Mok v R [2017] NZCA 537 (21 November 2017)

Last Updated: 30 November 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA189/2017 [2017] NZCA 537
BETWEEN	DARREN TSZ RUNG MOK Appellant
AND	THE QUEEN Respondent

Hearing:	13 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	A F Pilditch for Appellant E J Hoskin for Respondent
Judgment:	21 November 2017 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

[1] Darren Mok was found guilty following a trial in the District Court at Auckland before Judge Treston sitting without a jury on one charge of conspiring to supply a Class B controlled drug.^[1] The conspiracy involved the supply 69 kilograms of ephedrine that had been imported from China. The ephedrine had an estimated street value of over $8 million.
[2] On 21 March 2017, Judge Treston convicted and sentenced him to six years and three months’ imprisonment, with a minimum non-parole period of three years and one month.^[2]
[3] Mr Mok filed appeals against conviction and sentence but the conviction appeal has since been abandoned. The sentence appeal is advanced on the basis that the Judge did not properly balance the admittedly large scale of the intended supply against Mr Mok’s peripheral and non-critical role, and his absence of knowledge as to that scale.

Facts

[4] The conspiracy was orchestrated offshore by individuals known only as “Colin” and “the China Boss”. On 31 July 2015 the ephedrine arrived in New Zealand and was detected by Customs. Customs arranged a controlled delivery of a placebo and a presumptive quantity of ephedrine to Lei Hong at 3 Shipton Place. Mr Hong was arrested, and agreed to assist police with their ongoing investigation. This assistance included him collecting three striped bags, again containing a placebo and presumptive quantity of ephedrine, from 3 Shipton Place and taking them to Oakwood Manor Motel.
[5] Mr Mok met Mr Hong at the motel on 21 August, where Mr Mok discussed obtaining a rental property for Mr Hong at the instigation of the China Boss. Later that day, Mr Hong delivered the three bags to co-defendants Tangxing Cheng and Lan Cheng at 3 Neales Road. They then drove the bags to another address. Messrs Cheng, Cheng and Mok were later arrested.

Conviction

[6] Mr Mok did not dispute the facts concerning the importation, or meeting with Mr Hong at Oakwood Manor. At issue was whether he knew he was facilitating the supply of a controlled drug. His defence essentially was that while he may have been naïve or stupid, he had no criminal knowledge.
[7] But the Judge found that the Crown case, while circumstantial, was strong.^[3] He found that Mr Mok was aware that his actions were facilitating the supply of a controlled drug; he had agreed with the China Boss to assist in the supply by providing a safe place for unpacking and on-delivery.^[4] He had met with Mr Hong at Oakwood Manor to make the necessary arrangements, albeit that they never in fact took place. He was to be paid $2,000 for doing this, which the Judge found was indicative of someone knowingly assuming the risk of involvement in drug-related activity.^[5]

Sentencing

[8] The Judge noted the offending fell within category one of R v Wallace,^[6] modified to reflect the fact that conspiracy carries a lower maximum penalty (10 years) than actual supply (14 years).^[7] He set a starting point of six years and six months’ imprisonment.^[8] The Judge gave a discount of three months to reflect Mr Mok’s personal circumstances. He imposed a minimum term of three years and one month.^[9]

Decision

Finite sentence

[9] Mr Mok’s appeal was advanced on the basis that the starting point — and accordingly the final sentence — were too high. Mr Pilditch acknowledged that the volume of ephedrine was significant. But in R v Wallace, recently affirmed in R v Wang, this Court recognised the need for flexibility in relation to co-offenders with limited involvement.^[10] Mr Pilditch said that there was no evidence that Mr Mok knew of the quantity or the potential value of the drugs and that the Judge erred in failing to consider this issue.
[10] More specifically, Mr Pilditch submitted that the quantity and nature of the communications between Mr Mok and the China Boss were not indicative of Mr Mok appreciating the scale of the intended supply. Nor can such an inference be drawn from Mr Mok asking Mr Hong if “the things or stuff” had arrived. And while the Judge had held that the $2,000 payment was too high a figure to be consistent with the stated purpose of organising a rental property, Mr Pilditch submitted that, equally, it suggests that Mr Mok had no awareness or appreciation of the very significant, $8 million, value of the drugs involved. Moreover, Mr Mok did not handle or possess the ephedrine, he did not attend the original delivery destination at 3 Shipton Place, and was not shown any of the packages. There was no evidence that he was to assist in dividing the drug for on-supply.
[11] Mr Pilditch relied particularly on the case of Tilialo-Staples v Police in which the appellant had been paid $500 to look after a compressor in which 21.9 kilograms of pseudoephedrine was hidden.^[11] On appeal, Asher J reduced the starting point from six years to four, and the final sentence from three years to one year and nine months, which he then converted to home detention. That four-year starting point is approximately 35 per cent of the 14-year maximum sentence. He submits that here, the starting point should therefore be no more than five years, which is half the maximum penalty.
[12] But we agree with Ms Hoskin that the six-and-a-half-year starting point reflects the Judge’s view that Mr Mok’s conduct fell at the lowest end of the available range. His role in the offending was more significant than that of Mr Tilialo-Staples; by and of itself the need to rent a safe place for unpacking and supply suggests a sizeable quantity of drugs. Moreover, Mr Mok was in regular and frequent contact with the China Boss; there were over 50 telephone calls, he knew that the drugs had arrived and he met with the catcher confirming this. While Mr Mok’s role may have been confined to logistics, it was still important. We consider that Mr Tilialo-Staples’ involvement was of a much lesser kind. In our view both the starting point and the end point were well within range.

Minimum period of imprisonment

[13] Mr Pilditch submitted that minimum periods are rarely imposed for drug offending when the total sentence is less than nine years.^[12] And in Mr Mok’s case the minimum term was imposed for generic reasons: “the large amount of drugs involved and the potential value of their yield on sale”.^[13] Mr Pilditch said that, contrary to s 86 of the Sentencing Act 2002, the Judge did not specifically consider whether the default non-parole period of one third would sufficiently meet the principles of accountability, denunciation and deterrence. Not only did Mr Mok play a peripheral role in the wider offending, he was a first offender with no previous convictions, 22 years old on a student visa, and studying for a Diploma of Business. He is likely to be deported on his release from prison. Accordingly, the submission was that there was therefore no principled basis for the imposition of a minimum term.
[14] While it is true that Mr Mok is young and a first-time offender, it seems clear that he lacked insight into his offending and refused to accept responsibility for his actions. The fact of likely deportation is largely irrelevant.^[14] More importantly, we consider that the Judge was entitled to place considerable weight on deterrence, even for one who is involved only “in a peripheral fashion with this sort of activity”.^[15] The mass importation and distribution of drugs depends for its success on the participation of those willing to be involved in low-level tasks for relatively modest reward. The harm caused by such activity means that deterrence can fairly be viewed as paramount. And while there may be a trend for minimum periods not to be imposed for sentences of less than nine years, this is not a rule. Moreover, it seems to us to be strongly arguable that minimum periods should more routinely be in play in the context of very serious, cross-border, high-volume drug offending, regardless of the end sentence. But that will be a question for the Permanent Court. In our view it was more than open to the Judge to impose a minimum period here.

Result

[15] The appeal is dismissed.

Solicitors:
Crown Law Office, Auckland for Respondent

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^[1] R v Mok [2016] NZDC 25321 [Judgment].

^[2] R v Mok [2017] NZDC 5799 [Sentencing notes].

^[3] Judgment, above n 1, at [24].

^[4] At [32].

^[5] At [28].

^[6] R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA). Category one covers commercial activity on a major scale, attracting a starting point of eight to 14 years.

^[7] Sentencing notes, above n 2, at [20].

^[8] At [25].

^[9] At [27].

^[10] R v Wang [2014] NZCA 409 at [22].

^[11] Tilialo-Staples v Police [2013] NZHC 1255.

^[12] R v Anslow CA182/05, 18 November 2005 at [27].

^[13] Sentencing notes, above n 2, at [26].

^[14] Although it may be relevant to the length of any minimum term imposed: Solicitor-General v Huang [2011] NZCA 436 at [14].

^[15] Sentencing notes, above n 2, at [23].