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Chan v R [2018] NZCA 148 (16 May 2018)

Last Updated: 24 May 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA637/2016
[2018] NZCA 148



BETWEEN

KIN LONG CHAN
Appellant


AND

THE QUEEN
Respondent

Hearing:

22 March 2018

Court:

Winkelmann, Courtney and Mallon JJ

Counsel:

R M Mansfield for Appellant
A J Ewing for Respondent

Judgment:

16 May 2018 at 10 am


JUDGMENT OF THE COURT


A The application for an extension of time to appeal is granted.
B The appeal against conviction is dismissed.
C The appeal against sentence allowed.

  1. The sentence of 19 years and three months’ imprisonment is quashed and substituted with a sentence of 15 years and three months’ imprisonment.
  2. The minimum period of imprisonment is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann and Courtney JJ)

Introduction

[1] Kin Long Chan was convicted following a jury trial before Brewer J on four charges of importing methamphetamine, two of supplying methamphetamine, one of attempting to supply methamphetamine and two of possessing methamphetamine for supply. He was sentenced to 19 years and three months’ imprisonment on the lead charge, which related to an importation of 60.9 kilograms of methamphetamine.[1] Brewer J also imposed a minimum period of imprisonment of seven years and eight months (40 per cent).[2]
[2] Mr Chan appeals his sentence on the ground that it is manifestly excessive as a result of the sentencing Judge:
[3] Mr Chan’s counsel, Mr Mansfield, contended that an appropriate sentence would have been 15 years and three months’ imprisonment without a minimum period of imprisonment.
[4] The appeal was filed out of time on 13 December 2016. Neither party addressed this point but the delay was short and, given our conclusion in this appeal, it is in the interests of justice to grant an extension, which we do.
[5] An appeal against conviction was also filed in this Court but no submissions were advanced in support and the appeal was not pursued. Accordingly the appeal against conviction is dismissed.

The offending

[6] Mr Chan is now 25 years old but was 22 years old at the time of the offending. He was born in Hong Kong but came to New Zealand as an exchange student when he was 12 and remained. He lived with a home-stay family, but returned to Hong Kong regularly to visit his own family.
[7] In 2013, when Mr Chan was 21, he met a Hong Kong resident, Mr Ho Mak, at the Sky City Casino. Mr Ho Mak was a senior member of a Hong Kong crime syndicate. He recruited Mr Chan to participate in the importation and distribution of methamphetamine. Mr Chan took instructions from Mr Ho Mak and two other men, Mr Kam and Mr Yip. Like Mr Ho Mak, Mr Kam and Mr Yip were also resident in Hong Kong but visited New Zealand specifically for the purposes of the importation and distribution of methamphetamine.
[8] Between 5 February and 25 March 2015, four consignments of methamphetamine were delivered, or were intended to be delivered, to a Mt Eden storage unit Mr Chan had rented. Specifically:
[9] On termination of the police operation, 18.8 kilograms of methamphetamine, which was in the process of being dried, was found at Mr Kam’s flat. Remnants were also found at the storage locker in Mount Eden.
[10] The methamphetamine subject of the possession for supply charges was in the form of a black solid mass that had yet to be “dried”. The charges of supply and attempted supply of the methamphetamine by Mr Chan were based on the following:

Was the starting point and uplift too high?

[11] The amount of methamphetamine involved in the lead importation charge (60.9 kilograms) brought the case within band 4 of R v Fatu, attracting a starting point of between 12 years and life imprisonment.[3] At the time, this importation was the second largest known importation of methamphetamine into New Zealand. In addition, the 18.8 kilograms of methamphetamine found in Mr Kam’s flat and the (estimated) three kilograms imported on the other occasions had to be taken into account for the purposes of totality.
[12] The co-offenders, Mr Kam and Mr Yip, pleaded guilty and were sentenced before Mr Chan. In sentencing them, Woodhouse J took a starting point of 25 years’ imprisonment.[4]
[13] At sentencing, the Crown submitted that a starting point of 25 to 30 years’ imprisonment was appropriate. Mr Chan’s counsel (not Mr Mansfield) contended for a starting point of 16 years and eight months on the basis of Mr Chan’s limited role in the offending.
[14] Brewer J found that Mr Chan’s role was to help with the logistics of receiving and distributing the packages once they arrived in New Zealand. To this end he rented the storage unit, together with Mr Kam made enquiries of the self-storage facility regarding the arrival of the packages and handled the package that had not been intercepted by customs. In relation to the consignment of the 60.9 kilograms, Mr Chan communicated with the freight company and the trucking company regarding delivery, helped to unload the 30 boxes and stack them in the storage unit, then photographed the boxes and confirmed to Mr Ho Mak that the consignment had arrived. Mr Chan’s details were also used to obtain an Importer’s Client Code but Brewer J accepted that this was done by other members of the syndicate using Mr Chan’s email address and photo identification.
[15] Brewer J accepted that Mr Chan played a lesser role than Mr Kam and Mr Yip. He said:[5]

... I accept you were not, as the Crown says, Ho Mak’s right-hand-man. You were the local man, recruited for your ability to operate in New Zealand. Mr Yip and Mr Kam, although younger than you, were the Hong Kong syndicate members who were here to organise the processing of the drugs and to distribute them into the New Zealand market. Of course, they also knew of and helped with the importing. I accept that you had a lesser role than them overall, but you certainly knew what you were doing.

[16] On the basis of this assessment, Brewer J adopted a starting point of 20 years’ imprisonment on the lead charge of the importation of 60.9 kilograms of methamphetamine, which he uplifted to 23 years to reflect the totality of the offending:

[22] On charge 5, I adopt a starting point of 20 years’ imprisonment. I have to consider whether I should increase the starting point for the other charges. I think I must. There were other importations and you got involved, albeit as a driver, with supplying the drug. That offending was significant in itself. Having regard to the principle that the total sentence should be in keeping with your overall offending, I increase the starting point by three years to 23 years.

[23] I have also looked at the starting point of 23 years to see whether it is consistent with the 25 years imposed on Mr Yip and Mr Kam. Because I find that your overall position in the organisation, particularly with regard to the processing and distributing of the drug into the New Zealand market, was less than theirs, I am satisfied that a 23 years starting point is consistent with their 25 years starting point.

(Footnotes omitted.)

Appellant’s arguments

[17] On appeal, Mr Mansfield argued that Brewer J placed excessive weight on the starting points taken for Mr Kam and Mr Yip without adequately assessing the differences between their roles and that of Mr Chan. If proper regard were had to the different roles played by Messrs Yip, Kam and Chan, Mr Mansfield submitted, the appropriate starting point should have been no more than 18 years’ imprisonment.
[18] In relation to the uplift he submitted that, given the offences were a “connected series”, close in time and in which Mr Chan played a relatively minor role, the uplift to reflect the other offending should have been no more than two years. In particular, he argued that the Judge’s assessment did not recognise how much lower Mr Chan was in the hierarchy of the Hong Kong drug syndicate than Mr Yip and Mr Kam, nor the much more extensive and serious involvement they had in the importation and supply.
[19] Ms Ewing, for the Crown, submitted there was no significant difference between Mr Chan’s role on one hand and that of Mr Kam and Mr Yip — they were all “catchers” of the drug in New Zealand. Mr Chan knew of and assisted in the supply, and so is culpable for all that entailed.

Analysis: starting point

[20] As Mr Mansfield submits, the role Mr Chan played was a critical consideration in setting the starting point. The amount of the drug imported or supplied is not the only consideration. Those who control an operation, making the decisions and taking the profits are more culpable than those, such as Mr Chan, who play a limited and minor role. The different roles played by those involved in the same importation may justify significantly different starting points. Those at the lower end of the operation are often vulnerable people used by those higher up in the hierarchy, preying on their vulnerability such as drug addiction or, as Brewer J recognised was the case with Mr Chan, gambling problems.[6] They receive little financial reward for the risks they take. Those higher in the hierarchy, the profit takers, will, in the usual course, receive substantially higher sentences.[7] Unfortunately, in many cases the real profit takers are not brought to account.
[21] We agree with Brewer J’s assessment that Mr Chan’s involvement was less culpable than that of Messrs Yip and Kam. Brewer J presided over Mr Chan’s trial and had a good view of the role Mr Chan played in the offending. Where we differ from the Judge is in our assessment of the differentiation in the starting point required to reflect the different roles played by the offenders.
[22] Mr Kam and Mr Yip came into the jurisdiction as trusted representatives of the criminal organisation to undertake the organisation of the importations and supply. In contrast Mr Chan was recruited from within New Zealand to “catch” the drugs when they arrived and assist with logistics.
[23] Mr Yip, although only 18 years of age, was the more senior of the three and gave instructions in New Zealand to both Mr Chan and Mr Kam. Mr Chan undertook tasks with Mr Kam, but the evidence supports the conclusion that Mr Kam and Mr Yip held positions of greater responsibility and undertook a wider range of tasks to facilitate the importation. Mr Kam and Mr Yip completed the paperwork in connection with the importation. Mr Chan had no role in that. Mr Kam and Mr Yip were involved in the processing of the drug in New Zealand; “cleaning” or “drying” the drugs. Mr Chan played no role in that. Mr Kam and Mr Yip were involved in setting up supply transactions, as evidenced by coded text communications. Mr Chan was not party to coded drug communications, playing only a minor role in the supply. Although each of the three men communicated with Hong Kong direct, the evidence as to the circumstances of the offending and the roles played supports the conclusion that Messrs Kam and Yip were more closely tied to the Hong Kong-based criminal organisation behind the importations and were higher in the hierarchy of that organisation.
[24] The Crown relied on R v Chen to support its submission that the starting point was appropriate.[8] The offending in that case involved, among other things, the importation of 96 kilograms of methamphetamine on a single occasion. Several men were involved in the importation. One, Mr Fung, was described as a “middle man crucial to the success of [the] plan”.[9] He had come to New Zealand from Hong Kong specifically to make preparations for the importation, including the incorporation of a company to be used as the “front” for the importation, renting office space, opening a bank account and applying for a client code to import goods. He returned to Hong Kong after concluding those tasks and returned again after the container had been shipped from Hong Kong. He then made the arrangements for the hireage of storage units and oversaw the unloading of the container at the storage units. The starting point taken by Stevens J in sentencing Mr Fung was 25 years’ imprisonment. This Court affirmed that starting point, though observed that a life term would have been within range.[10]
[25] Another defendant in Chen, Mr Deng, had also come from Hong Kong to assist in the importation. He had collected the drugs and had taken them to an address set up for distribution. He was in direct contact with the syndicate in China and was sentenced on the basis of his intention to supply at least 90 kilograms of imported drugs. On a Solicitor-General appeal, this Court increased the sentence imposed in the High Court from 17 years to 25 years’ imprisonment.[11]
[26] On the basis of this decision, the Crown submits that Mr Chan’s offending could even have attracted a starting point of 25 years’ imprisonment. We disagree. The roles played by Messrs Deng and Fung were comparable to those played by Messrs Yip and Kam. Trusted managers in a criminal enterprise, dispatched to a foreign land to set up a criminal operation. Mr Chan in contrast performed limited assigned tasks with no “managerial” responsibilities.
[27] A starting point of 25 years was utilised by Woodhouse J when sentencing Mr Kam and Mr Yip, capturing the criminality involved in all of their offending. Based on our assessment of the various roles played by those offenders, we agree with Mr Mansfield’s submission that a starting point of 20 years for the totality of the offending better reflects Mr Chan’s culpability for the offending given his more limited role in the importation and supply and his lower place in the criminal enterprise. We are satisfied that the Judge erred in making inadequate adjustment to the starting point to reflect the lesser role.

Did the Judge fail to properly recognise the appellant’s personal mitigating factors?

[28] There were a number of factors identified by Mr Chan’s counsel at sentencing which the Judge accepted warranted recognition.[12] These were that Mr Chan was young and that his youth and his gambling habit made him vulnerable to Mr Ho Mak’s recruiting tactics. He also recognised that Mr Chan’s good character warranted recognition; Mr Chan had put before the Court some 52 character references speaking to his good character and in particular his kindness and willingness to help others.
[29] Brewer J did not allow a discount for remorse because he did not accept that genuine remorse had been shown.[13] The Judge clearly had in mind the pre-sentence report that recorded Mr Chan’s continued denial of the offending. Nor did he accept that any reduction was warranted on the basis that being in prison would be a particular hardship, because Mr Chan was fluent in English.[14]
[30] Mr Mansfield accepted that the reduction of three years was appropriate to recognise Mr Chan’s youth and the part that played in making him a target for recruitment. But he argued that an additional reduction of five per cent was warranted for his good character, efforts at rehabilitation, remorse and the fact that he was being imprisoned overseas.
[31] The total discount given by Brewer J was 13 per cent. Although it is unclear, this may also have reflected previous good character since the Judge said he took the many character references into account. In our view, the discount for youth in a case such as this reflects not only the chronological age/development of the offender, but also the consequent vulnerability to recruitment by much more sophisticated criminals bent on targeting vulnerable youth. We also see Mr Chan’s youth as relevant to the sentencing exercise in another way. The final sentence of 19 years and three months’ imprisonment was imposed by Brewer J after taking into account mitigating factors. This represents more than three quarters of Mr Chan’s life span to date. This Court has previously expressed concern that sentences should not be imposed that would have a crushing effect and become a barrier to rehabilitation.[15] In our view, a discount of up to 15 per cent to reflect Mr Chan’s youth is appropriate in this case.
[32] We also accept that some allowance ought to have been made for the particular hardship that Mr Chan will face in prison and for his good character. As to the issue of hardship, it is true that this Court has previously said that those who come to New Zealand intent on the importation of drugs and willingly take the risk that they will be imprisoned far from home ought not be shown leniency when that risk comes to pass.[16] However, Mr Chan does not fall into this category of offenders. He is still a young man and has lived nearly half his life in New Zealand. For all of that time he has lived with a host family. The pre-sentence report indicated that the Department of Corrections had no contact details for Mr Chan’s home-stay family and did not know what level of support, if any, existed for him from that quarter. He has no other support network in New Zealand. His only support will come from his Hong Kong-based parents who will travel here to visit him. He cannot truly be described as someone who has come here opportunistically to offend for commercial gain. Mr Chan’s home has been in New Zealand and the reality is he will be a young man with no local support network. That will make imprisonment very difficult and we consider that a further allowance of five per cent should be made for that.
[33] This would allow a reduction of twenty per cent to reflect personal mitigating matters. That on its own would take the sentence down to 16 years’ imprisonment. From that however, is to be deducted the nine months’ credit Brewer J gave Mr Chan for time spent on electronically monitored bail. This results in an end sentence of 15 years and three months’ imprisonment.

Minimum period of imprisonment

[34] Brewer J imposed a 40 per cent minimum period of imprisonment.[17] He did not, however, express the reasons for fixing a minimum period. In particular, the Judge did not refer to the statutory purpose in s 86(2) of the Sentencing Act 2002.
[35] In support of this ground of appeal, Mr Mansfield relied on this Court’s statement in R v Zhou that:[18]

It would not be right to fetter judicial discretion by finding that an MPI should always be imposed in the case of serious drug offending at the levels involved in this case. The observations of this Court just mentioned do not go that far. But the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one-third applicable under the Parole Act 2002 will most often be insufficient to meet the statutory purposes identified in s 86(2) in cases of large scale offending.

[36] Mr Mansfield submitted that a long prison sentence imposed in this case will be sufficient to act as a deterrent both personally and generally. Moreover, Mr Chan is liable for deportation upon release, so at least one of the statutory purposes will not be fulfilled by a minimum period of imprisonment.
[37] In comparison, Ms Ewing relied on this Court’s decision in Mok v R that:[19]

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 ... [I]t 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.

[38] We accept Mr Mansfield’s submission that Brewer J did not address himself to whether a minimum period of imprisonment is necessary for any of the purposes set out in s 86(2) of the Sentencing Act 2002. We therefore consider the issue afresh.
[39] Whilst minimum periods of imprisonment will frequently be justified in cases of drug importation on a commercial scale, the imposition of a minimum period of imprisonment remains a matter that is to be determined case by case. We do not consider that a minimum period of imprisonment was necessary in this case to meet any of the purposes of s 86(2) of the Sentencing Act 2002. A sentence of the length imposed on one so young is sufficient for each of those purposes.

Result

[40] The application for an extension of time to appeal is granted.
[41] The appeal against conviction is dismissed.
[42] The appeal against sentence is allowed.
[43] The sentence of 19 years and three months’ imprisonment is quashed and substituted with a sentence of 15 years and three months’ imprisonment.
[44] The minimum period of imprisonment is quashed.







Solicitors:
Crown Law Office, Wellington for Respondent.

[1] R v Chan [2016] NZHC 2376.

[2] At [38].

[3] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [36].

[4] R v Kam [2016] NZHC 110.

[5] R v Chan, above n 1, at [21].

[6] At [27].

[7] R v Fatu, above n 3, at [31].

[8] R v Chen [2009] NZCA 445, [2010] 2 NZLR 158.

[9] At [5] and [212].

[10] At [213].

[11] At [203].

[12] R v Chan, above n 1, at [26]–[33].

[13] At [31].

[14] At [32].

[15] R v Johansen (1997) 15 CRNZ 111 (CA) at 120.

[16] R v Chen, above n 8, at [174]–[175].

[17] R v Chan, above n 1, at [38].

[18] R v Zhou [2009] NZCA 365 at [19].

[19] Mok v R [2017] NZCA 537 at [14].

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