Tan and Others v R

• Jurisdiction: New Zealand
• Judge: Cooper P
• Judgment Date: 14 September 2023
• Neutral Citation: [2023] NZCA 446
• Court: Court of Appeal
• Docket Number: CA14/2020 CA105/2020 CA396/2020 CA424/2020 CA605/2020

[2023] NZCA 446

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Cooper P, Venning and Palmer JJ

CA14/2020

CA15/2020

CA105/2020

CA396/2020

CA424/2020

CA605/2020

Between

Zhi Zhao Tan

Appellant

and

The King

Respondent

Between

Chi Wa Leung

Appellant

and

The King

Respondent

Between

Hao Li

Appellant

and

The King

Respondent

Between

Wai Fat Wong

Appellant

and

The King

Respondent

Between

Yiu Wai Chiang

Appellant

and

The King

Respondent

Between

Tai Fi Chiu

Appellant

and

The King

Respondent

Counsel:

L O Smith for Appellant in CA14/2020

M Kan for Appellant in CA15/2020

M W Ryan and J E Tullock for Appellant in CA105/2020

D B Stevens for Appellant in CA396/2020

M J Taylor-Cyphers for Appellant in CA424/2020

A M Simperingham and K C Leung for Appellant in 605/2020

B J Thompson and P R McNabb for Respondent

Criminal Sentence — appeal against sentences for methamphetamine offending — significant importation — categorisation of roles based on considerations applied in the United Kingdom — Sentencing Council (UK) Drug Offences: Definitive Guideline (2012) — Sentencing Act 2002

The appeals by H and T against conviction dismissed. W's appeal against sentence of 25.5 years imprisonment with MPI of 8.5 years granted in part. An order imposing a MPI of 8.5 years on W was set aside. The appeals by Z, C, H, Y and T against sentence were dismissed.

• A The applications by Hao Li, Yiu Wai Chiang and Tai Fi Chiu to extend the time for appealing are granted.

• B The application by Hao Li to adduce further evidence is declined.

• C The conviction appeals by Hao Li and Tai Fi Chiu are dismissed.

• D The sentence appeal of Wai Fat Wong is allowed in part and the order that he serve a minimum period of imprisonment is set aside.

• E All other sentence appeals are dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper P)

Table of Contents

	Para No
Introduction	[1]
The offending	[10]
The conviction appeals	[33]
Hao Li	[33]
Tai Fi Chiu	[51]
The sentence appeals	[66]
Sentencing for methamphetamine offending	[68]
Sentencing Judge's approach	[78]
Ricky Leung	[80]
Wai Fat Wong	[83]
Tai Fi Chiu	[113]
Hao Li	[125]
Yiu Wai Chiang	[140]
Zhi Zhao Tan	[154]
Chi Leung	[171]
Result	[183]

Introduction

1 The six appellants were each convicted of charges connected to their respective roles in offending relating to the importation of significant amounts of methamphetamine.

2 On 30 January 2019, Tai Fi Chiu pleaded guilty to one charge of importing methamphetamine, 1 and two charges of possession of methamphetamine for supply. 2 On 8 February 2019, Yiu Wai Chiang pleaded guilty to one charge of possession of methamphetamine for supply. 3 Wai Fat Wong pleaded guilty to three charges of importing methamphetamine, 4 and two of possession of methamphetamine for supply on the morning of the trial, 11 February 2019. 5

3 The other defendants were found guilty by the jury. Hao Li, Zhi Zhao Tan and Chi Wa Leung were each convicted of one charge of possession of methamphetamine for supply. 6 Chi Leung shares a surname with a co-offender, Mr Ricky Tat Choi Leung, and will be referred to by his first name for clarity.

4 The trial Judge, Moore J sentenced the appellants to terms of imprisonment ranging from 16 years and two months to 25 years and six months (the principal sentencing judgment). 7 One of the appellants, Mr Wong, was sentenced separately from the others. 8 Ricky Leung, who was sentenced to 27 years six months' imprisonment, has not appealed.

5 Ms Li and Mr Chiu appeal against both their conviction and sentence. Chi Leung originally appealed his conviction but abandoned his conviction appeal on 26 November 2020. The remaining appellants appeal against sentence only.

6 The appeals of Ms Li, Mr Chiang and Mr Chiu were filed out of time by 19 working days, seven and a half months, and ten months respectively. Their applications to extend the time for appealing have been explained and relate primarily to difficulties they experienced in arranging legal representation while in custody, given language difficulties they encountered. Extensions of time are not opposed and in the circumstances the applications are granted.

7 This appeal was heard on 26 and 27 October 2022. At the time of sentencing, and also when the appeals were heard, this Court's decision in Zhang v R was the guiding authority on sentencing for methamphetamine-related offending. 9

8 While our decision remained reserved, the Supreme Court issued its judgment in Berkland v R. 10 The Supreme Court judgment stated that the application of its decision amended the “significant” role profile described by this Court in Zhang. 11 The Supreme Court said the amended significant role profile should apply not only to

sentences imposed after the issue of the judgment, but also to all sentencing appeals “currently on foot”. 12 As the present appeals were clearly “on foot”, we gave the parties the opportunity to make further written submissions on any implications of the substantive changes effected by Berkland. 13 Those submissions have been provided and having considered them we are now in a position to issue our judgment on the appeals

9 In the judgment below, we give a general account of the offending for which the appellants were convicted and sentenced. We then address the conviction appeals of Ms Li and Mr Chiu. Finally, we address the sentences imposed by the Judge in the course of dealing with each sentence appeal. For the reasons we give, Mr Wong's sentence appeal is allowed in part. All other appeals are dismissed.

The offending

10 The following account is largely based on the facts set out by Moore J in the principal sentencing judgment. 14

11 The Crown's case was based on three importations of methamphetamine which all arrived in New Zealand over a period of approximately one year. In the case of each importation, the methamphetamine was sourced from China. The total combined weight of the drug imported was 267 kg. The Crown estimates that this amount of methamphetamine would have a retail value between $48 and $67 million. The Judge considered that the total combined weight of the imported methamphetamine made it one of the largest importations this country had seen. 15

12 The method of importation was as follows. Methamphetamine was dissolved in gypsum, a concrete-like substance, which was poured into metal cases in the form of outdoor umbrella stands. Each stand was separately packaged and shipped to New Zealand in a container, as part of larger consignments of outdoor furniture.

13 The Judge identified three phases in which those involved in the importation participated. 16 The first phase involved setting up the systems and “ground work” to land the drugs in New Zealand and clear them into storage ready for the second phase. The second phase involved securing a venue and equipment for the purpose of extracting the drug from the gypsum. The third phase involved bringing those who would undertake the extraction process into New Zealand.

14 Ricky Leung was described by the Judge as having “paved the way.” 17 He was responsible for setting up the systems to receive the drugs when they arrived in New Zealand and made numerous visits here between April 2016 and September 2017. For both his first and second visit Ricky Leung stayed for nine days before returning for a period of three months on 28 September 2016.

15 The first importation (of 48 kg) of methamphetamine took place on or before 14 October 2016 when the first of the containers of outdoor furniture arrived. There were seven umbrella bases wrapped inside cardboard boxes. Each contained gypsum and methamphetamine. The importation was cleared by New Zealand Customs Services (Customs Services) and later delivered to a storage unit in Parnell. Mr Leung left the country on 25 November 2016, returning again for brief periods in June and July 2017. During a visit that began on 9 July 2017, he hired a storage unit in Grey Lynn.

16 The second importation (of 109 kg) took place around 14 August 2017. On this occasion, the methamphetamine was contained in 16 umbrella bases. On this occasion, the importation was intercepted and inspected by Customs Services. The bases were tested, and methamphetamine was detected. The gypsum containing the drug was removed and replaced with a substance of similar appearance. A small quantity of methamphetamine was left in one of the bases and, on 23 August 2017, a controlled delivery was made to the consignee's address; a storage facility in Onehunga. This shipment was received by an innocent agent acting on instructions from Ricky Leung, who sent him money from China to cover costs.

17 On 11 September 2017, Messrs Chiu and Wong arrived in New Zealand together with Ms Li, on a flight from Hong Kong. The Judge described this as the second phase of the operation. 18 The three hired a car and checked into a hotel, before going to a storage facility in Takapuna. Mr Chiu signed a contract for the hire of a storage unit for the period from 12 September to 11 October 2017. Mr Wong's name was given as an alternate contact person. The Judge found this storage facility was plainly leased to house the third importation which at that time was en route to New Zealand by boat. 19

18 On 14 and 15 September, Ms Li and Mr Chiu made enquiries about rental properties. On 15 September Mr Chiu signed a one-month tenancy agreement on a house in Manurewa, to commence on 19 September. On 16 September 2017, Mr Ricky Leung arrived back in New Zealand from Hong Kong. He was met at the airport by the innocent agent he had been using from the outset of the operation.

19 On the following day, Ricky Leung and Mr Chiu were observed visiting and inspecting the storage...