R v Leung - [2018] NZHC 2607

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-2723

[2018] NZHC 2607

THE QUEEN

v

MING LEUNG

Hearing: 5 October 2018

Appearances:

S A Wilson for Crown

T M Cooper and J Wei for Defendant

Judgment:

5 October 2018

SENTENCING REMARKS OF LANG J

R v LEUNG [2018] NZHC 2607 [5 October 2018]

[1] Mr Leung, you appear for sentence today having been found guilty by a jury on three charges of being in possession of methamphetamine for supply. The maximum penalty for each of those charges is life imprisonment.

The facts

[2] Your offending came to light on 14 March 2017. On that date the police executed a search warrant at the address at which you were residing in Newmarket. You were not the subject of the search warrant. The subject of the search warrant was Mr Mingsisouphanh, who was also living at that address. The police obtained the search warrant because they had reason to believe Mr Mingsisouphanh and others were involved in the large-scale importation of a substance known as t-boc methamphetamine. T-boc methamphetamine is created when a masking agent is added to methamphetamine to hide it from detection. The methamphetamine can be extracted by adding hydrochloric acid to the substance. The police believed that Mr Mingsisouphanh was involved in the importation of t-boc methamphetamine along with his associates, Mr Chan and Mr Wong.

[3] When the police arrived at your address on 14 March 2017, you endeavoured to run away. The police were able to apprehend you and they then searched your apartment. This led to the discovery of the items that resulted in the charges being laid against you.

[4] In a container under the bed in your bedroom they found two plastic bags that contained 90.3 grams and 130.2 grams of methamphetamine. Subsequent analysis showed that these were 76 per cent and 75 per cent pure respectively. The police also found a yellow bottle in your bedroom that contained a powder substance. This was subsequently analysed and found to contain 60.5 grams of methamphetamine having a purity of 43 per cent. When the police searched your ensuite bathroom, they found a tray of crystals near a fan. These were found to be methamphetamine crystals that weighed 192.2 grams. The police also found a container in the bathroom that held
49.2 grams of methamphetamine. The lid of the container had methamphetamine residue on it weighing 1.8 grams.

[5] In the kitchen of your address the police found two refrigerators. One of these contained trays of liquid substances. Subsequent analysis showed that 144.2 grams of methamphetamine could have been extracted from the liquids. The police also found another container in the refrigerator with approximately 4.8 grams of methamphetamine inside it.

[6] In total, therefore, the police found methamphetamine in your apartment that weighed approximately 500 grams. Even on your counsel’s analysis, the police found 400 grams of pure methamphetamine. In addition, there were further trays in…

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 [2018] NZHC 2607
Case: [2018] NZHC 2607
Decision Date: 5 October 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Leung was heard by Justice Lang on 5 October 2018. The defendant, Ming Leung, was convicted by a jury on three charges of being in possession of methamphetamine for supply, each carrying a maximum penalty of life imprisonment. The court was required to determine the appropriate starting point for sentencing and whether any mitigating or aggravating factors should be considered.

The court established that the defendant's culpability lay in receiving quantities of methamphetamine from others and then improving its quality through recrystallisation, as evidenced by the substances found in his apartment. The court accepted that while the defendant was not seeking financial gain, his culpability was greater than that of a temporary possessor but less than that of a person deriving financial gain from the sale of the end product. Given the quantity of methamphetamine involved, the court found the defendant's offending warranted a starting point of between eight and 11 years imprisonment. After considering the defendant's lack of previous convictions, limited grasp of English, and serious addiction, the court decided on a starting point of ten years imprisonment, reduced by four months for the first-time offender and a further four months for the language barrier, resulting in a sentence of nine years and four months imprisonment. The sentences are to run concurrently.

Justice Lang sentenced Ming Leung to nine years and four months imprisonment on each of the three charges, to be served concurrently, making the effective sentence nine years and four months imprisonment. No minimum term of imprisonment was imposed, and the defendant will be eligible for parole after serving one-third of his sentence.

Orders