CCJ upholds conviction of ‘Haffa’ over cocaine in fish glue
-remainder of jail sentence stayed, but $254M fine still imposed
The Caribbean Court of Justice (CCJ) on Thursday upheld the 2007 conviction of businessman Vishnu ‘Haffa’ Bridgelall for trafficking over 100 kilogrammes of cocaine but while he will face no more jail time because of the delays in the appeal process, he still has to pay a fine of $254M.
Bridgelall is no longer in the country, having travelled to Canada for medical treatment, and it is unclear whether any part of the fine has been paid.
Bridgelall was one of several persons who had been charged following a Customs Anti-Narcotics Unit (CANU) raid at Enterprise on the East Coast of Demerara in May, 2007, where over 100 kilogrammes of cocaine in fish glue being prepared for export had been found.
On November 23rd, 2007, Magistrate Sherdel Isaacs jailed Bridgelall for ten years and imposed $254 million in fines, after she found him guilty of two counts of possession of over $84 million worth of cocaine for trafficking.
Bridgelall appealed his conviction to the Full Court, which discharged him on December 4th, 2009. By this time he had served 30 months of his 10-year sentence.
The state subsequently appealed the Full Court decision to the Guyana Court of Appeal and on October 24th, 2016 nearly seven years later - the Court of Appeal reinstated the magistrate’s 10-year sentence against Bridgelall. In December, 2016, Bridgelall filed an application with the CCJ for special leave to appeal against the Court of Appeal ruling reinstating the 10-year sentence.
In court documents, which are posted on the CCJ website, Bridgelall was listed as the applicant, who was represented by attorneys at law Sanjeev Datadin and Ryan Crawford, while Hardat Hariprashad, an officer of CANU, was listed as the respondent and was represented by attorneys Sonia Joseph and Dionne McCammon, on behalf of the Director of Public Prosecutions (DPP).
The CCJ, after hearing the application, granted special leave to Bridgelall to appeal the decision of the Guyana Court of Appeal and at the same time heard the appeal. The CCJ, in its ruling on Thursday, affirmed the conviction of Bridgelall on each of the two charges laid against him but altered the two consecutive sentences handed down by Magistrate Isaacs to two concurrent sentences. In its judgement, the court also declared that Bridgelall’s constitutional right to a fair hearing within a reasonable time had been breached and the court, therefore, stayed any further action against Bridgelall arising out of the proceedings with respect to enforcement of the remainder of the prison sentences imposed by the magistrate.
Presiding over this matter was President of the CCJ Sir Dennis Byron and Justices Adrian Saunders, Jacob Wit, David Hayton and Maureen RajnauthLee.
The CCJ, Guyana’s final court, determined that the following issues were ripe for determination: (1) whether the convictions are safe; and (2) if so, (a) whether the Magistrate erred in sentencing Bridgelall to consecutive, instead of concurrent, prison terms, and, (b) whether Bridgelall’s right to a fair hearing within a reasonable time was infringed and, if so, with what related consequences, it was stated.
Before addressing these issues, the CCJ peremptorily dismissed a preliminary point raised by counsel for Bridgelall about the fact and manner of the DPP’s prosecution of this appeal. The Court stated, categorically, that the DPP enjoys wide powers under the Constitution which allow her, in person or otherwise, to take over criminal proceedings. The CCJ also held, in keeping with the long established legal maxim, that all things were presumed to have been done in due form as there was no evidence to the contrary.
The CCJ, it was stated, agreed with the Court of Appeal that it was open to the Magistrate to impute that Bridgelall had knowledge of the cocaine. The Court stated that where an accused is found on premises where there is a large quantity of drugs, that person’s guilt is not necessarily dependent on whether he was in physical possession of the drugs or found handling them or if someone else present claimed sole responsibility. On the other hand, mere presence is insufficient to establish guilt.
It noted that in some cases, such as the present one, the prosecution will only be able to lead circumstantial evidence and as such the prosecution bears the burden of proof; but if the facts and reasonable inferences from them are sufficiently cogent, then it will rest upon the accused to adduce evidence that might at least create reasonable doubt.
According to the judgment summary, the Court held that Bridgelall was the tenant at the premises and had never surrendered his tenancy. It was also noted that Bridgelall had earlier declared to the landlord that he needed the premises to conduct a fish glue business but, given the large quantity of cocaine found in the fish glue and the way the drugs were packaged, Bridgelall’s fish glue business was indistinguishable from the drug trafficking operation.
The CCJ, it was stated, found that it was reasonable for the magistrate to conclude that Bridgelall was in a position of authority in relation to Chandrika Chattergoon, known as ‘Chats,’ and who claimed that the drugs were his. The Court concluded that the circumstantial evidence was potent and pointed to a joint cocaine trading operation conducted by ‘Chats’ and Bridgelall. Noting the various inconsistencies between Bridgelall’s caution statement and his testimony, the Court held that the magistrate was “right” to disbelieve Bridgelall’s evidence. The CCJ held that the convictions were safe having regard to the evidence available to the Magistrate.
Stiff sentence
While agreeing that Bridgelall deserved a “stiff sentence,” the Court held that the magistrate erred when she ordered that the five-year prison terms, which represented the full extent of her jurisdiction, must run consecutively.
The Court, it was stated, decided that this case did not fall outside of the rudimentary rule that where multiple offences
arise from the same set of facts or the same incident, it will be appropriate for the sentences on those charges to run concurrently but in this case there was a single act of possession of the drugs found in the house and yard.
The CCJ held that despite the large quantity of drugs found, the magistrate was not entitled to “exceed or circumvent her sentencing jurisdiction.”
“If the State thought it fit to expose Bridgelall to potential liability outside of the Magistrate’s maximum 5-year jurisdiction, then the charges against him ought to have been laid indictably. In these circumstances, the sentences ought to have been made to run concurrently,” the CCJ ruled.
In examining the reasonable time guarantee afforded to Bridgelall under the Article 144(1) of the Constitution, the Court noted that this matter has engaged the judicial system for almost a decade.
The Court agreed with the established approach that in assessing whether there has been a breach of the reasonable time guarantee, the period of time which has elapsed must be examined. “If, at first blush, that period is unduly lengthy, then the court must look to the facts and circumstances of the case to determine whether an adequate explanation or justification has been offered by the State. In applying these principles, the Court considered the delay in this case to be of particular concern,” the judgment summary read, before stating that the court rejected the justification offered by the DPP. The CCJ held that it was unacceptable that for six years Bridgelall should live with the possibility of being returned to prison after being freed by the Full Court.
Having regard to all the circumstances of the case, the Court held that Bridgelall’s constitutional right to a fair hearing within a reasonable time was breached by the State.
Before making the relevant orders, the CCJ addressed the written submissions forwarded to the Registry by the DPP, without permission, after judgment was reserved. The Court stated that it did not consider these in treating with the Application but noted that such submissions, as a matter of general procedural practice, would not ordinarily be regarded, except in exceptional circumstances or where the final disposition of the matter will be assisted or in furtherance of the overriding objective.
Having regard to all the circumstances, the Court affirmed Bridgelall’s convictions but adjusted the sentences so that they run concurrently. The CCJ also declared that Bridgelall’s constitutional right to a fair hearing within a reasonable time had been infringed and, as a result, permanently stayed any further proceedings having to do with enforcing the remainder of the sentence. Bridgelall was, however, ordered to pay his fines, if not yet paid. Sole responsibility On May 16th, 2007, Hariprashad and other officers from CANU carried out a raid at 185 Charlotte Street, Enterprise, East Coast Demerara. There they found Bridgelall and three other men seated in an unenclosed area beneath a single-storey, wooden house on stilts. The yard was fenced and had a gate secured by a padlock. The officers identified themselves and were admitted inside by Bridgelall, who opened the gate with keys from a bunch produced by ‘Chats.’
The CCJ, in its recounting of the facts, said that CANU officers conducted a full search of the premises in the presence of all the men. In one of the three rooms in the house, which was opened with one of the keys from the bunch that ‘Chats’ had, officers found four cardboard boxes concealed in dried fish glue. These boxes contained what was later confirmed to be 86.5 kilogrammes of cocaine.
The officers cautioned the men and ‘Chats’ claimed sole responsibility for the drugs, while the others remained silent. A further 20 kilogramnes of cocaine, also concealed in fish glue, were found in the yard. ‘Chats’ told the officers that this was the remainder of the drugs. Two charges were laid by Hariprashad against all four men – one for each quantity of cocaine found.
According to the judgment summary, ‘Chats’ pleaded guilty and was sentenced to four years. The others pleaded not guilty and were tried by a Magistrate. The Magistrate held that Bridgelall was the tenant of the premises and that he had knowledge as well as custody and control of the cocaine. She found that the fish glue business was a mere guise to cover up the drug trafficking operation. Accordingly, she found him guilty on both charges and, given the large quantity of cocaine, she imposed the maximum five-year prison term for each charge and ordered Bridgelall to pay a combined fine of $254,400,000.
During the pendency of the appeal, the judgment summary said, Bridgelall left Guyana for Canada to seek medical treatment and he still resides there.