DARREN TSZ RUNG MOK V R [2017] NZCA 537

DARREN TSZ RUNG MOK V R [2017] NZCA 537 [21 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA189/2017[2017] NZCA 537BETWEEN DARREN TSZ RUNG MOKAppellantAND THE QUEENRespondentHearing: 13 November 2017Court: Harrison, Lang and Ellis JJCounsel: A F Pilditch for AppellantE J Hoskin for RespondentJudgment: 21 November 2017 at 2 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Darren Mok was found guilty following a trial in the District Court at Aucklandbefore Judge Treston sitting without a jury on one charge of conspiring to supply aClass B controlled drug.1 The conspiracy involved the supply 69 kilograms ofephedrine that had been imported from China. The ephedrine had an estimated streetvalue of over $8 million.1 R v Mok [2016] NZDC 25321 [Judgment].[2] On 21 March 2017, Judge Treston convicted and sentenced him to six yearsand three months' imprisonment, with a minimum non-parole period of three yearsand one month.2[3] Mr Mok filed appeals against conviction and sentence but the convictionappeal has since been abandoned. The sentence appeal is advanced on the basis thatthe Judge did not properly balance the admittedly large scale of the intended supplyagainst Mr Mok's peripheral and non-critical role, and his absence of knowledge as tothat scale.Facts[4] The conspiracy was orchestrated offshore by individuals known only as"Colin" and "the China Boss". On 31 July 2015 the ephedrine arrived in New Zealandand was detected by Customs. Customs arranged a controlled delivery of a placeboand a presumptive quantity of ephedrine to Lei Hong at 3 Shipton Place. Mr Hongwas arrested, and agreed to assist police with their ongoing investigation. Thisassistance included him collecting three striped bags, again containing a placebo andpresumptive quantity of ephedrine, from 3 Shipton Place and taking them to OakwoodManor Motel.[5] Mr Mok met Mr Hong at the motel on 21 August, where Mr Mok discussedobtaining a rental property for Mr Hong at the instigation of the China Boss. Laterthat day, Mr Hong delivered the three bags to co-defendants Tangxing Cheng and LanCheng at 3 Neales Road. They then drove the bags to another address. Messrs Cheng,Cheng and Mok were later arrested.Conviction[6] Mr Mok did not dispute the facts concerning the importation, or meeting withMr Hong at Oakwood Manor. At issue was whether he knew he was facilitating thesupply of a controlled drug. His defence essentially was that while he may have beennaïve or stupid, he had no criminal knowledge.2 R v Mok [2017] NZDC 5799 [Sentencing notes].[7] But the Judge found that the Crown case, while circumstantial, was strong.3 Hefound that Mr Mok was aware that his actions were facilitating the supply of acontrolled drug; he had agreed with the China Boss to assist in the supply by providinga safe place for unpacking and on-delivery.4 He had met with Mr Hong at OakwoodManor to make the necessary arrangements, albeit that they never in fact took place.He was to be paid $2,000 for doing this, which the Judge found was indicative ofsomeone knowingly assuming the risk of involvement in drug-related activity.5Sentencing[8] The Judge noted the offending fell within category one of R v Wallace,6modified to reflect the fact that conspiracy carries a lower maximum penalty (10 years)than actual supply (14 years).7 He set a starting point of six years and six months'imprisonment.8 The Judge gave a discount of three months to reflect Mr Mok'spersonal circumstances. He imposed a minimum term of three years and one month.9DecisionFinite sentence[9] Mr Mok's appeal was advanced on the basis that the starting point — andaccordingly the final sentence — were too high. Mr Pilditch acknowledged that thevolume of ephedrine was significant. But in R v Wallace, recently affirmed in R vWang, this Court recognised the need for flexibility in relation to co-offenders withlimited involvement.10 Mr Pilditch said that there was no evidence that Mr Mok knewof the quantity or the potential value of the drugs and that the Judge erred in failing toconsider this issue.3 Judgment, above n 1, at [24].4 At [32].5 At [28].6 R v Wallace [1999] 3 NZLR 159 (CA). Category one covers commercial activity on a major scale,attracting a starting point of eight to 14 years.7 Sentencing notes, above n 2, at [20].8 At [25].9 At [27].10 R v Wang [2014] NZCA 409 at [22].[10] More specifically, Mr Pilditch submitted that the quantity and nature of thecommunications between Mr Mok and the China Boss were not indicative of Mr Mokappreciating the scale of the intended supply. Nor can such an inference be drawnfrom Mr Mok asking Mr Hong if "the things or stuff" had arrived. And while theJudge had held that the $2,000 payment was too high a figure to be consistent with thestated purpose of organising a rental property, Mr Pilditch submitted that, equally, itsuggests that Mr Mok had no awareness or appreciation of the very significant, $8million, value of the drugs involved. Moreover, Mr Mok did not handle or possess theephedrine, he did not attend the original delivery destination at 3 Shipton Place, andwas not shown any of the packages. There was no evidence that he was to assist individing the drug for on-supply.[11] Mr Pilditch relied particularly on the case of Tilialo-Staples v Police in whichthe appellant had been paid $500 to look after a compressor in which 21.9 kilogramsof pseudoephedrine was hidden.11 On appeal, Asher J reduced the starting point fromsix years to four, and the final sentence from three years to one year and nine months,which he then converted to home detention. That four-year starting point isapproximately 35 per cent of the 14-year maximum sentence. He submits that here,the starting point should therefore be no more than five years, which is half themaximum penalty.[12] But we agree with Ms Hoskin that the six-and-a-half-year starting point reflectsthe Judge's view that Mr Mok's conduct fell at the lowest end of the available range.His role in the offending was more significant than that of Mr Tilialo-Staples; by andof itself the need to rent a safe place for unpacking and supply suggests a sizeablequantity of drugs. Moreover, Mr Mok was in regular and frequent contact with theChina Boss; there were over 50 telephone calls, he knew that the drugs had arrivedand he met with the catcher confirming this. While Mr Mok's role may have beenconfined to logistics, it was still important. We consider that Mr Tilialo-Staples'involvement was of a much lesser kind. In our view both the starting point and theend point were well within range.11 Tilialo-Staples v Police [2013] NZHC 1255.Minimum period of imprisonment[13] Mr Pilditch submitted that minimum periods are rarely imposed for drugoffending when the total sentence is less than nine years.12 And in Mr Mok's case theminimum term was imposed for generic reasons: "the large amount of drugs involvedand the potential value of their yield on sale".13 Mr Pilditch said that, contrary to s 86of the Sentencing Act 2002, the Judge did not specifically consider whether the defaultnon-parole period of one third would sufficiently meet the principles of accountability,denunciation and deterrence. Not only did Mr Mok play a peripheral role in the wideroffending, he was a first offender with no previous convictions, 22 years old on astudent visa, and studying for a Diploma of Business. He is likely to be deported onhis release from prison. Accordingly, the submission was that there was therefore noprincipled basis for the imposition of a minimum term.[14] While it is true that Mr Mok is young and a first-time offender, it seems clearthat he lacked insight into his offending and refused to accept responsibility for hisactions. The fact of likely deportation is largely irrelevant.14 More importantly, weconsider that the Judge was entitled to place considerable weight on deterrence, evenfor one who is involved only "in a peripheral fashion with this sort of activity".15 Themass importation and distribution of drugs depends for its success on the participationof those willing to be involved in low-level tasks for relatively modest reward. Theharm caused by such activity means that deterrence can fairly be viewed as paramount.And while there may be a trend for minimum periods not to be imposed for sentencesof less than nine years, this is not a rule. Moreover, it seems to us to be stronglyarguable that minimum periods should more routinely be in play in the context of veryserious, cross-border, high-volume drug offending, regardless of the end sentence. Butthat will be a question for the Permanent Court. In our view it was more than open tothe Judge to impose a minimum period here.12 R v Anslow CA182/05, 18 November 2005 at [27].13 Sentencing notes, above n 2, at [26].14 Although it may be relevant to the length of any minimum term imposed: Solicitor-General vHuang [2011] NZCA 436 at [14].15 Sentencing notes, above n 2, at [23].Result[15] The appeal is dismissed.Solicitors:Crown Law Office, Auckland for Respondent