Chen v R [2009] NZCA 445; [2010] 2 NZLR 158 (30 September 2009)

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I INTRODUCTION [1]
Overview [3]
The Crown theory [5]
The verdicts [7]
The sentences [14]

II THE APPEALS AGAINST CONVICTION
Factual context [15]
The trial [23]
Mr Chen: appeal against conviction
Mr Chen’s submissions [24]
I Insufficiency of evidence [25]
II Inconsistency of verdicts [26]
III Errors in summing up [27]
IV Permitting trial to continue after “tainting”; the tenth juror
problem; the decision to continue with ten jurors [28]
Discussion
I Insufficient evidence
Mr Chen’s continuing involvement in the Isaac and Prosperity
shipments [29]
Conclusion as to presence of drugs in all shipments from Polymer 2 [34]
Conclusion as to sales of drugs [35]
Further evidence against Mr Chen [37]
II Inconsistency in verdicts
The law [40]
Its application [41]
III The summing up [44]
(a) Failure to direct the jury as to what evidence was admissible and
inadmissible [45]
(b) The absence of directions as to Mr Fung’s conversation with
“Raymond” and the co-conspirators rule [47]
(c) Party liability under s 66(2) of the Crimes Act [51]
(d) Error in suggesting onus on defence to establish innocence [59]
IV Permitting the trial to continue after “tainting”; the tenth
juror problem; the decision to continue with ten jurors [62]
The ”tainting” [63]
The tenth juror [73]
Were there exceptional circumstances? [77]
Conclusion [81]
Mr Pan: appeal against conviction [82]
Mr Pan’s submissions [83]
I Insufficiency of evidence
The Crown’s submissions [84]
Polymer and Jin Da [85]
Isaac and Prosperity: continuing liability under s 66(2) [90]
Mr Pan’s submissions [93]
Discussion [98]
II Admission of inadmissible and prejudicial evidence [100]
III Unfair revocation of bail during cross-examination and
comment by Judge [108]
IV Wrongly permitting trial to continue with ten jurors [110]
V Misdirection
The summing up – the effect of Mr Pan’s evidence [111]
Discussion [116]
The summing up – motive to lie [118]
Decision [131]
Mr Deng: appeal against conviction
Mr Deng’s submissions [132]

(c) Failure sufficiently to explain elements of joint possession [155]
Mr Fan: appeal against conviction
Mr Fan’s submissions [163]
Decision [168]

III THE APPEALS AGAINST SENTENCE
Mr Chen [169]
Basis of appeal by Mr Chen [171]
Discussion
Mr Chen’s role [172]
The application by the Solicitor-General [180]
Decision [184]
Mr Pan [185]
Decision [189]
Mr Deng [191]
Decision [203]
Mr Fan [204]
Decision [209]
Mr Fung [210]
Decision [215]

12 years on each of the other counts of importing and selling methamphetamine (3-6 and 9-10);

Mr Pan: the same sentences as Mr Chen, including the Solicitor-General applications.

Mr Deng: 17 years with a non-parole period of eight years six months in respect of the Isaac shipment (14)

Mr Fan: 19 years six months with a non-parole period of nine years six months in respect of the Isaac shipment (14)

Ten years imprisonment in respect of selling methamphetamine (Polymer 4 shipment 17);

IV Permitting trial to continue after “tainting”; the tenth juror problem; the decision to continue with ten jurors

(g) On 2 June 2005 (a week after Polymer 2 arrived), Mr Pan remitted more than $200,000 to China (suggesting that Polymer 2 contained drugs).

(h) There were other cash remittances involving Mr Chen which were proximate in time to the Polymer shipments.

(i) With the exception of some unaccounted for cartons (which on the Crown theory had contained drugs) the contents of the Polymer 2 shipment all remained in storage and with the exception of the Polymer 1 and 3 “sale”, there was no evidence of any attempt to market any of the Polymer or Isaac shipments. Yet the overall cost of importing this quantity of product from China into New Zealand plus the travel costs of Mr Chen (for each Polymer shipment) make the lack of sales and of any evidence of marketing inexplicable if the shipments had been legitimate.

(j) The tins in which methamphetamine were concealed in the Isaac consignment were in cartons which carried distinguishing marks. Likewise, 24 cartons from Polymer 4 were found to have been specially marked. Each of the tins inside contained an empty black plastic bag which was stuck to the bottom. At one of the storage facilities, the Police found a serrated knife and a screwdriver and at the other a large set of scales, plastic bags, face masks and a dessert spoon.

(k) 14 more cartons from Polymer 1 and 3 were imported into New Zealand than were exported. When the Polymer 2 shipment was inspected by the Police, 44 cartons of 1038 from Polymer 2 were missing. That is consistent with the Crown case that the other cartons had contained drugs and were disposed of.

(a) The direct evidence of Mr Chen’s close involvement with the transactions finishes with the winding up of the Polymer company. But the pattern of his being in China prior to the despatch of the consignment and being here for its arrival continued at the time of the final Isaac and Prosperity shipments. In R v Fenton [2003] 3 NZLR 439 this Court stated at [32]:

A state of affairs, quality or tendency at a given time may be able to be proved by showing that such a state of affairs, quality or tendency existed not long before or not long after that time: see Wigmore on Evidence (3rd ed), s 437(1). The probative value of the earlier or later happening will depend upon all the circumstances, including the nature of the proof and the probability of changes during the time interval. This is sometimes spoken of as a presumption of continuance but, as Halsbury (4th ed) vol 17(1), para 505 and Cross on Evidence (NZ ed), para 2.3 observe, the better opinion is that it is merely a probability, or presumption of fact, the effect of which will vary with particular circumstances. It is a process of deduction, reasoning and inference from probabilities and depends upon the accompanying facts: Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at p 405 per Dixon J.

(j) We have noted that Mr Chen had “Raymond”’s telephone number saved in his phone.

The Crown case was that the four earlier shipments known as the Polymer 1, 2, 3 and 4 shipments contained methamphetamine and the earlier shipment known as the Jin Da shipment contained pseudoephedrine. The jury accepted these propositions except for the Polymer 1 shipment, most likely because of the possibility that, as the first of the shipments, it may have been treated as a dummy run.

(a) Failure to direct the jury as to what evidence was admissible and inadmissible

(b) The absence of direction as to Mr Fung’s conversation with “Raymond” and the co-conspirators rule

Where 2 or more persons form a common intention to prosecute an unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

[27] Now probable consequence just means that the accused knew it could well happen. A common intention does not have to be reached in any formal way. It does not have to be written down, sometimes it might not even be expressed in words although in this case you might think that it is not the kind of thing that conduct alone would convey. You can look at the behaviour of the parties throughout the whole period; before the importation, during the importation process, after the importation is completed. You can look at all of the evidence to decide, was this accused party to a common intention? And you have got to decide not only was he a party to a common intention, but when. When you are thinking about a particular shipment the question will be – was he still a party to the common intention at that point?

IV Permitting the trial to continue after “tainting”; the tenth juror problem; the decision to continue with ten jurors

I don’t think so. We – we haven’t – we have discussed certain issues that have come up, you know, at the time – that have come up, but there has been no great prejudice one way or the other I don’t think.

I mean I can’t – I’ve got no grounds to question the foreman beyond the issue at hand and my impression of his response is that there’s been no expressed favouritism by a jury member in favour of one counsel for one accused.

(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—

(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:

The remaining question is whether there were “exceptional circumstances” in this case.

We are in no doubt that the legislature had in mind this type of case when identifying without limitation ‘the length or expected length of the trial’ as a specific factor to be taken into account when determining exceptional circumstances

In our opinion the Judge’s decision to continue the trial with ten jurors was inevitable and squarely within the policy of s 374(4).

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

That call data and information consisted of details of outgoing and incoming calls from specified Vodafone mobile numbers.

That call data and information also included subscriber details relating to those Vodafone mobile numbers if known and relevant details relating to the connection/disconnection of those numbers to and from the Vodafone network.

[40] Finally, there was one aspect about the call data evidence that also requires special care and that is the evidence about cellphone sites. There was a very small amount of evidence about cell sites, about how the location of a handset might be identified by reference to the cell site record. However, you did not actually hear any evidence about how cell sites operate, how the data relating to them is collected and recorded, how reliable it is. So you just need to take care when you are thinking about the cell site evidence and where there is reference in any of the schedules to cell sites that do not relate to the actual evidence that was given - and you might remember there was some evidence specifically given by Detective Steedman - but other than that, if you come across evidence of cell sites in schedules, it would be risky to put weight on that evidence.

III Unfair revocation of bail during cross-examination and comment by Judge

Whilst I have sympathy for Mr Pan my own observations of the cross examination today, Mr Pan’s responses and the jury’s apparent reactions mean that I am not prepared to take the risk that will inevitably attach to continuing Mr Pan’s bail. It is my belief that, although Mr Pan may well have known for some time the nature of the challenge to his evidence that is not the same as experiencing the reality of cross-examination. Given the nature of the charges and of the evidence adduced so far I am not prepared to take any risk in this trial.

In the end Mr Pan’s position depends very much on what evidence you accept as being reliable enough to form part of the case against him. The Crown case is circumstantial and you can make up your minds about how far the circumstances go towards proving guilt. But you need to decide, do you accept what Mr Pan said in his defence? Do you accept that he was a legitimate businessman acting to assist business associates innocent of any wrongdoing that they might be up to? Do you accept what Mr Zhang says about things Mr Pan might have done or said? You need to carefully sift through all of that evidence and say to yourselves, what is it that I find reliable and that relates to Mr Pan?

do you accept what Mr Pan said in his defence? Do you accept that he was a legitimate businessman acting to assist business associates innocent of any wrongdoing that they might be up to? Do you accept what Mr Zhang says about things Mr Pan might have done or said?

could, as Ms Dyhrberg argued, have tended to suggest an onus on Mr Pan to substantiate his version, when the onus lay on the Crown to disprove it. But the question for us is whether in terms of s 385 of the Crimes Act there is a wrong or miscarriage of justice. That depends on what impression the jury would have had of the passage heard in context.

...a person facing a criminal charge has an obvious motive to lie about his part in the alleged offending and to seek to implicate others. So you need to exercise some caution when you are assessing the truthfulness of an accused who implicates another person in their evidence.

[77] The Defence argument is to the contrary, as we have discussed, but if you look at the question of motive, why would the complainant make the allegations she has in all of those circumstances? Then compare that with the accused’s situation. Of course, it is trite to say that an accused person has the best motive to be giving an untruthful account, because he is the person on trial. That ultimately is a matter, which you must determine in your assessment of the facts. Remember that Mr Leef does not have to prove his innocence. He does not have to prove anything at all. It is for the Crown to prove that he is guilty of each of the counts in the indictment.

[26] A witness should not be accused of having a motive to lie without there being an appropriate evidential foundation for the accusation. A generalised allegation that an accused person has a motive to lie simply to avoid conviction is particularly serious because it subverts the presumption of innocence. Only if the accused were presumed guilty could there be any basis for the suggested motive.

But remember people do lie for lots of reasons. A lie does not, in itself, mean the person is guilty and you must not think that just because an accused person told a lie to the police that he must therefore be guilty.

Or the third possibility, you might not believe what he told you. If that is your response be careful not to leap straight to the conclusion that because you did not believe him he must be guilty.

There are, however, a few observations that might help you. First, a person facing a criminal charge has an obvious motive to lie about his part in the alleged offending and to seek to implicate others. So you need to exercise caution when you are assessing the truthfulness of an accused who implicates another person in their evidence. On the other hand, just because someone has a motive to lie does not necessarily mean that everything they said is untrue. So you cannot dismiss the evidence just because they might have a motive to lie. It might assist you to think about whether the evidence they gave is consistent with other evidence that you accept as reliable. So, for example, if you were to find that all or part of what a particular accused said about another is consistent with other reliable evidence, you may be able to add it to the body of evidence relating to that other accused. On the other hand you might conclude that you cannot place any weight or only minimal weight on what the witness said. In that case you would put it aside, not take it into account when you are considering the position of the accused whom you are considering about whom the evidence was given.

Further grounds, of continuing the trial with only ten jurors and that the Judge erred by not declaring a mistrial either after the jury became ‘tainted’ or after the tenth juror temporarily went missing, have been dealt with.

Fung: I understand. Tell him that around Sunday the first lot may be given to people.

(whatever) ...I heard there is a lot of cars over there now? Let me know when u back ok bro

[Fan] everything all good...I’ll go pick up the cars tomorrow...and take it to the dealer...

[whatever] ...please leave me some good cars to drive ok. I will try to come back asap.

[Fan] I will have 40 cars tomorrow...and pick up 50 cars from customs after...this weekend...so I leave a cup of car 4 u to sell ok?

[whatever] okok I understand cup is not enough mate...haha need more than that...

Counsel for Mr Deng submitted that for Mr Fan to ask the other party not to call suggested that Mr Fan was withholding information from Mr Deng, something inconceivable if Mr Deng had arrived to give him instructions about importing the Isaac methamphetamine.

Ms Caulson’s evidence just makes it clear that it is not safe to rely on the evidence of the fluorescence on the clothing and hands and I am going to direct you to disregard that evidence when you are thinking about Mr Deng’s position.

Mr Deng did not make a statement to the police and he did not give evidence and I must remind you that you must not take from those facts anything adverse. Those were decisions that Mr Deng was perfectly within his rights to make.

The next circumstances relied upon by the Crown is Mr Deng going with Mr Fan to St Lukes. Potentially the Crown says once again that there is no innocent explanation that would justify his accompanying Mr Fan to pick up drugs or returning to the house with what appeared to be 20 kgs of methamphetamine. The Crown says that Mr Deng’s presence at Kohimarama and at on the trip to St Lukes and back speak for themselves and that it is implausible to suggest any innocent reason for him being there or indeed any reason for Mr Fan to allow him to be there if he was in fact not involved in the drug dealing.

Everyone arrested or detained ... shall have the right to refrain from making a statement ...

Fact-finder not to be invited to infer guilt from defendant's silence before trial

(1) This section applies to a criminal proceeding in which it appears that the defendant failed—

(a) no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and

(b) if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.

In a criminal proceeding, no person other than the defendant or the defendant's counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.

Inferences against an accused may be drawn as a matter of logic and commonsense from his or her failure to give an explanation in the face of evidence of guilt calling for one.

Possession of a Class A controlled drug for sale (methamphetamine) on 22 May 2006

1 Was the substance found at Kohimarama Road on 22 May 2006 methamphetamine? If No, find Not Guilty. If Yes, proceed to Step 2.

2 Did Deng Guo Wei know that the substance was present and that it was a controlled drug? If No, find Not Guilty. If Yes proceed to Step 3.

3 .Did Deng Guo Wei have either physical custody of or the power to exercise control over the methamphetamine? If No, find Not Guilty. If Yes proceed to Step 4.

Did Deng Guo Wei intend to exercise control over the methamphetamine? If No, find Not Guilty. If Yes, proceed to Step 5.

5 Was Deng Guo Wei in possession of more than 5 grams of methamphetamine? If No, find Not Guilty. If Yes, find Guilty.

When you are considering the charge against Mr Fan and later against Mr Deng remember that possession can be either alone or shared. The Crown case is that both of these accused had possession and both are guilty. Mr Fan’s position is that he did not have possession and Mr Deng did. Mr Deng’s position, put by Mr Haig in cross-examination, is that Mr Fan had possession and Mr Deng did not.

The significant issue in relation to Mr Deng is whether he had possession of methamphetamine in the sense of knowingly having custody or control over it and intending to exercise that control whether it was alone or whether it was with Mr Fan.

He sought to argue as further grounds lack of preparedness to deal with the chat log evidence and a mistranslation of Mr Chen’s evidence.

A primary objective of a sentencing Judge in a case such as this is to deter those who might become involved in this trade. Those who come to this country for the purposes of criminal offending on this scale take the risk that they will be caught and imprisoned far from their families. Deterrence will not be achieved if those who choose to target this country in that way are shown leniency when the risk they willingly undertake becomes reality. Your offending is of such gravity that I am not persuaded that the penalty I intend to impose is disproportionately severe.

Methamphetamine abuse can fairly be characterised as the most serious drug problem the country faces at present. The various ways in which the drug threatens the community are well-known. Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side-effects. It induces aggressive and irrational behaviour, and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved at all levels. ... It is submitted, with respect, that if it is appropriate to draw any distinction between Class A drugs, methamphetamine can fairly lay claim to a place in the most serious category.

The Court took a similar view, adopting at [36] the following sentencing bands in cases involving the importation of methamphetamine:

(a) Band one – low-level importing (less than 5 g) – two years six months’ to four years six months’ imprisonment.

(b) Band two – importing commercial quantities (5 g to 250 g) – three years six months’ to ten years’ imprisonment.

(d) Band four – importing very large commercial quantities (500 g or more) – 12 years’ to life imprisonment.

We accept that submission. The size and nature of the total operation, the travel to and from New Zealand, the careful establishment of accommodation and the separate consignee companies each with its own ostensible credentials (registered name, office) yet wholly lacking substance, the renting of a succession of storage lockers, the storage of materials for which there was no commercial purpose and which can only have been a disguise for the containers that were removed, and the evidence both of sales (from Kohimarama Road) and of remittance of funds together point to successive transactions on a grand scale.

(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and

(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

(d) must 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;

... whilst the evidence was clear that you expected to take delivery of 40 kilograms of methamphetamine, in fact you only ever had possession of 20 kgs of what you believed to be the drugs. I intended to sentence on that basis.

In assessing the seriousness of the offence of possession for the purpose of supply, it would be unreal not to take into account the way in which the drug came into the applicant’s possession and the closeness of his involvement with the importation, even if he was not himself the person who arranged it.

Although the conversation was ostensibly about cars, the Crown says the dates and the amounts that had been talked about of 40 or 50 so closely mirroring the amount of the methamphetamine in the Isaac shipment, meant that Mr Fan was actively involved in this importation.

Case/ Jurisdiction	Drug (quantity)	Comments
R v Bartle (2003) 181 FLR 1 (NSWCCA)	Cocaine (380kg, pure)	Importation by boat after buying and equipping boat in New Zealand and collection of drugs at rendezvous near New Zealand with Central American suppliers. It was the largest cocaine seizure in Australia (at the time). The two principal organisers, both of whom had been convicted for similar offences, received life sentences (25 years MPI). One principal bought and refurbished the boat and bought equipment; the other organised the purchase of drugs in Central America. The five others 24 years (16 years MPI) variously assisted with refurbishment, operated bank accounts, bought supplies and sailed the drugs to Australia. A further mastermind and financier was sentenced to 16 years following substantial assistance to authorities and guilty plea. Sentencing judge indicated that he would have given the financier life also.
R v Campillo Vaquere [2004] NSWCCA 271	Cocaine (224kg – 170kg pure)	Importation by boat of at that time the record cocaine seizure, 85 times the minimum weight for the offending to qualify as commercial. Appellant’s role was to rent house in Sydney from which distribution of drugs could be undertaken, arrange transport and pay expenses, and select others to pick up drugs. Appellant was not the “Mr Big” of the operation, but was his representative in Australia. Sentenced to life (24 years MPI) after trial, upheld on appeal.
R v Gonzales-Betes [2001] NSWCCA 226	Cocaine (224kg – 170kg pure)	Co-offender of Campillo Vaquere – was described as “mid-level executive”. Sentenced to life (22 years MPI) after trial. The Judge stated: The amount of drug involved in this case was enormous. This was a carefully planned sophisticated importation in which the appellant was not the ring leader, chief operative or chairman of the board. She was, however, a person who involved herself early and whose activities seem to be such as to be essential to the operation of this small group of criminals bringing into Australia a very large quantity of the pernicious drug for a challenge to distribution. The precise terminology describing by analogy that role, misses the point. There was evidence that appellant had been involved in previous importations as intercepted communications showed she held herself out to the others as knowing the best way to land boats. Appeal dismissed.
R v Flavel [2001] NSWCCA 227	Cocaine (224kg – 170kg pure)	Co-offender of Campillo Vaquere and Gonzales-Betes, also described as “mid-level executive”. Appellent supervised importation by taking delivery of the drugs, sailing them part of the way with another man, then meeting the delivery vessel with the other man at various islands along the journey. He also gave instructions as to the landing of the drug. Received life sentence after trial with 25 years MPI. Appeal against sentence dismissed.
R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 (WASCA).	Cocaine (1000kg – 700kg pure)	Appellant and 2 others picked up cocaine worth $A100-400m off the coast of Cape Verde and sailed it to Broome in Western Australia. Appellant was to receive $US200,000 and his role was to supervise the cocaine on board and deliver it to other Colombian nationals in Broome. There was some evidence of hardship in Colombia motivating him to offend. Appellant pleaded guilty and conceded at sentencing that only a life sentence would be appropriate, issue was MPI. MPI was 20 years. Crown appeal against sentence dismissed.
R v De La Espreilla-Velasco [2006] WASCA 31; (2006) 31 WAR 291 (WASCA)	Cocaine (1000kg – 700kg pure)	Co-offender of Suarez-Mejia, received life sentence after trial (26 years MPI), raised duress and parity with other offenders, sentence upheld on appeal. The appellant was not a principal, but played a very significant role as the leader in Australia, and was a “recidivist offender”. The Court of Appeal stated that duress/personal circumstances would be significantly less relevant in drug cases because of large-scale harm caused.
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 (WASCA)	Cocaine (1000kg – 700kg pure)	Co-offender of Suarez-Mejia and De La Espreilla-Velasco who piloted the boat from Louisiana to Cape Verde and then to Australia. He alleged that he was owed $US300,000 in Colombia and was told that he would only receive it if he piloted the boat to Australia. He was described as having a “key” role in that he set up bank accounts, recruited a subordinate and purchased and repaired the boat, but the Crown did not submit that he would have had any ongoing role after importation. He had prior drug convictions and received an initial sentence of 25 years (14 MPI), Crown appealed on ground that sentence manifestly inadequate and disparate to Suarez-Mejia’s sentence. Suarez-Mejia had ultimate responsibility for the drugs, but Reaves was paid more and became involved earlier. Like Suarez-Mejia, and unlike De La Espreilla-Velasco, Reaves pleaded guilty at earliest opportunity and helped the authorities. CA doubted correctness of trial court’s assessment that Reaves was less involved than the other two. Crown appeal allowed – sentence of life imprisonment imposed with 18 years MPI, which took into account his guilty plea, assistance, and to a lesser extent his personal circumstances (ie age, having to spend his prison sentence in Australia and not the US, and that he would be deported afterward to the US and would likely face more prison time).
R v Sevilla [2007] WASCA	Cocaine (100kg - 70kg pure)	Appellant planned receipt of cocaine and received drugs by rowing out in dinghy. Judge stated that his role was “crucial to success of the operation” as he had collected the drugs and been in contact all others necessary to complete the importation – it was a sophisticated and well organised importation. Appellant pleaded guilty; got life with 21 years MPI, upheld on appeal. On appeal argued that he had offended under duress; this was rejected by the judge.
R v Attalah [2005] NSWCCA 277	Heroin (3kg) and cocaine (8kg)	Appellant supplied large commercial quantities of heroin (3kg) and cocaine (8kg) to drug-addicted prostitutes in an unlicenced brothel he ran, and deducted the cost of the drugs from the prostitutes’ earnings over 2 years. Sentenced to life imprisonment (MPI unclear), reduced on appeal to 24 years (18 MPI).
R v Chung Hing Law [2006] NSWCCA 100	Heroin (large but unspecified commercial quantity)	Appellant convicted following trial of conspiracy to import heroin. There were 5 separate importations from Bangkok, each strikingly similar (a conspirator would fly in to Sydney, rent premises for the purposes of receiving and distributing the drugs and sometimes remitting the proceeds overseas. The drugs were concealed in shipping crates along with other legitimate goods). No drugs were detected until the 5^th shipment, but the circumstances were remarkably similar in the previous shipments. For all but two of the importations, the appellant came to Sydney, rented premises and received the drugs. Sentenced to life imprisonment with 30 years MPI. Upheld on appeal, judge stating: In my opinion the applicant was in the relevant sense an offender in the “worst case” category. Although he may not have been at the pinnacle of the operation he was a key organiser of the enterprise both here and overseas. His role was greater than the provision of important assistance. A sentence of life imprisonment was appropriate.
R v Nguyen [2005] NSWCCA 362; (2005) 195 FLR 1 (NSWCCA)	Ecstasy (52kg in shipment of tiles); heroin (0.5kg in liquor bottle carried in hand luggage); methamphetamine (10g) and further heroin (14g) through post	First offender was knowingly concerned in importation of heroin bottle, knowingly concerned in importation of commercial quantity of ecstasy, and had high level involvement in planning and distribution of both. She and the second offender arranged for her uncle to carry the heroin bottle on a flight, and gave it to him in Hong Kong. She had no prior convictions but was an experienced drug trafficker. She pleaded guilty and received sentence of 25 years imprisonment (non-parole 18 years) allowed - Sentence of 22 years imprisonment (non-parole 16 years 6 months) substituted on appeal. Second offender was knowingly concerned in importation of trafficable quantity of heroin and importation of commercial quantity of ecstasy; he was a principal who planned and received delivery and organised distribution with first offender. He had no prior convictions and pleaded guilty. Appeal against sentence of life imprisonment (non-parole 25 years) following guilty plea allowed - Sentence of 28 years imprisonment (non-parole 18 years) Fourth offender pleaded guilty to possession of commercial quantity of ecstasy. He arrived and assisted extraction of ecstasy from tiles, and had a prior conviction for a drug offence. His appeal against sentence of life imprisonment (non-parole 20 years) allowed - Sentence of 22 years imprisonment (non-parole 16 years 6 months) substituted. A third offender received a lesser sentence for the letter importations.
R v Li [2005] NSWCCA 154	Heroin (389kg – 252kg pure)	Four appellants imported heroin from specially converted fishing trawler, which had a secret compartment from which speedboats carrying the drug to shore were launched. The trawler strayed into Australian waters and was captured by the Australian Navy. Several Indonesian crew members received life sentences also. The Court stated: The importation represented a crime of massive proportion perpetrated in a disciplined manner by criminals able to marshal money, ships, speedboats, crew, other personnel and a refuelling at sea. It was a highly sophisticated criminal enterprise conducted by professional criminals whose connections stretched over several countries. The amount of heroin intercepted, its quantity and consequent value, alone placed this crime within that band of such crime that may properly be labelled most serious. First appellant arrived in Australia to supervise importation and appellant also have distributed the drug. Pleaded guilty; sentence of 24 years (18 MPI) upheld on appeal. Second appellant arrived with first and monitored journey. Not clear that role would have extended to distribution, pleaded guilty much earlier than the others. Received life sentence with 28 years MPI, upheld on appeal. Third appellant arrived with first two; took instructions from second appellant and got first and fourth to carry them out. Had smuggling in the past and was involved in selecting beaches. Received life sentence, MPI reduced from 30 to 28 years on appeal. Fourth appellant prepared for delivery and distribution. Had more complicated but less vital role than first offender. Pleaded guilty, previous good record but no remorse, received life sentence with 28 years MPI upheld on appeal.
R v Ismunandar [2002] NSWCCA 477; (2002) 136 A Crim R 206	Heroin (389kg – 252kg pure)	Appellants were chief mate and chief engineer on ship in R v Li and falsified logs and must have known ship contained heroin. Chief mate had some mitigating personal circumstances; was supporting his family whose home had been destroyed in riots. Both received life sentences with 20 years MPI. Appealed arguing their sentences were disparate to that of captain. Appeals dismissed.
R v Mandagi [2002] NSWCCA 57 – note – disapproved in Li	Heroin (389kg – 252kg pure)	Captain of ship in Li which attempted to escape Australian Navy. He directed the collection of the drug, falsification of the log and communicated with others in Asia and Australia. Appeal against sentence of life imprisonment after trial (non-parole period of 25 years) allowed - Sentence of 27 years (non-parole period of 19 years) substituted
R v Ng [2001] NSWCCA 305	Heroin (93.5kg – 69kg pure)	Applicant arrived in Australia almost a year before importation, recruited two others, and arranged to receive importation in shipment of commercial ovens from China. He was described as a “high-level operative who oversaw reception and would have overseen distribution. Pleaded guilty; life sentence (18.5 years MPI) upheld on appeal.
R v Cheung [1999] NSWCCA 421; (1999) 154 FLR 259 (NSWCCA)	Heroin (50kg – 38kg pure)	Appellant was a Hong Kong customs Senior Inspector who was involved at high level to import heroin from China. He recruited another to supervise the journey and suggested ways to conceal the drug and finance the operation. Was extradited from Hong Kong, found guilty and sentenced to life imprisonment (MPI 11 months), upheld on appeal.
R v Chung [1999] NSWCCA 330	Heroin (79kg – pure)	Senior figure who received, stored and distributed heroin from Sydney. Recruited an accomplice to help. Appellant associated with Hong Kong triad and at times threatened the accomplice’s family with violence to ensure accomplice’s cooperation. Life sentence after trial upheld on appeal.
R v Wangsaimas (1996) 6 NTLR 14; (1996) 133 FLR 272	Heroin (89.1kg – at time largest heroin seizure)	Appellants sailed boat containing drugs to Australia. One appellant piloted the boat and knew of the drug; the other two were responsible for safeguarding and delivering the drug. All three pleaded guilty and received life sentences without parole, upheld on appeal.
R v Che Yook (1995) 122 FLR 106; (1995) 84 A Crim R 432 (NSWCCA)	Heroin (70.5kg – 51.4kg pure – at time largest seizure)	First appellant was company director in Malaysia and Australia, arranged exportation from Malaysia, flew to Australia to supervise importation, probably principal but at least intimately involved at top level. Second appellant acted as first appellant’s subordinate in Australia but also recruited another. Both pleaded guilty. First appellant received life sentence with 20 years MPI, reduced on appeal to 24 years (18 MPI); second appellant’s life sentence with 16 years MPI upheld on appeal. Note that first appellant’s sentence reduction was required by s 16G of the Crimes Act 1914 (Cth), which has since been repealed.

Shipment (Name of Consignee)	Drugs	Date of arrival NZ
Polymer 1	None proved	4 April 2005
Polymer 2	Methamphetamine	26 May 2005
Polymer 3	Methamphetamine	5 August 2005
Jin Da	Pseudoephedrine	8 August 2005
Polymer 4	Methamphetamine	30 December 2005
Isaac International	Methamphetamine	13 May 2006
Prosperity International	Pseudoephedrine	18 May 2006

Court of Appeal of New Zealand

Chen v R [2009] NZCA 445; [2010] 2 NZLR 158 (30 September 2009)

Court of Appeal of New Zealand

Chen v R [2009] NZCA 445 (30 September 2009); [2010] 2 NZLR 158