Liew v The Queen - [2016] NZHC 627

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000168 [2016] NZHC 627

BETWEEN
KAR FUI LIEW

Appellant

AND

THE QUEEN Respondent

Hearing: 23 March 2016

Counsel:

J Clearwater for Appellant
S McColgan and S Wilson for Respondent

Judgment:

23 March 2016

JUDGMENT OF ASHER J

Solicitors/Counsel:
J Clearwater, Auckland.
Meredith Connell, Auckland.

LIEW v THE QUEEN [2016] NZHC 627 [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”.1 Mr 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
the chain in the drug enterprise. They had all put on the underwear.

1 R v Liew [2015] NZDC 3689 at [2].

[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…

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 Liew v The Queen

Details

AGLC: Liew v The Queen [2016] NZHC 627
Case: [2016] NZHC 627
Decision Date: 23 March 2016

CaseChat Overview and Summary

The High Court of New Zealand heard the appeal of Kar Fui Liew against his sentence of 10 years' imprisonment with a minimum term of five and a half years, imposed by Judge C Ryan in the Auckland District Court. Liew had pleaded guilty to two charges of importing and possessing methamphetamine for supply. The court had to determine whether there was any failure on counsel's part to accurately convey Liew's position to the judge, and whether there had been a miscarriage of justice due to this failure. The court also had to assess the fairness of the sentence imposed.

The court found that there was no basis for asserting counsel incompetence and no material evidence to conclude that there had been a miscarriage of justice in Liew being sentenced on the summary of facts. The court held that Liew had made an informed decision to accept the summary of facts, based on careful advice from his counsel. The court also found that the sentence imposed on Liew was within the available range and appropriate. Therefore, the appeal was dismissed.

The court held that the sentence of 10 years' imprisonment with a minimum term of five and a half years was appropriate and, if anything, generous. The minimum term of approximately 55% was entirely within the range. The court found no credible basis for Liew's assertion that he had made, at least on occasions in this appeal, that he in fact was of the same order of culpability as the other co-accused. The court held that there was no risk that there had been a miscarriage of justice in the sentencing process, and the end sentence imposed on Liew was within the available range.

Orders