LAW, Chun Hing v REGINA

LAW, Chun Hing v REGINA - [2006] NSWCCA 100 - NSWCCA 2006 case summary — Zoe

[16]

The Fourth Importation - November 1994 25 On 11 October 1994 the applicant returned to Sydney. On 13 October "Andy Law" remitted money to Joseph Law in Hong Kong. 26 On 15 October 1994 the applicant rented new premises at 4/183 Bridge Road, Glebe in the name of "Law Chun Hing." It is to be observed that at that time both rental properties at Bulwarra Road, and the Waldorf Apartments were still being rented, and were available to him. 27 On 17 October 1994 the applicant again left Sydney for Hong Kong. 28 On 12 November 1994, two wooden crates weighing 230kg said to contain "glass sculptures" were to be consigned to: "Law Chun Hing, 4/183 Bridge Road Glebe Sydney NSW Australia, Tel. 0414 876 321" 29 The telephone number was the mobile telephone service which had been previously rented by the applicant in July 1994. 30 The applicant returned to Sydney from Hong Kong on 13 November. 31 On 16 November 1994 the applicant had electricity connected in his own name to the premises at Bridge Road, Glebe and also leased a telephone land line to those premises. On 18 November 1994 the consignment was delivered by carrier to 4/183 Bridge Road, Glebe. 32 In January 1995 in the course of the investigation of these importations, police searched the Bridge Road, Glebe premises. They were empty, but for the dismantled wooden crates and glass paintings that, to all intents and purposes were identical to those seized in the January 1995 importation addressed to Brian Kuan at 601 Harris Street. The lining on the back of the glass paintings had been torn open and the space or cavity in which packets had been secreted was clearly visible. The outline of the secreted packets which had been wrapped in carbon paper (identical to the procedure in the January 1995 importation) could be observed. 33 The applicant's fingerprint was located on a drinking glass in the otherwise unfurnished flat and minute traces of heroin were detected by chemical analysis both in the carpet and within the cleaning bag of a vacuum cleaner which was located in the flat at the time of the search.

[19]

[1] It is incontestable that the January 1995 operation introduced into Australia in the order of 40 kilograms by pure weight. [2] It is incontestable that the November 1994 operation introduced into Australia a quantity of heroin, the pure weight of which cannot be fixed precisely. It is, however, clear in my opinion that the precise quantity was more, and a good deal more, than the 1.5 kilogram statutory threshold for a commercial quantity of heroin. There can be, in my opinion, no reasonable doubt about that conclusion when sensible regard is had to the similarity, indeed the virtual identity, of the comparative methodology of each of the two consignments. [3] The July and August consignments are more difficult to assess, in that no heroin was actually recovered from either consignment. Two possible inferences arise. One is that the consignments contained heroin; the other is that they did not. I do not think that it matters a great deal in practical terms, for present purposes, which alternative is preferred. Should the correct inference be that the consignments did not contain heroin, then the overwhelming inference would be that the consignments were in effect trial runs for, relevantly, the importations in fact effected in November 1994 and January 1995. That further inference could not affect the quantification now being discussed; but it would certainly affect the criminality of the ongoing conspiracy, and of the individual conspirators. I am satisfied beyond reasonable doubt that it is the former of the two postulated alternatives that should be preferred. Put another way, I do not think that the latter of those alternatives, while literally possible, is reasonably possible. There is no persuasive evidence that there was, at the relevant times, any market, let alone a thriving market, for the so-called "glass sculptures". There is no persuasive evidence of any other legitimate commercial objective(s) of either consignment. That lack of evidence, coupled with what is undoubtedly established about the November 1994 and January 1995 consignments, is more than sufficient to rule out a reasonable possibility of some innocent explanation(s) for the July 1994 and August 1994 consignments. Once that point has been reached, then the reasoning in [2] above as to quantity applies also to these two further consignments." 39 There are three grounds of appeal.

[20]

Ground One - The applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon him and that imposed upon his co-offenders 40 Mao was sentenced by Barr J who determined that the appropriate starting point was imprisonment for life. However, his Honour, consistent with the authorities at that time, had regard to s 16G of the Crimes Act (Cth) (which has since been repealed) and reduced the head sentence to a term of twenty-four years. Mao pleaded guilty, but only on the fifth day of his trial. Barr J noted that he had no defence and it does not seem that his Honour made any allowance for the plea of guilty. Barr J set a non-parole period for Mao of sixteen years. 41 In his remarks on sentence with respect to Mao Barr J said: "I conclude … that Mao was employed at the highest level in the Australian part of the organisation and that he reported to those overseas who were in control. He was not a principal but to my mind his seniority and responsibility in an importation of such an enormous amount of heroin places his criminality in the most serious class of cases. I see no significant difference between the criminality of Mao and Tam." 42 Barr J also sentenced Tam. His Honour determined that the appropriate starting point for the sentence for Tam was also life imprisonment. However, he again applied s 16G resulting in a head sentence of twenty-four years. This was further reduced to sixteen years in the case of Tam because of his assistance to the authorities. His Honour set a non-parole period for Tam of ten years. 43 When considering the sentences imposed on Tam and Mao the sentencing judge said in relation to the applicant: "Of the prisoner's fellow conspirators, Tam and Mao have been sentenced upon conviction for having conspired to import not less than the commercial quantity of heroin. Both sentences were passed by Barr J on 5 September 1997. Barr J was of the opinion that life imprisonment was an appropriate sentence in each case; but his Honour erroneously applied section 16G of the Commonwealth Crimes Act to that putative head sentence, thereby reducing the head sentence to one of 24 years' imprisonment. In Tam's case, his Honour reduced the head sentence further, and to 16 years' imprisonment, in consideration of Tam's past, and promised future, and assistance to law enforcement authorities. Both Tam and Mao had entered late pleas of guilty. Non-parole periods were set in each case: 10 years for Tam; 16 years for Mao. The erroneous application of section 16G and the other mitigating considerations which I have mentioned entail, in my opinion, that the present prisoner's proper sentence does not have to be adjusted in order to assuage that justified sense of grievance of which the relevant authorities speak." 44 The applicant accepts that when sentencing Mao and Tam Barr J, because of the authorities by which he was then bound, misapplied s 16G. However, it is submitted that the sentencing judge erred if he placed any weight on the fact that Barr J recognised that Tam and Mao had pleaded guilty. Furthermore, it is submitted that even if Barr J's reasoning should not now be accepted it did not follow that the sentences ultimately imposed were wrong. It is submitted that the sentences which his Honour imposed on Mao and Tam were not manifestly inadequate and the sentence imposed on the applicant should have been proportionate to those sentences. It is further submitted that even if the sentences imposed on Mao and Tam were inadequate they did not become irrelevant see R v Tisilandis (1982) 2 NSWLR 430 at 434. 45 In response to the applicant's submissions the Crown emphasises that the evidence disclosed significant differences between the criminality of the applicant and that of Mao and Tam. Three of the five importations were consigned to the applicant. Although the fifth consignment was addressed to Brian Kuan this was only made necessary by the fact that because the applicant's visa had expired he was not able to lawfully travel to Australia to receive the consignment. The sentencing judge found that "there was an overwhelming rational inference that the prisoner intended to be associated actively at the Australian end of the January 1995 importation; that the only reason why he did not in fact return to this country for that purpose was that he was refused the necessary entry visa; and that the appearance on the relevant scene of Brian Kuan was the direct result of the need for the conspirators to find a last minute substitute for the prisoner at the Australian end of the January 1995 importation." 46 The Crown case against the applicant was that he was involved in an on-going and open ended conspiracy to import large quantities of heroin into Australia. That conspiracy was only brought to an end by the apprehension of the other co-conspirators in January 1995. 47 The Crown emphasises that Mao's involvement was confined only to the January 1995 importation. He, together with Tam, oversaw and directed the activity of Kuan. 48 With respect to Tam, the Crown emphasises that Barr J found that he was involved on his own account in the activities of the conspirators. There was no evidence that either Tam or the applicant were involved in the first importation in January 1994. Tam apparently agreed with Joseph Law Ling to become involved in the proposed importation into Australia in March 1994 and travelled to Sydney for that purpose. However, the proposed importation was cancelled when the heroin ceased to be available. 49 The July 1994 importation consigned to the applicant involved Tam remitting significant monies overseas. This also occurred in relation to later importations. It was submitted before Barr J that his Honour should find that Tam had only a limited role in the conspiracy. His Honour did not accept the submission and said of Tam: "When he had been concerned with the transmission of money during 1994, he would always arrive shortly after delivery of the consignments of heroin. On this occasion [that is January 1995] he arrived over a week before its arrival. He met the third man [Kuan] on the evening of his arrival in Sydney and gave him some limited directions, including directing him or assisting him to obtain a mobile phone and pager. It was Tam who telephoned the customs agent to ask about the expected delivery of the crates. He handled the money for the three. He saw to changes in the third man's [Kuan] accommodation when necessary. He performed supervisory functions. He was also concerned with the selling on of the heroin, and appears to have been the one who made telephone contact with interested persons in Melbourne … he recruited Mao to the organisation but had a more diverse role to play than Mao …." 50 His Honour concluded: "… I am satisfied that he was engaged at the highest level of the organisation in Australia and reporting to persons overseas. The seniority of his responsibilities and the quantity of heroin with which he was concerned bring Tam's criminality into the worst category of cases." 51 When sentencing Tam, Barr J said that he reduced his head sentence: "by a further one-third to allow for the assistance" which Tam had given. That assistance included giving evidence at the applicant's trial. An analysis of the reasoning process adopted by Barr J confirms that his Honour commenced with a head sentence of life imprisonment, and reduced the sentence by one-third so as to take account of the absence of remissions in New South Wales. Accordingly, the Crown emphasises that the head sentence before the reduction for assistance would have been twenty-four years with a non-parole period of fifteen years. 52 When sentencing the applicant his Honour expressed difficulty in identifying the applicant's standing in the conspiracy with "absolute precision." However, his Honour was satisfied that the applicant's role was much more than a single involvement with a single consignment. Although his Honour found that the applicant could not be characterised as having been a principal: that is to say, as someone at the very apex of the on-going joint criminal enterprise he could fairly be characterised as having been "at a senior level within the organisation where he was largely unsupervised and fulfilling a critical and central role in the overall conspiracy up until the time when he was unable to once again obtain entry into Australia in late December 1994." 53 I am satisfied that the applicant's submission in relation to ground one should be rejected. It must be remembered that parity of sentencing requires that a sentence be imposed on a co-offender which does not engender a justifiable sense of grievance. A grievance may be justified in the event that an objective bystander could conclude that an injustice has occurred; Lowe v The Queen (1984) 154 CLR 606 at 613. In Postiglione v The Queen (1997) 189 CLR 295 Dawson and Gaudron JJ observed at 301: "Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them." 54 I am satisfied that the level of involvement of the applicant in the organisation and management of the enterprise justified a sentence greater than that of Tam or Mao. Although originally recruited by Tam the applicant played a critical role in ensuring the continuing success of the enterprise both here and overseas. Moreover he did not have the benefit of a plea of guilty. 55 It is apparent that the sentence imposed on both Tam and Mao was far less than would have been imposed if Barr J had not been constrained because of the state of the authorities in respect to s 16G. However, the fact that Tam and Mao received a benefit from the law as previously understood does not mean that the applicant can carry a justifiable sense of grievance. 56 The sentence which his Honour imposed was not such as to warrant the intervention of this Court having regard to the sentence imposed on his co-conspirators.

[23]

Relevant decisions 60 At the request of the Court the parties were requested to carry out a review of the decisions of sentencing courts, or on appeal, throughout Australia in relation to very serious drug importation offences where life sentences have been imposed. Those researches revealed that there have been more offenders sentenced in New South Wales than in any other State. Most of the sentences imposed in New South Wales involve a single importation rather than a series of offences reflecting a large scale trafficking enterprise as occurred in the present case. The amounts of narcotics quoted in the following review are expressed in terms of the pure quantities. 61 In R v Cheung Ying-Lun (1999) 154 FLR 259 this Court dismissed an appeal against sentence. The offender was found guilty of being knowingly concerned in the importation of 38 kilograms of heroin. He was convicted after trial and sentenced to life imprisonment with a non-parole period of twenty-one years and 11 months. 62 R v Flavel [2001] NSWCCA 227 involved the importation of a single quantity of 171 kilograms of cocaine. The offender was convicted after trial and sentenced to life imprisonment with a non-parole period of twenty-five years. An appeal against his sentence was dismissed by this Court. In R v Gonzalez-Betes [2001] NSWCCA 226 an appeal by a co-offender against a sentence of life imprisonment with a non-parole period of twenty-two years was also dismissed. 63 R v Campillo Vaquere [2004] NSWCCA 271 was an appeal by another co-offender against sentence which was dismissed by this Court. The offender was found to have been knowingly concerned in the importation of 171 kilograms of cocaine and was sentenced to life imprisonment with a non-parole period of twenty-four years. The offender was identified by the sentencing judge as having a role in the enterprise which his Honour described as "high" but he did not find him to be the principal. 64 In R v Wei Ming Chen and R v Khong Hoi Lau (2002) 130 A Crim R 300 both Chen and Lau were convicted of importing a single quantity of 252 kilograms of heroin. They were both sentenced to life imprisonment without a non-parole period. They were convicted after trial along with two accomplices. Lau was found to have recruited Chen to the enterprise which involved a small cargo boat on which the heroin was carried until it was intercepted by a speed boat off the coast of northern New South Wales near Port Macquarie. The primary vessel had voyaged from Hong Kong to the Andaman Sea where the heroin was loaded. The crew were largely of Indonesian nationality. Lau had originally recruited one of the co-offenders who had been assigned to make arrangements for the beach landing of the speed boat in Australia. 65 Their Honours (at 374) quoted the findings of the sentencing judge that: "Lau must be seen to have been a person entrusted with large sums of money needed to arrange the importation of heroin and to have been a person close to Fei Lo Nam or whoever was the head of the enterprise and in whom was reposed sufficient trust to allow him to accompany the heroin down to Australia. A false passport found at Grant's Beach, appears to indicate that it was Lau's intention to come ashore with the heroin." 66 The sentencing judge, found that Lau was (as quoted by their Honours at 375): "… an integral part of the organisation which brought this heroin to Australia. He appears to have been its paymaster, if not its financier, and to have played an important role in accompanying the heroin to this country. I regard him as a [principal] in the enterprise and not merely one of the most important persons in the enterprise amenable to the criminal law of this country." 67 In relation to Chen the sentencing judge found that Chen had accompanied the heroin to Australia. He was involved in unpacking the heroin from sacks and rearranging its packaging. Chen then travelled to shore on the speed boat. When arrested he was found in possession of a pistol and false passport. In relation to Chen his Honour, the sentencing judge, found that he was (as quoted at 375): "…a person in this organisation in whom was reposed sufficient trust for him to have been given the responsibility of accompanying approximately 400 kilograms of heroin powder through its journey from wherever it was exported to the middle of the Andaman Sea and thence to Australia, where, armed with both a gun and a false passport, the prisoner saw the heroin to the shore. As with Lau, I regard him as not merely one of the two most responsible persons amenable to the criminal law in this country but one of the principals in this enterprise." 68 In finding that the offences committed by both Chen and Lau were crimes of "massive proportion" the sentencing judge determined that the most serious penalties provided by the law should be imposed. 69 In R v Chung Tak Chan [2005] NSWCCA 154 the offender was convicted of being knowingly concerned in the importation of 252 kilograms of heroin. He pleaded guilty and was sentenced to imprisonment for life with a non-parole period of thirty years. On appeal the non-parole period was reduced to twenty-eight years. 70 In reducing the non-parole period for Chan Barr J, with whom Spigelman CJ, Wood CJ at CL and Hislop J agreed (Hidden J dissented), found that he had the senior role in the enterprise. As a consequence, Barr J observed that he would ordinarily have expected his sentence to exceed that of the others. However, because of the recognition of his early plea and his co-operation his Honour determined that a non-parole period of twenty eight years rather than thirty years would be appropriate. 71 In R v Fan the offender, who was involved in the enterprise with Chan, was sentenced to imprisonment for life with a non-parole period of twenty eight years. Although he pleaded guilty he had prior convictions and his appeal was dismissed. Chung, who was also part of that enterprise, was convicted and sentenced to life imprisonment with a non-parole period of twenty eight years. 72 In R v Diez and R v Fry which are reported with R v Bartle & Ors (2003) 181 FLR 1 the offenders were convicted of being knowingly concerned in the importation of 383 kilograms of cocaine. It was a single offence and each offender was convicted following trial. Sentences of life imprisonment with a non-parole period of twenty-five years were imposed. Appeals against sentence were dismissed by this Court. In relation to Diez the sentencing judge found that he was a principal organiser of the enterprise which involved the importation of cocaine from Colombia to Australia. He had contacts in Latin America which were of vital importance to the scheme. His role was to communicate with those contacts and to arrange for payment and was relied upon to conduct the business of the enterprise except when they were actually in Australia. In relation to Fry the sentencing judge found that although he was not in charge of the Australian and New Zealand phases of the enterprise he played a significant role in organising the importation, in going to Panama with Diez and then in sailing by ship onto Australia. 73 A review of other cases shows that although varying non-parole periods have been imposed, a non-parole period of twenty five years which was imposed in Diez and Fry has been imposed on at least four occasions for high level involvement in the importation of a large quantity of narcotics in a single enterprise. On other occasions lesser non-parole periods have been imposed (R v Gonzales-Betes - 171 kilograms of cocaine a non-parole period of twenty two years; R v Ng [2001] NSWCCA 305 - a single importation of 69 kilograms of heroin - life imprisonment with a non-parole period of eighteen and a half years; R v Ismunandar and Siregar (2002) 136 A Crim R 206 - 252 kg of heroin in a single importation - life imprisonment with a non-parole period of twenty years; R v Neale (2004) 148 A Crim R 493 - importation of 52 kg of MDMA - life imprisonment with a non-parole period of twenty one years reduced on appeal to a non-parole period of fifteen years). 74 The Court has also been referred to decisions in other States. In Western Australia in R v Suarez-Mejia (2002) 131 A Crim R 577 the Western Australian Court of Criminal Appeal dismissed an appeal in relation to a sentence of life imprisonment with a non-parole period of twenty years in respect of a single importation of 707 kg of cocaine. In R v De La Espriella-Velasco [2002] WASCA 131 the offender who was a co-offender with Suarez-Mejia was convicted at trial of importing 707 kg of cocaine. He was sentenced to life imprisonment with a non-parole period of twenty six years. He had a prior conviction for importation of cocaine. An appeal against conviction and sentence has been dismissed. 75 In R v Reaves (2004) 147 A Crim R 26 the offender who was also a co-offender with Suarez-Mejia pleaded guilty to importing 707 kg of cocaine and was sentenced to twenty five years imprisonment with a non-parole period of fourteen years. A Crown appeal was allowed and a sentence of life imprisonment was imposed with a non-parole period of eighteen years. In R v Melgar Sevilla McKechnie J in the Western Australian Supreme Court on 2 August 2005 imposed a sentence of life imprisonment with a non-parole period of twenty one years in respect of an offender who pleaded guilty to aiding the importation of 78 kg of cocaine. 76 In Victoria there are two decisions which warrant consideration. In R v Perrier (No 2) [1991] 1 VR 717 the Victorian Court of Criminal Appeal dismissed an appeal in relation to a sentence of life imprisonment with a non-parole period of twenty two years. The offender had been convicted after trial of being knowingly concerned in the importation of 1.6 kg of heroin. However, he had prior convictions in a number of other countries for minor drug offences. In R v Mooseek [1995] VCC 318 Crossley J in the Victorian County Court sentenced the offender after his conviction at trial to life imprisonment and set a non-parole period of sixteen years in relation to charges of conspiracy to import heroin, importation of heroin and the possession of heroin reasonably suspected of being imported. 77 In the Northern Territory a life sentence with a non-parole period of twenty-two years was imposed in relation to an offence involving the single importation of 89 kg of heroin (Wangsaimas & Ors v R (1996) 133 FLR 272). A sentence of life imprisonment with a non-parole period of twenty five years was imposed in relation to the co-offender Lee Vanit (Lee Vanit v R (1997) 133 FLR 272). This decision was confirmed by the High Court in Lee Vanit v R (1997) 190 CLR 378.

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Judgment (25 paragraphs)

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Cases Cited (16)