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  arrived  in  Auckland. Amongst its cargo were 10 shipping containers addressed to Hong Jun International Trading Ltd.   A week after the shipment arrived Customs covertly examined the containers.     They  found  176  kilograms  of  methamphetamine  hidden  in  the containers’ doors.  Not only is that quantity massive but the purity, sitting at between

75 and 77 per cent, means that the methamphetamine landed was about as pure as it is technically possible to produce.

[9]      As I have already mentioned, this importation was the fifth and final Hong Jun International Trading Ltd made.   The shipping containers from the previous importations were examined and found to have the door locking poles removed probably because they contained methamphetamine.   However, I want to make it quite clear that I do not take those previous importations into account in assessing your offending.   You have not been charged in relation to any of those previous importations  and  I shall  proceed  to  sentence  you  only on  the basis  of the 176 kilograms which were located by Customs on 14 July 2016.

Personal circumstances

[10]     You are a Hong Kong national and you do not appear to have come to the attention of the authorities before.   You speak little English.   Your family is in Hong Kong  and  before  you  arrived  here  you  worked  for  an  air  conditioning company.  It seems that there are some links between that company and Mr Chu who recruited you back in December 2015.

[11]     In respect of your present offending you expressed remorse to the author of the pre-sentence report.   It appears that those expressions of remorse are sincerely held by you.

Submissions

Crown submissions

[12]     Mr McCoubrey, for the Crown, says that I should impose a sentence on you which has a starting point of 25 years.  In support of that figure the Crown refers not only to the scale of your offending both in terms of the quantity and quality of the drugs imported but also the sophistication of the enterprise which underpinned it. However, the Crown properly acknowledges that in the hierarchy of those involved you played a lower, albeit not insignificant logistical role, which supported the wider criminal venture.  The Crown acknowledges that your lack of previous convictions and your age provide the basis for a modest discount.  The Crown also accepts that you are entitled to the full 25 per cent discount for your early plea of guilty. Furthermore, it also acknowledges that you deserve some credit.  Finally, the Crown says that a minimum period of imprisonment (“MPI”) should be imposed close to the statutory maximum of 10 years.

Defence submissions

[13]     On your behalf Mr Couchman submits that a starting point of 23  years’ imprisonment would be appropriate.  From that, he presses for discounts of the order of 10 to 15 per cent for personal mitigating circumstances, and 25  per cent in acknowledgement of your plea of guilty.  Finally, Mr Couchman submits that an MPI of 50 per cent would be sufficient to meet the statutory purposes which are engaged in your case.

Purposes and principles of sentencing

[14]     I now turn to the statutory backdrop and the principles which are engaged in your case.  First, there is the need to hold you accountable for the harm you have done to the community, the need to promote in you a sense of responsibility for and an acknowledgement of that harm, the need to denounce your conduct and to deter

you and others who may be similarly inclined, from committing offences of this sort. The last of these principles is particularly important in cases of large scale, sophisticated methamphetamine importation.  I and other Judges have discussed this drug on previous occasions.   Put bluntly, it is the most dangerous and destructive drug abused in New Zealand.  To describe it as a scourge is an understatement.  It captures those who use it, even if only for a short period, and inevitably leads them down a path of personal ruin and destruction.  Those who are addicted to it and are otherwise decent people are robbed of their dignity and eventually their self control. Frequently they resort to crime and violence to feed their ever growing habits.  Not only are they left dreadfully physically and psychologically damaged but their cohort of family and friends are caught up the maelstrom of their misery.  The unadorned reality is that no part of our community is left untouched by the effects of this awful substance.

[15]     Having  said  that,  I am  also  mindful  that  in  sentencing  you  today  I  am required to impose the least restrictive sentence which is appropriate in the circumstances.  Despite that, both the Crown and your lawyer properly accept that a lengthy term of imprisonment is inevitable.

Starting point

[16]     In R v Fatu our Court of Appeal set out four sentencing bands for offending involving the importation of methamphetamine.2    The key factor is quantity.  Your case fits comfortably within band four which mandates the imposition of a starting point ranging from 12 years’ imprisonment to life imprisonment where the importation involves amounts in excess of half a kilogram.

[17]     You helped import 176 kilograms.   That is a staggering quantity and one which places your offending in an unenviable category of being one of the largest seizures of its type in this country.  Recently I had occasion to consider whether to impose a sentence of life imprisonment in relation to an offender who spearheaded the  largest  case  of  methamphetamine  manufacture  to  come  before  our  Courts.3

There   I   considered   the   sentencing   principle   codified   in   s   8(c)   of   the

2      R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410.

Sentencing Act 2002  that the Court is required  to impose the maximum penalty prescribed if the offending is within the most serious of cases for which that penalty is prescribed, unless the circumstances relating to the offender make that inappropriate.4   In your case the Crown acknowledges, and I agree, that your youth, lack of previous convictions, the fact you played a supporting rather than managerial role in the offending and your plea of guilty means a sentence of life imprisonment

would be inappropriate.   I shall expand on these features when I fix your finite sentence.

[18]     So, first, I must fix the starting point.  The Crown presses for a starting point of 25 years.  Mr Couchman is not far off at 23 years.  In determining the appropriate starting point it is necessary for me to consider the nature of the role you played. That must be plain and is what the Court held in Fatu.   Those who are primary offenders, in other words the organisers or those close to the organisers, can expect sentences with a starting point towards the higher end of the relevant band.  Those

with lower roles in the hierarchy will attract lower sentences within the band.5

[19]     Mr Couchman submits that you were recruited for a role slightly above that of a catcher or mule.  He says that the main purpose of you coming to New Zealand was to extract the drugs once the containers arrived in order to distance the masterminds  and  the  organisers  from  the  activities  where  detection  risks  were highest.  That is probably correct.  It is also true, as Mr Couchman submits, that the importing company and the storage warehouse were established and maintained well before you arrived in this country.  You were, as he says, a teenager in an operation run by a syndicate of older criminals who stood to profit much more than you.

[20]     However, as Mr McCoubrey counter points, you were more than a mere mule or courier.  You knowingly assisted in the logistics of the importation.  You extracted the drugs from the shipping containers and you did so for reward.  This highlights the principle of denunciation because the Courts must send out a clear message that if you are caught being involved in the importation of drugs then you can expect to go to jail for a long time.

[21]     To ensure that any sentence imposed on you is comparable to the sentences imposed on others in similar situations I have examined the case law and will briefly summarise two cases which I believe have some application and relevance to yours.

[22]     In R v Chin, the Court sentenced four defendants for their role in importing shipping  containers  in  seven  consignments.6       Methamphetamine  and pseudoephedrine were imported by those means. The most serious charge involved a shipment of 96 kilograms of methamphetamine and 154 kilograms of pseudoephedrine.   Mr Deng, a New Zealand resident, was involved in the largest shipment.  His role was to collect methamphetamine from the container and deliver it to a safe house which the syndicate had set up for the purpose of packaging and distributing the drugs.  There was evidence to suggest he was in regular contact with

his Chinese suppliers.   In this Court Mr Deng was sentenced to 17 years’ imprisonment.   That sentence was increased by the Court of Appeal to 25 years’ imprisonment with the Court noting that life imprisonment would have been within the available range.  The Court of Appeal noted the huge quantity of drug and Mr Deng’s relatively high level of participation.

[23]     One  of  Mr  Deng’s  co-offenders,  Mr  Pan,  provided  general  assistance, including setting up bank accounts, arranging storage units and accommodation and helping with travel.   He was described as a major participant at the New Zealand end.  While he was not an instigator or mastermind he was a critical player.  He was involved over the entire period of offending.  His sentence of life imprisonment was upheld on appeal.

[24]    In R v Chan the defendant was convicted of four charges of importing methamphetamine. 7     This related to the receipt of four overseas consignments. Mr Chan’s role was to assist with the logistics of receiving and distributing the packages containing the drugs once they arrived in New Zealand.  He arranged the rental of a storage unit for the delivery of the packages.  Brewer J adopted a starting point  of  20  years’  imprisonment  for  the  lead  offence  of  importing  almost

61 kilograms of methamphetamine.  He increased the starting point by three years to reflect the balance of the offending.

[25]     Comparing these cases with yours it is immediately obvious the quantity of drug in your case is significantly greater.   And that is a feature which must be factored into the starting point.  In terms of your role I find that the nature of your assistance was broadly comparable to that of Mr Deng’s. As did he, you handled the actual drugs and extracted them from the shipments.  In terms of the hierarchy, you occupied a similar rung on the ladder to Mr Chan.  And like Mr Chan you are a young man seduced by the lure of wealth in a highly sophisticated drug syndicate run by older associates. Your job was to follow orders and do the risky work.

[26]     Having  regard  to  the  massive  quantity  of  drugs  involved,  the  critically important role you played and the fact you were motivated by profit I consider the appropriate starting point is one of 25 years’ imprisonment.  This takes into account your position in the hierarchy which I regard as relatively low.  For those further up the ladder, a considerably higher starting point, probably life imprisonment, would have been a realistic option.

Personal and mitigating circumstances

[27]    I turn next to discuss your personal circumstances.   Mr Couchman has emphasised  your relative  youth, previous  good  character, strong family support, genuine remorse and the fact you have been assessed as having a low risk of re- offending.  However, as I am sure Mr Couchman would have explained to you, it is well established that personal circumstances must assume less significance in the context  of  commercial  drug  dealing  because  of  the  overriding  principles  of

deterrence and denunciation.8   However, I do accept some recognition of your youth

and favourable prospects of rehabilitation are justified and need to be recognised in any sentence imposed.

[28]     In R v Chan, Brewer J allowed a three year discount for youth and the part which that played in making the defendant receptive to the glamorous recruiting

tactics of an older associate.  Mr Chan was 22.  You are three years younger and you also  appear  to  have  favourable  prospects  for  rehabilitation.    I  am  prepared  to discount your sentence by three years to reflect these factors.

[29]     There is your guilty plea.   You were charged on 5 October 2016 and you entered a guilty plea on 29 March this year at a trial review hearing.   That plea followed a change of counsel and additional time was required to translate matters for you.  I agree with the parties that a 25 per cent discount to reflect that early plea and the circumstances in which it was entered is appropriate.

[30]     And finally, I agree a discrete five per cent discount for other matters is justified in your case.

[31]     This leaves a final sentence of 15 years and five months’ imprisonment.

Minimum period of imprisonment

[32]     The  Crown  seeks  a  MPI  near  the  statutory  maximum  of  10  years’ imprisonment.  In support, it refers to a case of R v Zhou where the Court of Appeal observed that in cases of large-scale methamphetamine offending, the general convention of imposing a MPI of one third under the Parole Act 2002 will usually be insufficient to meet the statutory purposes of sentencing identified in s 86(2) of the Sentencing Act 2002.9   Relevantly, these purposes, as I have already touched on, are to hold you accountable for the harm done to the community, to denounce your conduct and to deter others.

[33]     I have examined the MPIs imposed in the cases I have discussed already. Mr Deng received the statutory maximum of 10 years.  Mr Chan received a MPI of seven years and eight months (or 40 per cent of the finite sentence).  In my view, given the scale of the importation a MPI of 60 per cent is required to meet the sentencing purposes I have just identified.  This translates to a MPI of nine years’ imprisonment.   I have decided against imposing the statutory maximum to reflect your youth and your prospects for rehabilitation.

Imposition of sentence

[34]     Mr Cheung please stand.   You are sentenced to 15 years and five months’ imprisonment.  I also impose an MPI of 60 per cent which means you must serve nine years’ imprisonment before you will be eligible to be considered for release.

[35]     Stand down.

Moore J

Solicitors:
Crown Solicitor, Auckland
Mr Couchman, Auckland