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R v Leung

R v Leung

Case [2019] NZHC 3299 13 December 2019

Criminal Liability

Sentencing

Guilty Plea

Minimum Period of Imprisonment

Cultural Isolation

Rehabilitation Prospects

Quantity as a Measure of Culpability

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-009583

[2019] NZHC 3299

THE QUEEN

v

RICKY TAT CHOI LEUNG WAI FAT WONG

HAO LI

ZHIZHAO TAN CHI LEUNG

YIU WAI CHIANG TAI FI CHIU

Hearing: 13 December 2019

Appearances:

B R Northwood and E L Wooley for the Crown D S Niven for Ricky Leung

M N Pecotic for Wai Wong and Hao Li L O Smith for Zhi Tan and Chi Leung G J Newell for Yiu Chiang and Tai Chiu

Judgment:

13 December 2019

SENTENCING NOTES OF MOORE J

R v LEUNG & ORS [2019] NZHC 3299 [13 December 2019]

Introduction

[1] Ricky Tat Choi Leung, Tai Fi Chiu, Hao Li, Zhizhao Tan, Chi Leung and Yiu Wai Chiang, all appear for sentence having been convicted of charges connected to the importation of large quantities of methamphetamine between October 2016 and October 2017. Ricky Leung and Chi Leung, I will refer to you by your first names to avoid confusion. I intend no disrespect. All defendants may remain seated until I tell you to stand.

[2] I start by recording it is regrettable that you have had to wait eight months before being sentenced. But that was done with your consent because it was anticipated that the Court of Appeal’s decision in Zhang v R1 might have some application to your respective cases. I shall discuss Zhang later in these sentencing remarks.

[3] It is also regrettable that this morning I have had to adjourn the sentencing of Mr Wong so that a disputed facts hearing can take place. The circumstances giving rise to that unfortunate development will be set out in a separate Minute.

Charges and convictions

[4] Mr Chiu, on 30 January 2019, you pleaded guilty to one charge of importing methamphetamine2 and two charges of possession of methamphetamine for supply.3

[5] Mr Chiang, on 8 February 2019, you pleaded guilty to one charge of possession of methamphetamine for supply.

[6] Ricky Leung, at your trial a jury found you guilty of three charges of importation and two charges of possession for supply.

[7] Ms Li, Mr Tan and Chi Leung, that same jury found each of you guilty of one charge of possession for supply.

1      Zhang v R [2019] NZCA 507.
2      Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a); the maximum penalty is life imprisonment.
3      Section 6(1)(f) and (2)(a); the maximum penalty is life imprisonment.

[8] I shall sentence each of you in turn. Before doing so, I must set out the facts and explain those factual matters which are relevant to your cases and the basis on which you are sentenced.

[9] The facts will be well known to you. They were covered in the course of the long trial. But because the process of sentencing is quintessentially a public function undertaken in an open, public Court, it is important I set those facts out.

The offending

[10]…

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 Leung

Details

AGLC: R v Leung [2019] NZHC 3299
Case: [2019] NZHC 3299
Decision Date: 13 December 2019

CaseChat Overview and Summary

Ricky Tat Choi Leung, Tai Fi Chiu, Hao Li, Zhizhao Tan, Chi Leung, and Yiu Wai Chiang were convicted of various charges related to the importation of large quantities of methamphetamine between October 2016 and October 2017. The court was required to determine the appropriate sentences for each defendant, taking into account their individual roles in the drug importations and other mitigating factors. The court formulated the starting points for each defendant's sentence in accordance with the guidelines recently set out by the Court of Appeal in Zhang v R. The court found that the defendants' involvement in the drug importations warranted sentences within band 5 of the Zhang guidelines, with starting points ranging between 10 years and life imprisonment, depending on the extent of each defendant's involvement. After considering the defendants' personal circumstances, roles in the offending, and other mitigating factors, the court imposed the following sentences: Ricky Leung was sentenced to 27 years and six months' imprisonment, with a minimum period of imprisonment of nine years; Tai Fi Chiu was sentenced to 19 years and two months' imprisonment, with a minimum period of imprisonment of eight years and six months; Hao Li was sentenced to 21 years' imprisonment, with a minimum period of imprisonment of eight years; Yiu Chiang was sentenced to 16 years and two months' imprisonment, with a minimum period of imprisonment of seven years; Zhizhao Tan was sentenced to 19 years' imprisonment, with a minimum period of imprisonment of seven years and six months; and Chi Leung was sentenced to 18 years' imprisonment, with a minimum period of imprisonment of seven years and six months.

Orders