Court File and Parties

COURT FILE NO.: CR-22-00000425-0000 DATE: 2024-05-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Counsel for the Crown: Rachael Ward

- and -

TRANH TO Nguyen

Counsel for the Defendant: Will Caven

HEARD: February 13, 22, 23, March 4, 2024

REASONS FOR JUDGMENT

D.E HARRIS J.

[1] Tranh To Nguyen is charged with importation of heroin into Canada. On a flight that originated in Johannesburg, South Africa, via Zurich, Switzerland, and finally landing in Toronto’s Pearson Airport on April 4, 2022, secondary customs inspection revealed 11 kilograms of heroin in his checked pink suitcase. The majority of it was in a well-concealed false bottom. In addition, there were two laptop computer bags within the pink suitcase which had heroin sewn into them.

[2] Mr. Nguyen testified and denied knowledge of the heroin. The sole question to be decided is whether the Crown has proved beyond a reasonable doubt that Mr. Nguyen had knowledge and control of the drugs and was therefore in possession of the heroin in the suitcase. If he was in possession, then he imported the drug into Canada.

[3] Mr. Nguyen testified. It was his evidence that he was in Johannesburg on business. The suitcase was given to him by a business associate to bring to a banker in Toronto. He did not know nor did he suspect that there were drugs in the suitcase.

[4] This is a case in which the decision largely depends on credibility. If Mr. Nguyen’s evidence that he did not know, in the context of all of the evidence, is believed or leaves a reasonable doubt, he must be acquitted: R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.).

Mr. Nguyen’s Evidence

[5] Mr. Nguyen is 76 years old. He was born in Hue, Vietnam and left there in 1966. After some time in Belgium, he emigrated to the United States in 1977. He has lived in California for a lengthy period of time and currently lives in Santa Rosa with his wife. He is retired.

[6] Mr. Nguyen testified that he is highly educated. He obtained a degree in electrical engineering in Belgium in 1972. He also has a master’s degree in science and another master’s degree in cybernetics. Mr. Nguyen worked for a computer company in Belgium before coming to the United States. He worked for the same company in California that he had worked for in Belgium. Subsequently he worked at other companies, and did some work later on in the aeronautics field.

[7] Mr. Nguyen began night classes in the field of business in 1979, finishing in 1983. He did not get a degree. In 2013 he officially retired. He became the managing partner of a company he founded called the TrippleStar Investment Group. It invests money in various projects. A LinkedIn profile together with Mr. Nguyen’s picture was entered into evidence. He says he was licenced as a security dealer and was qualified to do financial transactions in 1992. Mr. Nguyen testified that he was debt free at the time of the alleged offence. He was receiving a pension and lives comfortably with his wife who is a cosmetic technician.

[8] The trip to Johannesburg, South Africa first came up March 21, 2022. He received a WhatsApp invitation from a man calling himself Colin Cramer who lives in Johannesburg. A partner of Mr. Nguyen’s, Mohammed Abdula, had given Cramer Mr. Nguyen’s name. It was mentioned to Mr. Nguyen by Abdula that the business involved 5.1 million dollars.

[9] WhatsApp communications between Mr. Nguyen and Cramer were introduced into evidence. They were extracted from Mr. Nguyen’s phone. They were admissible as original evidence and were confirmed as authentic by Mr. Nguyen in his testimony. Mr. Nguyen testified that he had never met or spoken to Cramer before the events recounted at this trial. During their business dealings which began with a WhatsApp text on March 21, 2022, he never spoke to Cramer nor met him in person or over video link. In cross-examination, he clarified that he did in fact speak to Cramer several times after the initial texts but the calls were relatively short. These calls were documented on his phone.

[10] Cramer bought Mr. Nguyen’s plane ticket to Johannesburg and forwarded it by WhatsApp. One of the first communications from Mr. Nguyen to Cramer requested the agenda for the business they were going to conduct. Mr. Nguyen testified that he was attempting to find out what the purpose of the meetings was going to be. Mr. Nguyen testified that he was expecting to meet with investors as he commonly did. But he did not know the investors or anything whatsoever about them. No agenda was forthcoming.

[11] On March 25, 2022, Mr. Nguyen asked Cramer for a memorandum of understanding to clarify things. Again, he never received this from Cramer. On March 27, 2022, Mr. Nguyen left home for South Africa. He only expected to be there for a few days. Cramer had made the hotel arrangements which, like the ticket, were fully paid by him. Mr. Nguyen stayed at a hotel near the airport called City Lodge. He arrived on March 28, 2022. The hotel bill was filed as an exhibit.

[12] Mr. Nguyen never ended up meeting with Cramer or any investors. He stayed in the hotel the whole time he was in South Africa with short sojourns for necessities. On March 30, 2022, a banker attended his hotel, a woman by the name of Pam Daniels. She had Mr. Nguyen sign a document opening an account with First National Bank. Cramer said that it was for the purpose of preventing an impostor from knowing what was going on. Mr. Nguyen did not pay much attention to this cryptic statement.

[13] The hotel was only paid for up to March 29 and so Mr. Nguyen paid for the additional days in cash. The original agreement with Cramer was that Mr. Nguyen would be given a stipend. A driver was sent with money on March 30, a man by the name of Mike. It was about $500 to pay for the hotel and meals. As mentioned, Mr. Nguyen also met with Pam Daniels who came with the driver. At this point, Cramer was not responding regularly to his messages.

[14] On March 31, Cramer wrote that he was away in Capetown. Mr. Nguyen expected to go home the next day, April 1. But Cramer sent an itinerary which had the flight leaving the next day. No reason was given for the change. He wrote Cramer to ask why his stay had been extended but never got an answer.

[15] Cramer wrote on April 1 that the “lady will bring everything to you today.” Pam Daniels attended the hotel again and gave him an investment package. On April 2, he received a ticket from Cramer. But it was too late to catch the flight and it had him going to Toronto. He had never discussed going to Toronto with Cramer. Mr. Nguyen did not like the idea of going to Toronto; he did not have his COVID vaccination.

[16] The trip had been a failure and even his safe and timely return home was a disaster. It was eventually mentioned by Cramer that the purpose of the trip to Toronto was to meet a banker in Toronto who had arranged the deal and to bring that person a gift. There was no flight from Toronto to California booked. Mr. Nguyen was expecting to get money from the banker in Toronto to buy a ticket home to California.

[17] Finally, after much back and forth and confusion, on April 3, 2022, Cramer told him that the banker would come to the hotel again. Mr. Nguyen was not expecting this. Pam Daniels and the driver, Mike, arrived. Mr. Nguyen testified that he signed a six-million-dollar authorization and a fund transfer document. Also, he was given the pink suitcase in his room at about 4:00—4:30 p.m., the suitcase in which the drugs were later found by the Canadian Border Services Agency (CBSA). He was told it was a gift for the banker he was to meet in Toronto. Cramer asked him to take a picture of the gift luggage. The suitcase was opened briefly by Mike so a picture could be taken. Mr. Nguyen testified that he did not know why he was asked to take the picture. It was only after sending the picture that Mr. Cramer received his airline ticket information.

[18] The picture was on Mr. Nguyen’s phone when it was seized and it was entered into evidence at trial. It only shows half the contents, the other half is obscured by the internal suitcase cover. The customs search later found clothing in the suitcase, for the most part. Mr. Nguyen’s belongings were in another checked suitcase. Mike asked Mr. Nguyen to plastic wrap the pink suitcase which he did at the airport. Mr. Nguyen checked the suitcase on to the flight. He did not notice anything unusual about its weight.

[19] Once in Toronto, he was supposed to stay in a hotel and see the banker the next day. Mr. Nguyen testified that while in Toronto, he planned to visit his wife’s sister in Brampton. Mr. Nguyen gave an account of what occurred during the secondary inspection. Border Security Officer (BSO) Schultz had earlier testified in the Crown’s case about this interaction. Based on his notes, he had said that Mr. Nguyen told him that he had been in South Africa to buy an apartment or make a real estate investment. A friend by the name of Lynn Ho was to pick him up at the airport. To the standard three questions with reference to his luggage—Are these your bags? Did you pack them yourself? Do you know what is inside?—he answered each one with a yes. Mr. Nguyen testified that his answers were not “entirely truthful.” He explained that it was more convenient to answer as he did; he had no concern about it. Mr. Nguyen also told BSO Schultz that the laptop bags were gifts. He did not say anything about bringing the pink suitcase to the banker as a favour to Cramer.

Analysis of Mr. Nguyen’s Evidence

[20] In the context of all the evidence, I must evaluate the credence that should be given to Mr. Nguyen’s evidence that he did not know there was heroin in the pink suitcase. If there is reasonable doubt on the issue, then he must be acquitted.

[21] There are several aspects of the business Mr. Nguyen was to transact in South Africa which are unusual. Mr. Nguyen embarked on a distant trip based on a cold text from someone he did not know. Although he testified that Cramer was referred to him by his partner Abdula, texts between Mr. Nguyen and Abdula cast doubt on whether he was in fact a partner. Mr. Nguyen admitted in cross-examination that he was actually an investor.

[22] Furthermore, the business reason for the trip and its details were exceedingly vague and to Mr. Nguyen’s admitted knowledge, without any real substance. Based on his evidence, he did not really know why he was going to South Africa. The supposed investors never materialized nor did Cramer himself. Mr. Nguyen claimed to be regularly involved in major transactions worth tens of millions of dollars but the business dealings here were decidedly bizarre by any reasonable standard. Mr. Nguyen admitted that he had no business clothes with him. He did not have a credit card or really any cash either and was totally dependant on Cramer for his room, board and travel. The business documents he signed in South Africa, their details and purpose, were vague and nebulous.

[23] The plane ticket purchases were ad hoc and spur of the moment. Everything about diverting Mr. Nguyen’s arrival at the last moment to Toronto was strange. There was no explanation for why he was going to Toronto provided to him or reasonably imaginable on the evidence. The request to carry a suitcase as a gift to a banker was totally implausible. Although Mr. Nguyen testified that he only had the suitcase in his possession for about 10 minutes from the car to check-in at the Johannesburg airport, its natural weight was increased by the 11 kilograms of heroin secreted within it, a major difference. It would have been hard not to notice that such a small bag weighed so much, especially based on what he saw in the bag at the time the bag was photographed in his hotel room.

[24] Mr. Caven argues for the defence that there are many different variations and cultures in the conduct of business. Although there were some strange aspects here, they were only idiosyncrasies, a slightly different way of doing things. In evaluating this submission, I cannot agree. In their cumulative weight, the business steps and the surrounding circumstances were more than just atypical. They made no logical sense.

[25] With respect to the ultimate issue of whether Mr. Nguyen knew that there was heroin in the pink suitcase, I reject that Mr. Nguyen was in fact on a trip with a business purpose as he testified. That there was a business motivation is incredible. I also reject the evidence with respect to the pink suitcase. It is completely unbelievable that Mr. Nguyen was given a suitcase as a gift to give to a phantom person in Toronto without knowing what was inside of it. No reasonable person would have agreed to transport the bag especially in light of the suspicious and completely unsatisfactory business goings on with Cramer that preceded it. On his evidence, any trust in Cramer was irretrievably broken well before agreeing to take the pink suitcase. I use this inference, in the context of all of the evidence, as a factor going against Mr. Nguyen’s credibility.

[26] The value of the heroin was admitted to be between almost nine hundred thousand and two million dollars depending on the quantities in which it was sold. That is another factor pertinent to this issue. The persons behind the importation would not likely have entrusted this high potential retail value to a blind courier: R. v. DaCosta, 2015 ONSC 1478 at paras. 173, 176.

[27] Of importance, Mr. Nguyen admitted lying to BSO Schultz with respect to the three questions. I do not agree that it was simply more convenient to do so. If there was nothing illegal in the suitcase, there was nothing to hide and no reason to lie.

[28] For these reasons, I reject Mr. Nguyen’s evidence and find that in the full context of the other evidence in the trial, it does not leave me in reasonable doubt with respect to the crucial question of knowledge.

[29] I should add that it is unnecessary to determine the exact purpose of the texts with Cramer. They could have been fall back to be relied upon if the scheme was uncovered and the heroin was discovered by the authorities. But the texts, like Mr. Nguyen’s accompanying testimony, did a singularly poor job of establishing a course of legitimate business. They could have been code but that does not seem likely. In any case, one thing is certain: it would be a mistake to assume that the texts were all the communications Mr. Nguyen had with people in South Africa before he went and while he was there. He might well have had another device that he disposed of or some other means of communication.

[30] Turning to the third step in W.D. and the issue of whether the Crown has proven beyond a reasonable doubt that Mr. Nguyen knew that the heroin was in the pink suitcase, I find that the Crown has discharged their burden. Having rejected Mr. Nguyen’s evidence that this was a bona fide business trip nor a trip with some other legitimate purpose, based on all the evidence and in particular the finding of the drugs in the pink suitcase, it is a reasonable inference that this was a trip for the purpose of transporting and importing drugs into Canada.

[31] The heroin was in the suitcase in the computer bags and in the false compartment. The heroin in the computer bags and the false bottom was concealed. However, just because the drugs were hidden does not mean that Mr. Nguyen did not know about them.

[32] What Mr. Nguyen said to BSO Schultz, which was undisputed for the most part, was quite divergent from what Mr. Nguyen testified on the stand. There was a blatant inconsistency between his testimony that he did not know what was in the bag and what he said at secondary that it was his, he did know what was in it and had packed it himself. Nor did he mention at secondary what he testified to on the witness stand: he was handing the bag over to a person in Toronto and that he was carrying it as a favour to Cramer. Taken cumulatively with the other circumstances, I draw a conclusion of likely guilt from the after-the fact lies and concealment in reference to the pink suitcase: R. v. White, [2011] 1 S.C.R. 433; R. v. White, [1998] 2 S.C.R. 72.

[33] In my view, the only reasonable inference, based on all the evidence, is that Mr. Nguyen had full knowledge of the heroin in the suitcase: R. v. Villaroman, 2016 SCC 33; R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.) at p. 488; see also R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.) at para. 15-16; R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1. It was acknowledged that the suitcase was his and therefore it is also proven that he had the necessary element of control. In law, Mr. Nguyen was in possession of the drugs and imported them into Canada.

[34] For these reasons, there will be a finding of guilt. The indictment will be endorsed accordingly.

D.E. HARRIS J. Released: May 24, 2024