Rex v Manu [2014] TOSC 2; CR157-160.2013 (21 January 2014)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 157-160 of 2012

REX

V

1. VALELIANO MANU
2. CHINCHIU LIU aka KEVIN LIU
3. SHIQING LIN
4. XIU MING LIN
   

BEFORE THE HON. JUSTICE CATO

Mr Sisifa for the Crown
Mr Pouono for the accused Manu & X.M. Lin
Mr Corbett for Shiquing Lin
Chinchiu Liu unrepresented

SENTENCE

[1] The prisoners, Valeliano Manu, Chin Chui Liu, aka Kevin Liu and Shiquing Lin appear for sentencing on one count of importing, on the 23rd June 2011, a controlled chemical namely pseudoephedrine in an amount of 2017.3 grams contrary to section 5(b) of the Illicit Drugs Control Act 2003 into Tonga. The maximum penalty for doing so is 25 years imprisonment and, or a fine of up to $250,000.

[2] The prisoner, Xiu Ming Lin, appears for sentence on one count of possession of a controlled chemical pseudoephedrine contrary to section 5(b) of the Illicit Drugs Control Act, 2003. The amount involved was 62 grams. The maximum penalty for being in possession is also 25 years imprisonment and, or a fine up to $250,000.

[3] The prisoners had pleaded not guilty and a joint trial had been held of a little over four weeks. I delivered my verdicts on the 26th November 2013. Manu, Kevin Liu, the name he went by at trial, and Shiqing Lin were all remanded in custody, and the sentences I impose today are to be backdated to the 26th November, 2013. Xiu Ming Lin was granted bail but with no assurance that after I had heard submissions he would not also serve a sentence of imprisonment.

[4] Manu, Kevin Liu and Xiu Ming Lin had been also indicted with attempted importing of a controlled chemical pseudoephedrine, on the 20-23rd June 2001, but were acquitted by me on this charge. This consignment which was a slightly earlier consignment than the second consignment involved the substitution of the contents of the container, a water cooler, by New Zealand customs with a placebo material similar in appearance to contact NT. The allegation was that this was a substitute for 4.2 kilos of contac NT which had been removed after the consignment from China addressed to Manu had been intercepted. The second importation originated in China and had been also addressed to Manu but nothing was made of this at trial. Manu had been involved in clearing both consignments after they had arrived from New Zealand into Tonga. There was evidence that for each consignment, Manu's services had been solicited by Kevin Liu whom he knew well and indeed was related to by his wife and marriage. There was evidence that Liu, Shiqing Lin, and Xiu Ming Lin all of whom had been living and working in Tonga for some time were well known to each other. It is not clear that Mau was associated with Shiqing Lin, or with Xiu Ming Lin, who I found were the persons responsible for obtaining the consignments from China.

[5] In relation to the attempted importation, Manu, Kevin Liu and Xiu Ming Lin were acquitted. Although I had no reasonable doubt that all, despite their protestations and explanations for not being involved knowingly in the importation of a controlled chemical, were knowingly complicit in a joint enterprise to import, I acquitted them because the Crown did not call the customers officer who, allegedly, had found the contac NT in the original consignment after it had been intercepted in New Zealand and had removed it from the water boiler sending a sample for analysis to the ESR. The evidence the Crown relied on was hearsay and did not come within any statutory exception, so the statement of the custom's officer was inadmissible under the Tongan Evidence Act. The allegedly large consignment had been obtained by Manu after its arrival in Tonga from Customs' agents, given to Kevin Liu and taken by Liu to the address of Xiu Ming Lin where the water boiler and the placebo material were located in cans later by police. At the same address, a bag containing 62 grams of contac NT was located in a refrigerator in the house. I rejected Mr. Xiu Ming Lin's innocent explanation for possession of this contac, namely that the bag belonged to another inhabitant and he had received some as a cold remedy, and convicted him of possession of pseudoephedrine.

[6] All of the prisoners had given evidence essentially distancing themselves from the importations and in Xiu Ming Lin's case possession also. I regarded their explanations for being involved in the attempted importation contrived. The inference I drew from all the evidence I heard was that Xiu Ming Lin and Shiqing Lin, Chinese immigrants and both well known to Kevin Liu who was a Taiwanese immigrant were all illegally involved in various ways with contac NT. One innocent association such as a cold remedy was excluded, Xiu Ming Lin's possession of the contac could only have been for an illicit commercial purpose.

[7] As to the second consignment, this was a controlled delivery through New Zealand police. I found that, as with the first consignment, Manu was very actively involved in obtaining receipt of the consignment giving it again to Liu who contacted Shiqing Lin. Like the first consignment, the contac was secreted, this time in a number of aluminium bowls with compartments. Manu, Kevin Liu and Shiqing Liu were arrested with the consignment soon after delivery.

[8] For sentencing purposes, I find beyond any reasonable doubt that all four men were involved with contac for commercial purposes. Manu, Shiqing Lin, and Kevin Liu in relation to the importation of a significant amount of pseudoephedrine. I find also as I have said that Xiu Ming Lin had possession of the smaller amount of contac 62 grams but also with commercial intent.

[9] I find beyond any reasonable doubt that the activities were well planned, intended to violate border controls, and that the involvement of Manu in the enterprise was intended to better ensure the safe passage of the contac into Tonga. The only sensible purpose for this was the ultimate disposal of the contac for an illicit purpose, namely the manufacture of methamphetamine. This offending involved a significant breach of Tonga border controls made in my view considerably more serious by the fact that Manu was a serving police officer. Whilst the importation into Tonga of a large quantity of contac was in itself a serious crime, its seriousness is aggravated by the fact that a serving police officer was involved in the importation.

[10] I find all of the prisoners equally responsible for the importation. The principal would appear to be Shiqing Lin to whom Liu gave the consignment after he had received it from Manu, the intermediary Liu who appears responsible for the organization and introduction of Manu into the scheme, and Mr Manu the facilitator of the arrival of the importation into Tonga. Manu had dealt with customs officers and others after the packages had been received in Tonga having at least, on one occasion, absented himself from his police duties to do so. On the evidence I heard, I am satisfied that he was a willing participant and fully carried out his role in this criminal enterprise.

[11] The principal consideration in sentencing on the offence of importing must be denunciation of planned importations involving the corruption of and involvement of corrupt police. Manu was a relatively experienced police officer having served with some distinction it seems in the Tonga police for several years. He was no novice to law enforcement. His involvement in this activity must be denounced and he must be punished firmly for the role he played. Likewise, must be the actions of those involved in corrupting a law enforcement officer.

[12] Also must be denounced the cynical and planned breach of the Tonga illicit substances legislation for commercial profit. Conduct of this kid must be reflected in condign sentences consistent with Parliament's intention reflected in the heavy penalties contained in the Illicit Drugs Control Act, 2003. This was premeditated offending. Not only must the offenders be punished and individually deterred but their sentences must be seen as a real warning to others intending to import a precursor substance such as contac for illict purposes into Tonga, that this offending will not be tolerated.

[13] I have to consider objectively what is an appropriate starting point for the offence of importation taking into account the circumstances of the offending and the penalties provided for in the Act before any mitigating factors are considered. Precursors such as pseudoephedrine in other jurisdictions may involve lesser maximum sentences, but not in Tonga where aside from the offence of importing or exporting a drug under section 3 of the Act, which carries a maximum sentence of 30 years and or a fine of up to a million dollars, the Tongan legislation does not differentiate between the penalties for controlled chemicals and offences relating to drugs. Both attract penalties of 25 years of $750, 000 or both. The cases cited to me by the Crown involving New Zealand precursor cases classified as class C drugs, involve much lower maximum penalties that here. In one such case of possession for supply, R v L 22nd June, 2010 [2010] NZHC 1067 a starting point for a possession for supply was 2 years nine months set where the prisoner had been found in possession of an amount of contac in a very similar amount as here. The maximum penalty for such offending is however eight years in New Zealand. I consider further that this offending was more serious then possession for supply. It involved a deliberate and relatively sophisticated violation of the Act. Contac is well known to be a chemical for which there is now a very lucrative black market at least in Australasia where other sources of pseudoephedrine for the manufacture of the very harmful drug methamphetamine are difficult to obtain. Contac's use in the manufacture of methamphetamine means that its illegal import into Tonga in commercial quantities must be strongly condemned as I have said. It is important that this Court sends as I have said. It is important that this this Court sends a strong message that those who are involved in this kind of offending can expect to receive severe sentences. Although counsel for the priosners Manu and Shiqing Lin, Mr. Pouono and Mr. Corbett, both advocated a starting point of 3 years and Mr. Sisifa for the Crown, when requested by me to submit on the issue, a higher starting point of 6 years, I submit on the issue, a higher starting point of 6 years, I consider that an appropriate starting point is 4 and half years for an importation of this amount. The sentencing Judge in Li mentioned an amount of grams similar to that here, depending on the quality of the cook, could realise an amount of methamphetamine between 442 and 663 grams which should have in New Zealand at that time, a street value of between $126, 000 and $355, 000. I mention these figures simply to illustrate the considerable illicit commercial value of contac NT in the drug trade.

[14] I find a serious aggravating feature of this offending, however, was the fact that Liu engaged Manu as the consignee and Manu willingly embarked on this illicit criminal enterprise. I consider that the other prisoner, Lin, must have known that Manu was a police officer. He would have wanted and, indeed would have required knowledge about Manu in order to obtain his details so that the consignment could be addressed to him. I consider it most likely that Liu would not have informed him also that Manu was a serving police officer, and consequently that the security of the consignment would be enhanced. This Court must also send out a strong message condemning and punishing a corrupt police officer for his involvement in criminal activity, and also punishing those who introduce law enforcement officers (be it police or other border control officers) into their criminal enterprises. The overall starting point is increased to six years to reflect this aggravating factor.

I now turn to mitigating factors.

Manu

[15] Mr Manu is aged 33. He is married and has four children with ages ranging between 8 and 18 months. His wife is a school teacher. It goes without saying that the consequences of a lengthy sentence of imprisonment will fall heavily on her and the children, who so often are the unfortunate victims also of a parent's criminal offending. Manu came from humble beginnings and a large family, and resided in Niuatoputapu before coming to Tongatapu in 1998 for better schooling. In 2002, he joined the Tongan police and became a well-regarded officer in the scene of crime area. He participated in courses and training and it seems has achieved well in his studies. All this, he has now lost as a consequence of his actions the effect of which is not only to bring disgrace on himself but also to disgrace the Tongan police. His wife is a teacher and it would seem in a position to look after the needs of the children albeit in more difficult circumstances. I do not consider, in these circumstances, that his family circumstances can be taken into account in any significant way in mitigation, but only perhaps as reflecting upon his former good character, which is supported by a reference from a Minister of his Church. The reality is however that his former good work and character has been seriously depreciated by his ations in joining his criminal enterprise.

[16] Manu in his comments to his probation officer appeared to continue to maintain that Liu, who was related by marriage, had lied to him and that he did not know the parcel was for controlled drugs. He seems only to regret his involvement at least in so far as he was reckless. He apologized for this recklessness. I do not, however, regard this limited acknowledgement as any contrition, at all.

[17] I have, already, rejected any suggestion of innocent involvement and given my reasons for doing so. In my view, he committed himself knowingly and fully to the joint enterprise, no doubt intending to profit by his association. Manu both personally in comments made and reported to this probation officer asked for leniency and his counsel, whilst acknowledging the seriousness of his offending, asked for a fully suspended sentence.

[18] Taking all the personal factors I can into account, including his previous obvious lack of a criminal record, his record of service which showed some distinction, the fact that he has a young family, deprivation from them and he being a real factor weighing on his imprisonment, I reduce the starting point of 6 years by 8 months to one of 5 years and 4 months imprisonment.

[19] Although it was pressed upon me to suspend his sentence at least in part by Mr Pouono, I decline to do so. This was serious criminal offending engaged in by a serving police officer, even to the extent of obtaining leave from police duties. I have no doubt that Manu calculated the odds against his being caught and intended to profit from his involvement. There has been nothing advanced by way of any real contrition to justify suspension and rehabilitative considerations. He did not face up to and still appears to reject his involvement in any criminal purpose; being rather an unfortunate victim of circumstances. I do not consider the public interest will be advanced by suspending any part of Mr Manu's sentence in these circumstances.

Chin Chiu Liu a.k.a Kevin Liu

[20] Mr. Liu is aged 31. He was married to a relative of Mr Manu's wife. He was married but is now living apart from his wife since 2012. He has two children both now with his wife. He was born in Taiwan and came to Tonga on a student visa in 2004. He had only junior level education it seems in Taiwan, but I formed the view he was intelligent. He was operating a shop in Tonga earning about $300 TOP a month. He knew and seemed to associate with Shiqin Lin and Xiu Ming Lin. He was reported as saying he accepted his conviction and now expressed remorse concerning his involvement. He asks for leniency. He has recent convictions for bodily harm in 2009, and false pretences in 2013. In the former case, I not he was sentenced to three years imprisonment suspended for three years with $4000 compensation and a fine of $2000.00. He has no previous convictions for drug related activity.

[21] In his report he mentioned peer pressure and advancing the interests of his friends. As I said in my observations and reasons for my verdict, Liu who represented himself and gave evidence denying involvement, which I did not accept, I regarded as intelligent but also manipulative. I regard him as much more than an intermediary. I do not view him as a person who would blindly advance the interest of others or be easily led astray as he perhaps suggests, but would ensure that he would profit from joining the scheme. He knew full well he was corrupting a serving police officer, a relative by marriage and a family man, which I find cynical. He was a willing and central contributor to the unlawful enterprises, of that I have no doubt. There is very little in my view to allow him mitigation aside from his very belated contrition which I do not regard as very convincing and the fact he too has young children, although this last factor has little value either.

[22] I sentence him to five years and 8 months imprisonment. For reasons, I have given in the case of Manu, I do not consider, in the public interest, that any part of that sentence should be suspended. Additionally, to the inherent criminality of the importation, he was directly involved in corruption Mr Manu whom he knew well as a friend, a family man, was a serving police officer. His contrition is belated, and one that I do not regard as deserving of suspension.

Shiqing Lin

[23] He is aged 32. He is separated and has one child. He was born in China and came to Tonga in late 2010. He lived with his family in impoverished circumstances and lived it seems with his grandparents. He married in China in 2002 and his only child, a son, is 11. He separated from his wife in 2006, due to alcohol problems. He looked after his son until 2010 when he came to Tonga. He has an aunt and brother here so he has some Chinese associations, in this country. His son is living with grandparents. He entered Tonga on a visitor's permit, but had heard about business opportunities from his relatives before he arrived and commenced working as soon as he arrived. He operated a shop in the market and later in Kolofo'ou. He has little formal education. He would send money from his earnings back to China for his child and grandparents.

[24] He admitted in his report that he was convinced by other Chinese friends to engage in importing and he could receive quite a big commission.

[25] He said otherwise at trial denying involvement, so like Liu, I also regard his expression of contrition as a belated statement and worthy of little or no discount in mitigation. He has no previous convictions which I do take into account as a mitigating factor. I also take into account reflective of his previous good character that he was remitting money back to China for the support of his child, and grandparent.

[26] Mr Corbett placed before me the case of R v Puloka [2007] Tonga L Rep 223 where Andrews J sentenced the accused, aged 34, who had been convicted after a trial for importing a substantial quantity of cannabis into Tonga to 6 years imprisonment. He had been previously convicted of importing cocaine and had been sentenced to six years imprisonment. Importation of cannabis under section 3 of the Illicit Drugs Control Act carried a maximum sentence of 30 years imprisonment and, or $1, 000, 000.00 fine as I have said, where, as the present offending attracts a lower penalty, even if only marginally so. Mr. Corbett contrasted Puloka with his client's position and implied submitted he should be treated more leniently because he had no previous convictions, the quantity of drugs was of cannabis 1,175 kilos and the other pseudoephedrine 2.07 kilos, and Puloka was sentenced to six years imprisonment with no suspension of the sentence. Mr Corbett contended this was so because of the previous conviction for drugs.

[27] I do not agree. Importing a controlled chemical such as pseudoephedrine in a significant commercial amount is serious offending and, although falling outside section 3 because it is not importation of a drug, nevertheless the maximum for the offending is 25 years or $750,000 fine. In the years since 2007, contac has been increasingly used as a precursor to the manufacture of the drug methamphetamine, and its significance for the black market has been widespread in Australia. Although the amount of cannabis imported by Puloka was a very large amount, and he had previously been sentenced to a long term of imprisonment for cocaine, in the present case, not only is the amount imported significant commercially, but the seriously aggravating feature justifying the overall starting point of 6 years is the role of Manu as a serving police office. Both involved in their different ways, examples of very serious offending but the circumstances are very different.

[28] Mr Corbett also attempted to persuade me based on Vete [2004] TLR 273 that his client should have part of his sentence suspended. I have considered Vete which was a case of partial sentence on crimes of serious violence influenced by the comparatively youthful ages of the offenders. Whilst in an appropriate case, those involved in offending against the Illicit Drugs Control Act, 2003 may be deserving of suspended sentences, I do not consider it appropriate in this case. Here, the circumstances of importation involved the corruption and involvement of a police officer. The prisoner had given evidence denying involvement, and it is only in awaiting sentence that he has accepted it seems his conviction, acknowledged he has learned a lesson, and expressed some contrition. A belated expression of contrition is not a firm foundation for suspending a sentence based on notions of rehabilitation. I do not consider there are any reasons advanced to justify suspension of any part of the sentence.

[29] I sentence Mr Shiqing Lin to five years and four months imprisonment considering all matters in mitigation including the fact also that he has a child in China whom he has been supporting. Whilst he may well have been involved with others who are not before the court, he was in my view responsible for organizing the consignment from the Chinese end, and on the evidence, the contac was intended for him.

[30] The consequence is that Manu and Shiqing Lin are both sentenced to five years and four months imprisonment. Liu does not have any such good character to rely upon, only a very belated expression of contrition, which I do not consider is really any mitigation, at all. Further, not only was Liu an organiser, it was he who knowingly manipulated and co-opted Manu into furthering this criminal enterprise. Hence, his sentence of five years and 8 months imprisonment. I backdate the sentences in the case of Manu, Kevin Liu and Shiqing Lin to the date when the prisoners were remanded in custody for sentence.

Xiu Ming Lin

[31] I now consider the position of Xiu Ming Lin. I did not immediately sentence him to remand in custody because I wanted to hear submissions on his behalf as to reasons why he should not be sentenced to imprisonment before doing so. I expressly said this should not be taken as any assurance that he would not be imprisoned. I have reflected on the matter and considered Mr. Pouono's submissions. The only inference that I can draw from his possession of the 62 grams of contac in the refrigerator after my rejection of innocent association, is that he had it for a commercial purpose associated with methamphetamine, and not for the treatment for colds.

[32] Like Lin, he came to Tonga recently in 2011. He is 41 years old on a business visa which he may now I am informed lose. His wife has returned to China and his son has married and lives here. He now accepts the court's decision, and asks for leniency. He asks for a fine and says a friend will pay it. Mr Pouono urges me not to impose a custodial sentence and argues in substance, albeit against my reasons for conviction, that he was a victim of circumstances and that he was given and had the contac for cold relief it seems but had no lawful excuse for having it. He says of Liu that it was his association with him that had drawn him into this. That may be so, but the inevitable inference that I have drawn is that his involvement with Liu was commercial, and he was not in any sense an unwilling victim of circumstance. Whilst not impugning, his acquittal, it was no coincidence contrary to his protestation to the contrary at trial that the water cooler containing the placebo material was located at his premises.

[33] I consider that the importance of contac as a precursor in the manufacture of methamphetamine requires me to impose sentences of imprisonment on those who are found in unlawful possession of this chemical for a commercial purpose unrelated to cold treatment. Deterrence must be paramount sentencing consideration where contac is possessed for this reason. I consider an appropriate starting point for possession of 62 grams in this case is 16 months imprisonment. I allow Mr Xiu Ming Lin 6 months for his previous good character. His contrition like Liu and Shiqing Lin is I consider belated. The sentence I impose upon him is 10 months imprisonment. I do not consider in his case either that his belated acknowledgement of responsibility is a sufficient basis to suspend this sentence, in whole or in any part.

DATED: 21 JANUARY 2014
JUDGE