R. v. Tran (T.H.) et al., 2015 BCCA 212

• Judge: Lowry, Bennett and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 01, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 212;(2015), 371 B.C.A.C. 312 (CA)

R. v. Tran (T.H.) (2015), 371 B.C.A.C. 312 (CA);

    636 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JN.014

Regina (respondent) v. Thanh Hai Tran (appellant)

(CA040746)

Regina (respondent) v. King Ting Yung (appellant)

(CA040754; 2015 BCCA 212)

Indexed As: R. v. Tran (T.H.) et al.

British Columbia Court of Appeal

Lowry, Bennett and Harris, JJ.A.

May 1, 2015.

Summary:

The accused (Tran and Yung) were charged with conspiracy to traffic in cocaine. The Crown relied on intercepted phone calls and text messages and one pound of cocaine found in Q's vehicle. Tran allegedly sold the cocaine to Yung with knowledge that Yung intended to distribute it. Q allegedly picked up the cocaine from Tran on Yung's behalf. Q was jointly charged with Tran and Yung, but was acquitted at a pre-trial hearing to challenge the admissibility of the cocaine found in his vehicle after the Crown elected to call no evidence. Q testified at the trial of the accused. The trial judge convicted the accused. The accused appealed on the grounds that, inter alia: (1) the trial judge erred in treating Q as an unindicted co-conspirator because issue estoppel precluded him being found to be a member of the conspiracy; (2) the trial judge erred in finding that a drug transaction between a buyer and seller, where the seller knew the buyer intended to distribute the drugs, could constitute a conspiracy because the parties lacked a common purpose; and (3) the trial judge erred in applying the co-conspirator's exception to the hearsay rule.

The British Columbia Court of Appeal, in a judgment reported (2014), 361 B.C.A.C. 62; 619 W.A.C. 62, dismissed the appeals. Q was properly treated as a co-conspirator, as an accused could not assert estoppel respecting findings made at an earlier trial respecting another accused. The trial judge did not err in finding a conspiracy to traffic where the seller knew that the buyer intended to distribute the drugs. There was also no error in applying the co-conspirator's exception to the hearsay rule. The accused (Yung and Tran) were sentenced to 3.5 and 3 years' imprisonment respectively. Both appealed against sentence.

The British Columbia Court of Appeal dismissed Tran's sentence and allowed Yung's appeal to the extent of reducing it to three years' imprisonment.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - See paragraphs 1 to 42.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - See paragraphs 1 to 42.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - See paragraphs 1 to 42.

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - See paragraphs 1 to 42.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - See paragraphs 1 to 42.

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 22].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 22].

R. v. Johnson (D.K.) (1996), 84 B.C.A.C. 261; 137 W.A.C. 261; 112 C.C.C.(3d) 225 (C.A.), refd to. [para. 24].

R. v. Ban (R.S.) (2014), 352 B.C.A.C. 33; 601 W.A.C. 33; 2014 BCCA 68, refd to. [para. 27].

R. v. Datt (R.) (2014), 364 B.C.A.C. 159; 625 W.A.C. 159; 2014 BCCA 484, refd to. [para. 28].

R. v. Nesbitt (N.L.) (2012), 322 B.C.A.C. 249; 549 W.A.C. 249; 2012 BCCA 243, refd to. [para. 29].

R. v. Kreutziger (W.D.) (2005), 212 B.C.A.C. 32; 350 W.A.C. 32; 2005 BCCA 231, refd to. [para. 30].

R. v. Ahmed (S.) (2001), 159 B.C.A.C. 136; 259 W.A.C. 136; 2001 BCCA 504, refd to. [para. 31].

R. v. Hein (B.S.) (2008), 256 B.C.A.C. 189; 431 W.A.C. 189; 2008 BCCA 230, refd to. [para. 31].

R. v. Nagy (B.) (2013), 342 B.C.A.C. 269; 585 W.A.C. 269; 2013 BCCA 419, refd to. [para. 31].

R. v. Preston (1990), 47 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 36].

R. v. Frisch (K.P.) (2013), 334 B.C.A.C. 166; 572 W.A.C. 166; 2013 YKCA 3, refd to. [para. 36].

Counsel:

J.B. Jackson, Q.C., for the appellant, Thanh Hai Tran;

A. Hepner, Q.C., for the appellant, King Ting Yung;

R.A. Prior, for the respondent.

These appeals were heard on April 30, 2015, at Vancouver, B.C., before Lowry, Bennett and Harris, JJ.A., of the British Columbia Court of Appeal.

On May 1, 2015, the judgment of the Court of Appeal was delivered orally, including the following opinions:

Bennett, J.A. - see paragraphs 1 to 42;

Lowry, J.A. - see paragraphs 43, 45;

Harris, J.A. - see paragraph 44.