Li v Police

[2019] NZHC 908

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-009583

[2019] NZHC 908

BETWEEN

HAO LI, ZHIZHAO TAN and CHI LEUNG

Applicants

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 February 2019

Counsel:

Maria Pecotic for Hao Li Lorraine Smith for Zhizhao Tan Baden Meyer for Chi Leung

Bruce Northwood and Erin and Woolley for the Respondent

Judgment:

29 April 2019

[REASONS] JUDGMENT OF MOORE J

[Application to discharge under s 147 of the Criminal Procedure Act 2012]

This judgment was delivered by me on 29 April 2019 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LI & ORS v NEW ZEALAND POLICE [2019] NZHC 908 [29 April 2019]

Introduction

[1]                This judgment needs to be read in conjunction with my results decision delivered on 28 February 2019.1 There I said I would deliver reasons. This judgment contains those reasons.

The charges

[2]                At the end of the Crown case Ms Li, Mr Tan and Chi Leung applied for orders under s 147 of the Criminal Procedure Act 2011 (“the Act”). The relevant charges in the Crown’s Charge List are 3 and 4. They are set out in fully below:

“Importation 2

Charge 3: That RICKY TAT CHOI LEUNG, WAI FAT WONG, TAI Fl CHIU, HAO LI, ZHIZHAO TAN, CHI LEUNG and YIU CHIANG on or

before 14 August 2017, at Auckland and/or elsewhere, imported the class A controlled drug methamphetamine into New Zealand.

Charge 4: That RICKY TAT CHOI LEUNG, WAI FAT WONG, TAI Fl CHIU, HAO LI, ZHIZHAO TAN, CHI LEUNG and YIU CHIANG between

14 August 2017 and 19 September 2017, at Auckland, had the class A controlled drug methamphetamine in their possession for the purpose of supply to another person or persons.”

Crown case

[3]                In summary, the Crown case is that all seven defendants, in various combinations, were involved in a large scale and highly sophisticated methamphetamine importation and distribution operation.

[4]                The Crown says that each played a part, albeit different, in pursuing the successful outcome of this criminal enterprise. It involved three importations of methamphetamine over a period of approximately one year with a total combined weight in excess of 250 kilograms. If sold on the New Zealand market it would have attracted, even at wholesale, many millions of dollars. It was thus a highly lucrative venture which needed to be planned and executed carefully.

1      R v Leung & Ors [2019] NZHC 287.

[5]                The method of importation was highly sophisticated. Each import was sourced from China. The method by which the methamphetamine was secreted was similar, although not identical, across the three importations. The methamphetamine was dissolved in gypsum, a concrete-like substance which was poured into metal cases in the form of outdoor umbrella stands. Each of the umbrella stands was separately packaged and shipped to New Zealand as part of a larger consignment of outdoor furniture and other miscellaneous items including tents and bicycles.

[6]                Those involved in the importation and distribution of the methamphetamine needed to source the drug, place it in solution in the gypsum and package the goods along with the other innocent items designed to camouflage the real purpose of the importations. As such, the enterprise required active participants in China and in New Zealand. It required importers, organisers and middle men as well as those with the skills to extract the refined methamphetamine in saleable form from the gypsum substrate.

[7]                Once landed in New Zealand, access to the appropriate extraction hardware and tools, including heavy duty grinders, hammers and chisels was necessary. For the re-crystallisation process heating and cooling sources, vacuum pumps and heat resistant receptacles were needed.

[8]                What the Crown says is that Ricky Leung, Wai Fat Wong and Tai Fi Chiu were the importers at the New Zealand end, facilitating the arrival and storage of the drug in this country. Of those, it is alleged that Ricky Leung was the principal importer and the Crown says that he needed to operate at arm’s length from the others involved in the operation. The so-called “middle men”, referred to by the Crown as the “administrative” arm, maintained the documentation and co-ordinated activities within New Zealand. These were Mr Wai Fat Wong, Ms Hao Li and possibly Mr Chiu.

[9]                The extractors, referred to by the Crown as “the workers”, were Mr Tan and Chi Leung led by Mr Chiang. Their job, on the Crown’s analysis, was to break the gypsum down and extract the methamphetamine for distribution and on-sale.

[10]            The Crown case is that each of these people played an essential role in ensuring the success of the wider operation.

The applications

[11]            Each of the applicants approached their application on the same basis; that is there is no, or insufficient evidence that they had the requisite knowledge that methamphetamine was being brought into this country and neither were they were aware of the presence of the drug or exercised any intention to possess control over it for the purposes of possession.

[12]            Before dealing with the legal principles of importation and possession it is necessary to briefly set out the applicable principles in terms of s 147 of the Act.

Section 147 principles

[13]            Section 147(4)(c) requires a Judge to be satisfied that, as a matter of law, a properly directed jury could not reasonably convict. The power to dismiss a charge for lack of evidence was previously found in s 347 of the Crimes Act 1961 (“the Crimes Act”). The authorities developed under that provision remain applicable.

[14]            In R v Flyger the Court of Appeal observed that a Judge should not normally make the order for discharge where there is evidence before the Court which, if accepted, would as a matter of law be sufficient to prove the case.2 The Judge’s function is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.3

[15]            In Parris v Attorney-General the Court of Appeal added that the test must be administered on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury.4 Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide.5

2      R v Flyger [2001] 2 NZLR 721 (CA) at [13].

3      R v Flyger at [13].

4      Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [14].

5      Parris v Attorney-General at [14].

Evidence

[16]            Mr Northwood, for the Crown, commenced his submissions by analysing the available evidence in respect of Charge 4, possession for supply. He submitted that this approach also informed the Crown’s position in respect of the importation charge. It is thus helpful, in respect of all applications, to examine the participation of the various defendants. The charges at issue relate only to the second importation.

[17]            By way of background, it was accepted that the first importation occurred on or before 14 October 2016 when a shipment of outdoor furniture, containing seven umbrella bases in which methamphetamine was secreted, were imported into New Zealand and later delivered to Unit 711, Space Station Storage Solutions situated at 110 St George’s Bay Road, Parnell.

[18]            This importation was intercepted and inspected by Customs. The umbrella bases were x-rayed. Irregularities were discovered in the gypsum core. This was analysed and presumptively tested. A positive test for the presence of methamphetamine was returned. Samples were then taken from each of the 16 bases. These were analysed and confirmed to contain methamphetamine. The substrate containing the drug was then removed and replaced with a similar looking placebo substance. A small quantity of methamphetamine was left in one of the bases. A controlled delivery was then made to consignee addresses; the Suco 88 storage facility in Onehunga. It was delivered on 23 August 2017 by two Customs officers posing as delivery drivers.

[19]            Because the contents of this consignment were known to the authorities there is extensive CCTV footage and surveillance evidence available showing the delivery of the shipment. It was received by a Mr Diao. It was common ground that Mr Diao was an innocent agent. The Crown case was that his actions followed instructions he received from Ricky Leung. Mr Leung sent money from China to Mr Diao to cover the costs associated with importing the second shipment.

[20]            On 11 September 2017 Mr Chiu, Mr Wong and Ms Li arrived in New Zealand on a flight from Hong Kong. They hired a car and drove into Auckland city where they checked into the Sky City Hotel at about 3:30 pm. Mr Wong and Ms Li are

married. They shared a room. Mr Chiu occupied a room of his own. After checking in they retired to their rooms for about half an hour before leaving in the rented car. A little over an hour later Mr Chiu, Mr Wong and Ms Li were observed at Storage King, Takapuna. Mr Chiu signed a contract for the hireage of a storage unit for the period 12 September to 11 October 2017. Mr Wong was listed as the alternate contact person. As I understood the Crown case this storage facility was leased in anticipation of the arrival of the third importation which at that time was in transit to New Zealand.

[21]            The following day Mr Wong and Mr Chiu returned to the Takapuna storage unit. They were there for only a very brief period.

[22]            On 14 and 15 September 2017 Ms Li and Mr Chiu were involved in making inquiries about rental properties. Those discussions led to Mr Chiu signing a rental agreement on 15 September 2017 for a house situated at 5 Claymore Street, Manurewa. The term was one month from 19 September to 18 October 2017.

[23]            The following  day,  on  16  September  2017,  Ricky  Leung  arrived  in  New Zealand from Hong Kong. He was met at the airport by Mr Diao.

[24]            On 17 September 2017 Ricky Leung and Mr Chiu were observed visiting and inspecting a storage unit at Storage King, Grey Lynn. This had been rented earlier. They were there for just a few minutes while Mr Chiu took photographs.

[25]            Later the same day Ms Li and Mr Wong were observed at Noel Leemings, Manukau City. There they inspected refrigerators and freezers before purchasing a large Samsung side-by-side freezer which Ms Li paid for in cash. The Crown case is that given the circumstances, particularly Mr Wong and Ms Li’s recent arrival in New Zealand, this purchase was not intended for a domestic application but rather was bought as equipment necessary for the extraction process which requires access to cooling sources.

[26]            The following day, on 18 September 2017, Mr Tan, Chi Leung and Mr Chiang arrived in Auckland on a flight from Hong Kong. Also with them was Mr Wong’s sister and grandchild. They were met by Mr Wong and Ms Li who took them into the

city where they checked into the Sky City Hotel. Shortly afterwards Mr Wong, Ms Li, Mr Chiu, Mr Chiang, Mr Tan and Chi Leung boarded a people mover (“the Estima”) hired a few days earlier by Mr Wong. They drove to a shopping complex in Botany. CCTV footage shows Ms Li, Mr Tan and Mr Chiang enter a cookware shop and inspect various items in the shop, including a number of large stainless steel pots. Mr Chiu entered the shop shortly afterwards. Three large stainless steel cooking pots, three hot plates and a variety of other items were purchased. Mr Tan could be seen leaving the store carrying the pots and placing them in the car.

[27]            A short time later Mr Chiang, Mr Chiu, Mr Tan and Mr Wong were seen at Bunnings Warehouse in Ti Rakau Drive, Botany. Ms Li and Chi Leung remained in the car. Mr Tan entered the shop pushing a trolley. Mr Chiu appeared to lead the shopping excursion assisted by Mr Tan who obtained a second trolley. The men, including Mr Tan, left the shop. Mr Chiang pushed the trolley to the Estima. All assisted in loading the vehicle before Mr Tan and Mr Wong returned the empty trolleys. Tools and equipment to the value of just under $1,200 were purchased by the others in cash. The purchase included gloves, duct tape, splash goggles, wrecking bars, chisels, hammers, angle grinders, wrenches, a multi-mixer tool and carpet protectors.

[28]            On 19 September 2017 the tenancy at 5 Claymore Street commenced. Shortly after 9:00 am the Samsung freezer was delivered to that address. Mr Wong and Ms Li were present when it was delivered and Mr Wong signed the receipt.

[29]            Later that morning Ms Li and Mr Wong arrived at a refrigeration specialty shop in Greenlane. Over a period of nearly 20 minutes they examined various vacuum pumps before settling on a particular model which they purchased using cash. Shortly afterwards they went to another retail outlet where they brought two electronic thermometers.

[30]            Meanwhile, earlier that morning, Ricky Leung, who was staying a backpackers in Queen Street, picked up Mr Chiu in a rental car. They drove to the Onehunga storage unit where they removed six boxes from the container and placed them in the car. These were the boxes which were the subject of the controlled delivery. From

there the two men drove back to Sky City. Mr Leung got out of the car and Mr Chiang took his place. Mr Leung then drove back out to Botany and into the carpark of the shopping mall. He stopped in a parking space before he and Mr Chiang unloaded the six boxes onto the ground. Ricky Leung drove away.

[31]            Within minutes the Estima arrived and stopped beside Mr Chiang and the boxes. The Estima had been seen to leave Sky City sometime after Mr Leung had departed with Mr Chiu. Mr Wong was the driver. Ms Li was in the passenger seat and in the back were Mr Chiu, Mr Tan and Chi Leung.

[32]            The rental car driven by Ricky Leung did not leave the carpark immediately. Instead, he drove around the back of the shopping complex before stopping in the middle of the access way for one minute. The car then performed a 360 degree turn around an island within the carpark and then drove back towards the area where the boxes had been unloaded taking a wide turn near the parked Estima before leaving the carpark. The Crown case is that Mr Leung was ensuring the valuable cargo had been picked up by those in the Estima.

[33]            The Estima reversed into the carpark which had previously been occupied by the car Ricky Leung was driving.  Mr  Chiu,  Chi  Leung  and  Mr Wong  got  out. Mr Chiu, Mr Wong and Chi Leung assisted loading the boxes into the boot.

[34]            Mr Leung drove back to the city. In the meantime, after the boxes were loaded into the Estima, it drove to 5 Claymore Street. There, Ms Li got out of the car and opened the door of the house. The Estima then  drove away stopping  at the end of Dr Pickering Avenue which is a nearby cul-de-sac adjacent to some rugby fields. There the occupants, who by now also included Mr Chiang, got out and walked around the park area; some were smoking while others were observed on their cellphones. After approximately half an hour the Estima returned to Claymore Street and reversed into the garage. The boxes were not seen to be unloaded but it would appear, from subsequent events, that they were.

[35]            It was the Crown’s case that the address of Claymore Street was where the extraction process was intended to be undertaken. It was thus to that address that the

raw product in the form of the umbrella bases needed to be delivered as well as the necessary equipment to undertake the extraction process, including the recently purchased freezer.

[36]            A short time later the Estima, driven by Mr Wong, left the Manurewa address. Ms Li was in the front seat and Mr Chiu, Chi Leung and Mr Tan were seated in the back. They drove to the Suco 88 storage facility and accessed the same container from which Mr Chiu and Ricky Leung had unloaded the six boxes earlier in the day. Ms Li remained in the vehicle while the men opened the container and started to load boxes into the back. After a few minutes Mr Tan could be seen on his cellphone. Data later retrieved from that device revealed that this was a communication from Mr Chiang. The text message recorded:

“… There is a situation, something has happened. There is a situation. Something has happened, alright. May be don’t come back yet.”

[37]            The Crown case is that Mr Chiang, who had been left back at Claymore Street, had opened the boxes and discovered that they had been interfered with by a third party. At the time this message was received by Mr Tan he was standing at the back of the Estima while the other three men were carrying boxes from the container and placing them in the back of the car. When this call was received, the CCTV surveillance images are consistent with the Crown’s claim that Mr Tan was directing this part of the process and that immediately after receiving Mr Chiang’s message he could be seen communicating with those inside the container. Furthermore, he appeared to place his hand on a box being carried by Chi Leung who immediately returned it to the container. The other men emerged from the container and the boxes in the back of the Estima were all returned to the container which was then locked before the Estima left and returned to Auckland City.

[38]            In the meantime Mr Tan received another WeChat message, apparently from Mr Chiang. In that communication he suggested that they drive “… to the field where a ball game is played to look for me, alright?” This would appear to have been a reference to the end of Dr Pickering Avenue where the Estima had earlier stopped before returning to Claymore Street where the boxes were unloaded. The Crown case

is that Mr Chiang was panicking and needed to be picked up from a place other than where the boxes were.

[39]            Despite this, the Estima continued to Auckland. Mr Tan corresponded with Mr Chiang about getting a taxi.

[40]            On its return to Auckland the Estima stopped in Federal Street and its occupants dispersed.  Mr Chiu ran off but was pursued and caught by the  Police.   Mr Tan, Ms Li, Mr Wong and Chi Leung were also apprehended.

[41]            It would appear that later that afternoon Mr Chiang returned to the hotel by taxi. He and Ricky Leung met at a nearby Chinese café from where they walked to the Crown Plaza Hotel. There they were arrested.

[42]            Following their arrest each of the three applicants was spoken to. Ms Li said that she was on holiday with her husband, Mr Wong. She said the couple planned to travel to the South Island the following day. She said she knew nothing about importing methamphetamine or possessing methamphetamine for the purposes of extraction and/orsupply. Mr Tan and Chi Leung elected to make no statement.

[43]            The hotel rooms were searched. In Mr Wong and Ms Li’s room a suitcase containing documentation linked to the importations was located.

[44]            On Chi Leung’s cellphone images of a white crystalline substance were recovered together with an image of what was described in evidence as “hanging basket”. This image bore a striking, albeit not identical, resemblance to images of items on the packing lists associated with the importations.

[45]            The property at Claymore Street was searched. The six boxes were located just inside the front door. The top box appeared to have been opened. The newly purchased Samsung freezer was located in the laundry. In the spare room were the items purchased the day before at the cookware shop and at Bunnings. All were consistent with use in the extraction phase.

[46]            About  a  month  later  an  importation   arrived   addressed  to   Li   Ho   of 46 Sunnynook Road. Although the consignment was declared as four dry cleaning machines it contained various heavy duty grinding equipment. This import is referred to as the “equipment import”.

[47]            Then, on or about 22 October 2017, a third consignment arrived. It contained a wide range of outdoor furniture, including 17 items described as “outdoor parasol, made of iron stand, plastic and polyester fabric and 17 sun shade base, made of stainless steel and concrete”. The consignee was Best Budget International 99 Limited of 9A Easton Park Parade, Glenfield. It was marked for the attention of Mr Diao whose incorrect contact details were listed. The address of 9A Easton Park Parade was an address associated with Mr Diao. This was the only importation which used that address. All previous importations listed Sunnynook Road. The 17 umbrella bases were tested and found to contain methamphetamine.

Importation

Legal elements

[48]            It is well settled and was accepted by counsel that importation means to bring in or introduce from overseas.6 Importation continues when all the drugs are in transit from their origin outside New Zealand to their intended destination in New Zealand where they become immediately available to the intended recipient or recipients.

Importation becomes complete either when:7

(a)the drugs reach their intended destination or consignment address and are available to the addressee or consignee; or

(b)when the authorities take control of the drugs and do not send them on to their intended destination.

6      R v Hancox [1989] 3 NZLR 60 (CA) at 62.

7      R v Hancox at 62; see also R v George CA550/95 at 5.

[49]            For the purposes of all applications it was not disputed that on or within the dates stipulated in the charges, quantities of methamphetamine, contained in umbrella bases, were imported into New Zealand.

[50]            The mens rea element for importation requires proof of one of the following elements is satisfied:

(a)that the defendant knew that the imported material contained a controlled drug; in other words actual knowledge;8 or

(b)the applicant recognised there was a risk that the imported material contained a controlled drug and unreasonably disregarded that risk.9

Analysis

[51]            The Crown put its case on a parties basis. Mr Northwood submitted that each of the applicants was a party to the importation as a secondary party.

[52]            For party liability on a charge of importation the Crown must prove the following elements:

(a)Was methamphetamine imported?

(b)Was the defendant involved in importing by assisting, helping, supporting or encouraging another defendant or defendants by words or conduct to import methamphetamine?

(c)Did the defendant intend to assist, help, support or encourage another defendant or a defendant to import methamphetamine?

(d)Did the defendant know methamphetamine would be imported by one of the other defendants?

8      R v Taaffe [1984] AC 539 (HL) at 546-547.

9      Kupec v R [2018] NZCA 477 at [20] referring to Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161.

[53]            As noted there was no dispute that methamphetamine was imported into New Zealand at or about the time alleged in the charge.

[54]            However, there was no evidence, or no sufficient evidence, that any of the defendants was involved in the importation process in the manner alleged or that any defendant intended to provide assistance to another or others of the defendants or that any of the applicants knew methamphetamine would be imported.

[55]            Each of the defendants arrived in New Zealand after the importation was complete. While that is not an inevitable barrier for liability if evidence of other acts antecedent or contemporaneous with the importation were available for proof, I was not pointed to such evidence. The closest evidence would appear to be the documentation found in the suitcase in the room shared by Mr Wong and Ms Li. However, there was nothing to link Ms Li with any proprietorial interest or control over that suitcase. Indeed, the evidence tends to suggest the suitcase was Mr Wong’s.

[56]            Furthermore, the Crown’s theory of the case tends to contradict any of the applicants being associated with any acts referable to the importation itself. Certainly, that was the case for Mr Tan and Chi Leung, both of whom arrived in the last wave of visitors, consistent with the Crown’s theory they were the workers recruited for the extraction phase. I am satisfied their role, for reasons set out below, was to facilitate and assist in the extraction and re-crystallisation of the methamphetamine following its arrival in New Zealand.

[57]            For these reasons I was satisfied that the applications should be allowed and the applicants discharged on Charge 3.

Possession for supply

Legal elements

[58]The principles of possession may be summarised as follows:10

10     See Simon v R [2017] NZCA 277 at [14]-[19]; Kupec v R; and Harding v R [2016] NZHC 1855 at [56]-[62]

(a)an awareness of where the drug is;

(b)an awareness that the drug is a prohibited drug (the defendant does not need to know the exact drug but does need to know it is a prohibited drug); or the recognition and unreasonable disregarding of a risk that the drug is a prohibited drug;

(c)actual control of the drug, either through personal custody of the drug or through the ability to direct another person to deal with the drug;

(d)an intention to exercise that control; and

(e)more than one person can possess the same item.

Analysis

[59]            Unsurprisingly, it was not in dispute that if evidence of possession was found to be sufficient the presumption of purpose to supply could not be displaced.11

[60]I shall deal with the submissions relevant to each of the applicants.

(a)Hao Li

[61]            It is common ground that at no point did Ms Li exercise actual possession, in the sense of physical custody over the packages containing the drugs or the drug.

[62]            She was seated in the front seat of the Estima when the six boxes were loaded at the Botany Shopping Centre. Each of the other occupants, except for Mr Tan, were involved in physically moving the boxes into the Estima.

[63]            Furthermore, there is no evidence she assisted in moving the boxes from the Estima into the house at Claymore Street.

11     Misuse of Drugs Act 1975, s 6(6).

[64]            When the Estima arrived beside the container at Suco 88 on 19 September 2017 Ms Li remained in the passenger seat while the boxes were loaded and then repacked in the container. The surveillance footage shows that while this was occurring the vehicle was moving noticeably. It would have been plain to Ms Li what was happening.

[65]            The question is whether Ms Li, notwithstanding her physical remoteness exercised knowing joint custody and control with the others.

[66]            Thus the argument before me focused on what inferences might be drawn from Ms Li’s conduct during the relevant period. A non-exhaustive list of the evidence which tends to support actual knowledge or that Ms Li recognised a risk that the imported material contained a controlled drug and unreasonably disregarded that risk follows:

(a)Ms Li arrived with Mr Wong, ostensibly for the purpose of a holiday. Despite claiming she intended to visit the South Island and Queenstown no bookings for flights or reservations for accommodation were made;

(b)Ms Li was involved in the renting of Claymore Street although it would appear that this was confined to a single communication. Renting a house for a month might be regarded as somewhat antithetical for someone planning a holiday;

(c)Ms Li assisted Mr Wong in the purchase of the freezer which was later delivered to Claymore Street. She made the payment in cash;

(d)she accompanied Mr Wong and Mr Chiu when the storage facility at Takapuna was rented. This was on the same afternoon she arrived with Mr Chiu and Mr Wong on a long haul flight from Hong Kong;

(e)she accompanied and appeared to assist Mr Wong in the purchase of a vacuum pump and subsequently two electronic thermometers. Both items are consistent with methamphetamine extraction;

(f)she assisted Mr Chiu, Mr Chiang and Mr Tan in the purchase of three large stainless steel cooking pots at the cookware store in Botany;

(g)although she did not enter the Bunnings store, she was in the Estima when the large variety of items, consistent with methamphetamine extraction, were placed in the back of the Estima;

(h)she was seated in the Estima when the six boxes containing umbrella stands were placed in the vehicle by Mr Wong and the others; and

(i)she was seated in the Estima at Suco 88 when the container was opened and the boxes loaded into the car followed by the repacking.

[67]            I am satisfied that this combination of evidence is sufficient to support the required mens rea element of the charge of possession for supply.

(b)Zhizhao Tan

[68]            The evidence in relation to Mr Tan was a good deal more straightforward. In determining the question of sufficiency of evidence it was unnecessary for present purposes to go beyond the occasion on 19 September 2017 when the CCTV surveillance revealed Mr Tan as actively involved in the unpacking of the boxes from the container. The call and the WeChat message he received from Mr Chiang revealed his role as a trusted accomplice.  It  was  Mr Tan  who  appeared  to  have  relayed Mr Chiang’s message which resulted in the reloading of the container. Furthermore, Mr Tan was actively involved in the purchase of the stainless steel pots at the cookware shop and in assisting the others in the purchases made at Bunnings.

[69]            I was satisfied there was ample evidence of knowing participation for this charge to go to the jury.

(c)Chi Leung

[70]            The case against Chi Leung was broadly similar to Mr Tan’s; that he was a worker recruited for the purpose of extracting the methamphetamine from the gypsum substrate.

[71]            On the evidence he exercised physical possession and control over the boxes on two discrete occasions; first when the boxes were being loaded into the Estima at the Botany Shopping Centre and secondly at Suco88 when the boxes were being unloaded from the container and then reloaded. Significantly, it was Chi Leung who was carrying a box at the rear of the Estima when Mr Tan held his hand out and appeared to touch the box before the instruction to return the boxes to the container was given.

[72]            Chi Leung’s knowledge and involvement with this enterprise is readily discernible from these events as well as the material discovered on his mobile phone.

[73]            Again, I was satisfied that the necessary elements of possession were available on the evidence and that this charge should also go to the jury.

Conclusion

[74]Each of the defendants was discharged on Charge 3.

[75]In respect of Charge 4 I was satisfied that the applications should be dismissed.

Moore J

Solicitors:

Ms Pecotic, Auckland Mrs Smith, Auckland Mr Meyer, Auckland

Crown Solicitor, Auckland