R v Man - [2017] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI 2016-004-005389

[2017] NZHC 1197

THE QUEEN

v

TSZ HO MAN

Hearing: 2 June 2017

Counsel:

J Murdoch for Crown P Kaye for Mr Man

Sentence:

2 June 2017

SENTENCE OF DUFFY J

Solicitors/Counsel:
Meredith Connell, Auckland Peter Kaye, Barrister, Auckland

R v MAN [2017] NZHC 1197 [2 June 2017]

[1] Mr Man, you were found guilty following trial by jury on one charge of importing the Class A controlled drug methamphetamine. The quantity of methamphetamine involved was 2.81 kilograms.

The facts

[2] The evidence at trial informed me that you were someone who came to New Zealand for the specific purpose of carrying out a methamphetamine importation for a drug syndicate based in Hong Kong. WeChat communications with the spokesperson of the syndicate in Hong Kong which were adduced into evidence at trial referred to a common pool of money and you being answerable to the providers of those funds for how the money was spent in New Zealand.

[3] You did not carry out the task alone. You had the assistance of a co-offender, Mr Yung. It is clear to me that Mr Yung occupied a subordinate role to you in the offending. It is clear from the WeChat communications you had with the syndicate spokesperson in Hong Kong that Mr Yung played a lesser role. Unlike you, he was not responsible for handling a significant sum of money to fund the stay in New Zealand. He was expected to live in cheaper accommodation to you. He arrived in New Zealand much later than you did. The way the spokesperson in Hong Kong spoke of Mr Yung’s role gave me the impression that Mr Yung was seen by the syndicate as of lesser standing than yourself. At times the spokesperson spoke of Mr Yung in derogatory terms. I have the clear impression that he was seen by all concerned in the importation as someone who was your subordinate.

[4] Mr Yung pleaded guilty, having accepted a sentence indication before trial, and on 5 May 2017 he was sentenced to 10 and a half years’ imprisonment with a 40% minimum period of imprisonment (MPI) imposed.

Starting point

[5] The starting point for Mr Yung’s sentence was 14 years’ imprisonment which in my view reflected his lesser role in the importation. Mr Man, you were given a sentence indication by Venning J before trial. Venning J took a starting point of 16 years’ imprisonment, given the quantity of methamphetamine involved and your role

as a catcher. Having heard the evidence at trial I am satisfied that you held a position of significant responsibility in the drug syndicate and that you were more than a catcher. I consider that you were the person responsible for controlling the importation within New Zealand. There are references in the WeChat communications to you finding premises from which you would cook or fry, terms with which this Court is only too familiar as being references to…

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 Man

Details

AGLC: R v Man [2017] NZHC 1197
Case: [2017] NZHC 1197
Decision Date: 2 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of the Queen versus TSZ Ho Man involved a conviction for importing 2.81 kilograms of the Class A controlled drug methamphetamine. The defendant, Mr Man, was found guilty following a trial by jury and was sentenced by Justice Duffy on 2 June 2017. The legal issues that the court was required to decide included the appropriate starting point for the defendant's sentence, given his role in the importation, and the application of mitigating and aggravating factors. The court had to consider the evidence presented at trial, including the defendant's communications with the drug syndicate in Hong Kong and his role in controlling the importation within New Zealand.

The court's reasoning and outcome involved a detailed analysis of the defendant's role in the importation and the extent of his culpability. Justice Duffy concluded that Mr Man held a position of significant responsibility in the drug syndicate and was more than just a 'catcher'. The court determined that the starting point for the defendant's sentence should be 17 years' imprisonment, reflecting his more significant role in the importation compared to his co-offender, Mr Yung, who was sentenced to 10 and a half years' imprisonment. The court also considered mitigating factors such as the defendant's lack of a guilty plea and his efforts to address his gambling addiction, but ultimately found that these did not warrant a discount in the sentence. The final sentence imposed was 16 and a half years' imprisonment with a minimum period of 8 years and 3 months' imprisonment, reflecting the seriousness of the offence and the need for deterrence.

The final orders of the court were that Mr Man be sentenced to 16 and a half years' imprisonment with a minimum period of 8 years and 3 months' imprisonment, reflecting the considerations of culpability, deterrence, and the need to hold the offender accountable for the harm caused. The court emphasised the importance of deterrence in sentencing for serious drug offences, and the need to protect the community from the significant harm caused by methamphetamine importation. The sentence imposed was consistent with those affirmed by the Court of Appeal in recent methamphetamine importation cases.

Orders