COURT OF APPEAL FOR ONTARIO

DATE: 20001227

DOCKET: C30657

RE: HER MAJESTY THE QUEEN (Respondent) v. TUAN NGO (Appellant)

BEFORE: FINLAYSON, LABROSSE and FELDMAN JJ.A.

COUNSEL: Howard J. Borenstein,

for the appellant

Moiz Rahman,

for the respondent

HEARD: December 8, 2000

On appeal from his conviction by Justice William D. Lyon, sitting without a jury, on September 29, 1997 and from the sentence imposed on October 16, 1997

E N D O R S E M E N T

[1] The appellant was convicted of trafficking and conspiracy to traffic in heroin. He was sentenced to imprisonment for eleven years. He appeals both the conviction and the sentence. For the reasons that follow we would dismiss the conviction appeal but would allow the sentence appeal.

Conviction

[2] The appellant’s involvement related to two sales of heroin to an undercover police officer (“Max”). The evidence of the appellant’s participation and his knowledge of the matter were circumstantial. It consisted of surveillance evidence, intercepted telephone conversations, and the evidence provided by Max. In many instances, the telephone conversations were not clear and parts “may well have been in some type of code – or veiled references …”. The appellant testified and denied knowledge of any heroin sales. He testified that he was dealing as a middle man in the sale of computers and other merchandise, some of which he suspected was stolen.

[3] The appellant argues that the trial judge did not specifically identify the evidence upon which he relied to find the appellant guilty, that there was insufficient evidence to show he was a member of the conspiracy, and that the trial judge did not explain his analysis with respect to the conspiracy. He also argues that the trial judge reversed the burden of proof by finding that the intercepted calls were incriminating and convicting the appellant on the rejection of this evidence.

[4] The participation of Khoa, another accused in the offences, is beyond dispute. There was much evidence which also implicated the appellant in the conspiracy. This includes the following:

♦ Khoa was observed going to the appellant’s residence right after telling Max that he was going to see his supplier, the old man, “right now”;

♦ The appellant was in frequent telephone contact with Khoa in the time surrounding the drug deals;

♦ Telephone conversations referred to the appellant contacting “the other side” just before a drug transaction was completed;

♦ The appellant admitted knowing the driver of a van that supplied merchandise. The van appeared on the days of both transactions;

♦ Khoa called the appellant and asked if there was any chance that they could take one part then pay the full money later;

♦ The appellant told Khoa that because he could not get in touch with someone, he could not have “the thing” ready for tomorrow evening;

♦ The appellant appeared with the man who had the drugs for the deals;

♦ When a deal fell through, the appellant and Khoa spoke of the problem with delivery;

♦ Khoa called the appellant just prior to doing a sixteen-ounce deal and asking the appellant for sixteen pieces;

♦ The appellant appeared at both scenes of the final drug transactions;

The evidence against the appellant was compelling. It is not reasonable to think that the trial judge convicted the appellant on evidence that did not implicate him.

[5] The sole issue in the case was whether the appellant had knowledge of, and was a member of, the conspiracy to traffic in heroin.

[6] This was a trial by a judge alone. The judge is presumed to know the law. There was no need for the trial judge to demonstrate his application of the Carter test. In fact, he specifically stated in the reasons for sentence that he had applied the Carter test. The evidence directly admissible against the appellant went beyond the balance of probability to engage the second stage of the Carter test.

[7] The trial judge concluded that after putting together the surveillance evidence, the intercepted telephone conversations and the evidence of Max, “a very strong case, in my view, was made out by the Crown”. After rejecting the appellant’s evidence, the trial judge specifically instructed himself on the proper burden of proof. Although the evidence was circumstantial, he concluded that there was “more than sufficient circumstantial evidence to satisfy me that the only reasonable conclusion is that [the appellant] was well aware that this was a deal involving heroin".

[8] In our view, the evidence supports the conviction and there is no basis upon which to interfere.

Sentence

[9] With respect to sentence, the offences involved 8.4 ounces of heroin. Khoa, who pled guilty but was involved in eight more transactions, was given a sentence of nine years.

[10] We do not agree that in the circumstances of this case the appellant was higher in the chain of supply than Khoa, given that he was only one of Khoa’s suppliers.

[11] It seems that the parties and the trial judge were in agreement that the proper range for this offence was eight to twelve years.

[12] In light of the appellant’s involvement and the amount of drugs involved, we think that a fit sentence is one at the lower end of the range. We would vary the sentence imposed to one of imprisonment for eight years.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “K. Feldman J.A.”