Mok v R - [2017] NZCA 537

IN THE COURT OF APPEAL OF NEW ZEALAND

CA189/2017
[2017] NZCA 537

BETWEEN	DARREN TSZ RUNG MOK Appellant
AND	THE QUEEN Respondent

Hearing:	13 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	A F Pilditch for Appellant E J Hoskin for Respondent
Judgment:	21 November 2017 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Darren Mok was found guilty following a trial in the District Court at Auckland before Judge Treston sitting without a jury on one charge of conspiring to supply a Class B controlled drug.[1] The conspiracy involved the supply 69 kilograms of ephedrine that had been imported from China. The ephedrine had an estimated street value of over $8 million.
[1]R v Mok [2016] NZDC 25321 [Judgment].
On 21 March 2017, Judge Treston convicted and sentenced him to six years and three months’ imprisonment, with a minimum non-parole period of three years and one month.[2]
[2]R v Mok [2017] NZDC 5799 [Sentencing notes].
Mr Mok filed appeals against conviction and sentence but the conviction appeal has since been abandoned. The sentence appeal is advanced on the basis that the Judge did not properly balance the admittedly large scale of the intended supply against Mr Mok’s peripheral and non-critical role, and his absence of knowledge as to that scale.

Facts

The conspiracy was orchestrated offshore by individuals known only as “Colin” and “the China Boss”. On 31 July 2015 the ephedrine arrived in New Zealand and was detected by Customs. Customs arranged a controlled delivery of a placebo and a presumptive quantity of ephedrine to Lei Hong at 3 Shipton Place. Mr Hong was arrested, and agreed to assist police with their ongoing investigation. This assistance included him collecting three striped bags, again containing a placebo and presumptive quantity of ephedrine, from 3 Shipton Place and taking them to Oakwood Manor Motel.
Mr Mok met Mr Hong at the motel on 21 August, where Mr Mok discussed obtaining a rental property for Mr Hong at the instigation of the China Boss. Later that day, Mr Hong delivered the three bags to co-defendants Tangxing Cheng and Lan Cheng at 3 Neales Road. They then drove the bags to another address. Messrs Cheng, Cheng and Mok were later arrested.

Conviction

Mr Mok did not dispute the facts concerning the importation, or meeting with Mr Hong at Oakwood Manor. At issue was whether he knew he was facilitating the supply of a controlled drug. His defence essentially was that while he may have been naïve or stupid, he had no criminal knowledge.
But the Judge found that the Crown case, while circumstantial, was strong.[3] He found that Mr Mok was aware that his actions were facilitating the supply of a controlled drug; he had agreed with the China Boss to assist in the supply by providing a safe place for unpacking and on-delivery.[4] He had met with Mr Hong at Oakwood Manor to make the necessary…

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 Mok v R

Details

AGLC: Mok v R [2017] NZCA 537
Case: [2017] NZCA 537
Decision Date: 21 November 2017 at 2 pm

CaseChat Overview and Summary

In the case of Darren Tsz Rung Mok v The Queen, the appellant was convicted of conspiring to supply a Class B controlled drug and sentenced to six years and three months’ imprisonment, with a minimum non-parole period of three years and one month. The appeal against the conviction was abandoned, and the sentence appeal was advanced on the basis that the District Court judge did not properly balance the large scale of the intended supply against Mr Mok’s peripheral and non-critical role, and his absence of knowledge as to that scale. The appellant argued that the judge should have considered his lack of knowledge about the quantity or the potential value of the drugs and that the Judge erred in failing to consider this issue. The appeal was dismissed by the Court of Appeal of New Zealand.

The legal issues in this case were whether the starting point and the final sentence were too high and whether the minimum term of imprisonment was appropriate. The Court of Appeal found that the six-and-a-half-year starting point reflected the judge's view that Mr Mok’s conduct fell at the lowest end of the available range. The appellant’s role in the offending was more significant than that of a co-offender in a previous case, and the minimum term was appropriate given the need for deterrence and the lack of insight and responsibility shown by Mr Mok.

In its judgment, the Court of Appeal held that the starting point and the final sentence were well within the range. The Court considered that Mr Mok’s role in the offending, while peripheral, was still important. The Court also found that the judge was entitled to place considerable weight on deterrence, and that the minimum term was appropriate given the need to deter low-level participants in high-volume drug offences. The appeal against sentence was dismissed, and the original sentence was upheld.

Orders