R v Lu Lu [2002] NSWSC 14 | Case summary

COUNSEL : E. Fullerton SC for the Applicant SOLICITORS : M. Poberezny for the Director of Public Prosecutions (Commonwealth) William Chan & Co for the Applicant CATCHWORDS : Bails - Application for bail not entertained following an earlier order of the Supreme Court revoking bail - no question of principle LEGISLATION CITED : Bail Act 1978, s8A, s22A, s45 Iskandar [2001] NSWSC 7 CASES CITED : Kural (1987) 162 CLR 502 Turkmani [2000] NSWSC 491 Yee Kam Yau (1999) 105 A Crim R 167 DECISION : See paragraph 42 of the judgment.

Judgment 1 His Honour: This is an application for bail. 2 On 6 April 2001, the applicant and his co-accused Mr Leung were arrested following the controlled delivery of a consignment of pineapples to premises in Sydney. These had been found by the authorities to contain a quantity of amphetamine and heroin in capsules. The merchandise had been shipped from China. The applicant was charged with being knowingly concerned in the importation of not less than the commercial quantity of amphetamine, and similarly in relation to the heroin. 3 Section 8A of the Bail Act 1978 applied. In my judgment in Iskandar [2001] NSWSC 7, I summarised the effect of the authorities relating to the presumption against bail enacted by that section (having queried that the line of authority was correct but acknowledging that a judge at first instance was bound by it). I said, at [14]: 14 In view of the authorities binding on me, I proceed on the basis that , where s8A applies, an application for bail should normally or ordinarily be refused. A heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not the exclusive consideration. Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case. The application must be somewhat special if the Crown case in support of the charge is strong. 4 On 7 June 2001, Adams J granted conditional bail to the applicant. In his judgment, he said, "[T]he Crown case does not strike me as a strong one." 5 On 18 July 2001, Kirby J revoked the order granting bail, on the Crown's application for a review of that order made pursuant to s45 of the Act. Having regard to further information, Kirby J formed a different view of the strength of the Crown case. He said in his judgment (page 11), "I am left with a firm impression that it is a reasonably strong Crown case." 6 Conformably with the authorities to which I have referred, the different outcomes before the two judges is attributable to their different assessments of the strength of the Crown case, based on the materials available at different times. 7 In the present application, the applicant is confronted by s22A(1), which provides that this Court may refuse to entertain an application for bail by a person if an application by that person has already been made and dealt with by the Court and the Court is not satisfied that there are special facts or special circumstances that justify the making of the application. Section 22A(1) applies where there has been a revocation of an order for bail on an application for review, as in this case: Turkmani [2000] NSWSC 491. 8 Notwithstanding the encouraging terminology of the subsection, I apprehend that, in practice, a judge of this Court will refuse to entertain a successive application for bail unless the condition as to special facts or special circumstances is satisfied. The reasons for that are obvious enough. Ms Fullerton of senior counsel for the applicant, sensibly and correctly, in my view, assumed that it was necessary for the applicant to establish special facts or special circumstances justifying the present application. 9 Since Kirby J gave his decision on 18 July 2001, there has been a committal hearing and the applicant has in fact been committed for trial. The applicant's case for special facts or special circumstances is that relevant information is now available which was not known to the applicant or reasonable ascertainable by him prior to the committal hearing. 10 The first matter is the date for trial. Kirby J expected a trial early in 2002. Through no fault of the applicant, the trial date has now been fixed for somewhat later, 3 June 2002. 11 The second matter is information concerning what transpired between the applicant and employees of a customs consultant and international freight forwarding agent employed by Silver State Agencies, the company that cleared the consignment. That information, it was said, reduces the strength of the Crown case. The Crown did not dispute that the availability of information bearing materially on the merits of the claim for bail and not previously known to or reasonably ascertainable by the applicant could, as a matter of principle, constitute special facts or special circumstances within the meaning of s22A(1). 12 I will deal first with the second matter advanced as special facts and / or special circumstances, that is, new information concerning the dealings with Silver State Agencies. 13 The charges involve the applicant being knowingly concerned in the importation of the prohibited drugs. That element in the charges would be satisfied by the applicant being aware that there was "a significant or real chance that such was the case: Kural (1987) 167 CLR 502, Yee Kam Yau (1999) 105 A Crim R 167, 173-5. The Crown case is that the mental element is to be inferred from the applicant's conduct. 14 On the Crown case, the applicant was significantly involved in the importation. He was in Australia under a business visa. He left Australia in February 2001 as required by his visa and returned in March 2001. He says he had aspirations to build up an importing business in Australia. (There is some evidence of that.) While overseas in February - March 2001, he made contact with Ms Shen Guen in China concerning export of the consignment of pineapple to Australia. Ms Shen Guen arrived in Australia shortly after he had returned. By then, the consignment was shortly to arrive. The agents were retained to clear the goods through customs and release by the shipping company. Mr Kwok, an employee of the agents, requested an invoice and a packing declaration. The applicant says he asked Ms Shen Guen for these. She did not have them. So, on his own admission, on 26 March 2001, he generated the documents requested by Mr Kwok on his computer and submitted them to Mr Kwok's office on that date. 15 The bill of lading specified "Guangxi Cereals Oils & Foodstuffs I & E Corp." as shipper / exporter. No consignee was named in the bill of lading, which was made out to order of the shipper. The invoices and declaration generated by the applicant were signed in Chinese characters, in the name "Huang Guo Chong", ostensibly on behalf of the consignor. Whether any such person exists, and whether any such person had authority to sign invoices on behalf of the exporter and to delegate authority to sign in his or her name is unclear. 16 Two copy invoice documents were submitted by the applicant to the agents by fax. The second was submitted in a revised format requested by the agents. The Crown has a case that the invoice documents were knowingly false, in that they purported to be copies of invoices issued in China on the earlier dates which they bore, and in that the applicant was falsely represented in them as a customer who had purchased of the goods. 17 In regard to the packing declaration submitted by the applicant, the Crown has a case that the declaration falsely purported to be a copy of a declaration made in China on the earlier date which it bore and by a person with reliable knowledge concerning the packaging of the cargo. 18 At the hearing before me, the concession was properly made on behalf of the applicant that, on the Crown case, the documents submitted by the applicant to the agents to secure release of the goods were false. 19 Thereafter, the applicant was present and appears to have taken an active supervisory role in relation to the delivery of the goods at a storage facility, nominated by his co-accused, Mr Leung, with whom the applicant says he had made contact at the request of Ms Shen Guen. 20 Concerning the invoices and declarations, Kirby J said in his judgment: It is apparent from this material that Mr Kwok was furnished by Mr Lu with documents which were false, and which were signed by him, and which purported to be invoices created in China and backdated, as well as a packing declaration purporting to have been created in China and backdated. 21 His Honour went on to review the strength of the Crown case on the materials before him. Concerning these documents, he said: The second and perhaps most formidable matter from the viewpoint of the accused is his role in the creation of the documents which were used in respect of the importation. Mr Lu must surely have known that the purpose of the packing declaration was, as the title suggests, some form of verification that the goods were what they were represented to be. These were not merely formal documents. Mr Lu had no personal knowledge of these goods. He only had the assurance of the person who was the exporter and he recognised that such a situation involved danger to the point where he needed to seek reassurance. Yet notwithstanding that he created these documents and furnished them for the purposes of facilitating delivery. 22 There were additional aspects of the Crown case which his Honour specified as providing a basis for the element in the Crown case that the applicant was involved in the importation of the drugs knowingly. The applicant's argument proceeded on the basis that the creation of the relevant documents and their use by the applicant was an important aspect of the facts from which that mental element was allegedly to be inferred. The Crown did not submit otherwise. I am content to proceed on that basis. 23 As I understand it, the significance of this aspect of the facts in the Crown case is the argument that it is inherently unlikely that a person in the applicant's position would have created and presented false documents in the way the applicant did, unless he knew or seriously suspected that the shipment was illegal in some way, that it had earlier occurred to him that the shipment might be a clandestine operation for importing prohibited drugs, and that this was the illegality that must, accordingly, have been in his mind when he created and submitted the false documents. Behind the argument lies the proposition that people do not ordinarily engage in seriously dishonest conduct for the purpose of facilitating regular commercial transactions. 24 In support of the present application, it is asserted that the evidence given at the committal proceedings, subsequent to Kirby J's determination, puts a different light on the applicant's conduct in relation to the documents generated by him and submitted to the agents. 25 In his statement, dated 14 May 2001, pre-dating Kirby J's determination, Mr Kwok said: Examination of the documents supplied by LU revealed that they did not include a packing list and that the invoice did not conform to the standard required to enable correct classification the goods being imported [ sic ]. As a result LU was contacted and asked to contact the supplier and obtain another invoice in the correct format and a copy of the packing list. Later that same day, 26 March 2001, LU faxed to Silver State Agencies a copy of another invoice in a different format. This invoice was also dated 10 Mar 2001 and numbered GC2001118. 26 Conformably, the statement of facts tendered before Kirby J included that the first invoice was submitted to Mr Kwok by fax on 26 March 2001 and that the second edition of that invoice was submitted, at Mr Kwok's request, later that day. 27 By contrast, it is said Mr Kwok made two new things clear in his evidence at the committal hearing: first, that the documents sought included a "packing declaration", not a "packing list", which was required for quarantine purposes and not for customs duty purposes (14 September 2001, pp 23-28); and, secondly, that the request for the second invoice was made by another employee of the agent, Mr Jack Yau, in circumstances indicating that Mr Yau must have known that the second invoice was not generated by the supplier as it purported to be. 28 As to the first of these points, the distinction is without a difference. The packing declaration was required for release of the goods. That it related to quarantine rather than customs requirements was immaterial. As Kirby J understood it - correctly - the documents, including that document, were "created and furnished… for the purpose of facilitating delivery". That is what mattered. 29 The burden of the second point is that the new evidence shows complicity on the part of Mr Yau in the generating and use of false documentation, whereas the earlier material stated only that the second invoice was requested by Mr Kwok's office (at that stage, it was said, by Mr Kwok himself) without an implication that Mr Kwok or anyone in his office was complicit in the creation and use of false documentation. 30 Conformably, the statement of facts tendered before me records that the second invoice was provided by the applicant at the request of Mr Yau rather than Mr Kwok. 31 The evidence that it was Mr Yau who requested the second invoice was given by Mr Kwok at the committal hearing (14 September 2001, p 14). He also agreed in cross-examination, that, with only a two hour gap between the request for a reformatted invoice and the response, it was "obvious he's [ie the applicant] had to do that [ie the reformatted invoice] himself" (14 September 2001, p 53). 32 It is submitted that this is a statement by Mr Kwok that it would have been apparent to Mr Yau that the second invoice was a false document. It is then said that Mr Yau was nonetheless willing to use it, and that this showed a context of loose practice in dealings with the authorities in relation to the release of imported goods. The applicant was, therefore, doing no more than "the culture" allowed. That, it was said, went to the significance of the applicant being willing to engage in the fabrication of documentation. 33 The difficulty with the argument is that nothing of relevance to it is new. Mr Kwok's opinion that Mr Yau would have been aware that the applicant had falsely created the second edition of the invoice is no more than an inference from facts previously known, namely, the time between the transmission of the two invoices by fax from the applicant to the agents' office. The times were apparent from the annexures to Mr Kwok's statement made on 14 May 2001. The inference was no less open on the material available in July 2001 than on the material available thereafter. The inference is no better for having been stated by Mr Kwok as his inference from that material, which is no more than Mr Kwok's evidence amounts to. (It was not suggested that there is now evidence that Mr Yau knew the applicant was not a true customer, as stated in the invoices.) 34 It is then submitted that a similar argument is now available from the way in which the bill of lading was dealt with in Mr Kwok's office. The bill of lading was to order. For the goods to be released by the shipping company, the bill had to be endorsed by the shipper. The bill also had to be endorsed by Lu Lu Import & Export, the entity specified as the customer in the invoices. Mr Kwok gave that evidence at the committal hearing (14.09.01, pp 61-63), but it is no more than information about maritime trade practice otherwise available. The bill of lading bears what purport to be such endorsements. The document was available before the committal hearing. 35 Both before and after the committal hearing, there was reason to believe that the endorsements, ostensibly made by the shipper and by the applicant, were made in Mr Kwok's office, and that the endorsement by the shipper was not made by it or with its authority. That such an inference is open is common ground. It is the fabrication of endorsement by the shipper that is relied upon. In his evidence at the committal hearing, Mr Kwok denied that he was complicit in that. This raised the inference that Mr Yau was so complicit. From there, the applicant's argument is, again, that there was a context of loose practice which extinguished or diluted any inference as to the applicant's state of mind concerning the possibility of prohibited drugs being in the cargo, such as might otherwise arise from the applicant's readiness to generate and submit false documents to secure release of the goods. 36 The relevant factual proposition is that the bill of lading was falsely endorsed on behalf of the shipper with the complicity of someone on the agents' staff. Having heard argument and reserved my decision, it is not clear to me why that inference was not as open on the materials available in July 2001 as it is now.

R v Lu Lu

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Judgment (7 paragraphs)

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Cases Cited (4)