



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Kwok,









2015 BCCA 34




Date: 20150129

Docket:
CA040800; CA040722; CA041137

Docket: CA040800

Between:

Regina

Respondent

And

Yiu Tim Kwok

Appellant

- and -

Docket: CA040722

Between:

Regina

Respondent

And

Hin Cheung Lau

Appellant

- and -

Docket: CA041137

Between:

Regina

Respondent

And

Wing Kee Ng

Appellant

Corrected Judgment:
The text of the judgment was corrected at paragraphs
89 and 90 where changes were made
on
April 24, 2018.




Before:



The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Bennett




On appeal from: An
order of the Provincial Court of British Columbia, dated March 14, 2013 (
R.
v. Kwok, Lau and Ng
, 2013 BCPC 0053, Richmond Docket 55856-3-C).




Counsel for the Appellant, Yiu Tim Kwok:



L.D. Myers, Q.C.

F. Arbabi





Counsel for the Appellant, Hin Cheung Lau:



J.B. Jackson, Q.C.

S. Jackson





Counsel for the Appellant, Wing Kee Ng:



H. Patey

Z. Myers





Counsel for the Respondent:



R.A. Prior





Place and Date of Hearing:



Vancouver, British
  Columbia

October 1, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2015









Written Reasons by:





The Honourable Madam Justice Bennett





Concurred in by:





The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel








Summary:

Mr. Kwok,
Mr. Ng, and Mr. Lau were found guilty of drug offences involving over
1,000 kg of ketamine. Mr. Kwok and Mr. Ng were sentenced to a total
of 16 years for importation and possession for the purposes of trafficking. Mr. Lau
was sentenced to 10 years for possession for the purposes of trafficking. On
appeal, the accused argued that the sentencing judge overstated the harmfulness
of ketamine, and erroneously found the group to be a criminal organization as
an aggravating factor under s. 718.2(a)(iv) of the Criminal Code. The
accused also raised the issue of credit for pre-trial custody, as well as other
individual issues. Held: Appeal allowed. The sentencing judge erred in finding
the group to be a criminal organization as the group did not have a level of
structure or continuity that would pose an enhanced threat to society. There
was sufficient evidence to establish the use of ketamine as a harmful drug. The
sentencing judges legal error led her to impose a sentence in a range similar
to cocaine-related offences. Mr. Kwok and Mr. Ngs sentences were
reduced to a total of 12 years, and Mr. Laus sentence was reduced to
6 years. Credit for pre-trial custody at 1:1.5 granted.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

[1]

Mr. Kwok, Mr. Ng and Mr. Lau were convicted, after a
21-day trial, of possession for the purpose of trafficking ketamine, a Schedule
I drug under the
Controlled Drugs and Substances Act
,

S.C. 1996,
c. 19 [
CDSA
]. Mr. Kwok and Mr. Ng were also convicted of
importing the ketamine into Canada (reasons indexed at 2012 BCPC 514). Mr. Kwok
and Mr. Ng were sentenced to a total of 16 years each, 12 years for
possession for the purpose of trafficking and 16 years concurrent for
importation (reasons indexed at 2013 BCPC 53). Mr. Kwok was given credit
for pre-trial custody on a 1:1 basis. Mr. Ng was given credit for
pre-trial custody on a 1:1 basis from the time of his arrest until June 23,
2012. On June 23, 2012, Mr. Ng suffered a serious fall while being
transported by the sheriffs, at which time he was in leg irons and handcuffs. The
injuries he suffered as a result of the fall made life in prison more difficult
and he was given enhanced credit from June 23, 2012 to the date of sentencing
on a 1.5:1 basis in compensation.

[2]

Mr. Lau was sentenced to 10 years, less time served in custody on a
1:1 basis. Ancillary orders prohibiting firearms and providing DNA samples were
made against each appellant. All three seek leave to appeal their sentences,
except the ancillary orders.

[3]

There are several issues that are common to each of the three
appellants:


i.

that the sentencing judge erred in assessing the nature of ketamine, in
terms of whether there was evidence that it was a date rape drug, and where
it stood in the hierarchy of controlled drugs;


ii.

that the sentencing judge erred in concluding that the appellants were
involved in a criminal organization and treating that conclusion as an
aggravating factor in sentencing;


iii.

that the sentences were demonstrably unfit;


iv.

that the sentencing judge erred in failing to grant 1:1.5 credit for
pre-trial custody in light of
R. v. Summers
,

2014 SCC 26; and


v.

that the sentencing judge erred in finding that there were no mitigating
factors.

[4]

Individually, Mr. Kwok argues that the sentencing judge erred in
finding that he lacked rehabilitative efforts, by taking into account a robbery
conviction at age 15, and by failing to give any mitigation for his age and
medical problems.

[5]

Mr. Ng argues that the sentencing judge erred in finding that there
was no expression of remorse on his part, and by failing to find that he was
lower in the hierarchy than Mr. Kwok.

[6]

Mr. Lau submits that the sentencing judge erred in failing to give
effect to the lesser role he had. He argues that he was hired for a fee as
opposed to sharing in profit from the importation, or in other words, he was hired
help. Mr. Lau also argues that the sentencing judge erred in failing to
take into account that there was no evidence of his involvement in the
importation.

Background

[7]

This case involved over 1,000 kilograms of ketamine imported into Canada
on a marine container from Hong Kong. The trial initially commenced with five
people: the three appellants plus Mr. Chan and Mr. Lai. Mr. Chan
suffered a stroke while in custody, and was hospitalized at the time of trial.
The Crown has stayed the charges against him. The trial judge severed Mr. Lai
from the information and the Crown is proceeding against him in separate
proceedings.

[8]

The ketamine was hidden in vacuum-sealed packages amongst a shipment of
coffee mugs that had been purchased in India, sent to Hong Kong and then
shipped to Canada. The Canadian Border Services Agency became suspicious of Mr. Kwok
and Mr. Chan when they entered Canada. Mr. Kwok and Mr. Chan had
documents relating to the shipment of coffee mugs in their possession. As a
result, the shipment was intercepted, the drugs were found and sugar was
substituted for the ketamine. A controlled delivery was performed, and the shipment
of coffee mugs was delivered. All five of the suspects participated in various
degrees with the delivery. Mr. Ngs fingerprint was found on the packaged
ketamine, which meant it had to have been placed there before it left Hong
Kong.

[9]

A timeline and summary of events is useful as the role of each appellant
is in issue on appeal.

[10]

August 7, 2010: Mr. Kwok entered India.

[11]

August 23, 2010: the coffee mugs were purchased from Unique Potteries in
India.

[12]

September 5, 2010: Mr. Ng entered India.

[13]

September 24, 2010: Mr. Chan entered India.

[14]

September 2010: Mr. Bruce Lau (not the appellant), who worked
for VTG Global Transportation (VTG), a company that specializes in marine
shipments and freight forwarding, received a call from a 
Mr. Wong

who inquired about procedures for shipping goods into Canada. Bruce Lau
advised 
Mr. Wong
 (who was actually Mr. Chan) what was
required and continued communicating with 
Mr. Wong
 regarding a possible
shipment.

[15]

October 19, 2010: Mr. Chan and Mr. Kwok left India.

[16]

October 2010: Mr. Ng left India.

[17]

December 1, 2010: Mr. Chan and Mr. Kwok flew from Hong Kong to
Canada together, sitting next to each other. They were both sent for secondary examination
by the Canada Border Services Agency (CBSA). Mr. Kwok had receipts for
an impulse sealer, a receipt for a cash advance to purchase a vacuum packing
machine and a strapping machine, a cash invoice for the purchase of a scale
from a Mumbai company, as well as a packing list and invoice dated August 23,
2010 for 402 boxes of coffee mugs from Unique Potteries in India.

[18]

Mr. Chan possessed documents regarding a marine container bringing
goods into Canada. The documents included an invoice from Unique Potteries, and
Maersk Line documentation from Mumbai dated October 27, 2010 relating to a shipping
container of 402 boxes of coffee mugs from Unique Potteries to Hong Kong. Mr. Chan
gave the CBSA Andy Laus name and telephone number as a contact person in
Vancouver. The CBSA agent called the number, and told Mr. Lau to come to
the airport. A man identifying himself as Mr. Lau appeared, but provided
identification in the name of Joe Lai (both Lau and Lai are accused).

[19]

A CBSA and police investigation began, and the five suspects were placed
under surveillance.

[20]

Around December 3, 2010: Bruce Lau received an Arrival Notice by fax
about a shipment about to enter Canada by sea. He then received a call from 
Mr. Wong
 (Mr. Chan)
advising him that the shipment was his. 
Mr. Wong
 and Mr. Kwok
went to the VTG office and paid two invoices for container delivery and fees in
cash, in an approximate amount of $700.00. Also around this time, 
Mr. Wong

inspected and leased a warehouse in Richmond on Viking Way (Viking Way
warehouse). Mr. Kwok was present when the lease was signed. They paid $5,200
cash, which included one months rent and the security deposit.

[21]

December 6, 2010: the five suspects met at a restaurant. Mr. Chan, Mr. Ng
and Mr. Kwok walked to the restaurant from the La Quinta Inn where all
three were staying, and Mr. Lau and Mr. Lai were seen driving in the
same vehicle to the restaurant.

[22]

December 7, 2010: the shipping container arrived at the Port of
Vancouver, Delta Port Terminal from Hong Kong. The container was transported to
the CBSA container inspection facility, searched, and found to contain 1,003.9
kilograms of ketamine. The ketamine was seized and replaced with sugar. Motion
detectors were placed in the boxes that had contained ketamine, and the
shipping container was cleared by Canada Customs and CBSA for a controlled
delivery.

[23]

December 8, 2010: after the shipping container cleared customs, VTG
issued an invoice for customs duty and customs GST. Mr. Chan, Mr. Kwok
and Mr. Ng were seen walking into a restaurant.

[24]

December 9, 2010: Mr. Kwok and Mr. Chan went to the VTG office
and paid the final invoice in cash, in the amount of $2,763.95. Bruce Lau
arranged for delivery and unloading of the shipment to the Viking Way warehouse.

[25]

On that same day, Mr. Lau, Mr. Lai and Mr. Ng were seen
at the food court in Oakridge Mall.

[26]

December 10, 2010: the container was moved from the CBSA inspection
facility in Burnaby to Delta Port where it was picked up and delivered to the Viking
Way warehouse. Mr. Chan and Mr. Kwok were at the warehouse awaiting
the delivery, and they made numerous calls to Mr. Ng. Mr. Lai and Mr. Lau
drove around the warehouse but did not leave the car. After the delivery was
completed, Mr. Kwok locked the warehouse and left with Mr. Chan in a
taxi.

[27]

December 11, 2010: Mr. Chan, Mr. Kwok and Mr. Ng went to
the Viking Way warehouse, and activated the motion detector placed by the
police in one of the boxes. Mr. Lau rented a cargo van, using his own name
and credit card.

[28]

The boxes were transported in the cargo van from the Viking Way
warehouse to another warehouse in Richmond, on Rowan Place (Rowan Place
warehouse). Mr. Lau drove the cargo van and Mr. Kwok supervised the
loading and unloading between the warehouses. The cargo van made several trips.

[29]

Mr. Lai arrived at the Viking Way warehouse in a Mercedes
automobile and went inside. Mr. Lai then drove Mr. Chan and Mr. Ng
away in the Mercedes. Mr. Lai, Mr. Chan and Mr. Ng were later
seen at the Rowan Place warehouse.

[30]

That afternoon, for approximately two hours, Mr. Kwok, Mr. Ng,
Mr. Lau and Mr. Chan remained inside the Rowan Place warehouse.
During this time, Mr. Lai was shopping at various stores, including London
Drugs. After several stops, Mr. Lai returned to the warehouse and picked
up Mr. Lau, Mr. Chan, Mr. Kwok and Mr. Ng and they went to
a restaurant. It was apparent that by this time they had found the substitution
of sugar.

[31]

They left the restaurant and returned to the Rowan Place warehouse and
loaded the boxes from the warehouse back into the van. Mr. Lau and Mr. Kwok
drove the cargo van to the Viking Way warehouse and unloaded the boxes back
into the Viking Way warehouse. This occurred one more time. Mr. Lai drove Mr. Chan
and Mr. Ng away from the Rowan Place warehouse. They were followed by
police and arrested in Mr. Lais car. Mr. Kwok and Mr. Lau were
simultaneously arrested at the Viking Way warehouse.

[32]

In the shopping bag in Mr. Lais car were packing tape, three box
cutters, scissors, multiple packages of latex gloves, and two weigh scales,
consistent with an intention to package the drugs. At the time of arrest, Mr. Kwok
had a key that opened the Viking Way warehouse.

[33]

The Viking Way warehouse contained the boxes that had contained ketamine,
which had been re-strapped with brighter strapping. Some boxes were opened and
had been inspected. At the Rowan Place warehouse, the police found discarded Styrofoam
and strapping material, a pill press machine, multiple plastic bags, scales, a
coffee grinder and a quantity of cellulose (a cutting or binding agent for
drugs). The police also found MDMA (N-methyl-3,4-methylenedioxy-amphetamine, also
known as ecstasy), methamphetamine and ephedrine, which are all drugs known to
be used to cut with ketamine.

The Nature of Ketamine

[34]

At the trial and sentencing hearing, two experts testified on the use
and abuse of ketamine. In addition, the Canada Gazette setting out the
regulation amendment that moved ketamine from the
Food and Drug Regulation
s,
C.R.C., c. 870, to the
CDSA
was filed as an exhibit (
Food and
Drugs Act
,

Regulations Amending the Food and Drug Regulations
(Ketamine) Canada Gazette Part II, Volume 139, No. 19). This document
outlined the uses and abuses of the drug. The drug is legally used as a
non-barbiturate anaesthetic in humans and animals, and in Canada, primarily
animals. It states:

Ketamine is commonly referred to as special k, kit kat,
and cat valium on the streets, and has become popular as a party or club
drug due to its dissociative effects; it creates the illusion of an out of
body experience. It is also used as a date rape drug. Ketamine seizures by
police have been increasing in recent years.



Canada is a signatory to United
Nations drug control conventions, and as such has an obligation to meet
international requirements. Although ketamine is not currently listed in any of
the United Nations drug control conventions, it has been recommended for
critical review by the World Health Organizations Expert Committee on Drug
Dependence with a view to determine if it should be added to the Schedules of
the Conventions. A number of countries have already elected to impose strict
controls over ketamine, including the United States, Australia, Belgium, Italy,
France, Greece, Luxembourg, and China.

[35]

Sergeant Rintoul testified during the trial that this amount of ketamine
could produce up to 10,000,000 doses of the drug at $5.00 per dose for a
maximum street value of $50 million dollars. Ketamine is used legally in Canada
primarily as an analgesic for veterinary use, and for children and the elderly.
It is used illegally as a party or recreational drug, sometimes in
combination with other drugs. He testified that ketamine is the number-one
drug of abuse amongst adolescents in China.

[36]

He also gave evidence about the nature of those involved in importing
and trafficking this amount of drugs. He testified that an employee would not
typically be privy to the entire scope of the operation. An employee would only
be informed of their specific role, to protect the entire operation from being
compromised in the event that the employee is compromised. Sergeant Rintoul
also testified that trust is paramount. He said that in cases involving a
significant financial investment, those organizing the operation would only involve
people they know and trust.

[37]

Mr. Pon, a toxicologist, testified at the sentencing hearing that
ketamine can give its user a euphoric, out-of-body experience. It is often
combined with MDMA. Ketamine, while not physiologically addictive, has been
known to exacerbate pre-existing mental illness, including schizophrenia, if
used for long periods. There are very few deaths linked with ketamine, and
usually they have been caused by ketamine used with other drugs. There are a
few instances in which people taking the drug have remained in a catatonic
state.

[38]

The Crown, relying on the passage from the Canada Gazette, pointed out
in its submissions the use of the drug as a date rape drug. None of the
appellants contested this characterization of the drug before the sentencing
judge.

[39]

The Crown also submitted that the appellants were members of a criminal
organization, which should be treated as an aggravating factor under s. 718.2(a)(iv)
of the
Criminal Code
,

R.S.C. 1985, c. C-46.

[40]

The appellants all denied that they were involved in a criminal
organization, and said the circumstances were more compatible with the concept
of a conspiracy.

Reasons of the Sentencing Judge

[41]

The sentencing judge concluded that ketamine was on the hierarchical
scale of Schedule I drugs just below heroin and cocaine. She recognized that
ketamine caused less harm than heroin and cocaine, but concluded that because
of its potential use as a date-rape drug, it was potentially very harmful to
the date rape victims.

[42]

The sentencing judge also concluded that long-term effects of ketamine
are not known, as it is a relative newcomer to the drug scene in Canada.

[43]

The sentencing judge seemed to accept the aggravating factors as set out
by the Crown: the quantity of drugs, that the three appellants were solely
motivated by profit, that none were users of ketamine, that ketamine is used by
youth, that none of the accused acknowledged the harm that the drug may cause,
that Mr. Kwok and Mr. Ng were involved in months of pre-planning,
that all three accused were part of a criminal enterprise, and that Mr. Lau
had a previous record. In response to the Crowns submission that ketamine is
not manufactured in Canada, she noted that the Canada Gazette identified seven
lawful manufacturers of the drug in Canada.

[44]

She concluded that there were no mitigating factors. Mr. Ngs bad
health was considered in the enhanced credit for pre-trial custody analysis.

[45]

The sentencing judge addressed the issue of criminal enterprise as
follows:

[90]      In my view, the evidence has established that Kwok,
Ng and Lau fit squarely within the definition of criminal organization set out
in Section 467.1(1) of the
Criminal Code
.
It is not a requirement
that it be proven for the purposes of sentencing
and s. 467.1(1) and
s. [718.2(a)(iv)], that each member of a criminal organization be
cognizant of every aspect of that criminal organizations activities, or that
any single member know the full extent of the organization. This aggravating factor
applies to these accused.

[Emphasis added.]

[46]

The sentencing judge conducted an extensive review of the sentencing case
law submitted to her, comparing each case with the facts of this case.

[47]

The sentencing judge analyzed the role of each appellant. She found that
while Mr. Laus position in the criminal enterprise hierarchy may have
been lower than that of some others, his role was not confined to being a mere
hired driver. She found that he knew he was handling a shipment of drugs. She
concluded:

[111]    Lai picked up Kwok and Ng at the Vancouver
International Airport in a green Mazda MPV after they had been allowed to enter
Canada. Lau was seen in company with Lai in and around the MPV on several
occasions subsequently, and prior to his arrest. On December 8
th
,
Lau drove the MPV and picked up Lai. The MPV was later seen parked at the
Oakridge Mall, and Lai, Lau, and Ng were together at the food court there. On
December 10
th
, the MPV was parked outside a restaurant on Main
Street. Lai, Lau and Wing Ho Chu were sitting together inside the restaurant.
Later that afternoon, as the container was being unloaded into the Viking Way
warehouse by the labourers provided by VTG with Chan and Kwok present, Lau was
driving Lai in the MPV as they watched the unloading. On December 11
th
,
Lau rented a cargo van, using his own credit card. He drove back and forth that
day between the Viking Way warehouse and the Rowan Place warehouse, as he and
Kwok transferred the boxes from one warehouse to the other. Lau was inside the
Rowan Place warehouse while Lai was out purchasing scales, packing tape,
packages of latex gloves, etc., and putting them in the trunk of his Mercedes.
Under the circumstances of this case, the only rational inference to be drawn
is that these items were to be used in re-packaging the Ketamine for
distribution. Lau, Ng, Chan and Kwok had been inside the Rowan Place warehouse
with the boxes for about two hours before they were picked up by Lai in his
Mercedes and taken to a restaurant for a group meeting. Lau was there with the
group for about an hour before they returned to the Rowan Place warehouse. Lau
made a couple of trips in the van, removing the boxes from the Rowan Place
warehouse and returning them to the Viking Way warehouse with Kwok. He was inside
the van and parked outside the Viking Way warehouse at the time of his arrest.
Some of the shipment boxes were inside the Viking Way warehouse. The boxes had
been separated by the color of the strapping, which differentiated the boxes
containing Ketamine and coffee mugs from those containing coffee mugs only. It
was Lau and Kwok who had brought the boxes back to the Viking Way warehouse and
who must have arranged them in this way. Some of the boxes had been opened and
the contents shifted. The Rowan Place warehouse was found to contain
considerable discarded Styrofoam, strapping, and packing material. The back
room contained a pill press, multiple ziplock plastic bags, scales, a coffee
grinder and small amounts of various drugs including MDMA, methamphetamine and
ephedrine.

[112]    Although Laus position in the criminal enterprise
hierarchy may have been lower than that of some of the others involved, he was
clearly a trusted member beyond merely handling and transporting the Ketamine.
He remained in the Rowan Place warehouse for hours with the others while the
boxes they thought contained the Ketamine must have been opened and the sugar
substitute discovered. He was part of the group present at the restaurant
immediately afterwards. It is reasonable to infer that a discussion took place
there about what to do after the sugar had been found instead of Ketamine,
given that the boxes were then immediately moved back to the Viking Way
warehouse. This was done by Lau and Kwok.

[113]    This criminal enterprise could not have been carried
out without someone acting in the role that Lau played over the course of
several days. Any criminal hierarchy involves those at the top, those at the
bottom, and others in between. Laus role was not as significant as that of
Kwok and Ng, but he was more than merely hired help at the very lowest level of
this group. His being with Lai without Kwok or Ng on several occasions, his
being present at what must have been an insiders meeting in the Rowan Place
warehouse when the sugar substitute was discovered, and then being at the
restaurant when the decision was made to hastily return the boxes to the Viking
Way warehouse, as well as his activities in moving the boxes from place to
place, are all indicative of his being firmly embedded as a mid-level
participant. It is also significant that it was Laus name and telephone number
that Chan gave to the CBSA officers when he was having difficulty gaining entry
into Canada after his arrival at YVR.

[114]    I find that Lau was a
member of a criminal organization, and that this is an additional aggravating
factor to be considered at his sentencing. Further, Laus previous criminal
convictions for production of a scheduled substance, theft of electricity, and
importing a scheduled substance, indicate that specific deterrence should be
given some significance at his sentencing. Denunciation and deterrence,
including specific deterrence in this instance, are the primary considerations
when sentencing Lau. The possibility of his rehabilitation must be allowed for.

[48]

She found the following with respect to Mr. Kwok:

[115]    Kwok was in India for the purpose of purchasing the
coffee mugs as cover for the importation of the Ketamine into Canada. He was
there at the same times as Chan and Ng, and played a key role in putting
together the shipment. On his entry into Canada, it was Kwok who was carrying
the shipping documents, the coffee mug invoices, packing lists, various emails
with innocent third parties facilitating the shipment, the hotel arrangements
for himself and Chan, and other records pertaining to this entire criminal
enterprise. After his arrival in Canada, he stayed with Chan and Ng in the same
hotel room, and was always in either their company or the company of others
associated with this criminal enterprise. He was the person who dealt with VTG
for customs clearance of the shipment and who paid in cash for services
provided. He was a participant in the leasing discussions with the landlord of
the Viking Way warehouse. The circumstances about Lau and Kwoks moving of the
boxes between the two warehouses and what was found in the Rowan Place
warehouse set out above pertain as equally to Kwok as they do to Lau.

[116]    I have not considered
Kwoks untruthful testimony at trial as an aggravating factor, but have
considered the factors identified in
Bhangal
that apply to Kwok at his
sentencing and the paramount considerations of deterrence and denunciation.
This criminal enterprise involved a high degree of planning, organization and
deliberation over a very long period of time. Kwok was a principal in this
criminal organization and its plan to import and traffic Ketamine. The evidence
from the Rowan Place warehouse and the trunk of the Mercedes indicate that he
was also a hands-on participant in the planned distribution of the Ketamine.
The only reason he was involved was for profit. The potential for financial
gain was massive. Kwoks conduct while in custody as evidenced by the North
Fraser Pre-Trial Centre work evaluation indicates he is a good candidate for
rehabilitation, and I take that into account in imposing sentence.

[49]

She made the following conclusions with respect to Mr. Ng:

[117]    Ng was in India at some
of the same times as Chan and Kwok. Ng was in physical contact with the
packaged Ketamine before it was shipped to Canada. While in Canada, he stayed
in the same hotel room with Chan and Kwok, and was seen constantly in their
company or in company with Lau and Lai. Ng was at the warehouse when the motion
detector hidden in the shipment was activated, and participated in the movement
of the boxes between the two warehouses. He was inside the Rowan Place
warehouse with the others on December 11
th
, and at the group meeting
at the restaurant that day. Upon his arrest, he was found to have a piece of
paper with Viking Way 2633 written on it in English. Many of my comments in
relation to Kwok about the degree of planning involved in this scheme and the
potential profit had it succeeded also apply to Ng. Ng was a principal in this
criminal organization and in the plan to import and traffic the Ketamine.

[50]

The sentencing judge summarized her conclusions at para. 118:

In summary:

(a) Ketamine falls somewhere below heroin and cocaine, but
above opium or doda in the spectrum of Schedule I drugs due to its unique
properties as a means to commit criminal offences against unsuspecting
ingesters of the drug;

(b) The amount of Ketamine in this case was approximately
1,000 kilos.

(c) Liquid Ketamine might be legally available in Canada, but
powdered Ketamine is not. This case involved powdered Ketamine that would not
otherwise have been available in Canada.

(d) The target for the Ketamine, had it been trafficked as
planned, was young people.

(e) The Ketamine was to be pressed into pills, likely
combined with other substances including methamphetamines, ecstasy or any of
the drugs found in the Rowan Place warehouse, such that users of the pills
would not know what they were ingesting.

(f) Lau, Kwok and Ng were solely motivated by profit.

(g) The value of the Ketamine might have been as much as $50
million.

(h) Kwok and Ng were equal principals in the criminal
organization and travelled to India from Hong Kong to obtain the means to
import the Ketamine into Canada, having engaged in a sophisticated scheme over
a period of many months planning. They acted far more than as mere couriers
bringing the Ketamine into Canada.

(i) Lau played a lesser but essential role once the Ketamine
was delivered to the warehouse and thereafter. He was Chans first contact in
Canada.

(j) Lau has been convicted previously of designated substance
offences.

(k) Lau, Kwok and Ng are all mature adults in late middle
age, with no addiction issues.

(l) None have shown or expressed any remorse or insight into
their actions.

(m) Lau, Kwok and Ng were part of a criminal organization.

(n) Laus bail terms since his release have not been
restrictive.

(o) Kwok and Ng have been in custody since their arrests.

(p) None have taken any steps
towards rehabilitation although Kwoks conduct while in custody supports an
inference he might be a good candidate for rehabilitation.

Circumstances of Each Offender

Mr. Kwok

[51]

Mr. Kwok is now 62 years old. He was born in Hong Kong. He admitted
he had a conviction for robbery, which he committed in Hong Kong when he was 15
years old. He is married and his wife and four children live in the Philippines.
He also has six grandchildren. He attained a grade 7 education, and has worked as
a restaurant waiter most of his life. He has liver and stomach problems and
requires a hip replacement. His work evaluation from the remand centre was
filed and indicated he was working well in the sewing department.

Mr. Ng

[52]

Mr. Ng is also 62 years old. He was born in China, but has lived
for many years in the Philippines. He has a primary school education. His
ex-wife and adult children live in the Philippines. He worked as a trader in
the Philippines, and moved to Hong Kong in 2000. He has no criminal record.

[53]

Mr. Ng testified to problems he has had in custody resulting from
injuries sustained in a fall from the sheriffs van while being transported
between court and the remand centre. He is in his cell more than 16 hours a
day. He has pain, he cannot sleep and has difficulty walking. He has diabetes,
he had a stroke in 2008 and he has high blood pressure. He has lost the vision
in one eye due to diabetes, and has had four surgeries.

[54]

He expressed remorse and shame. He said he has not contacted his children
because he is ashamed. His counsel said that he was remorseful because he was
going to spend time in jail.

Mr. Lau

[55]

Mr. Lau is a Canadian citizen born in China. He moved to Canada in
1990. He is now 46 years old, and is married with four children. He works in
the construction industry. He has a prior criminal record: in 2000 he was
convicted of production of a scheduled substance and sentenced to 8 months in
jail, and of theft of electricity and sentenced to 30 days concurrent. In 2001
he was convicted of importing a scheduled substance and sentenced to 18 months
to be served conditionally in the community and one years probation. He owns
his own home with his wife. He spent 11 days in pre-trial custody before being
released on judicial interim release.

Position of the Parties

[56]

The Crowns position is that there is no basis on which to disturb the
sentences, except for the additional credit for pre-trial custody, in
accordance with the decision in
Summers
.

[57]

Mr. Lau submits that his sentence should be reduced to three years.

[58]

Mr. Ng submits that his sentence should be reduced to eight years
less time served in pre-trial custody on a 1.5:1 basis.

[59]

Mr. Kwok submits that his sentence should be reduced to eight years
less 27 months served in pre-trial custody on a 1.5:1 credit, albeit he sought
a sentence of eight to ten years at trial.

Standard of Review

[60]

An appellate court is to accord great deference to the sentencing judge.
As Lamer C.J.C. said in
R. v. C.A.M.
, [1996] 1 S.C.R. 500:

[90]      Put simply, absent an error in principle, failure
to consider a relevant factor, or an overemphasis of the appropriate factors, a
court of appeal should only intervene to vary a sentence imposed at trial if
the sentence is demonstrably unfit. Parliament explicitly vested sentencing
judges with a
discretion
to determine the appropriate degree and kind of
punishment under the
Criminal Code
.

[Emphasis in original.]

Analysis

[61]

I propose to first address two of the common legal errors alleged: the
classification of ketamine in terms of its level of dangerousness and whether
it is a date rape drug, and the existence of a criminal organization. Then I
will turn to the individual grounds. I will deal with the submissions regarding
the judges conclusion that there were no mitigating factors under the
individual grounds. I will then consider whether the sentences are demonstrably
unfit, and finally I will address the pre-trial custody issue.

[62]

The appellants submit that the sentencing judge erred in finding certain
matters as aggravating factors including that ketamine was a date rape drug
and that the appellants were involved in a criminal organization.

[63]

The Crown has the burden of proving aggravating factors beyond a
reasonable doubt in a sentencing hearing, but this onus is only engaged when
the factor is clearly disputed by the accused. This principle is identified in
R.
v. Gardiner
,

[1982] 2 S.C.R. 368 and
R. v. Lee
, 2011 BCCA 73 and
is codified in s. 724 of the
Criminal Code
:

724 (3) Where there is a dispute with respect
to any fact that is relevant to the determination of a sentence,

(a)

the court shall request that evidence be adduced as to the existence of
the fact unless the court is satisfied that sufficient evidence was adduced at
the trial;

(b)

the party wishing to rely on a relevant fact, including a fact
contained in a presentence report, has the burden of proving it;

(c)

either party may cross-examine any witness called by the other party;

(d)

subject to paragraph (
e
), the court must be satisfied on a
balance of probabilities of the existence of the disputed fact before relying
on it in determining the sentence; and

(e)

the prosecutor must establish, by proof beyond a reasonable doubt, the
existence of any aggravating fact or any previous conviction by the offender.

Classification of the drug Ketamine

[64]

Ketamine is a Schedule I drug, having been transferred to Schedule I by
Federal Regulation in 2005. Other drugs in Schedule I include heroin, cocaine, MDMA,
methamphetamine, GHB, morphine and oxycodone. The maximum penalty for both
possession for the purpose of trafficking and importing Schedule I drugs is
life imprisonment (
CDSA ss.
5-6). Some Schedule I drugs are
available by prescription, including ketamine. Others are completely prohibited
by law.

[65]

The evidence before the sentencing judge from Sergeant Rintoul and Mr. Pon
indicated that ketamine is an anaesthetic that causes dissociation, a euphoric,
out-of-body experience in the user. It is commonly used as a party drug, and
is often combined with MDMA. In rare circumstances, prolonged use of ketamine
can exacerbate pre-existing mental illness, schizophrenia, and cause relapses
in hallucinations, although Mr. Pon could not say whether ketamine was a cause
of these illnesses or if the illnesses were already underlying.

[66]

Ketamine is not physiologically addictive. There have been few deaths
associated with ketamine. Ketamine is frequently used with other drugs, such as
alcohol, GHB and MDMA, and the seriousness of the effects is elevated when
combined. There are a few instances when a ketamine user has remained in a catatonic
state.

[67]

As noted above, the Regulatory Impact Analysis Statement prepared for
the transfer of ketamine from Schedule F of the
Food and Drug Regulations
to the
CDSA
was filed as an exhibit in the sentencing hearing and relied
on by the Crown. For ease of reference, I will set out the relevant part again:

Ketamine is commonly referred to
as special k, kit kat, and cat valium on the streets, and has become
popular as a party of club drug due to its dissociative effects; it creates
the illusion of an out of body experience. It has also been used as a date
rape drug. Ketamine seizures by police have been increasing in recent years.

[68]

The Crown alleged that ketamine was a date rape drug, and this factor
was not challenged or disputed by any of the appellants.

[69]

In my view, there was a foundation of evidence before the sentencing
judge in the
viva voce
evidence before her, and the exhibits filed, to
find that ketamine is used as a date rape drug and that it is a drug that can
cause serious harm to the user.

[70]

In addition, there was also evidence supporting the conclusion that the
use of the drug is increasing, predominately among young people. There was a
sufficient body of evidence for the sentencing judge to consider ketamine a
dangerous drug, particularly since other harmful cutting drugs, including
MDMA, were found with the ketamine.

[71]

I would not accede to this ground of appeal.

Criminal organization as an aggravating factor

[72]

All three appellants, however, contested the Crowns allegation that
they were members of a criminal organization. They submit that the sentencing
judge erred in her conclusion in that regard.

[73]

A criminal organization is defined in s. 467.1(1) of the
Criminal
Code
:

467.1
(1) The following
definitions apply in this Act.

criminal organization means a group, however
organized, that

(a)

is composed of three or more persons in or outside Canada; and

(b)

has as one of its main purposes or main activities the facilitation or
commission of one or more serious offences that, if committed, would likely
result in the direct or indirect receipt of a material benefit, including a
financial benefit, by the group or by any of the persons who constitute the
group.

(c)

It does not include a group of persons that forms randomly for the
immediate commission of a single offence.

[74]

Section 718.2(a)(iv) of the
Criminal Code
makes being a member of
a criminal organization an aggravating factor in sentencing:

718.2
A court that imposes
a sentence shall also take into consideration the following principles:

(
a
) a sentence should be increased or
reduced to account for any relevant aggravating or mitigating circumstances
relating to the offence or the offender, and, without limiting the generality
of the foregoing,



(iv) evidence that the offence was committed
for the benefit of, at the direction of or in association with a criminal
organization,



shall be deemed to
be aggravating circumstances;

[75]

The sentencing judge concluded that Mr. Kwok and Mr. Ng were involved
in months of pre-planning, that all three accused were part of a [sic] inner
circle of trust in relation to the criminal enterpriseand that the commission
of these offences involved a criminal organization (2013 BCPC 53 at para. 68).

[76]

She
concluded that:

[90]      In my view, the
evidence has established that Kwok, Ng and Lau fit squarely within the
definition of criminal organization set out in Section 467.1(1) of the
Criminal
Code
. It is not a requirement that it be proven for the purposes of
sentencing and s. 467.1(1) and s. 718.2(8)(iv), that each member of a
criminal organization be cognizant of every aspect of that criminal
organizations activities, or that any single member know the full extent of
the organization. This aggravating factor applies to these accused.

[77]

While the sentencing judge referred to the
Criminal
Code
provisions on criminal organizations, and made brief mention of the
defence position that this was more akin to a conspiracy than a criminal
organization, she performed no other analysis to the question of whether the
conduct of the group in question amounted in law to a criminal organization or
whether the Crown had proved beyond a reasonable doubt this aggravating factor
in sentencing.

Definition
of criminal organization

[78]

In order to establish there is a criminal organization as defined by
s. 467.1(1) of the
Criminal Code
, the Crown must prove, beyond a
reasonable doubt, the following:

1.

There
is a group of three or more persons, however organized;

2.

The
group has, as one of its main purposes or activities, the facilitation or
commission of one or more serious crimes; and

3.

The
facilitation or commission of the crime or crimes, if committed, would likely
result in the direct or indirect receipt of a material benefit by the group or
any member of the group.

[79]

The term criminal organization has been
constitutionally challenged several times. It has been found to be compliant
with ss. 2(d) and 7 of the
Charter
(
R. v. Terezakis
, 2007
BCCA 384, leave to appeal to S.C.C. refused, 226 C.C.C. (3d) vi;
R. v.

Ward
,
[2008] O.J. No. 5743 (S.C.J.)).

[80]

In
R. v. Venneri
, 2012 SCC 33, the Court adopted a
purposive approach to the interpretation of criminal organization. When
considering the statutory definition of criminal organization, rather than
using a check-list definition of characteristics common to criminal entities,
it is preferable to focus on the goal of the legislation. The goal of the
legislation is to identify and undermine groups of three or more persons that
pose an elevated threat to society due to the ongoing and organized association
of their members (
Venneri
at paras. 38-40).

[81]

Courts must not limit the scope of the provision to the
stereotypical model of organized crime, i.e., the highly sophisticated,
hierarchical and monopolistic model (
Venneri
at para. 41). At para. 36
of
Venneri
the Court states:

Working
collectively rather than alone carries with it advantages to criminals who form
or join organized groups of like-minded felons. Organized criminal entities
thrive and expand their reach by developing specializations and dividing labour
accordingly; fostering trust and loyalty within the organization; sharing
customers, financial resources, and insider knowledge; and, in some
circumstances, developing a reputation for violence. A group that operates with
even a minimal degree of organization over a period of time is bound to
capitalize on these advantages and acquire a level of sophistication and
expertise that poses an enhanced threat to the surrounding community.

[82]

However,
groups of
individuals that operate on an
ad hoc
basis with little or no organization
cannot be said to pose the type of increased risk contemplated by the regime (
Venneri
at para. 40). At paras. 29 to 31 of
Venneri
,

the
Court addresses the meaning of however organized:

[29]       by insisting that criminal groups
be organized, Parliament has made plain that some form of structure and
degree of continuity are required to engage the organized crime provisions that
are part of the exceptional regime it has established under the Code.

[30]      Qualifying organized in s. 467.1
by however cannot, as a matter of language or logic, be taken to signify that
no element of organization is required at all. Organized necessarily connotes
some form
of structure and co-ordination, as appears from the definition
of organized in the
Shorter Oxford English Dictionary on Historical
Principles
(6th ed. 2007), vol. 2:

Formed into a whole
with
interdependent
parts;
coordinated
so as to form an orderly
structure
;
systematically arranged. [Emphasis added; p. 2023.]

In French, the definitions in
Le Grand Robert
de la langue française
(electronic version) are consistent with this: it
defines the noun 
organisation
 as the [translation] [a]ction of
organizing (something); the result of such an action and the verb 
organiser

as [t]o give a specific
structure
or composition, order, or method of
functioning or administration to (emphasis added).

[31]      However and organized ― the
two words read together, as they are written ― are complementary and not
contradictory. Thus, the phrase 
however organized
 is meant to capture
differently structured criminal organizations. But the group must nonetheless,
at least to some degree, be organized. Disregarding the requirement of
organization would cast a net broader than that intended by Parliament.

[Emphasis original.]

[83]

In
R. v. Sharifi
, [2011] O.J. No. 3985 (S.C.J.),
the Court found that a loose grouping of individuals with a few people
directing drug trafficking activities was not a criminal organization. The Court
made this finding based in part on the fact that there was no structure to the
group, no name, no evidence that the individuals considered themselves to be
members of a group or organization, no evidence or records of their activity,
and because it was not possible to say how the individuals were going to
benefit each other (
Sharifi
at para. 38). The approach in
Sharifi
was cited with approval by the Supreme Court of Canada in
Venneri
at
para. 27.

[84]

The phrase main purposes or activities in the definition of criminal
organization indicates that a person will be part of a criminal organization
regardless of whether the group also has legitimate purposes or activities.
This is to acknowledge that criminal organizations often blend criminal
operations with legitimate operations (
Terezakis
at para. 59).

[85]

Regarding the term facilitation, under s. 467.1(2)
of the
Criminal Code
, facilitation of an offence does not require
knowledge of a particular offence the commission of which is facilitated, or
that an offence actually be committed.

[86]

The Court in
R. v. Lindsay
, 2005 CanLII 24240

(Ont.
S.C.J.)

found that like the concept of conspiracy, facilitation is
broader than the actual commission of an offence, and does not require that a
substantive offence actually be committed (see para. 947). In addition, in
upholding the trial decision, the Court in
R v.
Lindsay
,
2009 ONCA 532 stated
that 
facilitate has a clear meaning:

[23]      It is
defined in
The Concise Oxford

English Dictionary
(10th ed.) to
mean, make easy or easier.
Blacks Law Dictionary
(7th ed.) indicates
that the word facilitation has a recognized meaning in the context of
criminal law, as follows: The act or an instance of aiding or helping;
esp., in criminal law, the act of making it easier for another person to commit
a crime.

[87]

Lastly, the phrase material benefit under s. 467.1(1) of
the
Criminal Code
specifically includes financial benefit, but is not
limited to it (see
R. v. Lindsay
(2004),

70 O.R. (3d) 131(S.C.J.)
at para. 58;
R. v. Pereira
, 2008 BCSC 184 at para. 162).

[88]

In the context of sentencing,
there are several cases in which the Crown alleged the aggravating
factor of a criminal organization for sentencing purposes, without charging a
criminal organization offence under ss. 467.11-13 of the
Criminal Code
.
In two such cases,
R. v. Sipes
,

2013 BCSC 383 and
R. v. Payne
,
2006 BCSC 1651 (affd

2007 BCCA 541), the Court made a criminal
organization finding. However, both
Sipes
and
Payne
involved
known gangs, and thus the issue was fairly straightforward.

[89]

For this case, I find the analysis in
R. v. Dritsas
,
2013 MBQB 186 helpful. Dritsas
was found guilty of six drug-related
charges (2012 MBQB 339, affd in 2014 MBCA 85). He was a kilogram-level cocaine
trafficker. Trial evidence came from wiretaps, surveillance and experts on drug
trafficking, drug hierarchies, and the meaning of coded language. The judge
found that Dritsas conspired with four others to traffic cocaine. The group arranged
for the delivery of cocaine, obtained the necessary payments, and processed the
cocaine over a roughly four-month period (May 20−Sept 22, 2010). Dritsas
was not charged with a criminal organization offence, but at the sentencing
hearing the Crown requested that the aggravating factor under s. 718.2(a)(iv)
be considered
:

[19]      It was
argued by the Crown that Dritsas was the boss of his own criminal
organization within the Winnipeg drug hierarchy. Examples of his leadership
role emanated from the intercepted communications at trial (Ex. 2, tabs 75 and
76) where he had indicated that he could call his own shots in terms of supply,
as well as decide when to distribute the cocaine, the price level, the meeting
places and the collection of the sale proceeds. Dritsas expressed a similar
leadership role in his conversations with his father related to the
distribution of marijuana. Dritsas also discussed, as captured on the
intercepted communications, that he had varied sources of cocaine at a time
when the Lopez supply was thought to have been compromised. There was no
evidence at trial that alternate suppliers were ever utilized. Dritsas had a
number of regular customers/dealers within his organization, as was also
evidenced from the intercepted communications with individuals such as James
Gerwing, Ronald James, and Malcolm Amos.

[90]

The Court found that Dritsas organization did not
constitute a criminal organization:

[27]      This issue must be evaluated within
the context of whether Dritsass actions constituted a criminal organization
type of activity.
Dritsas was never charged with a criminal organization
offence with respect to his matter, nor did he have a known gang affiliation.
Further, of particular importance in distinguishing a criminal organization
from a conspiracy is the level of structure, continuity, and organization as
was highlighted in the
Venneri
decision (at para. 35). There are
generally certain characteristics of a criminal organization, which include (at
para. 36):

▪
developing specializations and
dividing labour;

▪
fostering trust and loyalty;

▪
sharing customers, financial
resources, and insider knowledge;

▪
in some circumstances,
developing a reputation for violence.

This case shares
some of the features of Venneri where the accused was found to be an associate
of a criminal organization operated by his supplier and not a member.

[28]      I am satisfied that the
Criminal
Code
definition of a criminal organization and the comment from
Venneri
encapsulate certain of Dritsass activities in the context of this case. There
was a loose hierarchic structure with a division of labour. Additionally, there
was an evident use of coded language and a goal of advancing economic or
otherwise personal interests through criminality.
However, I am not
satisfied that Dritsass organization satisfied sufficient attributes of a
criminal organization as were set out in
Venneri
so as to attract a
consideration of involvement in a criminal organization as an aggravating
factor for sentencing purposes.

[Emphasis added.]

[91]

In addition, in
Sharifi
, the accused was
charged on 14 counts related to cocaine trafficking and weapons offences. Two
of the counts were for criminal organization offences.

[92]

Sharifi was convicted on the counts related to the
drug offences, weapons offences, and conspiracy, but acquitted on the counts
related to the criminal organization offences. In finding that a criminal
organization was not established, the Court stated:

[38]      In my view, the evidence presented at
this trial did not establish the existence of an organization regardless of how
flexible that definition may be in the
Criminal Code
. The evidence or
lack of evidence allows for the following conclusions:

a) A group of individuals were involved in
trying to obtain cocaine during a short timeframe November, December, January
2006/2007.

b) It is not possible to say how they were
going to benefit each other.

c) There was no structure to this group.

d) It cannot be said with any certainty who 20
exactly knew who, or for that matter who was responsible for what.

e) There was no name to the group, no evidence
that they considered themselves to be members of a group or organization.

f) There was no evidence of any records of
their activity.

g) I cannot say the accused thought he was
going to benefit anyone in the group or only going to benefit himself.

h) Finally, there is no evidence to support the
proposition that the accused committed the predicate offence with the intent
to do so in association with the group he knew had the composition of a criminal
organization

[39]      In order
to convict on the criminal organization counts on the evidence presented at
this trial, I would have had to conclude that a conspiracy to commit an offence
has all of the constituent elements required to support a conviction under
s. 467.11 and 467.12. In my view, justice demands that there has to be
some meaning to the term organization which extends beyond what was proven in
this case. Therefore, there will be findings of not guilty with respect to
counts 3 and 4.

[93]

In the present case, there is no evidence of a criminal
organization except the appellants, Mr. Lai, and Mr. Chan. In other
words, there is no evidence of a known gang affiliation or a larger group of
individuals involved in this enterprise. Therefore the Crown would have to
prove that these three to five people were a criminal organization in and of
themselves, (or that Mr. Chan, Ng and Kwok were a criminal organization
and Mr. Lau was associated sufficiently to bring him within the
Code
definition). The evidence suggests no more than Mr. Chan, Mr. Kwok
and Mr. Ng came together for the purpose of importing ketamine into Canada,
and that Mr. Lai (allegedly, as he has not been tried) and Mr. Lau
assisted them when they arrived and were involved in preparing the drug for
distribution.

[94]

There is no evidence that this group had any form
or structure or degree of continuity beyond this one incident. Therefore, in
my respectful view, the Crown did not prove beyond a reasonable doubt that they
formed a criminal organization.

[95]

In my respectful view, the sentencing judge erred
when she found as an aggravating factor that these appellants fit into the
definition of criminal organization.

[96]

Once an error of law has been found, the next
question is whether the error led the sentencing judge to impose a demonstrably
unfit sentence (
R. v. Johnson
(1996), 84 B.C.A.C. 261 at para. 37).
I will address this once I discuss the individual issues.

Individual issues and mitigating
factors

[97]

Mr. Kwok submits that the sentencing judge
found his lack of rehabilitative efforts to be an aggravating factor, when he
did not have any opportunity to take such steps. The sentencing judge said this
about Mr. Kwoks rehabilitative steps, at para. 118:

None have taken any
steps towards rehabilitation although Kwoks conduct while in custody supports
an inference he might be a good candidate for rehabilitation.

[98]

The sentencing judge clearly treated his conduct as
a mitigating rather than aggravating factor. There is no error as alleged.

[99]

Next, Mr. Kwok says that the sentencing judge
took into account his robbery conviction, put forward by his counsel not the
Crown, committed when he was 15 years old. The reasons reveal that the
sentencing judge mentioned this record in her summation of Mr. Kwoks
circumstances, but she did not rely on it when imposing his sentence. There is
no error as alleged.

[100]

Mr. Kwok submits that the sentencing judge erred
in finding that there were no mitigating factors, as she failed to give any
mitigating effect to his age, medical condition and lack of related criminal
record. Mr. Kwok is in his early 60s. The sentencing judge concluded that
he was a mature adult, and did not have the mitigating factor of youth in his
favour. She noted that he did not have a drug-related criminal record. In my
view, the weight to be given to Mr. Kwoks age, medical circumstances and
lack of a related criminal record was for the sentencing judge to determine.
She was well aware of his age and his medical condition. I do not consider her
decision to place little, if any, weight on these as factors in mitigation to
be an error in the context of this large drug-importation operation.

[101]

Mr. Ng submits that the sentencing judge erred
by failing to find that he had expressed remorse, when his counsel provided
that submission. His counsel said:

MR. BAKER:  He hasnt -- he
has not been in contact with them [his family]. Hes ashamed. Hes ashamed and
hes very remorseful and hes obviously remorseful because hes going to spend
some time in jail; hes been in jail for a long time. Hes also expressed to me
his great regret at becoming involved in something like this. He -- so he hasnt
-- he hasnt talked to his -- to his wife and kids about it. Hes not sure if
they know he was -- hes here. He was separated from his wife in 2006 so that
has some -- his -- currently still is legally his wife

[102]

When remorse is considered as a mitigating factor,
it is generally expressed as being sorry for the harm caused as a result of ones
actions, not remorse because you are going to jail or remorse because you have
brought shame to your family (certainly a laudable emotion, but not a
mitigating factor). Finding no remorse when there has been an expression of
remorse could, in some circumstances, be a misapprehension of the evidence by
the judge, and thus an error. In this case, however, the expression of remorse
was not particularly aimed at being sorry for harm done, but rather bad
personal results. Thus, in my view, the sentencing judge did not err in failing
to give effect to this expression of remorse.

[103]

Second, Mr. Ng submits that the sentencing
judge erred in her finding that he was not lower on the hierarchy than Mr. Kwok.
The sentencing judge made the following findings of fact with respect to Mr. Ng,
at para. 117:

Ng was in India at some of the
same times as Chan and Kwok. Ng was in physical contact with the packaged
Ketamine before it was shipped to Canada. While in Canada, he stayed in the
same hotel room with Chan and Kwok, and was seen constantly in their company or
in company with Lau and Lai. Ng was at the warehouse when the motion detector
hidden in the shipment was activated, and participated in the movement of the
boxes between the two warehouses. He was inside the Rowan Place warehouse with
the others on December 11th, and at the group meeting at the restaurant that
day. Upon his arrest, he was found to have a piece of paper with Viking Way
2633 written on it in English. Many of my comments in relation to Kwok about
the degree of planning involved in this scheme and the potential profit had it
succeeded also apply to Ng. Ng was a principal in this criminal organization
and in the plan to import and traffic the Ketamine.

[104]

In my opinion, these findings of fact are supported
by the evidence. There is no error on this basis.

[105]

Mr. Ng submits that the sentencing judge
failed to consider his lack of criminal record in mitigation. The sentencing
judge took into account Mr. Ngs lack of criminal record. She did not
specifically identify it as a mitigating factor, but she was alive to the fact
he had no record. In these circumstances, I do not consider that the sentencing
judge erred in this regard.

[106]

Mr. Lau submits that the sentencing judge
erred by not giving effect to his lessor role in the operation. He submits
that he was just hired help and not involved in the operation.

[107]

The sentencing judge gave lengthy reasons for her
conclusions regarding Mr. Lau, which I have reproduced at para. 47
above (2013 BCPC 53 at paras. 111-114).

[108]

In my opinion, her conclusion that, while lower on
the hierarchy, Mr. Lau was more than hired help is supported by the
evidence, and there is no error in this regard.

[109]

Mr. Lau also submits that the sentencing judge
failed to give effect to the fact he was not involved in the actual importation
of the drugs. In his view, Mr. Kwok and Mr. Ngs sentences of 12
years for possession for the purpose of trafficking take into consideration
their importation of the ketamine as an aggravating feature. He submits that
the sentence of 10 years imposed on him does not adequately take into account
the differential in responsibility. Mr. Lau overlooks the fact that he had
two drug-related criminal convictions, which weigh against him. In addition, in
my view, the sentencing judge gave effect to the difference between the
appellant in that she sentenced Mr. Kwok and Mr. Ng to 16 years each
for the importation offences.

Is The Sentence Demonstrably
Unfit?

[110]

There are two considerations in this part of the
analysis. The first is the effect of the legal error committed by the
sentencing judge and the second is whether, regardless of the legal error, the
sentence is so outside the range of similar sentences, it is demonstrably unfit
(
R. v. Nasogaluak
,

2010 SCC 6).

[111]

The principles of sentencing are codified in the
Criminal
Code
and in the
CDSA:

Criminal
Code

718. The fundamental purpose of sentencing is
to contribute, along with crime prevention initiatives, to respect for the law
and the maintenance of a just, peaceful and safe society by imposing just
sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons
from committing offences;

(c) to separate offenders from society, where
necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to
victims or to the community; and

(f) to promote a sense of responsibility in
offenders, and acknowledgment of the harm done to victims and to the community.



718.1 A sentence must be proportionate to the
gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall
also take into consideration the following principles:

(a) a sentence should be increased or reduced
to account for any relevant aggravating or mitigating circumstances relating to
the offence or the offender,



(b) a sentence should be similar to sentences
imposed on similar offenders for similar offences committed in similar
circumstances;

(c) where consecutive sentences are imposed,
the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of
liberty, if less restrictive sanctions may be appropriate in the circumstances;
and

(e) all available
sanctions other than imprisonment that are reasonable in the circumstances
should be considered for all offenders, with particular attention to the
circumstances of aboriginal offenders.

Controlled Drugs and Substances Act

10. (1) Without restricting the generality of
the
Criminal Code
, the fundamental purpose of any sentence for an
offence under this Part is to contribute to the respect for the law and the
maintenance of a just, peaceful and safe society while encouraging
rehabilitation, and treatment in appropriate circumstances, of offenders and
acknowledging the harm done to victims and to the community.

(2) If a person is convicted of a designated
substance offence for which the court is not required to impose a minimum
punishment, the court imposing sentence on the person shall consider any
relevant aggravating factors including that the person



(b) was previously convicted of a designated
substance offence;



[112]

Importing drugs into Canada is more serious on the
scale of culpability than trafficking drugs (
R. v. Saulnier
(1987), 21
B.C.L.R. (2d) 232 (C.A.) at 235). The quantity of drug is also an important
factor (
Saulnier
at 237).

[113]

There are no cases involving the importation of
ketamine of this quantity. Setting a sentencing range for this offence is a matter
of first impression. The maximum penalty for importing and trafficking any
Schedule I offence is life imprisonment.

[114]

Ketamine is a less dangerous drug than heroin or
cocaine. It is perhaps closest to MDMA (or ecstasy), which is also a Schedule I
drug. It appears to be more harmful to health than marihuana, a Schedule II drug.

[115]

To establish a range of sentence for ketamine, I
will examine sentences imposed for other drug offences. I start with the
marihuana cases. I examined only cases involving large quantities of marihuana
in order to have some semblance of similarity with the present offences. Normally,
this Court looks to its own decisions to ascertain a range of sentence, and
failing that, cases within British Columbia as they reflect the attitude of the
community. When there is a dearth of case law dealing with the appropriate
range of sentence, this Court will look to decisions in other provinces for
assistance, as I have done here.

[116]

In
R. v. Jesson & Matthews
,

[1982]
B.C.J. No. 914 (C.A.), the offenders pleaded guilty to conspiracy to
traffic 1,200 lbs of marihuana. They were involved with several others to
import marihuana from Thailand via Manila. Jesson and Matthews were not
involved directly with the 1,200 lbs, but were to be distributors of the drugs.
They were each sentenced to 2.5 years, which was upheld on appeal.

[117]

In
R. v. Joys and Baker
(19 February 1993),
Vancouver CC900244 (B.C.S.C.), the two offenders were convicted of importing 22
tons of marihuana. They were seen to be at a lower level of the drug operation;
Joys owned the boat used to import the drugs to Canada and Baker was a crew
member. The trial judge sentenced Joys to six years and Baker to four years.

[118]

In
R. v. Mai
, 2005 BCCA 615, the offender
received two years for importing 1,728 kilograms of marihuana. The enterprise
was planned and premeditated. Mai was on a lower level than his co-accused, who
received three years. Mai had a criminal record for possession of a handgun.
His sentence was reduced to two years less one day to permit him to appeal his
deportation order.

[119]

In
R. v. Guilbride
,

2006 BCCA 392,
the appellants were convicted of conspiracy to import 12 metric tonnes of
cannabis resin. Sentences of six, five, four, three and a half and two and a
half years were imposed depending on the degree of involvement. Six years was
the sentence imposed on the principal behind the operation, Sanford Hately.
Hately was the owner and captain of the fishing boat that was used in the
importation. Crown appeals from these sentences were dismissed.

[120]

I turn next to sentences imposed in cases involving
other Schedule I drugs.

[121]

Conspiracy to import cocaine draws much higher
sentences. For example, in
R. v. Bengert
(1979), 52 C.C.C. (2d) 100
(B.C.S.C.) (sentence of one co-accused, Ponak, upheld in
R. v. Ponak
(1981),
61 C.C.C. (2d) 60 (B.C.C.A.)), the accused were convicted of conspiracy to
import large amounts of cocaine. The trial judge concluded that the group engaged
in organized crime. The ring leaders, Robertson and Zamai were sentenced to
20 years each and a fine of $50,000. The next tier of culpability consisting of
Bengert, Ferron, Jeffries and Ponak were sentenced to 14 years, Perry and
Layman to eight years and Dupuis to four years. Most of them had been in
custody for a year or more prior to trial.

[122]

In
R. v. LePage
, 2010 BCCA 249, the
appellants Oliynyk and LePage were convicted of conspiracy to import and
conspiracy to traffic in 32 kilograms of cocaine. Oliynyk had a previous drug
conviction where he received a ten-year sentence in the United States. LePage had
no record. Sentences of 18 years and 12 years respectively were upheld on
appeal.

[123]

In
R. v. Epp
, 2006 BCCA 570, this Court
reduced the accuseds 14-year sentence to 10 years for importing 126 kilos of
cocaine in his propane tanker truck. The appellant had no criminal record, it
was accepted he was the courier, and this was his first time trying to bring
drugs across the border.

[124]

In terms of cases involving MDMA (ecstasy) and
ketamine, in
R. v. Ling
,

2014 ONCA 808, the Court upheld a 16-year
sentence for Ling and 14 years for Jian and Shi for possession for the purpose
of trafficking and production of ketamine, MDMA and methamphetamine. The Court
identified this as one of the two largest drug labs seen in Canada. At the time
of arrest there was $12.2 million worth of drugs on the premises. The Court pointed
to the danger of methamphetamine as an addictive drug, and concluded that MDMA
and ketamine are less addictive, but still dangerous to human health.

[125]

In
R. v. Ranger
, 2014 ABCA 50, the appellant
was found in possession of $37,000, plus 190 grams of cocaine, 66 grams of
methamphetamine, 36 grams of ketamine, and 179.5 pills of ecstasy. The Court
upheld a five-year sentence (reduced from 6 years on the basis of the totality
principle), in relation to the drug charges. Ranger received an additional
three years consecutive for a car chase and attempt to flee the scene, one year
consecutive for property offences, and 6 months consecutive for non-compliance
with court orders for a global sentence of 9.5 years.

[126]

In
R. v. Pabla
,

2013 BCSC 1588, Mr. Pabla
was sentenced to two years less one day for conspiracy to produce and
production of MDMA, then a Schedule III drug with a maximum sentence of ten
years. He was found with 14.3 kilograms of controlled substances, 657.5 grams
of mixed MDMA, ketamine, caffeine, lidocaine and procaine, 6.9 kilos of MDMA
tablets (18,618 tablets) and 19.5 kilograms of buffering agents. Pabla was a worker
in the pill press operation, not a leader, and he was under 20 years old. The
sentencing judge cited his youth, mental health challenges, remorseful attitude
and lack of criminal record as mitigating factors.

[127]

In
R. v. Bamdad
, 2013 BCCA 87, this Court
upheld a six-year sentence for offering to sell 100 kilograms of MDMA, plus 3
years consecutive for possession of red phosphorus, a precursor used in the
production of amphetamines and methamphetamine, but not MDMA. The global
sentence was reduced to eight years to take into account pre-trial custody.

[128]

An examination of the case law suggests that the
sentencing judge in the present case appears to have imposed sentences closer
to the range for cocaine offences. The sentences in my respectful opinion are
unfit as they are closer to the range of importing cocaine, a more dangerous
drug than to MDMA, which shares more similarities with ketamine. In addition,
the sentencing judge erred in concluding that these appellants were involved in
a criminal organization as an aggravating factor under s. 718.2(a)(iv) of
the
Criminal Code
. Having said this, these are still very serious
offences. There was an enormous amount of ketamine, 1,000 kilograms, brought
into this country. Plus, it was a highly sophisticated and planned importation
of the drugs into Canada. The appellants were in possession of material that
would turn the ketamine into pills with other drugs mixed into them. In other
words, they were in a position to set up a pill-press operation. The
ketamine, at street value, was worth up to $50 million.

[129]

There is no accepted evidence to suggest that Mr. Kwok
or Mr. Ng were anything other than the leaders in the group, and that Mr. Lau,
although on a lower level of the operation, was involved in more than simply
driving them around. He was seen meeting with the others in restaurants and
travelling with them around the Lower Mainland. In addition, Mr. Lau had a
related criminal record.

[130]

Ketamine does not have the addictive qualities of
heroin or methamphetamine, but it is still dangerous to the health of the user.
In addition, it is dangerous to the unsuspecting user as a date-rape drug.

[131]

In my view, the sentencing judge erred when she
imposed the sentences here. Although there is no established range for the
importation of ketamine in this quantity, in my view, the sentences here were
excessive when compared to the sentences imposed in the cases noted above.

[132]

In my respectful view, Mr. Kwok and Mr. Ng
should be sentenced to 12 years for the importing of ketamine, and eight years
concurrent for possession for the purpose of trafficking. I would impose a
sentence of six years on Mr. Lau for possession for the purpose of
trafficking to reflect his lesser role in the operation.

Disposition

[133]

The Crown concedes that the appellants should be
given credit at 1.5:1 for their time in pre-trial custody. I agree with this
concession. I would grant leave to appeal, allow the appeals and vary the
sentences as follows:

Mr. Kwok −
12 years less 40.5 months credit for importing ketamine; eight years
concurrent for possession for the purpose of trafficking ketamine;

Mr. Ng −
12 years less 40.5 months credit for importing ketamine; eight years
concurrent for possession for the purpose of trafficking ketamine; and

Mr. Lau − six years less 16.5 days
credit for possession for the purpose of trafficking ketamine

The
Honourable Madam Justice Bennett

I agree:

The Honourable Mr. Justice Chiasson

I agree:

The Honourable Mr. Justice
Frankel


