



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R. v. Li, R. v. Zheng









2009 BCCA 21




Date: 20090120





Docket: CA035613; CA035679

Docket: CA035613

Between:

Regina

Respondent

And

Jing Yan Li

Appellant

- and -

Docket: CA035679

Between:

Regina

Respondent

And

George Zheng

Appellant




Before:



The Honourable Mr. Justice
  K. Smith





The Honourable Mr. Justice
  Lowry





The Honourable Madam
  Justice Neilson




Oral Reasons for Judgment




D.N.
  Fai



Counsel for the Appellant, J. Li





J.I.S.
  Sutherland



Counsel for the Appellant, G. Zheng





P.
  Eccles



Counsel for the (Crown) Respondent





Place and Date:



Vancouver, British Columbia





20 January 2009






[1]

SMITH, J.A.
: The appellants appeal their convictions by the
Honourable Judge de Walle of the Provincial Court sitting at Vernon, British
Columbia on charges of production of marihuana and possession of marihuana for
the purposes of trafficking contrary to s. 7(1) and s. 5(2) respectively of the
Controlled Drugs and Substances Act
.  They were charged on a
single information and were tried together.  Neither appellant testified or
called evidence in defence of the charges. The trial judges reasons for
judgment are reported at [2007] B.C.J. No. 2802 (QL) and are indexed as 2007 BCPC
406.  He imposed a one-year conditional sentence on each of them.

[2]

The charges arose when around 9:30
a.m., on December 15, 2005, the RCMP executed a search warrant at 6919 Service
Road, a rural residential property at the end of a dead-end street in Westwold,
British Columbia, a small community roughly midway between Kamloops and Vernon.
 They arrested the appellants, who were found alone inside the house.

[3]

The undisputed facts are as
follows.

[4]

The police found 2,298 marihuana
plants in various stages of growth and a 54½ pound bag of dried marihuana in a
large shop or barn located on the property about 30 metres from the house.  There
was a well-worn path in the snow from the back door of the house to the locked
door of the shop.  There was a faint odour of marihuana outside between the
house and the shop and the odour of marihuana inside the shop was overpowering.
 The shop building contained several rooms. Marihuana was growing in three of
them.  The bag of dried marihuana was found in a drying room.  Another room
contained materials and supplies related to the growing of marihuana, including
plant pots, soil, fertilizers, and piled up used equipment.  In this room the
police found three used shrouds lying on the floor which were very similar if
not identical to other shrouds that were in use hanging over plants in the
growing rooms.  In one of the growing rooms they found a CO
2
control unit hanging in the middle of the room above
growing marihuana plants.  The marihuana grow operation was large and
sophisticated and required human attention at least every other day, if not
daily.

[5]

The trial judge accepted the
evidence of Corporal Coates, a fingerprint expert, that he found three
individual fingerprints of the appellant Zheng on one of the shrouds and that
he found a fingerprint of the appellant Li on the CO
2
control box.

[6]

The police found a vacuum sealer
unit for saving food and a number of new sealable Ziploc plastic bags in the
kitchen of the house.  In a closed dishwasher they found three pH soil testers.
 On the kitchen counter they observed some cooking oils, dishwashing soap,
dishes, and a rice maker.

[7]

They also found a hydro bill and a
gas bill in a kitchen drawer, both addressed 6919 Service Road to a customer by
the name of Min Zheng. According to their drivers licences, the appellants
resided in Coquitlam, in the Lower Mainland, more than 200 miles from the
scene.  A set of keys found in the kitchen contained a key that unlocked the
doorway to the shop.  The room immediately inside this doorway was completely
empty and access to the grow operation was through this room.

[8]

There were no beds in the house,
just mattresses on the floor.  The furniture in the house was to use the trial
judges words makeshift.  There were no pictures on the walls and clothes
were strewn about the floor.  The trial judge concluded the house gave the
appearance of, and again using the trial judges words, being used in a
transient way.

[9]

The trial judge accepted the
evidence of Constable Evans, an expert in marihuana grow operations.  In this
respect, he said that Constable Evans

[11]
 had an opportunity to view the various exhibits in this case, the photograph
and the flow chart of the exhibits.  He described some of the
paraphernalia that was involved in the grow operation here, various electrical
controls, timer lights, carbon dioxide devices and the charcoal filters to keep
the smell away from the building.  He testified that the vacuum sealer and
bags located in the kitchen of the residence were items that are used in
marihuana grow operations.  The marihuana is placed into the bags; the air
is removed by the vacuum sealer, for the purpose of prolonging the life of the
marihuana bud.  He described that the pH testers found in the dishwasher
in the kitchen of the residence are commonly used to check soil conditions in
marihuana grow op operations, to determine the best production of the
plants.  He also referred to a surveillance camera that was found in the
residence, and he said surveillance cameras are commonly used in marihuana grow
ops to watch for uninvited or unwanted visitors, including the
authorities.  He testified that the CO
2
detector, which was
located in one of the marihuana growing rooms, suspended from the ceiling, was
an item used to check CO
2
levels and that could adjust those levels
automatically to ensure the best growing conditions for the plants, and that it
would be placed in the centre of the plants as it was in this case to best
determine and check levels of CO
2
for the entire growing area. 
He testified that, and as I have referred to already, that this size of grow op
would require frequent attention, not necessarily daily, but more than likely
at least every other day.

[10]

All elements of the offences were
established save for the appellants knowledge and control of the marihuana in
question, which the trial judge noted was the sole issue to be decided.  He
noted that all of the evidence was circumstantial and he cited
R. v
Cooper
(1977), 34 C.C.C. (2d) 18 (SCC), for the proposition that
before basing a verdict of guilty on circumstantial evidence the trier of fact
must be satisfied beyond a reasonable doubt that the guilt of the accused is
the only reasonable inference to be drawn from the proven facts.  He expressed
his ultimate finding of guilt in the following passage in paragraph 13 of his
reasons:

[13]      Defence
counsel in a very thorough manner identified a number of items where it is
suggested that there is evidence that does not indicate knowledge or control,
evidence that is absent in cases that would support an inference that there was
proof of knowledge and control.  I am not going to refer to the list of
absent pieces of evidence in this case, except to say that I have considered
that entire list very carefully and I have concluded based on the evidence
before me, the whole of the evidence, that it has been established beyond a
reasonable doubt that the accused Zheng and the accused Li had the necessary
knowledge and control of the marihuana grow op in this case to be convicted of
both offences.  I am, as I said at the outset, mindful of the test to be
applied in a case of circumstantial evidence, but I am satisfied beyond any
reasonable doubt that the guilt of the accused is the only reasonable inference
to be drawn from the proven facts.  I refer in particular to the location
of this grow operation, the presence of the accused at the scene, the items
that were seized from the inside of the residence, including the key that
gained access to the outbuilding where the marihuana grow op was located, as
well as the fingerprints of Mr. Zheng on a shroud and the fingerprint of Mr. Li
on the CO
2
control unit.  That evidence, in my view, leads to
the inescapable conclusion that these accused were aware of the marihuana grow
op, had control of it.  Whether or not others were involved is a question
that I am not going to speculate on, and it is not necessary for me to
determine.  In the end result, I find each accused guilty on both counts.

[11]

During the hearing of the appeal,
the grounds of appeal were narrowed to two.  Both appellants submit that the
verdict was unreasonable or was not supported by the evidence.  The appellant
Li contends, in addition, that the trial judge should not have accepted the
evidence that the fingerprint found on the CO
2
control box was his fingerprint.

[12]

I will deal first with the latter submission.

[13]

Corporal Coates was called by the
Crown as its fingerprint expert.  He explained in detail the process he went
through to reach his conclusion that the print was that of the appellant Li.  He
testified that he submitted his file and his conclusion to another officer for
peer review.  He said the other officer responded that he was unable to explain
some discrepancies without further information.  Corporal Coates said he
supplied more information but before the second officer could review it, he was
transferred to another jurisdiction.  He testified his opinion was then
reviewed and confirmed by a third officer.  No other fingerprint evidence was
before the trial judge.

[14]

Counsel for the appellant Li
contends that the opinion of Corporal Coates was unreliable because of the
comments of the first reviewing police officer that there were discrepancies he
could not explain.  As well, he points to the evidence of the information
supplied by Corporal Coates in response to the request for further information
and submits that the second officer had the same information, if not better
information, than the third officer who ultimately confirmed the opinion.
Accordingly, he contends, it was not reasonable for the trial judge to accept
Corporal Coates opinion as proof beyond a reasonable doubt that the finger
print was that of the appellant Li.  He did not attempt to identify any clear
and overriding error in the trial judges reasoning and he did not suggest that
the trial judge misunderstood or misapprehended the evidence.

[15]

In my view, counsel for Mr. Li is
simply asking us to substitute our view of the weight of Corporal Coates
opinion for the view taken by the trial judge.  We may not do that.  Questions
of credibility and weight are for the trial judge and we may not interfere in
the absence of some demonstrated error.  No error being demonstrated, I would
therefore not accede to this submission.

[16]

I turn to the submission that the
verdict was unreasonable or unsupported by the evidence.

[17]

The standard of review applicable
in this case is set out in
R. v. Yebes
, [1987] 2 S.C.R. 168 at
185; affirmed in
R. v. Biniaris
, [2000] 1 S.C.R. 381 at para. 36
 the question is whether the verdict is one that a properly instructed jury
acting judicially could reasonably have rendered.  In answering this question
we must, within the limits of the appellate disadvantage, weigh the evidence to
some extent and view it through the lens of judicial experience.

[18]

The attack on the reasons on this
ground is based on the premise that the trial judge was required to explain in
paragraph 13 of his reasons, which I have already set out, his reasoning for
the inferences he drew from each of the facts he found proven and that he
failed to do so  he expressed only conclusions.  As an example, counsel noted
that there was no evidence of exactly where the keys were first found or who
found them.  He characterized the evidence of the officer who said he found
them on the kitchen table about two hours or so after he arrived as ambiguous
and said the trial judge was required to acknowledge this ambiguity and explain
how he resolved it.  I cannot agree.

[19]

This approach has been rejected in
R. v. R.E.M.
, 2008 SCC 51 and in
R. V. H.S.B.
, 2008
SCC 52, albeit in another context.  In
R. V. R.E.M.
, Chief
Justice McLachlin said for the Court at para. 24:

The
Court of Appeal in this case took the phrase the path taken by the trial judge
through confused or conflicting evidence to mean that the trial judge must
detail the precise path that led from disparate pieces of evidence to his
conclusions on credibility and guilt.  In other words, it insisted on the very
verbalization of the entire process engaged in by the trial judge in reaching
a verdict rejected in Morrissey (p. 525). Sheppard does not require this.  The
path taken by the judge must be clear from the reasons read in the context of
the trial.  But it is not necessary that the judge describe every landmark
along the way.

[20]

Chief Justice McLachlin added,
again speaking for the Court, in
R. v. H.S.B.
at para. 2:

The
purposes of giving reasons are fulfilled where the reasons for judgment, read
in context, establish a logical connection between the verdict and the basis
for it - in other words, the reasons must explain why the judge made his or her
decision.  A detailed description of the judges process in arriving at the
verdict is unnecessary.

[21]

In my view, the reasons given by
the trial judge here read as a whole and in the context of the evidence given
at the trial explain clearly why he reached his verdict.  He drew the
inferences of guilt from a consideration of the evidence as a whole and from
the cumulative effect of the facts he found as he recounted them in his reasons
for judgment.

[22]

Counsel for the appellant Zheng
conceded that an inference of guilt drawn from the facts mentioned in para. 13
of the reasons for judgment was a reasonable inference.  However, he submitted,
that it was not the only reasonable inference open on the evidence.  Other
inferences he suggested were that the appellants were invited guests at the
residence and that the fingerprints of his client were placed on the shroud at
some earlier time and place.

[23]

He relies in this part of the
argument primarily on the absence of evidence that is often led in such cases.  For
example, he says there was no smell of marihuana in the house; no evidence of
fans or other sounds related to marihuana production; no evidence of
scoresheets, cash or other paraphernalia typically found in grow operations; no
evidence that marihuana was found in the house; no evidence from which it could
be concluded that it was the appellants who were using the residence in a
transient way; no evidence of where the keys were found or to whom they
belonged; and no evidence of whether there was anything else in the dishwasher
besides the pH testing kit.  He points as well to the evidence that the
appellants had no marihuana residue or smell of marihuana on their persons and
noted the Crowns evidence that persons tending marihuana plants often have
both.  He notes also evidence that the fingerprints could have been on the
shroud and the control box for a very long period of time.

[24]

Inferences must be based on proven
facts.  If there are no facts from which an inference can be made, we are left
with mere speculation.  In my view, there was no evidence before the trial
judge that would have supported an inference that the appellants were merely
casual visitors to the premises or that Mr. Zhengs fingerprints were placed on
the shroud at some earlier time and place.  These things are mere speculation.

[25]

Here, the appellants were found in
a remote area far from their homes early one morning in a residence used only
in a transient way in close proximity to a large and sophisticated commercial
marihuana grow operation.  A well worn path led from the back door of the
residence in which they were found to the locked door of the building in which
the marihuana was found.  A key that unlocked the door was found in the
residence.  Their fingerprints were found on equipment in use or which had been
used in the enterprise.  The appellants concede the trial judges inference of
guilt from these facts was a reasonable inference.  I have not been persuaded
that any other reasonable inference was open to the trial judge on the
evidence. Accordingly, I have not been persuaded that the verdicts were
unreasonable or unsupported by the evidence.

[26]

Moreover, I would take into
account against the appellants their failure to testify in the face of
otherwise convincing evidence and to provide an innocent explanation of the
circumstances: see
R. v. Noble
, [1997] 1 S.C.R. 874;
R. v.
E.R.
(2002), 171 B.C.A.C. 223.  If there was an innocent explanation
for these facts, they could have taken the stand and given it.

[27]

In the result, I would dismiss the
appeals.

[28]

LOWRY, J.A.
: I agree.

[29]

NEILSON, J.A.
: I agree.

[30]

SMITH, J.A.
: The appeals are dismissed.

The Honourable Mr. Justice
Smith

CORRECTION 20 January 2009

On the cover page the style
of cause of Docket CA035679, the Appellant Regina should be Respondent and the
Respondent George Zheng should be Appellant.


