THE QUEEN v HIN CHING BENNY LAM [2002] NZCA 248 (23 October 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA282/02

THE QUEEN

V

HIN CHING BENNY LAM

Hearing:	22 October 2002
Coram:	Tipping J Williams J Baragwanath J
Appearances:	M I Koya for Appellant K Raftery for Crown
Judgment:	23 October 2002

judgment of the court DELIVERED BY BARAGWANATH J

[1] The appellant challenges on appeal the sentence of 9 years 6 months imprisonment and minimum non-parole period of 6 years imposed by the District Court at Auckland on 26 July 2002 in respect of a count of importing the class B controlled drug MDMA known as Ecstasy.

[2] The appellant is a 31 year old Hong Kong national who arrived at Auckland International Airport just after midday on 3 May 2002 on a flight from Taipei. A search revealed that he had attached to his body approximately 8,500 tablets of MDMA. Its street value in New Zealand is of the order of $425-850,000.

[3] The appellant speaks little English and knows no one in New Zealand.He said that he is a married man who shares a two-bedroom state-owned unit in Hong Kong with his parents, his wife and their two-year-old daughter.He had been employed as a lift driver at the Hong Kong container terminal working 7 days a week and also worked part-time at night in a disco.The companies he worked for both went out of business and by January 2002 he was unemployed and had no source of income.He said he had to borrow to provide for his family to provide regular physiotherapy required to prevent his daughter becoming permanently handicapped and his father was suffering from cancer. Having obtained the loan in April 2002 of $HK20,000 (approximately $NZ5,300) from a man in Hong Kong and being unable to repay he and his family were threatened with violence.He said he was told by the lender he could clear the debt and earn a further $HK20,000 by transporting "shaky head" tablets to New Zealand. He said that all the arrangements were made by the lender.He went to the Netherlands and picked up the drugs which he believed were legal in that country and then to New Zealand via Taiwan where he remained in transit for 14 hours.He was aware that the drugs were illegal in Taiwan but did not know whether they were illegal in New Zealand.He was to book into a Mangere motel and contact a cellphone number in Hong Kong to receive further instructions.

[4] The sentencing Judge described the offending as a planned and premeditated operation intended to release the drugs on to the New Zealand market for financial reward either of the appellant or of associates.He recounted the number of tablets, their street value and consequences and recorded the importance of deterring others from considering New Zealand to be a "soft touch" for those minded to distribute illicit drugs.He referred to leading sentencing decisions and to the subsequent enactment of the Sentencing Act 2002.In terms of s8(d) of that Act he assessed the offending as near the most serious for which the 14 year penalty under s6(2)(b) of the Misuse of Drugs Act 1975 was prescribed, selecting a 12 year starting point for this sentencing. He gave a 2½ year discount to pay some regard to the appellant's personal circumstances and to reflect his prompt plea of guilty, observing that, given the drugs had been strapped to his body, he had little choice.He considered that the case warranted fixing a minimum non-parole period, which he set at 6 years.

[5] The Crown conceded that in terms of s152 of the Sentencing Act there had in fact been no jurisdiction to impose a minimum non-parole period under s86, since the offending preceded its commencement and it was not a "serious violent offence" so as to fall within the exception.That order is set aside.

[6] Mr Koya submitted that the 9½ year term was clearly excessive.While the sentencing Judge had described this as the largest importation of MDMA in New Zealand that was not so; it had been exceeded in R v Wu CA65/02 (12 June 2002) decided in this Court the previous month.There the appellant had been sentenced after a plea of guilty to 8 years imprisonment for possession for supply of the Class A drug cocaine and while on bail imported more than 25,000 tablets of MDMA.On conviction following a defended trial he was sentenced by the High Court to a cumulative 10 years.This Court on appeal reduced the cumulative sentence from 18 to 16 years on application of the totality principle.Wu is however of limited assistance, given that the sentencing decision for both the High Court and this Court was what cumulative sentence should be added to the 8 year term.

[7] In R vWatkins CA354/97 (26 February 1998) the appellant had been sentenced in the District Court to concurrent terms of 7 years for importing and conspiracy to supply some 5,200 MDMA tablets.A starting point of 9 years was reduced for two factors, that the appellant although a principal was not the most serious offender, and his early guilty plea and co-operation with the police.In dismissing the appeal it was unnecessary for this Court to consider whether a sterner penalty would have been sustainable.

[8] It is a feature of this case that the appellant has become entitled to the lower minimum parole period introduced by the new sentencing and parole regime and yet, as we have held, is not liable to have that minimum parole period increased by the Court.That transitional anomaly will not avail offenders whose offence is committed after 30 June 2002.In a suitable case there will no doubt fall for consideration the relationship between the new parole provisions and s8(d) relied on by the Judge, which requires the Court to

...impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.

[9] But that is unnecessary in the present case, since we consider that both the Judge's starting point and his ultimate sentence were consistent with the authorities cited (see also R v D CA43/00 (23 March 2000) and R v Scanlan CA556/99 (12 April 2000)) and justified by the gravity of the offending.

[10] The appeal is accordingly dismissed.

Solicitors

Crown Solicitor, Auckland