Shiqing Lin v Rex [2015] TOCA 10; AC 9 of 2014 & 10 of 2015 (31 March 2015)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION AC 9 of 2014 & 10 of 2015
NUKU'ALOFA REGISTRY [CR 158 & 159 of 2012]

BETWEEN:

1. SHIQING LIN
2. CHIN CHIU LIU aka KEVIN LIU
Appellants

AND:

REX
Respondent

Coram: Salmon J
Moore J
Blanchard J
Tupou J

Counsel: Mr D. Corbett for the Appellants
Mr S. Sisifa SG for the Respondent

Date of Hearing: 24March, 2015
Date of Judgment: 31 March, 2015

JUDGMENT OF THE COURT

[1] On 26 November 2013, the appellant Shiqing Lin was convicted of the offence of importation of a controlled chemical contrary to s 5(b) of the Illicit Control Drugs Act 2003 (the Act). He was subsequently sentenced to 5 years and 4 months imprisonment. At the same time the appellant Chin Chiu Liu (aka Kevin Liu) was convicted of the same offence and subsequently sentenced to 5 years and 8 months imprisonment. Both appeal from their conviction and seek leave to appeal against sentence. The convictions arose from essentially the same set of facts and it is convenient to deal with both appeals in a single judgment. In addition, the grounds of appeal are the same.

[2] On 31 October 2014, the Court of Appeal gave judgment (Manu and Lin v Rex – AC 1 & 2 of 2014) in two appeals by two other individuals who had been involved in the same criminal enterprise and convicted at the same trial. The Court of Appeal noted the following in its judgment. Those appellants (and the appellants in these proceedings) were tried by Cato J on charges arising from the alleged scheme to import pseudoephedrine into Tonga. That substance is a controlled chemical under the Act and is the principal ingredient used in the manufacture of methamphetamine, one of the illicit drugs listed in Schedule 1 of the Act. The pseudoephedrine was in a mixture contained in medication called Contac NT. The charges arose out of a joint operation of Tongan and New Zealand Customs and Police.

[3] While both appellants in these appeals were convicted on the importation charge, they were acquitted on another charge of attempted importation. In order to understand the grounds of appeal it is necessary to describe briefly not only the circumstances founding the conviction for importation but also the circumstances resulting in their acquittal on the attempted importation charge.

[4] The attempted importation involved a water boiler imported into Tonga from China. The Crown alleged that the water boiler had originally contained 4.2 kilos of pseudoephedrine. The boiler had been intercepted and inspected by New Zealand Customs officers. On the Crown's account, a Customs officer, Mr Johnson Wu, had discovered the drugs, had taken a sample which was analysed and then had removed them from the boiler. Later, another Customs officer, Mr Jay Elsmore, replaced the drugs with a placebo which resembled the drugs. The water boiler containing the placebo was then shipped to Tonga.

[5] At the trial, Mr Wu did not give evidence. The trial judge concluded that the Crown had failed to prove that the boiler had contained pseudoephedrine when initially intercepted in New Zealand and the Crown's attempts to do so (in the absence of testimony from Mr Wu) by documentary evidence was rejected as inadmissible hearsay.

[6] The importation charge on which both appellants were convicted, involved the importation of pseudoephedrine secreted in the bases of small kitchen bowls. Again, these goods were intercepted and inspected in New Zealand and samples taken for analysis. The goods containing the drugs were then brought from New Zealand to Tonga by two New Zealand police officers, Detective Sgt Beal and Detective Jane Scott as a controlled delivery under s 11 of the Act. The goods were placed for delivery with the customs broker TNT. It was from there that the goods were collected by Mr Valeliano Manu (one of the unsuccessful appellants in the earlier appeal and a police officer) who was tried and convicted on the importation charge at the same time as the appellants. Both Detective Sgt Beal and Detective Scott gave evidence at the trial. The drugs were seized by the police after they had been released by TNT to Manu and a sample was then taken to New Zealand for analysis. Evidence was given at the trial by Ms Vivienne Hassan, a New Zealand scientist, who analysed the sample after it was taken back to New Zealand by Detective Scott.

[7] Central to the appellants' case against their conviction, was that the Crown had failed to call Mr Matthew Cain and Mr Blair Hari. Mr Cain was a New Zealand Customs officer who, it appears, first discovered the drugs in the base of one of the bowls when he drilled a hole in the base. He conducted a test of the substance and removed 146 g sample which he placed in a snap lock clear plastic bag. Mr Cain then placed the sample in the plastic bag in a locker. Mr Hari, it appears, later retrieved the sample and gave it to Detective Scott. The appellants' argument was that in the absence of evidence from these two individuals several links in the Crown's evidentiary chain "were broken". This argument appears to be based on the deficiencies identified by the trial judge in the Crown's case of attempted importation. However the cases were materially different and this argument should be rejected.

[8] Ultimately the issue is whether the Crown proved, by admissible evidence, all the elements of the offence. We did not have the benefit of the transcript of the trial. However the Crown, in its submissions, summarised the evidence of Detective Sgt Beal, Detective Scott and Ms Hassan. This summary of the evidence was not challenged by counsel for the appellants. From that evidence the following emerges. Detective Sgt Beal was present when Mr Cain drilled into the base of the bowl. Indeed this was done at the direction of Detective Sgt Beal. However this evidence was not essential to the Crown case. It simply provided background about what happened thereafter including the transportation of the drugs by the two police officers from New Zealand to Tonga as a controlled delivery. No analogy can be drawn between the decision of the Crown, properly made, not to call Mr Cain and its failure to call Mr Wu. Similar comments can be made about the Crown's decision not to call Mr Hari.

[9] The fact that the bowls contained a substance later established as pseudoephedrine, a necessary element of the Crown Case, was proved by a combination of the evidence of Detective Scott who took a sample of the drugs from the bowls when they were seized in Tonga after delivery and the evidence of Ms Hassan who analysed a sample provided by Detective Scott. The trial judge found, correctly, that he was satisfied beyond reasonable doubt that the materials inside the bowls were those tested positive for pseudoephedrine. There was no deficiency in the Crown's case and the appeal against conviction should be dismissed.

[10] The appellants' argument on whether leave to appeal should be granted in relation to the sentence, turned on what was said to bea disparity between the sentences imposed on the appellants and the sentence imposed by the Supreme Court in R v Puloka [2007] Tonga LR 223 which involved the importation of a very large quantity of cannabis. However the similarities between that case and the present case are, at best, superficial. Sentencing in this matter took place on 21 January 2014. In lengthy and comprehensive sentencing remarks, the trial judge explained why he had determined the sentences he was then imposing. At paragraphs 26 and 27, his Honour explained in some detail and quite persuasively why reliance by counsel on the earlier 2007 case was substantially misplaced. Those reasons included the fact that pseudoephedrine is a precursor to the manufacture of the drug methamphetamine and that its significance for the black market has been widespread in Australasia. We observe that methamphetamine is a potent drug and its widespread use has significant adverse societal consequences. Another reason identified by the trial judge was that the joint enterprise of importing the pseudoephedrine involved a serving police officer which his Honour saw, correctly, as a seriously aggravating feature of the crime. No point of substance is raised by the appellants in relation to sentencing and leave to appeal should be refused.

The Court orders, in each appeal:

1. The appeal against conviction be dismissed.
2. The application for leave to appeal against sentence be dismissed.
   

Salmon J

Moore J

Blanchard J

Tupou J