R v Wong

Case [2009] NZCA 440 28 September 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA190/2009
CA356/2009
[2009] NZCA 440
THE QUEEN
v
ALEX KWONG WONG
Hearing:18 August 2009

Court:Arnold, Panckhurst and Miller JJ
Counsel:F C Deliu and R Zhao for the Appellant

M D Downs for Crown

Judgment:28 September 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
[1]       This is an appeal against conviction and sentence on one charge of importing 8.9kg of methamphetamine and another of possessing it for supply, both on or about 8 July 2004.
Background
[2]       The Crown case was that the appellant led a group which imported large quantities of methamphetamine in lighting fixtures (lava lamps) on several occasions. The shipment in July 2004 contained, in liquid form, the equivalent of 8.9 kilograms of usable methamphetamine. Customs intercepted it. The drug having been identified, a controlled delivery was made to Mr Song Sheng at an address in Chelsea View Road, Birkenhead. On further investigation, Customs realised that two earlier shipments of lava lamps had been made to a different address in April and May, with Mr Song accepting delivery on both occasions.
[3]       The appellant stood trial for the first time in June 2006 with three co-accused, Chi Wai Fung, Song Sheng, and Harry Yu. There were seven counts, six alleging importations in April, May and July 2004. The appellant was also charged, alone, with money laundering between April and July 2004. Mr Song was said to be the recipient of the drugs, while Messrs Yu and Fong were middlemen. The appellant was not directly involved in handling the drugs, and the case against him was circumstantial.
[4]       At the 2006 trial, the appellant was convicted of importing methamphetamine, supplying it, and possessing it for supply in relation to the May and July importations. He was also convicted of money laundering. The co-accused were acquitted, possibly because the jury were not sure that they knew the substance they were importing was methamphetamine. Winkelmann J sentenced the appellant to 17 years imprisonment with a minimum period of eight years. An appeal was dismissed, but a new trial was ordered in the Supreme Court because the jury had been reduced to ten and there were no exceptional circumstances to warrant a trial with fewer than 11: R v Wong [2008] 3 NZLR 1.
[5]       Following a series of appeals and pre-trial applications, the retrial was held before Potter J on 24 February 2009. The appellant was charged with importing and supplying methamphetamine on or about 8 May 2004, with importing methamphetamine and having it in his possession for supply on or about 8 July 2004, and with money laundering between 23 April 2004 and 8 July 2004. He represented himself but amicus, Mr Dacre, was appointed to assist him. He was acquitted of the May charges and money laundering but convicted of the July charges. Potter J sentenced him to 14 and a half years…

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 Wong

Details

AGLC: R v Wong [2009] NZCA 440
Case: [2009] NZCA 440
Decision Date: 28 September 2009

CaseChat Overview and Summary

Alex Kwong Wong appealed against his conviction and sentence for importing and possessing methamphetamine for supply. The appeal was dismissed by the Court of Appeal of New Zealand. The appellant was convicted of importing and possessing methamphetamine for supply in relation to the July importation and was acquitted of the May importation and money laundering. The appellant’s counsel submitted that the verdict was unsafe and the sentence was manifestly excessive. The Court found that the Judge was correct to give a Papadopoulos direction to the jury and the sentence was within the range available to the sentencing Judge. The appeal against conviction and sentence was dismissed.

Orders