R v Lee HC Auckland CRI 2008-004-18337

[2010] NZHC 2025

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-018337

THE QUEEN

v

CHEE HOI LEE

Hearing:         2 November 2010

Counsel:         B Northwood and E Finlayson-Davis for the Crown

M Lowe for the Prisoner

Judgment:      17 November 2010 at 3.30 p.m.

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 17 November 2010 at 3.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Meredith Connell, Crown Solicitors, P O Box 2213, Auckland 1140

M-A Lowe, P O Box 941, Shortland Street, Auckland 1140

R V LEE HC AK CRI-2008-004-018337  17 November 2010

Introduction

[1]      Mr Lee pleaded guilty to a representative charge that between 18 June and

14 August 2008, together with Nhi Xuan Nguyen, he supplied the Class A controlled drug methamphetamine.  He disputed aspects of the Crown’s summary of facts.  A hearing took place for the purpose of resolving the differences.

[2]      Mr Lee took issue with the Crown’s position that over the period covered by the indictment he was involved in the supply, either as a principal or a party, of 330 grams of methamphetamine in total.  He accepted that from time to time he supplied small quantities of methamphetamine and that on occasion he was present when methamphetamine was supplied by his co-accused, Mr Nguyen.   He rejects the Crown’s position that he and Mr Nguyen worked together regularly supplying substantial quantities of methamphetamine and that he was, in effect, Mr Nguyen’s “right hand man”.

[3]      Both Mr Nguyen and Mr Lee are alleged to have sourced some of the methamphetamine they supplied from Cam Cau Lot who was found guilty at trial of a number of counts of dealing in methamphetamine.   By agreement, the evidence relied  on  by the  Crown  for  the  purpose  of  the  disputed  facts  hearing  included evidence given at the trial of Mr Lot.  The evidence comprised:

●the transcripts of intercepted communications read in evidence by the Crown as amended;

●relevant excerpts from the surveillance log admitted as exhibit 6 in the Lot trial, which was produced by consent;

●the evidence-in-chief of Frank Junior Pritchard given at the Lot trial together with his viva voce evidence at the disputed facts hearing.

●       the evidence of Detective Sergeant Sowter given at the Lot trial; and

●the evidence of Constable Taare, which was incorporated into a brief of evidence filed by the Crown.

Mr Lee elected not to call evidence.

[4]      It is convenient to analyse the evidence and marshal my findings using the three headings under which counsel made their final submissions:

a)        Transactions in which Mr Lee was directly involved as a principal. b)           Transactions in which Mr Lee was involved as a party.

c)        The role played by Mr Lee in the criminal enterprise.

Direct involvement as a principal

[5]      The Crown relies on seven transactions which are said to establish the supply of 170.4 grams of methamphetamine in total

Supply to Mr Nguyen – 22 June 2008

[6]      The Crown relies on intercepted communications between Messrs Nguyen, Lot and Lee.  In the initial communication, Mr Nguyen asks Mr Lot if Mr Lot can supply him with “five bowls of rice” and “five items, five wheels”.  The evidence of Detective Sergeant Sowter given at the Lot trial was that methamphetamine dealers often used references to food as code for methamphetamine and that round objects, such as bowls and wheels, were code for ounce quantities.  I am satisfied that what was being discussed was the supply by Mr Lot of five ounces of methamphetamine.

[7]      The Crown then relies on a series of communications between Mr Nguyen and Mr Lee to establish that it was Mr Lee who ultimately supplied Mr Nguyen with the requested five ounces of methamphetamine.   In the course of one telephone conversation Mr Lee says to Mr Nguyen that he can get Mr Nguyen “something” and

when he asks Mr Nguyen, “how many?”, Mr Nguyen replies, “about five” and “five

G under”.

[8]      While there appears to be a connection between the proposed supply by Mr Lot   and   the   later   discussions   between   Mr   Nguyen   and   Mr   Lee,   the communications are ambiguous and do not establish beyond reasonable doubt that five ounces of methamphetamine were later supplied by Mr Lee to Mr Nguyen.  I observe also that a transaction of that nature does not fit with the relationship of Mr Nguyen and Mr Lee as will emerge from the evidence to be discussed.

Supply with Mr Lot – 16 July 2008

[9]      The  Crown  again  relies  on  intercepted  communications  on  this  occasion between Mr Lot and Mr Lee.  As the Crown submits, the communications seem to suggest that Mr Lee is arranging for the supply to a third party of methamphetamine which will originate from Mr Lot.  The quantity is unclear.  At one stage, an amount of “four five” is referred to and later on there is a reference to “five persons”.  I find the communications confusing and inconclusive and, although an available interpretation of the communications as a whole is that Mr Lee was supplying others with methamphetamine sourced from Mr Lot, the evidence does not establish actual supply.

Supply to unnamed woman – 16-18 July 2008

[10]     On 16 July, a woman phoned Mr Lee and told him she was “looking for some chicken”.  Mr Lee said he would ask around.  On 18 July, he received a text message from the same cellphone repeating the request for “chicken”.  Shortly afterwards he phoned her and said, “I got some here okay” and gave her directions to a motel room.

[11]     There are recurring references to the supply of “chicken” in the intercepted communications, confirming Detective Sergeant Sowter’s evidence that food items are often used as code for methamphetamine.  I am satisfied that Mr Lee supplied a

quantity of methamphetamine to the woman.  There is, however, no indication of the quantity involved.

Supply to Phuoc Tran – 16 July 2008

[12]     In a telephone conversation on 16 July 2008 Mr Lee and one Mr Phuoc Tran discuss Mr Lee going to Mr Tran’s place which Mr Lee describes as “dangerous”. He seems to suggest they meet at the casino.  Eventually, Mr Lee agrees to go to Mr Tran’s house and asks Mr Tran whether he has “got the money”.

[13]     There are clear indications that an illegal supply is contemplated but nothing to indicate what is being supplied or the quantity.  I am unable to make any findings adverse to Mr Lee on the basis of this conversation.

Supply to Frank Pritchard – 24 July 2008

[14]     The defence accepts that intercepted communications between Mr Lee and Frank Pritchard establish that Mr Lee supplied four points or .4 of a gram of methamphetamine to Mr Pritchard on 24 July 2008.

Supply to Khoi Nguyen – 26 July 2008

[15]     The Crown relies on an intercepted communication between Mr Lee and Khoi Van Nguyen which begins with Mr Lee asking Mr Nguyen, “do you want a meal”, “do you still need it?”  Mr Nguyen responds that he does not have enough “paper”.  There is then reference to 8,000 and Mr Nguyen says he is short of 6,000. Mr Nguyen asks if he can “pay back tomorrow”.

[16]     I accept Ms Finlayson-Davis’ submission that the reference to a “meal” is code for methamphetamine and that, based on the evidence of Detective Sergeant Sowter, the way in which the figures are discussed is consistent with the proposed supply of an ounce (28 grams) of methamphetamine.  However, there is nothing to

indicate that the proposed deal ever eventuated.  There is no proof of supply on this occasion.

Supply to Troy and Nicole – 30 July 2008

[17]     A telephone conversation on 30 July 2008 between Mr Lee and a woman identified as Nicole explicitly records that Mr Lee had supplied her and her friend, Troy, with 1.5 grams.  In the telephone conversation Nicole complains that the half- gram quantity was underweight.  Soon afterwards Troy speaks to Mr Lee who agrees to supply him with “another half”.  It is apparent from the conversations that Mr Lee is in a hotel room and arrangements are made for Nicole to go to the room.

[18]     I am satisfied that a supply of two grams took place on this occasion.

Summary

[19]     The evidence establishes that on two of the occasions relied on by the Crown Mr Nguyen supplied methamphetamine totalling 2.4 grams.  On another occasion he supplied an unspecified quantity.

Supply as a party

[20]     The Crown submits that Mr Lee was a party to numerous instances of supply by Mr Nguyen.  I will consider each individually.

19 June 2008

[21]     In a telephone conversation on 19 June, Mr Nguyen says to Mr Lee, “Oh you ah took the G and the 15,000”.  The conversation concludes with Mr Lee saying he will meet with Mr Nguyen.  He says, “I’m just downstairs”.

[22]     The Crown invites me to interpret this exchange as proof that the two men had  sold  an  ounce  (28  grams)  of  methamphetamine  immediately  prior  to  that

conversation.  This is based on evidence that $15,000 is within the price range of that quantity of methamphetamine.

[23]     I find the evidence inconclusive.  It certainly raises a suspicion that a sale had taken place or was proposed.   However,  Mr  Lee does  not confirm that he has

$15,000.   In fact, in response to Mr Nguyen’s quoted statement he says, “What

$15,000?”.  Later Mr Nguyen makes the ambiguous comment, “You sell me the G

the bit”.  The evidence falls short of proving a sale to which Mr Lee was a party.

[24]     In her submissions Ms Lowe informed me that the Crown and defence had agreed that the $15,000 was an error in transcription and should have read. $1,500. On that basis the quantity involved would have been much less than an ounce.  That does not affect my findings.

Transactions involving Piyamas Laohakanchanasiri

[25]    Piyamas Laohakanchanasiri was a party to a number of the intercepted conversations.  Her cellphone number was given to Mr Nguyen by Mr Lee.

First deal – 21 June 2008

[26]     The Crown relies on a conversation which took place an hour after Mr Lee gave Ms Laohakanchanasiri’s cellphone number to Mr Nguyen.  The Crown submits that, in the course of the conversation, Mr Lee advises Mr Nguyen to get the money from Ms Laohakanchanasiri.   I find the exchange in conclusive and incapable of supporting an inference that Messrs Nguyen and Lee were involved in supplying methamphetamine to Ms Laohakanchanasiri at this point.

Second deal – 8 July 2008

[27]     Intercepted communications between Mr Nguyen and Ms Laohakanchanasiri establish that Mr Nguyen visited her on 8 July for the purpose of collecting $3,000. Less than fifteen minutes before a telephone call which placed Mr Nguyen at the

front door of Ms Laohakanchanasiri’s home, Mr Lee and Mr Nguyen were seen together.  Less than fifteen minutes after the visit, they were seen together again.

[28]     In my view, it can be inferred that Mr Lee was present with Mr Nguyen when the money was collected.  Although the communications do not make it explicit that methamphetamine  was  involved,  I  consider  the  only  available  inference  is  that Ms Laohakanchanasiri was paying the $3,000 for methamphetamine.   Based on a purchase price of $600 per gram, a quantity of five grams was involved.

Third deal – 14 July 2008

[29]     In the course of a series of conversations between 2.19 p.m. on 14 July and

3.15 p.m. on 15 July, Mr Nguyen negotiated the supply to Ms Laohakanchanasiri of what I am satisfied was methamphetamine for a price of $1,000.  Mr Lot was also involved in the exchanges.  Both men had dinner with Mr Lee and Mr Khoi Nguyen (of  whom  more  later)  on  the  evening  of  14  July  and  Mr  Lee  accompanied Mr Nguyen to see Ms Laohakanchanasiri to “pick up the money”.

[30]     The evidence satisfies me that Mr Lee assisted Mr Nguyen in the supply of methamphetamine to the value of $1,000 to Ms Laohakanchanasiri.   Based on a purchase price of $600 per gram, I am satisfied the supply was of at least 1.5 grams.

Parklane Motel deals – 1 July 2008

[31]     Mr Pritchard gave evidence that Mr Lee and Mr Nguyen were in occupation of rooms at the Parklane Motel, Greenlane on 1 July.  He gave uncontested evidence that Mr Lee gave him small quantities of methamphetamine in return for his bringing women to the motel.

[32]     There is also evidence that a man by the name of Ward Pearce was supplied with methamphetamine on two occasions at the Parklane Motel.   He spoke to Mr Nguyen and asked for “ten”.  About three hours later he asked for “three and one”.

The Crown submits that the first deal involved 10 grams and the second the supply of an ounce and three grams.

[33]     While I have no doubt that Mr Pearce was supplied with methamphetamine at the Parklane Motel, I cannot be sure of the quantities involved.

Supply to Ward Pearce and Stephen Cook – 5 July 2008

[34]     In a series of intercepted communications on 5 July, Mr Nguyen and Mr Lee both used Mr Nguyen’s mobile phone to speak to Ward Pearce and another potential purchaser, Stephen Cook.   Mr Lee answered Mr Nguyen’s phone when Mr Cook rang and told him, “we’ve got it.  We’ve got your things”.  A telephone conversation between Mr Nguyen and Mr Pearce a few minutes later establishes, as the Crown submits, that it was intended that Mr Pearce give Mr Cook half of the methamphetamine he received.  The quantity referred to is a “big one”.  Mr Lee’s presence and involvement is further confirmed by his answering Mr Nguyen’s phone to speak to another customer an hour later.

[35]     I am satisfied that Mr Lee was a party to the supply of methamphetamine.  I am also satisfied that the reference to a “big one” is to one ounce (28 grams) of methamphetamine.

Supply to Stephen Cook – 6 July 2008

[36]     The day after the communications with Messrs Cook and Pearce, Mr Cook telephoned  Mr  Nguyen  to  complain  that  he  had  been  waiting  for  two  days. Mr Nguyen handed the phone to Mr Lee who asked Mr Cook how much money he had, “so we can get ready for you ...”.  Mr Cook told him he had “four hundred” which would indicate a purchase of the order of half a gram.  I find Mr Lee was a party to the supply of that quantity.

[37]     In a telephone conversation between Mr Nguyen and Mr Lee on 6 July, there is a discussion of various figures which can only be sensibly interpreted as referring to sums of money.  I agree with the Crown that it appears from the exchange that a transaction involving $10,000 had taken place the previous night, of which $5,000 remained outstanding.   Based on Detective Sergeant Sowter’s evidence that methamphetamine sells  for between $8,000  and  $15,000 per  ounce,  I infer that Messrs  Nguyen  and  Lee  had  both  been  involved  in  the  supply  of  one  ounce (28 grams) of methamphetamine.

Supply to Ollie Siaea – 8 July 2008

[38]     Both Mr Nguyen and Mr Lee spoke to Ollie Siaea on 8 July.  In the course of the conversation and two further conversations, they arranged to meet Mr Siaea.  The meeting at McDonald’s in Otahuhu was subsequently observed by Constable Tarre.

[39]     Although there is no direct reference to the purpose of the meeting, I infer it was for the purpose of supplying an unknown quantity of methamphetamine.

Supply to Khoi Nguyen – 8 July 2008

[40]     In the course of two telephone conversations on 8 July, Mr Nhi Nguyen arranged to meet Mr Khoi Nguyen at a motel in Papatoetoe.   Soon afterwards, Constable Tarre observed Mr Nguyen’s car in Papatoetoe.  Mr Lee was with him.

[41]     The   evidence   does   not   satisfy   me   that   there   was   a   supply   of methamphetamine by Mr Nguyen and Mr Lee on this occasion.  The conversation leaves open the reasonable possibility that it was Khoi Nguyen who was supplying Nhi Nguyen and Mr Lee.  At one stage he says, “I get it ready”.

[42]     Late in the evening of 8 July, Mr Lee spoke to Frank Pritchard and arranged to meet him at a motel.   Mr Pritchard said he had “apple pie” with him.   This probably referred to his having women with him; he said in evidence that he often provided female company to Mr Nguyen and Mr Lee in return for small quantities of methamphetamine.  The following day both Mr Nguyen and Mr Lee again spoke to Mr Pritchard (using the same cellphone) and they agreed to meet at what Mr Lee describes as “the same motel the last time I saw you and gave you some petrol money and the P”.

[43]     The evidence of Mr Pritchard and the communications establish that on both occasions small amounts of methamphetamine were supplied to Mr Pritchard by Mr Lee.

Supply to Witchida Khongkha and Khoi Nguyen – 10 July

[44]     There are five parties to this alleged transaction.  The Crown relies on two intercepted communications.  In the first, Mr Lee, speaking on Mr Nguyen’s phone, arranges to meet Wichida Khongkha at a cinema carpark.   It emerges from the second  telephone  conversation,  which  takes  place  a  few  minutes  later,  that Ms Khongkha is with Mr Khoi Nguyen.   They both speak to Mr Phuoc Tran and arrange to meet at the same cinema.   In the course of the conversation, Mr Tran refers to coming to take “two big ones”.

[45]     The Crown submits that “two big ones” is a reference to two ounces (56 grams) of methamphetamine supplied by Messrs Lee and Nhi Nguyen to Mr Khoi Nguyen and Wichida Khongkha for on-supply to Mr Tran.   Having regard to the customary mode of dealing emerging from the evidence as a whole, I consider this inference can properly be drawn.

[46]     The evidence relied on by the Crown begins with a telephone call from Mr Nguyen to a man called Ali in the late evening of 17 July, followed by a text message in which Ali says, “My friend want 1 ? 0 ? can u do 15.5”.  Soon afterwards Ali confirms to Mr Nguyen that he has the money.  Some ten minutes later Mr Lee speaks to a woman called Mia.  Mr Nguyen’s voice can be heard in the background. There is a discussion about a purchase from Mia for “big ten dollars”.  Minutes later Ali sends a text message to Mr Nguyen indicating that he has $9,000 and will get the balance of $6,500 “2morrey niter”.  Less than a minute later, Mr Nguyen phones Mr Lot to enquire about purchasing “a big one”.   There is also a reference to “28”. Mr Nguyen confirms that he has “the paper” (the money).

[47]     There are then a series of communications between Mr Lee and Mia with Mr Nguyen participating in one conversation.  These continue into the early hours of the morning of 18 July, with Mr Lee agreeing to “bring the paperwork” to Mia in the morning.

[48]     I accept the Crown’s submission that there appear to have been parallel deals going on involving the purchase and supply of one ounce of methamphetamine.  I am satisfied the communications support a finding that Mr Lee was actively involved in the supply to Ali of one ounce (28 grams) of methamphetamine.

Supply to Ward Pearce – 24 July 2008

[49]     Late in the morning of 24 July, Mr Lee spoke to Ward Pearce.  The tenor of the conversation was that Mr Pearce was waiting to receive the money and would phone Mr Lee after he has counted it.   A little later, Mr Nguyen received a text message from Mr Pearce which read as follows:

@e stil need2 get more paper but he hav paper 4)3 now @9ea and bk 2nite again 4 7 k now he go and get the paper 4 the 3 k when he come i ring v and u

[50]     The Crown submits that the reference to “3 @9ea” is to three ounces (84 grams) of methamphetamine at a price of $9,000 per ounce.   I accept that is an appropriate inference to draw.  The later references in the text message to “7 k” and “3 k” indicates that the messages were referring to thousands of dollars.  Mr Lee was clearly a party to the supply.

Supply to Frank Pritchard – 4 August 2008

[51]     Intercepted communications and surveillance evidence establishes that two transactions took place on 4 August.   The first took place at the factory where Mr Nguyen lived at around 9.00 a.m. in the morning.  There is no evidence of the quantity involved.  Mr Lee was not a party to the telephone conversations but was seen opening the gate to allow Mr Pritchard to enter the premises.

[52]     Later that day, Mr Pritchard spoke to Mr Nguyen and asked to buy half (a gram) for “three fifty” ($350).  Both Mr Nguyen and Mr Lee spoke to Mr Pritchard and were involved in the arrangements to meet.  Both were seen at the designated meeting place.  Mr Pritchard said in evidence that he paid Mr Lee $300 and received just under half a gram of methamphetamine.  I accept that evidence.

Supply to Quintin Chapman and Tania Follas – 4 August 2008

[53]     Mr Chapman and Ms Follas went to the factory premises after a number of telephone conversations, in the course of which Mr Chapman advised Mr Nguyen that he had $600.  Mr Lee was seen to open and close the gate.  I accept the Crown’s submission that, based on the evidence of Detective Sergeant Sowter, one gram of methamphetamine was supplied and that Mr Lee was a party to the deal.

Supply to Frank Pritchard – 9 August 2008

[54]     This was a controlled purchase.  In telephone conversations with Mr Nguyen and Mr Lee, Mr Pritchard agreed to pay $650 for one gram of methamphetamine and to meet them at St Luke’s shopping centre.  Mr Pritchard said in evidence that he

paid the money to Mr Nguyen who gave it to Mr Lee to count.  The defence does not dispute Mr Lee’s involvement.

Summary

[55]     In   summary,   I   find   that   Mr   Lee   was   a   party   to   the   supply   of methamphetamine by Mr Nguyen on 15 occasions.  On three occasions the quantities cannot be determined.  A total of 233.5 grams was supplied on the other occasions.

Mr Lee’s role in the enterprise

[56]     I have found that Mr Lee either supplied or was a party to the supply of methamphetamine on a total of 18 occasions over the period covered by the charge. The aggregate quantity supplied was in excess of 235.9 grams.  These findings and the evidence as a whole are consistent with the Crown’s position that, while Mr Lee’s role in the enterprise was subordinate to that of Mr Nguyen, it was important nonetheless.  He is rightly described as Mr Nguyen’s right hand man.

[57]     The evidence establishes that Mr Lee worked closely with Mr Nguyen.  He often answered Mr Nguyen’s phone or took over from Mr Nguyen in the course of a call.   There are instances of callers phoning Mr Lee on Mr Nguyen’s phone. Additionally, Mr Lee was often with Mr Nguyen when deals were being done.  The surveillance evidence already referred to confirms his presence at the Mt Wellington factory where Mr Nguyen lived.  Mr Lee was seen opening and closing the gate for visitors to the premises for purchasers of drugs.  He was present when dealing took place in hotel and motel rooms rented for the purpose.

[58]     Mr Lee dealt directly with other members of the criminal network in which Mr Nguyen had a leading role.  They included Mr Lot and Mr Khoi Nguyen.  On three occasions he attended group dinners attended by others involved in the enterprise.  He had dinner with Mr Lot and Mr Nguyen on 9 and 21 July 2008 and with those two and Mr Khoi Nguyen on 14 July.  On two occasions Mr Lee spoke to Mr Lot regarding police enquiries and an arrest, advising Mr Lot on one occasion

that an arrest was not related to their activities but that he would change his phone number anyway.

[59]     As  the  Crown  submits,  while  Mr  Lee’s  main  involvement  was  to  assist Mr Nguyen, he dealt directly with purchasers of methamphetamine and had authority to deal directly with other members of the enterprise.  He was trusted by Mr Nguyen with large sums of money, $5,000 on one occasion.

Result

[60]     The summary of facts proffered by the Crown is to be read subject to the findings in this judgment.