LI & ORS v NEW ZEALAND POLICE [2019] NZHC 908

LI & ORS v NEW ZEALAND POLICE [2019] NZHC 908 [29 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-004-009583[2019] NZHC 908BETWEEN HAO LI, ZHIZHAO TAN and CHI LEUNGApplicantsAND NEW ZEALAND POLICERespondentHearing: 27 February 2019Counsel: Maria Pecotic for Hao LiLorraine Smith for Zhizhao TanBaden Meyer for Chi LeungBruce Northwood and Erin and Woolley for the RespondentJudgment: 29 April 2019[REASONS] JUDGMENT OF MOORE J[Application to discharge under s 147 of the Criminal Procedure Act 2012]This judgment was delivered by me on 29 April 2019 at 2:30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] This judgment needs to be read in conjunction with my results decisiondelivered on 28 February 2019.1 There I said I would deliver reasons. This judgmentcontains those reasons.The charges[2] At the end of the Crown case Ms Li, Mr Tan and Chi Leung applied for ordersunder s 147 of the Criminal Procedure Act 2011 ("the Act"). The relevant charges inthe Crown's Charge List are 3 and 4. They are set out in fully below:"Importation 2Charge 3: That RICKY TAT CHOI LEUNG, WAI FAT WONG, TAI FlCHIU, HAO LI, ZHIZHAO TAN, CHI LEUNG and YIU CHIANG on orbefore 14 August 2017, at Auckland and/or elsewhere, imported the class Acontrolled drug methamphetamine into New Zealand.Charge 4: That RICKY TAT CHOI LEUNG, WAI FAT WONG, TAI FlCHIU, HAO LI, ZHIZHAO TAN, CHI LEUNG and YIU CHIANG between14 August 2017 and 19 September 2017, at Auckland, had the class Acontrolled drug methamphetamine in their possession for the purpose ofsupply to another person or persons."Crown case[3] In summary, the Crown case is that all seven defendants, in variouscombinations, were involved in a large scale and highly sophisticatedmethamphetamine importation and distribution operation.[4] The Crown says that each played a part, albeit different, in pursuing thesuccessful outcome of this criminal enterprise. It involved three importations ofmethamphetamine over a period of approximately one year with a total combinedweight in excess of 250 kilograms. If sold on the New Zealand market it would haveattracted, even at wholesale, many millions of dollars. It was thus a highly lucrativeventure which needed to be planned and executed carefully.1 R v Leung & Ors [2019] NZHC 287.[5] The method of importation was highly sophisticated. Each import was sourcedfrom China. The method by which the methamphetamine was secreted was similar,although not identical, across the three importations. The methamphetamine wasdissolved in gypsum, a concrete-like substance which was poured into metal cases inthe form of outdoor umbrella stands. Each of the umbrella stands was separatelypackaged and shipped to New Zealand as part of a larger consignment of outdoorfurniture and other miscellaneous items including tents and bicycles.[6] Those involved in the importation and distribution of the methamphetamineneeded to source the drug, place it in solution in the gypsum and package the goodsalong with the other innocent items designed to camouflage the real purpose of theimportations. As such, the enterprise required active participants in China and inNew Zealand. It required importers, organisers and middle men as well as those withthe skills to extract the refined methamphetamine in saleable form from the gypsumsubstrate.[7] Once landed in New Zealand, access to the appropriate extraction hardwareand tools, including heavy duty grinders, hammers and chisels was necessary. For there-crystallisation process heating and cooling sources, vacuum pumps and heatresistant receptacles were needed.[8] What the Crown says is that Ricky Leung, Wai Fat Wong and Tai Fi Chiu werethe importers at the New Zealand end, facilitating the arrival and storage of the drugin this country. Of those, it is alleged that Ricky Leung was the principal importer andthe Crown says that he needed to operate at arm's length from the others involved inthe operation. The so-called "middle men", referred to by the Crown as the"administrative" arm, maintained the documentation and co-ordinated activitieswithin New Zealand. These were Mr Wai Fat Wong, Ms Hao Li and possibly Mr Chiu.[9] The extractors, referred to by the Crown as "the workers", were Mr Tan andChi Leung led by Mr Chiang. Their job, on the Crown's analysis, was to break thegypsum down and extract the methamphetamine for distribution and on-sale.[10] The Crown case is that each of these people played an essential role in ensuringthe success of the wider operation.The applications[11] Each of the applicants approached their application on the same basis; that isthere is no, or insufficient evidence that they had the requisite knowledge thatmethamphetamine was being brought into this country and neither were they wereaware of the presence of the drug or exercised any intention to possess control over itfor the purposes of possession.[12] Before dealing with the legal principles of importation and possession it isnecessary to briefly set out the applicable principles in terms of s 147 of the Act.Section 147 principles[13] Section 147(4)(c) requires a Judge to be satisfied that, as a matter of law, aproperly directed jury could not reasonably convict. The power to dismiss a chargefor lack of evidence was previously found in s 347 of the Crimes Act 1961 ("theCrimes Act"). The authorities developed under that provision remain applicable.[14] In R v Flyger the Court of Appeal observed that a Judge should not normallymake the order for discharge where there is evidence before the Court which, ifaccepted, would as a matter of law be sufficient to prove the case.2 The Judge'sfunction is not to attempt to predict the outcome but to examine the evidence in termsof adequacy of proof, if accepted.3[15] In Parris v Attorney-General the Court of Appeal added that the test must beadministered on the basis that in all but the most unusual or extreme circumstancesquestions of credibility and weight must be determined by the jury.4 Unless the caseis clear-cut in favour of the accused, it should be left for the jury to decide.52 R v Flyger [2001] 2 NZLR 721 (CA) at [13].3 R v Flyger at [13].4 Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [14].5 Parris v Attorney-General at [14].Evidence[16] Mr Northwood, for the Crown, commenced his submissions by analysing theavailable evidence in respect of Charge 4, possession for supply. He submitted thatthis approach also informed the Crown's position in respect of the importation charge.It is thus helpful, in respect of all applications, to examine the participation of thevarious defendants. The charges at issue relate only to the second importation.[17] By way of background, it was accepted that the first importation occurred onor before 14 October 2016 when a shipment of outdoor furniture, containing sevenumbrella bases in which methamphetamine was secreted, were imported into NewZealand and later delivered to Unit 711, Space Station Storage Solutions situated at110 St George's Bay Road, Parnell.[18] This importation was intercepted and inspected by Customs. The umbrellabases were x-rayed. Irregularities were discovered in the gypsum core. This wasanalysed and presumptively tested. A positive test for the presence ofmethamphetamine was returned. Samples were then taken from each of the 16 bases.These were analysed and confirmed to contain methamphetamine. The substratecontaining the drug was then removed and replaced with a similar looking placebosubstance. A small quantity of methamphetamine was left in one of the bases. Acontrolled delivery was then made to consignee addresses; the Suco 88 storage facilityin Onehunga. It was delivered on 23 August 2017 by two Customs officers posing asdelivery drivers.[19] Because the contents of this consignment were known to the authorities thereis extensive CCTV footage and surveillance evidence available showing the deliveryof the shipment. It was received by a Mr Diao. It was common ground that Mr Diaowas an innocent agent. The Crown case was that his actions followed instructions hereceived from Ricky Leung. Mr Leung sent money from China to Mr Diao to coverthe costs associated with importing the second shipment.[20] On 11 September 2017 Mr Chiu, Mr Wong and Ms Li arrived in New Zealandon a flight from Hong Kong. They hired a car and drove into Auckland city wherethey checked into the Sky City Hotel at about 3:30 pm. Mr Wong and Ms Li aremarried. They shared a room. Mr Chiu occupied a room of his own. After checkingin they retired to their rooms for about half an hour before leaving in the rented car. Alittle over an hour later Mr Chiu, Mr Wong and Ms Li were observed at Storage King,Takapuna. Mr Chiu signed a contract for the hireage of a storage unit for the period12 September to 11 October 2017. Mr Wong was listed as the alternate contact person.As I understood the Crown case this storage facility was leased in anticipation of thearrival of the third importation which at that time was in transit to New Zealand.[21] The following day Mr Wong and Mr Chiu returned to the Takapuna storageunit. They were there for only a very brief period.[22] On 14 and 15 September 2017 Ms Li and Mr Chiu were involved in makinginquiries about rental properties. Those discussions led to Mr Chiu signing a rentalagreement on 15 September 2017 for a house situated at 5 Claymore Street,Manurewa. The term was one month from 19 September to 18 October 2017.[23] The following day, on 16 September 2017, Ricky Leung arrived inNew Zealand from Hong Kong. He was met at the airport by Mr Diao.[24] On 17 September 2017 Ricky Leung and Mr Chiu were observed visiting andinspecting a storage unit at Storage King, Grey Lynn. This had been rented earlier.They were there for just a few minutes while Mr Chiu took photographs.[25] Later the same day Ms Li and Mr Wong were observed at Noel Leemings,Manukau City. There they inspected refrigerators and freezers before purchasing alarge Samsung side-by-side freezer which Ms Li paid for in cash. The Crown case isthat given the circumstances, particularly Mr Wong and Ms Li's recent arrival inNew Zealand, this purchase was not intended for a domestic application but rather wasbought as equipment necessary for the extraction process which requires access tocooling sources.[26] The following day, on 18 September 2017, Mr Tan, Chi Leung and Mr Chiangarrived in Auckland on a flight from Hong Kong. Also with them was Mr Wong'ssister and grandchild. They were met by Mr Wong and Ms Li who took them into thecity where they checked into the Sky City Hotel. Shortly afterwards Mr Wong, Ms Li,Mr Chiu, Mr Chiang, Mr Tan and Chi Leung boarded a people mover ("the Estima")hired a few days earlier by Mr Wong. They drove to a shopping complex in Botany.CCTV footage shows Ms Li, Mr Tan and Mr Chiang enter a cookware shop and inspectvarious items in the shop, including a number of large stainless steel pots. Mr Chiuentered the shop shortly afterwards. Three large stainless steel cooking pots, three hotplates and a variety of other items were purchased. Mr Tan could be seen leaving thestore carrying the pots and placing them in the car.[27] A short time later Mr Chiang, Mr Chiu, Mr Tan and Mr Wong were seen atBunnings Warehouse in Ti Rakau Drive, Botany. Ms Li and Chi Leung remained inthe car. Mr Tan entered the shop pushing a trolley. Mr Chiu appeared to lead theshopping excursion assisted by Mr Tan who obtained a second trolley. The men,including Mr Tan, left the shop. Mr Chiang pushed the trolley to the Estima. Allassisted in loading the vehicle before Mr Tan and Mr Wong returned the emptytrolleys. Tools and equipment to the value of just under $1,200 were purchased by theothers in cash. The purchase included gloves, duct tape, splash goggles, wreckingbars, chisels, hammers, angle grinders, wrenches, a multi-mixer tool and carpetprotectors.[28] On 19 September 2017 the tenancy at 5 Claymore Street commenced. Shortlyafter 9:00 am the Samsung freezer was delivered to that address. Mr Wong and Ms Liwere present when it was delivered and Mr Wong signed the receipt.[29] Later that morning Ms Li and Mr Wong arrived at a refrigeration specialty shopin Greenlane. Over a period of nearly 20 minutes they examined various vacuumpumps before settling on a particular model which they purchased using cash. Shortlyafterwards they went to another retail outlet where they brought two electronicthermometers.[30] Meanwhile, earlier that morning, Ricky Leung, who was staying a backpackersin Queen Street, picked up Mr Chiu in a rental car. They drove to the Onehungastorage unit where they removed six boxes from the container and placed them in thecar. These were the boxes which were the subject of the controlled delivery. Fromthere the two men drove back to Sky City. Mr Leung got out of the car and Mr Chiangtook his place. Mr Leung then drove back out to Botany and into the carpark of theshopping mall. He stopped in a parking space before he and Mr Chiang unloaded thesix boxes onto the ground. Ricky Leung drove away.[31] Within minutes the Estima arrived and stopped beside Mr Chiang and theboxes. The Estima had been seen to leave Sky City sometime after Mr Leung haddeparted with Mr Chiu. Mr Wong was the driver. Ms Li was in the passenger seat andin the back were Mr Chiu, Mr Tan and Chi Leung.[32] The rental car driven by Ricky Leung did not leave the carpark immediately.Instead, he drove around the back of the shopping complex before stopping in themiddle of the access way for one minute. The car then performed a 360 degree turnaround an island within the carpark and then drove back towards the area where theboxes had been unloaded taking a wide turn near the parked Estima before leaving thecarpark. The Crown case is that Mr Leung was ensuring the valuable cargo had beenpicked up by those in the Estima.[33] The Estima reversed into the carpark which had previously been occupied bythe car Ricky Leung was driving. Mr Chiu, Chi Leung and Mr Wong got out.Mr Chiu, Mr Wong and Chi Leung assisted loading the boxes into the boot.[34] Mr Leung drove back to the city. In the meantime, after the boxes were loadedinto the Estima, it drove to 5 Claymore Street. There, Ms Li got out of the car andopened the door of the house. The Estima then drove away stopping at the end ofDr Pickering Avenue which is a nearby cul-de-sac adjacent to some rugby fields.There the occupants, who by now also included Mr Chiang, got out and walked aroundthe park area; some were smoking while others were observed on their cellphones.After approximately half an hour the Estima returned to Claymore Street and reversedinto the garage. The boxes were not seen to be unloaded but it would appear, fromsubsequent events, that they were.[35] It was the Crown's case that the address of Claymore Street was where theextraction process was intended to be undertaken. It was thus to that address that theraw product in the form of the umbrella bases needed to be delivered as well as thenecessary equipment to undertake the extraction process, including the recentlypurchased freezer.[36] A short time later the Estima, driven by Mr Wong, left the Manurewa address.Ms Li was in the front seat and Mr Chiu, Chi Leung and Mr Tan were seated in theback. They drove to the Suco 88 storage facility and accessed the same container fromwhich Mr Chiu and Ricky Leung had unloaded the six boxes earlier in the day. Ms Liremained in the vehicle while the men opened the container and started to load boxesinto the back. After a few minutes Mr Tan could be seen on his cellphone. Data laterretrieved from that device revealed that this was a communication from Mr Chiang.The text message recorded:" There is a situation, something has happened. There is a situation.Something has happened, alright. May be don't come back yet."[37] The Crown case is that Mr Chiang, who had been left back at Claymore Street,had opened the boxes and discovered that they had been interfered with by a thirdparty. At the time this message was received by Mr Tan he was standing at the backof the Estima while the other three men were carrying boxes from the container andplacing them in the back of the car. When this call was received, the CCTVsurveillance images are consistent with the Crown's claim that Mr Tan was directingthis part of the process and that immediately after receiving Mr Chiang's message hecould be seen communicating with those inside the container. Furthermore, heappeared to place his hand on a box being carried by Chi Leung who immediatelyreturned it to the container. The other men emerged from the container and the boxesin the back of the Estima were all returned to the container which was then lockedbefore the Estima left and returned to Auckland City.[38] In the meantime Mr Tan received another WeChat message, apparently fromMr Chiang. In that communication he suggested that they drive " to the field wherea ball game is played to look for me, alright?" This would appear to have been areference to the end of Dr Pickering Avenue where the Estima had earlier stoppedbefore returning to Claymore Street where the boxes were unloaded. The Crown caseis that Mr Chiang was panicking and needed to be picked up from a place other thanwhere the boxes were.[39] Despite this, the Estima continued to Auckland. Mr Tan corresponded withMr Chiang about getting a taxi.[40] On its return to Auckland the Estima stopped in Federal Street and itsoccupants dispersed. Mr Chiu ran off but was pursued and caught by the Police.Mr Tan, Ms Li, Mr Wong and Chi Leung were also apprehended.[41] It would appear that later that afternoon Mr Chiang returned to the hotel bytaxi. He and Ricky Leung met at a nearby Chinese café from where they walked tothe Crown Plaza Hotel. There they were arrested.[42] Following their arrest each of the three applicants was spoken to. Ms Li saidthat she was on holiday with her husband, Mr Wong. She said the couple planned totravel to the South Island the following day. She said she knew nothing aboutimporting methamphetamine or possessing methamphetamine for the purposes ofextraction and/orsupply. Mr Tan and Chi Leung elected to make no statement.[43] The hotel rooms were searched. In Mr Wong and Ms Li's room a suitcasecontaining documentation linked to the importations was located.[44] On Chi Leung's cellphone images of a white crystalline substance wererecovered together with an image of what was described in evidence as "hangingbasket". This image bore a striking, albeit not identical, resemblance to images ofitems on the packing lists associated with the importations.[45] The property at Claymore Street was searched. The six boxes were locatedjust inside the front door. The top box appeared to have been opened. The newlypurchased Samsung freezer was located in the laundry. In the spare room were theitems purchased the day before at the cookware shop and at Bunnings. All wereconsistent with use in the extraction phase.[46] About a month later an importation arrived addressed to Li Ho of46 Sunnynook Road. Although the consignment was declared as four dry cleaningmachines it contained various heavy duty grinding equipment. This import is referredto as the "equipment import".[47] Then, on or about 22 October 2017, a third consignment arrived. It containeda wide range of outdoor furniture, including 17 items described as "outdoor parasol,made of iron stand, plastic and polyester fabric and 17 sun shade base, made ofstainless steel and concrete". The consignee was Best Budget International 99 Limitedof 9A Easton Park Parade, Glenfield. It was marked for the attention of Mr Diaowhose incorrect contact details were listed. The address of 9A Easton Park Paradewas an address associated with Mr Diao. This was the only importation which usedthat address. All previous importations listed Sunnynook Road. The 17 umbrellabases were tested and found to contain methamphetamine.ImportationLegal elements[48] It is well settled and was accepted by counsel that importation means to bringin or introduce from overseas.6 Importation continues when all the drugs are in transitfrom their origin outside New Zealand to their intended destination in New Zealandwhere they become immediately available to the intended recipient or recipients.Importation becomes complete either when:7(a) the drugs reach their intended destination or consignment address andare available to the addressee or consignee; or(b) when the authorities take control of the drugs and do not send them onto their intended destination.6 R v Hancox [1989] 3 NZLR 60 (CA) at 62.7 R v Hancox at 62; see also R v George CA550/95 at 5.[49] For the purposes of all applications it was not disputed that on or within thedates stipulated in the charges, quantities of methamphetamine, contained in umbrellabases, were imported into New Zealand.[50] The mens rea element for importation requires proof of one of the followingelements is satisfied:(a) that the defendant knew that the imported material contained acontrolled drug; in other words actual knowledge;8 or(b) the applicant recognised there was a risk that the imported materialcontained a controlled drug and unreasonably disregarded that risk.9Analysis[51] The Crown put its case on a parties basis. Mr Northwood submitted that eachof the applicants was a party to the importation as a secondary party.[52] For party liability on a charge of importation the Crown must prove thefollowing elements:(a) Was methamphetamine imported?(b) Was the defendant involved in importing by assisting, helping,supporting or encouraging another defendant or defendants by wordsor conduct to import methamphetamine?(c) Did the defendant intend to assist, help, support or encourage anotherdefendant or a defendant to import methamphetamine?(d) Did the defendant know methamphetamine would be imported by oneof the other defendants?8 R v Taaffe [1984] AC 539 (HL) at 546-547.9 Kupec v R [2018] NZCA 477 at [20] referring to Cameron v R [2017] NZSC 89, [2018] 1 NZLR161.[53] As noted there was no dispute that methamphetamine was imported into NewZealand at or about the time alleged in the charge.[54] However, there was no evidence, or no sufficient evidence, that any of thedefendants was involved in the importation process in the manner alleged or that anydefendant intended to provide assistance to another or others of the defendants or thatany of the applicants knew methamphetamine would be imported.[55] Each of the defendants arrived in New Zealand after the importation wascomplete. While that is not an inevitable barrier for liability if evidence of other actsantecedent or contemporaneous with the importation were available for proof, I wasnot pointed to such evidence. The closest evidence would appear to be thedocumentation found in the suitcase in the room shared by Mr Wong and Ms Li.However, there was nothing to link Ms Li with any proprietorial interest or controlover that suitcase. Indeed, the evidence tends to suggest the suitcase was Mr Wong's.[56] Furthermore, the Crown's theory of the case tends to contradict any of theapplicants being associated with any acts referable to the importation itself. Certainly,that was the case for Mr Tan and Chi Leung, both of whom arrived in the last wave ofvisitors, consistent with the Crown's theory they were the workers recruited for theextraction phase. I am satisfied their role, for reasons set out below, was to facilitateand assist in the extraction and re-crystallisation of the methamphetamine followingits arrival in New Zealand.[57] For these reasons I was satisfied that the applications should be allowed andthe applicants discharged on Charge 3.Possession for supplyLegal elements[58] The principles of possession may be summarised as follows:1010 See Simon v R [2017] NZCA 277 at [14]-[19]; Kupec v R; and Harding v R [2016] NZHC 1855 at[56]-[62](a) an awareness of where the drug is;(b) an awareness that the drug is a prohibited drug (the defendant does notneed to know the exact drug but does need to know it is a prohibiteddrug); or the recognition and unreasonable disregarding of a risk thatthe drug is a prohibited drug;(c) actual control of the drug, either through personal custody of the drugor through the ability to direct another person to deal with the drug;(d) an intention to exercise that control; and(e) more than one person can possess the same item.Analysis[59] Unsurprisingly, it was not in dispute that if evidence of possession was foundto be sufficient the presumption of purpose to supply could not be displaced.11[60] I shall deal with the submissions relevant to each of the applicants.(a) Hao Li[61] It is common ground that at no point did Ms Li exercise actual possession, inthe sense of physical custody over the packages containing the drugs or the drug.[62] She was seated in the front seat of the Estima when the six boxes were loadedat the Botany Shopping Centre. Each of the other occupants, except for Mr Tan, wereinvolved in physically moving the boxes into the Estima.[63] Furthermore, there is no evidence she assisted in moving the boxes from theEstima into the house at Claymore Street.11 Misuse of Drugs Act 1975, s 6(6).[64] When the Estima arrived beside the container at Suco 88 on 19 September 2017Ms Li remained in the passenger seat while the boxes were loaded and then repackedin the container. The surveillance footage shows that while this was occurring thevehicle was moving noticeably. It would have been plain to Ms Li what washappening.[65] The question is whether Ms Li, notwithstanding her physical remotenessexercised knowing joint custody and control with the others.[66] Thus the argument before me focused on what inferences might be drawn fromMs Li's conduct during the relevant period. A non-exhaustive list of the evidencewhich tends to support actual knowledge or that Ms Li recognised a risk that theimported material contained a controlled drug and unreasonably disregarded that riskfollows:(a) Ms Li arrived with Mr Wong, ostensibly for the purpose of a holiday.Despite claiming she intended to visit the South Island and Queenstownno bookings for flights or reservations for accommodation were made;(b) Ms Li was involved in the renting of Claymore Street although it wouldappear that this was confined to a single communication. Renting ahouse for a month might be regarded as somewhat antithetical forsomeone planning a holiday;(c) Ms Li assisted Mr Wong in the purchase of the freezer which was laterdelivered to Claymore Street. She made the payment in cash;(d) she accompanied Mr Wong and Mr Chiu when the storage facility atTakapuna was rented. This was on the same afternoon she arrived withMr Chiu and Mr Wong on a long haul flight from Hong Kong;(e) she accompanied and appeared to assist Mr Wong in the purchase of avacuum pump and subsequently two electronic thermometers. Bothitems are consistent with methamphetamine extraction;(f) she assisted Mr Chiu, Mr Chiang and Mr Tan in the purchase of threelarge stainless steel cooking pots at the cookware store in Botany;(g) although she did not enter the Bunnings store, she was in the Estimawhen the large variety of items, consistent with methamphetamineextraction, were placed in the back of the Estima;(h) she was seated in the Estima when the six boxes containing umbrellastands were placed in the vehicle by Mr Wong and the others; and(i) she was seated in the Estima at Suco 88 when the container was openedand the boxes loaded into the car followed by the repacking.[67] I am satisfied that this combination of evidence is sufficient to support therequired mens rea element of the charge of possession for supply.(b) Zhizhao Tan[68] The evidence in relation to Mr Tan was a good deal more straightforward. Indetermining the question of sufficiency of evidence it was unnecessary for presentpurposes to go beyond the occasion on 19 September 2017 when the CCTVsurveillance revealed Mr Tan as actively involved in the unpacking of the boxes fromthe container. The call and the WeChat message he received from Mr Chiang revealedhis role as a trusted accomplice. It was Mr Tan who appeared to have relayedMr Chiang's message which resulted in the reloading of the container. Furthermore,Mr Tan was actively involved in the purchase of the stainless steel pots at the cookwareshop and in assisting the others in the purchases made at Bunnings.[69] I was satisfied there was ample evidence of knowing participation for thischarge to go to the jury.(c) Chi Leung[70] The case against Chi Leung was broadly similar to Mr Tan's; that he was aworker recruited for the purpose of extracting the methamphetamine from the gypsumsubstrate.[71] On the evidence he exercised physical possession and control over the boxeson two discrete occasions; first when the boxes were being loaded into the Estima atthe Botany Shopping Centre and secondly at Suco88 when the boxes were beingunloaded from the container and then reloaded. Significantly, it was Chi Leung whowas carrying a box at the rear of the Estima when Mr Tan held his hand out andappeared to touch the box before the instruction to return the boxes to the containerwas given.[72] Chi Leung's knowledge and involvement with this enterprise is readilydiscernible from these events as well as the material discovered on his mobile phone.[73] Again, I was satisfied that the necessary elements of possession were availableon the evidence and that this charge should also go to the jury.Conclusion[74] Each of the defendants was discharged on Charge 3.[75] In respect of Charge 4 I was satisfied that the applications should be dismissed.Moore JSolicitors:Ms Pecotic, AucklandMrs Smith, AucklandMr Meyer, AucklandCrown Solicitor, Auckland