The Queen v Hui

[2003] NZCA 209

IN THE COURT OF APPEAL OF NEW ZEALAND

CA192/03

THE QUEEN

v

KWOK CHEUNG HUI

Hearing:25 August 2003

Coram:Anderson J
William Young J
Heath J

Appearances:  R Wade for Appellant

J M Jelaś for Crown

Judgment:28 August 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal and the facts

[1]       This is an appeal against a sentence of nine and half years imprisonment with a minimum non-parole period of five and a half years following a plea of guilty to one count of importing the Class B controlled drug commonly known as Ecstasy.  The grounds of appeal are manifest excess as well as unjust disparity with respect to a co-offender.

[2]       The appellant is a 40 year old Chinese National.  He and a co-offender, Chun Cheong Share, who is aged about 35, were importuned by drug smugglers in Hong Kong to bring a package of drugs into New Zealand on a flight from Seoul, South Korea.  Each was handed a duty free carry bag at Seoul Airport and when they were intercepted at Auckland International Airport the bags were found to contain a total of 19,901 Ecstasy tablets having a retail value in this country of between $1.2 million and $1.6 million.  Another offender, called Wan Sang Chan, a female, also a Chinese National aged about 35, was on the same flight as the others.  Her role was to keep an eye on the couriers and uplift the drugs from them at an Auckland City hotel after they had cleared customs.  The couriers were to get the equivalent of about NZD10,000 for their services.

[3]       Chun Cheong Share pleaded guilty, pursuant to s153A Summary Proceedings Act 1957 before or during the preliminary hearing and was committed to the District Court for sentence.  On 18 October 2002 the District Court sentenced him to four years imprisonment with no minimum period. 

[4]       The present appellant and Wan Sang Chan were committed to the High Court for trial and on 30 October 2002 the appellant also pleaded guilty.  As we have mentioned, he was sentenced to nine and a half years imprisonment with a minimum period of imprisonment of five and a half years.

[5]       Wan Sang Chan pleaded guilty in the High Court on 27 November 2002 and on 5 February 2003 she was sentenced, by the same Judge who sentenced the appellant, to eight years imprisonment with a minimum period of four and a half years.

[6]       The present appeal was brought out of time but the Crown had no objection to leave to appeal being granted.  We were satisfied that the delay in appealing was not attributable to the appellant himself and we granted leave.

The three sentences

[7]       In sentencing Chun Cheong Share the District Court Judge accepted the Crown submission that the starting point was between eight and ten years imprisonment.  He rightly regarded the offending as serious and deleterious in its effects on the community.  However there had been an early guilty plea and the offender had indicated his willingness to give evidence against his co-offenders.  In view of those mitigating features the appropriate sentence was held to be four years imprisonment.

[8]       In relation to the appellant the Crown again submitted, this time to the High Court, that the starting point was in the range of eight to ten years imprisonment, but the Judge considered that the appropriate starting point was 12 years imprisonment in the light of the decision of this Court in R v Lam CA282/02, 22 October 2002.  In that case the importer of 8,500 tablets of Ecstasy with a street value in the order of $425,000 to $850,000 had been sentenced to nine and a half years imprisonment after two and a half years discount was allowed for his guilty plea.

[9]       The Judge distinguished between the present case and that of Chun Cheong Share on the basis that the latter had pleaded guilty at an earlier stage and had co-operated with the authorities with the result that the appellant and Ms Chan decided to plead guilty.  Concerning the question of a minimum period of imprisonment the Judge held that the consequences to New Zealanders of an importation of the particular nature could “truly be said to be incalculable” and this left him in no doubt that the case called for a minimum non-parole period.  He calculated this at five and a half years after taking into account that Chun Cheong Share would, by reason of having no minimum period of imprisonment ordered, serve “one year and ten months, say two years.”  In fact, as Mr Wade pointed out, Chun Cheong Share would be eligible for parole at one-third of four years, that is at 16 months, not 22 months.  Two years is not reasonably comparable to 16 months but rather fifty per cent greater.  The Judge then applied what he called a “difference in discount” but, with respect, we simply cannot understand the formula he applied.

[10]     In sentencing Wan Sang Chan on 5 February 2003 the Judge noted that the operation was very well planned.  It involved a significant importation of illegal drugs.  Although the offender had pleaded guilty, this had been at a late stage and only after Chun Cheong Share had decided to co-operate with the New Zealand authorities.  The Judge recognised the need to denounce and deter similar offending by others and noted that Ecstasy was a dangerous drug causing concern to health and law enforcement authorities.  It is also a drug capable of providing large illegal gains.  The importation was large and called for a penalty near the maximum of 14 years prescribed for the offence.  He distinguished Chun Cheong Share’s situation on the basis of an earlier guilty plea and co-operation with the authorities, and he again noted this Court’s approach in R v Lam.  The Judge considered that the starting point should be 13 years and that this should be reduced by five years to recognise the fact of the guilty plea and certain matters of co-operation brought to the Court’s notice.  He then considered the question of a minimum term of imprisonment and decided to order four and a half years noting that he had “reached this conclusion having considered the sentences imposed on your two co-offenders and in an effort to achieve a level of parity consistent with the varying circumstances applying in each case.” 

[11]     In the result then, Chun Cheong Share received a sentence of four years imprisonment to which the statutory minimum term of one-third, that is 16 months, would apply; this appellant received a sentence of nine and a half years with a minimum period of imprisonment of five and a half years; and Wan Sang Chan received a sentence of eight years with a minimum period of imprisonment of four and a half years.

Arguments for the appellant

[12]     Mr Wade submitted that the Judge erred in disregarding the Crown’s submission that the appropriate sentencing range was eight to ten years.  That range, rather than the 12 years taken in Lam, is supported by this Court’s later decision in R v Wong and Cheng, CA378/02 and CA379/02, 25 March 2003, where the sentencing Court’s starting point of ten years for the importation of 8,160 tablets of Methamphetamine by each of the offenders was criticised as “too high for offenders acting only as couriers upon one occasion”.  This Court expressed difficulty in reconciling Lam with R v Wallace [1999] 3 NZLR 159, the latter case being one “by which sentencing Judges should continue to be guided.” In the particular case this Court held that a proper starting point would have been nine years and that taking into account early guilty pleas and other matters the sentences should have been not more than six years. In that case minimum non-parole periods had been ordered and this Court found that it was only by a relatively narrow margin that the offending could be regarded as sufficiently serious so as to attract a minimum period of imprisonment. In the result, a sentence of six years imprisonment with a minimum period of imprisonment of three years was imposed on each offender.

[13]     Mr Wade submitted that a starting point of eight, perhaps nine years, was appropriate in this case and even without bringing into account issues of unjust disparity, the fact of a guilty plea should have resulted in a sentence of about seven years.  Having regard, however, to the sentence imposed on Chun Cheong Share, whose case was distinguishable only by a slightly earlier guilty plea and by his express willingness to testify for the Crown against co-accused, there was such a disparity that, to use the expression adopted in R v Lawson [1982] 2 NZLR 219 at 223 line 26:

…a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[14]     In counsel’s submission a sentence which had proper regard for the guidance of R v Wallace and avoided unjust disparity would have been appreciably less than seven years imprisonment with no minimum non-parole period.

Crown arguments on appeal

[15]     Ms Jelaś submitted that the starting point of 12 years was open to a sentencing Judge “albeit at the higher end of the range.”  The appellant offended for personal financial gain; the plan was well organised; and the importation was very large and valuable.  An importing courier who introduced a large amount of prohibited drugs into New Zealand was no less culpable than a manufacturer of such a quantity of drugs within New Zealand and accordingly the appellant’s role could not be depreciated on the grounds that he was but a courier.

[16]     Ms Jelaś submitted that there was nothing to distinguish between the appellant and Chun Cheong Share in terms of a starting point and if both had appeared before the same Court for sentencing the same starting point would have been adopted for both.  Notwithstanding her submission that 12 years was available to the sentencing Judge, Ms Jelaś acknowledged that the Crown’s submission before the District Court in respect of Chun Cheong Share and the High Court in respect of this appellant, was that the range was eight to ten years.  But she submitted that the credit given for guilty pleas raises no issue as to disparity.  Greater credit was available to Chun Cheong Share and Wan Sang Chan on account of their co-operation with the authorities.

[17]     As to a minimum non-parole period, Ms Jelaś acknowledged that the Judge had miscalculated in his attempt to maintain some measure of parity in respect of the minimum time that would be served.  That error required this Court to reconsider the matter and in her submission a minimum period of imprisonment of one-half would be appropriate in view of R v Wong and Cheng.

Discussion

[18]     Having regard to the guidance of R v Wallace and R v Wong and Cheng, the starting point of 12 years imprisonment must be considered too high.  The range of eight to ten years submitted to the Court by the Crown was correct.  In fairness to the Judge we note that R v Wong and Cheng was decided some months after the sentencings in this case. 

[19]     Although the District Court Judge who sentenced Chun Cheong Share did not indicate a starting point we think that the sentence of four years ultimately imposed is more consistent with a starting point at the lower rather than the higher end of that range, and in our opinion, rightly so.  The appropriate starting point here must be taken as nine years and a fair allowance for the guilty plea should then have reduced the sentence to about seven years, as Mr Wade submitted.

[20]     We turn then to the question of unjust disparity on the basis that a seven year sentence should be compared to the four years imposed on Chun Cheong Share.  Given the earlier guilty plea and the expressed intent to testify for the Crown against co-accused we cannot regard the disparity as unjust.  A reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would not think that something had gone wrong with the administration of justice.  But if the original sentence of nine and a half years were to stand, there would be serious cause for concern.  Accordingly, both on the grounds of manifest excess and unjust disparity the appeal must be allowed.

[21]     We turn now to the question of a minimum period of imprisonment and consider, as this Court did in R v Wong and Cheng, that by a narrow margin the offending qualifies as “sufficiently serious”.  This is a somewhat clearer case than Wong and Cheng because here each offender must be regarded as culpable in respect of the whole quantity of drugs imported, whereas in the earlier case it was considered appropriate to consider culpability only in terms of the actual quantity each individual imported.  In our view there should be a minimum non-parole period of three years.

Result

[22]     The appeal against sentence is allowed.  The sentence of nine and a half years imprisonment and the order that the appellant serve a minimum period of imprisonment of five and a half years are each quashed.  There will be substituted a sentence of seven years imprisonment and an order that the appellant serve a minimum period of imprisonment of three years.

Solicitors:
Crown Law Office, Wellington