R. v. Che and Leung, 2013 ONCJ 217

Court File and Parties

Court File No.: Brampton 12-1975 Date: March 20, 2013 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Winnie Wai Heung Che and Kam Cheong Leung

Before: Justice Richard H.K. Schwarzl

Heard on: February 19 and March 12, 2013

Reasons for Committal Ruling released on: March 20, 2013

Counsel: Ms. Aitken for the Crown Mr. Hung for both Accused

SCHWARZL, J.:

1.0: INTRODUCTION

1Winnie Wai Heung Che (Che) and Kam Cheong Leung (Leung) are co-accused on four offences: importation of Gamma-butyrolactone (GBL); possession of GBL for the purpose of production; unlawfully transporting GBL; and conspiracy to import GBL.

2The co-accused requested a preliminary inquiry, which was heard before me on February 19 and March 12, 2013. The only issues are whether or not there is sufficient evidence that (1) either or both Accused knew, or were reckless in not knowing, that the material they transported was GBL; and (2) a criminal conspiracy had occurred.

3The defence submits that committal on any of the charges would require impermissible speculation given what they say is a dearth of evidence. Furthermore, they submit that no inferences favourable to the crown can be reasonably made on the evidentiary record before me. The crown submits on for all four charges there is some evidence that a properly instructed jury acting reasonably could find both Accused guilty.

2.0: SUMMARY OF THE EVIDENCE

4In late January 2012, Canada Border Services agents inspected a shipment said to contain tea, tables, curtain rails, chopsticks, and grease detergent coming into Canada from the Guandong Animal By-products Company of China. The shipping papers indicate that the consignee of the shipment was Acme International Inc. of Richmond Hill care of Ka Yip Trading Ltd. of Steeles Avenue, Markham. The grease detergent was contained in 116 large jugs with a total volume of 2900 litres. By all appearances the jugs as packaged would not appear suspicious or illegal in any way to a lay person.

5After customs agents inspected the jugs' contents it was determined that they did not store detergent, but rather GBL, a controlled substance with a street value of over $48,000,000. Neither Accused, nor the consignee Ka Yip Trading, had any authorization to import, transport or handle GBL. The R.C.M.P. were called and they commenced an investigation.

6The R.C.M.P. caused the GBL to be replaced with saline and repackaged the jugs to look like they had at the time of the C.B.S.A. inspection. The police then made the entire cargo available for pick up at a customs warehouse in Mississauga. On February 10, 2012 Leung, who was accompanied by a Mr. Xu, drove a cargo van bearing the moniker "Grand Union Express" to the customs warehouse. Leung paid $1,400 in customs handling fees to release the property, and he signed an acknowledgement that he was the agent picking up the load for Ka Yip Trading. Leung and Mr. Xu loaded the entire shipment into the rear of the Grand Union Express van and drove away, followed by R.C.M.P. officers.

7Leung drove the van to a location in Mississauga and picked up Che, who sat in front with the two men. A police check of government databases showed that Che is an officer of the Grand Union Express courier company. The three drove to a self-storage facility just up the road from where Che was picked up but did not enter the premises. No one handled any part of the load at that time.

8The three then drove to a commercial address on Ferris Street in Markham where Leung backed the van up to a loading dock. All three then got out and entered the building after one of the men opened a door secured with a punch-code lock. Someone opened the loading bay door from inside. Not long after, Leung and Xu exited the building leaving Che inside. Leung and Xu got into a private vehicle whereupon the police intervened and arrested all of them.

9On Leung's arrest, he was found to have $1,500 cash and a piece of paper with the custom's warehouse address and the shipment's correct cargo control number on it. Between the initial loading of the cargo at the warehouse and the time of the arrests, there is no evidence that any of the three occupants of the moving truck handled, opened, or touched any component of the cargo.

3.0: POSITIONS OF THE PARTIES

3.1: Crown

10The Crown submits that on the totality of the evidence there is reasonable inference that both Accused knew that the shipment contained a controlled substance. They rely on the following evidence to reach this conclusion: Leung was clearly acting as agent for Ka Yip Trading as he paid the necessary release fees, signed the acknowledgment, loaded the shipment and drove it to Markham, where Ka Yip Trading is located. He had the way bill number and $1500 cash on him when arrested. Che knows either Leung or Xu as she got into the van with them. She became a passenger after the shipment was loaded. She was inside the building where the van stopped and backed up to a loading dock. She has a connection to the company owing the moving van.

11The Crown also submits that given the enormous value of the controlled substance it is a reasonable inference to think that the person(s) to whom the GBL was destined would never entrust said delivery to uninformed stooges.

12Lastly, the Crown submits that Leung and Che are no different from couriers caught at airports with illegal drugs packed into their personal luggage. The prosecution relies on the settled principle that where someone claims ownership of the container in which contraband is found this fact is some evidence that the person knew what was inside the container.

13With respect to the conspiracy charge, the crown submits that (a) the mutual presence of Leung and Che in and out of the van operated by Leung and owned by Che's company, and (b) being together at the place where the van was backed up to the loading bay is some evidence of conspiracy to commit illegal importation.

3.2: Defence

14The defence submits that at its highest the crown's case shows that Leung picked up a container load of product including what to all appearances was 116 jugs of detergent. Other than evidence of Leung picking up and transporting the property and Che being a subsequent passenger, the defence submits that there is no evidence either of them had, or took, any propriety interest in the material they transported.

15The defence submits that unlike the airport "mule" cases, nothing in the documentation, the items themselves, or the behaviour of either Accused could provide any rational inference that either of them knew what was inside any of the boxes labeled detergent, tables, curtain rails, tea and chopsticks. The defence submits no reasonable inference of culpability can be made from the fact that Mr. Leung had $1500 cash on him, particularly in light of the large fee he had to pay to release the materials from the customs warehouse. The defence submits that on the totality of the evidence led at this preliminary inquiry, no reasonable inferences of guilt can be drawn which could justify a committal on any of the drug charges.

16Lastly, the defence submits that there is no evidence pointing to a criminal conspiracy.

4.0: APPLICABLE LEGAL PRINCIPLES

17Section 548 of the Criminal Code of Canada will only permit committal to stand trial where sufficient evidence has been presented.

18The test for sufficiency of evidence is the same whether the evidence is direct or circumstantial. The test is whether there is any evidence that a jury, properly instructed and acting reasonably, could return a verdict of guilty: United States v. Sheppard (1976), 30 C.C.C. (3d) 424 (S.C.C.). In deciding the sufficiency of the evidence the preliminary inquiry justice must exercise a discretionary, but constrained, assessment of the cumulative effect of whole of the admissible evidence.

19The court must decide whether or not there is some evidence reasonably supporting the existence of each of the essential elements of the offence charged, even if only a scintilla. In other words, there need be only a spark, or trace, of evidence providing it registers in the scales as set out in Sheppard, above.

20As a general rule, the court is not to assess the quality, credibility or reliability of evidence as the preliminary inquiry is not designed or intended to be a forum for litigating the merits of the case against a defendant. When inferences are sought to be made from circumstantial evidence, the court may engage in a limited weighing of the evidence to the extent of assessing the reasonableness of those inferences: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

21Whether an inference is reasonable involves an application of human experience and common sense. Where more than one inference can be drawn from the evidence, only those inferences favourable to the prosecution may be considered: R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.). The court must consider the Crown's case at its highest and any reasonable interpretation or permissible inference beyond conjecture or speculation must be in favour of the prosecution: R. v. Coke, [1996] O.J. No. 808 (S.C.J.).

22The dividing line between conjecture on the one hand and reasonable inference on the other is often difficult to determine: whereas a conjecture may be plausible, it is on no legal value because its essence is that of a guess; a reasonable inference, however, is a deduction from the evidence and is capable of possessing validity as legal proof. An inference that is not easily drawn from the evidence is still one that may nevertheless be made. To hold otherwise would lead to the untenable conclusion that difficult inferences can never be logical or reasonable.

23Evidentiary gaps leading to suspicion cannot be equated with reasonable inferences upon which committal may be based: CPR v. Murray, [1932] S.C.R. 112; R. v. Charemski, [1998] 1 S.C.R. 679; R. v. Arcuri, supra; U.S.A. v. Huynh, [2005] O.J. No. 4074 (C.A.); and R. v. Munoz, [2006] O.J. No. 446 (S.C.J.). Where the totality of the evidence is of a dubious nature, the defendant must be discharged as one cannot be committed to stand trial if the evidence is so manifestly unreliable or absent that it would be unsafe to rest a verdict upon it: R. v. Ferras (2006), 2006 SCC 33, 209 C.C.C. (3d) 353 (S.C.C.)

5.0: ANALYSIS

24No evidence was led that Che and/or Leung are part of, or associated in any way with, the Chinese shipper or of either Acme International or Ka Yip Trading. There is no evidence of any kind nor any reasonable inference that either Accused had any responsibility for, or propriety interest in, the importation, organization or payment of the shipment. The fact that Mr. Leung paid to release the cargo from the customs warehouse does not connect him in any way as the purchaser or a beneficiary of the goods he picked up. The address at which the courier truck parked does not belong to either Acme International or Ka Yip Trading.

25At best, the evidence and any inferences that can reasonably be drawn from it, shows that the Accused picked up and transported what appeared to be legitimate goods, some of which turned out to be contraband. There is no evidence either Accused inspected, unsealed, unpacked, or looked into the jugs or any other cargo at any time. There is nothing to infer that either Accused was a "drug mule" in the way suggested by the crown. There is no evidence nor are there any reasonable inferences arising from the evidence that either Accused was, or ought to have been, suspicious that any of the cargo was illegal.

26Control is not enough; there must be a scintilla of evidence from which it could be reasonably inferred that one or both of the Accused knew, or were wilfully blind, that the load they transported contained a controlled substance. No such inferences can be drawn on the evidentiary record of this preliminary inquiry.

27I find that the crown's submission that the owner of the GBL would only entrust transportation of such a hugely valuable load to a fully informed deliveryman is not a reasonable inference on the evidence but merely conjectural and speculative.

28On assessing the whole of the evidence led and applying the legal principles states above, I find that a properly instructed jury acting reasonably could not possibly find either Accused guilty of any of counts one, two or three.

29Equally, there is a total absence of any evidence of a conspiracy. There was nothing in the evidence from which one could infer, reasonably or otherwise, that Leung or Che made any agreement to participate in a crime, including importation of controlled substances, with each other or anyone else. At best there is some evidence Leung agreed, and did, pick up a container load of product and delivered it. At the highest, there is evidence that Che went along for the ride and went inside a building with Leung after he parked it a loading dock.

30In summary, despite the obvious seriousness of unlawful importation and production of GBL, I find the prosecution has failed to meet the standards set out by Sheppard, above. In all of the circumstances, I am compelled to discharge each Accused on all four counts.