Lu v The Queen - [2011] NZCA 151

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/2010
[2011] NZCA 151

BETWEEN SAY TSUONG LU
Appellant

AND THE QUEEN
Respondent

Hearing: 10 March 2011

Court: Ellen France, Courtney and Clifford JJ

Counsel: J J Brandts-Giesen and A M McCormick for the Appellant
K A L Bicknell and A D King for the Respondent

Judgment: 13 April 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Clifford J)

Introduction

Mr Lu was convicted at trial on one charge of conspiring to supply the Class A controlled drug methamphetamine and on one representative charge of supplying methamphetamine. Judge Farish, the trial Judge, sentenced Mr Lu to twelve years imprisonment and imposed a minimum period of imprisonment (MPI) of seven years. Mr Lu appeals against his conviction and sentence.

Facts

Mr Lu’s convictions followed a Police investigation into a conspiracy organised by Dean Waka Nathan, then a serving prisoner at Christchurch Men’s Prison. Mr Lu had met Mr Nathan when he had also been serving a term of imprisonment in Christchurch Men’s Prison, for earlier methamphetamine supply offending.
Mr Nathan and six other conspirators pleaded guilty to conspiring to supply methamphetamine. In broad terms, the conspiracy involved Mr Nathan, through the agency of his co-conspirators, obtaining methamphetamine in Auckland from Mr Lu for delivery to and supply in Christchurch. One of these co-conspirators, a Ms Hurring, entered her plea on the basis she had travelled to Auckland and actually obtained methamphetamine on at least seven occasions and returned with that methamphetamine to Christchurch.
Mr Lu stood trial with one other alleged co-conspirator who had also pleaded not guilty.
The Crown case against Mr Lu was that he was able to source commercial amounts of methamphetamine in Auckland. Ms Hurring was the “mule”. She obtained methamphetamine from Mr Lu.
The case against Mr Lu was circumstantial, and relied upon intercepted communications between Mr Lu and each of Mr Nathan and Ms Hurring and between Mr Nathan and Ms Hurring and other co-conspirators.
Those intercepted communications related particularly to an occasion in and around 18 January 2009 when Ms Hurring organised to purchase ten ounces of methamphetamine for $130,000 from Mr Lu. Mr Nathan was short $30,000. The arrangement was that Mr Lu would supply the methamphetamine on the basis of $100,000 cash, and $30,000 on credit or “tick”. Ms Hurring travelled to Auckland with $100,000, but the transaction was aborted because both Ms Hurring and Mr Lu became suspicious that the Police were aware of their activities. Intercepted calls and text messages showed Mr Lu and Ms Hurring discussing the proposed transaction, and those concerns.
In a pre-trial ruling on 31 May 2010 the Judge had ruled admissible as propensity evidence Mr Lu’s previous convictions (for methamphetamine supply). The Crown relied on that evidence to negate the defence that the intercepted phone conversations between Mr Lu and Ms Hurring related to loan arrangements, rather than drug deals.
Mr Lu appeals…

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 Lu v The Queen

Details

AGLC: Lu v The Queen [2011] NZCA 151
Case: [2011] NZCA 151
Decision Date: 13 April 2011

CaseChat Overview and Summary

Say Tsong Lu appeals against his conviction and sentence for conspiring to supply and supplying methamphetamine. The appeal was dismissed. Lu was convicted on one charge of conspiring to supply and one representative charge of supplying methamphetamine. The conspiracy involved Lu supplying methamphetamine from Auckland to Christchurch. Lu's conviction was based on intercepted communications between Lu, Ms Hurring and Dean Waka Nathan. Lu argued that the trial judge improperly admitted propensity evidence of his earlier methamphetamine supply convictions. The Court found the trial judge's admission of the evidence was correct. As for sentence, Lu argued that the sentence of 12 years was manifestly excessive. The Court found that the sentence was appropriate given the seriousness of Lu's offending, and that the minimum period of imprisonment was not manifestly excessive.

Orders