R. v. Chu and Mak Date:, 2012 BCPC 566

Citation: R. v. Chu and Mak Date: 20120412 2012 BCPC 0566 File No: 29508-2-C Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KIT CHING CHU AND KIN WA MAK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: Ms. Nixon Appearing on their own behalf: K. Chu and K. Mak Place of Hearing: Williams Lake , B.C. Dates of Hearing: Sep 12, 13, 14, Oct 17, 18, 19, 2011, Feb 27, 28, 29, 2012 Date of Judgment: April 4, 2012

[ 1 ] Kit Ching Chu and Kin Wa Mak are charged with Production of Marijuana and Possession of Marijuana for the Purpose of Trafficking contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, R.S.C. 1996, Chap. 19. [ 2 ] On August 20 th , 2008, Ms. Chu and Mr. Mak, along with three other people, were found in a house at 651 Jackpine Road (‘Jackpine Road’), a remote, rural acreage about an hour’s drive south east of Williams Lake. Nine sizeable greenhouses containing some 3,500 marihuana plants were located on the property.

A drying room had been set up in the barn and it was clear that the marijuana was being processed and packaged in vacuum sealed and Ziploc bags on site. Sgt. Oelke, an expert witness, estimated that the crop currently growing at Jackpine Road was capable of producing approximately 681 lbs of marijuana worth approximately $1,362,000 at the wholesale level. It was clear that a considerable volume of marijuana had already been harvested, dried, packaged and transported away.

The Crown’s theory is that the marijuana produced at Jackpine Road was being transported south to a house at 12339 Cameron Drive in Richmond, owned by Ms. Chu (‘Cameron Drive’), where it was sold to a distributor or distributors with access to national and international markets. Nearly 3 kg of packaged marijuana was found at Cameron Drive along with a digital scale and many documents belonging to Mr. Mak and Ms. Chu. [ 3 ] Ms. Chu and Mr. Mak represented themselves throughout this long trial after extensive but ultimately unsuccessful efforts were made to assist them in obtaining representation by legal counsel.

Cantonese is their first language. The proceedings were translated from English to Cantonese for them. They asserted no Charter breaches, raised no objections to the admissibility of evidence, asked almost no questions in cross examination and called no evidence in defence. Their only submission at the conclusion of the case was the following statement: “[We] did not grow this marihuana. [We] have done nothing illegal.” [ 4 ] In my view, the evidence requires me to reach a different conclusion. I have concluded that the evidence proves beyond a reasonable doubt that both Ms. Chu and Mr.

Mak were involved either as a principal or as a party, or both, in the production of marijuana at Jackpine Road. The evidence also proves beyond a reasonable doubt that both were involved in the possession of the marijuana for the purpose of trafficking. I find both Ms. Chu and Mr. Mak guilty of both counts on the Information. [ 5 ] I will now explain why I have reached this conclusion beginning with a brief discussion of the difference between direct and circumstantial evidence.

Analysis A: Direct Evidence and Circumstantial Evidence [ 6 ] Direct evidence is evidence that directly implicates the accused in the growing or processing of the marijuana at Jackpine Road, or in the possession of it for the purpose of trafficking. In this case the only direct evidence concerns the accused, Mr. Mak. Cpl. Paul Hodges conducted visual surveillance on Jackpine Road between August 16 th and 20 th , 2008 and he has identified Mr. Mak as one of the two men he observed working around the greenhouses from time to time on those dates. I will discuss Hodges evidence in more detail later in these reasons.

There is no direct evidence as it concerns Ms. Chu. [ 7 ] The rest of the evidence in this case is what is called ‘circumstantial evidence’ – evidence of facts or circumstances from which the court is asked to draw certain conclusions. An example of circumstantial evidence is Cpl. Chizawsky’s evidence about the source of funds used to purchase Jackpine Road. I will discuss his evidence in more detail later in these reasons but I have concluded that his evidence proves, among other things, that the accused, Ms.

Chu, contributed the sum of $133,000 to the purchase of the property (about 45% of the purchase price of $295,000). From this fact or circumstance the court is asked to conclude that Ms. Chu was one of the actual or (‘beneficial’) owners of Jackpine Road even though her name was not on title to the property. B: Direct Evidence Implicating Mr. Mak [ 8 ] As I said, Cpl. Paul Hodges identified Mr. Mak in court as his “Unknown Male # 2”, one of two men who he watched working in and around the greenhouses at Jackpine Road between August 17 th and 20 th . What weight can I place on his evidence of identification?

Put another way, how reliable is his evidence of identification? [ 9 ] I have concluded that Cpl. Hodges identification of Mr. Mak is reliable. [ 10 ] In reaching this conclusion I have considered the following things. 1. The Law Concerning In Court Identification [ 11 ] The law makes it clear identification of the accused in court, by a witness, when taken alone, is worth very little weight. The

law recognizes that honest witnesses are influenced by the position of persons in the courtroom and how they appear. For example, awitness will be inclined to pick out someone as the perpetrator of the crime simply because that person is located in the prisoner’s box oris dressed differently or appears differently than others in the courtroom. The law recognizes as well that there is a tendency forwitnesses to assume that a person who has been charged must be guilty. This assumption is incorrect but it is present in the minds ofmany people.

It can lead witnesses to identify the accused in court as the perpetrator because they are influenced by that assumptionrather than because they actually recognize the person as being the man or woman they observed committing the crime. See thecomments of Madam Justice Rowles in R. v. Reitsma (1997), (BC CA), 97 B.C.A.C. 303 at ¶ 59 (her decision wasaffirmed by the Supreme Court of Canada at (SCC), [1998] 1 S.C.R. 769). [12] In the case at bar Mr. Mak and Ms. Chu were seated at counsel table rather than in the prisoner’s box.

However, theirappearance was distinctive in that they were the only persons of Asian descent present in court other than the interpreters[1]. As well,they were wearing casual clothing rather than a business suit or uniform which gave them a different appearance than court staff, CrownCounsel and the interpreters. Generally, (and I will assume this was the case on the day Cpl.

Hodges testified) they were the onlypersons present in court during this trial other than Crown Counsel, court staff and interpreters. [13] In addition to the risks of an in-court identification the law identifies other risks with identification evidence. The lawrecognizes that honest and sincere people can be mistaken about identity. For example, most of us have had the experience of going upto someone we thought we recognized only to discover, to our embarrassment, that we are mistaken and the person is a stranger to us.

Honest and sincere witnesses are very persuasive witnesses and so a judge is tempted to rely on the evidence of an honest and sincerewitness who says of the accused “this is the man” even though the witness may be mistaken and have picked out the wrong person. [14] The following quotation from a case called R. v.

Atfield, 1983 ABCA 44 at ¶ 3, helps point out some of the dangers ofidentification evidence and suggests some ways for a judge to test its reliability: “The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes fromwitnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriage of justice throughmistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must betested by a close scrutiny of other evidence. In cases where the criminal act is not contested and the identity of the accused as theperpetrator is the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and mustitself be put on trial, so to speak. As is said in [R. v.

Turnbull, [1977] Q.B. 224, [1976] All E.R. 549], the jury (or the judge sitting alone)must be satisfied of both the honesty of the witness and the correctness of the identification. Honesty is determined by the jury (or judgesitting alone) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances inwhich it has been made or in other supporting evidence.

If the accuracy of the identification is left in doubt because the circumstancessurrounding the identification are unfavourable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice toraise the case to the requisite standard of proof and a conviction so founded is unsatisfactory and unsafe and will be set aside.” [15] In the case at bar I have no reason to doubt the honesty and sincerity of Cpl. Hodges. He had been involved in surveillanceoperations for a little over 2 years.

There is no evidence to suggest that he had any particular personal or emotional investment in thiscase that might lead him to falsify or exaggerate his evidence. [16] I will now go on to consider the correctness of his identification of Mr. Mak as “Unknown Male # 2”, one of the two men he had observed working in and around the greenhouses containing the marijuana between August 17th and 20th, 2008. 2. Correctness of Cpl. Hodges’ Identification of Mr. Mak [17] Cpl. Hodges and another officer set up an observation post on Crown land to the south west of the property at Jackpine Road on August 16th, 2008.

My notes do not indicate any estimate of the distance between his location and the greenhouses on the Jackpine Roadproperty. [18] The officers conducted surveillance from that location on August 17th, 18th and 19th. They used a 500 power spotting scope plus camera and video equipment with ‘zoom’ features. Late on the 19th they moved their observation post to a different location to the south east of Jackpine Road and made certain observations from daybreak on August 20th until the main team of officers arrived toexecute the Search Warrant at 9 am that day.

Hodges then entered the property himself and identified two of the men in custody alongwith two jackets and two hats which he recognized from his surveillance. [19] Hodges’ still photos, taken on August 17th, are marked Exhibit 17. His videos, taken on August 18th, 19th and 20th are foundon the DVD marked Exhibit 16. He also made notes in a notebook as events occurred. [20] In the course of his four days of surveillance Hodges identified two different males working around the greenhouses at JackpineRoad.

He described “Unknown Male # 1” as an older, Asian, male, about 5 foot 6 inches tall of slim build who always wore a yellowwindbreaker with a big hood. Sometimes this male wore a conical, straw hat. Other times he wore a black ball cap with a red bill. Hewas often observed wearing yellow rubber gloves. Hodges estimated this man’s age to be from 40 to 55 years. He is pictured smoking acigarette outside the north end of greenhouse # 8 in the still photo at p. 4 of Exhibit 17.

On the video he is seen closing and propping thedoor at the west end of greenhouse # 6 and on another occasion he is glimpsed through the gap between greenhouse # 4 and the yellowbulldozer, walking west to east, in the direction of the house. [21] The second male, “Unknown Male # 2”, Hodges described as a younger, Asian male, with darker skin, short black hair, a

receding hair line, about 150 lbs, slim build, about 5 foot, 8 inches tall. He first saw this man at 1406 hrs on August 17 th walking from east to west along the road in the vicinity of greenhouse # 14, see the still photo at p. 6 of Exhibit 17 . At that time the man was wearing a green T shirt and blue jeans. He was not wearing a hat or a coat. Hodges estimated the man’s age as from 25 to 35 years. [ 22 ] Cpl.

Hodges testified that he saw the same man several times over the next 4 days working around the green houses although on all subsequent occasions “Unknown Male # 2” was wearing a dark jacket with a pale stripe up the sleeve, a light coloured T shirt and a pale coloured Panama hat. Sometimes this man is seen in blue trousers; on other occasions he is wearing dark track pants with a stripe up the leg which appear to match his jacket. This man is generally seen in company with a German Shepherd dog. “Unknown Male # 2” is seen a number of times on Hodges’ surveillance video ( Exhibit 16) .

At one point he is seen operating the blue tractor and loader transporting something in the bucket in an easterly direction towards the greenhouses. On another occasion this same male is seen urinating in the grass at the eastern end of greenhouse # 5. He looks around and then turns back and disappears behind the eastern end of greenhouse # 5. He then reappears and spends some time hauling a hose over to greenhouse # 4 apparently for the purpose of irrigating the plants in # 4 (there appears to be an irrigation wand on the end of the hose).

He disappears on the north east side of greenhouse # 4 where, it later turned out, the door was located. Hodges testified that he could dimly see the movement of the man’s white Panama hat through the plastic wall of greenhouse # 4. [ 23 ] On the morning of August 20 th Cpl. Hodges and his colleague were positioned to the north east of the property and were able to observe the parking area to the west of the house.

At 0826 hours Hodges saw “Unknown Male # 2” dressed in the pale coloured Panama hat, dark track pants, a light coloured T shirt and the coat with a pale blue stripe up the sleeves walking west across the parking area in the direction of the barn and greenhouses. At 0858 hours this same man was seen walking back towards the house, accompanied this time by “Unknown Male # 1” wearing blue pants, yellow windbreaker and black ball cap with red bill. He glimpsed a third man with them but could not see enough of this third person to provide a description.

The men entered the house. [ 24 ] Within minutes the main group of police arrived to execute the Search Warrant and Cpl. Hodges left his observation post and entered the property. He estimated that it was 5 to 7 minutes after he had observed “Unknown Male # 1” and “Unknown Male # 2” enter the house that he, himself, entered the residence and observed 4 people under arrest in the kitchen. He testified that he recognized two of those people as his “Unknown Male # 1” and “Unknown Male # 2”. A little later he videotaped these two men. See Exhibit 16.

The person he picked out as “Unknown Male # 1” is the older man seen sitting handcuffed at a picnic table on the deck.

He is wearing a black ball cap with a red bill. “Unknown Male # 2” is seen sitting on a stool at the corner of the kitchen table, looking directly at the camera. [ 25 ] Hodges testified that he based his identification of this man as “Unknown Male # 2” partly on identity of clothing - the same dark track pants with a stripe up the leg which he had seen him wearing that morning and on previous occasions – and partly on the cut of his hair, his receding hair line and on his slim build. [ 26 ] When I consider this evidence it seems to me that the following points are particularly noteworthy. [ 27 ] First, Cpl.

Hodges’ observations of “Unknown Male #1” and “#2” took place off and on over a 4 day period. He did not give an estimate of the total time in minutes that he observed each man but it is quite clear that his observations were much more than a fleeting observation made on one occasion. He had the opportunity to watch each man go about his daily tasks over this 4 day period and he made notes of each man’s mannerisms, physical characteristics and clothing. [ 28 ] Second, Hodges was a professional observer making his observations from a position of safety.

His situation was very different from that of a witness who is a victim of crime, making his or her observations in a state of fear and shock. [ 29 ] Third, the details of the facial features of “Unknown Male # 2” spoken of by Hodges – receding hair line, dark pigment to skin, short dark hair – are not visible to me in his video, Exhibit 16. The facial features are impossible to distinguish because of distance and the fact that “Unknown Male # 2” is wearing the Panama hat.

However, I accept Hodges evidence that most of his observations were made through a 500 power spotting scope which allowed him to see considerably more detail about the facial features and clothing of each man than was captured by either the video camera or the still camera ( Exhibit 17 ). [ 30 ] Fourth, there is a major discrepancy between Hodges’ description of “Unknown Male # 2” and the accused, Kin Wa Mak with regards to age. Hodges estimated that the age of “Unknown Male #2” was 25 to 35 years. Mr. Mak was much older than this. Born in June, 1962 (see Exhibit 78 ), he was 46 years old in August, 2008.

Hodges testified that once he met Mr. Mak face to face he realized Mak was older but that he is someone who appears younger than his actual age. [ 31 ] Fifth, the male sitting at the kitchen table who Hodges identified as “Unknown Male # 2” was not wearing the Panama hat or dark jacket with the stripe on the sleeve which “Unknown Male # 2” had been wearing on almost all occasions when Hodges had observed him.

However, a coat and a hat matching that description were located hanging on the wall at the back of the kitchen, within feet of where the male was seated ( Exhibit 55, photos 98 and 102). [ 32 ] Sixth, only 5 to 7 minutes went by between when Cpl. Hodges observed “Unknown Male # 2” walk across the yard and into the house and when he, Hodges, was standing in the kitchen picking out one of the detainees as “Unknown Male #2”. Thus, his first identification of Mr. Mak occurred very quickly after he made the observations which formed the basis for his identification.

In my view this greatly enhances the reliability of Hodges subsequent in-court identification of Mr. Mak. It distinguishes this case from one where the witness does not see the perpetrator again between the date of the incident and the in-court identification. [ 33 ] Having considered all these features of Cpl. Hodges’ evidence it is my conclusion that his identification of Mr. Mak as “Unknown Male #2” is reliable. The only major inconsistency between his observations and the actual characteristics of Mr. Mak is his estimate of age. Having observed Mr.

Mak over some 10 days of trial I agree with Hodges’ assessment that his slim build, brisk movements, expressive demeanour and dark hair give him a somewhat youthful appearance. I find that it would be easy for an observer to underestimate Mr. Mak’s age, therefore the inconsistency in age does not undermine my conclusion that Cpl. Hodges’ identification of Mr. Mak is reliable and correct.

[ 34 ] In addition to the direct evidence of Cpl. Hodges there is a body of circumstantial evidence which, in my view, implicates Mr. Mak in the offences charged. I will turn to that now. C: Circumstantial Evidence Implicating Mr. Mak 1. Present at Jackpine Road on August 20th [ 35 ] When the police arrived at 9 am on August 20 th , 2008 Mr. Mak was found in the kitchen of the residence at Jackpine Road along with three other people.

To what extent does his mere presence on the property implicate him in the production of marijuana that was taking place there? [ 36 ] The greenhouses where the cultivation was taking place were several hundred metres from the house and not immediately visible from it so I cannot find that an occupant of the house would clearly have known of their presence. [ 37 ] However, I do find that there was ample evidence within the house that marijuana was being produced on the property.

The Crown characterized the house as a “camp” at a work site rather than a home and I have concluded that characterization is fair. [ 38 ] The house was sparsely furnished with beds, a table and stools but no sofas or arm chairs for relaxing. There was no entertainment equipment like a TV or CD player. There was no exercise equipment. Some of the occupants had small bedside tables but others were using plastic totes for their few personal items ( Exhibit 55, photo 145), women’s make up (photo 149), packs of cigarettes, a fishing license and a Driver’s Licence (photo 148).

There were no pictures on the walls, no photos of ancestors, children, or friends, no personal mementoes. The living room was being used as a storage room with various supplies stacked haphazardly along the walls (photos 93 to 97 and 163 to 170). According to Sgt. Oelke many of the items stored in the living room (CO2 generators, ducting, latex gloves and face masks, packaging materials such as a case of Ziploc bags, a box of vacuum bags, Styrofoam ‘fish’ boxes and a cooler) are equipment which is typically used in the production of marijuana.

Of course, there can be many innocent uses for such items such as the growing and processing of food. However, there was no evidence of any sort of large scale food production going on at this property that would justify the need for supplies in this volume. Sgt. Oelke pointed out that many of the items stacked in the living room area of the house were identical to equipment in use at the marijuana grow operation located in the barn and greenhouses just a few hundred metres away.

The only rational conclusion, in my view, is that these items were being stored in the house with a view to being used as needed either in the greenhouses where the marijuana was being grown or in the barn where the clipping, drying and packaging was occurring. [ 39 ] In the hallway of the house there was a box with a few packages of marijuana sitting in plain view (photos 112, 113). This substance was not sampled and analyzed but I accept the opinion of Sgt. Oelke and other officers that it was marijuana – albeit of a lower quality than the dried marijuana found in the barn.

Near this box was another cardboard box which was apparently serving as a receptacle for work gloves – it contained a bunch of dirty latex and rubber gloves (photo 113). Sgt. Oelke testified that marijuana producers typically wear gloves to protect their hands from the sticky resin produced by the budding plants and to ensure they leave no fingerprints. [ 40 ] From all of this evidence I conclude that this house was being used as a work site “camp” – as a place to sleep and to eat when not working in the grow operation and as a place to store supplies - rather than as a home. For this reason Mr.

Mak’s presence in the house is strong circumstantial evidence that he was involved in the production of marijuana which was going on elsewhere on the property. 2. Fingerprint on Stool [ 41 ] Sgt. Dianna O’Brien, a forensic identification specialist ( Exhibit 53) who attended Jackpine Road during the execution of the Search Warrant on August 20 th , 2008 located just one useable fingerprint at the site. This was on the underside of a plastic stool found in greenhouse # 7 (photos 80 and following).

She conducted a comparison with fingerprints taken from the 5 persons arrested at the property and concluded that the fingerprint had been made by the left index finger of the accused, Kin Wa Mak. ( Exhibits 56, 57 and 79). [ 42 ] It is not possible to determine when Mr. Mak’s fingerprint was placed on the stool or what he was about when he placed it there. This is particularly so given the portable nature of a plastic stool and the fact that it is a piece of furniture and not inherently related to the growing of marijuana in the way that some other pieces of equipment would be. Mr.

Mak’s fingerprint could have been placed there while he was working in the marijuana grow operation at Jackpine Road or while he was doing something entirely unrelated to growing marijuana. [ 43 ] The presence of Mr. Mak’s fingerprint on the stool in greenhouse # 7 is therefore a piece of circumstantial evidence which is consistent with him being an active participant in the production of marijuana at Jackpine Road but it is also consistent with many other possibilities. As such, it must be given little or no weight in the overall assessment of whether the Crown has made out its case against Mr. Mak. 3.

GMC Sierra pickup truck [ 44 ] The evidence concerning the 2004 GMC Sierra pick-up truck found at Jackpine Road is much more potent circumstantial evidence connecting Mr. Mak to the grow operation at Jackpine Road.

[ 45 ] As a first point, I find that the Crown has proven beyond a reasonable doubt that the truck was registered to Mr. Kin Wa Mak, the accused before the court. This is proven by the Certified Extract of Vehicle Registration for a vehicle of this description with the same VIN and license plate as the truck ( Exhibit 37, and Exhibit 55, photos 10 and 16 ) .

As for proof that the Kin Wa Mak who was the registered owner of the truck in 2008 is the same person as the accused before the court I note that the address at 5249 Chambers Street, Vancouver shown on the certified extract is the same as the address shown on Mr. Mak’s picture B.C. Driver’s License ( Exhibit 78 ). I note as well that the signature on the 2008 Certificate of Insurance for the truck ( Exhibit 39 ) appears to be the same as the signature on various other documents associated with the accused before the court, most notably Exhibit 79, the Fingerprint Form prepared by Cst.

Tent at the time he booked Mr. Mak into cells on the late morning of August 20 th , 2008. In the absence of evidence that there is another person with the same name and the same signature living at the same address as the accused before the court, I find that the accused, Mr. Mak, was the registered owner of the 2004 GMC Sierra pickup truck at all relevant times. [ 46 ] Detective Ewanchuk installed a tracking device on the pickup truck on July 23 rd , 2008 while it was parked in the driveway at the house at Cameron Drive in Richmond.

I am satisfied that he did this in accordance with the terms of a Tracking Warrant and a General Warrant ( Exhibits 47, 48, 49 and 50). The device works on GPS technology and using appropriate software he was able to map the path of travel of the vehicle over the next month until the Search Warrant was executed at Jackpine Road on August 20 th . See Exhibits 9 and 10. [ 47 ] During that time the GMC Sierra truck made a total of five trips between Cameron Drive and Jackpine Road. This is a long drive – 7 to 8 hours one way.

The truck drove north to Jackpine Road on the 23 rd of July, south to Cameron Drive on August 7 th , north to Jackpine Road on August 9 th , south to Cameron Drive on August 17 th and north to Jackpine Road on the 18 th where it remained until the Search Warrant was executed on August 20 th . During this time the truck also made two trips into Williams Lake, on July 29 th and August 11 th . [ 48 ] The significance of this circumstantial evidence as it concerns Mr. Mak is that it demonstrates a close and ongoing connection over at least a 4 week period between a vehicle owned by Mr.

Mak and the property at Jackpine Road. This is important evidence implicating Mr. Mak in the production of marijuana at Jackpine Road. In my view, it greatly reduces – if not totally eliminates - the possibility that Mr. Mak was a one time or occasional visitor unconnected with the grow operation when he was located in the house at Jackpine Road on the morning of August 20 th , 2008. 4. Other evidence that Mr. Mak was in the Cariboo throughout the spring and summer of 2008 [ 49 ] There is evidence that Mr.

Mak was present in the Cariboo during the spring and early summer of 2008 prior to the installation of the tracking device on July 23 rd . [ 50 ] Credit card statements for the months of March, April, May and July 2008 ( Exhibit 5, 20 00059, 60, 61 and 62) for a TD VISA “GM Card” in the name of Kin Wa Mak were found along with other documents in the closet of the master bedroom at Cameron Drive. The number on the account is 4551 2100 3764 9597.

Crown counsel argues that these credit card entries constitute evidence from which the court can infer that the pattern of periodic trips back and forth from Jackpine Road to Cameron Drive which were documented by the tracking device had actually been going on for several months before the tracking device was installed. Of course there is no way to determine who was using Mr. Mak’s credit card on those occasions, nor do the entries reveal whether his destination in the Cariboo was Jackpine Road and his destination in the Lower Mainland was Cameron Drive.

However, I agree with the Crown that these credit card statements do seem to indicate a similar pattern of movement in earlier months to that revealed by the tracking device for the period after July 23 rd . [ 51 ] Other evidence that Mr. Mak (and Ms. Chu) were in the Cariboo prior to the date the Search Warrant was executed (August 20 th ) comes from Cst. Doerr, a traffic officer, who encountered Mr. Mak in a road block at Clinton on the late evening of May 23 rd . Mr. Mak presented a picture B.C. Driver’s License and Cst.

Doerr compared the photo on the license with the driver and concluded they were the same person. Ms. Chu was in the passenger seat and she also produced identification. The license plate on the truck at that point was 2098LR but documents filed by the Crown reveal that Mr. Mak changed the license plate on the vehicle on June 14 th , 2008 to 8018LJ, the number it bore when the Search Warrant was executed on August 20 th . See Exhibit 37. 5. Involvement in the purchase of Jackpine Road [ 52 ] Another piece of circumstantial evidence that points to Mr.

Mak’s intimate connection with the property at Jackpine Road is the evidence of the realtor, Freddy Marks. He identified Mr. Mak as one of 4 people who viewed the property on December 19 th and again on December 20 th , 2007. After the second viewing “Vicky Chu”, who, I am satisfied is the accused, Ms. Chu, made an offer to purchase Jackpine Road which was ultimately accepted. Mr. Marks’ in-court identification of Mr. Mak is certainly less reliable than his identification of Ms. Chu because he had no direct dealings with Mr. Mak. He described Mr.

Mak as “pretty quiet” and said he spoke only in Cantonese to others in his group. However, Marks did spend several hours in the presence of Mr. Mak, walking around various properties including Jackpine Road and peripherally, at least, watching him interact with others in his group. When he testified in court he was principally asked about his dealings with and identification of Ms. Chu but towards the latter part of his evidence he was asked if he had seen any of the other three people in the group since dealing with them at the property and, indicating Mr.

Mak, he volunteered: “I do recognize the male present here today. He was introduced to me as Vicky Chu’s husband.”

[ 53 ] In my view, Mr. Mark’s in-court identification is worthy of considerable weight because he did spend several hours in the presence of Mr. Mak on December 19 th and 20 th , 2007. [ 54 ] Further, his identification of Mr. Mak as one of the group he dealt with in connection with the purchase of Jackpine Road receives some corroboration from two receipts found amongst the documents in the closet of the master bedroom at Cameron Drive. See Exhibit 5, 20 00045 and 46.

These receipts document the purchase of gas at the Husky in Williams Lake and some service, probably one or more hotel rooms at the Sandman Hotel in Williams Lake both on December 19 th , 2007. Both were paid by a VISA credit card with the last 4 digits “6957”. They match the last 4 digits of a TD VISA Gold Select credit card in the name of Kin Wa Mak. See Exhibit 5, 20 00058 and 12. Certainly, the identity of the last 4 digits between the card used to make the purchases and this TD VISA Gold Select credit card in the name of Kin Wa Mak is not conclusive proof that it was Mr.

Mak’s TD VISA which was used to make the purchases but it is some evidence that points to Mr. Mak as having been present in Williams Lake on December 19 th , 2007 as Freddy Marks testified. D:

Summary: Evidence Implicating Mr. Mak [ 55 ] I conclude that the Crown has proved that Mr. Mak was actively involved in the production of marijuana that was taking place at Jackpine Road for the following reasons: 1. Cpl. Hodges observed him working in and around the greenhouses over the course of 4 days leading up to August 20 th , 2008; 2. He was present in the house at Jackpine Road on August 20 th and because the house was clearly serving as a “camp” for the grow operation rather than as a home I infer that he was there because he was an active participant in the production of marihuana going on nearby; 3.

His vehicle was tracked back and forth to Jackpine Road on several occasions over the preceding month and there is evidence that he had been travelling to and from the Cariboo in a similar pattern in earlier months.

From these facts, together with the fact that he was one of a group of people who toured the property with the realtor prior to purchasing it back in December, 2007, I conclude that his connection with the production of marijuana that was going on at the property was intimate and ongoing since the date the property was purchased, some 8 months previously. [ 56 ] I conclude that the Crown has proved that Mr. Mak was in possession of the marijuana found at Jackpine Road for the purpose of trafficking for the following reasons: 1.

From the direct and circumstantial evidence listed in points 1, 2 and 3 above I infer that Mr. Mak had both knowledge of the marijuana being grown and processed on the property and control over it, although clearly he did not have exclusive control. At least one other person, “Unknown Male # 1” (subsequently identified as Mr. Yi Qui Jiang) shared in the knowledge of and control over the marijuana; 2. The opinion of Sgt.

Oelke, which I accept, is that the marijuana at Jackpine Road was possessed for the purpose of trafficking considering the very large amount (681 lbs) that was being produced and the lack of any evidence that it was for the personal use of any of those present at the property. [ 57 ] For these reasons I find Mr. Mak guilty of both counts on the Information. I will now turn to the evidence as it concerns Ms. Chu. E: Evidence Implicating Ms. Chu [ 58 ] At the beginning of the trial Ms.

Chu gave an opening statement in which she said that the only reason she was at the house on Jackpine Road when the police arrived on the morning of August 20 th , 2008 was because she was doing renovations there. She knew nothing about any marijuana being produced and processed there, she said. Ms. Chu elected not to testify when her turn came and so this must be viewed as a submission and not as evidence but it does make the point that although Ms. Chu was present at the property, there is no direct evidence that she had knowledge of, or control over, growing or processing the marijuana found at Jackpine Road.

As I said earlier, the Crown’s case against her rests entirely on circumstantial evidence. I remind myself that before Ms. Chu can be found guilty of either offence the Crown must prove beyond a reasonable doubt that the circumstantial evidence is consistent only with her guilt and inconsistent with any other rational conclusion. [ 59 ] In my view the evidence does meet this test. The circumstances, which I will now review, lead to just one conclusion which is

that Ms. Chu was, at a minimum, a party to the production of marijuana at Jackpine Road and a party to its possession for the purpose of trafficking. 1. Present at Jackpine Road on August 20 th [ 60 ] When the police arrived at 9 am on August 20 th , 2008 Ms. Chu was found in an upstairs bedroom. It appeared that she was just getting up. To what extent does her mere presence on the property implicate her in the production of marijuana that was taking place there? [ 61 ] When discussing the evidence concerning Mr.

Mak I found that his presence in the house – which was sparsely furnished and set up more as a work “camp” rather than as a home – was strong circumstantial evidence that he had knowledge of and some measure of control over the production of marijuana which was going on elsewhere on the property. See paras. 35-40 above. I see no reason to come to a different conclusion in the case of Ms. Chu except that the evidence as a whole tends to implicate her as a party rather than as a principle in the actual growing of the marijuana. 2. Cst. Hale’s evidence [ 62 ] Another body of evidence tending to show that Ms.

Chu’s connection with Jackpine Road was more than simply that of a visitor comes from Cst. Sandra Hale. [ 63 ] On August 17 th , 2008, having been alerted by the tracking device data that the GMC Sierra pick-up truck was headed south from Jackpine Road, Cst. Hale took up a position of observation across the street from Cameron Drive. At 3:21 pm the pickup truck drove past her and pulled into the driveway. She observed that it was a woman driving and there were no passengers. She observed the truck back up extremely close to the garage door. The woman got out and let herself into the house with a key.

The garage door opened and the woman emerged from the garage and began unloading cardboard “banana” boxes from the back of the truck and putting them in the garage. She unloaded 3 boxes. She then moved the truck ahead, closed the tailgate and canopy, disappeared back into the garage and the garage door closed. The woman did not come back out of the house again during the time that Cst. Hale was conducting surveillance. [ 64 ] Cst. Hale subsequently identified this woman as the accused before the court, Ms. Kit Ching Chu. If I accept Cst. Hale’s identification of Ms. Chu then her evidence establishes that Ms.

Chu was coming and going from Jackpine Road for at least several days prior to the execution of the search warrant on August 20 th . It supports the inference that she was either a principle or a party in the marijuana production going on there and eliminates the possibility that she was simply a visitor who happened to be present on the day the police arrived. It also establishes that she was using Mr. Mak’s GMC Sierra truck to drive the long distance back and forth to Jackpine Road and, as such, is a further piece of evidence which points to a close connection between Ms. Chu and Mr.

Mak, a man who, I have concluded, was actively involved in the production of marijuana at Jackpine Road. [ 65 ] Of course, whether any of these inferences can be drawn is a question that hinges on the weight I attribute to Cst. Hale’s identification of Ms. Chu as the woman she saw at Cameron Drive on August 17 th , 2008. I will turn specifically to that issue now. [ 66 ] Cst. Hale described the woman as an Asian female in her late 30’s, of slim build. She was wearing a black top and her hair was long and held back in a loose pony tail. Cst.

Hale noticed that the woman’s hair was not jet black; it was not as dark as the hair colour one normally associates with a person of Asian extraction. [ 67 ] Three days later Cst. Hale was present up in the Cariboo, at Jackpine Road, when the search warrant was executed. She assisted in the apprehension of a man and a woman who ran out the back of the house as the police announced their entry via the front door. Shortly after this she was asked to come upstairs and search a female suspect who had been located in an upstairs bedroom. (From the evidence of Csts.

Ivany, Fehler, Tent and Lieu I conclude that this woman was Kit Ching Chu, the accused before the court.) [ 68 ] Cst. Hale testified that when she entered the bedroom she immediately recognized this person as the woman she had seen on August 17 th driving the pickup truck and unloading the banana boxes down at Cameron Drive in Richmond. She explained her recognition of Ms.

Chu by saying that she had the same face which she described as “very distinctive”, the same long hair, the same manner of walking as when she had observed her moving around the driveway and garage at Cameron Drive, that she had the same height and same body type and “she looked very familiar to me in terms of facial recognition.” [ 69 ] Upon her arrest Ms. Chu was observed to have blonde streaks in her hair. This is visible in the photo taken of her during the booking in process. See Exhibit 80 . It will be remembered that Cst.

Hale testified that the woman she observed at Cameron Drive on the 17 th did not have the jet black hair she would normally associate with someone of Asian extraction. [ 70 ] At trial, just over 3 years later, Cst. Hale made an in-court identification of Ms. Chu as the woman she had seen at Cameron Drive on August 17 th , 2008 and at Jackpine Road on August 20 th . I bear in mind the fact that Cst. Hale is a professional observer who was in a place of safety at the time she made her observations.

As such, I think it more likely that she would be able to observe her target carefully than if her observations were made fleetingly during a situation of high stress as would be the case, for example, if she were a victim of a violent crime. Another strength of Cst. Hale’s evidence is that her first identification of Ms. Chu occurred just 3 days after she made the observations upon which her identification was based, while those observations would, presumably, still be fresh in her mind. However, on the negative side, Cst.

Hale did not interact face to face with the woman she saw unloading things from the truck at Cameron Drive; in fact, her observations were made from quite some distance away – about the width of three city lots (I was not told that Cst. Hale was using any sort of device like binoculars to enhance her vision from a distance). [ 71 ] All in all, when I consider the strengths and the weaknesses of Cst. Hale’s identification of Ms. Chu as the person she observed

at Cameron Drive on August 17 th , 2008, I conclude that it is worthy of some weight though I think less weight than, for example, the evidence of Cpl. Hodges identifying Mr. Mak as his “Unknown Male # 2”. 3. Purchase and ownership of the property [ 72 ] The evidence clearly proves that Ms. Chu took an active role in selecting and purchasing the Jackpine Road property. The evidence also proves beyond a reasonable doubt that she contributed about 45% to the purchase price of the property even though it was registered in the name of another woman, Jie Ying Zhu, who, it would appear, is Ms.

Chu’s sister. [ 73 ] The evidence that leads to these conclusions comes, firstly, from Freidheln (“Freddy”) Marks, a realtor formerly based in the Williams Lake area. He testified that he received a call on December 18 th , 2007 from a woman identifying herself as “Vicky Chu”, phone number “604-779-1699” [2] ( Exhibit 43). Ms. Chu asked to view the Jackpine Road property the following day along with a couple of other remote, rural acreages. [ 74 ] Mr. Marks made the necessary arrangements and on December 19 th he met up with “Vicky Chu” at the Tim Horton’s in Williams Lake.

She was accompanied by two men and a woman. She introduced one of the men as her husband and the other as her brother “Mike”. Mike was to do the translating as neither Vicky Chu nor the other two spoke much English. [ 75 ] The group then departed Williams Lake (Mr. Marks drove alone in his vehicle, the four clients drove in their vehicle). They spent the better part of the day driving to and touring the various properties. Jackpine Road was the last property they visited. It was a 120 acre parcel with a log home, a hay shed, a barn and some corrals.

It had been set up as a small cattle ranch but the outbuildings were run down and there was a great amount of “junk” lying around. Mr. Marks and the four clients spent some time walking around to all the buildings and out into the fields. The group talked among themselves in an Asian language. They had many questions which “Mike” translated.

They told him they wanted the property for a relative in China. [ 76 ] Later that evening either “Mike” or “Vicky Chu” phoned Freddy Marks and said they had decided to stay overnight in Williams Lake and they would like to tour the Jackpine Road property a second time the following day. [ 77 ] On December 20th, after visiting the property a second time “Vicky Chu” indicated she wished to make an offer and the group went to Freddy Marks’ home office to write it up. The Contract of Purchase and Sale containing Ms. Chu’s original offer is Exhibit 44.

See also the Purchaser’s copy of this contract which was found in a suitcase in the office at Cameron Drive ( Exhibit 5, 220002). [ 78 ] There was a counter offer and eventually a sale price of $295,000 was agreed upon. This was on December 22 nd , 2007. [ 79 ] Mr. Marks met “Vicky Chu” one other time in person and that was on the possession date, February 26 th , 2008. They met at the property and Mr. Marks spent some time making sure that the seller and his helpers moved the “junk” off the property. [ 80 ] Mr. Marks testified in court on October 17th, 2011, nearly 4 years after his dealings with “Vicky Chu”.

He made an in-court identification of the accused, Ms. Kit Ching Chu as one and the same person as “Vicky Chu”. For the reasons referred to earlier (p. 3 and 4) in-court identification, standing on its own, is worth very little. However, when I consider the amount of contact he had with Ms. Chu back in 2007 and 2008 – several hours of reasonably detailed interaction on 3 separate days, December 19 th and 20 th , 2007 and February 26 th , 2008 – I conclude that there is a real basis for his recognition of Ms. Chu in court even so long after the fact. [ 81 ] As well, Mr.

Marks’ requested photo identification from “Vicky Chu” on December 20 th , 2007 when she made her first offer on the property and she produced a picture B.C. Driver’s License in the name of Kit Ching Chu. See Exhibit 43. This license appears to be identical to the license the accused, Ms. Chu, provided to the RCMP at the time of her arrest on August 20 th , 2008 ( Exhbit 78) and I agree with Cst. Lieu that the photograph appears to me to be very similar if not identical to the accused before the court.

I also note that the signature on the Contract of Purchase and Sale prepared back in December, 2007 ( Exhibit 45) and the signature of the accused before the court which we see on the booking in sheet ( Exhibit 81) appear to be identical. [ 82 ] In the absence of any other evidence I find that the evidence proves beyond a reasonable doubt that the “Vicky Chu” who was so actively involved in the purchase of Jackpine Road is Ms. Kit Ching Chu, the accused before the court. [ 83 ] I will now turn to the evidence that I conclude proves Ms.

Chu was one of the beneficial owners of the property even though her name did not end up on title. This evidence came partly from documents seized when a search warrant was executed at Cameron Drive (it was executed simultaneously with the one at Jackpine Road at 9 am on August 20 th , 2008). Those documents are contained in a binder marked Exhibit 5.

It is also found in documents obtained by way of Production Order from the notary public, Peter Woo, who handled the conveyance of Jackpine Road ( Exhibit 62) , and from documents obtained from the Bank of Montreal ( Exhibits 65, 66, 67, 68, 69 and 70) and TD Canada Trust ( Exhibits 72) . These documents were discussed and analyzed by the witnesses Sgt. Alexander Smith (now retired) and Cpl. Melvin Chizawski both of whom have expertise in the area of interpreting financial documents. Cpl. Chizawski’s flow chart provides a helpful

summary of the documentary source of each of his findings. See Exhibit 74. The schematic drawing ( Exhibit 76) provides a graphic depiction of the flow of funds that went into the purchase of Jackpine Road. [ 84 ] I will not review the evidence of either Sgt. Smith or Cpl. Chizawski in detail. I find that the evidence of each is credible and that the conclusions drawn by each have a solid evidentiary basis. [ 85 ] As a result of their evidence I find that the mortgage on Ms. Kit Ching Chu’s house [3] at 12339 Cameron Drive, Richmond (‘Cameron Drive’) was coming due towards the end of 2007. I find that Ms.

Chu re-mortgaged her home in the sum of $675,000 which was somewhat more than the amount owing on the original mortgage ( Exhibit 65, p. 3, 4, Exhibit 68, p. 4, Exhibit 70, p. 3 and 5) . After paying out the original mortgage, Ms. Chu was left with the sum of $154,942.10 which was deposited in her account # 2712 3091-424 at

the Bank of Montreal. See Exhibit 70, p. 5, Exhibit 66, p. 12. This was on December 18 th , 2007 the same day she was telephoning the realtor, Freddy Marks, and making plans to tour Jackpine Road and other remote, rural acreages in the Cariboo. [ 86 ] Ms. Chu made an offer on Jackpine Road, subject to financing and certain other conditions, on December 20 th , 2007. This offer was accepted on December 22 nd at a price of $295,000. [ 87 ] On December 21 st Ms. Chu transferred $80,000 from her Bank of Montreal account (#3091-424) to her TD Canada Trust account (#556-6255-206).

Then, between December 29 th , 2007 and January 1 st , 2008 Ms. Chu transferred a total of $110,000 out of her TD Canada Trust account and into the account of Ms. Jie Ying Zhu at the TD Canada Trust (account # 631-7862). See Exhibit 72, p. 26- 32 and p. 24 and 25). [ 88 ] On approximately January 10 th , 2008 Ms. Chu contacted the realtor Freddy Marks and asked to assign her right to purchase Jackpine Road to her sister, Ms. Jie Ying Zhu and an Addendum to the Contract of Purchase and Sale was prepared to this effect ( Exhibit 5, 2200023). Ms.

Jie Ying Zhu address is shown as Cameron Drive. ( Exhibit 5, 2200042) [ 89 ] On January 25 th , 2008 Jie Ying Zhu withdrew the sum of $5,000 from her account. ( Exhibit 5, 2100020). On that same date someone purchased a bank draft in the sum of $5,000 payable to Land Quest Realty, Mr. Marks’ agency.

This sum served as a deposit on the purchase of Jackpine Road. ( Exhibit 5, 2100022). [ 90 ] On February 11 th , 2008, one Jian Shan Jiang arranged a second mortgage on a property he owned in Abbotsford (see amongst many documents Exhibit 62, pp. 75, 11 and 2) and on February 14 th he advanced the proceeds of that loan minus a service charge of $6.50 for a deposit of $162,466.52 into the account of Jie Ying Zhu. ( Exhibit 5, 2100023 and Exhibit 72, pp. 48, 50). [ 91 ] On February 15 th , Ms. Chu deposited a further sum of $23,000 ( Exhibit 5, 2100024) into her TD Canada Trust account.

This same amount was then transferred to Ms. Zhu’s account on February 25 th ( Exhibit 72, pp. 52, 31 and 25) for a total contribution by Ms. Chu of $133,000. [ 92 ] The day after, on February 26 th , 2008 a draft in the sum of $294,325.13, the sum required from the purchaser according to the statement of adjustments was transferred out of Ms. Zhu’s account to notary public Peter Woo’s account and from there to the Seller thereby completing the purchase of Jackpine Road.

See Exhibit 5, 2100025, 26 and 15, 2200038, Exhibit 62, p. 5, 139 and 140, Exhibit 72, p. 25). [ 93 ] I find that although the money for the purchase came out of the account of Jie Ying Zhu and although the property was put in her name, she was the owner in name only. I find that the funds came from Ms. Kit Ching Chu (as to $133,000 or about 45% of the purchase price), and Mr. Jian Shan Jiang of Abbotsford (as to $162,466.52 or about 55% of the purchase price) and that they were therefore the beneficial owners of Jackpine Road at all relevant times. 4. Marijuana and documents found at Cameron Drive [ 94 ] Ms.

Chu’s house at 12339 Cameron Drive in Richmond contained nearly 3 kg of packaged marijuana, a digital scale, some plant fertilizer as well as many documents that are relevant. To what extent does this implicate Ms. Chu in the marijuana industry in general and the grow operation at Jackpine Road in particular? [ 95 ] There are a number of pieces of evidence which must be considered and a number of findings which must be made in order to answer this question. [ 96 ] Those pieces of evidence include: • The house at Cameron Drive was registered in the name of Kit Ching Chu ( Exhibits 1 and 3) .

I conclude that this is one and the same person as the accused, Ms. Chu, before the court because the picture B.C. Driver’s License provided to the Bank of Montreal at the time of the refinancing of the mortgage on Cameron Drive in December, 2007 ( Exhibit 64, pp. 19 and 20), is the same B.C. Driver’s License (both as to number and as to photograph) as the Driver’s License provided by Ms. Chu to the officers at the time of her arrest and booking in on August 20 th , 2008 ( Exhibit 78).

Also the signature on the mortgage application and associated documents (see, for example, Exhibit 65, p. 19) appears to be the same as the signature of the accused Ms. Chu at the time she was booked in (see Exhibit 81); • 3 kg packaged marijuana, digital scales, plant fertilizer, a vacuum sealer machine and a blue cooler with a strong odour of marijuana in it were found in the garage; • Many documents associated with the purchase of Jackpine Road were found in a suitcase in the office of the house at Cameron Drive ( Exhibit 5, Tab 22) ; • The BMW car in the garage contained a receipt in the name of Ms.

Kit Ching Chu from AutoWest, believed to be a leasing agency for BMW vehicles;

• The Toyota RAV4 in the driveway was registered to Mr. Kin Wa Mak ( Exhibit 40); • The address on Ms. Chu’s driver’s license was not Cameron Drive but rather an address at 2112 East 34 th Avenue in Vancouver. However the address provided to her bank was Cameron Drive ( Exhibit 7); • The address on Mr. Mak’s driver’s license was at 5249 Chambers Street in Vancouver; • The only adult present at Cameron Drive when the police arrived on the morning of August 20 th was Jie Ying Zhu, believed to be the sister of the accused Ms. Kit Ching Chu. This is the same person who, at least on paper, owned Jackpine Road.

Jie Ying Zhu was occupying a bedroom on the main floor of the house. Two teenaged children, Benny Mak and Jessica Mak, were occupying bedrooms on the second floor. Another bedroom on the second floor, which appeared to be the master bedroom, contained personal papers associated with Mr. Mak and Ms. Chu ( Exhibit 5, Tabs 9, 13, 14 and 20). The office on the lower floor contained many documents associated with Mr. Mak, Ms. Chu and Ms. Zhu and documents directly related to the purchase of Jackpine Road ( Tabs 21 and 22); • Two purses were located in the master bedroom. No identification was found in either purse.

Two documents were located in the purses that are of particular relevance. One was a handwritten calculation ( Exhibit 5, 140001) . Sgt. Oelke testified that, in his opinion, this was a gross income calculation by a marijuana producer. The second was an invoice from Skywide Enterprises dated August 18 th , 2008 ( Exhibit 5, 130001) for a large volume of zip style plastic bags which, the Crown argues are one and the same as the carton of such bags found in a corner of the living room at Jackpine Road ( Exhibit 55, photo 163); • At the time Ms.

Chu re-financed Cameron Drive in December, 2007 she advised the bank that a Peng Chang So was her tenant at the house. However, when the police were at the house on August 20 th , 2008 they found nothing to indicate that anyone was residing there except Jie Ying Zhu and the two children. It is unclear to me whether the master bedroom showed signs of having been occupied (such as clothes in the closet, a made up bed and so on), but it is clear that many personal documents belonging to Ms. Chu, Mr. Mak and Ms.

Zhu were located in this room as well as elsewhere in the house as I have earlier outlined; • A Divorce Certificate dissolving the marriage of Jie Ying Zhu and Kin Wa Mak as of a date in 2000 was found amongst the papers in the office at Cameron Drive; • The property at Jackpine Road was placed in the name of Jie Ying Zhu ( Exhibits 2 and 4 ) but for the reasons already stated (see p. 21 and 22), I conclude that the accused, Ms. Kit Ching Chu along with Mr.

Jian Shan Jiang were the ones who came up with the money to purchase the property and therefore were the beneficial owners of Jackpine Road. [ 97 ] In light of all these pieces of evidence can I draw any conclusion about whether Ms. Chu had knowledge of, or control over, some or all of the incriminating items found in her house at Cameron Drive?

My conclusion on this point is that the circumstantial evidence supports the inference that she did have knowledge of and control over items found in her house at Cameron Drive. [ 98 ] I reach this conclusion despite the fact that the address on her driver’s license was for a different location, and despite the fact that the only adult found in the house was Jie Ying Zhu, and despite the fact that she had told the bank back in 2007 that she had a tenant with the name of So living in the house. I reach this conclusion because of the evidence that Ms.

Chu was making significant and ongoing use of the house at Cameron Drive even if she was not living there full time. Her leased BMW auto was found in the garage. Many of her personal papers were found in the residence; things such as tax returns, bank and credit card statements and documents relating to her dealings with the realtor, Freddy Marks, and the financing and purchase of Jackpine Road. See Exhibit 5. Some of these documents dated back many years. Others were only a few months old. The address she gave to her bank was Cameron Drive.

These things plus the fact that she is the registered owner of the property are indicators that point to just one conclusion in my opinion, namely, that Ms. Chu had access to and at least some measure of control over the use of the house and of the things found within it. Items found in the house show a significant involvement in the marijuana industry and the grow operation at Jackpine Road in particular.

Those items included the packages of marijuana, the scales, the cooler, and the vacuum sealer found in the garage; the vacuum bags and zip bags found in the laundry, and the two documents ( Exhibit 5, 140001 and 130001 ) located in the white and burgundy purses in the master bedroom, together with the documents associated with the purchase of Jackpine Road which were found in the suitcase in the office. 5. Ms. Chu’s Close Connection to Mr. Mak [ 99 ] I have found that there is direct evidence that Mr. Mak was actively involved in the cultivation of marijuana at Jackpine Road. Is there any evidence that Ms.

Chu was associated with Mr. Mak in some way and, if so, what is the significance of that as it concerns

Ms. Chu? In my view the evidence requires me to infer that there was a close relationship, specifically, a spousal relationship between Mr. Mak and Ms. Chu. There are four pieces of evidence that lead to this conclusion. [ 100 ] First, Ms. Chu introduced Mr. Mak as her husband when she was dealing with Freddy Marks, the realtor, back in December, 2007. [ 101 ] Second, when the police arrived at Jackpine Road on the morning of August 20 th , 2008 Ms. Chu was in an upstairs bedroom, apparently just getting up for the day.

The bedroom contained a double bed which had been recently slept in and men’s and women’s clothing. There were men’s and women’s toiletries in the ensuite bathroom. Some of Mr. Mak’s personal documents (a driver’s license and a fishing license) were found in that room. The only conclusion I think that can be rationally drawn is that Ms. Chu and Mr. Mak were sharing that bedroom. [ 102 ] Third, Mr. Mak and Ms. Chu were travelling north together in the GMC Sierra pickup truck on the late evening of May 23 rd , 2008 when the vehicle was checked in a roadblock in Clinton by Cst. Doerr. [ 103 ] Fourth, many of Mr.

Mak’s personal papers such as old income tax returns, credit card and bank statements were found inside Ms. Chu’s house at Cameron Drive. As Crown pointed out, the weight of this particular piece of evidence is somewhat diminished by the fact that Jie Ying Zhu, Mr. Mak’s ex wife (and Ms. Chu’s sister) also lived at Cameron Drive which leaves open the possibility that Ms. Zhu was the one storing papers for Mr. Mak at the Cameron Drive house, rather than Ms. Chu. F:

Summary: Evidence Implicating Ms. Chu [ 104 ] I have concluded that the Crown has proved beyond a reasonable doubt that Ms. Chu was a party to the production of marijuana that was going on at Jackpine Road. In my view this is the only rational conclusion based on the following circumstances: 1. She was an active participant in selecting the property at Jackpine Road for purchase in December, 2007; 2. She contributed approximately 45% of the purchase price of the property and, as such, was one of two beneficial owners of the property even though her name was not on title; 3.

She was present in the house at Jackpine Road on August 20 th , 2008 which house was clearly being used as a work site “camp” for people working in the marijuana grow operation rather than as a home; 4. She was involved in driving between Jackpine Road and her house at Cameron Drive in Richmond on at least August 17 th , 2008 which demonstrates, along with other evidence, that she had an ongoing involvement with Jackpine Road and was not simply a one-time visitor; 5.

Packaged marijuana, digital scales and other items associated with the marijuana trade were found in her house at Cameron Drive and the circumstances are such that I conclude she had access to the house and knowledge of and control over these and other items located within the house; 6. She was, at all relevant times, involved in a spousal relationship with her co-accused Mr. Mak, who, I have concluded was actively involved in the production of marijuana at Jackpine Road. [ 105 ] I conclude that the Crown has proved beyond a reasonable doubt that Ms.

Chu was a party to the possession of the marijuana found at Jackpine Road for the purpose of trafficking. This is the only rational conclusion when I consider the following circumstances: 1. From the circumstantial evidence listed in points 1 to 6 above, I infer that Ms. Chu had knowledge of the marijuana being grown and processed at Jackpine Road and that she was, at a minimum, a party to the control of that marijuana; 2. The opinion of Sgt.

Oelke, which I accept, is that the marijuana at Jackpine Road was possessed for the purpose of trafficking considering the very large amount (681 lbs) that was being produced and the lack of any evidence that it was for the personal use of any of those present at the property. [ 106 ] For these reasons I also find Ms. Chu guilty of both counts on the Information.

[ 107 ] I do want to add one brief additional comment. It may seem strange to Mr. Mak and Ms. Chu that they are the only ones who have been tried for these offences. It would certainly appear that they were not the only ones involved in the financing and operation of the marijuana grow operation at Jackpine Road. However, it is not my decision who is charged and who is prosecuted. It is the decision of the federal Crown prosecution agency, represented here by Ms. Nixon. My task and my role is to judge those persons who the Crown choses to prosecute on the evidence put before me and that is what I have done in this case. _________________________ E. L. Bayliff Provincial Court Judge