R v Huang
[2008] NZCA 46
•5 March 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA577/07
[2008] NZCA 46THE QUEEN
v
XIAO HUI HUANG
Hearing:14 February 2008
Court:Glazebrook, John Hansen and Wild JJ
Counsel:C P Comeskey for Appellant
F E Guy Kidd and S K Barr for Crown
Judgment:5 March 2008 at 4pm
JUDGMENT OF THE COURT
THE APPEAL, WHICH IS AGAINST BOTH CONVICTION AND SENTENCE, IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Ms Huang appeals against both conviction and sentence. At the end of her trial in the High Court at Wellington last April, the jury found Ms Huang guilty of possession of the Class A controlled drug methamphetamine for supply, and of conspiring to supply methamphetamine. Clifford J subsequently sentenced Ms Huang to 12 years imprisonment. Ms Huang appeals against her conviction, contending that the conduct of the Crown Prosecutor at her trial was misleading and resulted in a miscarriage of justice. In his written submissions Mr Comeskey raised two matters. Without prior advice to the Crown or Court, he sought to add a third in his oral submissions.
[2] Ms Huang challenges her sentence as being manifestly excessive.
Background
[3] In January 2006, Customs intercepted a consignment from China of three cartons sent to an address in Miramar, Wellington. Concealed inside filter cartridges in the cartons Customs and Police found eight kilograms of methamphetamine in 26 heat sealed plastic packages. At the time this was the largest seizure of methamphetamine imported into this country, with an estimated street value around $8 million.
[4] After Customs and Police had substituted a placebo for all but some 20 grams of the methamphetamine, the cartons were delivered to the Wellington address. Ms Huang’s co-accused, Mr Ng, accepted delivery of the cartons at this address. Ms Huang flew from Auckland to Wellington. After travelling by taxi to Raumati where she booked a motel for the night, she returned to Wellington and rented a safety deposit box. Following a telephone call from Mr Ng she went to a motel in Lyall Bay where Mr Ng handed her the 26 packages and a set of weigh scales. She took these to a room she had booked at the Duxton Hotel in Wellington. She was apprehended shortly after leaving the hotel.
[5] In the course of a lengthy interview with Detective Lockyer following her apprehension, the appellant denied knowing that the packages contained methamphetamine. She claimed a friend called Mark had given her $2,000 and asked her to collect the packages, which she thought contained milk powder. She told the Police that the contents of the packages looked, smelt and felt like milk powder. One of her exchanges with Detective Lockyer was:
Detective:What do you think was in the parcels that you received at the motel?
Appellant:I really don’t know is what. … Because I open it up, I smell like a milk powder.
At another point the appellant told the detective:
… And also those bags are yellow colour and ah looking at it is like milk powder. … And also I ss, smelled of milk. …
Conviction appeal
The placebo
[6] Pre-trial, Mr Comeskey wrote to the Crown Solicitor at Wellington inquiring as to the composition of the placebo material substituted by Police and Customs before they delivered the packages to the Wellington address. The Crown Solicitor, the late Mr Stone, advised:
The placebo material used was milk powder.
It is not proposed to lead any evidence in relation to the placebo material.
Ms Guy Kidd informed us that Mr Stone’s advice to Mr Comeskey as to the composition of the placebo was based on written advice given to him by Detective Lockyer. Mr Stone had referred Mr Comeskey’s letter to the Detective. Ms Guy Kidd strongly rejected the suggestion that Mr Stone had intended to mislead the defence. She pointed out that Mr Stone had opened the Crown case to the jury on the basis that the substance substituted was “milk powder”.
[7] The Crown’s evidence about the composition of the placebo was given shortly before the luncheon adjournment on the second day of trial, 17 April 2007, by a Customs Officer, Ms Vivienne Reid. In her deposition Ms Reid had merely stated that she had repacked the cartons “with a placebo concealment”. Mr Stone did not directly ask Ms Reid about the composition of the placebo. The evidence emerged in the following exchange:
Q.Do you choose a substance for any particular reason? What are you looking for?
A.What we try and do is find something that visually appears the same, we had a crystalline substance with yellow tinge so we’re looking for something that would give the same look as that if looked at by an unsuspecting person. We used combination of milk powder and Thai sugar, the sugar was predominant mixture because it was a crystalline mixture and milk powder used to give the yellowish tinge to it.
[8] The thrust of Mr Comeskey’s cross-examination of Ms Reid was to bring out the inconsistency between the Crown Solicitor’s pre-trial description of the placebo, and the description Ms Reid had just given in evidence. Over Mr Stone’s objection, and after direction from Clifford J, Mr Comeskey put to Ms Reid, and questioned her about, the Crown Solicitor’s pre-trial letter. Mr Comeskey also asked Ms Reid who had asked her about the composition of the placebo. Her answer was that it was the Police. She stated that she confirmed that the placebo included milk powder but would not have said that it comprised only milk powder. Mr Comeskey’s cross-examination of Ms Reid included the following exchange:
Q.What you said was the sugar was a predominant mixture because it was crystalline and the milk powder used to give a yellowish tinge to it?
A.Correct.
Q.The jury would take from that there was such an insignificant amount of milk powder to it because it was just there to give a tinge not an appearance?
A.Correct.
[9] Mr Comeskey did not cross-examine Detective Lockyer about the advice he had received from Ms Reid as to the composition of the placebo.
[10] The inconsistency between the description the Crown gave Mr Comeskey pre-trial of the composition of the placebo, and the Crown’s evidence at trial about this, is obvious enough. Equally obvious is the inconsistency between the Crown’s pre-trial advice that it was not proposing to lead evidence about the placebo material, and Ms Reid giving such evidence-in-chief. What is not obvious is how either of these things resulted in a miscarriage of justice. This was not explained in Mr Comeskey’s written submissions. Referring to s 25(a) New Zealand Bill of Rights Act 1990 and R v Sungsuwan [2006] 1 NZLR 730 (SC), those submissions outlined the principles relating to an accused’s right to a fair trial, and as to what constituted a miscarriage of justice. What they did not do was explain how the calling of evidence as to the composition of the placebo, and the inconsistency as to its composition, had resulted in a miscarriage of justice for Ms Huang at her trial.
[11] The Court therefore sought an explanation from Mr Comeskey. We pressed him, repeatedly, to explain what the defence would have done had the composition of the placebo been accurately described by the Crown pre-trial, and had the Crown advised that it would be leading evidence about that.
[12] As we understood Mr Comeskey, the defence might have done two things. First it might have sought an independent analysis of the placebo. Putting to one side the question of what that might have achieved, we asked Mr Comeskey why he had not urgently arranged an analysis when the composition of the placebo emerged in Ms Reid’s evidence. We suggested that Clifford J would have been sympathetic to any adjournment, or rearrangement of witnesses, necessary to facilitate that.
[13] The record of the trial shows that at 2.30pm on 17 April Mr Comeskey asked to see Clifford J in Chambers. This was during his cross-examination of Ms Reid. In Chambers, Mr Comeskey complained to the Judge that the Crown had indicated it would not be leading evidence about the composition of the placebo, and that the Thai sugar component had never been disclosed. Mr Comeskey told the Judge he regarded both those things as sinister. Over the Crown’s objection, he sought and obtained the Judge’s permission to put Mr Stone’s letter of 20 October 2006 to Ms Reid. After further cross-examination of Ms Reid, Mr Comeskey again asked to see Clifford J in Chambers. This was at 3.05pm. On this second occasion, Mr Comeskey advised the Judge that he may have to call a milk powder expert.
[14] As we explain in [46], during the hearing before us it emerged that Mr Comeskey had looked at the placebo (or at least had the opportunity to do so), after requesting that the backpack and packages containing the placebo be brought to Court during the trial. Mr Comeskey did not request that the placebo be released for the purposes of analysis, nor did he ask for any adjournment, or for leave to recall Ms Reid for further cross-examination. Nor did Mr Comeskey ask that the placebo be shown to the jury so that they could judge for themselves whether it looked, felt and smelt like milk powder, as Ms Huang had maintained in her explanation to the Police.
[15] Secondly, Mr Comeskey told us that he might have advised the appellant to plead guilty. Although he did not elaborate, we assume he might have done this had the appearance of the placebo been inconsistent with the appellant’s explanation to the Police that the contents of the packages looked like milk powder. Any deprival of an opportunity to plead guilty may have relevance to Ms Huang’s sentence appeal, but it surely cannot have any bearing on her appeal against conviction. The contention could only be that the verdict of guilty should now be set aside because Ms Huang was deprived of an opportunity to plead guilty.
[16] In closing to the jury, Mr Stone dealt with the milk powder point in this way:
… And then we have the issue of the milk powder. Indeed milk powder may be said to be central to the accused’s defence. We know that part of the placebo substance that was used, that is the substitute that was put in by Customs to look like the original drug, was in this case milk powder to give it its creamy appearance consistent with the original drugs. There was not just milk powder of course, there was the Thai sugar as well. As I said before it really doesn’t matter what is used. Nothing turns on the chemical analysis of this material or the quantities that are used. It is simply a substitute, to put it bluntly, to fool those who are receiving the parcel into believing at least initially that all of the drug is still there. Anything can be used. In this case there was some milk powder used and when the accused said at her interview that it smelt like milk powder, to that extent she was probably right because it was milk powder. Be that as it may however that does not for one moment take away when one looks at the whole of the evidence her belief and indeed her knowledge that she was dealing with methamphetamine. You have to ask yourselves these questions leaving aside the rather obvious one as to why milk powder would be coming from China to New Zealand rather than the other way round:
(1)Would Ms Huang really have come to Wellington paying cash for an air ticket to meet someone that she had never met before for the sole purpose of collecting some completely lawful substance and putting it in a safe deposit box?
(2)Why have the weights of the bags been copied from the accused Ng’s diary or notebook on to the back of her air ticket?
(3)Why did Ng give her the scales and what was she doing with them?
(4)Why would she hire a strong box at all?
(5)Why was there a dash by taxi out to Raumati to book a room and why did she not mention that when first questioned by the Police?
She said that Ng had wanted some thousands of dollars when he handed her the bags – not evidence against Ng – but not credible to [illegible]
It is simply not credible that this was a deal involving milk powder or some other unknown harmless substance.
[17] The relevant part of Clifford J’s summing up to the jury was this:
[107] Thirdly, as for her saying she believed the material to be milk powder, first the placebo did contain milk powder so it may not be surprising that she smelt the milk powder smell and was able to say that. But that does not take away her belief and knowledge that she was dealing in illicit drugs. Mr Stone asked you why would you believe something was milk powder when you had come to Wellington for the sole purpose of collecting it, putting it in a safety deposit box, why the weights, why the scales, why the dash to Raumati to sort out a room, why did Mr Ng want thousands of dollars for milk powder. It was simply not credible to think that Ms Huang believed the matter involved milk powder. That did not make sense.
[18] If Mr Comeskey was taken by surprise by the evidence as to the composition of the placebo, and wanted to look at the placebo or have it analysed, we are in no doubt that Clifford J would have facilitated that. Mr Comeskey did not. We reject his suggestion to us that there would have been “great reluctance” on the Judge’s part to direct that the bags containing the placebo be made available to Mr Comeskey. Equally, if Mr Comeskey had wanted the jury to look at the placebo, he could have called for it to be brought to Court. If, having seen the placebo, Mr Comeskey had been minded to advise Ms Huang to plead guilty, he could have done that. Had the advice been accepted, he might have made a forceful sentencing submission to the Judge that the plea would have been entered earlier but for the Crown’s incorrect advice pre-trial that the placebo was milk powder. But, again, none of that happened.
[19] Ms Guy Kidd made a further point. She submitted that, if the Crown had not adduced evidence about the composition of the placebo, it is “highly likely” that Mr Comeskey would have done so. She drew our attention to the following part of Mr Comeskey’s cross-examination of Detective McKay, the first witness called by the Crown when the trial began on 16 April:
Q.The milk powder placebo substituted for another powder in Auckland, do you have possession of that? Substance comes into the country, its replaced with placebo?
A.Yes.
Q.Which is milk powder?
A.It could be any range of items.
Q.In this case predominantly milk powder? Exclusively milk powder?
A. Not sure, Customs do that.
Q.What do you say the other part was apart from milk powder?
A.I am not sure, I believe it was predominantly milk powder but I wasn’t involved in the making of the placebo.
(The emphasis is ours. We think all the passages we have highlighted record questions by Mr Comeskey, although the transcript is equivocal in respect of the first passage. Our point is that this records Mr Comeskey questioning Detective McKay about the composition of the placebo.)
[20] There is nothing in this first point, relating to the composition of the placebo.
Trip to Raumati to sell drugs
[21] This second aspect of the appeal against conviction also alleged misleading conduct on Mr Stone’s part. In closing to the jury Mr Stone contended that Ms Huang had separated a portion of the drugs with the intention later to travel to Raumati and sell drugs from a motel room there. Mr Comeskey contended that was contrary to the Crown case as Mr Stone had outlined it in opening to the jury, and that it went “beyond the scope of the evidence” the Crown had led during the trial. Mr Comeskey explained the resulting miscarriage in these terms:
Counsel submits that if the prosecution intended to make this submission it ought to have made it clear to the defence that this was part of the Crown case, in which case the defence would have been in a position to cross examine witnesses on the issue and/or call evidence on this point, however as the matter was never raised, the defence were taken away the possibility of responding to this suggestion.
In any event, counsel submits that the submission by the prosecutor went beyond the evidence led at trial and was misleading.
Counsel submits that the effect of the prosecutor’s misleading conduct resulted in a miscarriage of justice as there was a real possibility a not guilty verdict might have been delivered if not for the conduct of the Crown prosecutor.
[22] These submissions cannot be grasped without an understanding of the relevant parts of Mr Stone’s opening and closing addresses to the jury, and of some of the detail of the Crown’s evidence in the trial.
[23] In opening Mr Stone told the jury that there would be evidence that Ms Huang flew from Auckland to Wellington on 27 January. She paid cash for a one way ticket. She was met at the airport by Mr Qian, a young Chinese man she knew. She told Mr Qian she would be going back to Auckland the following day. He dropped her off in Wellington city. Ms Huang then took a taxi all the way out to Raumati where she booked a room for the night at a motel, again paying in cash. She then returned to Wellington in the same taxi. Ms Huang met Mr Qian again and went with him to a security firm in downtown Wellington where Ms Huang hired the biggest strong box available, again paying in cash. When she was told that the security facility closed at 4pm, she told Mr Qian she would have to stay until Monday.
[24] Later on that afternoon Ms Huang went by taxi to a motel in Lyall Bay, where she met Mr Ng who had rented a unit there. Shortly afterwards she left the motel in the same taxi, carrying a bag. She went in the taxi to the Duxton Hotel in Wellington, checking into a room, paying $500 in cash, and doing so so hurriedly that she did not wait for her $70 change. Shortly afterwards she left the Duxton in a car with Mr Qian and was apprehended by the Police shortly afterwards, as we have described.
[25] Mr Stone also explained to the jury that there would be evidence of what the Police found when they executed a search warrant at the house in Miramar on 25 January – two days before Ms Huang met Mr Ng at the Lyall Bay motel. Mr Stone told the jury:
There was evidence that the carbon granules which were used for packing in the filters had been opened in the bathroom and there was a backpack which was full of the 20 heat sealed plastic bags containing crystalline powder of the kind I have mentioned. Also in a wardrobe was a grey shopping bag and a set of electronic digital scales with a glass bowl which contained six heat sealed plastic bags containing the yellow powder.
[26] Mr Stone outlined also what the Police found when they searched the room Ms Huang had taken at the Duxton Hotel on 27 January:
When the Police later searched her room at the Duxton it was found that she had opened the soft sided carry case containing the packages and contents and placed several packets in the wardrobe along with a set of scales. 26 packages were recovered by the police which contained the material about which I have spoken.
[27] Mr Stone also mentioned that, amongst the items the Police found in Ms Huang’s possession, was the electronic air ticket for her flight to Wellington. Handwritten on the back of that were numbers closely corresponding with the weights of each of the 26 packages, which Mr Stone suggested was “a clear indication that each package was carefully weighed and recorded”. Mr Stone suggested that it was significant that scales had been found both at the Miramar address to which the packages were delivered and again in Ms Huang’s possession in her room at the Duxton Hotel.
[28] In closing to the jury Mr Stone again referred to Ms Huang’s trip to Raumati. He continued:
Why was she going to Raumati? There is no direct evidence on the point but as we all know living in the Wellington area, it takes at least three quarters of an hour to get there. To go out there and back again would have taken her at least an hour and a half and quite possibly nearer two hours and she went by taxi and paid cash. And she did that very shortly after arriving in Wellington.
Something was going on. Something was intended to happen at Raumati. The Crown says to you that the only realistic scenario is that some of the drugs were to be sold there, and I will return to that later. …
[29] After reminding the jury of the evidence as to Ms Huang hurriedly booking into the Duxton Hotel and leaving shortly afterwards with Mr Qian, Mr Stone continued:
… We don’t know for sure how long she intended to be away from the hotel – whether they were just going to get something to eat or whether she really thought that he might drive her to Raumati, but she was stuck with having to look after all of the drugs. She had left them in her hotel room which had a security card type lock which is common in hotels, most unlikely to be disturbed, and of course had no idea that the Police were watching her or that the parcel had been intercepted previously and there was no particular risk I suggest to you in leaving the drugs in the Duxton, at least for a short time.
When the Police entered the room they found the items that you see set out in the photographs. All but six of the packets were in the backpack. The other six were alongside on a shelf as was the set of scales – scales that had earlier been found by the Police during a covert search of the Airport Motel and obviously intended for weighing out drugs, and you heard the evidence of Detective Sergeant Thompson about the way in which methamphetamine is packaged for supply.
Later I will have more to say about her interview. The accused claimed that there wasn’t room for those six packets inside the backpack.
That is completely untrue and you have the evidence of Detective McKay, the exhibits officer, when giving evidence and that’s at page 77 of the notes, said when asked was there room for all of the bags including the six separate ones inside the Rockford pack? “Yes the 26 bags, the Warehouse plastic bag, the scales and bowl all fit comfortably inside the backpack”. The six packets therefore had been separated out for a purpose and you may think the only rational explanation is that they were to be taken somewhere else, probably to Raumati and all the rest was to go in the strong box although in the end that’s not a matter you really have to resolve. …
[30] A little later in his address Mr Stone dealt with Ms Huang’s videotaped interview with the Police, following her apprehension. He said this to the jury:
… the accused Huang made no mention of going up to Raumati. This obviously would have taken a very significant part of the day and it was only when she was shown the key that she agreed she had been there although she said that she went there because it was a beautiful place and he knew that she loved the sea. Well put that in context members of the jury and that simply is so much nonsense. There was a very real purpose in going to Raumati. A purpose that was frustrated because the bulk of the goods could not be left in the strongbox when the facility closed at 4:00pm. You may wonder why the accused simply omitted to mention that she had gone to Raumati. …
[31] What Mr Stone said to the jury about the 26 plastic packages all fitting into the backpack is the basis for Mr Comeskey’s third, unheralded, ground of appeal against conviction. We revert to it in the next section of this judgment.
[32] We do not accept Mr Comeskey’s submissions on this second ground. First, he is not correct in submitting that Mr Stone put it to the jury that Ms Huang intended later to go to Raumati to sell drugs. What Mr Stone put to the jury was that some of the drugs were to be sold in Raumati, not necessarily by Ms Huang. The Crown accepted that the appellant’s role may have been limited to supplying some of the drugs in Raumati to someone else to sell.
[33] Nor is Mr Comeskey correct in submitting that the Crown case was always that Ms Huang was no more than a courier, sent to Wellington to receive the packages and return them to Auckland. The inaccuracy of that submission is evident from those parts of Mr Stone’s opening and closing addresses we have set out.
[34] We reject also that Mr Stone’s closing to the jury was unsupported by the evidence the Crown had called. Mr Stone was fully entitled to invite the jury to infer from the evidence it had heard about Ms Huang’s movements and actions, in particular her trip to Raumati and what was found in her room at the Duxton Hotel, and that she intended to travel to Raumati to supply drugs there.
[35] Mr Comeskey did not elaborate on his submission that Mr Stone’s closing to the jury went “beyond the scope of the evidence” the Crown had called in Ms Huang’s trial. We do not accept that.
[36] It is not without significance that Mr Comeskey did not raise the complaints he now makes at the end of the Crown closing, or at the end of the Judge’s summing up. And that despite Clifford J specifically asking, as trial Judges routinely do, whether counsel wished to raise any matters in relation to the summing up.
[37] There is nothing in this second point either.
Did all the packages fit into the backpack?
[38] This was Mr Comeskey’s third ground of appeal against conviction. Although making the point that it was not foreshadowed, Ms Guy Kidd was content to deal with it.
[39] In her videotaped interview with the Police, Ms Huang said that Mr Ng (a person she said she knew as Ming) had handed her at the Lyall Bay motel two plastic supermarket bags containing the packages of powder, and had then also given her a backpack. She said that she also had a bag of her own into which she had put the smaller plastic bag of packages. She said she put the larger bag in the backpack. Ms Huang told the Police that Ming had also given her a “weighing machine that weigh a cake when you want to make cake”, instructing her “you take away together, it’s no use”. She had put the flat bottom part of the weighing machine into the backpack and the round weighing bowl into her own bag.
[40] The interviewing detective then questioned Ms Huang about what the Police had found in her room at the Duxton Hotel. The transcript of the interview records this:
Detective Mackie: Okay we’ll we’re talking about the bags in the … room at the Duxton … the bags that were put into your personal bag … did you put them beside the scales?
Interpreter Nabbit: (interpreting Ms Huang’s answers) My own bag?
Detective Mackie: Yep.
Interpreter Nabbit: Put half.
Detective Mackie: Sorry, I don’t understand, you put half what?
Interpreter Nabbit: Because that weigh machine is two pieces …
Detective Mackie: Yeah, there are six bags of powder … that aren’t with the backpack.
Interpreter Nabbit: Because the backpack was ah, um filling up quite full and I cannot take any more.
Detective Mackie: Is that why they are separated from the backpack?
Interpreter Nabbit: Because it couldn’t take any more, that’s why I have to be put in that way.
[41] The Crown’s first witness was Detective McKay. Amongst other things, the detective had described in his deposition statement what the Police had found in Ms Huang’s room at the Duxton Hotel:
Inside the large wardrobe was a ‘Rockland’ back pack.
This backpack is similar/same to the back pack depicted on the tag located at 6 Ashleigh Crescent (refers to photograph).
The back pack was sitting on the far right of the wardrobe and sitting on top of a set of drawers beside an iron.
I opened this back pack and noticed that it was full with 20 heat sealed plastic bags containing a yellow powder.
On the left hand side of the double wardrobe, beside an ironing board, was a grey shopping bag and a set of electronic digital scales with a glass bowl (refers to photograph).
Inside this grey plastic shopping bag was six heat sealed plastic bags containing a yellow powder.
[42] Mr Stone led the following evidence from Detective McKay:
Q.Was there room for all the bags including the 6 separate ones inside the Rockford pack?
A.Yes the 26 bags, the Warehouse plastic bag, the scales and bowl all fit comfortably inside the backpack.
[43] Mr Comeskey submitted that this was another instance of the Crown misleading the defence. He maintained that he had relied on Mr McKay’s deposition, and was taken by surprise – ambushed – by the detective’s evidence that all 26 packages could be fitted comfortably inside the backpack.
[44] We entirely reject this third basis of challenge to Ms Huang’s conviction. First, Mr Comeskey did not cross-examine Detective McKay about his assertion that all 26 packages fitted comfortably inside the backpack. Having let that evidence go to the jury unchallenged, it is as inept as it is inappropriate now for Mr Comeskey to contend that justice miscarried at the trial. His task, as defence counsel, was to challenge that statement, exposing it as incorrect if indeed it was.
[45] Second, in response to an inquiry from us, Mr Comeskey told us that he had not asked for the backpack and packages to be brought to Court, so that he could check whether the detective’s evidence was correct. He had not sought an adjournment in order to do that, nor leave to have the detective recalled for further questioning, if appropriate, after he had checked the position. Those were surely obvious and elementary steps.
[46] As pointed out in[14], it emerged that Mr Comeskey’s submissions to us on this third ground were more misleading than inept. Responding to the appeal for the Crown, Ms Guy Kidd informed us that the backpack and packages had been brought to Court by the detective and made available to Mr Comeskey. She said that, if necessary, the Crown could call the detective who would state that Mr Comeskey had inspected the backpack, partially unpacking the packages from it. Replying, Mr Comeskey accepted that he had indeed looked at the backpack and packages, although he said only briefly. Thus, Mr Comeskey initially misled us. Need we mention the fundamental importance of counsel accurately stating the position, and being absolutely candid and forthright with the Court?
[47] The final point made by Ms Guy Kidd is that Mr Comeskey had raised the question of whether all 26 packages fitted into the backpack as one he wanted resolved at a disputed facts hearing before sentence. Such a hearing was directed by Clifford J when disputed questions of fact emerged during the originally scheduled sentencing hearing on 1 June. The main dispute was as to the extent to which Ms Huang had provided assistance to the Police. Ms Guy Kidd drew our attention to the Crown’s memorandum of 27 July drawing attention to the unchallenged evidence of Detective McKay we have set out in [41]. She then referred to Clifford J’s minute of 24 August noting that Mr Comeskey had, in a telephone conference that day, advised the Judge that he no longer had issues of disputed fact. Given that, Ms Guy Kidd made the unanswerable point that Mr Comeskey can hardly seek to resurrect this matter now in support of an appeal against conviction.
[48] This third ground of appeal against conviction is as devoid of merit as the first two.
Appeal against sentence
[49] Ms Huang challenges, as manifestly excessive, the sentence of 12 years imprisonment Clifford J imposed on her.
[50] While Mr Comeskey accepts that a very large quantity of drugs was involved, he contends that the main consideration on sentence ought to have been Ms Huang’s culpability. He submitted this was relatively low: she was a courier paid $2,000 for her role, with no expectation as to the quantity of drugs involved.
[51] Whilst acknowledging the authority of R v Fatu [2006] 2 NZLR 72 (CA), Mr Comeskey sought support by referring to the sentence imposed by Allan J in R v Lau HC AK CRI 2005-92-2600 16 December 2005. He fastened on the sentence of five years imprisonment imposed by Allan J on the charge of possession of methamphetamine for supply. In [21] of his sentencing remarks, Allan J stated that he regarded Mr Lau “as equivalent to a courier”.
[52] Mr Comeskey argued also that the Judge erred in not treating the conspiracy charge as the lead offence for sentencing purposes. He maintained that that charge more accurately reflected Ms Huang’s role in this offending – that of a courier. On that basis Mr Comeskey submitted a starting point of five years imprisonment ought to have been adopted as more accurately reflecting Ms Huang’s offending.
[53] We reject all these submissions. Optimistic would be a charitable description of the last of Mr Comeskey’s submissions. Misleading would perhaps be a more accurate one. Mr Lau’s role in an importation of over seven kilograms of methamphetamine closely accorded with that of Ms Huang’s co-accused, Mr Ng, in this case. Allan J accordingly took the charge of importing methamphetamine as the lead offence, sentencing Mr Lau to 15 years imprisonment. The five year sentence fastened upon by Mr Comeskey was imposed concurrently. It follows that there is no support in Lau for Mr Comeskey’s suggestion that a five year sentence is appropriate for a courier of seven to eight kilograms of methamphetamine. Indeed, in sentencing Mr Lau, Allan J referred to sentencing remarks made in R v Wickremasinge HC AK TO13408 23 March 2003. In that case, Chambers J suggested that sentencing starting points in the range 12-16 years were appropriate for “key players at a lower level who were not instigators or master minds, but whose involvement was essential to the enterprise (of importing methamphetamine)”. A courier such as Ms Huang fits into the category described by Chambers J.
[54] We regard the 12 year sentence imposed by the Judge as unassailable. First, the Judge was correct to take possession for supply as the lead sentence. That was the sentencing approach contended for both by the Crown and by counsel for Mr Ng. Before the Judge, Mr Comeskey contended for the approach he now again urges on us – adoption of the conspiracy charge as the lead offence. In putting that to Clifford J, Mr Comeskey contended that Ms Huang was in possession of only 19 grams of methamphetamine, i.e. that the whole of the placebo should be excluded. That submission was untenable in the face of R v Gray CA209/91 13 April 1992, and Mr Comeskey did not renew it before us. Instead, he contended that the conspiracy charge more accurately reflects Ms Huang’s role as a courier.
[55] We reject that. We agree with Clifford J’s approach, and with the Crown’s submission to us, that the possession for supply charge more accurately reflects Ms Huang’s offending. The Judge was required to sentence her on the basis that, when apprehended, Ms Huang was in possession of eight kilograms of methamphetamine i.e. including the placebo. Quite apart from the statutory presumption, the evidence at trial pointed strongly to an intention on her part to supply that methamphetamine to others. The culpability in that quite overwhelms the conspiracy element.
[56] Second, given the eight kilograms of methamphetamine involved, the Judge was right to adopt a starting point of 12 and half years imprisonment. Fatu indicated a starting point of ten years imprisonment for supplying over half a kilogram of methamphetamine. Sixteen times that amount was involved here.
[57] There is no challenge to the six months discount Clifford J allowed for Ms Huang’s assistance to the Police. The extent of that assistance, initially disputed, was resolved pre-sentence.
[58] Mr Comeskey did not press his written submission that Ms Huang had no expectation as to the quantity of drugs involved. That perhaps acknowledged the difficulties the submission faced. As we have pointed out, prior to collecting the drugs from Mr Ng at the Lyall Bay motel, Ms Huang had rented the largest strong box available at the security facility in central Wellington.
[59] Ms Huang’s appeal against sentence fails.
[60] In the result, the appeal both against conviction and against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
4
0
0