R (Cth) v Jia Li He

Legal directions

1. I direct myself that this is a criminal matter and that any facts adverse to the interest of the offender must be proved by the Crown and proved by the Crown beyond reasonable doubt. If any facts are to be found that assist the offender, such facts need only be proved on the balance of probabilities. Having pointed out that to a very large extent the evidence that the Crown relies upon to establish its submission that the offender was the principal in this criminal enterprise comes from a single witness, I must scrutinise her evidence with great care because of the nature of the proceedings and the requisite standard of proof. In other words I direct myself in accordance with R v Murray (1987) 11 NSWLR 12 that I must scrutinise her evidence with great care. I have sought in chambers to do so.

Sources of Ms Su's evidence

1. There are three sources of evidence from her before me. The first is an affidavit which she affirmed on 27 August 2020. That affidavit is exhibit F12 before me. That affidavit was affirmed by Ms Su to be used in her sentencing proceedings. Those sentencing proceedings were conducted by my colleague Noman DCJ on 3 September 2020. The transcript of that sentencing hearing is exhibit F11. That records the commencement of Ms Su's evidence on p 7, her cross-examination commenced at p 12 and the re-examination commenced on p 18. Her evidence was completed on p 18. Of course, Ms Su gave evidence before me commencing on 5 July 2021 and it was completed on 6 July 2021.

Her affidavit

1. I commence with a consideration of her evidence by taking the earliest piece of evidence first, that is the affidavit affirmed on 27 August 2020. That contains largely biographical detail and very little about the substantive issues raised before me, but gives context to her evidence and explains much of what has occurred. Because of redaction I shall merely state this. I have taken ages based upon the date of the execution of a search warrant at the offender's home, 9 April 2019, which is also the sole date pleaded in the indictment to which the offender has pleaded guilty. As at that date the offender was 47 years old. Ms Su was 46 years old and David Wu was 22 years old.
2. Like the offender, Ms Su was born in Guangzhou, formerly known as Canton, in Southern China. She came to Australia in February 2002 and in the interim, between then and now, has become an Australian citizen. The same applies to the offender. Ms Su married a gentleman known as Daniel. They have two children, a daughter born in 2003 who is currently 17 years old, and a son born in 2007 who is currently 14 years old.
3. After the birth of her daughter Ms Su suffered from mild post-natal depression. That persisted through the whole period including her pregnancy with her son after whose birth she suffered again post-natal depression. During this time Ms Su was working at the Hurstville Medical Practice located in Forest Road Hurstville. Other evidence suggests that at this time the family was living in the St George area. Ms Su worked at the Hurstville Medical Practice as a massage therapist. In 2006 she was referred to a consultant psychiatrist by her General Practitioner. Annexed to the affidavit is a letter from a consultant psychiatrist pointing out that he had seen Ms Su on 21 October 2006. The provisional diagnosis raised by the psychiatrist was of a depressive disorder. During her pregnancy with her son Ms Su had been told that he may have had Down's Syndrome. That caused her further anxiety and depression. Fortunately her son was born unaffected. However her post-natal depression was worse than it had been previously. She was prescribed antidepressant medication by her General Practitioner. It would appear from another annexure to the affidavit that she was prescribed Lovan in 2007 and the medication was changed in 2010 to Zoloft. In May 2010 Ms Su suffered a miscarriage. She described that as a "painful experience" however, I understand her to be referring not to physical pain but to psychic pain.
4. There were matrimonial difficulties and the couple separated in 2013. Her affidavit contains this: "10. The period leading up to the separation and divorce, and then the years that followed were hard for me. Daniel himself had seen a psychiatrist as early as 2006. I suffered emotional and verbal abuse from Daniel over the years of our marriage. Daniel would limit the friends I could have, limit the times I could go out of the house, and said I should obey him as my husband. I lost contact with my friends and some members of my family due to this and how Daniel would behave when my family and friends were around. Daniel also upset our neighbours with his behaviour and a doctor at Hurstville Medical practice where I worked as a massage therapist. I had to make apologies to people who got upset by Daniel." In succeeding paragraphs of her affidavit Ms Su referred to being a church going family and of her going to China on a mission run by the Chinese Christian churches in Australia. In her church she was encouraged to stay with her husband and to be a "good wife". However she could not continue and hence the separation in 2013.
5. In January 2014 Ms Su became a client of the Acute Care Team based at the St George Hospital and also underwent counselling. Her counselling was provided by Ms Grace Sham, a psychologist, and a report from her is one of the annexures to the affidavit.
6. In May 2014 Ms Su and her husband reached agreement about custody and property. There was to be joint custody of the children. They were to spend half of their time with their father and the other half of their time with their mother. In the property settlement Ms Su received $200,000. She used that money to purchase a flat in Bexley. Her former husband was living in Bexley North and they thought it appropriate to live near each other to minimise the disruption of their children's lives.
7. Around about this time Ms Su was diagnosed as being a mentally ill person and was admitted involuntarily to the St George Hospital as a suicide risk. It was around this time, probably before it, that Ms Su commenced gambling. The hospital social worker arranged for her to have financial counselling and that enabled her to continue to pay the mortgage on her unit until late 2017.
8. Between her separation from her husband and 2017 Ms Su continued to work as a remedial massage therapist at the Hurstville Medical Practice. Par 19 of her affidavit is this: "19. In the times my children were residing with his father, I felt lonely, anxious and depressed. I started going to Star City Casino as there were people there and I was not alone. Sometimes, I attended shows at the theatre. I did not gamble initially, but just socialised with people I met there, had meals and relaxed. If I stayed at home, I would think over and over about how bad things were for me and I would not sleep. Going to the casino was a way to overcome my anxieties and depression. 20. After a time, I started gambling, mainly baccarat and roulette table. For a couple of years, I did not gamble big and did not lose money."
9. In 2016 when her daughter became a teenager her daughter asked to live fulltime with Ms Su because she was not getting on with her father. The parents agreed to that change. Like many young teenagers however when the daughter commenced living with Ms Su she became rebellious and was receiving counselling from Head Space in Hurstville.
10. In January 2017 Ms Su met a gentleman I shall describe merely as WH. They started a relationship. She described WH as a "good person" who was trying to help her during the period that their relationship persisted which was until August 2018. WH was worried about her gambling problem, and I use the word 'problem' although Ms Su did not use that word in her affidavit. WH was also concerned about Ms Su's daughter. By 2017 Ms Su had begun borrowing money from people she met at the casino to cover in part her gambling losses.
11. In 2017 Ms Su decided to sell her property at Bexley. One of the annexures to her affidavit is a letter from her conveyancing solicitors referring to settlement of the sale of the property at Bexley on 18 December 2017. The proceeds of the sale was a balance payable to Ms Su of $117,620.43. However the deposit of $68,300 remained with the real estate agent and needed to be collected by Ms Su from the real estate agent who would no doubt, deduct from it the agent's commission. Ms Su's affidavit continues in this fashion: "I had to repay people from whom I borrowed money due to my gambling, and some money I had borrowed to pay a rental bond and rent in advance for a new rental unit in Chatswood for [my daughter] and me. [My son] was also going to stay at this unit some of the time under the agreement for shared custody. After these expenses and debts were paid, I was left with about $80,000." Ms Su was advised by WH to be careful about that capital sum and not to waste the money that was the net proceeds of the sale of the unit at Bexley. WH offered to act as a trustee for her so that she could not just withdraw money if she needed it at the casino. Accordingly Ms Su gave $80,000 to WH of which he invested $70,000 in a Westpac term deposit on 29 December 2017 and a further sum of just over $10,000 in a Westpac investment. That occurred on 3 January 2018. However Ms Su changed her mind about the investment and that was withdrawn on 11 January 2018 and she was paid $10,142.85.
12. The year 2018 was not a good one for Ms Su. Her affidavit continues thus: "At the beginning of the school year in late January 2018, [my daughter] started year 9 at Chatswood High School. Shortly after she started at the new school Angie started to smoke, to drink alcohol and smoke marijuana. [My daughter] broke school rules and I was contacted by the school. She was caught shoplifting and went for a youth justice conference. [My daughter] told me that she had sex at the age of 14 years old." That, as one could imagine, greatly distressed Ms Su. On one occasion when her son was visiting Ms Su's daughter hit her in front of the son causing the son to be in fear of his sister. By May 2018 it was agreed that the son should live on a fulltime basis with his father and the contact which Ms Su had with her son was limited thereafter to be only on some weekends and during school holidays. Ms Su described that reduction in her contact with her son as "heartbreaking".
13. She had obtained a job working at a fish dealer shop at the Sydney Fish Markets. Initially the work was for a three month trial. However she was regularly receiving phone calls about her daughter and her behaviour when at work. She had to answer those calls. Some of them required her to take time off work in order to deal with her daughter and the various issues that she faced. After the three month work trial period Ms Su was "sacked" because she was unreliable.
14. To cope with those stressors Ms Su started to gamble more at the casino. Due to her gambling habit Ms Su persuaded WH to give her $20,000 from the term deposit on 3 April 2018. A further $50,000 was taken from the term deposit in transactions between 2 July and 15 August 2018. Some of that money was used to pay ordinary expenses such as the rent that she is paying for a Meriton apartment in Chatswood. Most of the money was spent gambling and was lost at the Star City Casino.
15. Her relationship with WH came to an end in August 2018. There were two reasons. WH explained to her that his concerns were about her gambling habit and her daughter. Apparently WH had a son who was the same age as her daughter and he was concerned that Ms Su's daughter could lead his son or other of his children astray. The affidavit deposes that after all those things happened she was becoming more depressed, feeling more hopeless but continued to gamble.
16. Her affidavit continues thus: "39. In September 2018, I talked to someone at the casino who I met during the time I was gambling, and we chatted very well. I started to share my sufferings and hardship with her. She showed her deep sympathy towards me. She told me that she was able to find someone to help me and give me a job with flexible hours. 40. She introduced me to Ricky He. Ricky said that he could help. He told me to use my name to open letterboxes in the post office and to receive their parcels. He told me to [put] the parcels in storage units. He could give me this job. I would be paid an amount for each parcel. 41. Struggling with the issues of my daughter, loss of my job, financial hardship, loss of my money in gambling, my debts, and sufferings of mental health disorders, I lost my abilities of judgment. I trusted that they really wanted to help a single mother like me... 42. Ricky started giving me casino chips. I foolishly thought I could win big and pay my debts off and get back to a good financial position. But I just kept losing. In the end, Ricky told me that I owed him $32,000. This was the amount after he had reduced my debt by somewhere between $4,000 and $5,000. This was the 'wages' for my work collecting packages of tobacco products."
17. The affidavit goes on to say that in January 2019 Ms Su and her daughter moved from their flat at Chatswood to live in public housing at Gladesville. The balance of the affidavit tells me what Ms Su did after a search warrant was executed at her home on 18 June 2019. Ms Su was charged with a similar but lesser offence than the present offender. The nature of her charge is based upon being reckless as to defrauding the Revenue as distinct from having the intention to defraud the Revenue. For recklessness as the mental element the maximum penalty for the offence is five years imprisonment. The maximum penalty for the offence to which the current offender has pleaded guilty is ten years imprisonment.

Evidence before Noman DCJ

1. Ms Su appeared for sentence before her Honour Judge Noman on 3 September 2020. I turn to her evidence before her Honour. She admitted in chief that in October 2018 she rented storage units at Kennards Self Storage at Macquarie Park. That was after conversations with certain people, one of whom was the offender. She also commenced at that time to rent post office boxes at different locations. She then began to collect packages which arrived from overseas at those post office boxes. She said that she was told what to do by the offender. She said that some of the packages contained tobacco products. She was asked whether she thought that what she was doing might be against the law. She said she did and then gave this evidence: "...I asked Ricky. I said is something in there is wrong and he showed me the letter and say, inside, if we pay the money then we can bring this product but if we don't pay it then we just destroy and this is not your product so do not need to think about it and just do what I tell you." That appears to be Ms Su giving her explanation about documents of the type that can be found in exhibit F6.
2. Exhibit F6 is a bundle of documents that were found at the offender's home when the search warrant was executed. There are a number of documents all the same nature. The first is a notice of assessment of duty and indirect tax from the Department of Home Affairs addressed to the post office box holder. It commences with this statement: "Your imported goods have been assessed by the Department of Home Affairs for customs duty and other charges under the Customs Act 1901 and the Biosecurity Act 2015. The Department of Home Affairs has also made an assessment under delegation from the Commissioner of Taxation of an amount of indirect tax payable (GST or wine tax) under Schedule 1 of the Taxation Administration Act 1953 in relation to your imported goods. Your assessment is now ready for payment. Please see overleaf for detailed explanation of these calculations." There was then a demand for Custom Duty and an assessment of GST.
3. The first of these notices in exhibit F6 shows an assessment of Customs Duty of $654.20 and an assessment of GST of $74.42 making a total payable of $728.62. Together with that notice is a formal notice from the Australian Border Force which is headed "Notice for cigarette/tobacco importers". It contains this matter: "A mail article addressed to you has been inspected by the Australian Border Force at the Sydney Gateway Facility. The mail article has been assessed for Customs Duty and GST. Please find attached Notice of Assessment covering the amount payable. You need to pay the full amount of your invoice within 30 days of the notice of assessment. Once payment has been made the parcel(s) will be released to Australia Post for delivery to the address shown on the declaration. If payment is not received within 30 days, the goods may then be treated as abandoned and destroyed." The form continues by giving details of how further inquiries can be pursued. The documents which I just quoted relate to a post office box rented by David Wu. But the documents appear to be formulaic. Other documents are of same nature in exhibit F6 are in the same form.
4. A little later in her evidence Ms Su said that she was told that if the duty was not paid the tobacco would be destroyed, so it was not against the law to bring the tobacco to Australia. Hence, she continued to collect packages.
5. Later in her evidence-in-chief before Noman DCJ Ms Su said that she owed the offender money from her gambling habit. What she was paid for the work that she did was used to reduce her debt. She said that her debt owed to the offender was about $30,000.
6. Ms Su was asked what was happening with her family. She gave this evidence: "Yeah in that year it was the worst year in my life because my daughter was, she was involved in drugs, alcohol, cigarettes, shoplifting, breaking school rules and under age sex and I was, I was employed but then because her situation I could not really [keep] working and I owed too much money by gambling and also my relationship broke and I also had my own mental health. But when I was in the casino I talked to the people and Amiele said and then she say that I help you to find someone to give you a job so you can be living for you and your daughter and I was thinking that I get some help at that stage yeah." The reference to "Amiele" is inexplicable. It probably represents a mis-recording or misunderstanding of what was said or may just be a mis-transcription or a combination of the two. In any event it is now common ground that this is a reference to a lady Ms Su described as Sister Fang although she was also described as Fang Jie. I understand the latter word in Cantonese or Mandarin to be the word for sister. However that evidence is consistent with what is contained in the affidavit. Again it is worth pointing out the consistency between the affidavit and that statement of the effect of the events of 2018 upon Ms Su.
7. In cross-examination by then counsel for the Crown, who is the same counsel as appears for the Crown before me, and who called Ms Su to give evidence before me, Ms Su admitted that she opened 40 post office boxes in her involvement in this criminal enterprise. She said that she was asked to open those post office boxes by the offender. She also said that the offender told her when to visit certain post office boxes to collect mail that had been sent there. Such mail was generally parcels rather than the sort of communication I have described from the Federal government. Later she said that she rented the post office boxes and paid for the rental and that she showed the receipts to the offender but he did not reimburse her in cash because she owed him money. The re-payment appears to have been by agreement between the offender and Ms Su a reduction of the loan that he had given to her, for the reduction of her overall indebtedness to him for monies he had advanced to her.
8. In answer to a further question she said this: "In my memory, I didn't collect much cash from him. Maybe I have a little bit, a little bit of cash but because I owed him money he will just deduct certain amount off the money that I owed him." Accordingly she appeared to have some form of recollection of the payment of cash.
9. On p 14 of the transcript which is exhibit F11 she agreed that she initially rented two storage units but could not recall whether they were numbered F001 and G001. However it is now common ground that those were the numbers of the two units initially hired Ms Su. She was asked as to who asked her to rent those storage units and she identified the offender as the source of the direction. She said that he told her that when she received a parcel she was to take it to the storage unit. She agreed that in March 2019 she terminated the leases for those two storage units. She was given that direction by the offender.
10. When asked on p 15 how much she was paid for each parcel she said this: "Can't remember something like $25." That suggests that she was paid approximately $25 for collecting each parcel. There was then a further discussion of the extent of her indebtedness to the offender and Ms Su was then asked whether the offender ever gave her cash. On this occasion she said: "No not in my memory. When he lent money to me most of the cash he said to me, is like the cash you owed it." Taken in whole that evidence is not inconsistent with the evidence given on p 13 of the same transcript that she may have received "a little bit of cash" from the offender. She then said that she spent the entirety of the money that she had borrowed from the offender gambling. She said that when she was working for the offender she had no other employment.
11. In answer to the question of whether she was responsible for paying for both her personal expenses and the expenses of her daughter she said that she was and she paid with money from "Centrelink", meaning social security payments. She said that she paid her rent and living expenses from those government benefits.
12. Ms Su said in her evidence that the offender told her that a search warrant had been executed at his house. She said that he told her that they did that because of the "illicit tobacco problem". She was then asked why she opened some of the post office boxes in her daughter's name and she said that she did that because she had been told by the offender that that would enable them to collect more packages from overseas. She also said that she thought that he thought that they should not have too many post office boxes in the name of the one person. Apparently, from evidence she gave on p 17 of the transcript of 3 September 2020, in order to hire a post office box some identification had to be produced. She generally produced her driver's license but in order to open a post office box in her daughter's name she only needed to produce her daughter's Medicare card.
13. In re-examination Ms Su said that over time the debt which she owed to the offender was being reduced by the amount of work she was doing for him because she owed him so much money.

Her evidence before me

1. I turn now to the evidence that Ms Su gave to me that I have not already canvassed. She said that she paid rent of $650 per week for her Meriton apartment at Chatswood. It was only a one bedroom apartment. She said that she was driving a Kia Rio and she had been driving that motor car since she bought it in about 2012. At p 23 she said that after she lost the job at the fish market she did not obtain any further work. She then started to receive Centrelink payments. She also appears to indicate that those payments commenced at about the time she ran out of the money that had been previously invested for her by WH. She then gave further reasons for the breakup of her relationship with WH. She said this: "I think it comes two way because [WH] knows about [my daughter's] trouble and he have the same age son that goes to private school, and the son was always told what [my daughter] was doing post on the social media. So [WH] were too worried that [my daughter] is going to affect his son. And because we already have a plan that we might move together as a couple but in that year that [my daughter] was in lots of trouble, and [WH] told me to send [my daughter] back to her dad. And I said, "I can't give up...my daughter because [my daughter] never, ever want to go back to her dad those days". And I say, "I need to be here for my daughter" and then he said...he doesn't want this happen to his children. And because he say that and I felt like he giving me no choice; like if [my daughter] back to her dad, then our relationship can be going, but if [my daughter] stay, then he need to protect his children and because that, I said, "No, I can't"."

Visiting the Casino

1. The questioning then turned to Ms Su's attending Star City Casino. She said that she was attending on average about four or five times per week. She said that she had nowhere else to go. She could not stay with her friends or her family because they saw her as a "loser". She said that she was going there both at day and at night and that sometimes she would stay overnight. Sometimes she would stay in accommodation in a hotel room at the casino that she obtained using points derived from her VIP status. At other times she just sleep in her car. She said that she had a platinum VIP card, which it was in the middle range of VIP cards, of which the highest card she knew of was a black card, which was a card that was held by the offender. She said at the end of 2018 she owed about $80,000 being monies that she had borrowed to gamble. She also said that in January 2019 she had moved from her Chatswood rental property to public housing at Gladesville.

Meeting Mr He

1. She was then asked question about how she met the offender. She said that she met him in the VIP area of the casino. She had seen him there before she was introduced to him, which is when she and he spoke. She believed that was in September 2018 which of course is a month after she broke up with WH. She then referred to meeting a lady at the casino and of her telling that lady about her personal circumstances and about her daughter being in trouble, about her being in trouble, about losing everything. This was the lady subsequently identified as Fang Jie or Sister Fang. It was she who introduced Ms Su to the offender. Sister Fang told her that she could help Ms Su by finding someone who could provide her with money in order to continue to live with her daughter. The gentleman she introduced her to, the offender, was known in Mandarin as "Little Bald Head". Ms Su said that, when Sister Fang told her that she could introduce her to someone who could help with her finance, she felt that she had some hope and was looking forward to meeting the person in question, namely the offender.
2. At p 30 commencing at l 18 this evidence was given: "... he say to me that he said, "You, you, you looking for a job? You looking for some job that you can be - not impolite - it's like someone can give you job so you can do". I say, "Yes, I, ...really need"." She then went on to say this: "He was saying that he was doing some kind of business that needed someone to deliver the parcel, and I think at those time, that Sister Fang, the lady that introduce me to Mr He, I think she also was doing a little bit of those jobs so she said - yeah, it was both of them, we're talking to me, said, "it's very easy. Just pick up some parcel and deliver the parcel"." Initially the offender told her very little. She then said this: "He say he import something from China, and it's a good business in Australia, and - but my job is not need to know too much, just to do delivery." She was then asked whether the offender told her how she would be paid. Ms Su replied: "He...say a little bit, but mostly was Sister Fang told me that how much that she was paying from Mr He those time." Although an interpreter had been sworn, most of the evidence was given directly by Ms Su in her version of English. I interpret that what was last said as saying that Sister Fang told her what the offender had been paying to her at that time. The witness was then pressed as to how much she was being paid. She said this: "I can't really remember, but about - I think around $5, around $5 each - yeah, package or something like that."
3. This is the first item that may be thought to be an inconsistency. At p 15 line 14 of the transcript before Noman DCJ which is exhibit F11, the witness referred to receiving $25. However this issue was amplified further at p 37 line 45 of the transcript of evidence before me. At that place is recorded a question but an earlier question and answer on p 37 should be noted. Mr Crown asked Ms Su how much she was paid a week by the offender for the work that she did for him. She replied that the work was not paid for on a weekly basis, it was assessed on how many parcels she collected. Then she said that it was not exactly a rate per parcel but rather "it's dependent on the volume of the boxes of tobacco contained inside the parcel." That answer was a rare one for Ms Su: it was given through the interpreter. She had started trying to answer the question but then spoke in Cantonese and thus it was interpreted by the interpreter. In other words the amount that she was paid depended not upon the parcel itself, and not particularly on the size of the parcel, but rather the amount of tobacco contained in the parcel. In those circumstances there may have been varying rates of payment.

P.O. Boxes

1. Returning to p 31 of the transcript of 5 July 2021 Ms Su said that the offender told her because she was living at Chatswood that she should open post office boxes in the North Shore area. She said that he told her that he would give those post office box details to the people who were shipping the parcels and then she would pick up the parcels from the post office box. She agreed, as she had said in other evidence, that she had opened 40 post office boxes. When asked how the post office boxes were paid for, this evidence was given: "Q. Who would pay to open and continue the lease of each of the PO boxes? A. WITNESS: First I pay for it and Ricky gives me back the money, gave me back the money." A little later on the same page she was asked whether he gave her the money in cash or through bank transfer or otherwise. She answered this: "No, no bank transfer. Some, most of it from casino with the...chips." In the following question and answer she said she was paid mainly in casino chips and "maybe a small amount of cash". The casino chips and small amount of cash were given to her by the offender. In a following question the witness said that after she started doing work delivering parcels from the post office boxes to the KSS facility she was being paid by the offender in chips. She was then asked whether she borrowed money from the offender and she said that she did. Clearly that was a reference to borrowing money from the offender for her gambling habit.

Kennards Self Storage

1. On p 33 of the transcript whilst in chief Ms Su said that she was told by the offender to open storage facilities at Kennards Self Storage at Macquarie Park. She said that was in late 2018. It appears now to be common ground that it was in fact on 13 October 2018. According to Ms Su the offender paid her in order to pay for the hire of the storage unit. Whether that was giving her credit or reimbursing her by giving her credit is not particularly clear but is also not particularly important. Either way the consideration was flowing, according to Ms Su, from the offender to Kennards through Ms Su, not from Ms Su to Kennards.
2. The examination turned to whether there were other dealings with the tobacco that had been imported. She said that sometimes the offender would tell her to make a delivery to someone at a home or a shop. The offender would give her the address and tell her to deliver a parcel to that address.
3. Mr Crown then turned to what she observed at the storage units when she attended there with the offender. When she did so they would open each parcel and unpack the parcel and sort the parcel by placing loose tobacco or chop chop into one box and sorting the packets of cigarettes according to their brand so that one brand of cigarette was in one box and a second brand of cigarette was in a second box and a third brand of cigarette was in a third box and so forth. She summed that up through the interpreter as "same brands into the same box". She said that she was told to do that by the offender.

David Wu

1. She was then asked about David Wu. She said that he was working for the offender. When asked how she knew that she gave this evidence in English: "Because he always around Mr He to drive the car and delivery things and I heard, Mr He told me, that Mr Wu was, his mum was...Mr He's school friend in China, and Mr He say that Mr Wu was a student or something like that and also worked for him." If that evidence be accepted then that was a clear admission by the offender that the offender and Mr Wu's mother were school friends in China and that was how the offender knew Mr Wu and that he was a student working for him. If that admission be accepted, then it makes otiose the debate involved in construing agreed fact 28. Agreed fact 28 is this: "When questioned by ABF as to the importation of illicit tobacco, and persons Mr He and Bishan Su, as well as matters regarding Australia Post, Post Office Boxes and Kennards Storage Units, Mr Wu stated he knows Mr He and refers to him as his "uncle Ricky" but they are not related. Mr He was a classmate of his mother, who was in China." It has been submitted by Mr Smith SC on behalf of the offender that the last sentence of that agreed fact is continuation of a statement of Mr Wu and therefore should be seen merely as a representation made by Mr Wu who was not called to give evidence. I suspect he was not called to give evidence because he has been deported. However, the last sentence does not purport to record a statement made by Mr Wu, rather it appears to be an independent agreement as to fact. In any event as I said that argument becomes otiose if I accept the admission allegedly made by the offender to Ms Su.
2. There are in evidence two photographs, one known as exhibit F4 and one known as exhibit F5. Each of these photograph is, it would appear, an extract of CCTV recorded at Kennards Self Storage at Macquarie Park. F4 has been identified as showing a bald headed gentleman in a lift wearing black trousers and a black t-shirt. That is the offender. On the left hand side of the photograph is a lady wearing a white hat pushing a trolley into the lift. That is Ms Su. In between those two people is a lady with black hair wearing black slacks and a top which may be either orange or lemon but that appears to be because of an artefact in the photograph. That person has been identified as Sister Fang. Exhibit F5 shows on the right hand side a bald headed gentleman in a black t-shirt. That is the offender. In the middle of the photograph is a younger male with orange hair wearing a black t-shirt but of a different type to that worn by the offender. That young man has hold of a trolley on which are two cardboard boxes. That young man has been identified as David Wu.

Payments

1. At this stage I should return to state something about the evidence which I have already quoted in [43] above. It has been submitted on behalf of the offender that the statement in an answer commencing on l 11: "First I pay for it and Ricky give me back the money, gave me back the money" should be seen as a statement that Ms Su was reimbursed in cash by the offender and a later statement on the page of being paid in casino chips is inconsistent with that earlier statement. With the utmost respect I cannot accede to that. The word 'money' and the word 'cash' do not necessarily mean the same thing in English. Furthermore the English of Ms Su is limited. The word "money" does not necessarily, in her usage of it, refer to banknotes and coins but also refers to credit or something that can be calculated in money such as a casino chip. I do not accept that there is that inconsistency.
2. On p 38 Ms Su was asked what was the largest "pay" that she ever received in one week. She thought it was "Maybe $1,000", which she thought was around Christmas 2018. But she continued in this fashion: "But I can't exactly remember how much because I owe Mr He money, so I don't really get the full amount pay because I have to - I will - yeah, because I owe his money, so I need - the pay I got from delivery and pick up, he will cut out by how much I owe him and just give me part of them. Gave me part of them." In other words what she was saying is that she may have received credits amounting to $1,000 but how much she actually received was a matter of some speculation because part of it at least was used to reduce the debt that she owed to the offender.

Continuing to work after Mr He's residence searched

1. At the foot of p38 she was asked whether when she stopped doing work for the offender and if so when. She said: "I think just before I got caught." That was the time of the raid on her home on 18 June 2019. It is to be recalled that the raid on the offender's home was on 9 April 2019 some two months earlier. Ms Su's answer suggests that she continued to work for two months after the search warrant was executed at the offender's residence, or to use the vernacular, when his residence was raided. This is claimed, on behalf of the offender, to show that she was working for herself. If her "boss", the offender, had been caught by the police then one would expect her to stop doing the work immediately. That is a very valid submission. However it also might be consistent with Ms Su's being a faithful servant of her master, the offender.
2. When Ms Su's premises were raided the agreed facts tell me that the following were located at her residence: keys to eight post office boxes, a numbered group of keys, four Australia Post receipts, two packets of cigarettes, 4,240 individual cigarette sticks and 2.13 kilograms of loose tobacco. She said that the tobacco products found at her home where items that were returned to her by those to whom she had delivered them, Ms Su thought, because they wanted the items changed into "different brand". Of course it is possible that they represent parcels kept by Ms Su herself, that she collected after the raid on the offender and that she had opened. However it may also represent items returned by customers of this criminal enterprise who were alarmed when hearing about a raid on, for example, the premises of the offender, and decided to return the suspect purchases to the person who had delivered them so that they could not be caught with any "hot property". In other words the finding of those items and the continuation of the doing of work by Ms Su might merely be a continuation of the work that she had been doing for the offender rather than working independently of the offender, but more importantly working as the "boss" of the offender.

Other matters, raised in chief

1. Sometimes Ms Su found letters in the post office box. She would take them to the offender. These it would appear from a description given by Ms Su at transcript p 40 commencing at line 42 were the documents from the Department of Home Affairs and the Australian Border Force that form part of exhibit 6 or documents of the same nature. She said that she took those to Mr He and he opened them but he then, at some stage, told her that if she received any other letters of this type to throw them away.
2. At p 41 line 30 Ms Su was asked could she recall how much she had been lent by the offender during her period of association with him. She estimated about $40,000 but was unsure of the amount. She was unsure of the amount because she appears to be unsure of the value of the work which she had done which was supposed to reduce the amount of her indebtedness.
3. The witness agreed that while she was doing this work for the offender she was also receiving benefits from Centrelink. That is a clear admission against her own interest.
4. On p 42 Ms Su said that she normally communicated with the offender by telephone or when they met together at the casino. She denied communicating with anybody who sent parcels to a post office box. She said she did not know the identity of those who sent parcels to the post office boxes. She said that she only knew the people to whom she delivered parcels on behalf of the offender because the offender told her to whom to deliver.
5. Sometimes money would be paid over by the person to whom the delivery was made. Sometimes the offender told her how much to expect. At other times she was not, but the consignee knew how much was to be paid and sometimes counted out the money in front of her. Whenever she was given any such cash payments she said she took them to the offender. She was asked at the top of p 44 of the transcript whether she was ever paid in cash from the cash that she delivered to the offender. She said "sometimes", and then went on to say that she would be lent more money by the offender.
6. She was asked at the foot of p 44 of the transcript whether she had at any time employed the offender or paid money to him and she denied doing that. She also said that she had no relationship with Mr Wu in answer to a question as to whether she employed him.
7. Ms Su was then asked whether she saw the offender again after the search warrant was executed at her property. She said that she had but was unwilling to give the circumstances. She was directed to do so. She said that one evening she and her boyfriend were going home to her public housing accommodation and were met by the offender and the offender's wife. The offender told her that he wanted to talk to her. He wanted to know what had happened. She told him. When asked whether anything else was discussed she said this: "Yeah. He, he told me that whatever [had] happened, just let him know and, yeah, he said if I want the, the lawyer or anything, he, he can organise for me." She then went on to say that she was scared. She did not know what was going to happen, that the offender tried to comfort her and told her that there was no need to worry, it was a necessary need to see what charges would be laid and then he would provide help to her, that he would provide her with the cost of a lawyer or any other needs. However she did not avail herself of that opportunity because she obtained Legal Aid and she was told not to have any further dealing with the offender.

Cross-examination

1. Ms Su said that she first met Mr Wu after she had met the offender. She was told that Mr Wu was working for the offender. Early in cross-examination she was confronted with the proposition that she first rented storage space at Kennards Self Storage at Macquarie Park on 6 March 2018. It was eventually agreed that the document upon which she was being cross-examined had been erroneously dated and the date should have been 6 March 2019. That problem was clarified and one need only look at p 54 line 40 and p 72 line 23 of the transcript to show what had occurred.
2. The agreed facts and other evidence tell me that Ms Su rented units F001 and G001 on 13 October 2018. Unit J001 had been rented by Mr Wu. When that rental commenced I do not know. According to agreed fact 21 Mr Wu and Ms Su had combined their storage and leased units N57 and N60. Mr Wu was listed as the "storer" or "primary contact" for both unit N57 and N60. Ms Su was listed as the alternative contact for both N57 and N60. Mr Wu was also listed as the alternative contact for an additional storage unit C17. The agreed facts also tell me that the officials at Kennards Self Storage at Macquarie Park advised that the goods in units F001, G001 and J001 were physically moved into unit N57 and N60. Unit N57 and N60 and C17 were much larger storage units than those previously rented by Mr Wu and Ms Su.

Entry to the storage units

1. There was cross-examination directed to entering the storage areas F001 and G001. Ms Su maintained that not every time that the official records show that she entered the storage area was it her who did the entering because both the offender and Mr Wu could equally gain access. On p 51 of the transcript there is reference to the use of a password, but in my view the clearest evidence is that contained commencing on line 25 because the witness said this: "It's everybody want to go in, they can press the same PIN number." I construe that as meaning that anybody who had the PIN number could key in that number in order to gain entry. Whilst often passwords amount to a series of digits, the use of "PIN number" is a better description of what was occurring. In addition to having to have the PIN number the person wishing to enter the storage units had to have the key to the roller door of each storage unit.
2. Exhibit F9 has a large number of pages. Page 1 is headed 'Customer Photo'. It contains a copy of Ms Su's driver's license. It gives a customer code KEMPKSUBIS. The code is easy to decipher. KE stands for Kennards, MPK stands for Macquarie Park, SU is the renters surname and BIS are the first three letters of Ms Su's given name. Then is stated the name of the customer, then the "date taken" which was Saturday 13 October 2018 and then there is reference "photo size". There follow 41 pages showing persons entering units in particular F001 and G001 between 13 October 2018 and 13 March 2019. Each of those pages has a number of columns. The columns are: "Customer" - invariably showing 'KEMPKSUBIS'; "Name" - invariably listing 'Su, Bishan'; "Remote" - giving a number between '1' and '4'; "Date & Time" - giving day/month/year and hour, minute and second; "Unit" - either F001, 6001 or both; "Unit section" - invariably '0'; "Unit letter" - invariably '0'; "Gate Action" - explained below; "Gate Keyed" - either '222704' or '0'. The Column 'Gate Action' provides a short description of what occurred. For example, the first 4 entries on 13/10/2018 are all in relation to Unit F001. In brief, they are these; Remote Hour Gate Action Gate Keyed 1 16.37.55 Enter area: Su Bishan 222704 2 17.14.28 Exit Area: Su Bishan 222704 1 19.17.54 Enter Area: Su Bishan 1222704 4 19.57.55 Door Close 0

1. It would have been ideal if someone could have explained these gate log events, but, if I understand Ms Su's evidence correctly, it would appear that the PIN code to be entered was that given in the column "Gate Keyed". Whenever the gate was keyed with that code it opened or closed, but also there is reference to a remote. The remotes numbered 1, 2 and 4 are referred to regularly but I am unable to find a number 3. It may be that there were three remotes and the user of each remote needed to key in the same PIN number. The witness' explanation that everyone had the same PIN number for the unit is consistent with there being different remotes used by different people but each typing in the same PIN number. However, the name of the only entrant recorded is Su, Bishan but that may be because each remote was assigned to her.
2. When challenged as to who paid the rental for the storage unit, Ms Su maintained that the unit was being paid for by the offender. She said that she was paying the rent for the storage but she was reimbursed for it.

Her debt

1. She was initially cross-examined about her allegation that she owed the offender $40,000. She was asked when she owed him that money. This answer was given: "I think this after I met him, and at the beginning that I met him, he gave me - his character is he's very kind and nice. He can help people and he pay for meal when we go to the restaurant in the casino, and I was seeing him as a friend that helping me get out of the difficult situation, and this is what I believe what he told me was okay to do it and I follow his instruction to do things." No doubt the cynic would describe that as self-serving, however, it does paint a picture of a lady who, when first introduced to the offender, was charmed by him, was entertained by him and held himself out as a person who could assist her, extricating her from her financial problems at least and if her financial problems improved there would no doubt be an amelioration in her mental state as well. When again pressed as to when the $40,000 was owed, the witness said that the debt was "built up".

Failure to disclose income

1. The witness was then asked whether she had declared that the money that she received from him to the Department of Social Security. She readily agreed that she had not. Insofar as she was required to disclose "earnings" that she obtained from the offender to the Commonwealth, she was frank and admitted that she did not. She was prescient as to the line of questioning. This evidence was given: "Q. There may have been thousands of dollars that he paid you, is that right, which was wages? A. WITNESS: Yeah, I know what you mean. It's like I been ...(not transcribable)... from Centrelink that - yeah I, I know that, but most of the money I gamble and I, I even lost my house and all those are back to the - sorry to..." Of course, this is frankly an admission that she had not made necessary disclosures and an attempt to self-exculpate by pointing out that the money had been gambled away and then a tug upon the heartstrings, relying on the vicissitudes of life pointing out that she "lost [her] house" and a reference to her financial problems. This is common human behaviour, but at the heart of it lies the frank admission that she had not done the right thing and had not disclosed what she earned to the Social Security Department. The rest of the cross-examination on that issue on p 53 goes to exactly the same matter.

Borrowing money

1. Again the top of p 57 in answer to a question about the borrowing of money from the offender, Ms Su pointed out that he had given her the job and, before that, he had been kind to her and had permitted her to borrow some money from him and therefore when he offered her the work she went ahead and did it. When asked how much she initially borrowed from him she said this: "Maybe $400 or $500, that's very common happen in the casino that when someone have money and the other will sit maybe around them they just help, not help, I mean just offer, give, give a little bit of money". The witness said that she did not keep a list of her borrowings from him, but expected that he would keep a record of how much she owed him and, at times, she had seen him making a record of monies that she borrowed from him.

Whether Ms Su employed Mr He

1. It was then suggested to Ms Su that it was the offender who came to her at the casino because he had heard that she was employing people and he had heard that she was employing David Wu to work with tobacco. The response of Ms Su is that she never employed anyone to do such a job. She denied that the offender came to meet her at the casino because he was looking for a job.

Her evidence before Noman DCJ

1. Ms Su was then challenged as to whether she had told Judge Noman that she was only paid in casino chips, but she said that she had said that she was paid sometimes a small amount of cash. I have sought to show when discussing her evidence before Noman DCJ that she had in fact said that. See [32] above. She agreed that she had told her Honour that she spent the entirety of the money that she borrowed from the offender on gambling. She agreed that she did say that and that was the fact. She was then asked why she was gambling all that money, to which she replied: "Because I lost too much." That was despite having a daughter to look after, rent to pay and food and other expenses to purchase or pay for.
2. Unfortunately in this Court's experience it is common for members of the Chinese community to gamble excessively and to try to recover losses by gambling more. That behaviour is not confined to the Chinese community but it appears to be more prevalent amongst them. Many people gamble and in order to recoup their losses gamble more and become even more and more indebted. Gambling addiction can ruin families. This Court sees it time and time again. It is portrayed regularly in the media. It is a social scourge, and unfortunately it is common. The fact that Ms Su said that she kept on gambling because she had lost too much does not make her evidence implausible.

Repaying loans

1. She agreed that she had not paid back monies that she had borrowed from others including family and friends. She said this: "I said I will pay them back but, at the moment, I still haven't had the ability to pay back but I will." I quote that answer because it was submitted on behalf of the offender that Ms Su lacked credibility because she borrowed monies, used them for gambling and then made no attempt to repay the monies which she had borrowed. She has not been able to do so thus far but she expressed a firm determination to do so. There may be a moral failing in not telling people from whom one is borrowing money that one is borrowing the money because one wishes to gamble. But that moral failing is attenuated when the person still desires to and intends to repay the loan which had been made to her. The fact that Ms Su maintains the desire to repay her debts is in my view to her credit, not to her discredit.
2. The witness was then challenged that instead of using the money that she said she borrowed from the offender to gamble further, she should have repaid the debt that she owed to others, in particular her family and friends. She agreed that she should have done that but she continued to gamble because she hoped that she could win back what she had lost. This is exactly the same failure that I have just discussed, the problem with a gambling addiction and its interference with common sense.

Illegality

1. Ms Su then agreed that when she had heard that the ABF had raided he offender's premises in April 2019 that she was suspicious that she might herself be raided. She was asked whether she got rid of anything in her house that was connected to tobacco. She said that she did. She gave this explanation: "The day when Ricky's house had been searched, I was picking up the parcel from the post office, and as soon as I knew that his house [had] been searched, and the parcel was in my car and so scared and I just throw away then. Q. You know when you threw it away, that it was probably illegal, didn't you?" There was then an objection and it was submitted by Mr Smith SC that she was disposing of evidence, thus perverting the course of justice. That led to an inquiry as to the witness' knowledge of illegality. This evidence was given: "Q. You knew that the tobacco that you were helping Ricky with, you say, was illegally imported into Australia correct? A. WITNESS: I did ask Mr He and he told me that he said it's not against the law but it's against the rule. And... HIS HONOUR Q. Against the? A. WITNESS: Rule. Rule, R-U-L-E, rule. He shows me the letter that from the post office. He say if I pay that and the goods will come back to me and he said, "That's not your property so don't worry about that". That's why the whole time, when I think about this, I was thinking about, "Yeah, Mr He told me that it's not my stuff so - and it's his stuff and he said it's not against the law". But he just a little bit tricky and I just think about I need to earn some money. …………………………………… SMITH SC Q. So it didn't matter if it was against the law, you wanted to earn money? A. WITNESS: No, that time I did not know was against the law. Q. But you knew there was duty payable on cigarettes coming into Australia, didn't you? A. WITNESS: Yeah that that's why he said it's against the rule. Q. Well, isn't the rule, the law? If there's a duty payable to the Australian government? A. WITNESS: For me, the knowledge [at] those time, I was in really mental issue and all those things. And he was a friend [to] me - by what I'm looking at, he was helping me, so I look at it he told me that and I just trust. Q. Why did you get rid of the package that you had in your car? A. WITNESS: Because he they say that the police search them and I start to know that really bad things happen and I realise that I'm in trouble."
2. It appears to me that the concept that something was not against the law but was against the rule is Jesuitical. I trust that I may be forgiven for using that word in its pejorative sense. Clearly Ms Su is a attributing this piece of sophistry to the offender. However she does not appear to realise that it was a piece of sophistry and my assessment of her and her mental ability is that she really would not understand the sophistry involved. In other words I doubt that that is her formulation but it appears to be one provided to her by another. What she was saying is that when this explanation was initially given to her by the offender she was still feeling indebted to him and trusted him.
3. One might think that the last line of the first answer that I have just quoted indicated that she was sceptical about the answer given to her by the offender: "but he just a little bit tricky and I just think about I need to earn some money." That piece of evidence was put again to Ms Su in her further cross-examination on 6 July 2021 and that can be found at p 80 line 26 of the transcript when she said this: "what I mean "it was a little bit tricky" is what I'm thinking now; it wasn't what I thought that time." In other words the assessment that this was a piece of "trickery" was what she thought now rather than what she thought at the time the explanation was given to her by the offender and the rest of the last sentence appears to indicate that Ms Su was determined to work on because she needed money. Clearly Ms Su wanted to earn money. She had a large debt. She was trying to do work to relieve that debt. However, she was still incurring debt by continuing to gamble. She appears initially to have been lulled into believing that she was not doing anything illegal by this piece of sophistry allegedly given to her by the offender.

Paying for PO boxes

1. The cross-examination then turned to the size of post office boxes but nothing turns on that except for the cost of renting them. The questioning then turned to paying for the various post office boxes. The witness was asked where she obtained the money from to pay for the hiring of the post office boxes. Her evidence was this: "A. WITNESS: I gambled. You don't lose all the time. Sometimes you win, sometimes I get the money from Centrelink and then Ricky give me some money, then I open the PO Box and then he gave me back half of them. Q. I suggest that you were the boss. You opened it with your money because you had more money than Ricky and you were employing him? A. WITNESS: Yeah, I know you are here to say that to me I am the boss and I hire Ricky to work for me. But I am here telling the truth that I was being track (as said) and employed by Ricky. He was the one giving me this job and set all this up. So when you have the problem, he comes to me and now I can see that is what will happen. But I understand because all in my name." I believe that the word "track" is the witness believing that the verb "to trick" was strong rather than weak, or irregular rather than regular, and the word should have been "tricked". Clearly Ms Su was aware of the case being mounted by the offender through his counsel. However the evidence of the witness is clearly a denial of the proposition that she was opening the post office boxes with her own money because she had greater money than Ricky whom she was employing.

Denials

1. There was then what could be described as some interaction between Mr Smith and the witness and eventually the witness in answer to direct short questions from me denied that she was the boss of Ricky, denied that she had more money than Ricky, and denied employing him. The witness was then challenged whether she obtained money from her daughter, which she denied or from her former husband, which she denied. She also denied that she lied when saying that the offender had offered to provide a lawyer for her.

Repaying loans

1. On p 68 the witness agreed that when she borrowed money she did not tell the person from whom she borrowed the money that she would use it to gamble, a matter I canvassed at [72] above. She said this commencing at the very last line of p 68. She was asked whether she was cheating the people from whom she borrowed the money. She said this: "I don't see this, because I borrow, I'll return it back to them, and they're my family and my best friend. They, they know when I borrow from them they're willing to help me, and after I told them that I actually use the money for gambling they said they hope that one day I became someone that can do the right things, and I promise them I will return it back, money to them even for [WH]. He told me that the 7,000 I don't need to pay him. You can call him if you need." Here was another averment by Ms Su that she intended to repay sums that she had borrowed. The evidence then discloses that she had in addition to borrowing $7,000 from WH had borrowed about $4,100 from her mother, nearly $10,000 from a friend in Macau, about $5,000 from a friend in mainland China, all told sums approaching $30,000.

Cross-examination on day 2

1. On 6 July 2021 the cross-examination of Ms Su continued. The cross-examination again opened with the question of when was it that Ms Su believed that the work that she was doing for the offender was unlawful. She said that she did not know it was against the law until a stage when the offender's premises were the subject of the execution of the search warrant and then she started to suspect that her activities with tobacco was illegal. That was reinforced on her when the police executed a search warrant at her house. She again reiterated that she had a suspicion at the beginning and that is when she went to confront the offender and he told her that it was not against the law but against the rule, an issue which had been ventilated on the previous day. The point of the cross-examination was that the offender took a risk.
2. At p 79 of the transcript the witness said that she did care whether the work was illegal and that is why she went to discuss it with the offender in the first place, to obtain the answer to which he had already deposed on a number of occasions. She again pointed out that she trusted him at that time because he had offered her a job and she needed the money which the job might give her to secure her finances and help her support her family. It was shortly thereafter that she explained the meaning of the last sentence that can be found on p 60 line 41 that I have earlier discussed.
3. Again at p 81 the witness maintained that after the conversation with the offender when she was told that it was not illegal but against the rule her suspicion subsided. She knew, she said in evidence at p 82, that the cigarettes that she was handling were being sold for a much lower price than they were being sold in the shops. She was asked whether she cared about that. She gave this answer: "All the time that when I was working for Mr He, I have a brainwash by them that, that wasn't my, my property those is not my goods. So for me to look at, I'm just doing the delivery job." What she was maintaining is that she had been told that repeatedly by the offender, and she accepted, what was said to her and went about the job. Whether this could be classified as "braining washing" is an extremely moot point. It appears to be that she might have been lulled into mental stupor by the repetition of the mantra that she was allegedly given by the offender. When pressed further she said that she just did not really think about it because it was not on her mind as to who owned the tobacco.

Linguistic difficulty

1. At the foot of p 82 we run into some linguistic difficulties. The witness volunteered at one stage that the offender borrowed money from her. However it was not long before the linguistic problem was solved. A native English speaker knows that a person lends money, that person is formally called a money lender. The person to whom the money is lent is a borrower. That person engages in the exercise of borrowing. This appeared to have escaped Ms Su's understanding. She appears to have used the word "lending" and "borrowing" interchangeably. For example on p 83 at line 45 the witness said this: "That's the truth that he borrowed money to me." Of course he was not borrowing money to her, he was lending money to her. Once one grasps the linguistic problem her evidence becomes crystal clear that she was maintaining absolutely that she was borrowing money from him not that she was lending money to him. Indeed at p 83 earlier than the last answer that I have passed and sought to analyse, the witness was asked whether Mr He ever borrowed money from her and she replied, "No, I borrow from him." An example of the borrowing was given by the witness in this way: "It's not like that, it's like when I go to the casino when I'm gambling and if I don't have much money and he's there and I will ask "can I borrow some money" and go back to the gambling table and he will give me some casino chips." In other words she was saying that a lot of the borrowing was done on an informal basis and the lending was often the giving of casino chips by the offender to Ms Su.

Public housing

1. Commencing at p 84 line 39 Ms Su was cross-examined about receiving public housing. She went through the process and that is set out in evidence on p 84. At p 85 commencing an answer at line 25 the witness agreed that she did not tell officials from the Department of Housing about the income that she was receiving from the offender. It is clear to me that the witness understood the line of questioning being pursued by Mr Smith SC, and was making admissions that she had not disclosed her "earnings" from the defendant to either Department of Social Security or the Department of Housing, or indeed, the Income Tax Commissioner. Eventually at p 88 line 44 the witness said this: "Yeah maybe I should tell them [Department of Housing] but at those time I was thinking these money mostly I just gambled and lost." In other words she is putting forward as a reason for not disclosing what she was "earning" because this was money that was used to pay her gambling debts and was not money, for example, going into her bank account or money which she could use to, for example, pay her rent or pay the grocery bill.

Debt repayment as income

1. At the top of p 89 the witness said that the offender lent money to her and she got into debt and then she worked for him to repay the debt. She agreed that might be called income but she thought it was more like just repaying a debt. Mr Smith SC put to the witness that she was claiming ignorance and she said this: "It's about the system I'm not really, really clear about the system, I don't." I believe the last word should have been "know" but that word was not said. I do not seek in any way to justify or rationalise what the witness was saying. I seek merely to try to understand what was said.
2. Most of us know what is meant by the cash economy. If one calls a tradesman to one's home, if the money to be paid to the tradesman for the service to be done cannot be reclaimed from another source, then often the work is offered to be done by the tradesman at a lower rate if cash be paid to him. Many years ago when sitting in another Court I was familiar with a practice called "back scratching". That used to be prevalent in rural areas of New South Wales. One farmer might assist another farmer with the fencing of the other farmer's property and later the roles would be reversed and the other farmer would assist the first farmer in erecting a new roof on a shed or other out building. This was cheaper than calling in labour and the practice was never disclosed to anybody in authority. It became a difficulty, however, when somebody fell when working on the roof or lost a few fingers when doing the fencing and worker's compensation was claimed.
3. Here we have a lady borrowing money from another gambler to pay her gambling debts, not only to pay her gambling debts but to give her the wherewithal to seek to recover her losses by gambling even further. Very little if any cash changes hand. There is a trade in casino chips. The problem comes when one tries to quantify what is being done and the quantification cannot be done in any meaningful way, for example, to explain it to an authority such as the Department of Social Security, the Department of Housing or the Income Tax Commissioner. It would have been extremely difficult for Ms Su to tell anybody what she was "earning" doing work for the offender because it was really quite incapable of being adequately quantified other than by the offender himself who, after all, would know the value of the chips that he was giving to Ms Su at any particular period. Does this make her evidence less credible? That is the question that I face.

Other matters

1. The cross-examination then turned to the role of Sister Fang but that needs no further discussion. There was also further evidence about the entry into units F001 and G001 and the records which form part of exhibit F9. I need not return to that.
2. The witness was then cross-examined about obtaining work other than for the offender after she lost her work at the fish market. She said that she was trying to obtain other work. She pointed out that she had been trained as a remedial massage therapist and she was trying to find such work. She was also trying to find work as a shop assistant at a supermarket and mentioned the big two, Woolworths and Coles. She also said that she was undertaking studies. She was with a job provider at Chatswood and obtained a certificate in computer skills and was studying further in that area. She, however, was unable to obtain other work. She said that she tried hard to find other work.
3. The cross-examination can be ended with this question and answer: "Q. I put to you that you have made up your evidence to make it look as though Mr He was the boss, whereas you were the boss and Mr Wu introduced Mr He to you? A. WITNESS: I did not make it. That was just the truth. Mr He was the person that gave me the job to help, to do this delivery that I worked for him." That was a forceful denial of the case that had been put to her.

Assessment of Ms Su's Evidence

1. I have gone through Ms Su's evidence at great length. I admit that. The reason for that is to show that I have carefully examined it. I find it to be inherently plausible. I do not perceive any internal inconsistency in her evidence. Of course there are some minor variations but the variations are of little moment. She had difficulty at times understanding things and allowance must be made for that. Allowance must be made for the fact that her native language is Cantonese rather than English and although an interpreter was available to her most of the evidence was given by her in English. That English had its own failings which are clear to anyone reading the transcript. However I accept that she did her best to tell me the truth. Her evidence contains no inherent implausibility. It is coherent and the same themes run throughout it.
2. She was emotional at times. She certainly was emotional when discussing the various vicissitudes of life which have afflicted her. I lay aside human sympathy when considering her evidence. Evidence must be assessed dispassionately, considered without any sympathy or other bias. However, here the lady describes herself as finding the worst year in her life 2018. She had grave difficulties with her daughter. She appears to have been in employment throughout her married life up until losing the job in 2018 at the fish markets, a job which she appeared to enjoy but she lost because she became unreliable because of her need to attend to her daughter's difficulties.
3. Since the time of the matrimonial difficulties she had been seeking solace at the Star City Casino. She found solace eventually in gambling and became addicted to it. The net result of everything was that she found herself in substantial financial difficulties in the latter half of 2018. She was paying rent of $650 per week and was trying to live off social security payments. She also had borrowed money from relatives and friends which she had frittered away gambling. She sought some assistance and the assistance was provided to her by the offender. The offender befriended her and gave her financial assistance at the casino and offered her a job. When she had suspicions about the job he sought to tell her that nothing was amiss, that there was nothing for her to worry about and she accepted what he told her. She went about doing what she did but, unfortunately, she was participating in a criminal enterprise.
4. However, there is nothing to suggest that the tenor of her evidence is concocted or implausible. Her evidence is coherent and compelling. Yes, she was emotional at times, but equally her denials were emphatic and I did not consider her to waver in any way from the thrust of her evidence. I accept what she says on my reading and understanding and hearing of her evidence. It did, as Mr Crown submitted, have the ring of truth. However it is not the only evidence. I must compare that evidence with the evidence given by the offender and I shall do that tomorrow morning. ADJOURNED TO FRIDAY 9 JULY 2021

Sources of Mr He's evidence

1. I turn now to consider the evidence of the offender. There are three relevant sources for such evidence. For the first in time is an affidavit affirmed by him on 5 September 2016 in connection with an application to the Federal Circuit Court of Australia for an amendment of a certificate of divorce. The second source is an affidavit affirmed by the offender on 3 June 2021. The third source is, of course, the evidence which he gave to me.

Affidavit of 5 September 2016

1. The purpose of the affidavit affirmed for proceedings in the Federal Circuit Court was for the issue of a corrected certificate of divorce to enable the offender to make an application for his second wife to come to Australia. According to this affidavit the offender migrated to Australia on 26 May 1987. On his coming to Australia he adopted the English forename of "Ricky". An order granting a divorce from his first wife was made by the Federal Circuit Court on 20 June 2006. However, the certificate of divorce which issued referred to the offender not by his full name of Jia Li He but by the name of Ricky He. According to par 7 of this affidavit in the middle of 2008 his younger brother handed to him a pile of letters when he returned to Sydney from elsewhere. One of those letters contained the certificate of divorce but he did not read it, and placed it in a drawer. The affidavit continues with this: "10. I have spent majority of my time overseas exporting beef and fruits from Australia to China." The affidavit then goes on to say that he intends to sponsor his new wife's application for a visa to come to Australia. Paragraph 14 of the affidavit says this: "The Department of Immigration and Border Protection of Australia require a Certificate of Divorce with my correct name of Jia Li He." The purpose of swearing the affidavit was to obtain such an amended certificate. It would accordingly appear that the offender's second marriage was solemnised in China prior to his affirming the affidavit on 5 September 2016.

Affidavit of 3 June 2021

1. This gives as the offender's occupation an assistant manager of a Asian restaurant. The affidavit confirms that when he migrated to Australia in 1987 he was 15 years old. His whole family migrated to Australia. They lived in a rented apartment in Telopea for about 18 months. During his early period in Australia the offender attended an English language school and managed to obtain employment in Chinese restaurants as a waiter and or kitchenhand. In 1989 the family jointly purchased a home unit at Wentworthville where he went to reside with the rest of his family.
2. In 1993 he married his first wife and, after living with his family at Wentworthville for a short period, he took up rented accommodation with his wife at Westmead. According to the affidavit he was still working as either a waiter or kitchenhand in 1993. After the move to Westmead he decided to "branch out on a business level" and started selling goods at a stall at Parklea Markets on weekends, this was, apparently, selling of kitchenware.
3. His first child was born in 1997 and a second child was born in 2000. Both are girls. He said in par 9 of the affidavit that he divorced in 2003. At the time of the divorce custody of the children was given to his former wife and he was required to pay child maintenance. He moved into a home unit at Castle Hill which he rented. He remained working as a waiter and or kitchenhand.
4. Paragraph 11 of the affidavit is this: "In 2016 I re-married Xin Zhou and we purchased a home at 101 Coxs Road, North Ryde. She had a daughter who was then aged seven years." The offender was still living with his second wife and her child at the premises at North Ryde when the ABF executed the search warrant on 9 April 2019.
5. The affidavit continues: "13. About November 2017 I met a lady by the name of Ms Bishan Su at the Star City Casino. She was with a man by the name of David Wu. I gradually got to know them over the next few months by which time she was aware that my financial circumstances were not particularly good. 14. About this time David asked me if he could move in to my house on a temporary basis and he said he would pay me board. I said that he could do so and he later moved into my downstairs bedroom. 15. David and I got to know each other quite well and after that we would go to the casino together. He told me that he worked for Ms Su as a labourer. I told him that I would also like some casual work. 16. I mentioned this to Ms Su at the casino and I recall her saying to me, 'If you want work, I can help. You can work for me and help me with my tobacco importation and sale business'. I said, 'How much does it pay?' She said, 'I will pay you different amounts depending on how big the job is. There will be no set wage.' I said, 'Ok'. 17. I later said to her, 'How does it work?' She said, 'I am importing tobacco and I make good money when I sell it because it does not go through Customs. I will take you to my storage units at Macquarie Park to show you. This will be where you will work from.' I said, 'Ok.' She said, 'You will have nothing to do with the business side, I have everything organised with many post office boxes where the tobacco is sent. You will be just be for labour.' I said, 'Ok.' She said, 'Part of the labour will mean that sometimes I will use your house as a drop off point for loading.' I said, 'Ok.' 18. Sometime after this I met Ms Su at Kennards Storage at Macquarie Park where she showed me around. 19. On a number of occasions after that I was given directions by Ms Su to go and collect boxes of tobacco from certain storage sheds and to take them to my home for collection by David Wu. Sometimes David would take the boxes to a storage shed and other times we would both take them in one of our cars. There were other times when we loaded them into Ms Su's car. 20. There were other occasions where I attended Kennards Storage at the direction of Ms Su where I met up with other people who were known to her. Sometimes they placed boxes of tobacco into the storage sheds and I would help them. 21. I was paid cash various times by Ms Su. The amounts varied between $100 and $300. All the payments were made to me at the casino as I continued to see her there once a week. 22. When Ms Su gave me directions on what to do she would usually tell me in person at the casino but there were occasions when she telephoned me. Sometimes directions came through David."
6. According to this affidavit, when the offender first met Ms Su she was in company with David Wu. After that, he gradually got to know "them" that seems to indicate that antecedent to meeting them in November 2017 he had no knowledge of David Wu. His knowledge of both Ms Su and Mr Wu grew over the ensuing months. It was then that Mr Wu asked the offender if Mr Wu could live with him at his house at North Ryde and that consent was given. According to the affidavit the offender's property at North Ryde was used as some form of interim warehouse for holding the imported packages before they were taken to the storage units at Macquarie Park or when they were taken therefrom to be distributed to what might be thought to be customers of Ms Su's business.

Offender's oral evidence

1. The offender's evidence was given on 6 July 2021, an interpreter was sitting next to the witness as he was giving his evidence just as the interpreter was sitting next to Ms Su as she was giving her evidence. The transcript records when the witness said something in English as well as when the interpreter said something in English. The offender confirmed that he has a younger brother who is two years his junior. He confirmed as was previously pointed out that he was born in Guangzhou in 1987. He confirmed details given about his early life contained in the affidavit of the 3 June 2021 and identified his first wife by name. She is also identified in the affidavit made in the Federal Circuit Court. An additional piece of information is that after the move with his first wife to Westmead they soon moved to a house at Cherrybrook. It was in his oral evidence that he pointed out that the store that he set up at Parklea Market was selling kitchenware. He also confirmed that his two children, the fruit of his first marriage, were girls. He pointed out as his affidavit suggested that at the time of the birth of his daughters he was still working at a restaurant.
2. He told me that after the divorce he continued working in a restaurant. His evidence then turned to his marrying his second wife in 2016. He was asked whether his second wife bought the home at North Ryde and he said that she bought the house. He told me that in 2020 he divorced his second wife. He then referred to the execution of the search warrant at the North Ryde home. His evidence then turned to the question of meeting Ms Su. He said that he met her in 2017 but he could not remember exactly when it was "maybe middle 2017". I again point out that according to the affidavit he met Ms Su and Mr Wu in "about November 2017". He confirmed that when he met Ms Su she was in company with David Wu. This question and answer were then given: "Q. Did you get to know them over the next few months? A. INTERPRETER: Yes, I got better acquainted with her during the next few months. He was then asked what his financial circumstances were at the time and he said that he had lost more at the casino than he had won. He went onto say through the interpreter that he was "quite tight financially". He was then asked whether he discussed his financial situation with Ms Su. He said that he did not discuss his financial position with Ms Su but he did talk about it with David Wu. He was then asked where David was living at that time and he said that he was "not too clear about where he lived". He was then asked whether he had come to live with the offender and the offender said that at a late stage he did live with him. He also confirmed that when Mr Wu lived with him he was paying board for staying at the North Ryde house. Although the affidavit refers to Mr Wu living in a downstairs bedroom the offender said that it was not actually a bedroom but was a study which obviously was converted into a bedroom.
3. The offender was then asked whether he saw Mr Wu very often. He gave this evidence: "Yes after, after getting more well acquainted with him, with David, yeah I saw him more often and we would go to the casino to play together because we both speak the same language, which was Cantonese". He was then asked whether David told him what his occupation was. This evidence was then given: "A. INTERPRETER: Yeah, David told me that he was in the business of importing parcels and that he, David told me that it was lucrative and that he invited me to join up with him, asking me to open new post office boxes for him, but I, I initially rejected his offer. Q. Did you say you would like some casual work? A. INTERPRETER: Yes, later on David asked me whether I want to earn some money, I said 'yes' and then I asked him 'what kind of work can I do', and then David offered me some work. Q. Did you discuss working with Ms Su? A. INTERPRETER: Yeah, that's at a latest, after, a later date when David introduced me to Ms Su and that I work with Ms Su. Q. How long after you met David did you meet Ms Su? A. INTERPRETER: About two months afterwards. Q. When you met her you discussed work? A. INTERPRETER: Yes, she did, she did - said to me that I would - I would be able to work and that I need to use my home as a transit station, whereas the parcel would be put at my home for a short period, and then it would be onward delivered to somewhere else". According to that evidence, the offender met Mr Wu some two months before he met Ms Su. If he met Ms Su in the middle of 2017, that means he may have met Mr Wu in April or May 2017. If he met Ms Su in November 2017, that means he must have met David Wu in September 2017.
4. Initially, according to this evidence, Mr Wu was running a business importing parcels, a lucrative business, and Mr Wu invited the offender to open new post office boxes for him. But at that time the offender declined to get involved in Mr Wu's business. There was a further offer of work from Mr Wu but eventually, that is after Mr Wu's second offer of work, Mr Wu introduced him to Ms Su and told the offender that she would be able to give him work.
5. There is clearly tension between that sequence of events and what is deposed to in the affidavit. Just as important at this time is the description of the work which, according to the offender, Ms Su asked him to do. It was to use his home as an interim depot and the parcels would be stored there for a short period and then they would be taken elsewhere. That might enable one to characterise the work offered to the offender as being that of a warehouseman.
6. I had difficulty hearing that and I asked for the evidence to be repeated. One can find the repeated version of that evidence at the foot of p 106 of the transcript commencing at line 45. However, there are different versions of what the work was, given in the offender's evidence. For example, at p 107 commencing at line 40 this evidence was given: "Q. Did she tell you how she got the parcels? A. INTERPRETER: Yeah, I understood that the parcels were mailed from overseas and then..., once this is arrived at the PO box and then we will collect it and then concentrate all the parcels in one place and then on-deliver them". The use of the plural pronoun "we" may have been inexact. It is unclear from that answer whether that is referring to the offender as being one of the persons who would collect parcels from the post office box and concentrate all the parcels in one place, or whether the "we" refers to the activity of the whole group involved in doing the work which the offender says was presided over by Ms Su.
7. A similar description of the work is given at p 108 commencing at line 10: "Q. In your discussions with Ms Su, did she say what you had to do? A. INTERPRETER: She told me that my work involved collecting the parcels from the PO box and together with David mostly we took those parcels and packages to the warehouse, and on some rare occasions I would buy a bit of tobacco or cigarettes for my own". To explain the latter the offender then said that he was not a smoker but he would purchase cigarettes to sell to his friends. However, in the evidence which I have just quoted there is clear reference to the offender's own work involving collecting parcels from post office boxes and, together with David, taking those parcels to the warehouse, which was clearly the Kennards Self Storage at Macquarie Park.
8. However, at p 115 this evidence was given: "Q. You saw yourself as what? What was your position? A. INTERPRETER: So my role was to, according to instruction, to collect parcels from the PO boxes and sometimes... A. WITNESS: No, I didn't, no. A. INTERPRETER: Sorry, no, no I did not, I did not go to the PO box to collect parcel but rather to took the parcels to the warehouse". Clearly at that point the witness, the offender, realised that what the interpreter was saying was not what he wanted the Court to hear and he interrupted the interpreter. However, there is nothing to suggest that what the interpreter set out to say was what the witness had said to him in Cantonese.
9. In other words, this evidence points to an internal inconsistency in the evidence of the offender as to whether his role was merely a warehouseman or whether he was acting also as a courier collecting the parcels from the post office boxes and taking them elsewhere. According to Ms Su's evidence, she collected parcels from the post office boxes and took them, not to the offender's house, but directly to the self-storage units at Macquarie Park. That is an inconsistency that causes me some doubt about the offender's evidence. However, I move on to consider other evidence.
10. When the offender reiterated the evidence that I have quoted form p 106 of the transcript, he ended the reiteration with the words that David would come over to his home to pick up the parcels. I then pointed out to him that David's home was his home. The witness then said, through the interpreter, that David was not living at his home on an everyday basis, he only lived at his home about three or four days per week. Mr Smith SC then asked the witness whether he knew where David was living at other times and the witness said that he had heard that he also lived at Eastwood. Most of us have knowledge, not directly but indirectly, by being told things by others which we take as being truthful or, for example reading them or being told by the media that such is the fact albeit that is often erroneous.
11. The witness was then asked whether Ms Su told him what was in the parcels. He said that at first he did not know but later found out. That is not inconsistent with the affidavit because when explaining what the work was the affidavit, at the commencement of [17], uses the words "I later said to her" which does not necessarily mean the initial conversation but in a later conversation. The issue that I have just raised was also brought up again at p 130 line 35 of the transcript when the offender was being cross-examined. The evidence is this: "Q. You also said today, do you recall in your evidence, that when you first discussed working with Ms Su, at that stage she did not mention that her business involved tobacco. Do you recall that? A. INTERPRETER: Not, not very obvious not, not very transparent so I didn't know what actually she did. Q. But you agree at paragraph 16 of your affidavit of this year, you say she said 'you can work for me and help me with my tobacco importation and sale business', didn't you? A. INTERPRETER: But that was not mentioned at the first instance, that was only after a few, a few encounters". That confirms what I previously pointed out, that there is no apparent inconsistency between the affidavit and the offender's sworn evidence about when he actually learned of the nature of Ms Su's business.
12. Returning to p 107 of the transcript, the witness said that Ms Su told him that she wanted to on-sell those cigarettes and tobacco to others. The offender was then asked whether there was a conversation about being paid. The witness said that on every occasion it was about $100 or a bit more, depending on the volume of the parcel.
13. A little later the witness was asked whether he asked Ms Sue how the business worked. The evidence was this: "A. No, I didn't understand how her business worked, I only, as she told me, to collect the parcel and then sometimes took me to the warehouse. Q. Was there any discussion you had with her about what was in the parcels? A. INTERPRETER: Later, yes, I did know what's inside the parcel. Q. Did she tell you how she got the parcels? A. INTERPRETER: Yeah, I understood that the parcels were mailed from overseas and that...once this is arrived at the PO box and then we will collect it and then concentrate all the parcels in one place then on-deliver them. Q. Did she say anything about customs? A. INTERPRETER: No. I don't know what's about customs". However, that must be contrasted with par 17 of the affidavit in which the witness said that he was told by Ms Su that she made good money from importing the tobacco "because it does not go through customs". That was the subject of cross-examination. At p 131 commencing at line 22 this evidence was given: "Q. You gave evidence today, didn't you, that Ms Su never mentioned customs to you? A. INTERPRETER: She did not mention customs during the first and second meeting or encounter but later on she did. Q. So you're changing your evidence now, are you, that she did at some stage mention customs to you, is that correct?". There was the an objection and the evidence then continued in this fashion: "Q. So is it your evidence now that she did say at some point she mentioned customs? A. INTERPRETER: She did mention at some stage but I, after what she, after she had explained I still don't, I still didn't understand how, how the customs worked". The fact is that customs was mentioned. There was an absolute denial by the offender about knowing anything about customs. When the inconstancy was drawn to his attention there was a confession and avoidance, "yes, customs was mentioned at some later stage but I don't understand anything about customs". This makes me have doubts about the integrity of the offender's evidence.
14. Returning to p 108 of the transcript there is this evidence: "Q. Did you, other than taking the parcels to Macquarie Park, Kennards, did you have to take them anywhere else, or some parcels anywhere else? A. WITNESS: No. A. INTERPRETER: No. At that time I didn't even have a driver's licence. HIS HONOUR: Q. Which time did you not have your driver's licence? A. WITNESS: I can't remember. A. INTERPRETER: I only vaguely remember my licence was suspended for a couple of years and I only retrieved or regained my licence in the year 2020". An issue then arose about the suspension of the offender's driver's licence. Later in evidence he confirmed at the time of the execution of the search warrant on 9 April 2019 his licence was suspended and clearly from the evidence I have just quoted he remained a suspended driver until 2020. In evidence is the offender's criminal history, as is normal in any sentencing hearing. That discloses a driving offence of driving whilst unlicenced, an offence apt to incur a period of disqualification. The offence occurred on 4 January 2017 and for that the offender was dealt with in the Downing Centre Local Court on 20 April 2017. There is evidence from the offender himself that his driver's licence was suspended in 2017.
15. The offender has maintained that he has not driven whilst suspended or disqualified, but that I cannot accept as being truthful. For example, agreed fact 12 is this: "On 10 December 2018, at about 1pm, Mr He was sighted driving a Lexus registered in his wife's name along Coxs Road, and driving into the driveway of his residence. Mr He was observed removing large cardboard boxes from the rear boot of the Lexus". Exhibit F15 is a series of still photographs which appear to have been taken from security camera film. The first shows the offender walking into Kennards Self-Storage delivery room on 27 November 2018 at 11:28:50 followed by Ms Su. The offender is carrying nothing, Ms Su is carrying a bag. The next photograph shows Ms Su following the offender further into the premises and a male person can be seen about to enter the door that gives access to the building. The third photograph shows a person, who is clearly David Wu, being the male that had been approaching. The next photograph shows the offender walking out of the facility with Ms Su following behind him. He carries nothing but she carries a cardboard box. The next still photograph shows the offender walking towards a parked Lexus motor vehicle. The shot after that shows him walking closer to the parked Lexus vehicle. The shot after that exposed at 12:28:48 on 27 November 2018 show him opening the driver's door of the parked Lexus motorcar. The next shot exposed at 12:29:00 shows the Lexus being driven away. The inference to be drawn from those photographs is that the offender was driving the Lexus motorcar on 27 November 2018. His protestations that he did not drive while suspended or disqualified cannot be accepted.
16. After the evidence about the driver's licence, Mr Smith SC turned the offender's mind towards going to Kennards on Macquarie Park. The offender said that most of the times he went there, he went there with David Wu or David Wu took him there and sometimes Ms Su was also there. He said that he saw Ms Su at Kennards of many occasions. He was then asked whether she showed him where the storage units were. This is the answer he gave through the interpreter: "A. INTERPRETER: I did not have the entry passwords. Even though when I know on any occasion the entry password, every time when they, when they were about to leave they would change the password. So I did not have the entry password. Q. Who are the people that changed the password? A. INTERPRETER: I, I was not too sure but it would be either David or Bishan Su".
17. This topic was also then subject of cross-examination. That commences at p 131 line 41. The offender agreed that Ms Su did show him the entry password and would give it to him but it was changed shortly after each time it was given to him. When asked how short was the period, the witness said that he did not know how fast the changes were occurring but each time he went back to try to enter the facility the password was different. The cross-examination about the passwords takes up most of p 132 and the top of p 133. I find it very difficult to accept that what I was being told about the frequency and accuracy of the changing of passwords was correct. Indeed, when the witness was pressed for detail, his memory failed him on a number of occasions. Indeed, at one stage he volunteered that as a rule of thumb the entry codes were changed. When I look at exhibit F9, the password for units F001 and J001, being the PIN number, never appears to have been changed over the period between 13 October 2018 and 13 March 2019.
18. SMITH: If your Honour pleases, I object to that. There was no evidence that that was the password. HIS HONOUR: I discussed that at some length yesterday, Mr Smith. SMITH: Yes but we can't just speculate, there's no evidence.
19. HIS HONOUR: At the top of p 109 of the transcript, Mr Smith asked his client whether he would sometimes take parcels to his home. He denied that he would do that. He said: "Rather it was ... them who ... dropped the parcels at my home and then sometime later other people come to my home and to collect them." again referring to his job as a "warehouseman". The offender was then asked about the women referred as sister Fhang. He said that he had heard of her and knew her but was not well acquainted with her and as far as he was concerned, she was Ms Su's friend. He also said that he had seen her: "once or twice at Macquarie Park". He identified her as being in the photograph which is in exhibit F4. He also identified David Wu and himself.
20. At p 110 at line 25, these questions and answers were given: "Q. Were you paid by Ms Su for the work you did? A. WITNESS: She said, yes, she paid me during a certain period for a few hundred dollars. Q. Where did she pay you? A. WITNESS: At the casino. Q. How often would you see her at the casino in this period? A. WITNESS: About at least once per week. Q. When she gave you instructions, where were you? Where did that take place? A. WITNESS: Sometimes she gave instructions to me in person, sometimes over the phone. Q. Did David give you instructions? A. WITNESS: Yes, also both of them gave me instructions. Q. Did you ever lend any money to Ms Su? A. WITNESS: No, no, such thing. Q. Did you have money to lend to her? A. WITNESS: Yeah, I don't have any extra, extra money because I gamble away."
21. The evidence then went on to tell me that the offender has been playing poker for over ten years. Indeed at one stage that was extended to being for about 15 years. He plays poker called Texas HoldEm. He does not play against the casino but he plays against other poker players at the casino. Indeed, on one view of it, the offender's major occupation over the last ten to 15 years has been as a professional poker player.
22. Indeed, during a relevant period he was overseas. Exhibit F14 establishes that on 22 March 2019, the offender left Melbourne International Airport on flight CX104. He returned to Melbourne on 26 March 2019 on flight CX105 from Hong Kong. The evidence given by the offender about that trip makes it much longer than actually it was. In oral evidence the offender said that a few weeks before the execution of the search warrant he had gone to Hong Kong and Macau. He went to Macau Casino to play poker. He also had an uncle who was elderly living in southern China. He was old and frail and as he had no children, it was left to the offender to organise for his old and frail uncle to go into an aged care home. The offender thought that the length of the trip was around ten days" but clearly that recollection was faulty. However he did recall landing in Melbourne on the way home and stopping over in Melbourne for a few days to play poker at the Crown Casino in Melbourne.
23. This raises an air of implausibility. Here is the offender going overseas to attend to a family matter but also to play poker at the Macau Casino, flying in and out of Australia via Melbourne, presumably flying from Sydney to Melbourne on domestic flights and then stopping over in Melbourne to play poker at the Crown Casino in that city, when he wants me to believe that he was down on his luck and needed to work for Ms Su in her illegal business which netted him "a few hundred dollars" to use words which would appear to be an attempt to downplay the extent of his earnings at p 110 line 25 of the transcript. That is the only estimate, "a few hundred dollars", that the offender ever provided to me of his earnings from working for Ms Su.
24. After that evidence the attention of the witness was taken to whether he knew of the illegality. This evidence was given commencing on p 112: "Q. Did you know the tobacco that was being imported was illegal because no duty had been paid? A. INTERPRETER: I, I, I didn't, didn't know too well but I, I kind of heard that if, if went and paid the excise duties then the customs people may release the tobacco back to you. Q. Did you suspect that these cigarettes and tobacco were illegally imported? A. INTERPRETER: At first I didn't know that those tobacco products haven't been taxed or haven't paid the tax, but later on I knew they were without paying tax. Q. Did you ask Ms Su about them? A. INTERPRETER: I did ask her but she told me that some of the tobacco products have already pay tax and I don't need to care too much about them." That appears to be reiterating the type of evidence that had been given by Ms Su. The matter which concerns me is this: Ms Su pleaded guilty to a charge of being reckless as to whether the customs duty had been paid or not. The current offender pleaded guilty to a greater offence knowing that the requisite customs duty not been paid. Insofar as he was reiterating what Ms Su has said he appears to me to be adopting her position, which is inconsistent with the plea that he entered.
25. The attention of the witness was then drawn to the execution of the search warrant. It established that at the time of the execution of the search warrant his father in law, that is the husband of his second wife, was residing at the North Ryde premises. He confirmed that a number of telephones and a number of SIM cards and two packets of cigarettes had been taken from his home by the police.
26. Paragraph [25] of the agreed facts is this: "Located and seized at the premises of Mr He were: a) 10 mobile phones and 17 SIM cards; b) An HP laptop and two iPads; c) Penalty notice in Mr He's name in respect of NXESSL(MERC) and CLE60DE (ELGRAND), being the vehicles driven by Mr Wu; d) Servicing documents for the ELGRAND; e) A penalty notice for Mr Wu in respect of CO42CF and a notice of cancellation of vehicle registration for Mr Wu; f) Vehicle insurance showing Mr He's wife, . . . had insured DMX93U (Lexus); g) 1 shipping document listing Ricky Jie Li He as the sender with the mobile number being [redacted] and email of ricky.Investment26@yahoo.com.au; h) 10 ABF notices of assessment or duty to be paid for cigarettes; i) Four Kennards Self Storage keys for Unit C17 at Kennards Self Storage Macquarie Park; j) AU $100,000 Star Casino Chip and Cash in an amount of AU $23,000."
27. The offender said that $23,000 in cash belonged to his wife and that he and his wife were totally financially independent of each other. He also said that the Star Casino $100,000 chip belonged to his wife. He explained that they were especially designed chips that were available only for those from overseas. At the time his wife was not an Australian resident or citizen and hence she was entitled to use those specially designed chips. There is no evidence to controvert any of what the offender said about the cash or the chip.
28. The witness confirmed that he had been given certain advice by his solicitor and no inference can be drawn from the fact that the offender declined to provide his password code for his telephone or any PIN number or the like. The inference to be drawn from the way in which the evidence was given is that was because of the advice that had been provided to him.
29. It was only then that the affidavit which became exhibit F13 was tendered.
30. The offender's evidence in chief, after formal denials of various matters, turned to his interaction with Ms Su after the execution of the search warrant at his home. He said that by chance he bumped into her in the street and he merely greeted her because his lawyer told him that he should not have any contact with her. The offender denied providing any offer of assistance to her and said that it was quite impossible that he had offered to organise a lawyer for her.
31. His attention was then drawn to the fact that the affidavit in the Federal Circuit Court to which I referred much earlier was found in one of the storage units at Macquarie Park. The witness said that he didn't understand why those documents were found there. There is a ready explanation that the document was in a cardboard box which somehow found its way to the warehouse and no adverse inference can be drawn from the fact that the affidavit was found at the storage unit. It is consistent with both what the offender is saying and consistent with what Ms Su is saying.
32. The witness was then taken to the content of the affidavit of 5 September 2016. His attention was drawn to the statement in par 10 that he had spent the majority of his time overseas exporting beef and fruits from Australia to China. He said that he was only involved in the export of two parcels of beef from Australia to China. The first export was only an export of 100 kilograms of beef and that was a "sample" for the offender's acquaintance in China to consider after it arrived in China. However that led to the export of a container load of frozen beef. The beef was in fact sourced from an abattoir in Toowoomba. The offender said that his role was to find a supplier and facilitate the export of the container of beef from the abattoir at Toowoomba to the premises that were being arranged for the friend from which to sell the beef in Chengdu, a city in Sichuan Province. The offender said that that occurred in about 2014 or 2015. He went back to China to help his acquaintance set up the business but the shipment was delayed for about two months by Chinese Customs authorities. Eventually the beef was allowed through Customs but that only left one month before the beef reached its use by date. The offender gave evidence to the effect that he did not engage in this business venture any further because it was not sufficiently profitable. He also said that he did try to source some fruit for export but that did not come about and instead he exported about 100 bottles of wine merely earning some commission for helping to export 100 bottles of wine.
33. It was after telling me about the work exporting beef and wine that the witness started speaking about playing poker. It was then that he said he had been playing poker for 15 years. He said that he played poker for 50 to 60 hours per week. He was asked when he had a good week how much he might make and he said "well over $10,000". He was then asked when he had a bad week how much might he lose and he said it could be "almost $10,000". He also said that at about the time he met Ms Su he owed others around $10,000 and that he did not lend money to Ms Su.
34. At that stage the luncheon adjournment had been reached and the cross examination of the offender commenced after the luncheon adjournment. In cross-examination that the offender told me that when he was waiting for his friend's shop to be ready and for the delivery of the beef to that shop in Chengdu that he spent his time playing poker.
35. In cross-examination there was questioning directed to the issue of whether the house at North Ryde was what might be described as a "matrimonial asset" or whether it was solely the property of his wife. The offender said it was solely the property of his wife. An attempt was made to use his use of pronouns to seek to establish that he thought it to be his own property. However, the use of personal pronouns such as my and our is merely consistent with his viewing the property at North Ryde as being his house, that is his home, just as a child, while having no property in a house, would refer to his parents' house as "my home". Nothing can be deduced from such usage.
36. However, commencing at the foot of p 125 of the transcript, the offender denied being at school with Mr Wu's mother and even knowing who she was and denying what is contained in agreed fact [28] to be found in exhibit F1. It was then formally put to the offender that he employed Mr Wu. He denied that. It was then suggested to the offender that he allowed Mr Wu to drive his cars. The offender replied that he actually sold a vehicle to Mr Wu and the registration was transferred to his name. It was established that the Nissan Elgrand was originally registered to the offender but its registration was transferred to Mr Wu by the offender and the offender told me that the consideration for that was $6,000.
37. It was then suggested to the offender that the offender allowed Mr Wu to drive his Mercedes. The offender acknowledged that that was the case but said he did so because he did not have a valid licence and the Mercedes was worth only $5,000 to $6,000. He said that he did not drive whilst he was suspended but I cannot accept that as being truthful. He agreed at the top of p 127 line 5 that he was suspended in around 2017.
38. He was confronted with agreed fact 12 which I have already cited which is the one that maintains that the offender was seen driving the Lexus on 10 December 2018. Again, despite the agreed fact, the witness maintained that he did not drive whilst he was suspended. That denial can be found on p 127 line 44. The denial was maintained at p 128 line 24.
39. The witness was asked whether the Lexus and the Mercedes were parked at the casino at the time that the ABF officers executed the search warrant on 9 April 2018. The witness agreed that they were. He said that the Lexus was parked at the casino because there was somebody interested in purchasing it and the offender had left the car parked at the casino so that a prospective buyer could inspect it.
40. The witness was then taken to the transcript of the execution of the search warrant which is exhibit F2. Exhibit F2 contains 166 pages. In it there is a denial by the offender of letting anybody else drive the Mercedes or letting anybody else drive the Lexus. However it is clear from the agreed facts that he did let David Wu drive the Mercedes. When asked at the time of the execution of the search warrant how did the Lexus and the Mercedes both get to be parked at the Casino, the offender said it was, "a long time ago". There was no hard evidence as to how the two vehicles came to be parked at the Casino at the time of the execution of the search warrant or who had driven them there. Considering that it has been established that the offender did drive whilst suspended or disqualified it is quite possible that he did so, but that is merely a matter of speculation.
41. I was intrigued that they may have been parked at the Casino since his licence was suspended in 2017, over a lengthy period of time, but the offender said that he was entitled to park at the Casino because of his VIP status without charge.
42. Then there was cross-examination about the mentioning of Customs and the access code issue, and how might it have occurred that the keys to storage unit C17 were found in the offender's bedside table and how the name of one of the offender's friends, Ray Chow, came to be a name on one of the leasing agreements for storage unit J001. The evidence then turned to the offender's second wife. He described her as a medical practitioner by profession who had built up her own business of providing medical equipment to hospitals in China. She would appear to be a wealthy lady with a very profitable business.
43. The questioning then turned to the interaction between the offender and his second wife financially. After it was pointed out by the cross-examiner that his wife allowed Mr Wu to stay at the property this question and answer were given: "Q. She also allowed you to offer the house, on your version, to Ms Su as a place to store boxes didn't she? INTERPRETER: A. That was during the Christmas period when she went back to China for a few months with her own daughter and I was alone at home, that's why I used the home." I point out that in 2017 the offender's wife's daughter was about seven years old. It may have been in 2016 that she was seven years old. In any event in 2019 when the search warrant was executed she would have been some two years older, eight or nine years old. She was going to school in Australia, indeed that was why the offender's father in law was staying at the North Ryde Property, to look after his granddaughter when his daughter, the offender's wife, found it necessary to travel out of Australia to carry on her business. Presumably this trip overseas to China with the daughter was during the school Christmas holiday period. There may have been some time taken off school before the Christmas holidays began, when little work is done in schools, and there may have been a few weeks taken off school at commencement of term or it may be that the child was going to a private school where term can start a little later, but one would not expect the child to be overseas for any lengthy period when she was due to be at school. That would seem to limit the period that the offender's second wife and daughter were overseas to the months of December and January or perhaps late November to early February.
44. If this were the period when the offender's home could be used as a "warehouse" for parcels collected from the post office boxes, then there is an inconsistency in the offender's case. How comes it that he appears to have been interacting with Ms Su by at the latest 13 October 2018 and was still interacting with her at the time of the execution of the search warrant on 9 April 2018? On the other hand, this answer may have been merely to seek to exculpate the second wife from any knowledge of the offender's being involved in Ms Su's business, to use the formulation that the offender wishes to place upon the relationship between himself and Ms Su.
45. The cross-examiner then turned, essentially, to the issue of the sources of income available to the offender. The offender pointed out that his wife left money with her father to enable the father to care financially for his granddaughter. The evidence then continued thus: "Q. You also made a lot of money playing poker, and, in fact, you described yourself in your interview with ABF or you agreed that you were successful; you've made a lot of money playing poker? A. INTERPRETER: It's not like I won a lot of money, but rather I can get along with doing that many years of playing poker. I can get along with my life and can pay for my expenses. Q. So you agree you had the ability to make money playing poker, don't you? A. INTERPRETER: Over the years winnings and losses, but overall it can afford, that the winning can afford to pay for my humble living expenses. Q. There was no need for you to take a job as a labourer for Ms Su when you had the ability to, as you said earlier, make up to $10,000 a week from poker, did you? A. INTERPRETER: During the period in question I was on a losing streak. Q. But you gave evidence that shortly before ABF attended your property you spent ten days in Hong Kong and Macau playing poker, and that you then returned to Australia via Melbourne where you spend two days at Crown Casino also playing poker. You obviously had the funds and the time to spend nearly two weeks overseas, didn't you, playing poker? A. INTERPRETER: I just not long ago I did consult with my lawyer and he was terrified that I didn't spend that long period overseas. It could be just a few days or not that long and I - the reason I played poker overseas was trying to earn some money". I should point out that at that stage the offender's travel movements, exhibit F14, were not available. They were subsequently tendered by consent. They, of course, show a much shorter period overseas. I take it that the reference to the offender's lawyer being "terrified" was his being concerned about the length of the period of time that the offender was overseas.
46. However, the fact remains that the offender was a regular traveller. In the year 2018 he departed Sydney on 16 January 2018 and returned to Sydney from Hong Kong on 29 January 2018. On 5 May 2018 he departed Sydney and on 8 May 2018 returned to Sydney from Hong Kong. On 26 October 2018 he departed Sydney and returned to Australia, to Melbourne, on 31 October 2018 from Hong Kong. He made five overseas trips to either Hong Kong, Canton or Wuhan in 2017 and four trips overseas in 2016, the return journeys all being from Hong Kong. In other words, the trip to Hong Kong/Macau/Canton in March 2019 represented part of a regular course of travelling between Australia and mainly China.
47. One would expect any professional poker player, or any regular poker player, to have both wins and losses. Of course some losses can be much greater than other losses, equally some wins can be much greater than other wins. However, the offender appears to have been supporting himself by being a gambler for the best part of 15 years and one would expect in the normal course of events that he could weather a short period of bad luck.
48. The witness was then challenged about whether he told the ABF officers at the time of the execution of the search warrant that he did not know anyone who lived in Eastwood. In exhibit F2 at p 60 the offender denied knowing anyone who lived in the suburb of Eastwood. However, the offender did know that David Wu, when not living with him, was living in Eastwood.

Assessment of the Offender's evidence

1. Just as the offender in-chief denied aspects of the Crown case, when aspects of the Crown case were put to the offender in cross-examination he maintained his denials. For example, there was the denial of offering to arrange legal representation for Ms Su. That can be found at p 136 line 27. There was various other items of cross-examination directed to the record of interview with the ABF officers, most of those I have already canvassed, such as who drove what cars and where the cars were garaged.
2. I must say that I had difficulty in accepting the honesty and reliability of the offender's evidence. Some of what he said appeared to me to be rather glib. At one stage he behaved as if he were a man of little worldly experience, a man who was naïve, a man who was not worldly-wise. Those aspects of his evidence I found extremely difficulty to accept. Here is a man who was 47 years old at the time of the execution of the search warrant and is now 49 years old. He came to Australia at the age of 15. He has been a resident in Australia for the best part of 34 years. He must have a fairly good grasp of English. His English was good enough to enable him to correct an interpreter when he thought the interpreter had made a mistake.
3. This is a man who has been married twice and divorced twice. His second wife was a lady who was obviously a professional, hardworking, successful and wealthy. One would hardly expect such a lady to marry somebody who was naive or lacking in worldly experience or worldly wisdom. The offender is also a man who has exercised some entrepreneurial skill witness the first foray into that at the Parklea Markets, the foray into that with exporting beef and attempting to export fruit and exporting some wine, finding that those activities were not profitable and giving them away but essentially supporting himself for a period of some 15 years by being a poker player having a high ranking, VIP status at the Star City Casino. One would not expect such a man to need to turn to "humble work" working for Ms Su as a mere "worker" taking on the role of a warehouseman being a person working for her.
4. That the offender is unreliable and prepared to be untruthful can be shown by the simple fact that he drove cars whilst his licence was either suspended or disqualified and he is prepared to lie about it to me. There are as I have sought to point out internal inconsistencies in his evidence. There are other matters which cause me concern.

Consideration

1. Some of the photographic evidence is telling. The offender asks me to accept that he was working for Ms Su. Exhibit F5 shows the offender in a lift holding something in his hands which might be a mobile telephone at which he is looking. In the same photograph is Ms Su pushing a trolley containing what is probably the proceeds of this business. Exhibit F5 shows the offender in the foreground on the right, again appearing to look at a phone and there is David Wu pulling a trolley containing boxes.
2. Exhibit F15, the series of photographs which appear to be taken from surveillance cameras on 27 November 2018 show the offender leading both Ms Su and Mr Wu into the storage facility. Ms Su is carrying a bag, the offender carries nothing. When they are departing the offender leads again carrying nothing but then the lady for whom he allegedly works is carrying a parcel, a box, which is more consistent with her being the worker and him being the boss. When he walks towards the Lexus in which he drives off he is not carrying anything in his hands such as a box. These are small vignettes but they are consistent with his being the boss rather than Ms Wu.
3. Another relevant consideration is that this Court has extensive experience in dealing with cases of those involved in illegal trafficking in border controlled items. This is the first case that I have dealt with in which I have dealt with tobacco being imported unlawfully into Australia. However over the last 16 years I have dealt with cases innumerable of persons bringing illicit drugs into Australia. The person most vulnerable to being detected by the authorities whether it be the ABF, the Federal Police or the State Police or Customs officers is the person actually carrying an illegal substance away from somewhere like a Post Office or a Post Office Box or a storage facility to which the package has been taken in the normal course of business by a lawful carrier such as a shipping company or air freight company, or a specialised parcel delivery company who specialise in moving parcels from one country to another. Often these packages are intercepted or inspected by authorities and the contents are discovered to be unlawful or the contents are said to contain unlawful substances. The person who picks it up from what could be thought to be lawful storage and to take it away to those who want it is the most vulnerable. Many of these people appear before the Courts because they are easily detected. The principal of a business hardly puts himself in that position. The principal of a business hardly puts himself in the position of holding on to the imported substance where holding it would implicate himself or herself or themselves such, as taking it directly to their home.
4. Here most of the packages appear to have been coming in through the post being sent to Post Office Boxes. The Post Office Boxes were not opened in the offender's name but in the name of Ms Su or Mr Wu. If one needs any evidence about Mr Wu one can look at exhibit F6 which shows the notices of assessment being directed to him at a Post Office Box in Marrickville South. There is no evidence that any Post Office Box was opened in the offender's name. Equally no storage facility was opened in the offender's name. The storage facilities were opened in the name of Ms Su or Mr Wu or other persons but not in the name of the offender.
5. SMITH: Your Honour, might I object and just say on balance I suggest you look at the agreed statement of facts from para 13 to 20 which show the offender doing a lot of the carrying into the space at Kennards and into his home with Ms Su present some of the time and Mr Wu. You have totally ignored that. HIS HONOUR: I am trying to master it. I said they were only vignettes Mr -- SMITH: You are just putting emphasis on one side and I am saying he here is not acting like a principal offender, he's acting like a labourer and I ask your Honour to consider that over the lunch period? HIS HONOUR: I shall. LUNCHEON ADJOURNMENT
6. Shortly before I adjourned for lunch I was interrupted by Mr Smith SC who sought to draw my attention to certain matters that I had not referred to earlier in the evidence. I attribute the abruptness of the interruption to his need for refreshment which I shared at the time.
7. I have mentioned that as a vignette what was shown in the photographic evidence that is currently before me. Mr Smith drew my attention to certain physical work agreed to have been performed by the offender in the agreed facts. For example on 10 December 2018 after the offender was sighted driving the Lexus to his home he was observed removing large cardboard boxes from the rear of the Lexus from its boot. On the same day, about 20 minutes later both Ms Su and Mr Wu arrived at the offender's residence and entered it. Later the offender and Wu commenced placing large cardboard boxes in the rear of Wu's Nissan Elgrand, they entered that vehicle and then drove to the Kennard's self-storage facility at Macquarie Park. It would appear from the agreed facts that Ms Su was not involved in placing items in the Nissan Elgrand and then going with that cargo to the storage facility. Later on that day, the three were observed at the storage facility that is both the offender, Ms Su and Mr Wu. The offender and Mr Wu were seen moving the cardboard boxes from the rear of the Nissan Elgrand and placing them on the back seat of Ms Su's vehicle. There is no suggestion that Ms Su did any of the carrying.
8. On 1 March 2019 the offender was seen in the company of Mr Wu. The offender opened the roller door of one of the storage units and then the offender and Wu removed three large cardboard boxes from the storage unit returning a short time later with a trolley containing six cardboard boxes which were placed in the storage unit. It was not clear who was propelling the trolley.
9. On 2 March 2019 the offender was in the company of an unidentified Asian female. He unlocked the door to storage unit J001 at 2.23pm and moved six large cardboard boxes into that storage unit. He left the unit at 2.44 with two cardboard boxes, he locked the storage unit and departed the area with the unidentified woman.
10. On 6 March 2019 the offender was in the company of three unidentified Asian ladies. All four went into storage unit J001 and placed parcels inside the unit. Flat packing boxes were removed from within the unit, then all four departed.
11. On 6 March 2019 at 2.18pm the offender returned to the storage unit, unlocked it and removed flat packing cardboard boxes, locked the storage unit and departed. On that occasion he is not in company with anybody.
12. On 10 March 2019 the offender was in the company of an unidentified Asian female and an unidentified middle eastern male. He gained access to unit J001 and moved two bulky laundry bags into the storage area and removed three boxes out of the storage unit. He then left with three cardboard boxes and the two unidentified persons. It would appear that on that occasion the offender was doing the physical work. Who the others were is not disclosed.
13. That is the matter that Mr Smith sought to draw to my attention. However, there is nothing in that that is inconsistent with the proposition that the offender was working for himself and perhaps probably nothing inconsistent with the proposition that he was working for Ms Su.
14. When I was interrupted I lost my train of thought, however I believe that I was expressing views gained from experience sitting in this jurisdiction. Another thing that a principal in an illegal enterprise of this nature is unlikely to do is to store items such as the cigarettes imported without the payment of duty or illicit drugs in his or her own premises because that would provide proof of his involvement in the scheme.
15. Here Ms Su said that she was instructed to take items from the post office boxes directly to the storage facility and not directly to the offender's home. Equally the offender said that he volunteered his home as a "warehouse" which of course would be inconsistent with his being the principal.
16. On the other hand, when the search warrant was executed the police found no "contraband" in the house at North Ryde. There were no packages stored there at that time. That however does not mean that packages may were not stored there at other times but it is a little stretch of credulity to suggest that, fortuitously, there was no "contraband" stored at the offender's premises at the time of the execution of the search warrant.
17. Essentially the issue set for my determination is whether I believe the evidence of the offender. One clue to it is this. Ms Su told me on oath that the offender admitted to her that he had been a classmate of Mr Wu's mother in China prior to his coming to Australia and that led to the relationship between the offender and Wu. As I said yesterday, I was persuaded that Ms Su was telling me the truth. Furthermore, the involvement of Mr Wu, in for example, staying at times with the offender in the offender's home is consistent with a personal type relationship between the offender and Wu rather than an impersonal relationship such as the offender only meeting Wu through Ms Su which is one version of the evidence given by the offender. Another version of the evidence given by the offender is of course that he met Mr Wu some two months prior to meeting Ms Su.
18. The overall impression which the offender left on me when I was listening to his evidence and observing him was that there was no sense of conviction in his evidence as distinct from the sense of conviction that I gathered from listening and observing Ms Su as she gave her evidence.
19. I have reached the view merely based on demeanour prior hereto but after reading all the evidence I find that the version of events deposed to by Ms Su is accurate, reliable and acceptable and that the evidence given by the offender is not to be accepted as being either accurate, reliable or honest. I therefore reject his evidence insofar as it is inconsistent with the evidence of Ms Su.
20. However, that is not the end of the matter. The evidence of the offender and other evidence tendered on his behalf need only raise a reasonable doubt for me not to be satisfied beyond reasonable doubt of the guilt of the accused of the facts as suggested by the Crown, that is that he was the principal in this criminal enterprise.
21. I have considered the evidence at length searching for what might be considered to be a reasonable doubt. There are, no doubt, minds which might think otherwise but I am not persuaded that there is any reasonable doubt about the offender's involvement in this criminal enterprise. I accept that he was the principal, that he engaged Ms Su as she said he did, that he engaged Mr Wu as Ms Su said he admitted to her that he did, and that they were both working in this enterprise set up by the offender in order to make money. The money could be laundered through the casino. Casinos are very often used for laundering illegally gained money. Equally Ms Su could have been laundering money too, but my view of her evidence is that that is so extremely unlikely as to be risible.
22. The evidence in my view points inexorably to the fact that the offender set up this scheme, used Ms Su and Mr Wu as the persons who were the "workers", the persons who rented the post office boxes in their own names, placed their names in the records of the Kennard Self Storage facility at Macquarie Park, told Ms Su and Mr Wu what to do and collected moneys obtained by selling the tobacco products as is evident from the evidence of Ms Su.

Finding

1. I therefore approach the sentencing exercise before me, accepting that Mr He, the offender, was the principal in this criminal enterprise and that Ms Su and Mr Wu were merely his "employees" in the criminal enterprise.
2. Does anyone want any further reasons? MCGRATH: No, your Honour. SMITH: No, your Honour. HIS HONOUR: I accordingly record the finding that the offender was the principal in this criminal enterprise. STOOD OVER PART HEARD TO 13 SEPTEMBER 2021.

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