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Li v The Queen

Li v The Queen

Case [2019] NZCA 474 2 October 2019

Disparity of Treatment

Role in Offence

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA106/2019
[2019] NZCA 474

BETWEEN	MINGDONG LI Appellant
AND	THE QUEEN Respondent

Hearing:	30 July 2019
Court:	Miller, Woolford and Whata JJ
Counsel:	A M Simperingham and H N Tunstall for Appellant HDL Steele and P E Hayward for Respondent
Judgment:	2 October 2019 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Li brings this appeal against the sentence of 10 years and eight months imprisonment imposed on him after trial on two charges of possessing ephedrine for supply.[1]
[1]R v Ng [2017] NZDC 17262 [Sentencing notes]. A conviction appeal was abandoned.
The sentence was passed by Judge Sinclair on 4 August 2017, so the appeal is well out of time. Mr Li’s explanation is that he ran out of funding and it took time to find a lawyer who would take his case.
We record that Mr Li sought an adjournment pending the Court’s review of the sentencing methodology adopted in R v Fatu.[2] Miller J declined that application pre-hearing on the basis that it might be reviewed at the hearing,[3] which it was. We again declined to adjourn, or to permit further submissions, on the basis that the review is unlikely to affect materially the position of offenders such as Mr Li, who assumed an important role in a major drugs transaction, participated for profit, received a discount for personal mitigating factors, and escaped a minimum period of imprisonment.

The facts

[2]R v Fatu [2006] 2 NZLR 72 (CA).

[3]On 9 July 2019.

The charges arose out of the importation of a consignment of 200 kilograms of ephedrine, a class B drug, from China in 2016. Other offenders received the consignment, which had been intercepted by Customs and a placebo substituted for most of the drugs. Mr Li collected the placebo and drugs and took them in his car to his home address. When a search warrant was executed at Mr Li’s property a further 1.5 kilograms of ephedrine was found in another car registered to Mr Li. It was not part of the same shipment.
Judge Sinclair, who presided at the trial, recorded that the ephedrine consignment was very large. It was worth about $21 million at street level, and it would have yielded about 100–150 kg of methamphetamine.

The sentence

The Judge characterised Mr Li as not the mastermind but an active member of the operation and a key player. It seemed that he was initially to be an arms-length participant but he became more directly involved after people whose role it was to unpack the drugs were denied entry to New Zealand. He assisted the organiser, Mr Wang, and collected the consignment from Mr Ng’s rented address, where it had been delivered on 9 May 2016.
A starting point of 10 and a half…

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 Li v The Queen

Details

AGLC: Li v The Queen [2019] NZCA 474
Case: [2019] NZCA 474
Decision Date: 2 October 2019 at 11.00 am

CaseChat Overview and Summary

In the case of Li v The Queen, the appellant, Mingdong Li, sought to appeal against the sentence imposed by the High Court at Auckland, New Zealand, following his conviction on two charges of possessing ephedrine for supply. The appeal was heard by Miller, Woolford, and Whata JJ of the Court of Appeal of New Zealand. The central issue for the court was whether the sentence imposed was excessive and whether there was a disparity in treatment between the appellant and his co-offenders, as well as whether the court had appropriately considered the mitigating factors.

The court found that the appellant played a significant role in the importation and storage of the ephedrine consignment, contrary to the appellant's claims of minimal involvement. The court accepted the trial judge's assessment that the appellant was not merely an arms-length participant but an active member and key player in the operation. The starting point of 10 and a half years for the lead charge was deemed appropriate, considering the large scale of the operation and the appellant's significant involvement. The court also rejected the argument that the emphasis on deterrence was misplaced, given the nature of the crime as a sophisticated commercial transaction.

Regarding the disparity in sentencing compared to co-offenders, the court found no incongruity, as the trial judge had appropriately positioned the appellant's sentence between those of lower-end offenders and masterminds or instigators. The court further noted that the appellant was also being sentenced for an additional quantity of ephedrine, justifying the sentence imposed.

As for mitigation, the court found that while the appellant had expressed remorse, it was not extraordinary enough to warrant a discount. The court upheld the trial judge's decision not to interview the appellant and considered that a discount for time spent on electronic monitoring bail was appropriate. Overall, the court concluded that the sentence was neither excessive nor disproportionate when considering all mitigating factors.

The court granted the application for an extension of time to appeal but dismissed the appeal, affirming the original sentence imposed by the High Court.

Orders