Ong v R

Case [2012] NZCA 258 21 June 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA754/2011
[2012] NZLR 258

BETWEEN EWE HOE ONG
Appellant

AND THE QUEEN
Respondent

Hearing: 13 March 2012

Court: Stevens, Chisholm and Heath JJ

Counsel: H B Leabourn for Appellant
K Raftery for Respondent

Judgment: 21 June 2012 at 11.00 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe finite sentence imposed in the High Court is set aside. The minimum period of imprisonment remains intact.
CIn substitution, a finite sentence of nine years eight months imprisonment is imposed. For the avoidance of doubt, the appellant is to serve a minimum period of imprisonment of four years six months imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

On 26 April 2011, Mr Ong arrived at Auckland International Airport, from Kuala Lumpur. Ostensibly, he was travelling in a tour group comprising 14 people. During a routine Customs’ inspection, 797.9 grams of the Class A controlled drug, methamphetamine, were located in Mr Ong’s shoes. Methamphetamine was also found concealed in the shoes of nine of the remaining travellers.
Mr Ong was interviewed by police officers at the airport. He was co‑operative and provided assistance to the authorities.
Ultimately, Mr Ong and his nine fellow travellers were charged with importing methamphetamine. Mr Ong entered a plea of guilty to that charge in the District Court at Manukau, at the first available opportunity. Subsequently, other members of the group found with the drug pleaded guilty to charges laid against them.
The District Court declined jurisdiction to sentence. All 10 offenders came before Lang J for sentence, in the High Court at Auckland, on 26 October 2011.[1] Mr Ong was sentenced to a term of imprisonment of nine years and 11 months. A minimum term of imprisonment of four years and six months was also imposed.
[1] R v Ong HC Auckland CRI-2011-092-10820, 26 October 2011.
Mr Ong appeals against both aspects of the sentence on the grounds that the sentencing Judge failed to give an appropriate credit for Mr Ong’s co-operation and assistance to both New Zealand Police and Malaysian enforcement authorities. For Mr Ong, it is contended that the absence of such a credit rendered both the finite sentence and the minimum non-parole period manifestly excessive.

Sentencing in the High Court

The sentencing Judge acknowledged that all 10 prisoners acted as couriers. They were to receive little financial gain from their activities. In the context of an offence that carries a maximum penalty of life imprisonment, Lang J took a starting point of 14 years imprisonment.[2] No credit was given for remorse.[3] The Judge considered that any expressions of remorse had come too late and were driven more by the circumstances in which the offenders found themselves than true contrition.
[2] At [29].
[3] At [37].
In sentencing Mr Ong, Lang J said:
[73] Ewe Ong, you appear for sentence at the age of 40 years. You carried 797.9 grams of methamphetamine into New Zealand. You have no…

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 Ong v R

Details

AGLC: Ong v R [2012] NZCA 258
Case: [2012] NZCA 258
Decision Date: 21 June 2012

CaseChat Overview and Summary

The case of Ong v R involves an appeal against sentence brought by Ewe Hoe Ong, who was convicted of importing methamphetamine into New Zealand. The appeal was heard by the Court of Appeal of New Zealand, with Stevens, Chisholm, and Heath JJ presiding. The legal issues before the court were whether the sentencing judge failed to appropriately credit Ong for his cooperation and assistance to law enforcement authorities, rendering the sentence manifestly excessive.

The court found that it was appropriate for a New Zealand court to consider the assistance given by an accused to overseas law enforcement agencies when determining a finite sentence. The court noted that credit should be linked to tangible or valuable assistance. However, the court determined that the assistance provided by Ong was of little value, as he provided limited information that could have assisted in the apprehension of those who had directed the couriers. The court also found that the sentencing judge made an error in principle by deducting the credit for assistance from the minimum period of imprisonment rather than the starting point for the finite sentence. The appeal against sentence was allowed, and the finite sentence imposed in the High Court was set aside. A new sentence of nine years eight months imprisonment was imposed, with the minimum term of imprisonment remaining at four years six months.

Orders