R v Lee [2015] NZHC 1978 (20 August 2015)

Last Updated: 3 September 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-004-3318 [2015] NZHC 1978

THE QUEEN

v

_{CHENG-HSUN LEE}

Hearing:	20 August 2015
Counsel:	B Tantrum and S Jacobs for Crown G Gotlieb and J Ding for Defendant
Judgment:	20 August 2015

_{SENTENCING NOTES OF HEATH J}

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{G Gotlieb, Auckland}

R v LEE [2015] NZHC 1978 [20 August 2015]

Introduction

[1] Mr Cheng-Hsun Lee has been charged with possession of the Class A controlled drug, methamphetamine, for the purpose of supply. The maximum penalty is life imprisonment. At the time of his arrest, Mr Lee was aged 35 years.

Procedural background

[2] On 24 February 2015, a sentence indication hearing was conducted before me.¹ Subsequently, that indication was accepted though there was room for doubt from the way in which I had expressed myself as to Mr Lee’s ability to seek to reduce the sentence further by putting forward mitigating factors.

[3] As a result of subsequent developments, a sentencing that was intended to proceed based on the sentence indication was aborted. Mr Lee was permitted to vacate his guilty plea so that he could contend for a lower sentence and the Crown could contend for it to be increased following a disputed fact hearing at which evidence would be given.

[4] A disputed fact hearing was conducted on 29 May 2015 before me. Me Lee was cross-examined on an affidavit he provided to the Court. He confirmed the truth of the content of the affidavit and then was cross-examined on it by Mr Tantrum, for the Crown.

[5] During the course of that evidence, which was given through an interpreter (Mr Lee gave evidence in the Mandarin language), I became concerned about whether Mr Lee did in fact accept that some of the elements of the offence had been committed. In those circumstances, I gave leave to Mr Lee to make an application to vacate the guilty plea and ended the sentencing hearing.

[6] Initially, it was intended that an application to vacate the guilty plea would be pursued. New counsel for Mr Lee, Mr Gotlieb, advised Whata J on 23 July 2015, that Mr Lee did not wish to pursue that application. Sentencing was to take place

_{before me today.}

¹ R v Lee [2015] NZHC 256.

[7] As a result of preliminary discussions with counsel this morning, Mr Gotlieb took further instructions on whether Mr Lee wished to be sentenced today. That occurred against the backdrop of the completion of a trial involving co-accused, Cheng-Yi Chen and Ya Jan Fang, in which both were discharged earlier this week.

[8] I indicated to Mr Gotlieb that either sentencing could proceed on the basis of my indication with consideration being given to a reduction of that indicated sentence further as a result of mitigating factors now brought to my attention, or for sentencing to be adjourned to be conducted by Woodhouse J, who presided over the trial of the co-accused.

[9] Mr Lee elected to proceed to sentence today. I do so on an understanding that a deportation order has been served on Mr Lee and that will be given effect once he is otherwise due to be released on parole.

Facts

[10] I shall summarise the facts on which sentencing will take place briefly.

[11] The charge arises out of the importation of five steel containers into New Zealand from Taiwan, on 3 March 2014. When examined by a Customs Officer, the containers were found to hold 11.075kgs of methamphetamine. Once that had been ascertained, police officers began surveillance procedures to identify those responsible for the importation.

[12] Subsequently, two people arrived at Auckland Airport from Taiwan, who appeared to have involvements in the shipment. They were Mr Ho and Mr Chen. Mr Ho had previously contacted Customs to obtain a temporary client code for the importation of sample tools.

[13] On 1 April 2014, Mr Ho and two other people were observed loading steel containers into a truck. The package in which they were located was taken to a storage unit.

[14] A number of unsuccessful attempts to extract methamphetamine from the containers were made. As a result, Mr Lee was contacted in Taiwan and asked to travel to New Zealand. On 7 April 2014, Mr Lee arrived in this country from Taiwan, together with Ms Fang, who acted as an interpreter.

[15] Mr Lee and Ms Fang were observed meeting Mr Ho in the lobby of SkyCity Grand Hotel. They went to a room, where Mr Lee opened the door. After going to a supermarket, Ms Fang and Mr Lee returned to the hotel where they stayed.

[16] Mr Lee was seen meeting Mr Ho and Ms Fang, on 8 April 2014. There is evidence that Mr Lee may have travelled to the storage unit with Ms Fang and Mr Ho. At about 5pm that day, Mr Ho and Mr Chen were observed loading the package containing the steel containers into a van at the storage unit. They drove to a residential address and left the package there.

[17] Mr Lee and Mr Ho arrived at the residential address at 9am on 9 April 2014. Shortly afterwards, Police heard the noise of angle grinders and hammering on the metal through surveillance devices set up as a result of prior orders of the Court. Mr Ho left the address with an occupant who purchased angle grinding discs. Mr Lee remained at the premises. When Mr Ho returned, he continued to work on the containers with Mr Lee.

[18] Police and Customs’ officers entered the address at 12.50pm on 9 April 2014. At that time, Mr Lee was using an angle grinder on the steel container and Mr Ho was using power drills to remove the screws. Mr Lee was actively engaged in assisting Mr Ho to extract the methamphetamine from within the steel container. Mr Lee told the Police that he was a metal fabricator and did not realise the work involved drugs until they fell out of the box that he was opening. Mr Lee claimed that Mr Ho would not allow him to leave until the work was completed.

Analysis

[19] When giving a sentence indication on 24 February 2015, I referred to the sentence that had been imposed on Mr Ho following an earlier guilty plea to charges

of importing methamphetamine and possessing that drug for supply.² I considered also the guidance contained in the Court of Appeal decision in R v Fatu.³ I took the view that Mr Lee’s level of culpability in the offending was demonstrated by two factors. The first was that he was brought specifically from Taiwan to carry out the

work. The second was that he was staying at the SkyCity Grand Hotel while here.

[20] I thought it was unlikely that Mr Lee would have stayed in a hotel of that type if he had been in New Zealand for legitimate metal fabrication work. Also, it was most unlikely, given the number of people in New Zealand who could carry out legitimate work of that type, that he was in New Zealand for legitimate purposes. I inferred from the information available, that Mr Lee knew he was coming to New Zealand to assist in the extraction of methamphetamine, though the quantity of which he was aware was something that it might be difficult to assess.

[21] In light of the guidance contained in Fatu, I indicated a starting point of 14 years imprisonment. That compared with the starting point of 17 years taken for the ringleader in the operation, Mr Ho. I see no reason to depart from that sentence indication. All aggravating factors have been taken into account.

[22] Mr Lee has no previous convictions known to the Court, whether in New Zealand or elsewhere. When Mr Ho was sentenced in the District Court, Judge Field took account of the fact that he was not fluent in the English language and his period of imprisonment in New Zealand would likely be more harsh than for others.

[23] Apart from that factor, I have now been told that Mr Lee has been an obedient prisoner during the period he has been on remand awaiting sentence. He has been employed as a kitchen worker and has undertaken his tasks well. It appears that the time he has taken to learn that craft will stand him in good stead in the

_future.

² _{R v Ho DC Auckland CRI-2014-004-7783, 11 September 2014 (Judge Field).}

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

[24] Given the fact that Mr Lee will be away from his family for some time and does not speak English fluently, I consider, on balance, that a reduction of one year and six months would be appropriate for those mitigating factors.

[25] The remaining question is one of a credit for a guilty plea. Initially, I indicated that I would be prepared to apply a credit of 20% rather than the maximum credit of 25% that could be given in terms of Hessell v R.⁴ Having now had the benefit of knowing the outcome of the trial in respect of co-accused, and taking account of the timing of the plea in this particular case compared with that of Mr Ho, I am now prepared (somewhat generously I will admit) to give a credit of 25% to Mr

Lee for his guilty plea.

[26] From the reduced starting point of 12 years six months imprisonment, that allows a further credit of three years and two months. That makes the end sentence one of nine years and four months imprisonment.

Result

[27] Mr Lee, you having pleaded guilty to the charge of possessing the Class A controlled drug, methamphetamine for the purpose of supply, you are sentenced to a term of imprisonment of nine years and four months.

[28] I do not impose a minimum term of imprisonment.

[29] You will be eligible to apply for parole after serving one-third of that sentence.

_{[30] Stand down.}

_{P R Heath J}

⁴ Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 (SC).