the Lautoka wharf on the 21st of December 2014. He has taken 19 photographs at the wharf and then accompanied the officers to a tyre centre in the town. There he found that the battery of his camera was getting low. He then called Cpl Josateki and advised him to continue the photographing of the remaining parts of the search. He identified 19 photographs that he took during the search. He explained that the time stated in the photographs does not reflect the actual time of the search. He stated that he started to take photographs around 2.30 p.m. and continued till 5.00p.m.
     
178. The learned counsel for the first accused person did not cross examine this witness. The learned counsel of the second accused person cross examined this witness on various grounds. The learned counsel cross examined IP Terotuma about the omissions in his statement made to the Police. He stated that he has not mentioned in his statement to the Police that IP Dhaven gave him the bag in the presence of Cpl Daniel. He explained the reason for keeping the bag in his office till Monday. He stated that he did not photograph or check inside of the bag. He did not label or tag the bag. He stated that the bag was considered as a lost and found property at that time. He was waiting for an investigation officer, to be appointed, so then the investigation officer can check the bag and exhibit it. IP Terotuma explained the procedure followed in the exhibit room and the access to the exhibited items in the exhibits room. IP Terotuma stated that the bag was in his secured office. He stated that he has not mentioned about the secured office in his statement.
     
179. IP Terotuma stated that he is giving evidence from his memory of the event that took place in December 2014. He stated that he used to call the Officer in Charge of the Police Station as IP Dhaven and he is now based at the Border Police Station. IP Terotuma stated that the manner and the way the police handled the bag was sloppy. However, he stated that the bag could not be lost and misplaced until Monday.
     
180. The twenty second witness of the prosecution is Cpl Josateki Seuseu. He is attached to the Forensic Unit of the Fiji Police and currently based at Lautoka Police Station. He stated that he photographed the search operation conducted by the team of CID officers and the Custom officers at the Lautoka Wharf on 21st of December 2014. He has taken over from IP Terotuma, who photographed the first part of the said search. He identified the photographs he took during the search. He explained these photographs during his evidence in chief. Cpl Josateki is the photographer who photographed the searching and findings of the third quad bike, where the search team found 24 parcels of suspected substance inside the four tyres of the said quad bike.
     
181. Cpl Josateki then took photographs of Khan's yard and of the place where IP Dharmendra Dutt found the black bag on 24th of December 2014. He took seven photographs of the Khan's yard and tendered them as prosecution's exhibit No 55.
     
182. Cpl Josateki was instructed by Detective Inspector Aiyaz to take photographs of the black bag and its contents on the 22nd of December 2014. He took the contents of the bag out and then sorted them out and took photographs of them in the crime scene office of Lautoka Police station. Cpl Nilesh and IP Terotuma were present at that time. He identified the bag from the brand label of "X-Trail". He took twelve photographs of the bag and its contents. He tendered them as prosecution's exhibit No 56. He identified following items as the contents that he found in the bag.
     
     1. One hacksaw frame with blade,
     2. Blue handle saw knife,
     3. One pilers,
     4. 4 roles of tapes,
     5. A packet of garbage bags,
     6. A role of black garbage bag,
     7. A packet of hand gloves,
     8. A black box containing knives,
     9. Two sand and dry bags,
     10. Five big containers,
     11. Two small containers,
     12. Two plastic bags with the label of Vinod Patel on them,
         
183. Cpl Joseteki identified these items during the course of his evidence. He stated that they were the items that he found inside the black bag. After taking the photographs of the bag and the contents, he packed them again and handed it over to Cpl Nilesh. He gave the photographs of the bag and the contents to the investigation officer. Cpl Joseteki saw the bag and the contents again at the Sabeto Police Station, as he dusted the items and the bag for finger print. However, he found no finger prints of the second accused person.
     
184. The learned counsel for the first accused person did not cross examine Cpl Joseteki.
     
185. Cpl Joseteki stated that he took these photographs at the Forensic office of the Lautoka Police station. He found the bag inside the room. He stated during the cross examination of the learned counsel of the second accused person that he made his statement on the 25th of December 2014. He then said that he did not mention in his statement that IP Terotuma and Cpl Nilesh were present at the time of photographing. He explained that the statement he gave to the police is the general description of his role in this investigation. Cpl Jesoteki stated that the photographs that he took helped him to recall the events that took place on 22nd of December 2014.
     
186. Cpl Jesoteki stated that there were no labelling or tagging done by the police on the bag or the contents found in the bag. He further stated that he did not label or tag any of them after the photographing. When he was shown each of the items that he identified as the contents he found in the bag, he stated that their barcodes, identification numbers or any unique identification have not properly been photographed, apart from the black box of knives. The product code of the black box of knives is visible as 245. However, he stated that he can recall and identify these items as the contents which he found and photographed on the 22nd of December 2014.
     
187. The twenty-third witness of the prosecution is Cpl Nilesh, who is currently based at the Cyber Crime Investigation Unit. He recalls that he received instruction from his superior officer to be a part of an investigation team led by IP Aiyaz on the 20th of December 2014. The team consisted with IP Aiyaz, Sgt Epi and Cpl Amani. He accompanied the team to Namaka, Nadi, where they were given instruction and briefing of the investigation. Subsequent to that, Cpl Nilesh and the team went to Lautoka, where they arrested the first accused, Mr. Khan at his resident. IP Aiyaz and Sgt Epi went and brought the first accused into the vehicle. They then went to Border Police Station at the Nadi Airport. Cpl Nilesh then departed from his team and headed to Rakiraki in order to check one witness namely Semiti Tukana.
     
188. Cpl Nilesh joined the team on the following morning at Sabeto Police Station. He and his team then went to Lautoka Wharf for search. The first accused person also accompanied them. Mr. Jone Savou, the officer in charge of the Lautoka Wharf, Mr. Waseroma Kalouniviti, a custom officer and IP Terotuma of Lautoka Police station joined with them at the wharf. Cpl Joseteki later joined them. Mr. Savou led them and identified the relevant container bearing the number of TGHU0623796. He observed the container seal number, which is TB11173017. The custom seal number is 07258. Mr. Jone Savou broke the seals and opened the container. Once it was opened, they found four wooden boxes inside the container. All the boxes were numbered as C 4/4, C3/4, C2/4, and C1/4. Cpl. Nilesh explained that they opened the four boxes one after the other and found 28 tyres with wheels in the first box. Three quad bikes were found inside the other three boxes, in which the first two quad bikes found in the second and the third box had no identification numbers. Having failed to remove the tyres from wheels, IP Aiyaz, Mr. Jone Savau and two other officers went to a tyre centre in the town to get it done. He stated that the first accused person also accompanied them. Cpl Nilesh, Sgt, Epi and other custom officers stayed at the wharf with the quad bikes and the boxes.
     
189. After the return of IP Aiyaz and the team, that went to the tyre centre, they begun to cut open the tyres of the quad bikes. Cpl Nilesh stated that nothing was found inside the tyres of the first two quad bikes. But they found four parcels containing eleven bars inside the first tyre of the third quad bike. Seven parcels containing 28 bars inside the second tyre, they further found seven parcels containing 27 bars inside the third tyre and six parcels containing 14 bars inside the fourth tyre. Cpl Nilesh stated that all together they found 80 bars inside the four tyres of the third quad bike, which had a VIN number of 4XAGJ50A9527663106.
     
190. Subsequent to the search at the wharf, Cpl Nilesh accompanied by Cpl Epi and the first accused went to the house of first accused. He then went to Khan's yard at Navutu. At the Khan's yard, Cpl Nilesh uplifted some e-mails and documents attached to them. These documents were given to him by the wife of the first accused person. He prepared a search list for these documents. He tendered the documents he uplifted at the Khan's yard as prosecution's exhibits during the course of giving evidence.
     
191. Cpl Nilesh stated that he was instructed by IP Aiyaz to proceed to Lautoka Police Station and check about a black bag with IP Dharmendra Dutt. He then met IP Dharmendra at the Lautoka Police Station. He was shown the black bag by IP Dharmendra at the crime scene office. He was then instructed by IP Aiyaz over the phone to take the bag and photograph the contents inside it. Cpl Nilesh then requested Cpl Joseteki Seuseu the Police photographer to photograph the bag and the contents therein. Cpl Seuseu accordingly took the contents out of the bag and photographed them. Cpl Nilesh identified the bag from the batch on the front side of the bag in court room. Cpl Nilesh then identified the items that he found inside the bag one by one.
     
192. Subsequent to the photographing of the bag and its contents, Cpl Nilesh took the bag to Sabeto Police station and handed it over to IP Aiyaz .He then saw the bag and its contents again on 28th of December 2014 when he introduced it to Mr. Ethan Kai, during his caution interview. Sgt Epi was the witnessing officer of the caution interview. He was present when Cpl Amani arrested the second accused on 22nd of December 2014. He further explained that during the caution interview of Ethan Kai, he introduced some photographs of the first accused and the second accused seen together.
     
193. Cpl Nilesh stated that the first accused was not dragged into the vehicle when he was arrested in the night of 20th of December 2014 when he was cross examined by the learned counsel for the first accused. However, he is not aware whether he volunteered when he was arrested by IP Aiyaz, as Cpl Nilesh stayed inside the vehicle at that time. He further stated that the first accused assisted them in removing tyres from wheels at the wharf. However, he did not assist the police when they cut the tyres of three quad bikes. He cooperated with the police when he was taken to his house and yard. His wife voluntarily gave the required documents when she was asked for them.
     
194. Cpl Nilesh explained the reason of not stating the opening of container at the wharf in his statement. He stated that his statement focused only his role in the investigation. In his statement he has only stated that the container was opened. He explained that the container could not be opened without breaking the seals of it.Cpl Nilesh stated in his evidence that the two seals were intact when they opened the container. He further stated that he did not see any photographs of Mr. Jone Savou was breaking or opening the container.
     
195. During the cross examination by the learned counsel for the second accused, Cpl Nilesh stated that the two bags which took from the second accused at the time of his arrest, was kept in the Sabeto Police Station. He referred to some clothing items that he took out from one of the bags of the second accused during his caution interview. He stated that the two bags were in the Sabeto Police station, but he could not recall what was inside the bags. He further stated that he did not find any inventory made in regard to the contents of these two bags.
     
196. Cpl Nilesh stated that there were no labelling, tagging, or marking done by the police on the bag or the items when he saw the bag at the Lautoka Police Station. He further stated that some of the items found inside the bag were in general nature and are available in any normal shop or hardware around the city. However, he stated that he is hundred precent sure that the bag and the items that he saw and identified in the court is the same to what he saw in the Lautoka Police Station on 22nd of December 2014. When he was asked by the learned counsel as to whether some police officers may have not fulfilled their duties properly during this investigation, he stated that he could not make any comment . He further stated that they all are experts in their own field.
     
197. The last witness of the prosecution is IP Aiyaz, who is the investigation officer of this matter. He is an officer with many local and foreign training and also have received commendations from his superiors for his role in many successful investigations. He explained that he was instructed to form a team of officers to conduct this investigation on the 20th of December 2014. He formed a team with Sgt Epi, Cpl Nilesh, Cpl Amani and came to Namaka, Nadi, where they were briefed by the officers from the Intelligent Unit and were handed over some documents and surveillance photographs. Having identified the suspects of the investigation, he and his team arrested Mohammed Shaheed Khan, the first accused person in the night of 20th of December 2014 at his residence in Lautoka. The first accused was then taken to Nadi Police Station, where his caution interview was commenced. It was suspended at around 12.55 a.m. on the 21st of December 2014. The first accused was taken to Sabeto Police Station in the morning of 21st of December 2014 and his caution interview was recommenced there. He then went to Lautoka wharf with his team and the first accused. He then formed a search team with the custom officers including Mr. Jone Savaou, Mr. Waseroma Kalouniviti, Detective IP Terotuma of Lautoka Police Station. The search team conducted a search in the alleged container.
     
198. In the meantime, IP Aiyaz has gathered information about the second accused from the Sofitel Hotel, Nadi. He found that the second accused has checked into room No 308 of the Sofitel Hotel. The name of the person who checked into the room No 308 was Ethan Kai.
     
199. After they have verified the container, its number and the seal number with the documents given to him by the Intelligent Officers, I.P. Aiyaz stated the Mr. Jone Savou broke the two seals of the container. Mr Savou then opened the container in the presence of IP Aiyaz and the team including the first accused person. He explained that he had the House Bill of Lading, Invoices and C45 Form with him at that time. The number of the container is TGHU0623796. The number of the seal is TB11173017. IP Aiyaz explained what he found inside the container. There were four wooden boxes. He then explained the manner in which they unloaded the wooden boxes from the container and dismantled one by one. He found 28 tyres with wheels in the first box and three quad bikes in the other three boxes. Two quad bikes found in the second and the third boxes had no identification numbers but the quad bike found in the fourth box had VIN number. He further explained the photographs that were taken at the wharf during the search. Having failed to remove the tyres from the wheels found in the first box and found nothing in the three quad bikes, IP Aiyaz took the 28 tyres with wheel to a tyre centre at the town, got the tyres removed from the wheels and checked inside of it. He was accompanied by Mr. Jone Savou, Cp Amani and the first accused person.
     
200. Upon returning from the tyre centre, he decided to cut and open the tyres of the quad bikes. He found nothing inside the tyres of the first two quad bikes, which had no identification numbers. However, he found seven parcels containing 28 bars inside the first tyre of the third quad bike. Six parcels containing 14 bars were found inside the second tyre and altogether found 80 bars inside the four tyres of the third quad bike. The length of a bar was about 15.5 cm and 10.5 cm in height. He then conducted a field drug test on one of the parcels and found it positive for heroin. He then sealed the drugs and escorted it to the Transnational Crime Unit office at the Nadi International Airport and locked them in a cabinet. He took the possession of the keys. The place was guarded by the police on 24/7 basis. He also took the Polaris quad bike and the wooden box into the police custody and took them to Lautoka Police Station and exhibited them.
     
201. On the same day he has arranged the Government Analyst to come to Nadi for testing as it was not safe to escort the drug to Suva. He then personally handed over the 80 bars of alleged drugs to the Government Analyst. IP Aiyaz received the report from the Analyst confirming that the substance found in the said bars is 29.9 Kg of Heroin. The said drugs were also handed over to him at the same time. He locked the said drugs in the exhibit room of the Sabeto Police Station and took the possession of the keys of it. The drugs remained there until he showed them to the two accused persons. He then personally escorted the drugs to Suva in the night on 24th of December 2014 and locked them at a Police Command Centre. The place is provided with additional security and a CCTV camera was installed to monitor the place. IP Aiyaz tendered the Analyst's report as prosecution exhibit 75.
     
202. IP Aiyaz stated that the first accused in his caution interview mentioned about a black bag which he found at the back of his yard. He then instructed Cpl Nilesh to proceed to Lautoka Police Station and inquire about the bag from IP Dharmendra Dutt. He received a call from Cpl Nilesh that he found the bag. He then instructed Cpl Nilesh to itemise the contents of the bag and photograph them. He further advised Cpl Nilesh to take the bag to Sabeto Police Station. He received the black bag with its contents at the Sabeto Police Station on 22nd of December 2014. He explained on the items found inside the bag. He identified the bag and its contents during his evidence. Based upon the contents found inside the bag, IP Aiyaz visited the Bob's Hookers and Sinker Shop in Nadi with a search warrant. He uplifted three receipts issued by the said shop for two sand and dry bags and one set of knives. He further uplifted CCTV footages for the 16th and 19th of December 2014. He then visited Vinod Patel Shop in Nadi and uplifted tax invoices and CCTV footages. IP Aiyaz further obtained the documents pertaining to sending of money via Western Union from Vanuatu by the second accused person from Vanuatu and the statement of the Police officer who uplifted it. He further obtained documents in relation to the said transaction from the Exchange and Finance Fiji Ltd's branch of Namaka, Nadi. He further stated during the course of his investigation that he uplifted the rental agreement that made the AIMS rental car with the second accused. He obtained a name search record and call records of the two accused persons from Vodafone Fiji Ltd. He then obtained the Analyst Report of those call records. IP Aiyaz stated that he uplifted all the relevant documents pertaining to the shipment of this container and other documents from All Freight Logistic Ltd, Pacific Agencies and Western Custom Brokers.
     
203. During the course of his investigation, IP Aiyaz uplifted the travel history record and arrival card of the second accused person from the Fiji Immigration. He ceased the passport of Ethan Kai and made a travel history record of Ethan Kai based on his passport. He tendered them as prosecution's exhibit. During the course of his investigation he made a search list for the items that he ceased from Ethan Kai. He ceased a Samsung S5 mobile phone with a micro SIM and SD card. The SIM card is for the number 9217259. I must advise you to completely disregard the evidence given by IP Aiyaz that the second accused refused to provide the password of the said mobile phone, hence it was sent to Australia for testing. The learned counsel for the prosecution withdrew that question and answer. IP Aiyaz has ceased the driving license, work permit of Laos, and stay permit of Laos, few SIM cards, a business card of the freight company in Lao, that packed the wooden boxes, and a business card of the first accused person from the second accused and tendered them as prosecution's exhibits. He finally tendered the caution interview of the first accused person as prosecution exhibit No 90.
     
204. IP Aiyaz stated that the first accused cooperated with the investigation team during his arrest and recording of the caution interview. He did not exercise of his right to remain in silence, when he was given the right to remain in silence. He informed IP Aiyaz that he will tell the truth during the caution interview. He further stated that the first accused offered his help when they were trying to remove the tyres from wheels at the Lautoka Wharf. IP Aiyaz stated that the first accused denied the allegation of this importation of illicit drugs during his caution interview.
     
205. During the cross examination of the learned counsel for the second accused person, IP Aiyaz stated that his report of the travel details of the second accused person is based on the information he obtained from the passport of the second accused. He stated that the black bag and its contents were not tagged or labelled when he received it from Cpl Nilesh. He explained that the photos are sufficient and there is no need to tag them if they have photographs of the bag and contents found in it. He stated that the items and the bag that he identified in the court are the same items he found in the bag.
     
206. In respect of the opening of the container during the search carried out in the Lautoka Wharf on the 21st of December 2014, IP Aiyaz stated that he had no reason or found no necessity to video record the breaking and opening of the container, as it was photographed. He stated that contents found inside the bag had no finger prints of the two accused persons.
     
207. The prosecution concluded it's case having called 24 witnesses and tendering 90 exhibits of prosecution.
     
208. At the conclusion of the prosecution case, the two accused persons were explained about their rights in defence. Both accused persons opted not to give evidence on oaths. The first accused person informed the court that he will not call any other witnesses for his defence. However, the second accused person called one witness, namely Viliame Tabalakia for the defence. I must remind you as I mentioned before, the accused persons are not required to prove their innocence. It is their right to remain in silence.
     
209. Mr. Viliame Tabalakia is the witness of second accused person. He stated in his evidence that he is a security officer at Fiji Electricity Authority at Navutu, Lautoka. He tendered his salary script for the month of August 2015. He stated he has been working at this place as a security officer for the last two years. He identified the car park of the FEA and stated that lights were not working at the car park in December 2014. He further stated that there is a flood light on the top of the roof of the building after the car park. That flood light does not focus towards the car park.
     
210. I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.
     

Analysis of Evidence

211. It appears that the prosecution has sought to prove variety of facts and incidents from different sources. The learned counsel for the prosecution submits that the effect of that evidence, when considered as a whole, leads to the indisputable and inescapable conclusion that the two accused persons are guilty for the first and second counts as charged respectively. In other words, the prosecution case is founded on circumstantial evidence. A circumstantial case is one that depends for its cogency on the unlikelihood of coincidence. In such cases, the prosecution seeks to prove separate facts, incidents and circumstances which cannot be explained as coincidence, but the only rational explanation is the guilt of the accused person. Circumstantial evidence can be powerful evidence but it needs to be examined with care to assure whether it actually has such effect.
     
212. The circumstantial evidence that the prosecution is seeking to rely on in this instant case is that;
     
     1. Importation of the container No TGHU0623796 and four wooden boxes

into Fiji by the first accused person,

2. The contents found inside the four wooden boxes in the said container,
3. The knowledge of the first and the second accused person of the

importation of this illicit drug,

213. The prosecution presented evidence to prove incidents and circumstances to prove the knowledge of the two accused persons, they are that;
     
     1. The individual and collective conduct and the interactions of the two

accused person,

2. The communication between the two accused persons and the

communication of the second accused person with the actual consignor in Lao,

214. The prosecution presented evidence of Mr. Ashok Kumar and Mr. Paula Daunitutu of Pacific Agencies, Mr. Edwin Murti of All Freight Logistic Ltd, Mr. Semiti Tukana, Mr. Jitendra Singh of Western Custom Brokers Ltd, and Mr. Krishna Chandra, the Manager Revenue of the Fiji Revenue and Custom Authority at Lautoka Port and tendered the House Bill of Lading, Master Bill of Lading, shipping manifest, arrival notice, tax invoices, commercial invoices for the motorbikes and tyres, C45 form and SAD as prosecution exhibits in order to establish that the shipment containing the container No TGHU0623796 as stated in the Master Bill of Lading arrived to Lautoka Port.
     
215. According to the Master Bill of Lading, the shipper is MSI Logistic Ltd who is a freight forwarder in Bangkok, Thailand and the consignee is All Freight Logistic Ltd. However, according to the House Bill of Lading the actually shipper is Ms. Nipakone Sengphilom of Wattay Yai Villhe, Luangprabang road, Sikhottabong Distirct, Ventiane, Lao PDR. The actual consignee is Khans, Navutu Industrial Sub Division, Lautoka.
     
216. Mr. Semiti Tukana in his evidence stated that he gave this Bill of Lading, C45 Form and commercial invoices to the Western Custom Brokers to get the said consignment cleared on behalf of first accused person. Mr. Khrishna Chandra, the Manager, Revenue, Fiji Revenue and Custom Authority stated in his evidence that Mr. Khan, the first accused met him and discussed about this consignment on the 19th of December 2014. Apart from that Mr. Jone Savou, Mr. Waseroma, the custom officer, IP Aiyaz, Cpl Nilesh, IP Terotuma stated that they found four wooden boxes inside the container, and the name and address of the first accused was written on them.
     
217. Mr. Jone Savou gave evidence in respect of breaking of the shipper's seal and the custom seal of the container. He then opened the container. He identified the two seals in court and tendered the custom seal as one of the exhibits of the prosecution. He persistently stated that he could not recall that he observed any rusted bolt, or nuts of the container during the search made on 21st of December 2014. He further explained that he has never experienced an incident of opening of a container without breaking the lock and the seal. The learned counsel for the first accused person presented two video clips, which demonstrated that a container could be opened without breaking the lock and the seal. However, I must emphasis you to consider that there is no authentication of the maker of these two video clips. Both of the video clips seem to be taken from youtube, an open internet video sharing website, where anyone could upload any form of video clips.
     
218. Custom Officer Waseroma, IP Aiyaz, IP Terotuma and Cpl Nilesh in their respective evidence stated that Mr. Jone Savou broke the custom's seal and the shipper's seal and then opened the container in the presence of these officers. All these witnesses stated that the first accused person was also present during the opening of the container. Ladies and gentlemen, you could recall that you visited the container at the Lautoka wharf during the course of the hearing. Mr. Jone Savou, Mr. Waseroma, IP Aiyaz, IP Terotuma, Cpl Nilesh and Cpl Joseteki gave evidence about what they found inside the container, the four wooden boxes and the third quad bike therein. IP Aiyaz in his evidence explained the procedure and the manner that he adopted to handle the substance that he found inside the four tyres of the third quad bike. There is no dispute of the Certificate of Analysis of the Government Analyst.
     
219. In respect of the element of knowledge of the first accused person that he imported an illicit drug, the prosecution presented evidence that he is the actual consignee of this consignment. He had previously imported a jet sky from the same consignor in June 2014. He has obtained $7,000 from the second accused, which he sent via Western Union from Vanuatu in July 2014. The first accused person had been in constant contact with the second accused person since the arrival of the second accused into Fiji on 12th of December 2014. The second accused has called the telephone number of the actual consignor in Lao on 18th of December 2014. The first accused person's contacts with the second accused was not only limited to telephone conversations, he has met the second accused person physically on several occasions at different locations. The first accused has declared in C45 From that he is the owner of the cargo and the goods for his personal use. He further declared that he will make the payment for the cargo in 30 days of time in the C45 Form. Mr. Tukana in his evidence stated that the first accused person told him that he will use the motorbikes when he was filling C45 form.
     
220. In the meantime, Mr. Semiti Tukana in his evidence further stated that the first accused person was frustrated when the custom declined to release the cargo on the 18th of December 2014 and had told him that he wanted to surrender the consignment to the custom. Mr. Jitendra Singh of Western Custom Brokers Ltd also stated in his evidence that the first accused discussed with him and the Manager, Revenue of Fiji Revenue and Custom Authority about the surrendering of the consignment when they met on 19th of December 2014. Mr. Krishna Chandra, The Manager, Revenue of Fiji Revenue and Custom Authority in his evidence stated that the first accused told him that the three motorbikes in the consignment were for the supplier and only the 28 tyres with wheels were for him. He also has discussed with Mr. Chandra about the procedure to follow, if he is unable to clear the consignment. Mr. Chandra further stated that the first accused asked him to go and open the container and check inside, when he asked the first accused person to provide further documentation.
     
221. I now draw your attention to the caution interview of the first accused person, which is before you as an additional agreed fact between the prosecution and the first accused person. You are allowed to consider the contents of the caution interview as the facts proved beyond reasonable doubt in respect of the first count. The first accused person has explained that he met one Max while he was riding his quad bike in his business yard. Max came and spoke to him. They later became friends and were in constant contact. The first accused has stated in his caution interview Max negotiated with him to send some tyres. Max has told him that he has three motorbikes and he will put them in the container with the tyres. The agreement was that the first accused has to clear these three bikes and then take the tyres free. Having calculated the cost, the first accused has agreed with the proposal. The first accused stated during his caution interview Max sent him several invoices and most of them were not descriptive and clear. All the invoices that Max sent him, have indicated about motorbikes. Ladies and Gentlemen, you may recall the commercial invoices and the Bill of Lading tendered by the prosecution. They all have indicated about motorbikes. The first accused person has sent an e.mail to Mr. Semiti Tukana stating that the bikes are two wheeled. However, the first accused person in question No 200 of his caution interview has stated that "the next e.mail is a mistake by writing 2 wheels".
     
222. IP Dharmendra Dutt in his evidence stated that he visited Khan's yard and picked a black bag on the 21st of December 2014. Mr. Khan, the first accused person has informed the police about this bag, which he found behind his yard.
     
223. Ladies and Gentlemen, I now direct your attention to the second accused person. Mr. Alexio Sela in his evidence tendered the travel history and the arrival card of the second accused person, Mr. Ethan Kai. Accordingly, he has arrived in Fiji on the 12th of December 2014. I.P. Aiyaz in his evidence tendered the passport of the second accused person and the report of his travel history, which shows the movement of the second accused person during the period in question in this charge. He then checked into Sofitel Fiji Resort and Spa and booked it till 18th of December 2014. He occupied the room No 308.
     
224. The prosecution presented evidence of Mr. Semus Chang of Vodafone Fiji Ltd, Sgt Jemesa Lave, Mr. Ravinesh Chand of AIMS Rental Car company and IP Aiyaz to establish that the mobile phone Numbers 9217259 and 8650131 were used and were registered under the name of the second accused person, Mr. Ethan Kai.
     
225. Mr. Semus Chang in his evidence stated that according to the result of his name search, the two mobile phone numbers 9217259 and 8650131 were registered under the name of Ethan Kai. Mr. Ravinesh Chand of the AMIS Rental Car, in his evidence stated that Ethan Kai called him from 9217259 in the morning of 12th of December 2014. He further stated that Mr. Ethan Kai put 9217259 as his mobile number in the rental agreement with AMIS Rental. IP Aiyaz has found the SIM card for the number of 9217259 in the Samsung S5 mobile phone that he ceased from the second accused person. According to the name search report, that is prosecution's exhibit 13, the ID number indicated against the 9217259 is 2030492 and ID type of 3. Cpl Lave in his evidence stated that mobile number 9217259 has called AMIS Rental Car on the 12th of December 2014 and also called the phone number of the consignor as stated in the House Bill of Lading on 18th of December 2014.
     
226. According to the result of the name search conducted by Mr. Chang the number 8650131 is registered under the name of Ethan Kai. The ID number is 2030492613 and ID type is 3. Mr. Semus Chang in his evidence stated that ID type 3 is for driving licence as per his recollection. IP Aiyaz tendered the driving licence of the second accused, which has two numbers. One is the licence number, bearing12845204. The second number is the card number, that is 2030492613. According to the name search report, the date of birth of Ethan Kai is 21st of February 1981. The date of birth stated in the driving licence of Ethan Kai and his passport is 21st of February 1981.
     
227. Cpl Vuniwaqa in his evidence explained the nature of his surveillance operation on one person of interest. He monitored him at the Nadi International Airport on the 12th of December 2014, while he was arriving into Fiji from Hong Kong. He then followed him to Sofitel Fiji Resort and Spa. He monitored the person of interest meeting one Indo Fijian at the Total Service Station at Navutu, Lautoka on several occasions. He then saw the same person of interest coming and parking his vehicle at the Fiji Electricity Authority's car park at Navutu in the night of 19th of December 2014. He then observed the person of interest walking towards the yard of Khan's Enterprise Ltd, carrying a bag. He has then came back to his vehicle in a while without the bag. Cpl Vuniwaqa tendered photographs of the person of interest meeting that Indo Fijian person at the Total Service Station as prosecution's exhibit. Cpl Vuniwaqa has observed during his surveillance that the person of interest used vehicles bearing registration numbers LR 1705 and LR 1631. Mr. Ravinesh Chand of AMIS rental car in his evidence stated that Ethan Kai rented LR 1705 and LR 1631 for the period between 12th of December and 20th of December 2014. Mr. Ravinesh Prasad, the Security Manger of Sofitel Fiji Resort and Spa in his evidence stated that Mr. Ethan Kai checked into the hotel on 12th of December 2014 and occupied room No 308.
     
228. Cpl Vuniwaqa in his evidence stated that the lights were working at the FEA car park in the night of 19th of December 2014, when he monitored the person of interest. However, the first witness of the second accused person, who claimed that he is a security officer and has been working there for the last two years stated in his evidence that the lights in the car park was not working in December 2014.
     
229. IP Terotuma, IP Aiyaz, Cpl Joseteki, Cpl Nilesh in their evidence identified the black bag and the contents found in it. However, they stated that the bag and its content have not been labeled or tagged for identification. They further stated that the photographs of the items found in the bag have no identification code or numbers of the items. However, they stated that they could positively identify the bag and its contents as the same bag and the contents they saw in the police station.
     
230. I now take your attention to photograph No 11 of prosecution exhibit No 56. It is the photograph of Pro Fillet Knives Kit. The white colour tag on the box states number 245. Mr. Deo, the Manger of Bob's Hooks Line and Sinker Shop in Nadi in his evidence identified this set of knives as the one that he sold to the second accused person on the 19th of December 2014. He identified the said box with its barcode of 245. Mr. Deo in his evidence further stated that the second accused person asked him for a strong knife that can cut tyres. Mr. Imran Ali, the Manager of Vinod Patel Hardware at Nadi in his evidence identified some of the items found in the black bag as the products sold by his company. However, he could not specifically state that those items were sold by his branch in Nadi or not, but specifically stated that they must have been sold at any one of their 12 shops around the country, including Nadi branch. The prosecution presented in evidence CCTV footage of Bob's Hooks Line and Sinker Shop, CCTV footage of Vinod Patel, Nadi Branch. Furthermore, I.P. Aiyaz in his evidence stated that he found a business card of the shipping agent of Laos, VTS Logistic (Lao) Co, Ltd in the personal belonging of Mr. Ethan Kai.
     

Circumstantial Evidence

231. Ladies and Gentlemen, it is your duty to examine these evidence presented by the prosecution and decide whether you accept them or not. The learned counsel for the prosecution, first accused person and the second accused person proposed you what inferences you should form from particular parts of these evidence. Drawing of inference is a process by which you find from evidence which you regard as reliable, that you are driven to a further conclusion of fact. You need to be careful to ensure that the evidence really lead to the conclusion, that the prosecution propose you to reach.
     
232. Let me give you an example of drawing or forming an inference or a conclusion, which does not arise out of the facts of this case, but will illustrate the need of care in judging whether the facts proved supports the inference of guilt. If my finger print is found in the living room of my neighbour's home, it is a sound inference that at some stage I have been in his living room. it would not, however, support an inference that I was the burglar who stole his DVD recorder from his living room. If you accept my neighbour's evidence that I have never been invited into his home, then, in the absence of some acceptable explanation from me, you might infer that at some stage I had been in my neighbour's home uninvited. You may or may not be driven to the further conclusion that I was the burglar. But, if you also accept that there was a second fingerprint of mine found at the point of entry or, that in my shed there was a DVD recorder found, which my neighbour recognises as the one stolen from his living room, you, would, no doubt, conclude that you were sure that I was the burglar. You will notice how the inference of guilt becomes more compelling depending upon the nature and number of the facts and incidents proved.
     
233. What conclusion or inference you reach from the evidence is entirely for you to decide. However, in considering what inference you should draw or what conclusion you should reach, it is important to be mindful that speculation has no part in this process. The conclusion or the inference must be the only and certain rational conclusion or inference of the guilt of the accused persons. If the evidence that you accepted or considered as reliable, suggest you some other probable inferences or conclusions, which show the innocence of the accused or create a doubt as to the guilt of the accused, you are then not entitled to draw any inference or form any conclusion of guilt of the accused person.
     

Evidence of Identification

234. The prosecution presented evidence of identification and also presented CCTV footages and photographs taken by Cpl Vuniwaqa during his surveillance operation. When you are considering the identification evidence, you need to exercise special caution. The reason for this is that experience tells us that honest and impressive witness, genuinely convinced to the correctness of their identification, have in the past made mistakes, even a number of witnesses making the same identification. You have to look carefully the circumstances in which the identification was made and at any other evidence that may support the identification. In doing such, you can consider factors as follows;
     
     1. How long was the suspect under observation,
     2. At what distance,
     3. In what light,
     4. Had the witness seen the suspect before and if so, how often and in what

circumstances,

5. What period has elapsed between the observation and the identification,
   

235. Ladies and Gentlemen, you have seen CCTV footages of Bob's Hook and Sinker Shop, Vinod Patel Shop in Nadi Town, Sofitel Fiji Resort and Spa and photographs of the person of interest and one Indo Fijian Person taken by Cpl Vuniwaqa during the surveillance operation. You are invited to make a comparison between these CCTC footages and photographs with the two accused persons and conclude whether they are all of one and the same person or not. You are required to consider the quality of the films and images, the angles, dimension and lighting of the films and images in your comparison. First you need to consider whether these films and images are of sufficient quality to make any comparison with the accused persons. If you are not satisfied or sure of that, you should then abandon this exercise of comparison with the accused persons. If you consider that they are of sufficient quality to make any comparison with the accused persons, then you have a further advantage of being able to make your comparison in your own time and with much detail as you need.
     

Inconsistencies of Previously made Statements

236. Ladies and Gentlemen, you might recall that the learned counsel for the first accused and the learned counsel for the second accused cross examined the prosecution's witnesses about the omissions and inconsistencies of their evidence with the previously made statements to the police. The learned counsel for the second accused person tendered and marked the statement made by Mr. Jone Savou as second defence's exhibit in order to mark the omissions and inconsistent nature of his evidence with his previously made statement to the Police. It is obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not except every detail to be the same from one account to the next. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influence your judgment of the reliability of such witness.
     
237. You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. Moreover, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
     

Conclusion

238. Having considered all the evidence presented during the course of the hearing, if you believe and satisfy that the prosecution has failed to prove beyond reasonable doubt that the first accused person, Mr. Mohammed Shaheed Khan had imported 29.9 kilograms of illicit drugs namely Heroin, you must find the first accused person is not guilty for the offence of unlawful importation of Illicit Drugs contrary to Section 4 (1) of the Illicit Drugs Control Act.
     
239. If you believe and satisfy that the prosecution has proved beyond reasonable doubt that that the first accused person, Mr. Mohammed Shaheed Khan had imported 29.9 Kilograms of Illicit Drugs, namely "Heroin". You must then consider whether the first accused person has satisfied you that he has lawful authority to import such illicit drugs. If you are not satisfied or do not believe that the accused person has proved that he has a lawful authority to import such illicit drugs, you must then find the first accused person guilty for the offence of Unlawful importation of Illicit Drugs contrary to Section 4 (1) of the Illicit Drugs Control Act.
     
240. Having considered of all the evidence presented during the course of the hearing, if you believe and satisfy that the prosecution has failed to prove beyond reasonable doubt that the second accused person, Mr. Ethan Kai had engaged in dealings with Mohammed Shaheed Khan to import of 29.9 kilograms of illicit drugs namely Heroin, you must find the second accused person is not guilty for the offence of Unlawful importation of Illicit Drugs contrary to Section 5 (b) of the Illicit Drugs Control Act.
     
241. If you believe and satisfy that the prosecution has proved beyond reasonable doubt that the second accused person, Mr. Ethan Kai had engaged in dealing with Mohammed Shaheed Khan to import of 29.9 kilograms of illicit drugs namely Heroin. You must then consider whether the second accused person has satisfied you that he has a lawful authority to import such illicit drugs. If you are not satisfied or do not believe that the accused person has proved that he has a lawful authority to engaged in dealings with Mohammed Shaheed Khan for import such illicit drugs, you must then find the second accused person guilty for the offence of Unlawful importation of Illicit Drugs contrary to Section 5 (b) of the Illicit Drugs Control Act.
     
242. Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
     

Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
9th of September 2015

Solicitors : Office of the Director of Public Prosecutions
Messrs Iqbal Khan and Associates for the First Accused person
Aman Ravindra Singh Lawyers for the Second Accused person