State v Khan - Judgment [2015] FJHC 650; HAC01.2015 (10 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
Date of Judgment : 10th September 2015

JUDGMENT

1. The First and Second accused persons are charged with one count of unlawful importation of illicit drugs contrary to Section 4 (1) of the Illicit Drugs Control Act and one count of unlawful importation of illicit drugs contrary to Section 5 (b) of the Illicit Drugs Control Act respectively.
   
2. The two accused persons pleaded not guilty for their respective count, hence the hearing of these two counts took place from 1st of August 2014 to 9th of September 201. The prosecution called 24 witnesses and tendered 90 exhibits during the course of hearing. The first accused person opted neither to give evidence on oaths, or call any other witness for his defence. The second accused person, though opted not to give evidence on oaths, called one witness for his defence. At the conclusion of the prosecution and the defence case, the learned counsel for the prosecution, for the first accused person, and the third accused person made their respective closing submissions. I then made my summing up to the accessors.
   
3. The four assessors returned with a split verdict for the first accused person. Two of the assessors found the first accused person not guilty, while the other two assessors found him guilty for the offence of unlawful importation of illicit drugs as charged in the information. However, the four accessors returned with unanimous verdict of guilty for the second accused person. The assessors' verdict was not perverse. It was open for them to reach such conclusion based on the evidence presented during the course of this hearing.
   
4. Having carefully considered the evidence presented by the prosecution and the defence, the closing submissions of the learned counsel for the parties, the verdict of the assessors and the summing up, I now proceed to pronounce my judgment as follows.
   
5. The particulars of the offence for the first count 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".

6. Section 4 (2) of the Illicit Drugs Control Act stipulates that the evidential burden to prove the lawful authority lies upon the accused person.
   
7. 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,
      
8. 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".

9. 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.
   
10. 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.
    
11. 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.
12. 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. 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.
    
13. 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.
    
14. 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".

15. 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".

16. 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,
          
17. 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.
    
18. 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.
    
19. In view of the evidence presented by the prosecution, it appears that the prosecution has sought to prove variety of facts and incidents from different sources in order to prove their case against the two accused persons. The learned counsel for the prosecution during her closing address, submitted that the effect of that evidence, when considered as a whole, leads to an 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.
    
20. The circumstantial evidence that the prosecution sought 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,

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

accused person,

2. The communication between the two accused persons, and also between

the second accused person and the actual consignor in Lao.

22. 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's 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 and the consignee was the first accused person as stated in the Bill of Lading.
    
23. According to the Master Bill of Lading, the shipper is MSI Logistic Ltd which is a freight forwarding company in Bangkok, Thailand and the consignee is All Freight Logistic Ltd. However, according to the House Bill of Lading the actual 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.
    
24. 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 the 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.
    
25. Having considered the evidence of the witnesses mentioned above, I am satisfied that the prosecution has proved beyond reasonable doubt that the first accused is the consignee of the container No TGHU0623796 and the cargo found therein.
    
26. 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. I am mindful of the fact, that he answered affirmatively to the question posed by the learned counsel of the first accused person as to whether there was an incident in the Lautoka Wharf where a container was broke open without breaking the seal. However, Mr. Savou in his re-examination clarified that he did not hear that particular question properly.
    
27. The learned counsel for the first accused person presented two video clips, that demonstrates how a container could be opened without breaking the lock and the seal. However, I do not put much weight for that piece of evidence as 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.
    
28. 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. 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 third quad bikes therein. IP Aiyaz in his evidence explained the procedure and the manner 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.
    
29. The learned counsel for the second accused person extensively cross examined these witnesses about the omissions and inconsistencies in their statements made to the police with their evidence. However, I do not find that those inconsistencies have adversely and negatively affected the credibility and reliability of these evidence. I accordingly find that the prosecution has established that the said container was properly arrived to the Lautoka Wharf and contained 29.9 kilograms of illicit drugs namely heroin.
    
30. I now turn onto the issue whether the first accused person had the knowledge or belief that the consignment that was imported under his name contained such illicit drugs.
    
31. The prosecution presented evidence that first accused person 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 Form 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.
    
32. 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 Customs. 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 sAuthority about the surrendering of the consignment when they met on 19th of December 2014. Mr. Krishna Chandra, The Manager, Revenue of Fiji Revenue and Customs 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.
    
33. The first accused person stated in his caution interview, which the prosecution and the first accused person tendered in evidence as an agreed fact, 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 that 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 Max sent him, have indicated about motorbikes. It appeared that the commercial invoices and the Bill of Lading tendered by the prosecution have indicated about motorbikes. The first accused person has sent an e.mail to Mr. Semiti Tukana stating that the bikes are two wheeled.
    
34. Mr. Edwin Murti, the Manger (West) of All Freight Logistic Ltd, in his evidence stated that the only way the consignee could get the confirmation of the contents in the cargo is from the shipper 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.
    
35. I.P. Aiyaz in his evidence stated that the first accused revealed during his caution interview about a black bag which he found beside his yard. IP Aiyaz later found that the bag had been uplifted by IP Dharmendra Dutt upon the informations given by the first accused. The prosecution presented evidence to prove that black bag and the contents therein was brought by the second accused person and left at the Khan's yard on the 19th of December 2014.
    
36. In view of the circumstantial evidence presented by the prosecution to prove the knowledge of the second accused person, it appears that more inferences or conclusions could be drown or inferred about the knowledge of the first accused person. Could it be possible, that a person sends illicit drugs worth of millions of dollars to someone who has no knowledge of it. However, the first accused has given an explanation of the background of the origination of this consignment in his caution interview, which was tendered in evidence by consent by the prosecution and the first accused person. Mr. Chandra, the Manager, Revenue of Fiji Revenue and Custom Authority in his evidence stated that the first accused told him the bikes were for the shipper and tyres with wheels were for him. This will collaborate the first accused person's statement in his caution interview.
    
37. Moreover, Mr. Chanrdra, the Manager Revenue of FRCA, Mr. Singh of Western Custom Brokers and Mr. Tukana in their respective evidence stated that the first accused told them that he wants to surrender the consignment as he was frustrated with the rejection by the Custom. These evidence generate a reasonable doubt that, could a person if he had preconceived knowledge of the concealment of million dollar worth illicit drugs inside the consignment would propose to surrender it back to the Customs or whether he was trying to pull himself out of the plan of importation of illicit drugs as the Custom was refusing the release of the consignment. This doubt should not be inferred or drawn against the first accused person. It appears that there is another doubt that If the first accused had any knowledge of this illicit drug, would he inform the police about the black bag he found beside his yard.
    
38. In view of the reasons discussed above, it appears that if the evidence presented by the prosecution is considered as a whole in respect of the first accused person, it does not lead only to the conclusion that the first accused person had the knowledge or belief that what he imported in this consignment contained illicit drugs. It leads to other probable conclusions and inferences showing the innocence of the first accused person. Accordingly, it is my opinion that the prosecution has failed to prove beyond reasonable doubt that the first accused person had a knowledge or belief that the imported consignment under his name contained any illicit drugs in it.
    
39. I now turn onto the second count, where Mr. Ethan Kai is alleged that he engaged in dealing with Mohammed Shaheed Kan for the importation of 29.9 kilograms of illicit drugs namely Heroin.
    
40. I first draw my attention to the evidence of Cpl Vuniwaqa. He explained the surveillance operation he conducted on a person of interest. The evidence of Mr. Sela, the Immigration officer and the passport of Mr. Ethan Kai confirmed that he arrived into Fiji on 12th of December 2014. Mr. Ravinesh Prasad, The Manager, Security, Sofitel Fiji Resort confirmed that Ethan Kai checked in into room No 308 of Sofitel Resort and Spa on the 12th of December 2014. Cpl Vuniwaqa in his evidence stated that the person of interest arrived into Fiji on 12th of December 2014 and checked into room 308 of Sofitel Resort and Spa on the same day. He has further observed that the person of interest used two vehicles bearing registration numbers LR 1705 and LR1631. Mr. Ravinesh Chand of AIMS Rental Car in evidence stated that LR1705 and LR1631 were used by Ethan Kai during the period 12th of December to 20th of December 2014. These evidence together with the surveillance photographs tendered by Cpl Vuniwaqa, and his explanation of the description of the person of interest, allows me to form a conclusive inference that this person of interest is none other than Mr. Ethan Kai.
    
41. 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.
    
42. Mr. Semus Chang in his evidence stated that according to his findings from the name search, two mobile phone numbers 9217259 and 8650131 was registered under the name of Ethan Kai. Mr. Ravinesh Chand in his evidence stated that Ethan Kai called him from 9217259 in the morning of 12th of December 2014. He further stated in his evidence that Ethan Kai has written the number 9217259 as his mobile contact in the agreement that he entered with AMIS Rental Car. 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. It was the date that the Custom declined to release of the consignment.
    
43. Mr. Chang then further stated that according to the name search report, number 8650131 is registered under the name of Ethan Kai. The ID number is 2030492613 and ID type is 3. Mr. Semus Chang in 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 also 21st of February 1981.
    
44. The learned counsel for the second accused person questioned Mr. Semus Chang about the possibility of someone providing these information, but he ruled out in his evidence that such incidents are rare. However, the evidence of IP Aiyaz confirmed that Mr. Ethan Kai was in possession of SIM card bearing 9217259. In view of these evidence, it appears that the prosecution has established that Ethan Kai is the registered owner of 9217259 and 8650131. Sgt Leve in his evidence stated that he found from his call chart report, that Mr. Ethan Kai has called the phone number of the consignor as stated in the Bill of Lading on the 18th of December 2014, the same day the Custom declined the custom entry for this consignment.
    
45. Moreover, the call record report of 9926224, which the first accused admitted in his caution interview as his mobile phone number, shows the numbers of time that he was in contact with the second accused person during the period between 12th of December to 20th of December 2014. It shows that whenever the first accused person called Semiti Tukana, the person he asked to get the consignment cleared, he has contacted the second accused person over the phone.
    
    46. Cpl. Vuniwaqa in his evidence stated that he observed the person of interest coming and parking at the Fiji Electricity Authority car park in the night of 19th of December 2014. He then observed the person of interest walking towards Khan's yard with a bag. He then came back to the car park in a while, without the bag in his hand. The learned counsel of the second accused extensively cross examined Cpl Vuniwaqa on this incident, specially the condition of lighting and of not taking of any photographs. Cpl Vuniwaqa persistently stated that there were lights sufficient for him to identify the person of interest properly. He further explained that he found it was too risky to take photographs and did not want to expose himself or the surveillance operation.
        
    47. The second accused person called Mr. Villiame Tabalakia, who claimed that he is the security officer at Fiji Electricity Authority' office at Navutu. However, there is no proper evidence to establish that he was actually at work during the month of December 2014 or specially on the 19th of December 2014 at the said car park. He only tendered a salary script for the month of August 2015. In the absence of such evidence to prove that he actually worked at the FEA car park in December 2014, I find his evidence is not reliable and credible.
        
    48. Cpl Vuniwaqa in evidence stated that the person of interest parked under the flood light. He had been following and monitoring the person of interest since 12th of December 2014. Accordingly, it appears that the evidence of identification of the person of interest at the FEA car park is reliable and credible. I accordingly accept the evidence of Cpl Vuniwaqa on this issue.
        
    49. According to the evidence of IP Dharmendra Dutt, IP Terotuma, Cpl Joseteki, Cpl Nilesh and IP Aiyaz, they have found a black bag on the following day, 20th of December 2014 beside Khan's yard. One of the items found inside the back was a box of knives. The learned counsel for the second accused cross examined the above named witnesses extensively and vigorously about the labelling, identification of the items and the bag in the court. I do not wish to dwell much on that, but only concerned with the box of knives found inside the bag. The same box of knives was identified by Mr. Deo, the Manger of Bob's Hooks and Sinker in his evidence as the same set of knives that he sold to the second accused on 19th of December 2014. He identified it from its barcode on it. The barcode is 245. The same barcode was found in the photograph taken by Cpl Joseteki at the Lautoka Police Station, when he photographed the items found in the bag on 22nd of December 2014. Accordingly, it appears that the prosecution has established that the second accused person was seen at FEA car park with a bag and then walked towards Khan's yard in the night of 19th of December 2014. In a while, he was seen walking back from the direction of Khan's yard towards the FEA car park without a bag. On the following day, the police found a black bag beside the Khan's yard on the information given by the first accused person. The Police then have found the set of knives which was bought by the second accused from Bob's Hook and Sinker Shop in Nadi on 19th of December 2014.
        
    50. Mr. Deo, the Manger of Bob's Hooks and Sinker Shop at Nadi in his evidence stated that the second accused came to his shop and asked him for a strong knife that can cut tyres on the 19th of December 2014. The video footage of the said shop for the 19th of December 2014, shows that the second accused was making a gesture as cutting something in his hand to Mr. Deo. Mr. Deo was vigorously and extensively cross examined by the learned counsel for the second accused person on this issue and about of his handing of sales money of two dry and sand bags. However, Mr. Deo persistently stated that he could recall that the second accused person came to his shop and asked for a strong knife that can cut tyres. He then bought the set of knives which was later found inside the black bag found beside Khan's yard. It is my view that the inconsistencies found in the statement given to the police by Mr. Deo with his evidence in court does not effect the credibility of his evidence. I accordingly accept the evidence of Mr. Deo that the second accused person came to his shop and asked him for a strong knife that can cut tyres before he bought the set of knives which was later found in the black bag.
        
    51. According to the passport of Mr. Ethan Kai, he was in Laos from 10th of November 2014 to 10th of December 2014. The Bill of Lading for the consignment was issued in Bangkok, Thailand on 12th of November 2014. According to the e-mail correspondence of Mr. Edwin Murti with his counter part agent in Bangkok, Thailand, the said consignment was packed in Laos before it came to Bangkok. Mr. Ethan Kai has left Laos on the 10th of December 2014 and arrived into Fiji 12th of December 2014, a few days before the consignment reached to Lautoka. IP Aiyaz stated in his evidence that he found in the possession of the second accused person, a business card of VTS Logistic (Lao) Co. Ltd, the freight forwarding agent that packed the consignment into wooden boxes in Lao together with a business card of first accused person.
        
52. In view of the evidence presented by the prosecution in respect of the second accused person, it appears that if the evidence presented by the prosecution is considered as a whole, it leads to indisputable and inescapable conclusion that the second accused person had engaged in dealings with Mohammed Shaheed Khan to import this consignment and had knowledge and belief that what was imported in this consignment contained illicit drugs. It does not lead to any other probable conclusions and inferences showing the innocence of the second accused person.
    
53. It appears that the second accused has failed to prove the court that he had a lawful authority to import such illicit drugs in the manner.
    
54. Accordingly, it is my opinion that the prosecution has proved beyond reasonable doubt that the second accused person engaged in dealing with Mohammed Shaheed Khan had imported 29.9 kilograms of illicit drugs namely Heroin.
    
55. Having considered the reasons discussed above, I do not find any cogent reasons to disagree with the verdict of not guilty of the two assessors in respect of the first count and no cogent reason to disagree with the unanimous verdict of guilty of the four assessors in respect of the second count.
    
56. I accordingly find that the first accused person, Mr. Mohammed Shaheed Khan is not guilty for the offence of unlawful importation of illicit drugs contrary to Section 4(1) of the Illicit Drugs Control Act, 2004 and acquit him accordingly. I further find that the second accused person, Mr. Ethan Kai is guilty for the office of unlawful importation of illicit drugs contrary to Section 5(b) of the Illicit Drugs Control Act 2004 and convict him accordingly.
    
57. 30 Days to appeal to the Fiji Court of Appeal.
    

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
10th 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