Chan v R

• Jurisdiction: New Zealand
• Judge: Gilbert J
• Judgment Date: 15 October 2020
• Neutral Citation: [2020] NZCA 486
• Court: Court of Appeal
• Docket Number: CA587/2019
• Date: 15 October 2020

Between

Yuen Cheung Chan

Appellant

and

The Queen

Respondent

[2020] NZCA 486

Court:

Gilbert, Mallon and Ellis JJ

CA587/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of 10 years and 11 month imprisonment with a Minimum Period of Imprisonment of 50 percent for methamphetamine offending — whether the appellant should have received a discount for previous good character and a bigger discount for the difficulties he would face imprisoned in New Zealand as a foreign national

Counsel:

P K Hamlin for Appellant

C Ure for Respondent

• A The application for an extension of time to appeal is granted.

• B The application to adduce further evidence is granted.

• C The appeal against sentence is allowed.

• D The sentence of 10 years and 11 months' imprisonment with a minimum period of imprisonment of 50 per cent is set aside. A sentence of nine years and eight months' imprisonment with a minimum period of imprisonment of 50 per cent is substituted.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Gilbert J)

1 Mr Chan pleaded guilty to conspiring to manufacture methamphetamine, possession of material with intent to manufacture methamphetamine and possession of equipment with intent to manufacture methamphetamine. He was sentenced by Gordon J to 10 years and 11 months' imprisonment and ordered to serve a minimum period of imprisonment of 50 per cent. 1 This sentence was constructed by taking a starting point of 13 years and 10 months' imprisonment, allowing a two-month discount to recognise the difficulties Mr Chan would face as a foreign national serving a prison sentence in New Zealand and allowing a 20 per cent discount for his guilty pleas. 2

2 Mr Chan now appeals against his sentence. He contends that a discount ought to have been allowed for his previous good character and the discount to recognise his difficulties as a foreign national was inadequate.

3 Mr Chan's appeal was filed well out of time. However, the delay has been explained. There is no prejudice to the Crown and it does not oppose the application to extend time for the appeal. We are satisfied that it is in the interests of justice for the appeal to be determined on its merits. An extension of time is granted accordingly.

4 Mr Chan applies for leave to adduce further evidence in support of his appeal, being affidavits sworn by his wife and mother. This evidence provides further information about Mr Chan's personal circumstances in support of his contention that a good character discount ought to have been allowed. We did not apprehend there to be any objection from the Crown to the receipt of this additional material. The evidence appears to be credible and cogent. We accept there would have been difficulty obtaining the evidence from Laos and Hong Kong and arranging for it to be translated in time for sentencing. Even if the evidence is not strictly fresh, we are prepared to receive it in the circumstances.

The facts

5 While there is no challenge to the starting point adopted by the Judge, we commence by summarising the facts of the offending. This is necessary because

the ultimate question on appeal is whether the end sentence was appropriate in all the circumstances, not how it was constructed

6 In brief, Mr Chan and two others made preparatory arrangements for the manufacture of a very large quantity of methamphetamine. They took delivery of 160 litres of t-BOC methamphetamine 3 imported from Hong Kong. This quantity was sufficient to enable the extraction of approximately 46 kilograms of pure methamphetamine. They also took delivery of various items of equipment needed for the extraction process. Mr Chan and his co-offenders arranged for the t-BOC methamphetamine and equipment to be taken to a garage at the property where one of Mr Chan's co-offenders was living. The operation did not progress further because the police, who had been keeping Mr Chan and his co-offenders under surveillance, intervened and arrested them.

7 The following, more detailed, summary is drawn from the agreed summary of facts to which Mr Chan pleaded guilty.

8 On 28 January 2017, a consignment labelled “dishwashing liquid” arrived in New Zealand from Hong Kong. On analysis by the New Zealand Customs Service on 8 February 2017, a number of the boxes in the consignment were found to contain t-BOC methamphetamine. t-BOC methamphetamine was not classified as a controlled drug under the Misuse of Drugs Act 1975, nor was it controlled under the Medicines Regulations 1984.

9 The police arranged delivery of the consignment on 15 February 2017. Three days later, Mr Chan's two co-offenders, Thammanoun Mingsisouphanh and Shui Tong Wong, arranged for the consignment to be uplifted and put into storage at a storage unit in New Lynn. Mr Mingsisouphanh had rented this storage unit in Mr Wong's name the previous day.

10 Mr Chan flew to Auckland from Hong Kong on 19 February 2017. On 22 February 2017, he and Mr Wong went to the storage unit, removed the contents

of the boxes and moved the boxes around. The following day, Mr Chan and Mr Wong travelled in Mr Wong's vehicle to visit several properties advertised for rent around Auckland

11 Mr Chan flew from Auckland to Hong Kong at 9.50 am on 27 February 2017. That same day, a package arrived by air into New Zealand. This was found to contain a rotary evaporator used for the conversion of t-BOC methamphetamine into methamphetamine. Mr Chan's co-offenders took this package to the same storage unit on 2 March 2017, the day it was delivered. The police conducted two separate covert searches of the storage unit later that day and found significant quantities of hydrochloric acid and methanol required for the conversion process.

12 On 11 March 2017, Mr Chan returned to New Zealand, this time travelling from Kuala Lumpur. That same day, a second package arrived by air into New Zealand. Contrary to the description on the invoice, this package contained an agitator, also intended to be used in the conversion process. Two days later, on 13 March 2017, a third package arrived by air into New Zealand containing various types of glassware and other equipment to be used in the conversion process.

13 On 14 March 2017, Mr Chan and Mr Mingsisouphanh took delivery of the agitator and loaded it into Mr Mingsisouphanh's vehicle. About an hour later, Mr Wong took delivery of the third package containing the glassware and other equipment. All of these items were then placed in a rental van and taken to an address in Lynfield, Auckland where they were unloaded into a garage. The three of them then went to the storage unit in New Lynn and loaded the consignment of t-BOC methamphetamine into the rental van and transported it back to the garage in Lynfield.

14 The defendants were arrested later that day. Approximately $250,000 in cash was found at Mr Wong's home address together with one ounce of methamphetamine and drug utensils. Mr Wong pleaded guilty to additional charges (beyond those faced by Mr Chan) arising out of this offending. Six grams of methamphetamine were found on Mr Mingsisouphanh's person. Various substances used for producing methamphetamine were found at Mr Mingsisouphanh's address when searched. He also faced additional charges for this offending.

15 There is no challenge to the starting point adopted of 13 years and 10 months' imprisonment for Mr Chan's involvement in this enterprise. By comparison, in sentencing Mr Mingsisouphanh, Venning J considered that a starting point of 12 years and six months' imprisonment would be appropriate for his role in the same methamphetamine offending. 4 Mr Chan was considered to have played a more significant role because of his repeated travel to and from Hong Kong where the t-BOC methamphetamine originated. 5 Lang J adopted the same starting point for Mr Wong of 12 years and six months' imprisonment on the charge of conspiring to manufacture methamphetamine. 6

Should there have been a discount for Mr Chan's previous good character?

16 Mr Chan was born in Hong Kong in March 1975. He relocated with his parents and brother to Canada in 1992, when he was 17. He lived in Canada from that time until his arrest in 2017. Mr Chan is now aged 45. He was 42 at the time of the offending. 7

17 Apart from a conviction for petty theft (under CAD 1,000) in Canada when he was aged 18, Mr Chan has no previous convictions of any kind. It appears from the affidavits that have been filed that Mr Chan has otherwise been of good character and supportive of his wife and family.

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