R v Chan [2016] NZHC 2376 (6 October 2016)

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Charges: Plea:	Importing methamphetamine (4); Supplying methamphetamine (2); Attempting to supply methamphetamine; Possession of methamphetamine for supply (2) Not guilty
Counsel:	R M A McCoubrey and K C Chang for Crown A G V Rogers, D S Niven and Mr Wong for Prisoner
_Sentence:	_{6 October 2016}

[1] Mr Chan, the jury found you guilty of four charges of importing methamphetamine, two charges of supplying methamphetamine, one charge of attempting to supply methamphetamine and two charges of possessing methamphetamine for supply. The maximum penalty for all of these charges is life imprisonment except for the attempt charge which has a maximum penalty of

[2] You are a 23-year old Hong Kong national living in New Zealand. You first came here as a 12-year old. Your parents remained in Hong Kong. You lived with a home-stay family and went to school here but you returned to Hong Kong regularly to see your family.

[3] In 2013 you met Ho Mak. You met him at the Sky City Casino. Mr Ho Mak led you to become involved with a Hong Kong based syndicate that arranged for large consignments of methamphetamine to be imported into New Zealand. The offending for which you were convicted occurred between early February 2015 and

[5] You were convicted in relation to four consignments. Three of these were imported by mail with the packages directed to a storage unit in Mt Eden. Two of the packages were intercepted by New Zealand Customs. One was found to contain approximately 2.2 kilograms of grey powder containing methamphetamine crystals. The other package was found to contain 1.22 kilograms of grey powder also containing methamphetamine. A third, empty, package was found after the operation had been terminated. That package contained traces of methamphetamine.

[6] The fourth consignment arrived in Auckland by ship on 5 March 2015. It was inspected by Police and Customs officers. The officers found 60.9 kilograms of

methamphetamine concealed within garden hoses packaged inside 30 boxes. The officers repacked the boxes and replaced the bulk of the methamphetamine with an innocent substance. The boxes were later delivered to a self-storage unit in Mt Eden which you had procured. This was the second largest seizure of imported methamphetamine in New Zealand.

[7] Your role in this importation operation, Mr Chan, was to help with the logistics of receiving and distributing the packages once they had arrived in New Zealand. You rented the storage unit to which the mailed packages were to be delivered. You waited expectantly for their arrival. The evidence for that is that on

16 March 2015, you, along with Mr Kam, made inquiries at the reception office of the self-storage company to find out whether any packages had arrived. You also handled the package which was not intercepted by Customs. The evidence for that is that one of your fingerprints was found on the underside of the box.

[8] Then there is the consignment that arrived by ship on 5 March 2015. You played an active role in receiving and distributing that consignment. Your details were given as the importer of the consignment. You were in communication with the freight company, the trucking company and the truck driver all in relation to when the consignment would be delivered. When it was delivered to the storage unit on

24 March 2015 you were there waiting. You helped the driver unload the 30 boxes and place them into the storage unit. You photographed the boxes and reassured Ho Mak, I presume, in Hong Kong by telephone that the goods had arrived.

[9] However, Mr Chan, I am prepared to accept Mr Rogers’s submission that the application for an Importer’s Client Code was done by other members of the syndicate who used your email address and photo ID.

25 March 2015. You assisted in supplying 1.6 kilograms of the innocent substance to another person.

[12] The first supply charge involved supplying a small sample of methamphetamine to Mr Yau on 22 March 2015. Then, on 25 March 2015, you helped supply Mr Yau with a further kilogram of methamphetamine. On that occasion, you and Mr Kam uplifted a box from the storage unit and drove it to Mr Kam’s address. You later drove with Mr Kam and Mr Yip to a carpark where Mr Yau was supplied the methamphetamine.

[13] The two charges of possession for supply were laid as a result of Police finding methamphetamine once their operation was terminated. Police found methamphetamine that was left over in the Mt Eden storage unit and also found

[14] In all, the total weight of methamphetamine known to have been involved in your offending exceeds 80 kilograms.

[15] Mr Chan, those are the facts. I must now consider the law. I want to make it clear from the outset that I am limited in what I can do by the law that binds me. Judges do not approach sentences by looking at whether the person they are going to sentence is a good person or a bad person. Judges look at what the proven facts are and then look to see what the law requires them to do.

[16] The lawyers are largely agreed about the law that applies to your offending. What the lawyers have been arguing about today is, principally, how I can exercise what discretion I have in your case.

[17] Mr Chan, I have to fix a starting point for your period of imprisonment and then I have to see if it can be decreased to take account of your personal circumstances. The starting point has to take into account the seriousness of the offending and your part in it.

[18] The lead charge is charge 5, the importation of 60.9 kilograms of methamphetamine. The maximum sentence is life imprisonment. The Crown submits that if you were the person responsible for organising and directing that importation, then life imprisonment would be appropriate. That might very well be the case, but the Crown accepts that because of your youth a sentence of life imprisonment is not appropriate and the Crown says that I should adopt a starting point of 25 to 30 years’ imprisonment in your case.

[19] Your lawyer, Mr Rogers, argues for a much lower starting point based on what he says is your low level of involvement. He submits that I should adopt a starting point of 16 years eight months’ imprisonment, even though your co- offenders, Mr Kam and Mr Yip, both received a starting point of 25 years. Mr Rogers submits that your involvement in the importation was less than theirs.

[20] Having heard the evidence, this is what I am sure was your involvement. You met the main criminal, Ho Mak, at the casino in 2013. You began to help him in

2014 when he returned to Auckland to set up the base he needed for the importation and distribution of large amounts of methamphetamine. The jury was not sure that by June 2014, when the first importation occurred, that you knew what was going on. You were acquitted of that charge and I accept that you are entitled to the benefit of the doubt about your knowledge at that time. But the jury must have accepted that, at least during your summer holiday in 2014/2015 back in Hong Kong, you did learn what was going on. I am sure that you did, at the latest at that time. Your communications with friends back in New Zealand, trying to recruit them to pick up “fish feed” for a fee of $3,000, is evidence of that. And when you returned to New Zealand on 6 February 2015, you knew there was a big shipment coming in and you were involved with that.

[21] You obtained the D-38 storage unit. You were very nervous when the shipment arrived, checking for Police cars and so on. And, of course, it was you who photographed a box and sent that back to Hong Kong with the news that the goods had arrived. But 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.

[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 this starting point of 23 years to see whether it is consistent with the 25 years imposed on Mr Yip and Mr Kam.¹Because 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.

[24] I now need to consider your personal circumstances to see whether I should adjust the starting point downwards.

[25] Mr Chan, while I can take your personal circumstances into some account, the law is pretty clear that in cases like this personal circumstances generally carry

little weight given the overriding needs to denounce and deter this type of offending.²

[27] Mr Rogers also argues that you should receive a discount for the circumstances in which you were led into your offending. He says you were “cannon fodder for the criminals in Hong Kong and were the target and victim of predatory advances of Hong Kong based criminals”. Mr Rogers observes that you moved to New Zealand when you were only 12-years old and did not have the benefit of the supervision of your parents. In Mr Rogers’s submissions, that made you vulnerable to the advances of Ho Mak. Further, it appears that you did not profit in any significant way from your offending, although you were given access to funds which you used to service your gambling habit.

[28] Next, Mr Rogers submits that you should also receive a reduction from the starting point to reflect your previous good character. Your lawyers have put before the Court no fewer than 52 character references prepared by people who know you. Those references speak to your otherwise good character. Those who know you have been impressed, in particular, with your kindness and willingness to help others. I take these references into account.

[29] Against this, you have convictions in New Zealand for drink-driving and carelessly operating a motor vehicle. Both convictions relate to a single occasion in

[30] Finally, Mr Rogers submits that you should receive discount for remorse and to assist with your rehabilitation. He says you are deeply remorseful for your involvement with Ho Mak. Further, he notes that while you have been in custody you have completed a Gambling Harm Prevention Programme delivered by the Asian Family Services. I observe that you have had trouble with gambling in the past, and indeed it was your gambling habit that put you under the control of Ho Mak.

[31] Mr Chan, I cannot give you a discount for remorse because I do not accept you display any. The pre-sentence report makes that clear. You continue to deny your offending and your remorse is for your family.

[33] I think that the main factors here are your youth and the part that your youth played in 2013 and 2014 in making you receptive to the glamorous and high-rolling Ho Mak’s recruiting tactics. I will discount your sentence by three years, the same discount received by Mr Yip.

[36] I also have to impose a minimum period of imprisonment. The reason for that is that at some stage the Parole Board will look at you to decide whether it is safe for you to be released into the community. But, for offending such as yours, the law is that I should impose a minimum period of imprisonment so that the Parole Board does not have to look at your case until the minimum period of imprisonment has expired.

[37] The Crown wants a minimum period of imprisonment of 10 years. Your lawyer, Mr Rogers, accepts that there will have to be a minimum period of imprisonment, but he submits that 40 per cent of the end sentence would be appropriate.

[38] I have decided to accept Mr Rogers’s submission that a minimum period of imprisonment of 40 per cent is appropriate in your case. There will be a minimum period of imprisonment of seven years and eight months.

(a) On the lead offence – charge 5 – you are sentenced to imprisonment for 19 years and three months. There will be a minimum period of imprisonment of seven years and eight months.

(b) For each of the other three importing offences, you are sentenced to imprisonment for five years.

(d) On charge 8, which is an attempted supply charge, you are sentenced to imprisonment for three years.

(e) On charge 10, which is the other supply charge, you are sentenced to imprisonment for six years.

(f) On charge 11, the possession for supply charge relating to the methamphetamine found in the storage unit, the sentence is three years’ imprisonment

[40] Those sentences are to be served concurrently. That means they are to be served at the same time. So your effective end sentence is, as I have said, 19 years

High Court of New Zealand Decisions

R v Chan [2016] NZHC 2376 (6 October 2016)