R v Cheung - [2017] NZHC 914

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-010265 [2017] NZHC 914

THE QUEEN

v

KAI YIP CHEUNG

Hearing: 9 May 2017

Appearances:

Robin McCoubrey and Emma Smith for the Crown
Adam Couchman and Somee Chung for the Defendant

Judgment:

9 May 2017

SENTENCING NOTES OF MOORE J

R v CHEUNG [2017] NZHC 914 [9 May 2017]

Introduction

[1] Mr Cheung, at the age of 20, you appear for sentence having pleaded guilty to one charge of importing methamphetamine, the maximum sentence for which is life imprisonment.1

[2] As I indicated earlier you may remain seated until I tell you when it is time to stand at which point I will pass sentence.

Facts

[3] You accept the Crown’s summary of facts. This reveals that a joint Customs and Police operation codenamed Operation Winchester was commenced in June
2015 when a Hong Kong national, Mr Lee, registered a New Zealand company by the name of Hong Jun International Trading Ltd. Ostensibly its business involved the importation of container loads of scaffolding. It was, however, a front for a much more sinister enterprise, the importation of massive quantities of methamphetamine which was concealed in the doors of the containers.

[4] After incorporating the company Mr Lee set about establishing the logistical infrastructure to support the real purpose of the business. For example, he entered into a six year lease for a large warehouse in Manukau which was used to store the imported containers. He did this with the assistance of another New Zealand-based agent. The summary of facts records that four importations involving 18 containers took place before the last importation on 6 July 2016 which is the importation which led to you being charged.

[5] Your involvement started in December 2015 when you were recruited to assist. At that time you were living in Hong Kong. You were just 19 years old. You have said that the reason you became involved was because you were in debt and you wanted to “make some fast and easy money”.

[6] You arrived in New Zealand with another man in December 2015. He returned to Hong Kong not long afterwards but you remained in New Zealand and

1 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a).

obtained a student study visa. In March 2016 you enrolled in a three month English course. Unsurprisingly, your attendance rate was low and you did not sit any of your final assessments. Of course, you were not here to study English. Your priorities were very different and lay elsewhere.

[7] Your role in Hong Jun International Trading Ltd was to look after the warehouse and help extract the drugs after the containers arrived. For those services you were paid; how much is not clear but between April and August 2016 some
$16,000 was deposited into your account although it is likely that at least some of those funds were used to meet the operation’s expenses.

[8] On 6 July 2016 the container ship, Lexa Maersk…

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 R v Cheung

Details

AGLC: R v Cheung [2017] NZHC 914
Case: [2017] NZHC 914
Decision Date: 9 May 2017

CaseChat Overview and Summary

The defendant, Kai Yip Cheung, was sentenced for his involvement in the importation of methamphetamine. The defendant had pleaded guilty to one charge of importing methamphetamine, an offence carrying a maximum penalty of life imprisonment. The court had to determine the appropriate starting point for the defendant's sentence, considering the quantity of drugs involved and the defendant's role in the crime. The court also had to consider the defendant's personal circumstances and mitigating factors before determining the final sentence, including the minimum period of imprisonment.

The court considered the defendant's role in the importation of 176 kilograms of methamphetamine, which was a significant quantity and placed the offending in the highest band of seriousness. The court also considered the defendant's role as a logistics assistant, handling the actual drugs and extracting them from the shipments. The court compared the defendant's role to that of other defendants in similar cases, finding that the defendant's role was comparable to those defendants who received sentences of 17 years and life imprisonment.

The court also considered the defendant's personal circumstances, including his youth, lack of previous convictions, genuine remorse, and low risk of reoffending. The court accepted that some recognition of these factors was justified and discounted the sentence by three years. The court also accepted a 25 per cent discount for the defendant's early plea of guilty and a further five per cent discount for other matters.

The court sentenced the defendant to 15 years and five months' imprisonment, with a minimum period of imprisonment of nine years. The court decided against imposing the statutory maximum to reflect the defendant's youth and prospects for rehabilitation. The court held that a minimum period of imprisonment of 60 per cent was required to meet the sentencing purposes of holding the defendant accountable for the harm done to the community, denouncing the defendant's conduct, and deterring others from committing similar offences.

Orders