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CHAN v R [2004] NZCA 145 (14 July 2004)

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CHAN v R [2004] NZCA 145 (14 July 2004)

Last Updated: 26 July 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA93/04

THE QUEEN

v

WAN SANG CHAN

Hearing: 12 July 2004

Coram: Anderson P
McGrath J
Hammond J

Appearances: D S G Deacon for Appellant
H D M Lawry for Crown

Judgment: 14 July 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1] This is an appeal against a sentence of eight years imprisonment, with a minimum period of imprisonment of four and a half years imposed by the High Court (Laurenson J) following a plea of guilty to one count of importing the Class B controlled drug known as Ecstasy, contrary to s6(1)(a) of the Misuse of Drugs Act 1975.
[2] The appellant was one of three people who, in July 2002, imported into New Zealand 19,901 Ecstasy tablets estimated to have a street value of between $1.2 and $1.6 million. The three arrived from Hong Kong via Seoul in Korea with the tablets divided between the actual couriers, Kwok Cheung Hui and Chun Cheong Share. The role of the appellant, a woman, was to oversee the conduct of the two men and physically to receive the drugs from them once brought into New Zealand.
[3] Chun Cheong Share pleaded guilty before committal and indicated his willingness to give evidence for the Crown against his accomplices. He was sentenced in the District Court (Judge Clapham) and, with an appropriate discount for his plea and co-operation, received a sentence of four years imprisonment with no fixed minimum period. Kwok Cheung Hui was the next to plead and he was sentenced in the High Court (Laurenson J) to nine and a half years imprisonment with a minimum stipulated period of five and a half years.
[4] In sentencing both this appellant and Kwok Cheung Hui, Laurenson J had regard to this Court’s decision in R v Lam CA282/02, 22 October 2002 where a starting point of 12 years imprisonment had been adopted in respect of the importation into New Zealand by a Hong Kong National of 8,500 tablets of Ecstasy. Laurenson J considered that, taking into account the need to preserve parity, a similar starting point should be adopted in Kwok Cheung Hui’s case, discounted by two and a half years for the guilty plea. He was influenced by the same considerations in adopting a starting point in the present case of 13 years imprisonment. That was then discounted to eight years to take account, not only of the guilty plea but even more significantly, matters of co-operation with the authorities for which Mrs Chan could be in some personal danger. We do not need to recount the exact nature of the co-operation, it being sufficient to indicate our approval of the substantial discount that was accorded.
[5] Kwok Cheung Hui’s case came on appeal to this Court as CA192/03, 28 August 2003. The appellant was able to invoke this Court’s decision in R v Wong and Chen CA378/02, CA379/02, 25 March 2003. After examining R v Wallace [1999] 3 NZLR 159, and R v Lam this Court said:

We have to say also that we have had some difficulty in reconciling Lam with Wallace, which is the case by which sentencing Judges should continue to be guided, though recognising that the sentence actually imposed on Mr Wallace was said by this Court in R v van Lent, CA166/99, 29 September 1999, to have been relatively lenient. It is to be remembered that the guidelines in Wallace are directed to persons playing a role in the organisation of the criminal activity.

[6] In R v Hui this Court held that having regard to the guidance of R v Wallace and R v Wong and Chen, the 12 year starting point adopted by Laurenson J must be considered too high. The Court considered that the appropriate starting point should be nine years and that allowing a two year discount for the guilty plea the sentence should be reduced to seven years with a minimum period of imprisonment of three years.
[7] The submissions for the appellant and the Crown, both written and oral, lost nothing through their admirable succinctness. For the appellant it was submitted that just as the 12 year starting point for Hui was too high, so the 13 year starting point for this appellant was excessive. Mr Deacon nevertheless conceded that this appellant’s role must be considered slightly greater than those of both Hui and Share and that it was not inappropriate to take a starting point for her of one year above that adopted for Hui. Next, he submitted that the Judge appropriately recognised the combination of the guilty plea and the co-operation of this appellant to an extent that ultimately reduced the sentence below that imposed on Hui who had not himself indicated co-operation of such a nature. Applying these factors to a revised starting point consistent with this Court’s approach in R v Wallace and R v Wong and Chen and R v Hui, the appropriate sentence should be six years imprisonment with a minimum non-parole period of two and a half years. Although not using these words, counsel’s submission was to the effect that this result would preserve the symmetry of Laurenson J’s sentencing approach to this appellant and Hui whilst making appropriate adjustment to the starting point.
[8] Mr Lawry’s submissions recognised the Crown’s difficulty in the light of R v Wong and Chen and similar authorities. However, he argued, a starting point of ten years was appropriate and the offending was such that a final sentence of between six and seven years with a minimum non-parole period of about three years ought be imposed.

Decision

[9] Informed by authorities which we were not available to Laurenson J, counsel for the appellant and for the Crown mirror each other’s submissions with only minor differences of perspective. In our view they are correct in their principle and application. We see little point in further paraphrasing their submissions beyond the extent we have already for the purpose of this judgment. Just relativity with the sentence and minimum period of imprisonment imposed on Hui will be achieved by the imposition on this appellant of a sentence of six years imprisonment with a minimum period of imprisonment of two and a half years. The appeal against sentence is allowed. Accordingly, the sentence and minimum period imposed in the High Court are quashed and in lieu there will be a sentence of six years imprisonment with a minimum period of imprisonment of two and half years.

Solicitors:
D S G Deacon, Wellington for Appellant
Crown Law Office, Wellington

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[1]	This is an appeal against a sentence of eight years imprisonment, with a minimum period of imprisonment of four and a half years imposed by the High Court (Laurenson J) following a plea of guilty to one count of importing the Class B controlled drug known as Ecstasy, contrary to s6(1)(a) of the Misuse of Drugs Act 1975.
[2]	The appellant was one of three people who, in July 2002, imported into New Zealand 19,901 Ecstasy tablets estimated to have a street value of between $1.2 and $1.6 million. The three arrived from Hong Kong via Seoul in Korea with the tablets divided between the actual couriers, Kwok Cheung Hui and Chun Cheong Share. The role of the appellant, a woman, was to oversee the conduct of the two men and physically to receive the drugs from them once brought into New Zealand.
[3]	Chun Cheong Share pleaded guilty before committal and indicated his willingness to give evidence for the Crown against his accomplices. He was sentenced in the District Court (Judge Clapham) and, with an appropriate discount for his plea and co-operation, received a sentence of four years imprisonment with no fixed minimum period. Kwok Cheung Hui was the next to plead and he was sentenced in the High Court (Laurenson J) to nine and a half years imprisonment with a minimum stipulated period of five and a half years.
[4]	In sentencing both this appellant and Kwok Cheung Hui, Laurenson J had regard to this Court’s decision in R v Lam CA282/02, 22 October 2002 where a starting point of 12 years imprisonment had been adopted in respect of the importation into New Zealand by a Hong Kong National of 8,500 tablets of Ecstasy. Laurenson J considered that, taking into account the need to preserve parity, a similar starting point should be adopted in Kwok Cheung Hui’s case, discounted by two and a half years for the guilty plea. He was influenced by the same considerations in adopting a starting point in the present case of 13 years imprisonment. That was then discounted to eight years to take account, not only of the guilty plea but even more significantly, matters of co-operation with the authorities for which Mrs Chan could be in some personal danger. We do not need to recount the exact nature of the co-operation, it being sufficient to indicate our approval of the substantial discount that was accorded.
[5]	Kwok Cheung Hui’s case came on appeal to this Court as CA192/03, 28 August 2003. The appellant was able to invoke this Court’s decision in R v Wong and Chen CA378/02, CA379/02, 25 March 2003. After examining R v Wallace [1999] 3 NZLR 159, and R v Lam this Court said:

[6]	In R v Hui this Court held that having regard to the guidance of R v Wallace and R v Wong and Chen, the 12 year starting point adopted by Laurenson J must be considered too high. The Court considered that the appropriate starting point should be nine years and that allowing a two year discount for the guilty plea the sentence should be reduced to seven years with a minimum period of imprisonment of three years.
[7]	The submissions for the appellant and the Crown, both written and oral, lost nothing through their admirable succinctness. For the appellant it was submitted that just as the 12 year starting point for Hui was too high, so the 13 year starting point for this appellant was excessive. Mr Deacon nevertheless conceded that this appellant’s role must be considered slightly greater than those of both Hui and Share and that it was not inappropriate to take a starting point for her of one year above that adopted for Hui. Next, he submitted that the Judge appropriately recognised the combination of the guilty plea and the co-operation of this appellant to an extent that ultimately reduced the sentence below that imposed on Hui who had not himself indicated co-operation of such a nature. Applying these factors to a revised starting point consistent with this Court’s approach in R v Wallace and R v Wong and Chen and R v Hui, the appropriate sentence should be six years imprisonment with a minimum non-parole period of two and a half years. Although not using these words, counsel’s submission was to the effect that this result would preserve the symmetry of Laurenson J’s sentencing approach to this appellant and Hui whilst making appropriate adjustment to the starting point.
[8]	Mr Lawry’s submissions recognised the Crown’s difficulty in the light of R v Wong and Chen and similar authorities. However, he argued, a starting point of ten years was appropriate and the offending was such that a final sentence of between six and seven years with a minimum non-parole period of about three years ought be imposed.