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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC0012 OF 2004
BETWEEN:
STATE
Applicant
AND:
YUEN YEI HA
JASON ZHONG
SHING SUM FOK
HON KEUNG LUM
YUK SANG LUI
CHARN MING CHAN
Respondent
Counsel: Mr. W. Gibson & Mr. P. Bulamainaivalu – for State
Mr. M. Raza – for 1st and 2nd Accused
Mr. A.K. Singh – for 3rd – 6th Accused
Date of Hearing: 1st July 2005
Date of Sentencing: 27th July, 2005
SENTENCE
On the 9th of June last year a large drug enterprise was ended following a police operation targeting a group of persons associated with warehouse premises at Lot 56 Nasinu Road and Lot 3 Bueli Road, Laucala Beach Estate.
When police went inside the warehouses they found enough chemicals to make more than eight hundred kilograms of methylamphetamine hydrochloride, the illicit drug otherwise known as ‘ice’.
Dr. Anne Coxon, an expert forensic Scientist employed by the Institute of Environmental Science and Research Limited in Auckland, New Zealand and an authorized drugs analyst, examined the exhibits from the warehouses. In her opinion the premises at Laucala Beach were an active laboratory in the process of manufacturing methylamphetamine. The Doctor found:
(1) All of the chemicals and equipment required for the manufacture of methylamphetamine hydrochloride were present at the address.
(2) Chemicals, reaction mixtures and mixtures from a number of different stages during the manufacture of methylamphetamine were present including a large quantity of ephedrine hydrochloride (475 kilograms) and powder that was mainly chloroephedrine hydrochloride (1238 kilograms).
(3) A quantity (2.8 kilograms) of methylamphetamine hydrochloride “final product” had been manufactured.
It has been estimated by specialist staff of the New Zealand Police that the chemicals found in this clandestine laboratory would on a conservative view generate 800 kilograms of ‘ice’. These experts know that a gram of ice can sell for between NZ$800.00 to NZ$1200.00 in the street. The scale of the operation is underscored by the estimated street value of the drugs that could have been generated, a sum of approximately one billion Fiji Dollars.
In Fiji the maximum available penalty at this time for the manufacture of this illicit drug was 8 years imprisonment.
Sentencing
Each accused pleaded guilty and was convicted before me of one charge of unauthorized manufacture of a drug contrary to Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and (2) of the Dangerous Drugs Act, Cap. 114. The particulars of the offence are:
YUEN YEI HA aka DIANE ZHONG aka DIANE YUEN, JASON ZHONG aka ZHONG QIANG ZHONG, SHING SUM FOK, HON KEUNG LUM, YUK SANG LUI and CHARN MING CHAN, between the 22nd day of October 2003, and the 09th day of June 2004, at Suva in the Central Division not being authorized so to do manufactured or carried on a process in the manufacture of a drug, namely methylamphetamine.
Jason and Diane Zhong
The accused Diane Zhong is one of two directors in the company called Wah Tai Trading Limited.
In its memorandum of association the company purports to exist for the purpose of importing and exporting all types of goods from China and Hong Kong and carrying out various businesses in the hospitality industry.
Funds for the illicit drug operation flowed through that company into Fiji throughout the latter part of 2003 and early part of 2004. A total of US$140,000.00 was deposited. Most payments from the account were by cheques payable to cash and signed by Diane Zhong.
Diane is married to Jason the second accused.
It was Jason, perhaps inspired by meetings with the head of an Asian Drugs Cartel, Andrew Lam, who procured the materials and facilitated the construction of this illicit drug manufacturing plant.
Jason and Diane claim through their counsel only innocent association with Mr. Lam and the other accused. They deny knowledge of the true purpose for materials imported by Diane’s Company. They claim no knowledge of illicit drug manufacture until some days before the final police raid. They do not excuse their behaviour by a defence of duress but say they were coerced into silence by their co-accused. The weight to be attached to such mitigation by submission is not as impressive as that to be applied to submission supported by evidence. Senior Counsel for the 1st and 2nd accused Mr. Raza, did not lead evidence.
As the sentencing Judge I am entitled to take an overall view of the facts. Most often that is a view favourable to an accused. I take into account counsels submission and the unsworn statement made by a co-accused in their support from the dock.
However all the accused pleaded guilty and were convicted on an agreed summary of facts. The agreed facts are:
This is not guilt by association but guilt by active participation. By lending support, encouragement and local skills to this criminal enterprise Diane and Jason inextricably bound themselves to the crime. A claim now that they had no knowledge of this criminal activity until the last days and then were frightened into silence is unbelievable. The very best that might be said of their involvement was that they remained willfully blind to the crime.
Their plea to an agreed summary of fact coupled with such weight as may be given to their senior counsels submissions at the very best places them as an equal party in this offending. I avoid the almost inevitable inference that they inspired and managed the project and were in effect Andrew Lam’s lieutenants. There is suspicion but no sound basis of fact for such a finding.
However, of equal force I completely reject the submission that their role in this enterprise can be minimized to any significant extent so as to distinguish their culpability from that of their co-accused.
Jason and Diane are Chinese by birth of Hong Kong extraction now citizens of Fiji. They are 31 and 30 years old. They have been married for several years. They have two young children.
They have extended family.
Diane has no previous convictions.
I treat Jason as a first offender.
The Remaining Accused
The business of illicit drug manufacture is quite structured. Drug rings are run by notorious senior members who invest their laundered money into new enterprises such as this Fiji laboratory. These bosses will often employ managers to oversee the establishment and day to day running of the plant. There is both science and art in the commercial manufacture of methylamphetamine. Accordingly the bosses and their managers employ builders and cooks to attend to the building of the plant and the manufacture of the illicit drug.
The builders and cooks for this operation were flown into the country in October of 2003 and March of 2004. They are listed as the 3rd to 6th accused in the information. All arrived in Fiji travelling on Hong Kong Passports. Each of them claimed in their entry papers to be travelling to Fiji for the purposes of a holiday. They were granted tourist visas. They were self-described as managers. They all took up residency at an apartment in MacGregor Road leased by Diane Zhong. Large amounts of cash were found by police in this apartment together with a vacuum packing machine that might be used to seal marketable quantities of the illicit drug in plastic bags.
The Nasinu Road premises were found to contain large quantities of precursor chemicals used in the baking process.
The Bulei Road property was the site of the illegal lab.
During the months of January and February this building underwent significant internal renovations, painting, installation of machinery and construction of framework for equipment. By late February the work had been completed.
At this stage the accused did not know that they had been under police surveillance for some time.
In particular the police had the warehouses and apartment under full time surveillance.
After the cooks arrived in 2004 their daily routine displayed an industrious work ethic. They arrived at the warehouse early usually working 6 days a week and 8 hours a day.
In clandestine laboratories such as these there are a number of hazardous if not fatal chemicals used or produced. The cooks need protection. It is essential that solvents and fumes created as a by-product of the process are washed and sent to the atmosphere. The group were seen to test and refine machinery and scrubbers for this purpose.
During the work at the Bulei Road warehouse the accused Lui, Yuk, Fok and Chan were sometimes seen wearing protective clothing and masks. This must have been while handling the various hazardous materials used for the manufacture of ice.
On the 9th of June 2004 when police arrested Diane and Jason Zhong, Lui, Fok, Chan and Lum a search of Lot 3 Bulei Road confirmed the existence of a clandestine laboratory producing crystalline methylamphetamine.
Present in the factory were hundreds of litres of chemicals that had been mixed in preparation for further processing towards the final extraction of crystalline methylamphetamine. End product was found in freezers in the laboratory. This was ready and in a saleable form. The police carefully photographed and noted all of the exhibits. The scale of the operation is best assessed by Dr. Coxon’s report and these photographs.
Accused 3 to 6 all made statements to the police admitting their involvement.
Accused 3
SHING SUM FOK is 49 years old. He is a welder by trade. He was born in China and has Hong Kong citizenship. He has a wife and two children.
Accused 4
HON KEUNG LUM is 53 years old, a businessman. He was born in China but with Canadian citizenship. He is married with children.
Accused 5
YUK SANG LUI is 52 years old. He is a Chinese with Hong Kong citizenship. He has a wife and two children.
Accused 6
CHARN MING CHAN is 49 years old. He is married with four children. He is of Chinese origin with Hong Kong citizenship.
The Effect of Methylamphetamine
The New Zealand Court of Appeal in R v Arthur (unreported judgment dated 17th March 2005) had an opportunity to consider numerous scientific papers on the dangers of methylamphetamine. The court concluded that there are pronounced long term physical and psychological adverse effects associated with the use of this drug. There are significant risks to public health from the use of methylamphetamine and clandestine laboratories are dangerous. There are few if any therapeutic applications of methylamphetamine. Methylamphetamine has been linked to deaths. I adopt these conclusions.
The history of this potent drug from its development as a prescription only medicine for Parkinson’s disease to its meteoric rise through mass production and circulation by US motorcycle gangs in the 1980s has seen countries gripped not only by the drugs potency, effect and dependence but also the drugs underworld exploitation of citizens and nations in their pursuit of vast profit.
A UN drug report on the danger of organized crime and drug manufacturer in the Pacific has observed:
“The Pacific Islands connect some of the world’s largest drug producers with the largest drug markets in the world. It is a strategic, if not peerless, location with regard to the global illicit drug trade.”
Fiji’s recent experience has justified such warnings.
I must observe as part of this sentencing process that an 8 year maximum term of imprisonment is far too low a penalty to send any deterrent message to the underworld about the manufacture of ice. Fiji has now increased that penalty to a fine of one million dollars and or life imprisonment.
A Starting Point
It is important that offenders are sentenced only for proved offending not planned but unexecuted activities (R v Wallace [1999] NZLA 89). That does not however preclude the consideration of scale, overall conduct and direct preparation for the manufacturing process. Assessments of these features indicate the degree of sophistication and commerce attached to an enterprise.
The State submitted on the basis of R v Ambler [1976] Crim. L.R. 266 as cited and approved in Balelala v State, HAM0047 of 2004(S)] that for the worst offending of any class the maximum sentence remains reserved.
The principle that the statutory maximum sentence should be reserved for the worst possible case of its kind is an established but over simplified articulation of parity in sentencing. It was an appropriate statement of sentencing policy for its time (first cited in R v Harrison [1909] 2 Cr. App. R.94). It is however flawed as it too readily invites a judge to conjure up likely cases worse than the subject one.
A more useful analysis relates to starting points for sentence calculation and the maximum available penalty. Sentencing powers are discretionary. Parliament may mark the seriousness of an offence by the setting of a maximum penalty but that political process does not constrain a judge in selecting an appropriate penalty. Where the maximum penalty is far too low the band for the starting point widens. The range of available penalty after consideration of aggravating and mitigating features thereby increases.
In my view the maximum penalty of eight years imprisonment for the manufacture of methylamphetamine was too low. This is underscored by the subsequent increase in penalty to life imprisonment and a comparative analysis of penalty in other jurisdictions which carry a similar or worse fate for offenders (Arthur v R [2005] NZLA 51). Accordingly in the interests of justice I consider in this case that the band for the starting point must widen. The question then remains where does this offending sit in that broad range.
Illicit Drug Sentencing Patterns
There are no useful methylamphetamine sentencing authorities in Fiji. I have considered the authorities supplied by State’s counsel and in particular Arthur (supra). In that New Zealand decision Justices on Appeal took care to inform themselves of other authorities providing guidance in cases involving serious drugs. Having considered the leading authorities in the English Canadian and Australian jurisdictions they settled upon the statutory guidance given in Australia where a differentiation is made between large commercial supplies, commercial supplies and other supplies. There is an underlying concept of different maximum penalties based on the quantity of drugs involved.
I see the same principle being readily adaptable for manufacturing charges. In a sense trafficking possession and manufacturing all introduce an illicit drug into society and it can therefore be said that quantity might indicate culpability.
Quantity is of course not the only factor required to be taken into account. Particularly in manufacturing cases it is important to distinguish the truly amateur production of drugs for self use from the more sophisticated professional manufacturer.
When I consider the quantity bands devised in New South Wales I find them to be:
In passing I note that until such time as a body of sentencing authority is developed for methylamphetamine offending there may be some advantage in adopting these general bands in assessing an appropriate starting point for crimes of this nature.
This was a large scale, sophisticated, illicit drug, manufacturing operation. It was financed by offshore money, supported by builders and cooks imported from overseas and aided along by locals. It was purely commercial and driven by greed. The quantities of drug produced (2.5 kg) place it well into the Large commercial supply category. It was a bad case. It merits a high starting point which I fix at six years imprisonment.
I see no need to differentiate between the culpability of these accused. They acted as a team. I accept they were not the boss or prime movers. They were at a lower level than that.
Aggravating this crime is the cost to society of drug dependency, the ruthless exploitation of Fiji as a supposed soft target for drug manufacture, the bold confidence of this group in their criminal activity, their professionalism and the significant quantity of drug produced (2.5 kg) and scale of the manufacture. To this starting point I attach 2 years imprisonment. A total of eight years imprisonment.
Deterrence is the prime sentencing consideration. In commercial drug manufacturing cases personal circumstances are a less important consideration than the need for deterrence (Wallace supra p.7/13).
All share some common personal characteristics. They are all mature adults. In mitigation I treat all as first offenders. All have family commitments. They should have borne that in mind before becoming involved in this crime. They have all expressed degrees of remorse. They will all serve hard time to varying degrees because they are not Fijian and will suffer the deprivations of Fijian prison life.
It was claimed that they each co-operated with the police and further assisted overseas authorities by making statements or confirming the identification of the Malaysian drug boss Mr. Lam. That claim was not supported by evidence or other accurate reliable information (R v Gallagher [1991] 53A Crim. 248 at 260).
There was material available from the Australian Federal Police submitted by the prosecution which I prefer. It confirms a visit to each of the accused but concludes no material assistance was provided.
They each pleaded guilty. The State seeks to minimize the benefit of that plea by claiming it was late and of little use. I reject that submission.
All of the accused were born in China. These accused except Diane have no real grasp of English. Except for Diane and Jason they are foreign nationals. The 3-6 accused made general admissions in their police statements. However, their counsel had to protect their rights and take care to ensure that each understood the nature and facts of their crime. Counsel could not discharge that duty until disclosure was completed.
I record that the State were delayed in completing disclosure as scientific reports could not be obtained until early 2005. Indeed the State were not ready to proceed the trial until May 2005.
State counsel sought to rely on Australian Authority (R v Thomson; R v Houltar [2000] NSW CA 309) to underscore a submission that the sentencing discount should not be significant particularly because of the seriousness of the crime. It must however be remembered that what is appropriate for a wealthy, well resourced State with a reasonable prison service and good access to justice might not neatly fit into Fijian sentencing patterns.
The task of this court is to identify a discount range which is appropriate and will serve the interests sought to be attained in Fiji from encouraging an early plea of guilty.
I am of the view that a discount of between 20 and 33 percent adequately reflects the need here to respect the cultural and social norms for forgiveness, reconciliation and rehabilitation of the genuinely contrite and remorseful offender. Such a broad range of discount may be unpalatable in Australia but here it also meets the public interest of the due and efficient administration of justice in a society where a wide range of justice resources are so limited. An early plea frees up those resources for better allocation elsewhere.
I am prepared to find that these accused pleaded guilty at the first reasonable opportunity when disclosure of State records was complete. That is not to say at the first available opportunity but sufficiently proximate to that time as is reasonable in the circumstances. They are entitled to a significant discount for a guilty plea accordingly. Their plea has undoubtedly saved the State the expense of a long trial; spared witnesses the need to appear and allowed other businesses to be scheduled for this busy court. In addition however it also underscores the accuseds remorse and regret for this offending.
For these mitigating features I accordingly deduct 2 years and 6 months from the aggravated penalty leaving a penalty of 5 years and six months.
Each prisoner has effectively served time in jail and they are entitled to credit for that. As there are no administrative mechanisms to recognize a full discount for time served in Fiji I have calculated an additional period of time to make up for a suitable good behaviour remission.
Time Served plus Remission Total Deduction Sentence
Diane 3 ½ months + 1.5 5 months 5 years 1 month
Jason 11 months + 4 15 months 3 years 7 months
Accused 3-6 14 months + 5 19 months 3 years 3 months
Mr. Raza submitted that in the interests of their children Diane and Jason should receive a non-custodial term. The Constitution provides that special care should be taken to protect the best interests of children. In support of his argument that this constitutional provision might override strict sentencing principle he files a medical report confirming the children’s close bond and dependence on mother.
In the decision of Devi v The State, HAM 011 of 2003S, my learned sister Justice Shameem elegantly stated the issues concerning the hardship or effect of court orders on family closely associated with an offender. At page 5 her honour re-stated the principle that the United Nations International Convention on the rights of the child and the body of Customary Human Rights Law concerning the best interests of children was applicable in Fiji. Section 43(2) of the Constitution provides that the courts “must, if relevant, have regard to public international law applicable to the protection of the rights set out in this chapter.” The best interests of the child have first importance along with other considerations. These interests require equal but not paramount weight (Minister of State for Immigration v Tech [1995] 69 ALR at 43).
When considering the best interests of children any indication of comparative under-development or psycho-social effect as a result of estrangement or separation must be sufficient to motivate the court to act. The eventual threshold for assessment of that impact on a child’s best interest will remain low if the court is to do a proper job in protecting children’s best interests. However, there is at the very least an evidential threshold that has to be crossed. Such cases will be rare and require proof of exceptional circumstances. Justice will not seem to be administratively even handed if exceptions are made in cases which are not truly exceptional.
In my view the doctor’s report and school records tendered by counsel in mitigation do not reach the necessary threshold for me to engage in a proper accurate reliable assessment of the effect upon the best interests of these children when their parents are sent to jail. I have absolutely no doubt it will be difficult for them but the law requires more than mere difficulty to achieve even the low threshold of child interests before the consideration of other circumstances at play; of equal but not paramount weight such as deterrence; are effected. Accordingly I lay that to one side.
The proper course may be for this mother or father to make the appropriate application to the probationary authorities if at any time the children’s best interests are threatened. I also note that when granting this mother bail so that she could be with her children I reminded her that she must be cautious to ensure that the children are properly prepared for re-separation from her at the commencement of the trial.
Conclusion
I must sentence you in accordance with the law and the law presently says the maximum penalty for this offending is 8 years imprisonment. The starting points, aggravation and mitigation of sentence are dictated by that level of penalty. However, I trust that these significant terms of imprisonment I am about to impose on each of you will deter you and others from future involvement in the drug underworld; that is a disastrous and insidious course. More importantly let the principles established in this judgment stand as a clear warning to those who would exploit Fiji as an easy country within which to ply their miserable trade. Whatever can be reasonably done by sentencing policy to stop you will be done. Imprisonment will be the normal penalty. the maximum available penalty is now imprisonment for life. If you come to this country with the evil intent of making or trafficking drugs you will receive condign and strong punishment.
These then are the future sentences for each Accused taking into account time served.
Accused 1 Diane Zhong - 4 years 7 months
Accused 2 Jason Zhong - 3 years 7 months
Accused 3 Shing Sum Fok - 3 years 3 months
Accused 4 Hon Keung Lum - 3 years 3 months
Accused 5 Yuk Sang Lui - 3 years 3 months
Accused 6 Charn Ming Chan - 3 years 3 months
Gerard Winter
JUDGE
At Suva
27th July, 2005
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