Ming et Al v R
| Jurisdiction | Bermuda |
| Judge | Roberts, P. |
| Judgment Date | 11 March 1992 |
| Neutral Citation | BM 1992 CA 4 |
| Docket Number | Criminal Appeals Nos. 17, 18, 19, 20 and 21 of 1991 |
| Court | Court of Appeal (Bermuda) |
| Date | 11 March 1992 |
Court of Appeal
Roberts, P., Da Costa J.A., Henry, J.A.
Criminal Appeals Nos. 17, 18, 19, 20 and 21 of 1991
Mr. Barrie Meade (A.G.'s Chambers) for the Crown
Mr. John Perry Q.C. for Ming (D1)
Mr. Perry Trott for Ebbin (D4)
Mr. Delroy Duncan for Dillas and Smith (D2) and (D3) respectively
Criminal Law - Appeal against Conviction — Importation of drug; conspiracy to import; possession: obstruction 5 appellants — 4 convicted on various counts, 1 pleaded guilty to 2 counts — Sentences: 20 years to run concurrently on each count — Grounds: the directions of the trial judge on corroboration were wrong or inadequate — Duties of judge as a matter of law — Court sees nothing wrong with the general directions of the judge — Taking some of the passages in the summoning — up the possibility exists that the jury may not have realised that each accomplice must be considered separately — Cannot be sure that the jury may not have been misled — Judge's error affected all the accused — Evidence cited by the judge as capable of amounting to corroboration wrongly so described — Appeals of 4 appellants succeed — Retrial ordered for two.
On 7th May, 1991, Ming (D1), Dillas (D2), Smith (D3) and Ebbin (D4) appeared before the Supreme Court, on an indictment containing five counts –
Count 1. Importation of a controlled drug, (cocaine) between 11th and 20th May, 1990, contrary to section 4(3) of the Misuse of Drugs Act, 1972 (“the Act”).
Count 2. Conspiracy to import a controlled drug (cocaine) between 1st October 1988 and 20th May, 1990, contrary to section 28 of the Act.
Count 3. (Ming only). Possession of a controlled drug (cannabis) contrary to section 6(2) of the Act.
Count 4. (Smith only). Possession of drug equipment contrary to section 9(2) of the Act.
Count 5. (Dillas only). Obstructing a police officer, contrary to section 25(6) of the Act.
After a trial lasting fifteen days, Ming was convicted on Counts 1 and 2 and acquitted on Count 3. He was sentenced to 20 years concurrent on each Count.
Dillas (D2) was convicted on Counts 1, 2 and 5 and sentenced to 20 years concurrent on each of the first two Counts and to 12 months concurrent on Count 5.
Smith (D3) was convicted on Counts 1, 2 and 4. He was sentenced to 20 years imprisonment concurrent on Counts 1 and 2 and to 3 years imprisonment concurrent on Count 4.
Ebbin (D4) was convicted on Counts 1 and 2 and sentenced to 20 years imprisonment concurrent on each Count.
Miranda (D5) pleaded guilty to Counts 1 and 2, and sentenced to 20 years imprisonment concurrent on each Count. He was also sentenced to concurrent sentences for other offences which concern us here.
The first four defendants have appealed on various grounds against their convictions. The grounds largely, though not exclusively, apply to all defendants. It will be convenient, therefore, to deal first with the submissions made on behalf of Ming, as these were generally adopted by other counsel.
All five defendants sought leave also to appeal against sentence, though their applications were refused by a single judge. We thought it wiser not to deal with any of these applications so far, but to decide firstly if the convictions against the four defendants can stand. As Miranda (D5) received sentences of 20 years in total, he cannot suffer any injustice from the postponement of consideration of his application until the next session of this court.
There can be no doubt that, between October 1988 and May 1990, large amounts of cocaine, with all the damage which this must necessarily cause to the social fabric of Bermuda, were imported from the U.S.A. It has to be decided, however, whether the Crown has established that the first four defendants took part in the importation of cocaine between 11th and 20th May 1990 (Count 1) or in the conspiracy to import cocaine between 1st October 1988 and 20th May 1990 (Count 2).
In October, 1988 Victor Alongi, who gave evidence for the prosecution made a trip to Bermuda on his own behalf, carrying 2 (ozs. of cocaine. The next day, he said, he met Ming on a cruise boat, where Ming was working as an entertainer. Alongi offered the cocaine to Ming, who put Alongi in touch with Dillas (D2) and Ebbin (D4). The next day, Alongi went to the apartment occupied by D2 and D4. Here Alongi sold about 2 ozs. of cocaine to them.
A week later, Alongi sold a further 8 ozs. of cocaine, which he brought into Bermuda, to D2 and D4. There was no evidence to connect D1 or D3 with this importation.
Alongi undertook a third trip in the company of Hugo Mata in mid-November 1988, carrying cocaine on his body. He sold the cocaine to D2 and D4 at their apartment. There was no evidence that D1 and D3 took part in this sale.
After this transaction, however, D1 was introduced to Hugo Mata and agreed to hold the proceeds of the sale of cocaine by Alongi to D2 and D4. Alongi and Mata rented an apartment from D1, at a commercial rent. Alongi asserts that he and Mata both had Thanksgiving Dinner with D1.
Between November 1988 and April 1990, according to Trapasso, Debra Lee Morton regularly brought cocaine into Bermuda, for D2 and D4, to whom she delivered it.
Although he had been warned, by members of the Cuban drug syndicate, to keep away from Bermuda, Alongi made a final trip in November 1989, when he supplied cocaine to Murray Beveridge.
There is a gap in the narrative for about a year, until the period covered by the evidence of Angela Trapasso, a courier for Mata. On 15th December 1989 she made her first trip to the island. She later pleaded guilty to a charge of the illegal export of currency and was sentenced to four years imprisonment. She was named in the indictment with the other five defendants.
It is not in dispute that both she and Alongi were both accomplices in relation to the Count of conspiracy, since this covers the period when both were active in the importation of cocaine into Bermuda. Alongi did not take any part in the offence charged in Count 1, though the Crown relies on his testimony as showing that the conspiracy had started in 1988. Trapasso was a key witness for the Crown on Count 1, as well as on Count 2.
During her first trip to Bermuda, Trapasso stayed for about three days, delivering cocaine to Julio Junki. He gave her US$15,000, with which she left. She returned to Bermuda on 15th February, 1990 and delivered cocaine to Antonio Miranda (D5), who was a drug distributor and already in Bermuda. On 6th April, using the name of Cheryl Owens, she again delivered cocaine to Miranda, afterwards leaving Bermuda for the U.S.A. with US$248,000. On 12th May, 1990, Trapasso brought 3 kilos of cocaine into Bermuda on the (Royal Viking Star”. She delivered this to Miranda. She was arrested on 18th May, 1990, while leaving Bermuda on the same ship, with US$19,000 in her possession.
According to Trapasso, some of the cocaine which she brought was intended for Dillas and Ebbin. She did not implicate Ming or Smith.
The principal items of evidence which, the prosecution says, connect Ming (D1) with Counts 1 and 2 are as follows.
Ming met Alongi in October 1988 and introduced him to Dillas and Ebbin for the purposes of a sale to the latter of cocaine by Alongi. A week later, Alongi imported more cocaine for Dillas and Ebbin. In November, with Mata, Alongi brought in further cocaine for Dillas and Ebbin. This time Ming looked after the proceeds of sale.
There is no further evidence which implicates Ming, or any of the other defendants, until 12th January, 1990, when Miranda, who had arrived in Bermuda in connection with the import of cocaine, gave, as his address, Ming's apartment in Sunnyside Park.
Ming visited Miranda three times at Valley Road, between 5th and 20th February, 1990. About that time there were numerous calls between Ming's apartment and that occupied by Dillas and Ebbin. In April, there were calls between the residence of Ming and that of Miranda and vice versa.
On 18th April, 1990, Ming visited a travel agent, and asked Mrs. Wendy Robinson there to arrange for Miranda to leave Bermuda. On 26th April, Ming went with Miranda to retrieve his boarding pass.
Just after midnight on the 18th May, 1990 a call was made from Ming's residence to that of Miranda, who was arrested later that morning and found to be in possession of 377 grams of cocaine and US$81,000, packed in blocks of $3,000.
On 16th May, before his arrest, Miranda visited Ming. An exchange took place, between them, of unidentified items. This was observed by D.C. Swift.
On the evening of 18th May, the police raided and searched the residence of Ming and discovered there –
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(a) BD$15,000 packed in bricks of $3,000, this being the amount of Bermudian Dollars which any bank will change into US dollars without question.
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(b) Miranda's Federal Express receipt for a parcel sent on 26th April, 1990.
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(c) A slip of paper bearing Miranda's name and the date 26/4/90. Ming tried in the course of the trial to get Mrs. Robinson to say that he had never been in the office himself. Ming admitted that some of the money found in his residence may have belonged to Miranda.
Ming was interviewed by the police and was unable to provide a sketch of his kitchen, which had supposedly been visited by Miranda. Ming denied that he had met Miranda at his house on 16th May, 1990. He later explained this lie, in evidence, as due to a desire to distance himself from Miranda, on hearing that the latter was involved in drug dealing.
Thus the Crown case was that Ming had been involved throughout and that the original meeting between Ming (D1), Alongi, Dillas (D2) and Ebbin (D4) established a syndicate for trading in cocaine. On Alongi's third trip, Ming took over...
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