Chan v R - [2018] NZCA 148

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.

DThe sentence of 19 years and three months’ imprisonment is quashed and substituted with a sentence of 15 years and three months’ imprisonment.
EThe minimum period of imprisonment is quashed.

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REASONS OF THE COURT

(Given by Winkelmann and Courtney JJ)

Introduction

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]
[1]R v Chan [2016] NZHC 2376.
[2]At [38].
Mr Chan appeals his sentence on the ground that it is manifestly excessive as a result of the sentencing Judge:
(a)taking too high a starting point;
(b)imposing too great an uplift to reflect the totality of the offending;
(c)failing to properly recognise Mr Chan’s personal mitigating factors; and
(d)imposing a minimum period of imprisonment.
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.
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.
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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v R

Details

AGLC: Chan v R [2018] NZCA 148
Case: [2018] NZCA 148
Decision Date: 16 May 2018 at 10 am

CaseChat Overview and Summary

Kin Long Chan appealed against his sentence for importing, supplying, and possessing methamphetamine for supply, which amounted to 19 years and three months imprisonment with a minimum period of imprisonment of seven years and eight months. Chan's appeal was against the starting point and uplift used to reflect the totality of the offending and the imposition of a minimum period of imprisonment. The appeal was filed out of time and the court granted an extension of time to hear the appeal. The appeal against conviction was dismissed as no submissions were advanced in support. The court found that the starting point and uplift were too high, and the imposition of a minimum period of imprisonment was not necessary. The sentence was quashed and substituted with a sentence of 15 years and three months imprisonment, without a minimum period of imprisonment.

Orders