R. v. Lee Date:, 2011 BCPC 49

Citation: R. v. Lee Date: 20110110 2011 BCPC 0049 File No: 81139-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAE KWAN LEE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: P. Benning and T. Iandorio Appearing as agent for T.E. La Liberté, Q.C : K. Cronin Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 10, 2011 Date of Judgment: January 10, 2011 [ 1 ] THE COURT : Mr.

Lee was originally charged with a number of weapons offences that arose out of an incident that took place on November 12th, 2006 at the Plus Karaoke Bar in Coquitlam, B.C. [ 2 ] Part way through the trial, Mr. Lee pleaded guilty to two offences on that Information: the first is committing mischief by discharging a firearm and thereby causing danger to the lives of Mija Jung, Min Jeong Kwak or Sang Woo, contrary to s. 430(2) of the Criminal Code ; the other charge is possessing a loaded restricted firearm without a licence, contrary to s. 95(1) of the Criminal Code .

At the time of the offence, that charge carried a one year minimum jail sentence. [ 3 ] On that date, November 12th, 2006, while a number of people were leaving the Plus Karaoke Bar in the early morning hours, Mr. Lee, who was apparently angry for being asked to leave and while fuelled by alcohol it seems, discharged a firearm several times into the front entryway of the club. Two people received injuries from the shrapnel caused by the discharge of the weapon. [ 4 ] This matter proceeded in fits and starts as it were.

It was back in June of 2009 that I commenced a voir dire into an allegation of abuse of process relating to the delay in prosecuting this matter. The charges were not sworn until March 24th, 2009. There was some evidence that was heard at that time dealing with the genesis of the investigation and how Mr. Lee became a suspect in the shooting. The application was suspended when Mr. Lee retained Mr.

La Libert é as his new counsel. [ 5 ] After several days for several reasons, including the controversial assertion by witnesses that they were promised confidentiality in these proceedings, the trial re-started with the calling of evidence on November 23rd, 2010 and that is some four years after the incident in question.

[6] In November of 2006, Constable Shane Williams was a member of the Port Coquitlam RCMP Major Crimes Division. He metwith some Vancouver Police Department Gang Squad members regarding the shooting at Plus Karaoke Bar. The name of Tony Lee wasprovided by Sergeant Leclair as being a possible suspect in the case. They also had a security video. [7] Various witnesses were interviewed. The list includes the proprietor of the Plus Karaoke Bar, Mr. Jung and his wife, JessicaKwak an employee, and Jim Woo, her boyfriend. [8] Initially, the Jungs were apparently not particularly cooperative.

Later, they provided information and evidence on a suspect bythe name of Tony and the licence plate number of the getaway vehicle. According to Constable Williams, at that time there were noother suspects, however he was not yet satisfied that Mr. Lee was the shooter. [9] Constable Williams gave evidence on the voir dire that in January 2007 he also spoke to another witness, Brian Lim, andultimately Mr. Lim was the only civilian witness who testified in these proceedings prior to the plea. [10] Sometime in April of 2007, Constable Williams became aware that a handgun had been seized from Mr.

Lee's residence onFebruary 18th, 2007 in an unrelated investigation and Constable Williams asked for an analysis of that gun. It turned out that a reportconfirmed a link between the shell casings and the handgun. [11] Brian Lim, as I have mentioned, was the only civilian witness that testified. He gave evidence that he owns a karaoke bar inSurrey and that Mr. Lee had come to him several times after the shooting on November 12th, 2006. Mr. Lee told Mr. Lim that hewanted him to put a credit card scanner or skimmer in his bar so that Mr. Lim could steal credit card information from patrons. Mr.

Limresisted this and was visited several times by Mr. Lee who wanted the skimmers installed or a payment of $10,000 in lieu of that. [12] A second meeting is where Mr. Lee told Mr. Lim -- and this is the crucial evidence in a case like this -- that it was his birthdayrecently and they had a party at the Plus Karaoke Bar and something had happened with fighting. He told Mr. Lim that he had shot agun at that time and said that he had shot and left but that the owner could not report the incident. That essentially was Mr. Lim sayingthat Mr.

Lee had confessed to him the shooting on November 12th, 2006. [13] I thought Mr. Lim was very careful in his evidence. He showed some resistance in divulging the precise conversation that he hadwith Mr. Lee, which was clearly a result of what was obvious to me as palpable fear based on the threatening atmosphere that had beenpresent during those meetings with Mr. Lee. [14] I thought it was quite courageous of Mr.

Lim to perform his civic and legal duty to come to court and testify under thosecircumstances. [15] It seems clear that the shooting on November 12th, 2006 was not related to any similar threats or extortion attempts by Mr. Lee atthe time and vis-à-vis the Plus Karaoke Bar owned by the Jungs; at least there is no evidence of that. The only real evidence as to thebasis for that shooting was the unhappiness that Mr. Lee felt as a result of his birthday party being interfered with by the Jungs'reasonable desire to close the club at the appointed hour. [16] Equally clear, however, is that Mr.

Lee used that incident to create a significant air of oppression and fear later in his dealing withMr. Lim. [17] Mr. Lee is not being sentenced for any threats or extortion attempts, but the circumstances of Mr. Lee's lifestyle and activitiesduring that period cannot be ignored. Mr. Lee has no prior criminal record. [18] Crown has stressed the concern that the public has about increasing firearms offences in our society.

The concern is reflected inthe relatively new minimum penalties that have been legislated by Parliament that came into force May 1st, 2008. [19] This increased concern is also reflected in the case law. The Crown has submitted several cases including R. v. Bacon, 2010BCPC 325 , 2010 BCPC 0325, which is the recent sentencing case involving the notorious Bacon brothers; R. v. Cuthbert,[2007] B.C.J. No. 2523 (B.C.C.A.); and again our Court of Appeal in R. v. Frohock, 2009 BCCA 227. I have also referred to a casecalled R. v.

Ross, 2008 BCSC 854. [20] In Ross, supra, a sentencing decision concerning multiple counts of importing firearms, comments were made regarding theimportance of denouncing unlawful conduct relating to firearms and particularly handguns. In that case, at para. 47 Madam JusticeAllan said: [47] … I do not consider rehabilitation to be a paramount factor. Protection of the public, denunciation and deterrence are far moreimportant factors. [21] In Frohock, supra, a decision of Madam Justice Arnold Bailey concerning the possession of a sawed-off shotgun aggravated bythe fact that when the police approached Mr.

Frohock he reached into his trench coat in an apparent attempt to reach for the weapon. There, the accused had 52 prior criminal convictions; four priors relating to firearms, and five prior convictions specifically related toweapons including one assault with a weapon, seven convictions for assault, four convictions for assault causing bodily harm, dangerousdriving, and he also had a fairly extensive record for violence. [22] The Court stressed in that case that although Mr.

Frohock was a man of Métis descent, given his serious criminal recordincluding all of those prior convictions, and at the time of the offence he was on probation, and given that concurrent sentences weregiven for a total of six years and eight months imprisonment after credit of 14 months he had already served, denunciation was of primeimportance there because there was a risk of serious harm or death to the police officer. [23] Still, the analysis that must be conducted in these types of cases is weighing and balancing the principles of sentencing and thatis the case in every sentencing hearing.

The principles of sentencing are not mutually exclusive; it is not a situation where a sentencing

judge will just pick one principle over another, for example where deterrence is the primary factor or where rehabilitation is the primaryfactor, it is not that either one is the only one. A sentence is really an attempt to find a balance that best serves the interests of both thepublic and the offender. [24] Having said that, the Supreme Court of Canada in cases like R. v. M.C.A. (1996), (SCC), 105 C.C.C. (3d) 327essentially said that it is incumbent upon the judiciary to bring the law into harmony with prevailing social values.

Justice Lamer said atpara. 81: [81] … The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. …Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values arecommunicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also beimposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the CriminalCode. [25] Obviously, with respect to firearms it is quite clear that society is unanimous in its strong condemnation of their use to commitcriminal offences.

That raises again the delicate balance that has to be weighed. [26] How to prevent us from becoming a society where guns are routinely used to solve disputes, while also taking into account thebenefit that society gains from supporting the rehabilitation of a young man who is facing his first criminal conviction? [27] As our Court of Appeal said in R. v. Furness, 2007 BCCA 492 , [2007] B.C.J.

No. 2229 over emphasizing denunciationand deterrence is not appropriate either if there is some promise that a person can be rehabilitated. [28] In this case, the aggravating factors are certainly the use of a firearm and it was apparently a firearm that was retained by Mr.

Leeregardless of where it came from; the reckless nature of the indiscriminate action of just shooting into a business establishment, notknowing whether there were people in harm's way or not is really the most aggravating factor of the incident; later on essentiallybragging about it, and that has to be considered when determining the rehabilitative prospects of Mr. Lee and the apparent lack ofremorse. Later, even after sober reflection, he is talking about it to Mr.

Lim in a way that does not indicate a remorseful attitude that isfor sure. [29] The mitigating circumstances are certainly his youth and the fact that he has no prior record.

There is a guilty plea here albeitpartway through the trial -- I am not going to say midway because that would probably be too generous -- but the age of the matter andthe fact that he has shown himself capable of complying with very strict bail conditions and that is one of the factors that has to weighsort of in favour of the prospect for rehabilitation, I suppose. [30] With respect to those strict bail conditions, counsel did make some submissions concerning that and about how if at all theycould be used and how much it should be used as a factor in sentencing. [31] The case of R. v.

Cuthbert, supra, which I referred to earlier, says something about that. The Court of Appeal there consideredthe approach that should be taken to time that an accused spends on strict bail conditions prior to sentencing.

It essentially adopts theOntario Court of Appeal attitude and finds that a flexible approach should be adopted with time on bail conditions could be considered asa mitigating factor at sentencing in the appropriate circumstances. [32] In my view, the time spent under strict bail conditions is not something to be considered by way of an application of some sort ofmathematical formula to reduce the length of sentence, but instead it is recognized that the Court should concern itself with the degree towhich objectives of sentencing may be impacted by recognizing that compliance with strict conditions of bail for a lengthy period of timeshows an ability to make appropriate decisions is also a factor in the myriad of factors to take into account. [33] In Cuthbert, supra, Our Court of Appeal, in relying on the R. v.

Downs from the Ontario Court of Appeal said at para. 38: [38] … I respectfully agree with the Ontario Court of Appeal that a flexible approach should be adopted, and that a sentencing judgemay treat bail time on stringent conditions as a mitigating factor …. [34] In that case, they declined to because of a number of different reasons. The impact of the bail conditions on the offender's libertywere not such as to cause his life any great difficulty. [35] Here, Mr.

Lee was on essentially 24-hour house arrest and I think it was agreed he was on that bail condition for a period ofabout 270 days and he also spent around 200 days in custody, and counsel are agreed that in light of that he is entitled to approximately13 months of pre-sentencing credit. [36] The Crown seeks a four year sentence.

They say the reckless and indiscriminate nature of the activity and the fact that a firearmwas involved really leads to a conclusion that deterrence and denunciation are the primary factors to consider. [37] Defence says essentially that the time that he has served is sufficient if you were to take into account all of the factors and thebail conditions that he was operating under when he was on bail. [38] The question is: what is the appropriate sentence?

The use of guns in my view in Canada in these circumstances must bestrongly deterred and discouraged. [39] The courts have been fairly clear about what factors need to be stressed, and again I have already indicated my belief that in theweighing of those factors one cannot ignore the rehabilitative prospects of a young man who is facing his first conviction. Having saidthat, the presence of guns in our community really needs to be discouraged in a significant fashion. The issue with respect to Mr. Lee is

what is the appropriate sentence? I must take into account his youth and his rehabilitation prospects. I have to balance those with those other very important principles of denunciation and deterrence. [ 40 ] In my view, an appropriate sentence in this case would be 30 months in jail. That consists of a one year minimum sentence on count 6 and that is served concurrently with a 30 month sentence on count 5 which is the discharge of the weapon which is a very serious activity and extremely dangerous. Somebody could have easily died in that incident.

He is to be credited for 13 months of pre-sentence credit and I have also taken into account all the factors, including the strict bail that he was on but I am taking into account all of that in coming up with the sentence that I have. That leaves Mr. Lee with 17 months of further incarceration that he has to serve. [ 41 ] That sentence is in my view a balance of trying to take into account the seriousness of guns, but also the fact that he is very young, he has never had a criminal conviction, and it is not time to give up on Mr. Lee. He needs to be able to obtain as much credit as he can in the institution.

He can himself with the parole authorities determine in a large way of how much further time he is going to spend in custody and that really has to be something that is determined by his behaviour inside the institution. [ 42 ] There are ancillary orders, Mr. Lee, that need to be dealt with. In addition to that sentence and pursuant to s. 487.051 (

a) of the Criminal Code you will provide a sample of your DNA. Pursuant to s. 109(1) of the Criminal Code there will be a lifetime prohibition for you owning or possessing any firearm. Pursuant to s. 490.1 of the Criminal Code , there is a forfeiture order of the gun. The victim fine surcharge is waived.