Liew v R [2016] NZHC 627 (23 March 2016)

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Hearing:	23 March 2016
Counsel:	J Clearwater for Appellant S McColgan and S Wilson for Respondent
_Judgment:	_{23 March 2016}

[1] The appellant Kar Fui Liew appeals a sentence of 10 years’ imprisonment with a minimum term of five and a half years, imposed on him by Judge C Ryan in the District Court at Auckland on 27 February 2015. Mr Liew had pleaded guilty to two charges, first of importing methamphetamine, and second, possession of methamphetamine for supply, both incidents being on 13 June 2014.

[2] The summary of facts, which Judge Ryan recorded at the time, was “not disputed”.¹Mr Liew had arrived in New Zealand on a flight from Hong Kong. There were three other persons in addition to Mr Liew who were subject to an investigation for drugs. The other three were a Mr Ganapathy Karapan, and a married couple, Mr Yonguan Ng, and Ms Chai Ling Chong. Mr Liew and Mr Karapan had been sitting behind Mr Ng and Ms Chong during the flight.

[3] On searching Mr Liew and Mr Karapan, they were each found to have underwear which had a black pocket sewn into the crotch. Inside the black pocket there were two plastic tubes containing a crystal white substance which on analysis was found to be methamphetamine. Mr Liew had 530 grams of methamphetamine in his pocket, and Mr Karapan had 499 grams.

[4] While Mr Liew and Mr Karapan were stopped on arrival in New Zealand, Mr Ng and Ms Chong were searched later when Police went into their hotel room. The methamphetamine had been removed from their underwear and the total weight between them was 963 grams. Thus the total of all the methamphetamine brought into New Zealand by the four of them was just under two kilograms.

[5] The summary of facts disclosed that Mr Liew and Mr Karapan had known each other. They had flown to Malaysia and then to Macau. They had met Mr Ng, who Mr Liew had recruited as a courier when he was working with him and with his wife, Ms Chong. The summary of facts recorded that Mr Liew and Mr Karapan had collected pairs of underwear in a bag left for them by persons presumably higher up

[6] All four of the persons apprehended were co-operative, but Mr Ng and Ms Chong were particularly so. Mr Ng said that he met Mr Liew about two months earlier when the two had worked in a restaurant. He and Ms Chong had been struggling to make ends meet and Mr Liew had offered them the opportunity to make some money. In the following period, Mr Ng and Ms Chong had flown to China where they met with Mr Liew and Mr Karapan, stayed at a hotel and had been given the underwear and the methamphetamine. Their flights to New Zealand had been paid for by persons higher up the chain.

[7]	In her sentence Judge Ryan noted:² ... the conspiracy to bring drugs in New Zealand involved more than
	[Mr Liew] and Mr Karapan, that [Mr Liew and Mr Karapan] were more significant than couriers or mules but less significant than the mastermind or minds and that [Mr Liew was] the primary recruiter and organizer of the four to put on the underwear and go to New Zealand.
[8]	Judge Ryan had previously sentenced the other three co-offenders.	She

adopted a starting point of 13 years for Mr Ng and Ms Chong, and 13 and a half years for Mr Karapan. She took into account the fact that they had been providing each other with the mutual assistance and support to import the larger amount of methamphetamine of approximately two kilograms, and so the starting point was a little higher than it might have been for individual importing. She applied this to Mr Liew and also to Mr Karpan and noted that they were both more than just mules or couriers. She clearly concluded that Mr Liew was the person who was highest up the chain and most involved, a little more involved than Mr Karapan and somewhat more involved than Mr Ng and Ms Chong. She paid close attention to parity in reaching a starting point of 13 and a half years’ imprisonment for Mr Karapan and

I consider that a 14 year starting point for the importation is appropriate for you as the team leader and recruiter.

[9] She uplifted it by a further six months for the possession of methamphetamine for supply. There was, therefore, a total starting point of 14 and a half years’ imprisonment. She took into account the fact that Mr Liew would have the hardship of serving a sentence in a foreign prison where he did not speak the language. She took into account that he was a first time offender. She gave a discount of 14 months, or approximately eight per cent for those factors. She took a generous approach to the guilty plea, which was entered late, and gave a discount of a full 25 per cent.

[10] The Judge came, therefore, to an end sentence of 10 years’ imprisonment, rounded down. She imposed a minimum term of imprisonment of five and a half years’ imprisonment. She noted that she had imposed a minimum term of five years’ imprisonment on Mr Karapan. No minimum term had been imposed on the other two offenders, Mr Ng and Ms Chong, as their end sentence had been considerably lower and that they were also able to claim, in addition to the same factors Mr Liew was able to put forward as mitigating factors, significant co-operation with the authorities.

[11] This appeal has had something of a history. Mr Liew initially represented himself. The appeal was filed out of time, but no point has been taken on this matter by the Crown and leave is granted for the appeal to be heard.

[12] Mr Liew, in his handwritten statement on appeal of 16 September 2015, covered a number of matters which in my view are accurately summarised in the Crown’s submissions:⁴

(b) the failure to obtain a pre-sentence report meant that the appellant’s family were unable to be consulted and the sentencing Judge did not have a proper understanding of his personal circumstances;

(d) the standard non-parole period of one third of the sentence should have been imposed.

[13] The appeal was called before me for determination on 28 September 2015. It became clear during the hearing (with the aid of the Court interpreter) that Mr Liew was disputing the fact that he was the team leader. When I asked him why Mr Dacre QC, who had represented him at the hearing, accepted the summary of facts, Mr Liew said to the interpreter that matters happened in a rush at the end and that he did not go through all the summary with Mr Dacre and an interpreter.

[14] It was not possible for me to evaluate that submission, and I considered it appropriate to adjourn the appeal to give Mr Liew an opportunity to obtain counsel and to present submissions and, if necessary, evidence. I asked for my minute to be referred to Appeal Division of Legal Aid Services as Mr Liew clearly was not in a position to fund legal help himself.

[16] Mr Liew has now filed an affidavit in which he refers to the history of the sentencing process. In that affidavit, he makes statements to the effect that he had told Mr Dacre that he was not a team leader and that he maintained that the summary of facts was incorrect. However, these assertions were not entirely unqualified. He stated:

I maintained that the summary of facts was incorrect but I was told that the Judge had already taken into account the statements of my two co- defendants, Yonguan Ng and Chai Ling Chong, and therefore, I did not think taking these points further would make a difference to my end sentence.

I also did not have any physical evidence to contradict what had been said by my co-defendants, Yonguan Ng and Chai Ling Chong.

[17] Privilege is waived and Mr Dacre has sworn an affidavit and produced a number of exhibits. I do not propose going through all the detail of that affidavit. Suffice to say that Mr Dacre obtained a detailed acknowledgement from Mr Liew at the outset about the correctness of the law and facts. The Police summary of facts

I do not accept that I was aware that the others were carrying methamphetamine and nor did I knowingly assist them to bring methamphetamine into New Zealand.

[18] Mr Dacre stated that because of the dispute about the facts, the case was set down for a disputed facts hearing to take place on 27 February 2015. On

24 February 2015 he met Mr Liew for one hour at the Mt Eden Corrections Facility. An interpreter George Zhang was present at the meeting. Mr Dacre stated:

At this meeting I explained to Mr Liew that the Crown would call the evidence of Mr Ng and Ms Chong. I explained that he would need to give evidence and be cross-examined. I also discussed with him what the impact on sentence would be if the Judge did not accept his version of events.

I advised Mr Liew that if the disputed facts hearing proceeded, he would be obliged to give evidence and would be subject to cross-examination. He would need to explain the photographs that were located on a camera in his possession. The significance of these photographs is that they show Mr Liew socialising with Mr Ng and Ms Chong. This is consistent with their statements but inconsistent with Mr Liew’s statement that he had not met them prior to the flight to New Zealand.

Following our discussions, Mr Liew advised me that he would accept the evidence of his co-defendants and proceed to sentencing. I told him that I would advise the Crown and the Court of this.

As recorded in my notes, I checked with Mr Zhang and Mr Liew understood that he would be sentenced on the basis that he was not a “mere mule” and that he was higher up the chain than the other co-accused.

[19] At the hearing today, Mr Clearwater did not seek to cross-examine Mr Dacre. Mr Liew gave some further evidence and there was some limited cross-examination of him.

[20] In his submissions Mr Clearwater made it clear that he was not challenging the Judge’s reasoning or sentence on the basis of the summary of facts that was before her. He accepted that it was open for her to impose the sentence and the minimum term. For reasons that I will shortly set out, I consider that this concession was entirely appropriate. He did however submit, on instructions from Mr Liew, that there had been a misunderstanding on Mr Liew’s part as to the sentencing process and the basis on which it was proceeding. He submitted that although Mr Liew

accepts that he went into the sentencing on the basis that he would get a higher sentence than the others, he wanted to have his non-parole period reduced. He feels that minimum term is unfair.

[21] It is necessary to deal therefore first with the issue of whether there should be a rehearing on sentence with an opportunity of a reassessment of the facts, and then second (briefly in the light of Mr Clearwater’s concession), an analysis of the fairness of the sentence.

[22] It certainly appeared prior to the hearing today that the key issue in the case was one of counsel incompetence. There had been a failure on counsel’s part to accurately put to the Court Mr Liew’s position that he was not a leader and (if that was so), it followed that there should have been a disputed facts hearing.

[23] I consider that the general approach to issues of counsel incompetence that arises in appeals against conviction can be applied to appeals against sentence as in both cases the key issue in the end will be whether there has been a miscarriage of justice. The leading authority on counsel incompetence in the conviction context is

[7] Counsel error is not itself a ground of appeal under s 385(1). The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused. Where, as here, the basis of the ground of appeal is that relevant and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed. The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence.

[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an

appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[24] If I considered that there was a failure on Mr Dacre’s part to properly put his client’s instructions to the Judge, and if I also considered that this could have led to a miscarriage of justice, that is, a materially higher sentence than would otherwise have been likely, I would intervene.

[25] I have already referred in general terms to the contents of Mr Dacre’s affidavit and the initial detailed advice he gave in November 2014 which he got Mr Liew to acknowledge in the 13 November 2014 document.

[26] When matters were proceeding to the disputed facts hearing when Mr Dacre met with Mr Liew in the prison on 24 February 2015 with the interpreter, what then transpired in the one hour meeting is covered in a detailed and clear file note by Mr Dacre. The accuracy of Mr Dacre’s file note is not challenged, and I can understand why that is so.

[27] At the meeting at the prison Mr Dacre went through the briefs of evidence of Mr Ng and Ms Chong. He explained that they would be called by the Crown and that if Mr Liew went to a disputed facts hearing he would have to give evidence and could be cross-examined. There were photographs on record that were found on Mr Liew’s smartphone that showed him socialising in Macau with Mr Ng and Ms Chong. These appeared to be inconsistent with Mr Liew’s assertion in his earlier instructions to Mr Dacre that he did not know that the others were carrying methamphetamine and did not knowingly assist them. The photographs would show them acting as friends and the fact that they were sitting closely together in the airplane and all had similar amounts of methamphetamine stashed in their underwear in an identical way was inconsistent with his claim that they were not acting in concert.

[28] The file note goes on to record that Mr Liew advised that he would accept the evidence of Mr Ng and Ms Chong. Mr Dacre then expressly recorded:

Checked with [the interpreter] the client understood that he would [be] sentenced on basis that he was not a “mere mule” but was higher up the chain than co-accused.

[29] I do not accept any suggestion that Mr Dacre could have done more and obtained a signed acknowledgement from Mr Liew of these matters. He had already obtained a signed acknowledgement of the general background and this file note recorded the end of what in fact had been a long process. In the light of the express acknowledgements of Mr Liew that are recorded in the file note, Mr Dacre had a proper basis to abandon the disputed facts hearing and to accept the summary of facts. Indeed he could have done little else.

[30] I therefore do not accept any suggestion of counsel incompetence, and indeed would go further and say that Mr Dacre appears to have acted with care and professionalism.

[31] Turning to the end sentence, I only need to spend little time on this as there is no issue with the Judge’s reasoning process.

[32] The quantity of methamphetamine placed the offending squarely in band four of R v Fatu,⁶where the term of imprisonment is 12 years to life imprisonment. Mr Liew had imported 530 grams and his role had gone beyond that of a mere mule. Contrary to Mr Liew’s assumption in his original handwritten notice of appeal, the Judge did not act on the basis that he was a mastermind and clearly recognised that he had the role of a lieutenant or perhaps no more than that of a more senior mule who had some limited organisational role. But for that, the starting point for

[33] Mr Liew’s starting point (14 years) was only one year more than that of Mr Ng and Ms Chong (13 years), and six months more than Mr Karapan (13 and a half years). It seems to me that his starting point was correct. It also seems to me that the discounts given by the Judge were generous, in particular the full discount for the guilty plea.

[34] Turning to the minimum term, it is unsurprising that Mr Ng and Ms Chong did not get a minimum term given that their end sentences were less than eight years’ imprisonment. Mr Karapan did get a minimum term. There was an appeal against that decision, which was dismissed by Whata J.⁷Whata J observed that there had been a serious drug importation and that a minimum term of imprisonment was appropriate.⁸He quoted from R v Wong where it was observed:⁹

In the decisions of R v Anslow CA182/05 18 November 2005 and R v Aram [2007] NZCA 328, this Court confirmed that in cases of very serious drug offending, while its discretion will never be fettered, it will be almost invariable that the criteria for an order under s 86, particularly the need for deterrence and denunciation, will be made out. This case is no different. The criteria are made out for an order under s 86.

[35] Insofar as there might be any benchmark of nine years’ imprisonment to be derived from R v Anslow, or more before an MPI is imposed, the sentence here was in excess of that. The minimum term of five and a half years’ imprisonment was six months more than that of Mr Karapan, and that was an appropriate differential given the difference between their sentences and their involvement. It could be argued that, arithmetically, it could have been two or three months less, but in all the circumstances it was within the range.

[36] I conclude that on the summary of facts, the sentence imposed of 10 years’

imprisonment was appropriate and, if anything, generous. The minimum term of approximately 55 per cent was entirely within the range.

[37] There is no basis for an assertion of counsel incompetence, and no material upon which it could be concluded that there has been any miscarriage of justice in Mr Liew being sentenced on the summary of facts. In my view at the prison, in light of careful advice from Mr Dacre, he undoubtedly made an informed decision to accept the summary of facts. There is no credible basis for the broad assertion that he has made, at least on occasions in this appeal, that he in fact was of the same order of culpability as Mr Ng and Ms Chong. Their evidence was that he had a greater role than that. This is shown by his acknowledgement of his greater involvement than the others in his discussion with Mr Dacre for which he waived privilege.

[38] It has not been shown that there is any risk that there has been a miscarriage of justice in the sentencing process, and the end sentence imposed on him was within the available range.

BETWEEN	KAR FUI LIEW Appellant
AND	THE QUEEN Respondent

High Court of New Zealand Decisions

Liew v R [2016] NZHC 627 (23 March 2016)