Drug offences

Offences

• Cultivation/production/manufacture
• Extraction/preparation
• Purchase/possession
• Offering/offering for sale/sale/brokerage

Keywords

• Illicit traffic(king)(-offence)
• Cultivation, Production and Manufacture Offences
• Offence of possession for the purpose of production, export, import or trafficking
• Manufacture, transport or distribution of equipment, materials or precursors offences
• Offence of possession of Equipment, materials or Precursors
• Organisation, Management and Financing of Drug Trafficking

Participation in an organized criminal group

Offences

• Participation in criminal activities of organized criminal group
• Organizing, directing, aiding, abetting, facilitating or counselling the commission of a crime involving an organized criminal group

Degree of Involvement

• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question

Keywords

• criminal association
• circumstantial evidence
• organizing/directing commission of (serious) crime

State v. Yuen Yei Ha [2005] FJHC 165; HAC0012 .2004

UNODC No.:
FJIx003

Fact Summary

Jason and Diane Zhong, a married couple from China based in Fiji, were running a company called Wah Tai Trading Limited. The company was used between October 2003 and March 2004 to procure materials and facilitate infrastructure to support the manufacture of methylamphetamine, an illicit drug. The couple hired four builders and cooks that were flown into Fiji and living in an apartment leased by Diane Zhong. Jason and Diane Zhong also leased two warehouses where goods were stored and where the drug was manufactured. The four builders and cooks were seen many times wearing protective clothing and masks at the warehouses, as the police had them under full time surveillance for some time.

On June 2004, when the police arrested the six defendants, large amounts of cash were found in the apartment where the builders and cooks used to live. Moreover, in both warehouses, large quantities of chemicals used in the baking process as well as the final product (ready methylamphetamine in a saleable form) were found.

Commentary and Significant Features

This case is a landmark case, which led to a legislative modification increasing the maximum possible penalty in Fiji for drug manufacturing and/or trafficking from 8 years of imprisonment to imprisonment for life for upcoming cases.

Further, it also illustrates the grave toxic consequences of this activity on the health of people involved in this type of business: one of the former defendants died due to acid burns in his lungs, demonstrating the toxicity of cooking ice. He was removed from the indictment.

Finally, this case is also particularly interesting because of the legal reasoning applied by the Judge in determining the appropriate sentencing. According to the Judge, there are no useful methylamphetamine sentencing authorities in Fiji. Henceforth, he considered the authorities supplied by State’s counsel, in particular in the New Zealand Court of Appeal in R v Arthur. In that  decision, Justices on Appeal took care to inform themselves of other authorities providing guidance in cases involving serious drugs (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, with different maximum penalties based on the quantity of drugs involved.

In the judge’s opinion the same principle can be applicable to drug manufacturing charges. The judge applies a legal reasoning that takes into account the quantity bands devised in New South Wales for low level supply, commercial quantities and large commercial quantities in cases involving serious drugs. As the quantity of drug produced in this case was 2,5 kg, the judge considers it as part of the large commercial supply category.

Sentence Date:
2005-07-27

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

Application of the Convention

Details

• involved an organized criminal group (Article 2(a) CTOC)

Investigation

Details

• Special investigative techniques
• Joint investigative teams

International Cooperation

Involved Countries

Australia

Measures

• Mutual legal assistance

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
High Court
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    first trial
  • Is the decision appealable?:
    Yes
  • Official Case Reference:
    HAC0012 of 2004
  • Court

    Court Title:

    High court of Fiji

     

    Location

  • City/Town:
    Suva
  • • Criminal
    Description:

    The defendants were under surveillance for some time until the police arrested them on 9th of June 2005. The defendants were all tried less than a month after their arrest, on 27th July 2005, before the High Court of Fiji and were all sentenced to imprisonment.

    Each accused pleaded guilty and was convicted 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 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.

     

    Outcome

  • Verdict:
    Guilty
  • Defendants / Respondents in the first instance

    Defendant:
    Diane Zhong
    Gender:
    Female
    Nationality:
    Chinese / Fiji Islanders
    Age:
    30
    Legal Reasoning:

    Based on evidence following police surveillance, the defendant pleaded guilty. It is guilt by active participation according to the Sentencing Judge, as the defendant lend support, encouragement and local skills to this criminal enterprise.

    The judge further expressed "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 a lower level than that."

    Defence used:

    The judge submitted that in the interests of their children, defendant 1 and 2 should receive a non custodial term. Fiji Constitution provides that special care should be taken to protect the best interests of children. In support of his argument that this constitution provision might override strict sentencing principle, he filed a medical report confirming the children’s close bond and dependence on mother. According to the judge, the doctor’s report and school records did not reach the necessary threshold in order 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. The judge advices the two defendants to make an appropriate application to the probationary authorities if at any time the children’s best interests are threatened. He also reminded the defendant 1 that she should be cautious to ensure that the children are properly prepared for re-separation from her at the commencement of the trial.

    Defendant:
    Jason Zhong
    Gender:
    Male
    Nationality:
    Chinese / Fiji Islanders
    Age:
    31
    Legal Reasoning:

    Based on evidence following police surveillance, the defendant pleaded guilty. It is guilt by active participation according to the Sentencing Judge, as the defendant lend support, encouragement and local skills to this criminal enterprise. The judge further expressed "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 a lower level than that."

    Defendant:
    Shing Sum Fok
    Gender:
    Male
    Nationality:
    Chinese
    Age:
    49

    The defendant had both Chinese and Hong Kong SAR of China citizenship.

    The defendants 3 to 6 were builders and cooks of the illicit drug. They were sometimes seen wearing protective clothing and masks, as the police had the warehouses under full time surveillance. They were also seen to test and refine machinery and scrubbers. Defendants 3 to 6 all made statements to the police admitting their involvement.

    Defendant:
    Hon Keung Lum
    Gender:
    Male
    Nationality:
    Chinese
    Age:
    53

    The defendants 3 to 6 were builders and cooks of the illicit drug. They were sometimes seen wearing protective clothing and masks, as the police had the warehouses under full time surveillance. They were also seen to test and refine machinery and scrubbers. Defendants 3 to 6 all made statements to the police admitting their involvement.

    Defendant:
    Yuk Sang Lui
    Gender:
    Male
    Nationality:
    Chinese
    Age:
    52

    The defendant had both Chinese and Hong Kong SAR of China citizenship.

    The defendants 3 to 6 were builders and cooks of the illicit drug. They were sometimes seen wearing protective clothing and masks, as the police had the warehouses under full time surveillance. They were also seen to test and refine machinery and scrubbers. Defendants 3 to 6 all made statements to the police admitting their involvement.

    Defendant:
    Charn Ming Chan
    Gender:
    Male
    Nationality:
    Chinese
    Age:
    49

    The defendant had both Chinese and Hong Kong SAR of China citizenship.

    The defendants 3 to 6 were builders and cooks of the illicit drug. They were sometimes seen wearing protective clothing and masks, as the police had the warehouses under full time surveillance. They were also seen to test and refine machinery and scrubbers. Defendants 3 to 6 all made statements to the police admitting their involvement.

    Charges / Claims / Decisions

    Defendant:
    Diane Zhong
    Verdict:
    Guilty
    Charge / Claim:

    Unauthorized manufacture of a drug

    Legislation / Statute / Code:

    Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and 2 of the Dangerous Drugs Act, Cap 114

    Term of Imprisonment:
    4 years 7 Months
     
    Defendant:
    Jason Zhong
    Verdict:
    Guilty
    Charge / Claim:
    Unauthorized manufacture of a drug
    Legislation / Statute / Code:

    Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and 2 of the Dangerous Drugs Act, Cap 114

    Term of Imprisonment:
    3 years 7 Months
     
    Defendant:
    Shing Sum Fok
    Verdict:
    Guilty
    Charge / Claim:
    Unauthorized manufacture of a drug
    Legislation / Statute / Code:
    Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and 2 of the Dangerous Drugs Act, Cap 114
    Term of Imprisonment:
    3 years 3 Months
     
    Defendant:
    Hon Keung Lum
    Verdict:
    Guilty
    Charge / Claim:
    Unauthorized manufacture of a drug
    Legislation / Statute / Code:
    Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and 2 of the Dangerous Drugs Act, Cap 114
    Term of Imprisonment:
    3 years 3 Months
     
    Defendant:
    Yuk Sang Lui
    Verdict:
    Guilty
    Charge / Claim:
    Unauthorized manufacture of a drug
    Legislation / Statute / Code:

    Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and 2 of the Dangerous Drugs Act, Cap 114

    Term of Imprisonment:
    3 years 3 Months
     
    Defendant:
    Charn Ming Chan
    Verdict:
    Guilty
    Charge / Claim:
    Unauthorized manufacture of a drug
    Legislation / Statute / Code:
    Regulation 3 of the Dangerous Drugs Regulations in Section 41(1) and 2 of the Dangerous Drugs Act, Cap 114
    Term of Imprisonment:
    3 years 3 Months
     

    Court

    High Court of Fiji

    Attachments

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