2015 QCCA 1021, 2015 QCCA 1021

Chun c. R. 2015 QCCA 1021 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005727-142 (500-01-017422-046) DATE: June 11, 2015 PRESIDING : THE HONOURABLE ROBERT M. MAINVILLE, J.A. SY VENG CHUN LENG KY LECH APPELLANTS - accused v.

HER MAJESTY THE QUEEN RESPONDENT - prosecutor JUDGMENT [ 1 ] The appellants Sy Veng Chun and Leng Ky Lech (“appellants”) have submitted a joint motion for their release from custody pending the determination of their appeal from convictions entered in the Court of Quebec with respect to charges of laundering and possession of the proceeds of drug crimes and of related tax offences. I have decided to dismiss the motion for the reasons which follow. Context [ 2 ] On October 12, 2002, as he prepared to leave Canada for Cambodia, Mr. Sy Veng Chun was found in possession of $600,000 in American currency.

His arrest at the Trudeau Airport led to an investigation that extended to various parts of the world, including the United States, the Caribbean, Mexico, Europe, Israel and several parts of Asia. The investigation led to the prosecution. [ 3 ] Sy Veng Chun, his wife Leng Ky Lech, and two companies under their control, were indicted with respect to 13 counts. The first six counts concerned money-laundering and possession of the proceeds of drug trafficking.

The remaining seven counts concerned tax offences related to these offences. [ 4 ] The trial began in January 2010 in the Court of Quebec before the Honourable Patrick Healy. The case against the appellants was factually dense, and the trial continued intermittently over more than 80 days until final submissions were made at the end of 2012.

Over 450 exhibits were produced, many of which the trial judge found to be complex. [1] [ 5 ] At trial, the defence called no evidence in chief, relying on its submission that the prosecution had failed to discharge its burden to prove the case beyond a reasonable doubt. [ 6 ] The defence acknowledged that the appellants received money or other proceeds from drug traffickers, and transferred these to Cambodia. The defence further acknowledged that these moneys were proceeds of drug crimes in Canada.

The defence however submitted that the prosecution had failed to establish beyond a reasonable doubt that the appellants had knowledge that the money or other proceeds at issue were derived from the commission of drug crimes in Canada. [2] [ 7 ] Though there was no precise evidence as to the exact amounts of money involved in these transactions, the trial judge found that there was evidence that the amounts exceeded $100,000,000. [3] [ 8 ] On September 15, 2014, the appellants were found guilty with respect to all 13 counts.

The trial judge gave long reasons for the convictions, commenting at the end that the “prosecution proved its case many times over, especially as regards the foundational counts – Counts 1 - 4 (inclusive) on which the entire case is dependent.

These counts might have been proved with much less evidence but the evidence that was presented certainly proves the amplitude of the offenses committed.” [4] [ 9 ] At the time of the convictions, the interim release of the appellants was revoked because the presumption of innocence was spent and the parties agreed, in part, that a penitentiary term was appropriate. [5] The sentencing was postponed to March 2015. [ 10 ] An appeal was filed on November 17, 2014 against the convictions on the first six counts concerning money-laundering and possession of the proceeds of drug trafficking. [ 11 ] On March 18, 2015, the Honourable Patrick Healy sentenced the appellants.

He noted that the case was “among the worst of its kind, both as regards the gravity of the offences and the responsibility of the offenders.” [6] He concluded “without hesitation that the maximum sentence of imprisonment is a viable option in this case.” [7] He added that “there is compelling evidence that the offenders retained millions of dollars that they had received in the execution of their agreement with Mr. Muir.” [8]

[ 12 ] The appellants each received 8 years of imprisonment with respect to various counts of the indictment relating to money laundering and possession of the proceeds of drug trafficking, as well as 3 and 4 years of imprisonment with respect to various counts of the indictment related to tax offences, all to be served concurrently. [ 13 ] Following an order of this court dated March 18, 2015 [9] , an amended notice of appeal was filed on April 18, 2015 to add to the appeal challenges to the convictions on the other seven counts concerning related tax offences. [ 14 ] On April 27, 2015, the appellants sought leave to also appeal their sentences.

The motion on the leave has been referred to the panel of this Court which will hear the merits of the appeal concerning the convictions. [10] [ 15 ] The appellants now seek to be released from custody pending the determination of their appeal from their convictions. This motion was heard before the undersigned judge on June 2, 2015. Framework of the analysis [ 16 ] When an appeal from a conviction has been launched, the Criminal Code allows a convicted appellant to request his release from custody pending the determination of the appeal.

However, the appellant no longer benefits from the presumption of innocence set out in the Canadian Charter of Rights and Freedoms . [ 17 ] The criteria which apply are those set out in subsection 679(3) of the Criminal Code : the appeal is not frivolous, the appellant will surrender himself into custody in accordance with the terms of the release order, and the appellant’s detention is not necessary in the public interest. The burden is on the appellant to show that all these criteria are satisfied. [11] [ 18 ] The pertinent provisions of the Criminal Code are paragraph 679(1)

a) and subsection 679(3) , which are reproduced below: 679.

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, (

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to

section 678; 679.

(1) Un juge de la cour d’appel peut, en conformité avec le présent article, mettre un appelant en liberté en attendant la décision de son appel :

a) si, dans le cas d’un appel d’une déclaration de culpabilité interjeté devant la cour d’appel, l’appelant a donné un avis d’appel ou, lorsqu’une autorisation est requise, a donné un avis de sa demande d’autorisation d’appel en application de l’article 678; 679.

(3) In the case of an appeal referred to in paragraph (1)(

a) or ( c ), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. 679.

(3) Dans le cas d’un appel mentionné à l’alinéa

(1) a) ou c ), le juge de la cour d’appel peut ordonner que l’appelant soit mis en liberté en attendant la décision de son appel, si l’appelant établit à la fois :

a) que l’appel ou la demande d’autorisation d’appel n’est pas futile;

b) qu’il se livrera en conformité avec les termes de l’ordonnance;

c) que sa détention n’est pas nécessaire dans l’intérêt public. The appeal is not frivolous [ 19 ] With respect to the first six counts concerning money-laundering and possession of the proceeds of drug trafficking, the appellants largely reiterate their submissions made before the trial judge, namely that the prosecution had failed to discharge its burden to prove the case beyond a reasonable doubt. In related proceedings respecting the suspension of orders of forfeiture, my colleague the Honourable Nicholas Kasirer found that, at this stage of the proceedings, these allegations may be considered as serious [12] . I agree that they are not frivolous for the purposes of paragraph 679(3) (

a) of the Criminal Code . [ 20 ] Since the decision of my colleague with respect to the forfeitures, the appellants have amended their appeal to include challenges to the counts of the indictment concerning related tax offences. Here the grounds of appeal are somewhat more difficult to understand. However, the threshold under paragraph 679(3) (

a) is low (“not frivolous”) and as a result, I am prepared to find that the appellants have also met their burden under that paragraph with respect to their appeal of the seven counts concerning tax offences.

Surrender into custody [ 21 ] The appellants submit that they do not represent a flight risk. Ms. Lech is 52 years old, and Mr. Chun is 67. They are married since 33 years and have resided in Canada for the last 34 years. [ 22 ] The appellants add that they were released pending their trial and travelled abroad during that time. They always came back to Canada to face the charges laid against them. Moreover, they are ready to abide with an order to wear a GPS bracelet which will monitor their movements.

For this purpose they submit an affidavit from Peter Marshal of the Recovery Science Corporation which offers GPS monitoring services in bail situations. [ 23 ] The Crown opposes the release of the appellants on the ground that there is a serious risk that they would flee the Court’s jurisdiction should they be released pending their appeal. [ 24 ] The appellants are dual citizens of Canada and of Cambodia. The Crown submits that should they flee to Cambodia, it would be difficult to ensure their return to Canada since there is no extradition treaty between Canada and Cambodia.

The Crown asserts that Cambodian law forbids the extradition of a Cambodian citizen in the absence of such a treaty. [ 25 ] The Crown adds that the appellants have family in Cambodia as well as substantial assets at their disposal there, including a banking enterprise which the Crown believes is controlled by the appellants. [ 26 ] The Crown further submits that monitored GPS bracelets cannot ensure that the appellants would not leave Canada. [ 27 ] I find that the appellants have not discharged their burden of establishing that they will surrender themselves into custody in accordance with the terms of an order releasing them pending the determination of their appeal. [ 28 ] The appellants are citizens of Cambodia as well as of Canada.

They have two children living in Cambodia and one child living in the United States. Only one daughter resides in Canada. Furthermore, the trial judge found that there was compelling evidence that the appellants retained millions of dollars received from their dealings with drug dealers. [ 29 ] I recognize that the appellants were released pending their trial, and though they extensively travelled to Cambodia during that period, they returned to Canada. Nevertheless, the appellants are now convicted, and they have been sentenced to 8 years imprisonment as well as to heavy fines.

The playing field has thus changed radically with the convictions, and the temptation to avoid the sentences is now very real. The appellants have close family links in Cambodia and likely have important financial assets in that country. Fleeing to Cambodia so as to avoid their long prison sentences is a real possibility. [ 30 ] The appellants suggest that GPS bracelets and proper monitoring of their movements would dispel this real flight possibility.

Though I recognize that in certain circumstances a monitored GPS bracelet may be a useful tool, it is not a panacea to a real possibility of flight. [13] As noted by Peter Marshal at paragraph 8 of his affidavit signed on May 5, 2015: “While monitoring [though a GPS bracelet] can have a significant impact in helping to reduce and manage risks, it cannot prevent an (sic) person from fleeing or committing an offence, nor can it guarantee an immediate police intervention in a breach or offence in progress.” [ 31 ] In the absence of appropriate sureties, electronic monitoring will rarely be sufficient in itself to support the release of an appellant.

The sureties offered in this case are the deposit in the amount of $60,000 already made by the appellants in the trial court, a mortgage in the amount of $40,000 on a property belonging to the sister and brother-in-law of Ms.

Lech, and an undertaking by the appellant’s daughter to communicate with the RCMP if the appellants breach the conditions of their release. [ 32 ] As aptly noted by the Crown attorney at the hearing of this motion, these sureties are insignificant when considered within the context of the huge amounts handled by the appellants and the millions of dollars found by the trial judge to have been gained and retained by the appellants from their impugned activities. [ 33 ] Taking into account all of the circumstances, I am not satisfied that the sureties offered or the introduction of electronic monitoring would tip the balance in favour of release.

The concerns related to the risk of absconding have not been alleviated by the appellants. The public interest [ 34 ] Paragraph 679(3)(

c) of the Criminal Code provides that the appellants must establish that their detention is not necessary in the public interest. There are at least two principal factors to consider under this provision. First, the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that the appellants will, if released during the appeal proceedings, commit a criminal offence or interfere with the administration of justice.

Second, the impact the release of the appellants would have on the confidence of the public in the administration of justice. [ 35 ] In light of my conclusion above that the appellants have failed to meet their burden with respect to paragraph 679(3) (

b) of the Criminal Code , it is not necessary to address the public interest criterion in any detail. [ 36 ] It suffices to point out that after a very long trial, the trial judge concluded that the case of money laundering against the appellants was among the worst of its kind, both as regards the gravity of the offences and the responsibility of the appellants.

In these circumstances, the appellants have failed to convince me that their detention pending their appeal is not necessary to maintain the confidence of the public in the administration of justice. [ 37 ] Moreover, should the appellants be released, they may well be in a position to manage and even profit from the substantial gains made as a result of their illicit activities, gains which may now be in Cambodia or elsewhere. In the circumstances of these

criminal proceedings, where the amounts involved are truly enormous, this is a legitimate concern which is likely to further erode the confidence of the public in the administration of justice should the appellants be released pending the appeal. FOR THESE REASONS, THE UNDERSIGNED JUDGE: [ 38 ] DISMISSES the appellants’ motion for release from custody pending the determination of their appeal. ROBERT M. MAINVILLE, J.A. Mtre Dominique St-Laurent Peris Sutton St-Laurent For the appellants Mtre Fabienne Simon Service des poursuites pénales du Canada For the respondent Date of hearing: June 2, 2015