Fang v R

[2010] NSWCCA 254

Court of Criminal Appeal (NSW)|2010-09-06|Before: Hodgson JA, Price J, Fullerton J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-09-06

Before

Hodgson JA, Price J, Fullerton J

Source

Original judgment source is linked above.

Judgment (129 paragraphs)

[1]

Background facts 5 The following facts can be taken as common ground or as clearly proved. 6 The appellant is a Taiwanese national. He came to Australia on 25 August 2006 on a study visa. He was then about 25 years old, and to the knowledge of the Australian police had no criminal record. Soon after, he met and became friends with one Eddy Wu. On 20 January 2007 the appellant purchased a mobile phone, No XXXX XXX 678. At that time he was living at an address in Campsie. He gave his correct name, address and date of birth in acquiring that mobile phone. 7 In about May 2007, the appellant and Eddy Wu were looking for new accommodation closer to the Lindfield campus of the University of Technology, where the appellant had been accepted for a Master's course in Event Management. In June 2007 they obtained accommodation at 23/54 Shirley Road Wollstonecraft, signing a lease for it on 25 June 2007. 8 Meanwhile, on 5 June 2007 there was a remittance of $10,000 made by the appellant's mother in Taiwan into the appellant's ANZ bank account. On the same day, there was another remittance of $15,861, purportedly by one Yu Chen, with an address given in British Columbia, Canada. 9 On 15 June 2007, the appellant withdrew $7,410 from his bank account; and on 25 June 2007 the appellant left Sydney and went to Taiwan. He returned from Taiwan on 21 July 2007; and following his return he rented a room in Archer Street Chatswood. 10 On 20 July 2007, there was a further remittance of $40,000 from the appellant's mother in Taiwan to the appellant's ANZ bank account. On 25 July 2007, the appellant withdrew $53,000 from this bank account, depositing $24,000 into an ANZ V2 Plus account, and paid $8,000 to Australia Taiwanese Overseas Student Service Centre (ATOSSC) (apparently, student fees). 11 In August 2007, State and Federal Police became aware of an investigation by Canadian authorities in relation to the importation of drugs. This investigation concerned telephone contacts between China and Canada, and during these contacts there was reference to a mobile telephone XXXX XXX 982 said to belong to one "Peter". 12 OSS Broadline Moving (OSS), an international relocation company, handled the movement of 16 boxes, purportedly of household goods, from Vancouver Canada by ship to Brisbane, then by rail to Sydney, then by truck to 54 Shirley Road Wollstonecraft. 13 There were in evidence shipping documents produced by this company in relation to this shipment. A document dated 3 July 2007 identified Alex Huang as the customer, gave 23/54 Shirley Road Wollstonecraft as the delivery address, and associated that address with the appellant's mobile number XXXX XXX 678. A document entitled Manifest showed the consignee as Chor Ning Wong, giving the Shirley Road address and the appellant's mobile phone number. The Ocean Bill of Lading identified the shipper as Chor Ning Wong, with a Canadian address, and also identified the consignee as Chor Ning Wong with the Shirley Road address and the appellant's phone number. The documents also included an undated authorisation letter, purportedly signed by Chor Ning Wong, giving a passport number XXXXX770, authorising the shipper to act on his behalf. This document was accompanied by a photocopy of the face page of a Canadian passport with that number, purporting to be the passport of Chor Ning Wong. There was evidence that a person of that name existed and that this was a genuine passport. The documents also showed that there was pre-payment for delivery, including Customs clearance and unpacking, in the sum of $339.90. 14 A copy of the Ocean Bill of Lading was subsequently found in the appellant's accommodation, and it can be inferred that this was sent to the appellant. 15 The appellant's phone records show telephone calls from his mobile phone to OSS Brisbane on 20 August 2007, 21 August 2007, 31 August 2007 and 3 September 2007. 16 Also commencing on 20 August 2007 was a series of emails between an email address under the name of Alex Huang and OSS, with those from the Alex Huang address purporting to be messages from "Chor Ning Wong" or "Wong". The first of those messages identified the subject as "Regarding the shipment from Vancouver Canada", and was as follows: To who this may concern:

[5]

Best Regards Wong 19 A copy of the email of 3 September 2007 identifying the OSS bank account was subsequently found in the appellant's flat, and it may be inferred that the appellant received this copy at some time on 3 September 2007. At 3.19 pm on that day, an email was sent to OSS from the appellant's email address enclosing an image of a deposit stub, showing a deposit of $223 into the OSS account on 3 September 2007, this deposit having been made by the appellant. 20 On 5 September 2007, police obtained a telephone intercept warrant for a mobile number XXXX XXX 310, being a number used by one Zhang. Between 5 September and 10 September, police intercepted a number of phone calls made to or received by this phone. The calls indicated that Zhang was waiting for something to be received. 21 The shipment of 16 packages was delivered by truck mid-morning on 10 September 2007 to the Shirley Road address. The appellant took delivery of the packages, and they were unloaded into a garage under the unit block. The appellant signed the OSS "job docket" in the name of "Wong". 22 On the same day, in a telephone call at about 12.42pm, the appellant called and spoke to Zhang. The appellant said "hello is that Peter?" and also said "I am Peter too". The appellant and Zhang agreed to meet at the University of Technology, Sydney (UTS) car park in about an hour. In another call at about 12.55pm, the appellant again called Zhang and asked Zhang instead to meet him at Wollstonecraft station. At 12.57 pm, the appellant sent an SMS to Zhang which said "Wollstonecraft station, North Shore Line". At 1.05 pm, the appellant spoke again to Zhang, who said he would try his best to arrive at 2 o'clock. The appellant said "thank you for your trouble". 23 Police arranged surveillance to attend near Wollstonecraft railway station. At 2 pm Zhang spoke on the telephone to the appellant, and said he had arrived. The appellant said he would "come down". Around the same time, police saw appellant walking along Shirley Road, talking on a mobile phone. At around 2.09pm the appellant called Zhang again, when the appellant asked "where side are you on?". Shortly afterwards, the appellant got into the front passenger seat of a white Toyota, which Zhang then drove along Shirley Road. The appellant directed Zhang to the units in Shirley Road, and the Toyota entered the car park. The appellant got out of the Toyota and walked to a Mitsubishi Lancer which was parked three spaces away, and removed a brown box from the boot of the car. The boot area of the Toyota which was parked nearby was also open. 24 Police then arrested the appellant and Zhang. In the boot of the appellant's Mitsubishi, police found five unopened cardboard boxes. Inside those boxes police found glassware wrapped in paper, and a crystalline substance, which was hidden between the inner and outer layer of the boxes. A gross quantity of 12.4 kilograms of this substance was removed from the boxes, which contained methamphetamine at a purity of about 66%: equating to 8.2 kilograms pure methamphetamine. Evidence was given at the trial that the estimated street value of the drug was between $4,966,000 and $9,932,000, and between $1,862,250 and $2,110,550 if sold in one kilogram lots. 25 Police searched the appellant and his car. In his wallet, they found a Westpac Bank deposit stub showing a deposit of $223 on 3 September 2007 into the account of OSS World Wide Movers; and they also found in the appellant's possession the mobile phone with the number XXXX XXX 678, being the phone used by the appellant in the telephone calls to Zhang and OSS. 26 Police also searched unit 23. They found there a laptop computer belonging to the appellant, which was switched on displaying pages from an internet "chat" that the appellant under the name Vasco had been conducting with someone identified as Jas@Shanghai. The chat included the following (partly in English, and partly in Asian characters): Vasco: Do I need to tell him to go upstairs? Jas: Yeah Vasco: [there then appeared a form of coded signals, the only suggested translation of which was one given by the appellant in evidence] Jas: Bring him to do the counting [in oral evidence, the appellant said this was "collecting"] … and wait for my call to let him go. Vasco: OK … I'm going now then. Alright? …. wait contact [in oral evidence, the appellant said this was "communicate shortly"] Jas: Yeah … just now had a vibration for incoming call 27 A search of the computer hard-drive revealed a "text file" in Asian characters which had been created on 31 August 2007 and included the number of the relevant shipping container and bill of lading, and also included the words "Number 7 and Number 12 … 5 boxes in total". 28 In taped records of conversations conducted by police with the appellant at Shirley Road, he told them: That he did not know what was in the boxes;

[17]

The defence case 30 The appellant gave evidence at the trial. 31 He said his English name is Vasco, and that he was born in Taiwan and obtained an Arts degree in early 2006. He came to Australia in August 2006 to do further studies and commenced a Master's degree at UTS Lindfield. His family supported him financially. 32 In about 2005, when still in Taiwan, he met a girl through an internet "chat room". She used the name Lillian, although later he got to know her as Jasmine. In the chat room, he was known as "Taipei cool man Peter". He became friendly with Jasmine, and in 2007 he began to have more frequent contact with her over the internet. 33 The appellant said that in about May 2007, Jasmine told him that she wanted to come to Australia and wanted him to do her a favour, because she wanted to clean up her apartment and move her personal stuff to Australia. He said that Jasmine wanted him to look for accommodation for them both, and she told him she would send $15,000 to his bank account. He supposed that the $15,861 deposited to his account by a Yu Chen of Canada was money from Jasmine. 34 The appellant said that he was suffering from anxiety and depression, and that his mother was sending him medication from Taiwan. He said that the text file found by police on the hard drive of his computer had been provided to him by Jasmine, and that the numbers 7 and 12 related to numbers on the box and that the packages 7 and 12 were five boxes altogether. He said that Jasmine told him that these boxes belonged to her brother and she wanted him to give them to her brother's friend. He wasn't told that Jasmine's brother was in Australia, and he supposed he should be in Canada. 35 The appellant agreed that he had called OSS Movers and had used the name "Wong"; and he said that he used this name because it was the name on the parcel. He also said that he deposited $223 into the OSS bank account on 3 September 2007, and said that he did this because Jasmine had put money into his account. 36 The appellant agreed that he rang Zhang on 10 September 2007, and said that Jasmine told him he was a friend of her brother. He told Zhang his name was Peter because he had used that name when he first met Jasmine and Jasmine wanted to make it like a special nickname between them. He said he changed the meeting with Zhang to Wollstonecraft because he was doing a university assignment at the Shirley Road unit. He said that when the boxes were delivered, he signed the name "Wong" because it was "her stuff, I signed for her, so I signed her name Wong, just for, I don't know, convenience"; and that he got that name from the name Chor Ning Wong on the docket. 37 The appellant agreed he had engaged in the chat session with Jasmine shortly before leaving to meet Zhang. He asked about telling "him" to come upstairs to be polite, that is, for him to have a cup of tea or take him something. The appellant said that he used the coded symbols on the page to say something that "I don't say like directly", and to show that he was unhappy (because he was busy doing an assignment); and that Jasmine had a computer programme that would allow her to understand the symbols. The appellant said in evidence that he could not exactly remember what the symbols meant, but that "what I meant is I have put those boxes into my car or they are downstairs, or something like that". 38 The appellant said he got into Zhang's car and took Zhang back to the Shirley Road address where the boxes were in the boot of his own car. He had taken the five boxes from the big boxes in the garage during the morning, and had known where to look for the five boxes by the numbers that had been given to him (Number 7 and Number 12) a couple of days previously. 39 The appellant said that when spoken to by police he referred to "the guy in the Canada" because he realised he was in very serious trouble and he wanted to protect Jasmine. He said that when he received the Ocean Bill of Lading with the name Chor Ning Wong he asked Jasmine if that's her name and she said yes. He said he loved Jasmine and trusted her, and he did not tell his friends about her because he was embarrassed. He said he did not suspect there were narcotics in the boxes. 40 In cross-examination the appellant denied that he wanted to check Zhang out before taking him to the boxes. The appellant agreed that when he spoke to police after his arrest there were no arrangements at all for the collection of the 16 boxes left in the garage. He agreed that when he was spoken to in the taped interviews by police at Shirley Road he made no mention of the names Jasmine, Chor Ning Wong, or of a girlfriend or the brother of any girlfriend. He said he wanted to protect her; but he claimed that he did mention the name Jasmine to one of the police when the video was turned off. He said that when he got the email with the name Alex Huang on it, he thought it was Jasmine's brother but he didn't pay attention to the name. 41 The appellant agreed that as far as he knew, Jasmine did not have a visa for Australia and did not have an address to live in Australia. He also said that on 9 September 2007, Jasmine told him on the internet chat site that she could not come to Australia and that she would arrange for her brother to get the boxes back to Canada. He agreed that he had not mentioned this in his evidence in chief and had not mentioned it to police after his arrest. 42 The appellant agreed that he did not tell the police that he had received some sort of chat room direction to open boxes Number 7 and 12. He denied that he was using code when he said "I am Peter too" in the phone call with Zhang at 12.42pm on 10 September 2007. He agreed that in that phone call he did not provide his address to Zhang. 43 In re-examination, the appellant said he changed the meeting from the city to Wollstonecraft because he was busy doing a university assignment. 44 The appellant called evidence of good character, which was not disputed by the Crown. The appellant's mother (a university professor in Taiwan) gave evidence. She said that the appellant had been a good student and a good son, and that he had been seeing a psychiatrist in Taiwan for major depression for a number of years before coming to Australia.

[98]

[96] Even based on the Crown version of what happened, the totality of the evidence is not, in my opinion, capable of excluding a reasonable hypothesis that the appellant was doing no more than assisting a fellow countryman, who was a visitor to this country, by extending assistance to him in driving the vehicle and in opening and closing the car boot. The evidence adduced was incapable of carrying with it an inference of knowledge of such force that it could not reasonably be gainsaid. To apply the words in Martin v Osborne (supra), the degree of probability that the circumstances established were accompanied by the existence of the state of relevant knowledge of the appellant (that it was necessary for the Crown to prove) does not exist in this case. 58 The principles applied in Ye are applicable in this case. Certainly, it is not sufficient that the circumstances raise suspicion, even extremely strong suspicion, or that the circumstances are sufficient to support the necessary finding on the balance of probabilities. It is necessary that the circumstances be capable of supporting the necessary finding beyond reasonable doubt; and that would not be the case unless the degree of probability that the occurrence of the facts proved must be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. 59 In my opinion, the facts proved in this case could properly be considered by a jury to satisfy that requirement. The matters which weigh particularly in my thinking are as follows, along with the matters relied on by the Crown in its submissions referred to earlier. 60 First, there is the payment of about $15,000 into the appellant's account. This was paid at a time when the appellant, on his own account, had no information from "Jasmine" as to when she was coming to Australia or what steps were to be taken by the appellant on her behalf which might require the use of money. Further, although the appellant on his account was in close communication with "Jasmine", he said he assumed it was her that paid the money because she had said she would send money. 61 Second, the appellant was involved in a number of telephone calls to OSS when, on his account, he had no particular reason to be concerned about the time for delivery. His explanation that this was at Jasmine's request could be considered implausible. In addition, the association and/or communication between the appellant and the author of the Alex Huang emails was explained by the appellant in terms of an email received from Alex Huang after Jasmine had said her brother would email him; but the striking similarities between the emails quoted above at pars [15] and [17] suggest a closer association and/or communication between the appellant and the author of the Alex Huang emails than the appellant acknowledged or explained. 62 Third, it is clear that whoever had the drugs packed and sent intended that they go to Zhang and/or associates of Zhang, and also that, until Zhang was taken to the boxes by the appellant, neither Zhang nor his associates knew where the drugs were in Australia. Not only was the appellant put in control of the drugs, worth millions of dollars, but also he was the one person in a position to pass them on to the persons to whom they were to go. 63 Fourth, the internet chat displayed on the appellant's computer did not suggest a communication between people who were arranging for some property of "Jasmine's" brother to be picked up by a friend of the brother. In particular, the explanation given for the use of the coded symbols for what the appellant said they meant could be considered extremely implausible; and the explanation for "do I need to tell him to go upstairs" could also be considered extremely implausible, especially in combination with "Jasmine's" instruction "wait for my call to let him go" (to which the appellant responded "OK"). 64 Fifth, the procedures adopted by the appellant in bringing Zhang to the boxes can be considered inconsistent with the appellant having property of "Jasmine's" brother to be picked up by a friend of the brother. The appellant did not give Zhang the location of the boxes, but arranged to meet him and then take him to the boxes. The appellant's denial in cross-examination that he wanted to check Zhang out first could be considered extremely implausible. 65 I do not suggest that any of these considerations, or the considerations relied on by the Crown in its submissions, would be sufficient on its own to prove the appellant's guilt beyond reasonable doubt; but in combination, in my opinion, they could do so. 66 For those reasons, I would not allow this ground of appeal, and I would order a new trial of the appellant.